Background and Introduction
1. Before court is the application dated 11th April 2024 brought under Order 14 Rule 2, Order 36 Rule 1(1)(a) and Rule 1(2), and Order 51 Rule 1 of the Civil Procedure Rules, 2020 as well as Sections 1A, 1B, and 3A of the Civil Procedure Act.
2. The application seeks orders for judgment on admission to be entered in favour of the applicant against the respondents in the sum of Kshs. 605,630,649.25 or any part thereof. It is supported by the grounds on its face, the supporting affidavit sworn by the applicant’s director, Mr. Mayur R. Varsani, and the written submissions dated 23rd October 2024.
3. The applicant’s case is that it entered into a contract with the 1st respondent on 13th September 2013 for the construction and completion of relocation units and safety infrastructure under the R.A.P Project in Kibera and Mukuru, Nairobi. Pursuant to Clause 14.7 of the contract, the applicant submitted interim payment certificates (IPCs) based on completed works, which were to be processed and paid within 56 days. The applicant submitted IPC Nos. 28, 29, and 30 in June 2018, November 2019, and January 2020 respectively.
4. However, the respondents have failed to make the requisite payments. Under Clause 14.8 of the contract, delayed payments attract compound interest at the Central Bank of Kenya rates. The total amount claimed, inclusive of the certified amounts and accrued interest, is therefore Kshs. 605,630,649.25. Despite the respondents’ alleged acknowledgments of the debt on multiple occasions, no payment has been made.
5. In their submissions, the applicant also contends that the respondents admitted the debt in correspondence exchanged between the applicant and the 1st respondent. It was further submitted that the defence filed raises no triable issues and was riddled with bare denials.
6. In opposition to the application, the respondents filed a replying affidavit sworn by Mr. Stanley Gitari on 1st August 2024. They also filed written submissions dated 11th November 2024. On the issue of summary judgment, the respondents argue that the summons to enter appearance were served on 21st March 2024, and a memorandum of appearance was filed on 5th April 2024, within the prescribed 14-day period. A defence was subsequently filed on 18th April 2024, which they maintain was also within time.
7. The respondents assert that, in computing the time, the dates of 24th March 2024, 29th March 2024, 31st March 2024, and 1st April 2024 should be excluded as they fell on a Sunday and public holidays, namely Easter and Good Friday.
8. In response to the claim for judgment on admission, the respondents deny having expressly admitted the sum of Kshs. 605,630,649.25. They submit that the principles governing judgment on admission require a clear and unequivocal admission, which was absent in this case. They rely on Order 13 Rule 2 of the Civil Procedure Rules, which requires that such admission should not depend on interpretation or reference to extraneous materials.
9. The respondents further submit that judgment on admission is a discretionary remedy, which should only be granted where the admission is unmistakable and discernible without reference to interpretation of documents. In their submissions, the respondents contend that there was no clear or unequivocal admission of the amount claimed. Rather, they assert that the 1st respondent was merely quoting the contents of letters from the applicant.
Analysis and Determination
10. I have carefully considered the pleadings, submissions on record, and the authorities cited by counsel. The first issue is whether the 1st defendant’s statement of defence was filed within the prescribed time and the effect thereof on this application. Order 7 Rule 1 of the Civil Procedure Rules requires a defendant to file a defence within fourteen days after entering appearance. Section 57 of the Interpretation and General Provisions Act (Cap 2), which applies to computation of time for purposes of court proceedings (as read with the Civil Procedure Act and Rules) provides for the rules that govern computation of time.
11. I do concur with the defendants that Sundays or public holidays, should not be counted in the computation of time under the Civil Procedure Rules. The statement of defense having been filed before the 18th April 2024 was therefore filed within time. Accordingly, the statement of defence is deemed properly on record.
12. The applicant’s alternative prayer is for judgment on admission, premised on three letters written by the 1st respondent dated 2nd February 2021, 17th August 2022, and 28th August 2023. In those letters, the 1st respondent acknowledged the applicant’s requests for payment of the sums claimed and indicated that payment was “being processed” through the relevant Ministry and the National Treasury. The applicant contends that these letters amount to an admission of the debt, warranting judgment on admission for Kshs. 605,630,649.25 without proceeding to trial.
13. Order 13 Rule 2 of the Civil Procedure Rules provides as follows with respect to judgment on admission:
“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”.
14. Not every statement or acknowledgment qualifies as an admission in law sufficient to dispose of a case. Judicial pronouncements have settled that an admission must be explicit, unconditional and unequivocal. The Court of Appeal in Choitram & another v Nazari [1984] KECA 47 (KLR) stated that;
“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.”
15. In the same vein, Chesoni Ag. JA (as he then was), observed that “an admission is clear if the answer by a bystander to the question whether there was an admission of facts would be ‘Of course there was.’’ Likewise, in Cassam v Sachania (1982) KLR 191 the court held that the discretion to enter judgment on admission “is to be exercised only in plain cases where the admission of facts are so clear and unequivocal that they amount to an admission of liability entitling the plaintiff to judgment.”
16. All these authorities in my view, establish a high threshold which is that the admission must leave no room for doubt or interpretation.
17. Against this background, having considered the contents of the 1st respondent’s letters, this court is not persuaded that they contain a clear and unambiguous admission of liability for the precise sum claimed.
18. The letters on their face acknowledge that the applicant had demanded payment and that the request was forwarded or under process by the government channels. They do not expressly confess that the money is due and owing immediately, nor do they concede the specific quantum or the contested interest. Importantly, the letters appear to be status updates or acknowledgments of a claim in progress, rather than an outright acceptance of liability.
19. In my view, these statements fall short of the “plain and obvious” admission required to justify judgment on admission. In any case, the 1st respondent has also filed a defence that disputes a substantial part of the claim.
20. Having found that the defence is properly on record, the court must assess whether that defence discloses one or more bona fide triable issues. As the Court of Appeal emphasized in Kenya Trade Combine Ltd v N. M. Shah [2001] KECA 1 (KLR);
“in a matter of this nature, all a defendant is supposed to show is that a defence on record raises a triable issue which ought to go to trial… a defence that raises triable issues does not mean a defence that must succeed”.
21. Even a single bona fide issue will suffice to grant leave to defend. Upon review of the 1st respondent’s defence and the affidavits, this court is satisfied that multiple triable issues emerge, which merit a full trial. First, the validity and certification of IPCs No. 28, 29, and 30 is squarely in dispute. This is a factual controversy that cannot be resolved without evidence. Whether those IPCs were properly certified according to the contract and whether the sums therein are payable is a matter subject to judicial examination.
Second, the interest component of Kshs. 265,241,640.59 is also contested.
22. The court’s role on a summary judgment application is not to resolve or decide the disputed issues but to identify if any real issue exists. In the present case, it is abundantly clear that real issues do exist. Whether the 1st respondent’s challenges will ultimately succeed at trial is not for this court to prejudge; what matters is that the issues raised are not a sham or moonshine, they are legitimate points warranting ventilation in a full trial.
Disposition
23. Accordingly, the application dated 11th April 2024 seeking summary judgment or judgment on admission is dismissed with costs.
DATE, SIGNED AND DELIVERED IN MOMBASA
THIS 17TH DAY OF APRIL 2025
F. MUGAMBI
JUDGE