[2023] KEHC 26529 (KLR)

Cheruiyot v African Merchant Assurance Co Ltd; Ngugi & another (Interested Parties) (Civil Suit E027 of 2022) [2023] KEHC 26529 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26529 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Suit E027 of 2022

SM Mohochi, J

December 6, 2023

Between

Moses Cheruiyot

Plaintiff

and

African Merchant Assurance Co Ltd

Defendant

and

George Nganga Ngugi

Interested Party

Ventures Auctioneers

Interested Party

Ruling

1. Before me two (2) Notice of Motion Applications the 1st Application dated 30th June 2023 is filed pursuant to Article 159(2) (d) of the Constitution of Kenya, 2010, Order 22 Rule 22, and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act seeking the following relief(s);i.Spentii.Spentiii.Spentiv.Thatpending the hearing and subsequent determination of this Declaratory suit, this Honourable Court be pleased to issue a temporary order of stay of execution and attachment by Liberty Auctioneering Services of all and/or any property belonging to the Plaintiff herein, and/or any other auctioneers from interfering with the Plaintiff's peaceful enjoyment, ownership and/or possession of his properties, in execution of the judgment and decree arising from Nakuru CMCC No. 512 of 2016; George Nganga Ngugi v Moses Cheruiyot.v.That Costs of this application be provided for.

2. The 2nd Application dated 18th August 2023 filed pursuant to Article 159(2) (d) of the Constitution of Kenya, 2010, Section 1A, 1B, & 3A of the Civil Procedure Act and Order 13(2) and Order 51 of the Civil Procedure Rules 2010, and all enabling provisions of the law, Seeking the following orders:i.That the Defendant's letter of the 29th July, 2016, amounts to an admission of the fact that the Plaintiff was its insured at the time of the accident, which occurred on the 19th June, 2015, and liability, as envisaged under Order 13(2) of the Civil Procedure Rules, 2010. ii.That judgment be and is hereby entered against the Defendant on admission and ordered to satisfy the Judgment and Decree in NakuruCMCC No.512 of2016; George Nganga Ngugi v Moses Cheruiyot.iii.That Cost of suit, plus interests, from the date of filing the suit, at court rates until payment in full, be borne by the Defendant/Respondent.

3. The Application is founded on the following grounds;1. That he is/was the insured in respect to Motor Vehicle Registration number KBY 806A, under Policy Number AM1/070/i/082268/2014/03, covering such persons as are specified in the policy in respect of any accident or death by the use of the said Motor Vehicle, thereby any accident was a liability covered under the said policy within the meaning of Section 5(a) Cap 405 Laws of Kenya.i.That the said motor vehicle was involved in a road traffic accident and I was sued and vicariously held liable In Nakuru CMCC No. 512 of 2016; George Nganga Ngugi v Moses Cheruiyot.ii.That Defendant was and/or is aware of the existence of the suit herein, as per a statutory Notice pursuant to Section 10(2) (a) of Cap 405 of Laws of Kenya, and even instructed the Plaintiff's previous Advocates, through a l letter of the 29th July, 2016, to enter appearance, and engage with the 1st Defendant's Advocates with a view of getting a substantial concession on liability.iii.Thất judgment was entered against the Plaintiff herein in the above matter Nakuru CMCC No, 512 of 2016: George Nganga Ngugi v Moses Cheruyot, and a decree and certificate of costs extracted thereafter on the 5th September, 2022, for a total sum of Kshs. 1. 482. 721/= (One Million, Four Hundred and Eighty-Two Thousand, Seven Hundred and Twenty-One).iv.That under the provisions of Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act (Cap 405) Laws of Kenya, the Defendant herein is liable to make good the decretal amount Kshs. 1482,721/= (One Million, Four Hundred and Eighty-Two Thousand, Seven Hundred and Twenty-One), and costs plus interest accrued.v.That Order 13 Rule 2 of the Civil Procedure Rules, 2010, provides that: -“Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions as he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just."vi.That the key question is whether there is an admission of facts made, either on the pleadings or otherwise, and if the answer is yes, the next hurdle is whether the admission is clear and unequivocal.vii.That there has been a clear and unequivocal admission of facts by the Defendant, viewed from the test of a reasonable bystander, through the letter of the 29th July, 2026, as to its liability and should therefore satisfy the Decree and Certificate of Costs.viii.That through the said letter of the 29th July, 2016, the Defendant admitted that the Plaintiff herein was their insured at the time of the accident, and even gave the then Plaintiff's Advocates on record liberty to negotiate with the Judgement Creditor; the 1st Interested Party Herein. The Defendant is now estopped from reneging the admission.ix.That the trial Court made monetary award which is pending satisfaction, by the Defendant, legally and by admission.x.That this Application should therefore be allowed as prayed to meet the ends of justice.

4. The Application is further supported by the affidavit sworn by Moses Cheruiyot annexed thereto and on such other grounds as shall be adduced at the hearing hereof.

5. The Applicants placed reliance on the Court of Appeal in the case of Choitram v Nazari [1984] KLR 327 stated: -“For the purpose of orderXII6 (now order 13 Rules 2), admission can be expressed or implied either on the pleadings or otherwise, e.g in correspondence. Admissions have to be plain and obvious as plain as pikestaff and clearly readable because they may result in Judgment being entered. They must be without requiring a magnifying glass to ascertain that meaning."

