' Background and Introduction
1. I have considered the application dated 22nd April 2025 by which the plaintiff seeks to have judgment entered against the defendant on his own admission. The application is opposed by way of grounds of opposition dated 3rd June 2025.
Analysis and Determination
2. Order 13 Rule 2 of the Civil Procedure Rules, under which the plaintiff’s application is brought, permits a party to apply for judgment on admission without awaiting the determination of all other issues in the suit.
3. In Choitram v Nazari (1984) KLR 327 the Court of Appeal (Madan, JA) confirmed the threshold of admission in the following words:
“For the purpose of Order XII Rule 6, admission can be expressed or implied either on the pleadings or otherwise, e.g. 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.”
4. In the matter before me, the plaintiff contends that the defendant’s admission is contained in the witness statement of 17th April 2025. I have reviewed the said witness statement. It is not in dispute that the plaintiff advanced the defendant the sum of Kshs. 20,000,000/- under the terms of the letter of offer. This is in line with the defendant’s statement of defense. The defendant’s case is pegged on the terms of the agreement and particularly contends that it was a term of the agreement that payment to the plaintiff would be made upon payment by the contracting entity.
5. The defendants contend that the payment was recoverable from its account by the plaintiff. The issue as to whether such payment came through and if so, why the Bank did not deduct its funds from the account are issues to be advanced at the hearing as well as whether there is any wrongdoing on the part of the defendant in the circumstances. I note that the defendant also disputes the entries in the statement of account issued by the plaintiff.
6. Keeping in mind that a judgement on admission is a judgement without trial which permanently denies a remedy to the sued party by way of an appeal on merits, I would approach the issue very cautiously. Having looked at the statement of defense dated 22nd November 2024, which corroborates the issues that the defendant raises, I take the view that the admission does not meet the threshold articulated by the Court of Appeal in Choitram v Nazari [1984] KLR 327.
Disposition
7. The application dated 22nd April 2025 is dismissed. Costs shall await the outcome of the suit.
'
1. I have considered the application dated 22nd April 2025 by which the plaintiff seeks to have judgment entered against the defendant on his own admission. The application is opposed by way of grounds of opposition dated 3rd June 2025.
Analysis and Determination
2. Order 13 Rule 2 of the Civil Procedure Rules, under which the plaintiff’s application is brought, permits a party to apply for judgment on admission without awaiting the determination of all other issues in the suit.
3. In Choitram v Nazari (1984) KLR 327 the Court of Appeal (Madan, JA) confirmed the threshold of admission in the following words:
“For the purpose of Order XII Rule 6, admission can be expressed or implied either on the pleadings or otherwise, e.g. 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.”
4. In the matter before me, the plaintiff contends that the defendant’s admission is contained in the witness statement of 17th April 2025. I have reviewed the said witness statement. It is not in dispute that the plaintiff advanced the defendant the sum of Kshs. 20,000,000/- under the terms of the letter of offer. This is in line with the defendant’s statement of defense. The defendant’s case is pegged on the terms of the agreement and particularly contends that it was a term of the agreement that payment to the plaintiff would be made upon payment by the contracting entity.
5. The defendants contend that the payment was recoverable from its account by the plaintiff. The issue as to whether such payment came through and if so, why the Bank did not deduct its funds from the account are issues to be advanced at the hearing as well as whether there is any wrongdoing on the part of the defendant in the circumstances. I note that the defendant also disputes the entries in the statement of account issued by the plaintiff.
6. Keeping in mind that a judgement on admission is a judgement without trial which permanently denies a remedy to the sued party by way of an appeal on merits, I would approach the issue very cautiously. Having looked at the statement of defense dated 22nd November 2024, which corroborates the issues that the defendant raises, I take the view that the admission does not meet the threshold articulated by the Court of Appeal in Choitram v Nazari [1984] KLR 327.
Disposition
7. The application dated 22nd April 2025 is dismissed. Costs shall await the outcome of the suit.
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