[2022] KEHC 16480 (KLR)

Shelter Builders Ltd v Classico Builders Ltd (Civil Case E477 of 2020) [2022] KEHC 16480 (KLR) (Commercial and Tax) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16480 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E477 of 2020

WA Okwany, J

December 8, 2022

Between

Shelter Builders Ltd

Applicant

and

Classico Builders Ltd

Respondent

Ruling

1. The applicant filed the application dated March 25, 2021 seeking the following orders;-1. Judgment on admission be entered in favour of the plaintiff/applicant in the amount of Kenya Shillings Five Million, Six Hundred and Ninety-Eight Thousand, Eight hundred and Twelve and Seventy-Three Cents (Kshs, 5,698,812. 73).2. Costs of this application be provided for.

2. The application is supported by the affidavit sworn by Rajesh Siyani and is based on the following grounds;-a.The Plaintiff/ Applicant was subcontracted by the Defendant/ Respondent through an agreement dated January 30, 2016 to carry out builder's works on LR No 209/4350/05, Rose Avenue-Nairobi County.b.The defendant/respondent breached the contract conditions by failing to make payments of certified amounts or by inconsistently paying certified amounts to the plaintiff/applicantc.The defendant/respondent on various occasions issued postdated cheques to the plaintiff/respondent. When the cheques fell due, while some bounced, some expired following the defendant/respondent’s instructions to the plaintiff/applicant to hold onto the said cheques because of lack of sufficient funds to satisfy the cheques in the respective accounts.d.As at October 10, 2020, the amounts due to the plaintiff/applicant from the defendant/respondent had accumulated Kshs 84,219,146. 92. e.On November 17, 2020, the plaintiff/applicant filed the suit herein against the defendant/respondent via a plaint dated October 15, 2020 claiming the enumerated sum of Kshs 84,219,146. 92. f.In response to the plaint, the defendant/respondent filed a statement of defence dated February 23, 2021. g.On paragraphs 15(h) of the aforementioned statement of defence, the defendant/respondent, in express, clear unequivocal and unambiguous terms, admitted to owing the plaintiff/applicant a sum of Kshs 1,781,835. 73. h.On paragraph 14 of the statement of defence, the defendant/respondent also admits to have issued the plaintiff/applicant with postdated cheques in a bid to find a solution for the issues raised by the plaintiff.i.Some of the said postdated cheques bounced when they fell due while others expired upon the defendant’s /respondents request to hold on to them before banking. These amounts to Kshs 3,916,977. j.From the defendant’s /respondents statement of defence dated February 23, 2021, it is clear that the defendant admitted liability to pay the plaintiff.k.The express statements of the response are self-speaking and constitute admissions within the meaning of Order 13 rule 2l.Despite acknowledgement of the plain and obvious indebtedness, the defendant is yet to make payments for the work done hence this suit.

3. The respondent opposed the application through the replying affidavit sworn by its director Mr. Naran Hirani who states that the statement of defence contains an admission that a sum of Kshs 1,781,835. 73 is owed to the plaintiff and that the defendant entered into a payment plan with the plaintiff which the defendant complied with. He states that the plaintiff sought Kshs 84,219,146. 92 which was disputed by the defendant as it had already paid Kshs 81,173,494. 06. He further states that the bounced cheques were part of the admitted sum of Kshs 1,781,835. 73.

4. The application was canvassed by written submissions which I have considered. The main issue for determination is whether the applicant is entitled to the orders for judgment on admission. The applicant’s case was that the respondent admitted owing it the sum of Kshs 1,781,835. 73. The applicant further contends that the post-dated cheques issued by the respondent amounted to an admission of debt.

5. Order 13 Rule 2 of the Civil Procedure Rules, 2010 provides as follows:-“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.”

6. In the Choitram v Nazari(1984) KLR 327 the above provisions were captured under Order XII rule 6. Madan JA (as he then was) in the said decision stated thus:-“For the purpose of order XII rule 6, admissions can be express or implied either on the pleadings or otherwise, e.g. in correspondence. Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning. Much depends upon the language used. The admissions must leave no room for doubt that the parties passed out of the stage of negotiations onto a definite contract. It matters not if the situation is arguable, even if there is a substantial argument, it is an ingredient of jurisprudence, provided that a plain and obvious case is established upon admissions by analysis. Indeed, there is no other way, and analysis is unavoidable to determine whether admission of fact has been made either on the pleadings or otherwise to give such judgment as upon such admissions any party may be entitled to without waiting for the determination of any other question between the parties. In considering the matter, the judge must neither become disinclined nor lose himself in the jungle of words even when faced with a plaint such as the one in this case. To analyse pleadings, to read correspondence and to apply the relevant law is a normal function performed by judges which has become established routine in the courts. We must say firmly that if a judge does not do so, or refuses to do so, he fails to give effect to the provisions of the established law by which a legal right is enforced. If he allows or refuses an application after having done so that is another matter. In a case under order XII rule 6 he has then exercised his discretion for the order he makes falls within the court’s discretion. The only question then would be whether the judge exercised his discretion properly either way. If upon a purposive interpretation of either clearly written or clearly implied, or both, admissions of fact the case is plain and obvious there is no room for discretion to let the matter go to trial for then nothing is to be gained by having a trial. The court may not exercise its discretion in a manner which renders nugatory an express provision of the law.”

7. I note that the respondent admitted being indebted to the sum of Kshs 1,781,835. 73 in its statement of defence. It however disputed the remaining amount. The court may enter judgment for the plaintiff where there is a clear and unequivocal admission of the claim. I have perused the record and I note that the amount in the postdated cheques is not admitted and that there is a contest on how much the defendant still owes the plaintiff.

8. My finding is that the only admitted amount is Kshs 1,781,835. 73. The plaintiff’s application is therefore allowed on the following terms;-a.That judgment on admission isentered for the Plaintiff against the Defendant for the sum of Kshs1,781,835. 73b.The remaining disputed amount will be subjected to full trialc.I award the costs of the application to the plaintiff.

Dated, signed and delivered virtually at Nairobi this 8thday of December 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Makau for defendant/respondent.Mr. Muyoka for Dr. Mutubwa for plaintiff/applicant.Court Assistant- Sylvia