6. Further reliance is placed in the case of Cassam v Sachania[1982] KLR 191 it was stated:-“The Judge's discretion to grant judgment on admission of fact under the order is to be exercised only in plain cases where the admissions of fact are so clear and unequivocal to an admission of liability entitling the Plaintiff to judgment."

7. That in the case of Twiga Chemical Industries Ltd v Agricultural Development Corporation [2018] eKLR, the Court stated that: -“16. The defence and the opposition filed by the Defendant do not in any way reduce the admission made in the letters. The judges of the Court of Appeal in the case Choitram v Naza supra expressed themselves in a way that is fitting in this case when they stated“If upon a purposive interpretation of either clearly written or clearly implied or both, admissions of fact the case is plain and obvious There Is No Room for Discretion to Let the Matter Go to Trial for There Is Nothing Is to Be Gained by Having A Trial," 17. The Defendants admission of its indebtedness to the Plaintiff of Kshs 59,742, 016, is such that no other inference may be made or determined therefrom. 18, The Court will therefore proceed to enter partial Judgment for the admitted amount. .. The Plaintiff) entitled to costs of the application and the suit." (Emphasis Ours).

8. That in the case of Synergy Industrial Credit Limited v Oxyplus International Limited & 2 others [2021] eKLR, it was stated that: -“admissions of fact need not be on the pleadings; they may be in correspondence or documents, or oral because the rule uses the words "or otherwise" which are words of general application and are wide enough to include such other admissions."

9. That further in the case of Simal Velji Shah v Chemafrica Limited, the court cited Guardian Bank Limited v Jambo Biscuits Kenya Limited, which stated:“The principle applicable in judgment on admission is that the admission must be very clear and unequivocal on a plain perusal of the admission. The admission in the sense of Order 13 Rule 2 of the Civil Procedure Rules is not one which requires copious interpretations or material to discern. It must be plainly and readily discernible. In such clear admission, like J.B.Havelock J stated in the case of 747 Freighter Conversion LLC v One Jet One Airways Kenya Ltd & 3 Others HCCC No. 445 of 2012, There Is No Point in Letting a Matter Go For A Trial For There is nothing to be gained in a trial. See the case of Botanics Kenya Ltd Ensign Food (K) Ltd Hccc No. 99 of 2012, where Ogola J gave acatalogue of other cases which anplified this principle. These cases are: Choitram v Nazari [1984] KLR 327 that: -“... admissions have to be plain and obvious as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning."Chesoni Ag. JA went on to add that: -“an admission is clear if the answer by a bystander to the question as to whether there was an admission of facts would be 'of course there was."

10. The Applicant equally relies on the case of Cassam v Sachania [1982] KLR 191 -“The judge's discretion to grant judgment on admission of fact under the order is to be exercised only in plain cases where the admissions of fact are so clear and unequivocal that they amount to an admission of liability entitling the plaintiff to judgment. "(Emphasis Ours).

11. That, in the case of Synergy Industrial Credit Limited y Oxyplus International Limited & 2 others [2021| eKLR (supra), the Court went on to state that: -“19. A pertinent question which comes to mind is whether there is a particular form of admission to satisfy the provisions of the above rule. However, from the language of Order 13 Rule 2, it is clear that it is open to the court to base a judgment on admission on the pleadings or otherwise. The word "otherwise," in the said provision clearly indicates that it is open to the court to base the judgment on statements made by a party not only in the pleadings but also dehors (meaning other than, not including, or outside the scope of) the pleadings.Such admissions may be made either expressly or constructively ......21. it is also important to mention that there is no time limit specified for the court to grant relief on itis own or on application at any stage of the suit. The use of the expression "any stage" in the said rule itself shows that the legislature's intent is to give it widest possible meaning. The rule confers very wide powers on the court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. the court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on well-established principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be made the basis."

12. That, the test and principles set out in the above authorities and Order 13 (2) have been met and this Application should therefore be allowed as prayed to meet the ends of justice.

13. The Two Applications are unopposed save for some opposition by the Interested Parties who had on the 27th July 2023 indicated to the Court of having filed a notice of Preliminary Objection which I have not seen on file

14. The interested Parties argued that the Application is bad in law, contravening Section 7 of the Civil Procedure Act as the same is res judicata.

15. It Appears that the Interested Party(s) opposition is focused on the 1st Application and not the 2nd Application that the Interested party concedes to.

16. I thus find the 2nd Application is undefended and uncontested and upon considering the filed pleadings, supporting affidavit I find the same to be of merit and allow the same as prayed for.

17. With regards to the 1st Application I find the same to amount to res judicata as it seeks stay orders that had been declined by this very court. The 1st Application is thus is accordingly dismissed for want of merit.

18. In the Upshot this Court allows the 2nd Application on the following terms;i.That the Defendant's letter of the 29th July, 2016, amounts to an admission of the fact that the Plaintiff was its insured at the time of the accident, which occurred on the 19th June, 2015, and liability, as envisaged under Order 13(2) of the Civil Procedure Rules, 2010. ii.That Judgment is hereby entered against the Defendant on admission and ordered to satisfy the Judgment and Decree in Nakuru CMCC No. 512 of 2016; George Nganga Ngugi v Moses Cheruiyot.iii.That Cost of suit, plus interests, from the date of filing the suit, at court rates until payment in full, be borne by the Defendant/Respondent.iv.The Costs awarded to the Applicant and Interested Parties against Defendant.It is hereby so ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 6TH DECEMBER 2023MOHOCHI S.MJUDGE