https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/670

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT KITALE** **CIVIL CASE NO. E011 OF 2025** **JOHN MASINDE MALABA……………………..…………………PLAINTIFF/RESPONDENT** **VERSUS** **THE MANAGER KAPEMATT CAPITAL LTD………………..…………………..1ST DEFENDANT/APPLICANT** **M/S ESHIKHONI AUCTIONEERS………………………………………………2ND DEFENDANT/APPLICANT** **RULING** Before this court for determination is the Plaintiff/Applicant’s Notice of Motion Application under Certificate of Urgency dated 25th March 2025 brought under Order 13 Rule 2 & Order 51 Rule 1 of the Civil Procedure Rules as well as section 1A & 3A of the Civil Procedure Act seeking the following orders:- 1. That judgment on admission be entered against the Plaintiff/Respondent for the sum of Kshs. 393,552 together with costs and interest thereon, without waiting for determination of any question between the parties 2. That the costs of this Application be provided for The Application is predicated on the ground that the Plaintiff admitted in paragraphs 4 & 5 of their Plaint dated 08th January 2025 that they owe the 1st Defendant/Applicant Kshs. 393,552/=. The said ground was reiterated in the Supporting Affidavit sworn by the 1st Defendant/Applicant’s Loan Recovery Officer, one Stephen Ashubwe Aseka, on 25th March 2025. The Plaintiff/Respondent did not oppose the instant Application. The directions issued by this court on 24th June 2025 on canvassing this Application by way of written submissions were not complied with by the parties herein. Be that as it may, even in instances where an Application is unopposed, this court bears the legal duty of determining whether the same is merited. **ANALYSIS AND DETERMINATION** This court has duly considered the pleadings placed before this court. It is this court’s considered view that the only issue for determination is whether the instant Application and the orders sought by the Defendant/Applicant are merited. **Whether the Application and the Orders sought are merited** The law governing an Application for judgment on admission is set out under Order 13 Rule 2 of the Civil Procedure Rules, 2010 that provides as follows: - *“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.”* In **Choitram v Nazari [1984] KLR 327** Madan JA, observed as follows on Applications for judgment on admission: *“For the purpose of order XII rule 6, admissions can be express or implied either on the pleadings or otherwise, eg 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, an 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.”* The authorities cited above show that for judgment on admission to be entered against a party, such a party must have made a plain and obvious admission. In this case, the 1st Defendant/Applicant referred to the Plaintiff’s averment in paragraphs 4 & 5 of their Plaint herein, where the Plaintiff averred that the loan arrears owed to the 1st Defendant/Applicant as at 06th May 2024 were Kshs. 293,552/=. A plain reading of paragraphs 4 & 5 of the Plaint herein may give credence to the position taken by the 1st Defendant/Applicant that the Plaintiff admitted owing the 1st Defendant/Applicant Kshs. 293,552/=. However, it is abundantly clear that the admission in those paragraphs is with respect to the level of indebtedness of the Plaintiff/Respondent to the 1st Defendant/Applicant as at 06th May 2024. It is also imperative to note that this suit was filed on 08th January 2025, several months after 06th May 2024. Was the situation obtaining at 06th May 2024 still obtaining today for this court to make a finding that the Respondent admitted owing the Applicant Kshs. 293,552/=? This court takes the view that the question above can only be answered by this court after considering all the averments in the Plaintiff/Applicant’s Plaint herein. Averments in pleadings cannot be read in isolation as proposed by the 1st Defendant/Applicant. A pleading ought to be read as a whole, with a latter averment giving meaning to an earlier averment where necessary. Amongst the prayers that the Plaintiff/Respondent is seeking against the 1st Defendant/Applicant is an order for the 1st Defendant/Applicant to supply them with an accurate and up to date statements of account over the charge. This prayer shows that the level of the Plaintiff/Respondent’s indebtedness to the 1st Defendant/Applicant at the time of filing this suit remains disputed. That prayer shows that the Plaintiff/Respondent’s averments in paragraphs 4 & 5 were mere background information on the debtor–creditor relationship of the parties herein. Given the above, and in the face of a disputed loan/charge statement of account between the parties herein, this court cannot at this interlocutory stage make a definitive finding that there is an obvious, plain, and clear admission by the Plaintiff/Respondent that he owed the 1st Defendant/Applicant Kshs. 293,552/= as at 06th May 2024. **DETERMINATION** The upshot of the foregoing is that the 1st Defendant/Applicant’s Application dated 25th March 2025 is bereft of merit; therefore, the same suffers the fate of dismissal. Since the Plaintiff/Respondent did not oppose the instant Application, there shall be no order as to costs. **Read, signed, and delivered in open Court at Bungoma this 10th day of July 2025** **T.O. OMONO** **RESIDENT MAGISTRATE** **In the presence of:** **Mr. Owino h/b for Juma for the Defendant/Applicant** **C/A: Albert**