' Introduction
1. Before me for determination is the Plaintiff’s Notice of Motion dated 26th February 2025 seeking judgment on admission under Order 13 Rule 2 of the Civil Procedure Rules for the sum of Kshs. 72,228,845.00 together with interest at prevailing commercial bank lending rates pursuant to Clause 34.6 of the contract dated 6th December 2018.
2. The application is premised on the grounds cited on its face, and is supported by the affidavit of Manji Ravji Vekariya sworn on 25th February 2025.
3. The Defendant opposes the application through the Replying Affidavit of Abdifarah Abdullah, sworn on 3rd June 2025.
Background of the Dispute
4. By a letter of award dated 24th October 2018, the Defendant engaged the Plaintiff to construct forty-one (41) townhouses on the Defendant’s property known as LR No. 12715/429 (IR No. 44368), Syokimau.
5. Following the award, the parties executed a formal building contract on 6th December 2018 for an agreed contract sum of Kenya Shillings One Hundred Ninety Four Million, Three Hundred Seventy Nine Thousand, Three Hundred and Thirty Four (Kshs. 194,379,334.00). The contract incorporated standard terms and conditions, including provisions on payment, supervision, variations, and certification of works.
6. The Plaintiff avers that it commenced the works diligently but that the Defendant defaulted in meeting its payment obligations, leading to accumulation of arrears. As a result, the Plaintiff suspended further construction, citing inability to continue without reimbursement of funds already expended on the project.
7. The Defendant, on its part, contends that the Plaintiff failed to adhere to agreed timelines, delivered defective works, and obstructed access to the site, thereby frustrating the Defendant’s ability to perform its obligations. The Defendant maintains that payments made, amounting to Kshs. 59,000,000.00, were commensurate with the value of work actually performed.
8. In the face of these difficulties, the parties mutually agreed to terminate the contract. Clause 34.20 of the contract provided for preparation of final accounts by the quantity surveyor, the contractor, and the architect. On 7th July 2021, final accounts were prepared and executed by the Defendant, its quantity surveyor (BECS Consultants), its architect (Morphosis Design + Architects), its project manager, and the Plaintiff.
9. The final accounts reflected a gross value of work done and materials on site of Kshs. 131,228,845.00, less payments made of Kshs. 59,000,000.00, leaving a balance of Kshs. 72,228,845.00 allegedly due to the Plaintiff.
10. The Plaintiff treats the signed final accounts as an unequivocal admission of debt and has moved the Court for judgment on admission under Order 13 Rule 2 of the Civil Procedure Rules.
11. The Defendant, on the other hand, disputes the accounts, alleging duress, exclusion of remedial costs, and entitlement to set-offs, and prays that the matter proceed to full trial.
Submissions
12. The Application was canvassed by way of written submissions, the contents of which I have carefully considered. The Plaintiff’s submissions filed by its Counsel, Ochwo & Company Advocates, are dated 27th June 2025. The Defendant, through Garane and Samane Advocates, filed their submissions dated 14th July 2025.
Analysis and Determination
13. From the parties’ submissions, I note that the issue for determination is whether the Defendant has made an unequivocal admission of liability sufficient to warrant entry of judgment under Order 13 Rule 2.
14. The starting point in an application of this nature is Order 13, Rule 2 of the Civil Procedure Rules, which states:
"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 it thinks just."
15. The jurisprudence is clear that admissions must be plain, clear, unambiguous, and unequivocal. In Choitram v Nazari [1984] KLR 327, the Court of Appeal (Madan J) held that admissions must be “as plain as a pikestaff”. The Court stated that:
“For the purpose of order XII rule 6, admissions can be express or implied either on the pleadings or otherwise, eg 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.”
16. The Court further stated that:
“Admissions of fact under Order XII rule 6 need not be on the pleadings. They may be in correspondence or documents which are admitted or they may even be oral. The rule uses the words “or otherwise” which are words of general application and are wide enough to include admissions made through letter, affidavits and other admitted documents and proved oral admissions.”
17. The discretion to enter judgment on admission is exercised sparingly and only in obvious cases. In Cassam v Sachania [1982] KLR 191) , the Court of Appeal stated that:
“The Judge’s discretion to grant judgment on admissions of fact under the Order 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. It is far from being a plain case where one has to resort to the interpretation of documents. Once a case raises points of law it falls outside the ambit of the Order. It made no difference whether the points of law had been fully argued or not.”
