1. The corridors of commercial justice abhor procedural subterfuge. The Court is often called upon to distinguish between a genuine legal dispute and a calculated attempt to delay the inevitable. The machinery of justice is designed to resolve legitimate controversies.
2. The matter before the Court presents a classic clash between procedural manoeuvring and substantive commercial justice. The Court is confronted with two rival applications. The first is a Preliminary Objection raised by the Defendant. The second is an application for striking out the defence and entering judgment on admission, championed by the Plaintiff.
Background Facts
3. The dispute stems from a commercial relationship. The Plaintiff and the Defendant entered into a Petroleum Products Supply Agreement. The agreement is dated 29th June, 2022.
4. The Plaintiff agreed to supply the Defendant with its total requirements of Automotive Diesel Oil. The terms were explicit.
Clause 4.1 mandated that supplies would be on a Bankers Cheque Before Delivery (BCBD) basis, subject to the Plaintiff's credit policy. Payment was required within 45 days of the date of the statement.
Clause 4.3 contained a penal provision. It obligated the Defendant to pay interest on any overdue amounts. The interest was pegged at the prevailing Central Bank Rate (CBR) plus a margin of 4% per annum on a reducing balance.
5. The Plaintiff avers full compliance with the agreement. It supplied Automotive Diesel Oil to the Defendant on various dates between 9th October, 2023, and 28th December, 2023. The total value of the supplies amounted to Kshs. 41,214,558.02. The deliveries are evidenced by the schedule of invoices and production orders set out in the Plaint.
6. The Defendant defaulted on payment. By 16th January, 2024, the Defendant was indebted to the Plaintiff in the sum of Kshs. 40,897,577.75.
7. The Plaintiff issued a demand letter on 16th January, 2024. The Defendant responded in writing on 24th January, 2024. The Defendant acknowledged the delay and the inconvenience caused. The Defendant formally undertook to regularize the account by 15th February, 2024.
8. The Defendant failed to honour the undertaking. The Plaintiff issued subsequent demands on 19th February, 2024, and 28th February, 2024. The parties subsequently held a physical meeting on 8th March, 2024, at the Plaintiff's offices.
9. Following this meeting, the Defendant authored a letter acknowledging its total indebtedness at Kshs. 40,812,015.00. The Defendant proposed a structured payment plan culminating in May 2024, where it offered to pay the sum of Kshs. 40,812,015
10. The Defendant remitted a mere Kshs. 200,000.00 against this plan. The outstanding balance thereby reduced to Kshs. 40,612,014.75 as of 19th March, 2024.
11. The parties then executed a Tripartite Settlement and Release Agreement. The third party to this instrument was OLA Energy Uganda Limited. Under Clauses 1.1 and 1.4 of this Tripartite Agreement, the Defendant unequivocally admitted the debt. A sum of Kshs. 900,543.50 owed to the Defendant by OLA Energy Uganda Limited for transportation services was ceded directly to the Plaintiff. The remaining outstanding balance crystallized at Kshs. 39,711,471.25.
12. The Defendant failed to settle the remaining balance despite final demands. The Plaintiff instituted this suit by way of a Plaint on 17th April, 2025. The Plaintiff seeks judgment for the principal sum of Kshs. 39,711,471.25, accrued interest from 15th February, 2024 at CBR plus 4%, and costs.
13. The Defendant entered a Memorandum of Appearance on 19th May, 2025, through M/s. F.N. & Brian Advocates.
14. The Defendant subsequently filed a Statement of Defence on 30th May, 2025. The Defence contained general denials of the debt, averring that the amounts claimed were exaggerated, that the Plaintiff had not presented production orders, and that the invoices lacked the Defendant's stamp.
15. The Plaintiff countered the Defence with a Notice of Motion application to strike it out and enter judgment on admission. Contemporaneously, the Defendant mounted a Preliminary Objection challenging the Court's jurisdiction on the basis of an arbitration clause.
16. The Defendant filed a Notice of Preliminary Objection dated 5th June, 2025. The objection challenges the jurisdiction of this Court on the basis of an arbitration agreement.
17. The Notice cites Section 6 of the Civil Procedure Act, 2010. The Court observes that this statutory citation is fundamentally flawed, as the doctrine of stay pending arbitration is governed by the Arbitration Act. Nevertheless, the Court will look to the substance of the objection to serve the overriding objective of justice.
