[2002] KEHC 533 (KLR)
The court found that the defendant had expressly admitted liability for USD 3,000 in its defence, entitling the plaintiff to judgment for that sum together with costs and interest under Order 12 Rule 6 of the Civil Procedure Code. However, the court determined that there were triable issues regarding the balance of...
Source-derived case information.
- Citation
- [2002] KEHC 533 (KLR)
- Parties
- Applicant: Elegant Cars Limited; Respondent: Akiba Bank Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 74 of 2001
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Judgment on Admission and Summary Judgment
- Outcome
- Partial judgment for plaintiff on admitted sum; balance to proceed to trial.
- Legal Topics
- Judgment on Admission, Summary Judgment, Bank Customer Dispute, Special Damages, Liquidated Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elegant Cars Limited
Applicant
Akiba Bank Limited
Respondent
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Judgment on Admission and Summary Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to judgment on admission for the sum of USD 3,000 as admitted by the defendant.
- 2 Whether the plaintiff is entitled to summary judgment for the balance of USD 3,000 and special damages claimed as loss of profits.
- 3 Whether there exist triable issues regarding the disputed sums and special damages.
Ratio Decidendi
The court found that the defendant had expressly admitted liability for USD 3,000 in its defence, entitling the plaintiff to judgment for that sum together with costs and interest under Order 12 Rule 6 of the Civil Procedure Code. However, the court determined that there were triable issues regarding the balance of the claim, specifically the second USD 3,000 transfer and the special damages for loss of profits, as these were disputed and not sufficiently proved at this stage. Accordingly, judgment was entered for the admitted sum only, and the remainder of the plaintiff's claim was directed to proceed to trial.
Court Disposition
Partial judgment for plaintiff on admitted sum; balance to proceed to trial.
Orders
- Judgment entered for the plaintiff in the admitted sum of USD 3,000 plus costs and interest.
- The balance of the plaintiff's claim to proceed to trial in the normal manner.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL SUIT NO. 74 OF 2001
ELEGANT CARS LIMITED ……………………………………………. APPLICANT
V E R S U S
AKIBA BANK LIMITED ………………………………………….. RESPONDENT
RULING
BY Notice of Motion dated the 2nd July 2001 supported by affidavit of Rajen Harilal Malde sworn of 29th June 2001 the plaintiff has applied for judgment firstly under order 12 Rule 6 Civil Procedure Code on admission. Secondly under Order 35 Civil Procedure Code rule 1. The said order 12 Rule 6 of the Civil Procedure sub rule 6 provides:-
“Any party may at any stage of a suit, where admissions of facts has been made, either on pleadings or otherwise apply to the court for such judgment or order as upon such admission 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.”
In this case the Defendant under paragraph 5 of its defence admits the plaintiffs claim of Kshs. USD 3,000 together with interest.The plaintiff also seeks special damages calculated at Kshs. 464,754. 70/- with interest and costs. There is also the claim of USD 3000 being the second payment admittedly received by the Defendant which defendant states that although instructions to determine this transfer was made by plaintiff it was done after the money had already been transferred to its destination.
In total the plaintiff is claiming judgment for the full amount paid USD 6000 amounting to Kenya Shillings 467,300/- plus special damages amounting to Kshs. 464,754. 00 which is said to be loss of profits on the sale of some 5 motor vehicles mentioned in the pleadings.
As shown above the defendant has admitted USD 3000 first payment and the plaintiff is entitled to judgment in that sum plus interest. Regarding the other sum of Kshs. 3000 the defendant admits having received instructions from the plaintiff to transfer to the plaintiffs Bank account in Japan. And states that it did carry out instructions of the plaintiff. The transfer was at a fee ( a service offered by the defendant to its customers) and there was an agreement for transmission by telegraphic transfer. The plaintiff was sending the money to deposit towards his purchase of 5 motor vehicles for resale in Mombasa.
The defendant denies any knowledge of the details for the transfer of the deposits. Although the defendant alleges that only one payment was not received it is said the balance USD 3000 was transferred and was received as per instructions. The plaintiff has not admitted this receipt but claims the full amount namely USD 6000.
The issue of liquidated damages is also disputed. Defendant simply says the amount was not proved and damage was too remote.The plaintiff was bound to mitigate his loss. I am convinced that there is a part of the plaintiffs claim that is not proved and triable issues exist. I therefore enter judgment for plaintiff in the admitted sum of USD 3000 plus costs and interest.
The balance of the plaintiff claim shall go to trial in the normal manner.
Dated this 11th day of October 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Read in presence of : -
Mr. Shah for plaintiff
Mr. Fayaz Anjarwalla.
MR. ANJARWALLA
I apply for certified copies of proceedings and judgment. Leave if required is hereby granted to appeal.
J. KHAMINWA
COMMISSIONER OF ASSIZE