CORAM: In the presence of Justice R. Nyakundi
Court Assistant Ms. Lawreen & Mr. Opiyo
RULING
(On the Certificate of Urgency dated 31st July 2026)
A. THE APPLICATION
1. Before me is a Notice of Motion dated 31st July 2026, expressed to be brought under Order 13 rule 2 and Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. It is presented under a certificate of urgency of even date signed by Ms. Ayuko Shallom, Advocate, of M/s WTT Lichuma Advocates LLP.
2. The Motion seeks four orders: that it be certified urgent and service dispensed with in the first instance; that judgment on admission be entered against the Defendant for Kshs 3,000,000/= said to be admitted at paragraph 4 of the statement of defence, with interest at court rates from the date of filing; that directions issue for the hearing of the contested balance concerning the applicable interest; and that costs be provided for.
3. The suit is founded on a loan agreement dated 28th January 2022. It is common ground on the papers that the sum of Kshs 3,000,000/= was advanced and was repayable on or before 31st March 2023. The Plaintiff claims a further Kshs 10,000,000/= by way of interest, making a total of Kshs 13,000,000/=. The Defendant filed a statement of defence dated 13th March 2026.
4. This ruling is confined to the certificate of urgency and to the directions necessary to bring the Motion on for hearing. I say only so much about the merits as is necessary to explain those directions, and nothing said here binds the court at the hearing.
B. WHETHER THE APPLICATION IS URGENT
5. Certification of urgency is not a formality. It is a judicial act by which a matter is lifted out of its turn and placed ahead of others already queued before the court. The applicant must therefore show why his matter cannot await the ordinary course.
6. The chronology tells against him. The debt fell due on 31st March 2023. The suit was filed in 2025. The admission on which the Motion is wholly founded came into existence on 13th March 2026, when the defence was filed. The Motion was taken out on 31st July 2026, some four and a half months later, and more than three years after the money fell due. Nothing is said to have altered the position between March and July 2026.
7. An applicant who sits on an admission for four and a half months, and on a debt for three years, cannot then present the matter as one that will not keep. Urgency of an applicant's own making is not urgency at all.
8. The only prejudice pleaded is that the Plaintiff “will continue to suffer severe financial loss”. In a liquidated money claim that loss is precisely what an award of interest is designed to make good, and interest is already sought both in the plaint and in the Motion. It is not the kind of irreparable prejudice that displaces the ordinary course of business.
9. There is a further and more fundamental difficulty. Prayer (a) asks that service be dispensed with; prayer (b) asks for judgment. Judgment on admission is not an interim measure. It is a final determination of part of the suit and it carries a decree, executable at once. It cannot be entered against a party who has not been heard. The Defendant is on record and represented by M/s Teresia Muthua & Co. Advocates. To enter judgment against him ex parte would offend the rule in audi alteram partem and Article 50(1) of the Constitution. A court may grant a holding order without notice; it does not give final judgment without notice.
10. For these reasons the application is not certified urgent, and the prayer for dispensation with service is declined.
C. THE LAW ON JUDGMENT ON ADMISSION
11. Because the Motion will now be canvassed interpartes by written submissions, and to focus the parties on what must be addressed, I set out shortly the principles that will govern it.
12. Order 13 rule 2 of the Civil Procedure Rules provides that 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 that the court may upon such application make such order, or give such judgment, as it thinks just.
13. The jurisdiction is discretionary and is to be exercised sparingly. In Choitram v Nazari [1984] KLR 327 the Court of Appeal held that admissions may be express or implied, on the pleadings or otherwise, but that they must be plain and obvious — as plain as a pikestaff — and clearly readable on their face without recourse to a magnifying glass, because they may result in judgment being entered. Chesoni Ag. JA added the useful test that an admission is clear if a bystander asked whether there had been an admission of fact would answer, of course there was.
14. In Cassam v Sachania [1982] KLR 191 it was held that the discretion is to be exercised only in plain cases where the admissions of fact are so clear and unequivocal that they amount to an admission of liability entitling the plaintiff to judgment; and that judgment on admission cannot be granted where points of law have been raised, or where the court must resort to the interpretation of documents in order to reach a decision. To like effect are Momanyi v Hatimy & another [2003] EA 600, where the admission was required to be plain, clear, unconditional, obvious and unambiguous, and D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1.
15. The purpose of the rule is to spare a plaintiff the wait for that part of his decree which is not genuinely in contest. It is not a shortcut around a defence that raises real questions.
D. WHAT MUST BE ARGUED AT THE HEARING
16. Applying those principles provisionally, and expressly without deciding, four matters will require argument.
17. First, the scope of the admission. Paragraph 4 of the defence appears to admit the loan agreement, the advancement of Kshs 3,000,000/= and the due date of 31st March 2023. Whether it also admits that the principal remains unpaid is a distinct question. An admission of receipt is not, without more, an admission of non-repayment, and judgment on admission may only be entered for what has actually been admitted.
