[1985] KEHC 115 (KLR)
The court found that the defendant, in its defence, admitted to being entrusted with the plaintiff's goods and to having cleared and forwarded them to a transporter, but failed to deliver the goods to the plaintiff. The defendant's explanation that the goods were stolen and reported to the police did not amount to a...
Source-derived case information.
- Citation
- [1985] KEHC 115 (KLR)
- Parties
- Plaintiff: Kariuki; Defendant: Mitchell Cotts Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2756 of 1984
- Procedural Posture
- Civil Case / Ruling on Motion for Judgment on Admission
- Outcome
- Judgment for the plaintiff on admission for the sum claimed; other claims to be pursued.
- Legal Topics
- Judgment on Admission, Pleadings and Denials, Breach of Duty, Negligence, Agency Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kariuki
Plaintiff
Mitchell Cotts Kenya Limited
Defendant
Procedural Posture
Civil Case / Ruling on Motion for Judgment on Admission
Legal Issues
- 1 Whether the defendant has admitted the plaintiff's claim in the pleadings sufficient to warrant judgment on admission.
- 2 Whether the defence contains a firm and specific denial of the allegations of breach of duty and negligence.
- 3 Whether negligence can be pleaded as a separate cause of action distinct from breach of duty.
Ratio Decidendi
The court found that the defendant, in its defence, admitted to being entrusted with the plaintiff's goods and to having cleared and forwarded them to a transporter, but failed to deliver the goods to the plaintiff. The defendant's explanation that the goods were stolen and reported to the police did not amount to a firm denial of the plaintiff's claim regarding breach of duty. The court held that negligence, as pleaded by the plaintiff, is not a separate cause of action but a means of proving breach of duty. The admissions in the defence, coupled with the lack of specific denial of the key paragraphs in the plaint, entitled the plaintiff to judgment on admission for the sum claimed. The...
Court Disposition
Judgment for the plaintiff on admission for the sum claimed; other claims to be pursued.
Orders
- Judgment for the plaintiff in the sum of Kshs 68,850 together with interest thereon and the costs of the motion.
- Claims under prayers (b), (c), (d), and (e) to be pursued separately.
Full Case Text
Judgment text and source record
23 paragraphs
Kariuki v Mitchell Cotts Kenya Limited
High Court, at Nairobi January 31, 1985
Gachuhi J
Civil Case No 2756 of 1984
Cases
John Lancaster Radiators Ltd v General Motor Radiator Co Ltd and Others [1964] 2 A E R 685 at p 688
Statutes
1. Civil Procedure Rules Order XII rule 6, Order VI Rule 9(3)
2. Civil Procedure Act section 3A of the
January 31, 1985, Gachuhi J delivered the following Ruling.
The plaintiff applies to this court by way of motion under order XII rule 6, order VI Rule 9(3) of the Civil Procedure Rules and section 3A of the Civil Procedure Act for judgment on the ground that the defendant has admitted the claim. The motion is supported by the affidavit of the plaintiff.
In the affidavit, the plaintiff state that the defendant has specifically denied some paragraphs of the plaint while others not and in particular where the claim is the tort of negligence as a separate cause of action.
Mr Khaminwa for the plaintiff submits that there is no firm denial of the plaintiffs claim as the items of goods were entrusted to the defendant to clear and forward them to the plaintiff which the defendant failed to deliver. He furthers submits that the defence merely sets up in para 6 of the defence that items were stolen and reported to the police. Mr Nowrojee for the defendant submits that the denial of every allegation in the plaint is specifically denied. In the outset, the defendant deny that they are common carrier but merely acted as agents of the plaintiff in clearing the goods and entrusting them to a carrier.
The plaintiff’s claim is based on breach of duty entrusted to the defendant to clear goods from the warehouse at Mombasa and to safely or securely carry the said goods and deliver them to the plaintiff. The way or manner the defendant failed to execute duty entrusted to them may amount to negligence, but negligence cannot be a claim by itself distinct from the breach of duty. Negligence is a means of proving breach of duty whereby damages arises.
In the defence, the defendant has admitted duty entrusted to them and goes further to set out that the goods were cleared and entrusted to a reputable and reliable transporter who informed the defendant that the items were stolen enroute and the theft reported to the police.
The defendant denieds that it is a common carrier but a mere agent and acted as such for the plaintiff in clearing and forwarding the goods to the plaintiff. Breach of duty has to be proved, where not admitted.
The manner the defendant was negligent in discharging their duty has been demonstrated by failure to deliver the goods.
The authorities referred to me by Mr Nowrojee which Mr Khaminwa submits they are not relevant; deals with by a denial of every single allegation in the statement of claim, in particular, in John Lancaster Radiators Ltd v General Motor Radiator Co Ltd and Others [1964] 2 A E R 685 where at p 688 Letter B it was held that the defence was not evasive or obscure in that the denial of every single allegation in the statement of claim was held to be sufficient. That was the position by then in England. Mr Khaminwa did not refer to any authority in his submission, but maintains that there was no specific denial to paragraphs 8,9, and 10 of the Plaint. Paragraph 8 reads:
“8 Further and in the alternative the plaintiff reiterates the contents of paragraphs 4 and 5 and further states that it was an implied term of the said agreement or alternatively it was the duty of the defendant to carry the said goods carefully, safely and securely.”
Paragraph 9 sets out negligence in breach of the said agreement and paragraph 10 is particulars of loss and damages as a result of the negligence.
The application for the judgment is based on these three paragraphs that the defendant has not firmly denied the plaintiff’s claim and that there is no defence and that there is no triable issue based on these paragraphs.
Perhaps it is only fair to see the rules of pleadings in the Civil Procedure Rules.
Order VI rule 9 deals with admissions and denials: judgment for the plaintiff in the sum of Kshs 68,850 together with interest therein and the cost on this motion. Claim under prayer (b), (c) (d) and (e) to be pursued.