[2017] KEHC 3541 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

CIVIL SUIT NO. 336 OF 2014

MOBILE TELEPHONE NETWORKS

BUSINESS KENYALIMITED……………………..…….…..…PLAINTIFF

VERSUS

IPHONE GLOBAL LIMITED………………………..……...DEFENDANT

RULING

1. In Kenya Commercial Bank Limited –vs- James Kuria Njine [2002],eKLR Ringera J. said as follows on a Judgement on admissions:-

“To answer that issue it must be appreciated that a Judgement on admission is not to be entered save where there is clear, complete, unambiguous and unqualified admission of the Plaintiff’s claim. Such admission may be contained in the pleadings, in correspondence before action or in the affidavits filed”.

2. The Plaintiff herein seeks that Judgement on admission be entered for the Plaintiff as against the Defendant as prayed for in the Amended Plaint. That request is in the Notice of Motion dated 17th November, 2016. The Claim by the Plaintiff against the Defendant is for the sum of US$ 97,604. 21 together with interest at the rate of 1½% per month and costs.

3. The Plaintiff is currently known as Mobile Telephone Networks Business Kenya Limited following a change of name on 17th September 2010 from Converged Business Solutions Ltd. Before 19th January 2001 Converged Business Solutions Ltd was known as Uunet Kenya Limited.

4. The Plaintiff avers that the Claim is monies due to it from the Defendant for Internet related services rendered by the Plaintiff to the Defendant at the Defendant’s request.

5. The Defence set up to the Claim is that:-

a) It is a Claim resulting from inflated billing by the Plaintiffs Engineers who had hacked into the Defendant’s account.

b) The amount is disputed.

c) The Claim is premature as the Plaintiff is in breach of clause 5. 3 of the Interconnection Agreement dated 8th November 2002 between it and the Plaintiff.

6. This Motion for admission is brought under aegis of Order 13 Rule 2 of The Civil Procedure Rules. The Rule 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 admissions 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”.

7. The Plaintiff seeks an admission outside the Pleadings and as I understand the Affidavit in support of the Application sworn by Kennedy Chinganya on 3rd November 2016 and the submissions in support, the admission is to be found, substantially, on emails of 5th March 2010 and 8th March 2010.

8. The email of 5th March 2010 is reproduced below:-

‘From: Michael Asola [malilto:mikeasola@gamil.com]

Sent: Friday, March 05, 2010 1:32pm

To: Naomi Muta; masola; Mohamad Daamoush; pkaranja@ke.uu.net; jmacharia@ke.uu.net; kkareithi@ke.uu.net ; dkimani@zimcab.co.ke

Subject: APPRECIATION

Dear all,

Let me take this opportunity to thank you for taking your time to meet with us. We hope that this is the beginning of good things to come. We will await for the statement as discussed.

Looking forward to a fruitful relationship with your company.”

That of 8th March 2010 is a response and reads:-

RE: APPRECIATION

Dear All,

We also thank you for having a roundtable with us and we look forward to implementation of the items we agreed upon. In a nutshell we agreed to:-

1. Settlement of the outstanding debt for consumed services less the deposit (net balance USD 39,250. 60) within the next two weeks.

2. Reworking of the contractual obligations for Jan to March 2010 at USD 650 per MB to be paid alongside the obligation for October to December 2009 (net total USD 58,353. 61) by a bank guarantee of not more than 60 days.

3. IPL to advise on the capacities they are looking at going forward; and

4. The two parties to agree on resumption of service and critical service parameters.

I have attached a detailed statement that addressed items 1 & 2 for your reference and I will gladly attend to any queries.

Regards,

Philip Karanja

Credit Manager

UUNET Kenya Ltd. (my emphasis)

9. The Defendants reaction to this is that it is not shown that the issue for discussion at the meeting which is the subject matter of the two mails was the alleged debt and that to the contrary the subject matter seems to have been an initial contract meeting. In addition that there were other participants at the meeting other than the Plaintiff and Defendant Representatives.

10. The Defence also makes the point that its Pleadings (see paragraph 5 of this decision) are far from an admissions.

11. I turn to examine the contents of the two emails. The email of 5th March 2010 is from Michael Asola to Naomi Muta, Mohamad Daamoush, PKaranja, JMacharia KKareithi and DKimani. In the Affidavit in support of the Motion, Mr. Chingenya depones that this email was generated after the Plaintiff’s and the Defendant’s Representatives had met. While the position of Defendant is that the meeting was attended by persons other than the Plaintiff’s and Defendant’s Representative, it does not deny that Michael Asola, the author of the email, was it’s representative.