18. Secondly, the completeness of the record. Only the first page of the statement of defence is annexed to the supporting affidavit as “BEN1”, and it breaks off part-way through paragraph 6. The court cannot construe an admission from a fragment of a pleading. The complete defence must be before the court.
19. Thirdly, severability. The Plaintiff's own position is that the principal can be separated from the interest, and prayer (c) invites directions on the balance. Whether the admitted principal can properly be severed from the contested terms of repayment, or whether the two are so bound together in a single agreement that they must be tried as one, will need to be addressed.
20. Fourthly, and to be clear about it now: the terms of repayment and the applicable interest are triable issues. The Defendant does not merely dispute the arithmetic; he pleads that the interest of Kshs 10,000,000/= on a principal of Kshs 3,000,000/= is neither reasonable, lawful nor enforceable. That plea raises questions of law and of fact which no admission can dispose of and which must go to trial. Nothing in the Motion touches them, and prayer (c) rightly concedes as much.
E. ORDERS
21. I accordingly make the following orders:
I. The Notice of Motion dated 31st July 2026 is NOT certified urgent.
II. The prayer that service be dispensed with in the first instance is declined.
III. The Notice of Motion dated 31st July 2026 shall be canvassed interpartes by way of written submissions.
IV. The Plaintiff/Applicant shall, within seven (3) days of the date hereof, serve upon the Defendant/Respondent, through M/s Teresia Muthua & Co. Advocates, a complete copy of the Notice of Motion, the supporting affidavit and its annexures, and this ruling, and shall file an affidavit of service.
V. The Respondent shall have (7) days to file Replying affidavit within (7)days affidavit and, if so advised, grounds of opposition,
VI. The parties shall file and exchange written submissions, not exceeding five (5) pages each, within fourteen (14) days of the date hereof.
VII. Any party who fails to file and serve written submissions within the time limited by order V. above shall be deemed to have elected not to file any submissions, and the court shall thereupon proceed to determine the application on the pleadings and the material on record, and without reference to the submissions of that party, without further notice to it.
VIII. The matter is hereby retired for Ruling on the 28th day of August 2026.
IX. Costs of this application shall be in the cause.
Orders accordingly.
Court Assistant Ms. Lawreen & Mr. Opiyo
RULING
(On the Certificate of Urgency dated 31st July 2026)
A. THE APPLICATION
1. Before me is a Notice of Motion dated 31st July 2026, expressed to be brought under Order 13 rule 2 and Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. It is presented under a certificate of urgency of even date signed by Ms. Ayuko Shallom, Advocate, of M/s WTT Lichuma Advocates LLP.
2. The Motion seeks four orders: that it be certified urgent and service dispensed with in the first instance; that judgment on admission be entered against the Defendant for Kshs 3,000,000/= said to be admitted at paragraph 4 of the statement of defence, with interest at court rates from the date of filing; that directions issue for the hearing of the contested balance concerning the applicable interest; and that costs be provided for.
3. The suit is founded on a loan agreement dated 28th January 2022. It is common ground on the papers that the sum of Kshs 3,000,000/= was advanced and was repayable on or before 31st March 2023. The Plaintiff claims a further Kshs 10,000,000/= by way of interest, making a total of Kshs 13,000,000/=. The Defendant filed a statement of defence dated 13th March 2026.
4. This ruling is confined to the certificate of urgency and to the directions necessary to bring the Motion on for hearing. I say only so much about the merits as is necessary to explain those directions, and nothing said here binds the court at the hearing.
B. WHETHER THE APPLICATION IS URGENT
5. Certification of urgency is not a formality. It is a judicial act by which a matter is lifted out of its turn and placed ahead of others already queued before the court. The applicant must therefore show why his matter cannot await the ordinary course.
6. The chronology tells against him. The debt fell due on 31st March 2023. The suit was filed in 2025. The admission on which the Motion is wholly founded came into existence on 13th March 2026, when the defence was filed. The Motion was taken out on 31st July 2026, some four and a half months later, and more than three years after the money fell due. Nothing is said to have altered the position between March and July 2026.
7. An applicant who sits on an admission for four and a half months, and on a debt for three years, cannot then present the matter as one that will not keep. Urgency of an applicant's own making is not urgency at all.
8. The only prejudice pleaded is that the Plaintiff “will continue to suffer severe financial loss”. In a liquidated money claim that loss is precisely what an award of interest is designed to make good, and interest is already sought both in the plaint and in the Motion. It is not the kind of irreparable prejudice that displaces the ordinary course of business.
