[2017] KEHC 3975 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 226 OF 2014

MWANGI KENG’ARA & COMPANY ADVOCATES..................APPELLANT

V E R S U S

INVESCO ASSURANCE COMPANY LIMITED .................. RESPONDENT

(Being an appeal from the ruling/order of the Hon. Resident Magistrate MS. I Gichobi delivered on 16th May 2014 in Nairobi CMCC No. 6090 of 2013)

JUDGEMENT

1. The firm of Mwangi Keng’ara & Co. Advocates, the appellant herein, filed an action before the Chief Magistrate’s Court in which it sought to recover taxed costs in the sum of ksh.97,236 plus ksh.175/=. Invesco Assurance Co. Ltd, the respondent herein filed a defence through the firm of Maina Njuguna & Co. Advocates. By a letter dated 8th October 2013 the respondent forwarded to the appellant a cheque for ksh.97,536/= in settlement of the claim. Upon receipt of the aforesaid sum, the appellant filed the application dated 31. 10. 2013 in which it sought for judgment on admission against the respondent. The respondent filed a replying affidavit of its legal manager to oppose the motion. The motion was heard and dismissed on 16. 5.2014 by Hon. Gichohi, learned Resident Magistrate.

2. Being aggrieved, the appellant put forward the following grounds on appeal:

1. THAT the learned trial magistrate erred in law and in fact in declining to enter judgment on admission against the respondent, despite the overwhelming evidence presented.

2. THAT the learned trial magistrate erred in fact and in law in failing to find that payment of the principal sum being claimed in the suit by the respondent, subsequent to filing of the suit by the appellant, was an admission of the claim.

3. THAT the learned trial magistrate erred in fact and in law in holding that the appellant was not entitled to judgment for the sum claimed in the suit, since the same had been liquidated by the respondent.

4. THAT the learned trial magistrate erred in law and in fact in holding that entering judgment for the sum claimed in the suit would amount to double payment hence double enrichment.

5. THAT the learned trial magistrate erred in law and in fact in holding that since the claim was liquidated, the appellant could only claim costs and interest.

6. THAT the learned trial magistrate erred in law and in fact in failing to award costs and interest despite explicit prayers with respect to the same in the Notice of Motion dated 31/10/2013.

7. THAT the trial magistrate failed to consider the evidence and submission filed on behalf of the appellant and hence arrived at a wholly unjust decision.

8. THAT the learned trial magistrate wholly relied on the respondent’s submissions which were misleading and not founded on the law.

3. When the appeal came up for hearing this court gave directions to have the appeal disposed of by written submissions.

4. I have re-evaluated the arguments put forward before the trial court plus the rival written submissions presented before this court. It is the submission of the appellant that it was entitled to judgment on admission pursuant to the provisions of Order 13 rule 2 of the Civil Procedure Rules. It was argued that payment in an action for a liquidated sum amounted to unequivocal admission of fact. It is said that payment compromised the suit in favour of the appellant but did not extinguish the claim before the court. The appellant also submitted that at the time of execution the amount already paid will be factored. It is also pointed out that without the judgment on the principal sum the claim on interest cannot be litigated in isolation.

5. The respondent is of the submission that the trial magistrate rightly dismissed the motion to forestall the appellant from unjustly enriching himself from double payment. The learned Resident Magistrate considered similar arguments to those presented before this court and came to the conclusion that the liquidated sum as prayed for in the plaint has been settled and since there was no prayer for costs and interest, then, there is nothing remaining to enter judgment. She then proceeded to dismiss the motion. I have carefully perused the plaint dated 30th September 2013 and it is apparent that the appellant sought for judgment in the following terms:

a. The sum of kshs.97,236/= with interest thereon at the rate of 14% per annum from 26/4/2013 until payment in full.

b. Cost of this suit.

c. . Interest on (b) above at court rates.

6. The learned Resident Magistrate therefore fell into error when she held that the appellant had not sought for costs and interest. On this ground alone, I find the appeal to be meritorious. It is allowed. Consequently the order dismissing the motion dated 31. 10. 2013 is set aside and is substituted with an order entering judgment on admission in favour of the appellant as against the respondent in the sum of kshs.97,236/=. The prayer for costs and interest is remitted back to the trial court for consideration. Costs of the appeal to abide the outcome of the suit.

Dated, Signed and Delivered in open court this 20th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

..................................................... for the Respondent