[2023] KEHC 25484 (KLR)

Korara Highlands Tea Factory Ltd v Cummings C & G Limited (Civil Suit E078 of 2022) [2023] KEHC 25484 (KLR) (Commercial and Tax) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25484 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit E078 of 2022

A Mabeya, J

November 20, 2023

Between

Korara Highlands Tea Factory Ltd

Plaintiff

and

Cummings C & G Limited

Defendant

Ruling

1. Before Court is the application dated 16/12/2022 brought under sections 1A, 1B & 3A of the Civil Procedure Act CAP 21 Laws of Kenya and Order 13 rule 1 and 2 Order 51 rule 1 and 3 of the Civil Procedure Rules 2010.

2. The application seeks judgment on admission in favour of the defendant for USD 20,697 and judgment on the counterclaim with costs. The application was premised on the grounds set out on the face of it and on the supporting affidavit of Winnie Ouko sworn on 16/12/2022.

3. It was the defendant’s position that the plaintiff had made admissions to owing it the sum of USD 48,594. 20 and had made part payment thereof leaving a balance of USD 20,697. 67. It was stated that the plaintiff’s director Titus Kigen in his witness statement had admitted the debt of USD 48,594. 20 and proposed to settle the same on monthly installments of USD 4050. That since the amount is admitted there was no other issue left to proceed for trial.

4. The plaintiff opposed the application vid a replying affidavit of Titus Kigensworn on 19/1/2023 and grounds of opposition filed on even date. It was contended that the plaintiff had been paying the outstanding sum and as at January 2023, the outstanding sum was USD 16,697. 67 and not USD 20,687. 67 as alleged by the defendant. That the terms and conditions for the sale of the generator had been complied with.

5. The defendant filed a supplementary affidavit dated 6/3/2023 sworn by Winnie Oujo wherein it was confirmed that the outstanding balance was USD 16,697. 67 and sought for judgment on that amount. The application was canvassed by way of written submissions which I have considered.

6. The defendant submitted that the plaintiff in the pleadings had admitted to owing the defendant USD 16,697. 67 and the said amount was not been disputed. On whether interest should be paid on the defaulted sum, the defendant submitted that it was not a financial institution and therefore not bound by the in duplum rule. It was contended that the outstanding interest was USD 56. 77 since the last payment had been made on 10/01/2023. Counsel submitted that the defendant was entitled to the costs of the suit.

7. The plaintiff submitted that it denied owing the sum of monies as claimed by the defendant. On the issue of interest, the plaintiff submitted that the defendant was levying illegal interest at the rate of 2% per month which is contrary to the in duplum rule under section 44A of the Banking Act.

8. I have considered the pleadings, submissions and the authorities cited. The issue for determination is whether judgment on admission should be entered for the sum of USD 16,697. 67

9. Order 13 Rule 2 of the Civil Procedure Rules, 2010 provides: -“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 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.”

10. In Choitram v Nazari [1984] KLR 327, Madan JA (as he then was) observed thus: -“For the purpose of order XII rule 6, admissions can be express or implied either on the pleadings or otherwise, e.g. in correspondence. 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. Much depends upon the language used. The admissions must leave no room for doubt that the parties passed out of the stage of negotiations onto a definite contract. It matters not if the situation is arguable, even if there is a substantial argument, it is an ingredient of jurisprudence, provided that a plain and obvious case is established upon admissions by analysis. Indeed, there is no other way, and analysis is unavoidable to determine whether admission of fact has been made either on the pleadings or otherwise to give such judgment as upon such admissions any party may be entitled to without waiting for the determination of any other question between the parties. In considering the matter, the judge must neither become disinclined nor lose himself in the jungle of words even when faced with a plaint such as the one in this case. To analyze pleadings, to read correspondence and to apply the relevant law is a normal function performed by judges which has become established routine in the courts. We must say firmly that if a judge does not do so, or refuses to do so, he fails to give effect to the provisions of the established law by which a legal right is enforced. If he allows or refuses an application after having done so that is another matter. In a case under order XII rule 6 he has then exercised his discretion for the order he makes falls within the court’s discretion. The only question then would be whether the judge exercised his discretion properly either way. 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 then nothing is to be gained by having a trial. The court may not exercise its discretion in a manner which renders nugatory an express provision of the law.”

11. From the foregoing, judgment on admission is entered only where the admission is unequivocal and clear. In the present case, the defendant contends that the plaintiff admitted owing the sum of USD 16,697. 67. The admissions were both in the witness statement of Titus Kigenand in his replying affidavit sworn on 10/3/2022. On its part, the plaintiff admitted to paying the outstanding sum owed to the defendant in monthly installments of Kshs. 500,000/-.

12. Based on the foregoing, there is a clear admission by the plaintiff on the sums owed to the defendant. Where the admission is clear and unequivocal, judgment should be entered forthwith. This I proceed to do accordingly.

13. On the issue of interest, I note that the same was contractual and the Court cannot interfere.

14. In the upshot, the Court finds that the defendant has made out a case for grant of the orders sought. The application dated 16/12/2022 is hereby allowed and judgment is entered in favour of the defendant against the plaintiff for the sum of USD 16,697. 67 together with interest thereon and costs of the application and suit.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF NOVEMBER, 2023. A. MABEYA, FCI ArbJUDGE