[2022] KEELC 13327 (KLR)

Safeway Hypermarkets Limited v National Social Security Fund Board Of Trustees; Attorney General & another (Third party) (Environment & Land Case 70 of 2019) [2022] KEELC 13327 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEELC 13327 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 70 of 2019

MD Mwangi, J

October 6, 2022

Between

Safeway Hypermarkets Limited

Plaintiff

and

National Social Security Fund Board Of Trustees

Defendant

and

Attorney General

Third party

Endesha Multi- Purpose Development Center Limited

Third party

(In respect of the Notice of Motion Application dated 22nd February 2022 by the Plaintiff/Applicant seeking judgment on admission against the Defendant)

Ruling

Background 1. The plaintiff by its application dated February 22, 2022 seeks judgment on admission against the defendant for the sum of kshs 30,712,320/= with interest at the prevailing commercial rates from the date of filing suit until payment in full. The plaintiff also prays for the costs of the suit and of the application. The application is premised on the grounds that the defendant has expressly, clearly and unequivocally admitted the plaintiff’s claim.

2. The plaintiff avers that the only defence that the defendant has raised against its claim is the assertion that the subject property was purchased with a disclaimer on the condition and warranty of the property as to its fitness for purpose. The plaintiff affirms that the argument is not tangible even if the suit was to go to a full trial. It is the plaintiff’s position that the liability of the defendant can be ascertained from the documents accompanying the application hence the documents do not require any further examination through a full trial.

3. The application is supported by the affidavit of Kigera Thuo, a director of the plaintiff company sworn on the 22nd February 2022. In a nutshell, the deponent asserts that the defendant has admitted the plaintiff’s claim by acknowledging having sold the plaintiff the suit property and receiving kshs 30,712,320 /= being the purchase price. Further that the defendant admits liability by seeking indemnity from third parties.

4. The deponent denies that the plaintiff’s claim is time barred as alleged by the defendant in its statement of defence. The deponent avers that section 7 of the Limitation of Actions Act expressly provides that actions regarding land shall not be brought after expiry of twelve years. In the instant case, the deponent states that the cause of action crystallized on January 22, 2016 when the plaintiff’s title which had been acquired from the defendant was revoked by the National Land Commission and following the determination of the court on September 18, 2017 (in Misc App No 203 of 2016) challenging the revocation of the title. The plaintiff filed its case on February 25, 2019. The deponent therefore insists that the plaintiff’s suit is not time barred.

Response by the defendant. 5. The response by the defendant was by way of a replying affidavit sworn by one Hellen Koech on April 11, 2022. The deponent is the Manager in charge of legal services of the defendant.

6. The deponent acknowledges that the defendant indeed received the sum of kshs 30,712,320/- from the plaintiff as a consideration for the sale of the suit property. The property was sold free from any encumbrances after the plaintiff conducted its own due diligence and ascertained and satisfied itself as to the ownership of the property. The defendant on its part was also a bona fide purchaser for value from a third party known as Endesha Multipurpose Development, whom it has joined as the second 3rd party in these proceedings alongside the Attorney general.

7. It is the deponent’s position that the defendant has not admitted owing the plaintiff the sum of kshs 30,712,320/= as alleged by the plaintiff. Furthermore, that the plaintiff is seeking other remedies other than the sum of kshs 30,712 ,329 hence the matter should go for full hearing.

8. The deponent asserts that the defendant’s statement of defence raises ‘triable issues’ including limitation of time which require further interrogation by the court and which can only happen during a full hearing. The deponent therefore prays for the dismissal of the plaintiff’s application.

Courts directions 9. The court’s directions in this matter, with the agreement of both parties was that the plaintiff’s application be heard by way of written submissions. The parties have filed their submissions citing various authorities to augment their respective positions. The court has had the opportunity to read through the comprehensive submissions filed by the parties.

Issues for Determination 10. Considering the plaintiff’s application, the response by the defendant as well as the submissions by the parties, the issues for determination in this matter in this court’s opinion are:a.Whether the defendant has clearly and unequivocally admitted the plaintiff’s claim for kshs 30,712,320 .b.Whether the plaintiffs’ case is proper for entry of judgment summarily.

Analysis and Determination. A. Whether the defendant has clearly and unequivocally admitted the plaintiff’s claim for kshs 30,712,320/=. 11. The law, more specifically order 13 rule 2, of the Civil Procedure Rules vests the court with the discretion to enter judgment on admission. Upon application by any party and at any stage of suit, the court may enter judgment where admission of facts has been made.

12. In the case of Guardian Bank Ltd v Jambo Biscuits Kenya Ltd (2014) eKLR, which case has been cited by the plaintiff in its submissions, the court categorically explained that judgment on admission will only be entered in plain cases where the admissions of facts are clear and unequivocal. The court stated that:“The judge’s discretion to grant judgment on admission of fact under the order is to be exercised only in plain cases where the admissions are so clear and unequivocal that they amount to an admission of liability entitling the plaintiff to judgment.”

13. The question then that this court must ponder is whether there is a clear and unequivocal admission in this matter?

14. Chesoni JA (as he then was) in the case of Cassam v Sachania (1982) KLR elaborated what a clear admission is in the following terms: -“An admission is clear if the answer by a bystander to the question whether there was an admission of facts would be, off course there was.”

15. The court in Choitram v Nazari( 1984) KLR on the other hand stated that such admissions have to be plain and obvious and clearly readable. They must be, ‘obvious on the face of them without requiring a magnifying glass to ascertain their meaning’.