9. There is a further and more fundamental difficulty. Prayer (a) asks that service be dispensed with; prayer (b) asks for judgment. Judgment on admission is not an interim measure. It is a final determination of part of the suit and it carries a decree, executable at once. It cannot be entered against a party who has not been heard. The Defendant is on record and represented by M/s Teresia Muthua & Co. Advocates. To enter judgment against him ex parte would offend the rule in audi alteram partem and Article 50(1) of the Constitution. A court may grant a holding order without notice; it does not give final judgment without notice.
10. For these reasons the application is not certified urgent, and the prayer for dispensation with service is declined.
C. THE LAW ON JUDGMENT ON ADMISSION
11. Because the Motion will now be canvassed interpartes by written submissions, and to focus the parties on what must be addressed, I set out shortly the principles that will govern it.
12. Order 13 rule 2 of the Civil Procedure Rules provides that 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 that the court may upon such application make such order, or give such judgment, as it thinks just.
13. The jurisdiction is discretionary and is to be exercised sparingly. In Choitram v Nazari [1984] KLR 327 the Court of Appeal held that admissions may be express or implied, on the pleadings or otherwise, but that they must be plain and obvious — as plain as a pikestaff — and clearly readable on their face without recourse to a magnifying glass, because they may result in judgment being entered. Chesoni Ag. JA added the useful test that an admission is clear if a bystander asked whether there had been an admission of fact would answer, of course there was.
14. In Cassam v Sachania [1982] KLR 191 it was held that the discretion is to be exercised only in plain cases where the admissions of fact are so clear and unequivocal that they amount to an admission of liability entitling the plaintiff to judgment; and that judgment on admission cannot be granted where points of law have been raised, or where the court must resort to the interpretation of documents in order to reach a decision. To like effect are Momanyi v Hatimy & another [2003] EA 600, where the admission was required to be plain, clear, unconditional, obvious and unambiguous, and D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1.
15. The purpose of the rule is to spare a plaintiff the wait for that part of his decree which is not genuinely in contest. It is not a shortcut around a defence that raises real questions.
D. WHAT MUST BE ARGUED AT THE HEARING
16. Applying those principles provisionally, and expressly without deciding, four matters will require argument.
17. First, the scope of the admission. Paragraph 4 of the defence appears to admit the loan agreement, the advancement of Kshs 3,000,000/= and the due date of 31st March 2023. Whether it also admits that the principal remains unpaid is a distinct question. An admission of receipt is not, without more, an admission of non-repayment, and judgment on admission may only be entered for what has actually been admitted.
18. Secondly, the completeness of the record. Only the first page of the statement of defence is annexed to the supporting affidavit as “BEN1”, and it breaks off part-way through paragraph 6. The court cannot construe an admission from a fragment of a pleading. The complete defence must be before the court.
19. Thirdly, severability. The Plaintiff's own position is that the principal can be separated from the interest, and prayer (c) invites directions on the balance. Whether the admitted principal can properly be severed from the contested terms of repayment, or whether the two are so bound together in a single agreement that they must be tried as one, will need to be addressed.
20. Fourthly, and to be clear about it now: the terms of repayment and the applicable interest are triable issues. The Defendant does not merely dispute the arithmetic; he pleads that the interest of Kshs 10,000,000/= on a principal of Kshs 3,000,000/= is neither reasonable, lawful nor enforceable. That plea raises questions of law and of fact which no admission can dispose of and which must go to trial. Nothing in the Motion touches them, and prayer (c) rightly concedes as much.
E. ORDERS
21. I accordingly make the following orders:
I. The Notice of Motion dated 31st July 2026 is NOT certified urgent.
II. The prayer that service be dispensed with in the first instance is declined.
III. The Notice of Motion dated 31st July 2026 shall be canvassed interpartes by way of written submissions.
IV. The Plaintiff/Applicant shall, within seven (3) days of the date hereof, serve upon the Defendant/Respondent, through M/s Teresia Muthua & Co. Advocates, a complete copy of the Notice of Motion, the supporting affidavit and its annexures, and this ruling, and shall file an affidavit of service.
V. The Respondent shall have (7) days to file Replying affidavit within (7)days affidavit and, if so advised, grounds of opposition,
VI. The parties shall file and exchange written submissions, not exceeding five (5) pages each, within fourteen (14) days of the date hereof.
VII. Any party who fails to file and serve written submissions within the time limited by order V. above shall be deemed to have elected not to file any submissions, and the court shall thereupon proceed to determine the application on the pleadings and the material on record, and without reference to the submissions of that party, without further notice to it.
VIII. The matter is hereby retired for Ruling on the 28th day of August 2026.
IX. Costs of this application shall be in the cause.
Orders accordingly.