[2010] KEHC 729 (KLR)
The court found that the defendant's defence, particularly paragraph 5, admitted the existence of the agreement and the outstanding balance after partial refund. The only issue raised by the defendant was the need for accounts, which did not amount to a specific denial of the debt. The court held that the admission...
Source-derived case information.
- Citation
- [2010] KEHC 729 (KLR)
- Parties
- Plaintiff: Alem Seyoum; Defendant: William Tanui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 776 of 2009
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Judgment on Admission
- Outcome
- Judgment on admission entered for the plaintiff for US$31,350 with costs and interest. Remaining claims to proceed to trial.
- Judges
- FI Koome
- Legal Topics
- Breach of Contract, Judgment on Admission, Importation Agreements, Accounting of Payments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alem Seyoum
Plaintiff
William Tanui
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Judgment on Admission
Legal Issues
- 1 Whether the defendant's pleadings amount to an unequivocal admission of debt justifying judgment on admission.
- 2 Whether the balance owed to the plaintiff is US$31,350 or another amount.
- 3 Whether the matter of damages for breach of contract and loss of business should proceed to trial.
Ratio Decidendi
The court found that the defendant's defence, particularly paragraph 5, admitted the existence of the agreement and the outstanding balance after partial refund. The only issue raised by the defendant was the need for accounts, which did not amount to a specific denial of the debt. The court held that the admission in the defence was unequivocal as to the sum of US$31,350, and thus, judgment on admission was appropriate for that amount. The remaining claims, including damages for breach of contract and loss of business, were not admitted and would proceed to trial. The court relied on Order XII rule 6 of the Civil Procedure Rules and the principles set out in Choitram v Nazari regarding...
Court Disposition
Judgment on admission entered for the plaintiff for US$31,350 with costs and interest. Remaining claims to proceed to trial.
Orders
- Judgment on admission is entered for the plaintiff for the sum of US$31,350 with costs and interest.
- The balance of the claim, including damages for breach of contract and loss of business, shall proceed for trial.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS AND TAX DIVISION
CIVIL CASE NO. 776 OF 2009
ALEM SEYOUM...............................................................PLAINTIFF
VERSUS
WILLIAM TANUI..........................................................DEFENDANT
R U L I N G
1. The Plaintiff instituted this suit against the Defendant seeking to recover a sum of US$ 35,350. The Plaintiff also seeks for general damages for breach of contract, loss of business and income together with costs of this suit. The Defendant filed a defence and under paragraph 5 it is pleaded as follows:
“ The Defendant states that he refunded to the Plaintiff US Dollars Ten Thousand Six Hundred ($10,600) leaving a balance of US Dollars Thirty Five Thousand Three Hundred and Fifty ($35,500) and shall call for accounts to be furnished by the Plaintiff in this regard at the time of the hearing hereof.”
2. The applicant filed the Notice of Motion dated 31st March 2010 seeking for judgment on admission against the Defendant. The application is predicated on the grounds that the Plaintiff entered into an agreement with the Defendant dated 27th June 2008 for the importation of 11 Units of motor vehicles. The motor vehicles were to be delivered in Nairobi and were to be registered in the names of the Plaintiff.
3. The Defendant has admitted he owes the Plaintiff the sum US$35,350. The Defendants also admitted the existence of the agreement. When the Plaintiff filed this suit, they simultaneously sought for security and in response to that application; the Defendant admitted having entered into the agreement. The only defence raised by the defendant is for accounts to be taken. According to counsel for the Applicant judgment should be entered on admission on the admitted sum.
4. This application was opposed by the Defendant; reliance was placed on the replying affidavit sworn on the 17th May 2010. The Defendant admits the balance owing is US$ 31,550 and not the sum claimed by the Plaintiff. According to the Applicant there is an issue of accounts because the agreement was for US$ 41,550, thereafter the Plaintiff was refunded US$10,200, and the balance therefore cannot be US$ 31,550. According to the defendant the matter should proceed for trial. Both parties filed written submission in support of their respective preposition.
5. This application is brought under the provisions of Order XII rules 6 of the Civil Procedure Rules which basically provides that where there is admission of facts in the pleadings or otherwise, a party may apply for judgment without waiting for the determination of any other question between the parties.The principle elements to consider have been set out by the Court of Appeal in the case of Choitram v Nazari [1984] KLR p 327where it was held:
“1. On an application for judgment on admission under the Civil Procedure Rules order XII rule 6, the court should examine the pleadings carefully in order for it to establish whether there are no specific denials and no definite refusals to admit allegations of fact.
2. An allegation of fact made by a party in his pleadings which is not traversed is presumed to be admitted and the only exception to this is where the allegation is that a party has suffered damage and the amount of damages not specifically admitted is deemed to have been traversed.
3. Implied admissions are admissions which are inferred from the pleadings as a result of the form of pleadings taken, as where a defendant fails to specifically deal with an allegation of fact in the Plaint the truth of which he does not admit, or where a defendant evasively denies an allegation in the plaint.
4. Admissions of fact under order XII rule 6 need not be on the pleadings; they may be in correspondence or documents which are admitted or they may even be oral as the rule uses the words “or otherwise” which are words of general application and are wide enough to include such other admissions.”
6. The defence especially paragraph 5 admits that there was an agreement that was entered into between the plaintiff and the defendant for a sum of US$ 41,550. The only issue the Defendant raises is that accounts should be taken to establish the balance after he refunded a sum of US$ 10,200 leaving a balance of US$31,350. It is clear from the defence that the sum of US$31,350 constitutes an equivocal admission. Accordingly I enter judgment on admission for the sum of US$ 31,350 with costs and interest. The balance of the claim which also includes damages for breach of contract and loss of business can proceed for trial. The Applicant shall also have the costs of this application.
RULING READ AND SIGNED ON THIS 22ND DAY OF OCTOBER, 2010
M. K. KOOME
JUDGE