16. In a more recent case of Vehicle and Equipment Leasing Ltd v Coca Cola Juices Kenya Ltd(2017) eKLR, the court cited with approval the opinion in the case ofIdeal Ceramics Ltd v Suraya Property Group Ltd(2017) where Onguto J restated the position on admissions in the following words:“The discretion is to be exercised only in cases where the admission, whether express or implied, is plain, clear, unconditional, obvious and unambiguous. The admission ought to be obvious on the face thereof and leave no room for doubt.”

17. Worth noting is that the clear and unequivocal admission may be formal (typically an admission made in the pleadings) or informal (typically admissions made ‘pre-action’ being filed in court but after demand has been made.

18. Onguto J explained further that the court in excising its discretion ought to consider not only the admission itself but all the circumstances of the case and the issues of fact or law raised by the defendant.

19. In the case before me, the plaintiff avers that the defendant has admitted its claim in its statement of defence. The plaintiff on its submissions at paragraph 8 points out that the defendant at paragraphs 3 and 4 of the defendant’s statement of defence has conceded to the contents of paragraphs 3 – 11 of its plaint. Further that the defendant has admitted the contents of paragraph 12 of its plaint as being factually correct.

20. The paragraphs referred to by the plaintiff narrate the sequence of events from the signing of the agreement between the plaintiff and the defendant up to the subsequent revocation of the title of the subject property by the National Land Commission. It is averred that the defendant offered the subject property to the plaintiff for a consideration of kshs 30,712,300/=. The plaintiff paid the said consideration in full and the defendant transferred the title of the suit property to it. However, by a gazette notice No 307 Vol CXVIII dated January 22, 2016, the National Land Commission revoked the plaintiff’s title to the suit property.

21. The above narration is what the defendant has admitted.

22. In the case of Guardian Bank Ltd v Jambo Biscuits Kenya Ltd (supra), the court was emphatic that judgment will only be entered where the admissions are clear and unequivocal as to amount to an admission of liability.

23. What the defendant admits is entering into an agreement with the plaintiff in the year 2006 and receiving the purchase price of kshs 30,712,300. The defendant further acknowledges transferring the title to the suit property to the plaintiff in accordance with the terms and conditions of their agreement.

24. From my careful reading of the defendant’s statement of defence and replying affidavit, the defendant does not admit liability on the plaintiff’s claim. In other words, the defendant does not concede to the plaintiff’s claim for a refund of the purchase price paid to it. What in fact the defendant states at paragraph 6 of its statement of defence is that it had a proper and valid title to the subject property that it sold to the plaintiff. The defendant further disputes the plaintiff’s averment in its plaint that the plaintiff is entitled to compensation from the defendant.

25. I too note in the defendant’s statement of defence, the assertions that the plaintiff bought the property from the defendant subject to the disclaimer and conditions in the agreement. Finally, that the plaintiff’s claim, if at all is time barred.

26. My finding therefore is that there is no plain, clear, unconditional, obvious, unambiguous and unequivocal admission of facts by the defendant in this matter contrary to the assertions by the plaintiff/applicant.

B. Whether the plaintiffs case is proper for entry of judgment summarily. 27. I am in agreement with the opinion expressed by Onguto J in the case of Ideal Ceramics Ltd v Suraya property Group Ltd (supra) to the effect that the court in exercising its discretion ought to consider all the circumstances of the case and the issues of fact and or law raised by the defendant.

28. The defendant in this case pointed out that the plaintiff had sought other reliefs other than the refund of kshs 30,712,320/= in its plaint. That is actually true. The plaintiff in the plaint date February 25, 2019 prays for judgment against the defendant for:a.A refund of the purchase price amounting to kshs 30,712,320/- .b.Interest on (a) above at commercial bank rates from the date of payment to date.c.Compensation and/or general damages for loss of user of the property.

29. The plaintiff has not either in its application or the submissions filed explained what it intended to do about its prayers for compensation and general damages for loss of user of the property. Although the plaintiff states that its application would expedite the disposal of the case, it was mute on the other prayers sought. As it is, even if the court were to allow the prayer for the refund of the sum of money claimed, it would still have to proceed with the hearing in respect of the other prayers.

30. In regard to the prayer for interest at commercial bank rates from the date of payment of the purchase price, I should point out that interest on the sum of money claimed is not awardable automatically, as a matter of right.

31. Section 26(1) of the Civil Procedure Act only empowers the court to award and fix the rate of interest to cover 2 stages, namely: -a.The period from the date the suit is filed to the date when the court gives it judgment, and,b.The period from the date of the judgment to the date of payment of the decrectal amount in full.

32. Justice Joel Ngugi in Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others (2017) eKLR explained that:-“Interest prior to the date of the suit is a matter of substantive law and is only claimable where under an agreement there is stipulation for the rate of interest (contractual rate of interest) or, where there is no stipulation but interest is allowed by mercantile usage (which must be pleaded and proved) or where there is a statutory right to interest or where an agreement to pay interest can be implied from the course of dealing between the parties.”

33. Therefore, a prayer for interest on the principal amount claimed prior to filing suit must be proved.

34. From the foregoing, the court’s finding is that this is not a proper case for the entry of judgment summarily.

Conclusion. 35. Accordingly, the plaintiff’s application dated February 22, 2022 is hereby dismissed with costs.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER 2022. M.D. MWANGIJUDGEIn the Virtual Presence of: -Ms. Muigai for the plaintiff/ApplicantN/A for the defendant and the 3rd PartiesCourt Assistant: HildaM.D. MWANGIJUDGE