Stags Head Hotel Limited v Supaduka Nakuru Limited [1986] KECA 10 (KLR)
The bottom line
#Kenya's Court of Appeal cut a Nakuru judgment nearly in half, letting a hotel defend an Sh830,000 claim while confirming judgment for Sh650,000.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the costs of the appeal and of the High Court proceedings to set aside should follow the concession on the main appeal
- 2.Whether the case of Pindoria Const Co v Iron etc Co was distinguishable on the facts
- 3.Whether notice of the Order 6 rule 13 application was properly given
Key legal issues
#Notice requirements under Order 35 rule 1(3) and Order 50 rule 4
Order 50 rule 4 requires 7 days notice of the motion itself, not of its hearing; and in any event the application was under Order VI rule 13, not Order 35
The court considered counsel's argument that the application was in substance one for summary judgment requiring 7 days notice. It held that the provision requires notice of the motion, not of the hearing, and that in any case the application was brought under Order VI rule 13, so the summary judgment notice provisions did not apply.
Distinguishing Pindoria Const Co v Iron etc Co on costs
The Court of Appeal distinguished Pindoria's case on the facts and awarded the respondent half the costs of the appeal and the High Court set-aside proceedings
Counsel sought to follow the order in Pindoria's case giving full costs of a successful appeal. The court found material factual differences - the dilatoriness of counsel in that case, the short notice here, and the circumstances of the advocate conducting the defence - and held the case distinguishable. The court also declined to reverse a judge conscientiously applying normal hearing rules.
Legal principles established
#- An appellate court should be slow to criticise or reverse a trial judge who conscientiously gets on with the list and applies the normal rules as to hearing and attendance
- Order 50 rule 4 requires 7 days notice of a motion, not notice of its hearing
Court orders
#- 1.Upheld the order of the High Court for judgment for the respondent for Kshs 650,000.00
- 2.Set aside that part of the High Court order relating to the balance of Kshs 830,000.00 and gave unconditional leave to defend as to that portion of the claim
- 3.Ordered that half the costs of the appeal and the costs of the proceedings to set aside in the High Court be paid by the defendant/appellant to the plaintiffs/respondents in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- High Court Civil Case No 146 of 1984
- Jurisdiction invoked
- First appeal to the Court of Appeal against the ruling of the High Court (as then provided under the applicable appellate legislation)
Relief refused
#Costs of the successful appeal in full, as urged by counsel following Pindoria's case
The case was distinguishable on the facts; the respondent should have half the costs of the appeal
Costs
Half (½) the costs of the appeal and the costs of the proceedings to set aside in the High Court shall be paid by the defendant/appellant to the plaintiffs/respondents in any event
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We therefore uphold the order of the High Court for judgment for the respondent / defendant for Kshs 650,000.00, but set aside that part of it which relates to the balance of Kshs 830,000.00 and give unconditional leave to defend as to that portion of the claim.
To this extent, then, is the appeal from Omolo, J’s decision of July 18, 1985 allowed.
we should be slow to criticise or reverse a judge who conscientiously tries to get on with his list and applies the normal rules as to hearing and attendance.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stags Head Hotel Limited v Supaduka Nakuru Limited [1986] KECA 10 (KLR)", Case Analysis (1986). Civil Appeal No 98 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/10/eng@1986-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.