DEFENCES, COUNTERCLAIM & SET OFF
Topic Objectives:
By the end of this topic the student should:
Distinguish the difference in defence, counter-claim and set
off
Demonstrate the ability to draft a response by way of
defence, counter-claim and or set off to plaints.
In every written statement of defence, the defendant must specifically
deny every allegation of fact made in the plaint unless of course he
intends to admit them.
The Plaintiff is also expected to specifically deny every allegation made
in the counter claim unless he intends to admit them.
Kenya Trade Combine Ltd vs M. Shah (Civil Appeal No. 193 of
1999) (unreported), this Court emphasized:
‘In a matter of this nature, all a defendant is supposed to show is that
a defence on record raises triable issues which ought to go for trial. We
should hasten to add that in this respect a defence which raises triable
issues does not mean a defence that must succeed.’
Functions of a defence:
1. The function of a Defence is to state the grounds and the material facts
on which the Defendant relies for his Defence.
2. The Defence is to inform the Plaintiff precisely how much of the
statement of the claim the Defendant relies on to defeat the claim of
the Plaintiff.
So in setting out a Defence the Defendant has the following options:
1. He may traverse or deny
2. He may confess and avoid
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3. He may object on a point of law;
4. Force your opponent to furnish further and better particulars –it is an
indirect way of attacking because failure to provide may lead to an
application to strike out.
5. Reply to a pleading in such a way that you force your opponent to
amend.
6. He may admit or make an admission;
1. TRAVERSE & DENY
Traversing is an express contradiction of an allegation of fact in an
opponent’s pleadings. One uses words which have been used in the
opponent’s pleadings but turn them into the negative. If the opponent
pleads matters of law, one should not traverse this, one cannot plead
law. When one is traversing one should not attack the prayers or the
reliefs that the opponent is seeking. One should also not plead to
matters that have not been alleged. One should not attempt a pre-
emptive attack, confine your traverse to matters which have been
alleged against you. Traversing must only be on matters that have
been alleged and every allegation of fact unless it is traversed is
deemed to be admitted.
Usually the way to traverse is to have an omnibus denial, which is
framed as save as herein expressly admitted each and every allegation
of fact is deemed to be denied as if it was being set out seriatim and
traversed specifically.
Joinder of issues – where there is a joinder of issues one need not
traverse allegations contained in that pleading but there is a joinder of
issues in the last pleading filed unless that pleading raises allegations
which must be traversed. There is a joinder of issues when a defence
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is filed but there is no joinder of issues if the opponent chooses to file a
reply to the defence. If a defence has a counter claim the allegations
in the counterclaim must be traversed by the Plaintiff. If they are not
traversed then Rule 11 requires they be deemed to be admitted. If
one is served with a defence with a counterclaim, one must traverse
the counterclaim since it is acting as a plaint. Where a counterclaim is
seeking general and special damages, one cannot ask for final
judgment, as one can only ask for final judgment on the case of special
damages otherwise for general damages one would ask for
interlocutory Judgment.
2. CONFESSION & AVOIDANCE
Where the Defendant decides to confess and avoid, this means that he
admits the facts subject to some facts, which adversely affect the
claim. For instance suppose it is a suit of a dismissed employee and
the employee sues the employer for wrongful dismissal. The
defendant in responding to that claim says that “the defendant denies
that he wrongfully dismissed the plaintiff from the employment” It has
to come out clearly that the Defendant admits he dismissed the
plaintiff but not wrongfully.
In the case of libel where one admits the facts but avers qualified
privilege. Where there is libel and it is alleged it was committed in a
privileged occasion, the libel is destroyed by qualified privilege.
3. RAISE A POINT OF LAW
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This is stated in Order 2 Rule 9 – a party may by his pleadings raise
any point of law. Where a party in his pleadings indicates that they are
raising an objection on a point of law, they must be heard first. It is
always safe to isolate the paragraph in the pleadings which indicates
that you intend to raise an objection on a point of law. it is advisable
to file a formal notice of objection on a point of law, file it and serve it
on the opponent, this is meant to notify them on the point of law you
intend to raise. ‘Take notice that the defendant intends to raise an
objection on a point of law’ Where matters touch on jurisdiction they
must be heard as a preliminary matter before anything else. One must
distinguish between pleading law and raising a point of law, pleading
law is not allowed but raising point of law is permitted. When a party
is pleading law, they are basically pleading conclusions of law which
have the effect of obscuring and concealing the facts of the case. On
the other hand, raising a point of law helps in defining and isolating an
issue or question of law on the facts as pleaded. Where one intends to
raise an objection on a point of law it should be stated in a separate
paragraph and should raise a point of law which is of substance and
which requires that it must be determined by the court at that
moment. Objections could be validity of a custom, questions of
jurisdiction of a court, whether a conversation was privileged, where in
defamation a party alleges privilege, that issue can be separated and
tried. The issue is to establish if there was privilege. Raising an
objection on law is a preliminary issue and where sustained it should
have the effect of having the suit struck out or dismissed at that point.
