[2009] KEHC 136 (KLR)
The court determined that the issues in controversy between the parties are primarily mathematical and relate to the rates of accounts under the contract. Given the technical nature of the dispute, the court found it appropriate to rely on expert evidence from a qualified accountant. However, since the respondent...
Source-derived case information.
- Citation
- [2009] KEHC 136 (KLR)
- Parties
- Plaintiff: Clement Nderitu T/A Wandi Contractors and Transporters; Defendant: Trans Nzoia Teachers Enterprises Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 154 of 2007
- Procedural Posture
- Civil Suit / Interlocutory Application (ruling on Summary Judgment Application)
- Outcome
- Interlocutory orders issued; final determination of the summary judgment application deferred pending further procedure.
- Legal Topics
- Summary Judgment, Liquidated Claims, Contract Enforcement, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Nderitu T/A Wandi Contractors and Transporters
Plaintiff
Trans Nzoia Teachers Enterprises Co. Ltd.
Defendant
Procedural Posture
Civil Suit / Interlocutory Application (ruling on Summary Judgment Application)
Legal Issues
- 1 Whether the plaintiff is entitled to summary judgment for a liquidated sum based on a contract with the defendant.
- 2 Whether the defendant has a reasonable defence to the plaintiff's claim or if the defence is a mere denial.
- 3 Whether the accountant's report should be adopted as the basis for determining the sums due under the contract.
Ratio Decidendi
The court determined that the issues in controversy between the parties are primarily mathematical and relate to the rates of accounts under the contract. Given the technical nature of the dispute, the court found it appropriate to rely on expert evidence from a qualified accountant. However, since the respondent did not agree to adopt the accountant's report as the basis for settlement, the court ordered that the applicant formally produce the report by affidavit, and granted the respondent liberty to cross-examine the accountant. The court held that only after such cross-examination and further submissions would it be in a position to rule on the application for summary judgment. The...
Court Disposition
Interlocutory orders issued; final determination of the summary judgment application deferred pending further procedure.
Orders
- The applicant to swear an affidavit enclosing the accountant's report.
- The respondent is at liberty to apply to cross-examine the accountant on the contents of his report.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Civil Suit 154 of 2007
CLEMENT NDERITU )
T/A WANDI CONTRACTORS AND TRANSPORTERS ).............PLAINTIFF.
VERSUS
TRANS NZOIA TEACHERSENTERPRISES CO. LTD. ) .......DEFENDANT.
R U L I N G.
By a Notice of Motion dated 20th December, 2007, pursuant to the provisions of order XXV Rules 1 (1) (a), and 2, 8 and 9 of the Civil Procedure rules, sections 3 and 3A of the Civil Procedure Act, the applicant seeks orders:
1. That judgment be entered summarily for the plaintiff against the defendant for the sum of Ksh. 5,173,291/40 with interest for the date of filing until full payment as prayed for in the plaint.
2. That the defendant do pay the costs of this application and the entire suit
The application is based on the grounds:-
(a)THAT, the plaintiff’s claim against the defendant is a liquidated demand with interest arising out of a contract entered into between the plaintiff and the defendant.
(b)THAT, the defendant is truly indebted to the plaintiff.
(c)THAT,the defendant does not have a reasonable defence to the plaintiff’s claim.
(d)THAT, the defendant’s statement of defence is a mere denial calculated merely to delay the determination of the plaintiff’s case.
(e)THAT,the defendant even admits in his defence the existence of the contract with the plaintiff.
(f)THAT, the contract giving rise to the plaintiff’s claim was voluntarily and mutually entered into between the plaintiff and the defendant.
(g)THAT,the defendant has even made part-payment in partial fulfillment of the terms and conditions of the contract.
(h)THAT, the defendant is in breach of the terms and conditions of the contract between it and the plaintiff and is bound to suffer the consequences agreed upon in the contract.
The application is predicated upon the annexed affidavit of Clement Nderitu sworn on the 20th of December, 2007.
The application was opposed. The respondent relied on the replying affidavit of Hendrick Wanyonyi sworn on 9th September, 2008.
When the application came up for hearing the parties entered into a consent to employ the services of a qualified accountant to unravel the issues relenting to rates of accounts.
I shared the view that the issues in controversy were purely mathematical in nature and the best person to unravel the same would be an accountant.
The parties then employed the services of KM Rop Associates certified Public Accountants whose report dated 29th January, 2009 was received in court on 3rd February, 2009.
While the applicant agreed with the report, the respondent declined to have the report as a basis of a settlement.
In view of the stalemate, I now order that the applicant do swear affidavit enclosing the report. In that way the report will be part of the application. The respondent be at liberty to apply under order XVIII Rule 2 of the Civil Procedure Rules to cross examine the said Accountant on the contents of his report. Thereafter respective counsel will proceed and argue the application in the normal manner.
The submissions; which shall include the result of cross-examination of the accountant shall form the basis of a ruling to be delivered by the court.
There shall be mention on 26th March, 2009 to confirm whether the court’s directive herein has been given effect to. In which day a hearing date for the application by way of Notice of Motion dated 20th December, 2007 shall be fixed.
Dated and delivered at Kitale this 24th day of March, 2009.
N.R.O. OMBIJA.
JUDGE.
Mr. Njoroge for Plaintiff/Applicant.
Mr. Onditi for Defendant/Respondent.