[2023] KEHC 25577 (KLR)

Otto Mruttu & Partners Limited t/a Otto Mruttu & Partners Architects v Moi University (Civil Suit E918 of 2021) [2023] KEHC 25577 (KLR) (Commercial and Tax) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25577 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Civil Suit E918 of 2021

JWW Mong'are, J

November 20, 2023

Between

Otto Mruttu & Partners Limited t/a Otto Mruttu & Partners Architects

Plaintiff

and

Moi University

Defendant

Ruling

1. On 18th April 2023 the Defendant was granted 14 days to put in its defence and the Court proceeded to set aside the summary judgment against it. The Defendant at the time sought to enjoin the Ministry of Education and the Ministry of National Treasury and Economic Planning to the suit as Co-Defendants. Since the grant of those Orders the Defendant has taken no steps to comply with the same despite having moved the Court for the same.

2. On 29th September 2023 the Plaintiff, by a Notice of Motion filed under Section 1A,1B and 3A of the Civil Procedure Act, Order 13 Rule 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules, has moved the Court for the following orders:-1. Judgment be and is hereby entered for the Plaintiff on admission by the Defendant of liability for the sum of Kshs. 200,004,283. 31/-2. In the alternative to (1) above, this Honourable Court be pleased to strike out the Defendant’s statement of Defence dated 28th April 2023 and enter Judgment for the Plaintiff as prayed in the Plaint dated 11th November 2021;3. This Application be heard in priority to the Respondent’s Application dated 22nd May 2023;4. This Honourable Court be pleased to issue any such order as it may deem fit and just.5. The costs of this Application be borne by the Respondent.

3. The Application was supported by the grounds set within it and the supporting affidavit of Otto Mruttu sworn on 29th September 2023. The Defendant’s, upon being served with the Application, filed a Replying Affidavit sworn by Petrolina Chepkwony, its legal officer, on 10th October 2023 in response thereto.

4. It is the Plaintiff ’s argument that the Defendant despite having been served with the plaint dated 11th November 2021 belatedly filed its defence dated 28th April 2023 which was a clearly unequivocal and unambiguous admission of the debt owed to the Plaintiff of Kshs.200,004,283. 31/-. The admission is further augmented by the various correspondence admitting their indebtedness which arose from works undertaken by the Applicant for the benefit of the Respondent pursuant to a duly executed consultancy contract, between the Applicant and the Respondent on 28th April 2015, which is yet to be settled.

5. In seeking leave to file its defence, the Respondent urged the Court to allow it to enjoin the relevant key players being the Ministry of Education and The Ministry of National Treasury and Economic Planning. The Orders to enjoin the said two Government Ministries having been granted by the Court in its Ruling of 18th April 2023, the Defendant took no action to implement the said orders. Instead, the Defendant filed an Application for joinder on 22nd May 2023 which it has neither served upon the parties sought to be enjoined nor made any attempts to prosecute the same.

6. It is imperative to note that when this matter came up for hearing in Court on 16th October 2023 the Defendant did not attend Court. Neither party filed submissions to this Application despite a clear direction by the Court to do so.

Analysis and Determination 7. I have considered the pleadings filed by both the parties in this case and the Application by the Defendant and the response by the Defendant. I note that both parties did not file any submissions to this Application. I have considered the said Application and the response filed thereto carefully. To my mind, the issue for determination is “whether this Court should grant the prayers sought for entry of judgment against the Defendant on admission.”

8. Order 13 Rule 1 and 2 of the Civil Procedure Rules, upon which the current Application is premised provides as follows;Order 13;1. Any party to a suit may give notice by his pleading, or otherwise in writing, that he admits the truth of the whole or part of the case of any other party.2. 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.”

9. I have noted from the response filed by Petrolina Chepkwony, the legal counsel for the Defendant, that the Defendant does not deny their indebtedness to the Plaintiff. I note however the Defendant has urged the Court to allow it to enjoin the two relevant Ministries that it considers relevant parties to these proceedings. In the its Ruling of 18th April 2023, the Court granted the Defendant leave to join the two Government Ministries, being the Ministry of Education and the Ministry of Finance and Economic Planning.

10. I note from a perusal of the CTS that the Defendant on 22nd May 2023 filed an Application to enjoin the said parties but has taken no steps since then to prosecute the same nor serve it upon the intended Defendants. If any service has been undertaken, no evidence of the same has been placed in the CTS to demonstrate the said service of the same. To my mind, the actions of the Defendant amount to delaying tactics of the suit. The Defendant has no interest in having this matter and hence their failure to comply with court Orders for which they moved the court.

11. It is trite that “delay defeats Equity, or Equity aids the vigilant not the indolent” to put it in latin “Vigilantibus non dormientibus aequitas subvenit.” The Court is not only a Court of law but also a Court of equity. The Court will aid the party that comes to Court to prosecute their case without delay. From 18th April 2023 when this Court granted the Defendant leave to enjoin the two government Ministries, the Court notes that despite having filing an Application to enjoin them in May 2023, the Defendant has taken no further action. The Court also notes that the Defendant has in all documents filed in respect of this matter admitted to being indebted to the Plaintiff. It is therefore quite clear to the Court that the Defendant has no plausible defence to the suit against the Plaintiff ’s case. In view of the above, I am satisfied that the applicant is deserving of the prayers sought in the plaint.

Final Disposition 12. The upshot of the above findings is that Judgment is hereby entered for the Plaintiff against the Defendant in the following terms:-a.The sum of Kshs.200,004,283. 30/-.b.Interest at Court rates from 11th November 2021. c.Costs of the Suit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF NOVEMBER 2023. ………………………………J. W. W. MONG’AREJUDGEIn the Presence of:-1. Mr. Obegi for the Plaintiff.2. Mr. Barasa holding brief for Ms. Chepkwony for the Defendant.3. Amos - Court Assistant