It is important that each objection on a point of law is on a separate
paragraph.
Force the opponent to amend their pleadings – this is not direct, since
one does not do it, one forces the opponent to amend. When one
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applies for further and better particulars, one may easily seek leave to
amend. You can cure the defect by amending the pleadings assuming
he pleadings have not been closed, it is a way of attacking.
5. ADMIT OR MAKE AN ADMISSION
Order 2 Rule 11
6. COUNTER CLAIM & SETTLE:
Order 7 Rule 3 – it makes the provision of a counter claim. Even
though the Plaintiff was the first person to commence the litigation, it
may happen that the defendant also has some claim against the
Plaintiff. Usually the option is that the Defendant will have a choice
either to institute a separate suit or set up their claim in the defence.
If the court finds out that the Defendant’s claim can be determined
within the same suit without delay inconvenience or prejudice to
justice, then the court will allow it. Suppose the bank sues you over a
debt, the bank will be the plaintiff over X. suppose the Bank
overcharged in calculations? The Defendant can counterclaim on the
overcharging.
Order 20 (Application for an Account) allows a defendant with a
counterclaim to apply for account and empowers the court to order
payment after accounts are taken.
Halsbury’s Laws of England, Volume 42, 4th Edition also states:-
“For the purpose of default in pleading, a counterclaim is treated as a
claim. Therefore, if the Plaintiff or other person against whom a
counterclaim is made fails to serve a defence to counterclaim within
the prescribed time, the counterclaiming defendant may enter final
judgment according to the nature of the counterclaim.”
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SET-OFF
A set-off is a kind of counter-claim that operates as a defence to a
claim. The doctrine of Set Off allows the defendant to put his own claim
against the plaintiff before the court under certain
[Link], a set off can be defined as a discharge of
reciprocal objligations to the extent of the smaller obligation. For
example, A files a suit against B claiming 5000/- . B may take a
defence that A owes 3000/- to B as well. Thus, B is basically asking to
set off 3000/- of A's claim and pay only 2000/-.
Atkin’s Encyclopaedia of Court Forms in Civil Proceedings,
2nd Edition volume I, 1978 Issue, aptly set out the import of a set
off in a defence:
“Where a claim by a defendant to a sum of money (whether of an
ascertained amount or not) is relied on as a defence to the whole or
part of a claim made by the plaintiff it may be included in the defence
and set off against the plaintiff’s claim, whether or not it is also added
as a counterclaim (h). A set-off is in its nature a defence rather than a
cross-claim (j). A right of set-off normally arises where the plaintiff’s
claim is a debt or liquidated demand and the defendant has cross-
claim for a debt or liquidated demand which, if established, will
extinguish or reduce the plaintiff’s money claim (k), and should be
pleaded as such.”
In Jayanti Lal vs Abdul Aziz AIR 1956, SC defined Set Off as the
extinction of debts of which two persons are reciprocally debtors to
one another by the credits of which they are reciprocally creditors to
one another.
Kenya Oil Company Ltd vs Kenya Ports Authority [2009] eKLR,
Kimaru, J. stated as follows, and we agree:
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"It cannot be said that where the plaintiff has established its claim by
providing documentary evidence, then the counterclaim and set off by
the defendant should be tried separately and judgment be entered for
the plaintiff as against the defendant. I think it would be a travesty of
justice if the court were to discount a set off raised by the defendant in
its defence on the sole ground that the transaction that resulted in the
defendant’s claim in the set off is a separate cause of action from the
set of facts that prompted the plaintiff to file suit against the
defendant.”.
By claiming set off, the defendant is spared from filing a separate suit
against the plaintiff. Thus, it reduces the number of suits before the
court.
A set off happens where the plaintiff has a claim of 1000 and the
Defendant argues that the Plaintiff owes him 500/- you settle for a set-
off
There are two major distinctions
1. A set-off maybe described as a shield which operates only as a
defence to the plaintiff’s claim; whereas
2. A counterclaim may be described as being both a shield and a sword.
A Counterclaim is basically a cross-action and is in fact usually treated
as a separate suit even for billing purposes by advocates.
When you draw up a counterclaim and serve the plaintiff, the Plaintiff
must draw a defence to the counterclaim and serve the Defendant.
The defence must be specific and what is not denied is deemed to
have been admitted.
Whenever you have set-off the plaintiff has to reply to it.
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