[2020] KEHC 4704 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & TAX DIVISION

HCCC NO. E 119 OF 2019

STANBIC BANK KENYA LIMITED …....….....………… PLAINTIFF/APPLICANT

VERSUS

WORTHMORE SOLUTIONS LIMITED ……..………….…….... 1ST DEFENDANT

OSCAR KIPYEGON KOECH ……………...……………….……. 2ND DEFENDANT

WILLIAM WANJOHI WANJIKU ……………......……………… 3RD DEFENDANT

RULING

1. The Plaintiff’s action against the three Defendants is a joint and several Judgment for Kshs.20,674,627. 70/= together with interest thereon at the Plaintiffs commercial rates from 4th February 2019 until payment in full on account of Hire Purchase facilities granted by the Plaintiff to the 1st Defendant.

2. In a Notice of Motion of 27th May 2017, the Plaintiff has sought that Judgment on admission be entered against the Defendant as prayed in the Plaint. It is anchored upon the provisions of Order 13 Rule 2.

3. Evidence in support of the application is presented through the affidavit of Elisha Nyikuli sworn on 27th January 2020.

4. In a letter of 17th June 2015 the 1st Defendant writes, partly;

“This is a response to your letter reference above concerning the outstanding loan balances of Kshs.21,684,687. 80 whose repayment has been outstanding over the 90 period day”.

After making this admission, the 1st Defendant makes a proposal for settlement.

5. Another proposal for payment is in the letter of the 1st Defendant of 1st October 2018 to the Wamae & Allen Advocates who were advocates for the Bank.

6. That is not all to the matter. A further admission is found in an email authored by the 2nd Defendant on 14th March 2017. There is yet another admission in an email of 21st March 2019.

7. It is common ground, and not denied by the 2nd and 3rd Defendant, that the two provided personal guarantees and indemnity for the 1st Defendants debt to the Bank. One guarantee is dated 8th March 2016 while the other is undated. The taking of the two guarantees is expressly admitted by the Defendants in their Statement of Defence of 6th June 2019 (See paragraphs 6 and 7 of the statement of Defence).

8. What do the Defendants say in the face of all these admissions? The 2nd Defendant swore a replying affidavit sworn on 24th February 2020 on his own behalf and on behalf of the other two Defendants. He says that after the filing of the suit, the Defendants made the following payments:-

a) Kshs. 4. 1 Million on 28th June 2019

b) Kshs. 874,724. 23 on 20th January 2020

9. While the Defendants do not dispute the deb,t the 2nd Defendant depones:-

“That the amounts sought by the Plaintiff has therefore substantially reduced and the Plaintiff therefore cannot purport that the debt is Kshs. 20,674,627. 70/=”

10. Prior and after the filing of this suit, the three Defendants unequivocally admitted owing the Bank money. The amount admitted prior to the filing of suit was Kshs.21,684,687. 80. The amount of Kshs.20,674,627. 70 sought in the Plaint has not been disputed save that some payments have since been made. These payments are not contested by the Plaintiff. This is a case of admission which is as clear as can be.

11. The result is that I allow the application of 27th January 2020 with costs but credit shall be given to the Defendants for payment of Kshs.4,100,000/= made on 28th June 2019 and Kshs.874,724. 23 made on 20th January 2020. Interest shall be on the contracted rate until payment in full. The Plaintiff shall also pay costs of the suit.

Dated, Signed and Delivered in Court at Nairobi this 15th Day of June 2020

F. TUIYOTT

JUDGE

ORDER

In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 17th April 2020, this Ruling has been delivered to the parties through virtual platform.

F. TUIYOTT

JUDGE

PRESENT:

Waigwa for the Plaintiff.

Abong for the Defendant.