[2017] KEHC 7165 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

CIVIL CASE. NO. 377 OF 2016

VEHICLE AND EQUIPMENT LEASING LIMITED...............PLAINTIFF

VERSUS

COCA COLA JUICES KENYA LIMITED formerly

T/A BEVERAGE SERVICES (K) LIMITED............................. DEFENDANT

RULING

1. In the case of Ideal Ceramics Ltd –v- Suraya Property Group LtdHCCC No. 408 of 2016 (unreported), the court stated as follows:

[16] The law on summary procedure vide a judgment on admission is now relatively clear. The purpose of the law laid out under Order 13 of the Civil Procedure Rules is to ensure that a party whose entitlement is evidently due and admitted does not wait for determination by the court of a non-existence question. It is undesirable to litigate when there is no question or issue of fact or law. The summary process in this regard assists in ensuring that unnecessary costs and delays are not invited.

[17]The court’s power to enter judgment on admission is discretionary: see Cassam vs. Sachania (supra). The discretion is to be exercised only in cases where the admission, whether express or implied, is plain, clear, unconditional, obvious and unambiguous: see Choitram vs. Nazari (supra) and Momanyi vs. Hatimy & Another [2003]2 EA 600. The admission ought to be obvious on the face thereof and leave no room for doubt.

[18]An 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).

2. The principles of the law appear clear and not in dispute when it comes to processing a summary procedure application.

3. In the instant case, the Plaintiff urges that judgment be entered on admission on a portion of the claim which it is contended has not been denied but is indeed admitted. The admission is stated to be a formal one made in the pleadings and in particular the defence statement at paragraphs 13 and 14 thereof. The relevant portions of the two paragraphs read as follows.

13. Without prejudice to the foregoing and should any sum be due from the Defendant to the Plaintiff, the Defendant contends that such sum is not to the extent claimed by the Plaintiff and in any event is not more than Kshs. 6,708,309/42 as pleaded below.

14. The Defendant contends that following the termination of the Agreement, the parties representatives held a reconciliation meeting on 22 April 2015 where it was determined that the valid sum due from the Defendant to the Plaintiff was Kshs. 8,863,733. 73 subject to additional adjustments of Kshs. 2,155,424. 31 on credit notes issued after termination and contested invoices leaving a balance of Kshs. 6,708,309. 42…….”

4. For judgment to be entered on admission. The admission needs to be clear and unambiguous. It is evident that paragraph 13 above does not consist of an unequivocal admission. The paragraph is pleaded without prejudice to any other contentions made by the Defendant. Paragraph 14 on the other hand is an explanation of how the amount of Kshs. 6,708,309. 42 was arrived at. The main contention by the Defendant is that there is an issue of reconciliation and that the Plaintiff must be ready to either accept the reconciled amount or wait to prove its entire claim.

5. My view is that paragraphs 13 and 14 of the Defense do not contain explicit admission.

6. The Plaintiff’s claim is for Kshs. 39,978,046/= being cumulatively for costs of repairs, lease hire installments, lease fees, delay charges and loan balance. There is a joinder of claims. The question is whether there is an unequivocal and unambiguous admission by the Defendant of the sum of Kshs. 6,708,309/42 to enable the court to enter judgment without any further wait. I do not hold that view. The admissions allegedly contained in paragraph 13 and 14 of the defence are hazy and subject to conditional reconciliation. It would be inappropriate and unsafe to enter judgment on admission.

7. With regard to the Plaintiff’s request for summary judgment, I must point out that the test for and procedure to be followed on an application for summary judgment is to ascertain if the defence raises a triable issue. A single triable issue is enough to deny a claimant the summary process. The issue must however be a bona fide one, though it need not be one that must succeed at trial. Unlike applications for judgment on admission, a court proceeding under Order 36 is entitled to consider the merits of any defence raised.

8. I must also hasten to add that summary judgment may actually be entered on part only of the total amount claimed.

9. The Plaintiff seeks judgment on part only of the amount claimed. The Defendant states that there is an issue of reconciliation and indeed that the amount had been arrived at in consultation with the Plaintiff in April 2015. That was over one year prior to the filing of the claim.

10. I am unable to identify what else is to be tried as far as amount the Defendant is conceded by the Defendant as being the only amount due to the Plaintiff. The claim by the Defendant that the Plaintiff should not only lay an interest or claim to be interested in only a portion of the claim but should either accept the reconciled figures or nothing, in my view may also not hold much sway. A plea of reconciliation should not be a genuine and bona fide issue where the parties have filed no accord. It may not be said that the reconciled figure is the only amount due. Rather the court should not shy away from allowing the claimant summary judgment on the reconciled amount and let any contested balance proceed to trial. It is plain and obvious that the Defendant will not contest this amount.

11. In the result and pursuant to the provisions of Order 36 Rule 1 of the Civil Procedure Rules, I am inclined to enter summary judgment for the Plaintiff on a portion of the claim being the sum of Kshs. 6,708,309/42 the balance of the claim is to go on trial. There is no defence to this amount. The totality of the circumstances and facts dictate so.

12. Judgment is entered for the Plaintiff in the sum of Kshs 6,708,309/42 together with interest from the date of filing suit until full payment.

13. The costs of the application shall be in the cause.

Dated, signed and delivered at Nairobi this 10th day of March, 2017.

J. L. ONGUTO

JUDGE