JUDGMENT OF THE COURT
The appellant herein, ORION HOTELS LIMITED (the then defendant) filed an appeal from the ruling of Khaminwa, J, delivered on 7th February, 2011. The background to this appeal is that the respondent, TIRTH CONSTRUCTION LTD (the then plaintiff) filed HCCC No. 148 of 2008 vide a Plaint dated 12th January 2008. The respondent’s claim against the appellant inter alia, was for payment of Kshs.12,799,900/=. The respondent further averred in paragraph 12 of the plaint that the appellant had issued it with cheques numbers 000054 and 000055 for Kshs.3,099,077.60 and Kshs.3,000,000.00/= respectively which cheques upon presentation to the bank were dishonoured and a sum of Kshs.2,445,000/= was retention money, thus bringing the total sum to Kshs. 8,706,000/=, being part of the claim.
The appellant filed its defence and counter-claim on 19th May, 2008. It denied owing the respondent the sum claimed and averred in a counter-claim that it was owed “special damages of Kshs.27,253,…