12. What does Asola say in that mail? He acknowledges the meeting and adds,

“We hope that this is the beginning of good things to come. We will await for the statement as discussed”.(emphasize mine)

13. That statement was sent to him by Mr. Philip Karanja in his email of 8th March 2010. In that email Philip Karanja is described as ‘The Credit Manager of Uunet Kenya Ltd’ (the former name of the Plaintiff). The email which is reproduced in paragraph 8 of this decision has two highlights which are relevant to the alleged admission. It calls for the implementation of an agreement to:-

a) Settle a sum of USD 39,250. 60 within 2 weeks.

b) Pay USD 58,353. 61 by a bank guarantee not more than 60 days.

The sum of USD 39,250. 60 is described as an outstanding debt while that of USD 58,356. 61 as an obligation for October to December 2009. When these two amounts are added up they make USD 97,601. 61 being the amount claimed in the Amended Plaint.

14. The Defendant does not deny receipt of this mail neither does it tender proof that it settled the amounts due. If indeed the Bills were inflated or disputed then why was the content of the email of 8th March 2010 not challenged or protested. This in my view would amount to admission by silence because:-

(i) It is the Defendant who called for the Statement.

(ii) The Statement and the amount due was sent by the Plaintiff to the Defendant.

(iii) Receipt of the email is not disputed by the Defendant.

(iv) The email from both sides was in respect to a Claim by the Plaintiff and an obligation of the Defendant and this naturally called for an answer by the Defendant.

(v) An inference to be drawn from the Defendants silence to the Plaintiffs email of 8th March 2010 is that the Defendant admits its contents.

15. This Court holds and finds that the email of 8th March 2010 faithfully captured the agreement and arrangement reached between the Defendant and the Plaintiff. And the legal force of that arrangement or agreement is not defeated or minimized merely because other persons who were not representatives of the two parties also attended the meeting. What is important is that the representatives of the Plaintiff and Defendant exchanged mails confirming the meeting and its outcome. This then takes me to the next issue.

16. There is an argument by the Defendant that the Claim is premature as the Plaintiff is in breach of Clause 5. 3 of the Agreement of 8th November 2007 between the Plaintiff and Defendant. Even if accepted that the basis of the Claim is this Agreement, the Defendant reliance on Clause 5. 3 may not further its Cause.

17. Clause 5. 3 bears reproduction:-

“5. 3 If a billing dispute remains unresolved ten (10) working days after the date upon which the Party notifies the other of such dispute (unless such period has been extended by agreement between the Parties), either Party may (on giving prior written notice to the other to such effect) refer the dispute to an independent expet (“Expert”) either Jointly agreed by both Parties or (falling such agreement within ten(10)working days after the original notice to adjudication) appoint an independent auditor within 10(ten) calendar days of the date of the written request by either Party to appoint an independent auditor of international standing. Alternatively iPhone global and Customer will promptly address and attempt to resolve any dispute within one billing cycle. If any dispute is not resolved within 120 days of the date the dispute is submitted, the disputing party must initiate arbitration proceedings. If the disputing party does not initiate arbitration proceedings in accordance with this Agreement, then the disputing party waives its right to dispute the bill. Any disputes that the parties cannot resolve may be submitted to arbitration in accordance with this Agreement”.

18. But as is clear from the wording, the mechanism for Dispute Resolution is only set on Motion where there is a Billing Dispute. If there was such a dispute, then the meeting that preceded the email of 5th March 2010 resolved that dispute. And reading this email together with that of 8th March 2010, the amount due and owing was agreed. There was no controversy as to the debt due.

19. It is correct as argued by the Defendant that generally speaking,

“Judgement on admission cannot be granted where points of Law have been raised and where one has to resort to interpretation of documents presented by the Parties to reach a decision (as per Njagi J. in United Insurance Company Limited vs. Waruinge & 2 Others (2003) KLR 629)”.

20. However, the argument put forth by the Defendant in respect to Clause 5. 3 falls in the face of the facts that are vividly revealed by the emails. It makes no difference to entertain that argument now or later at trial. The outcome will be the same. This suit is not premature.

21. Whilst the admission of a debt of US$ 97,604. 21 is clear and unambiguous, I do not find similar evidence in respect to the interest sought by the Plaintiffs. That will have to await trial.

22. For now I enter Judgment for the Plaintiff against the Defendant for US$ 97,604. 21 with costs thereof. The issue of interest to proceed to trial.

Dated, Signed and Delivered in Court at Nairobi this 13th day of July,2017.

F. TUIYOTT

JUDGE

PRESENT;

Muihuri h/b for Kashendi for Applicant

N/A for Defendant

Carlos - Court Clerk