18. Where triable issues are raised, the Court must allow the matter to proceed to trial. In Moi University v Vishva Builders Limited [2010] KECA 397 (KLR), the Court of Appeal held that if a defence raises even one bona fide triable issue, the defendant must be granted leave to defend. The Court stated that: -
“The law is now settled that if the defence raises even one bona fide triable issue, then the defendant must be given leave to defend. In this appeal we traced the history from the commencement of relationship between the parties herein. The dispute arises out of a building contract. In the initial plaint the sum claimed was well over 300 million but this was scaled down by various amendments until the final figure claimed was Shs.185,305,011.30/- We have looked at the pleadings and the history of the matter and it would appear to us that the appellant had serious issues raised in its defence. As we know even one trial issue would be sufficient – see H.D. Hasmani v. Banque Du Congo Belge (1938) 5 E.AC.A 89. We must however, hasten to add that a triable issue does not mean one that will succeed.”
19. In the present case, the Plaintiff relies on the final accounts dated 7th July 2021, executed by the Defendant, its quantity surveyor, architect, and project manager, showing a balance of Kshs. 72,228,845.00 due. The Plaintiff submits that this constitutes an unequivocal admission of debt.
20. The Defendant does not deny signing the final accounts but alleges duress, procedural formality, and exclusion of remedial costs. The Defendant further claims that the Plaintiff failed to perform its contractual obligations, obstructed access to the site, and delivered defective works.
21. These allegations, though not supported by contemporaneous evidence of duress, nonetheless raise triable issues as to the accuracy, completeness, and binding effect of the final accounts. The Defendant has pleaded set-offs and counterclaims, which go to the root of the dispute.
22. In Ecobank Kenya Limited v JP Holdings Limited [2024] KEHC 12997 (KLR), the Court held that a signature on a document purporting to acknowledge a debt does not, by itself, amount to a binding admission where substantive defences are raised. Similarly, in Synergy Industrial Credit Limited v Oxyplus International Limited & 2 others [2021] eKLR, Mativo J. (as he then was) reiterated that “…Admission of a fact has to be clear from the facts and it should not be left to interpretative determination of court…”
23. The Plaintiff argued that the Defendant’s consultants prepared the accounts and that the Defendant’s signature demonstrates a conscious and deliberate act of acknowledgment. While this is persuasive, the Defendant’s subsequent denial, coupled with allegations of duress and defective works, raises doubt as to whether the signature reflected an unequivocal intention to be bound.
24. Applying the above principles in this case, I find that the alleged admission in the final accounts is contested both in content and context. It is not “plain as a pikestaff” but requires interpretation and testing of evidence. The Defendant’s allegations of defective works, duress, and entitlement to set-offs raise bona fide triable issues that cannot be resolved summarily.
25. In the premises, I therefore find that the Plaintiff has not demonstrated a clear and unequivocal admission by the Defendant sufficient to warrant judgment under Order 13 Rule 2. The Defendant has raised bona fide triable issues that merit determination at a full hearing.
26. However, to balance the Defendant’s right to be heard on merits and Plaintiff’s right to protection against the risk of non-payment, justice of the matter, therefore, requires that the Defendant deposit some security for the disputed sum. In this case, the Defendant has admitted making payments of Kshs. 59,000,000.00, leaving a disputed balance of Kshs. 72,228,845.00. The Plaintiff has demonstrated that substantial work was performed and certified by the Defendant’s own consultants.
27. Accordingly, I order that the Defendant shall deposit into Court the sum of Kshs. 21,668,653.50, being 30% of the disputed sum, within sixty (60) days from the date hereof, as security pending the hearing and determination of the suit.
28. In default of such deposit, the Plaintiff shall be at liberty to apply for judgment on admission.
29. Since judgment on admission is declined, the issue of interest under Clause 34.6 shall await the outcome of the trial.
