[2018] KEHC 10032 (KLR)
The court found that the defendant had made a clear, express, and unequivocal admission in writing of owing the plaintiff Kshs. 5,895,472. The defendant's letter dated 13th November 2008 constituted an admission of the debt. The court held that the presence of the defendant's advocates on record, despite their claim...
Source-derived case information.
- Citation
- [2018] KEHC 10032 (KLR)
- Parties
- Plaintiff: National Oil Corporation of Kenya; Defendant: George Nderitu t/a Mwireri Filing Station
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 492 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application for Judgement on Admission
- Outcome
- Judgement entered for the plaintiff on admission.
- Legal Topics
- Contract Debt Recovery, Judgement on Admission, Cheque Dishonour, Commercial Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Oil Corporation of Kenya
Plaintiff
George Nderitu t/a Mwireri Filing Station
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Judgement on Admission
Legal Issues
- 1 Whether the defendant made an unequivocal admission of debt to the plaintiff.
- 2 Whether judgement on admission should be entered against the defendant for the admitted sum.
- 3 Whether the defendant's advocates' claim of lack of instructions affects the proceedings.
Ratio Decidendi
The court found that the defendant had made a clear, express, and unequivocal admission in writing of owing the plaintiff Kshs. 5,895,472. The defendant's letter dated 13th November 2008 constituted an admission of the debt. The court held that the presence of the defendant's advocates on record, despite their claim of lacking instructions, did not affect the validity of the proceedings. Consequently, the court granted judgement on admission in favour of the plaintiff for the admitted sum, with interest from the date the suit was filed and costs of the suit and application.
Court Disposition
Judgement entered for the plaintiff on admission.
Orders
- Judgement is entered in favour of the plaintiff against the defendant for Kshs. 5,895,472.
- The sum awarded will attract interest at court rates from 30th August 2006.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
CIVIL SUIT NO. 492 OF 2006
NATIONAL OIL CORPORATION OF KENYA...................PLAINTIFF
VERSUS
GEORGE NDERITU T/A MWIRERI FILING STATION...DEFENDANT
RULING
1. Before the court is an application by the plaintiff, dated 25th April 2016. It is an application for Judgement on Admission.
2. The plaintiff’s suit was for Kshs. 6,170,350, being the value of the petroleum products which the plaintiff had sold to the defendant.
3. The plaintiff’s case was that the defendant had issued cheques, which were intended to pay for the petroleum products. However, when the plaintiff presented the cheques for payment, the cheques were dishonoured.
4. After the suit was filed and the defendant was served, the parties held discussions, with a view to finding an amicable resolution.
5. On 11th November 2008 the plaintiff wrote to the defendant, making reference to discussions which had taken place between its Company Secretary, Christopher M’Maitsi and the defendant.
6. The plaintiff indicated that it had carried out a reconciliation process, after the defendant had given his comments on the outstanding amounts.
7. On 13th November 2008 the defendant responded to the plaintiff’s letter, stating thus;
“I confirm and acknowledge my debt as Kshs. 5,895,472/- due and owing to National Oil Corporation”.
8. He proposed to pay-off the debt through the deduction of Kshs. 1/- per litre of fuel supplied.
9. In the light of that letter, the plaintiff has now sought judgement on admission.
10. When the defendant’s advocates were served with a Hearing Notice in relation to this application, they received the Notice under protest. The reason for their protest was that the advocates did not have instructions from the defendant.
11. In my considered view the fact that an advocate had come on the record of court proceedings, on behalf of a client meant that he had been duly instructed.
12. If his client had ceased to give him instructions, the advocate would need to seek leave of the court, to enable him cease acting.
13. As the defendant’s advocates were still on record for their client, their contention that they had no instructions from the defendant, was of no consequence.
14. I find that the defendant had made a clear, express and unequivocal admission, in writing, that he owed the plaintiff a sum of Kshs.5, 895,472/-.
15. In the circumstances, I now grant judgement in favour of the plaintiff, against the defendant, for the sum of Kshs. 5,895,472/-.
16. The said sum will attract interest at Court rates from 30th August 2006, when the suit was brought against the defendant.
17. The defendant will also pay to the plaintiff, the costs of the suit, together with the costs of the application dated 25th April 2016.
DATED, SIGNED and DELIVERED at NAIROBI this20th dayof March2018.
FRED A. OCHIENG
JUDGE
Ruling read in open court in the presence of
Kotonya for Muthee for the Plaintiff
No appearance for the Defendant.