[2017] KEHC 6867 (KLR)
The court found that the defendant had admitted the debt in full and did not oppose the plaintiff's application. As a result, the plaintiff was entitled to judgment for the sum claimed. The court clarified that for payment by instalments, the defendant must make a formal application after judgment is entered, as...
Source-derived case information.
- Citation
- [2017] KEHC 6867 (KLR)
- Parties
- Plaintiff: Kuehne & Nagel Limited; Defendant: Everest Enterprises Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 353 of 2015
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion to Strike Out Defence and for Judgment
- Outcome
- Application allowed as prayed with costs to the applicant.
- Judges
- F Tuiyott
- Legal Topics
- Debt Recovery, Summary Judgment, Admissions, Payment by Instalments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kuehne & Nagel Limited
Plaintiff
Everest Enterprises Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion to Strike Out Defence and for Judgment
Legal Issues
- 1 Whether the defendant's statement of defence should be struck out for admitting the debt claimed by the plaintiff.
- 2 Whether judgment should be entered for the plaintiff for the admitted sum of US$ 314,381.13 plus interest.
- 3 Whether the defendant is entitled to pay the decretal sum by instalments without a formal application under Order 21 Rule 12(2) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the defendant had admitted the debt in full and did not oppose the plaintiff's application. As a result, the plaintiff was entitled to judgment for the sum claimed. The court clarified that for payment by instalments, the defendant must make a formal application after judgment is entered, as provided under Order 21 Rule 12(2) of the Civil Procedure Rules. The defendant's request for instalment payments was therefore premature and not properly before the court at this stage. The application to strike out the defence and enter judgment for the plaintiff was allowed with costs.
Court Disposition
Application allowed as prayed with costs to the applicant.
Orders
- The defendant's statement of defence dated 6th October 2015 is struck out with costs.
- Judgment is entered for the plaintiff for the sum of US$ 314,381.13 plus interest at court rates until payment in full.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
HCC. NO. 353 OF 2015
KUEHNE & NAGEL LIMITED…..…….…………PLAINTIFF
VERSUS
EVEREST ENTERPRISES LIMITED…....……DEFENDANT
RULING
1. The Notice of Motion dated 28th January, 2016 is for the following Prayers:-
1. That the Defendant’s Statement of Defence dated 6th October 2015 be struck out with costs.
2. That there be judgment for the Plaintiff for the sum of US $ 314,382. 13 plus interest at court rates until payment in full.
3. That in the alternative, there be judgment on admission on the admitted sum of US $ 314. 381. 13 plus interest at court rates until payment in full
4. That the cost of this application be borne by the Defendant.
2. As is clear from the Motion, the amount sought by the Plaintiff is for a sum of US.$ 314,381. 13 which allegedly remains owing on account of transport services undertaken by the Plaintiff for the Defendant.
3. That Application was not opposed and in the submissions dated 24th March, 2016 by the Defendant it admits the Debt in full. What the Defendant has done in those submissions, curiously, is to ask the Court to be permitted to pay the decretal amount in 30 equal monthly instalments of US$ 10,479 beginning 15th September 2016 (a date now passed). The Defendant reasons that there being no decree or Notice to show Cause it is not required to make an application for payment by instalment under Order 21 Rule 12(2) of The Civil Procedure Rules 2010.
4. Order 21 Rule 12(2) of The Civil Procedure Rules provides:-
“(2) After passing of any such decree, the court may on the application of the judgment debtor and with the consent of the decree- holder or without the consent of the decree holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by installments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit”.
Now that the Court will be entering Judgement in favour of the Plaintiff as against the Defendant for the sum of Us.$ 314,381. 13, the Defendant may consider that occasion has arisen for it to move Court, through a formal application, to seek for payment by instalment.
5. For now the Application of 28th January 2016 is hereby allowed as prayed with costs to the Applicant.
Dated, Signed and Delivered in Court at Nairobi this 23rd day of March, 2017.
F. TUIYOTT
JUDGE
PRESENT;
Anyango for Plaintiff
Aboth holding brief for Mereka for Defendant
Alex - Court Clerk