30. Costs of the application shall be in the cause.
31. It is so ordered.
SIGNED, DATED, and DELIVERED AT NAIROBI THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Ochwo……………….…..for the Plaintiff
Asala………….…..... for the Defendant
'
1. Before me for determination is the Plaintiff’s Notice of Motion dated 26th February 2025 seeking judgment on admission under Order 13 Rule 2 of the Civil Procedure Rules for the sum of Kshs. 72,228,845.00 together with interest at prevailing commercial bank lending rates pursuant to Clause 34.6 of the contract dated 6th December 2018.
2. The application is premised on the grounds cited on its face, and is supported by the affidavit of Manji Ravji Vekariya sworn on 25th February 2025.
3. The Defendant opposes the application through the Replying Affidavit of Abdifarah Abdullah, sworn on 3rd June 2025.
Background of the Dispute
4. By a letter of award dated 24th October 2018, the Defendant engaged the Plaintiff to construct forty-one (41) townhouses on the Defendant’s property known as LR No. 12715/429 (IR No. 44368), Syokimau.
5. Following the award, the parties executed a formal building contract on 6th December 2018 for an agreed contract sum of Kenya Shillings One Hundred Ninety Four Million, Three Hundred Seventy Nine Thousand, Three Hundred and Thirty Four (Kshs. 194,379,334.00). The contract incorporated standard terms and conditions, including provisions on payment, supervision, variations, and certification of works.
6. The Plaintiff avers that it commenced the works diligently but that the Defendant defaulted in meeting its payment obligations, leading to accumulation of arrears. As a result, the Plaintiff suspended further construction, citing inability to continue without reimbursement of funds already expended on the project.
7. The Defendant, on its part, contends that the Plaintiff failed to adhere to agreed timelines, delivered defective works, and obstructed access to the site, thereby frustrating the Defendant’s ability to perform its obligations. The Defendant maintains that payments made, amounting to Kshs. 59,000,000.00, were commensurate with the value of work actually performed.
8. In the face of these difficulties, the parties mutually agreed to terminate the contract. Clause 34.20 of the contract provided for preparation of final accounts by the quantity surveyor, the contractor, and the architect. On 7th July 2021, final accounts were prepared and executed by the Defendant, its quantity surveyor (BECS Consultants), its architect (Morphosis Design + Architects), its project manager, and the Plaintiff.
9. The final accounts reflected a gross value of work done and materials on site of Kshs. 131,228,845.00, less payments made of Kshs. 59,000,000.00, leaving a balance of Kshs. 72,228,845.00 allegedly due to the Plaintiff.
10. The Plaintiff treats the signed final accounts as an unequivocal admission of debt and has moved the Court for judgment on admission under Order 13 Rule 2 of the Civil Procedure Rules.
11. The Defendant, on the other hand, disputes the accounts, alleging duress, exclusion of remedial costs, and entitlement to set-offs, and prays that the matter proceed to full trial.
Submissions
12. The Application was canvassed by way of written submissions, the contents of which I have carefully considered. The Plaintiff’s submissions filed by its Counsel, Ochwo & Company Advocates, are dated 27th June 2025. The Defendant, through Garane and Samane Advocates, filed their submissions dated 14th July 2025.
Analysis and Determination
13. From the parties’ submissions, I note that the issue for determination is whether the Defendant has made an unequivocal admission of liability sufficient to warrant entry of judgment under Order 13 Rule 2.
14. The starting point in an application of this nature is Order 13, Rule 2 of the Civil Procedure Rules, which states:
"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 it thinks just."
15. The jurisprudence is clear that admissions must be plain, clear, unambiguous, and unequivocal. In Choitram v Nazari [1984] KLR 327, the Court of Appeal (Madan J) held that admissions must be “as plain as a pikestaff”. The Court stated that:
“For the purpose of order XII rule 6, admissions can be express or implied either on the pleadings or otherwise, eg 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.”
16. The Court further stated that:
“Admissions of fact under Order XII rule 6 need not be on the pleadings. They may be in correspondence or documents which are admitted or they may even be oral. The rule uses the words “or otherwise” which are words of general application and are wide enough to include admissions made through letter, affidavits and other admitted documents and proved oral admissions.”
17. The discretion to enter judgment on admission is exercised sparingly and only in obvious cases. In Cassam v Sachania [1982] KLR 191) , the Court of Appeal stated that:
“The Judge’s discretion to grant judgment on admissions of fact under the Order 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. It is far from being a plain case where one has to resort to the interpretation of documents. Once a case raises points of law it falls outside the ambit of the Order. It made no difference whether the points of law had been fully argued or not.”
18. Where triable issues are raised, the Court must allow the matter to proceed to trial. In Moi University v Vishva Builders Limited [2010] KECA 397 (KLR), the Court of Appeal held that if a defence raises even one bona fide triable issue, the defendant must be granted leave to defend. The Court stated that: -
“The law is now settled that if the defence raises even one bona fide triable issue, then the defendant must be given leave to defend. In this appeal we traced the history from the commencement of relationship between the parties herein. The dispute arises out of a building contract. In the initial plaint the sum claimed was well over 300 million but this was scaled down by various amendments until the final figure claimed was Shs.185,305,011.30/- We have looked at the pleadings and the history of the matter and it would appear to us that the appellant had serious issues raised in its defence. As we know even one trial issue would be sufficient – see H.D. Hasmani v. Banque Du Congo Belge (1938) 5 E.AC.A 89. We must however, hasten to add that a triable issue does not mean one that will succeed.”
19. In the present case, the Plaintiff relies on the final accounts dated 7th July 2021, executed by the Defendant, its quantity surveyor, architect, and project manager, showing a balance of Kshs. 72,228,845.00 due. The Plaintiff submits that this constitutes an unequivocal admission of debt.
20. The Defendant does not deny signing the final accounts but alleges duress, procedural formality, and exclusion of remedial costs. The Defendant further claims that the Plaintiff failed to perform its contractual obligations, obstructed access to the site, and delivered defective works.
21. These allegations, though not supported by contemporaneous evidence of duress, nonetheless raise triable issues as to the accuracy, completeness, and binding effect of the final accounts. The Defendant has pleaded set-offs and counterclaims, which go to the root of the dispute.
22. In Ecobank Kenya Limited v JP Holdings Limited [2024] KEHC 12997 (KLR), the Court held that a signature on a document purporting to acknowledge a debt does not, by itself, amount to a binding admission where substantive defences are raised. Similarly, in Synergy Industrial Credit Limited v Oxyplus International Limited & 2 others [2021] eKLR, Mativo J. (as he then was) reiterated that “…Admission of a fact has to be clear from the facts and it should not be left to interpretative determination of court…”
23. The Plaintiff argued that the Defendant’s consultants prepared the accounts and that the Defendant’s signature demonstrates a conscious and deliberate act of acknowledgment. While this is persuasive, the Defendant’s subsequent denial, coupled with allegations of duress and defective works, raises doubt as to whether the signature reflected an unequivocal intention to be bound.
24. Applying the above principles in this case, I find that the alleged admission in the final accounts is contested both in content and context. It is not “plain as a pikestaff” but requires interpretation and testing of evidence. The Defendant’s allegations of defective works, duress, and entitlement to set-offs raise bona fide triable issues that cannot be resolved summarily.
25. In the premises, I therefore find that the Plaintiff has not demonstrated a clear and unequivocal admission by the Defendant sufficient to warrant judgment under Order 13 Rule 2. The Defendant has raised bona fide triable issues that merit determination at a full hearing.
26. However, to balance the Defendant’s right to be heard on merits and Plaintiff’s right to protection against the risk of non-payment, justice of the matter, therefore, requires that the Defendant deposit some security for the disputed sum. In this case, the Defendant has admitted making payments of Kshs. 59,000,000.00, leaving a disputed balance of Kshs. 72,228,845.00. The Plaintiff has demonstrated that substantial work was performed and certified by the Defendant’s own consultants.
27. Accordingly, I order that the Defendant shall deposit into Court the sum of Kshs. 21,668,653.50, being 30% of the disputed sum, within sixty (60) days from the date hereof, as security pending the hearing and determination of the suit.
28. In default of such deposit, the Plaintiff shall be at liberty to apply for judgment on admission.
29. Since judgment on admission is declined, the issue of interest under Clause 34.6 shall await the outcome of the trial.
30. Costs of the application shall be in the cause.
31. It is so ordered.
SIGNED, DATED, and DELIVERED AT NAIROBI THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Ochwo……………….…..for the Plaintiff
Asala………….…..... for the Defendant
'