18. The Orders sought in the Notice of Preliminary Objection are reproduced as follows:
"TAKE NOTICE that at the hearing of this suit the Defendant will raise a Preliminary Objection on a point of law and shall oppose the Plaintiff's Suit on the following grounds that: -
1. This Honourable Court lacks jurisdiction to hear and determine this suit for the reason that the entire suit offends the doctrine of exhaustion as the agreement between parties contains an arbitration clause and which offence deprives the Court of the necessary Jurisdiction to entertain the suit.
2. It is therefore just expedient and in the interest of justice that the suit be struck out forthwith with Costs to the Defendants."
19. The Plaintiff, represented by M/s Iseme, Kamau & Maema Advocates, opposed the Preliminary Objection. The Plaintiff filed Grounds of Opposition dated 19th June, 2025. The Plaintiff contends that the Preliminary Objection is procedurally incompetent, substantively defective, and that the right to arbitrate has been waived.
20. The Grounds of Opposition are reproduced as follows:
"TAKE NOTICE that at the hearing of the Defendant's Preliminary Objection dated 5 June 2025, the Plaintiff will oppose the said Preliminary Objection on the following grounds:-
a) THAT the Preliminary Objection is incompetent, fatally defective and misconceived.
b) THAT the Defendant's Preliminary Objection contravenes the mandatory provisions of Section 6(1) of the Arbitration Act and is therefore incompetent.
c) THAT the Defendant has forfeited the right to apply for referral of the matter to arbitration.
d) THAT there is not in fact any dispute between the parties in this matter with regard to the matters agreed to be referred to arbitration.
e) THAT there is no proper basis laid for this Honourable Court to divest itself of jurisdiction in the matter.
f) THAT in the circumstances, the Preliminary Objection ought to be dismissed with costs to the Plaintiff."
21. Running parallel to the jurisdictional contest is the Plaintiff's bid for summary disposal of the suit. The Plaintiff filed a Notice of Motion application dated 30th June, 2025, supported by the Affidavit of Sharon Chepkorir Mwei.
22. The application is predicated on the assertion that the Defence is a sham, consisting of bare denials, and that the Defendant has unequivocally admitted the debt in writing.
23. The prayers sought in the application are reproduced as follows:
1. THAT this Honourable Court be pleased to strike out the Defendant/Respondent's Defence dated 30 May 2025 and to enter judgment in favour of the Plaintiff/Applicant as prayed in the Plaint.
2. THAT in the alternative, this Honourable Court be pleased to enter judgment on admission in favour of the Plaintiff/Applicant against the Defendant/Respondent in the sum of KES 39.711.471.25 as prayed in the Plaint.
3. THAT the costs of this application and the suit plus interests as prayed for in the Plaint be borne by the Defendant/Respondent.
24. The grounds sought in the application are reproduced as follows:
"a) The Defendant/Respondent ("the Respondent")'s Defence dated 30 May 2025 contains bare denials and does not raise any triable issue.
b) The Respondent has admitted owing the Plaintiff/Applicant ("the Applicant") the sum of KES 39,711,471.25.
c) The Defence does not disclose any defence in law.
d) The Defence is therefore frivolous and vexatious whose sole intention is to stymie an expeditious determination of the Applicant's suit.
e) To the extent the Respondent admits its indebtedness to the Applicant, the Applicant's Defence rings hollow and is in abuse of the court process.
f) That this is a fit and proper case for striking out of the Defence and entry of judgment in favour of the Applicant or judgment on admission."
Issues for Determination
25. The Court has considered the Application, the response, the Preliminary Objection, the Grounds of Opposition filed, the rival submissions and oral highlights by the Counsel for the parties. The Court frames four (4) issues for determination as follows:
a) Whether the Preliminary Objection raises pure points of law within the legally established parameters.
b) Whether the filing of a Statement of Defence by the Defendant has the legal effect of waiving its statutory right to refer the matter to arbitration.
c) Whether a genuine dispute exist capable of being referred to arbitration, or has the debt been unequivocally admitted.
d) Whether the Statement of Defence raises any bona fide triable issues, or ought it to be struck out and judgment entered for the Plaintiff on admission.
Analysis
26. This Court is called upon to consider the Notice of Preliminary Objection as well as the Application by the Plaintiff seeking to strike out the defence or have judgement entered on the basis of admissions. The Notice of Preliminary Objection was filed in response and as a shield to the Motion. Should it succeed, the Plaintiff’s suit will be struck out and terminate. Should it fail, the Court will then proceed to consider the Motion, which stands unopposed. This to the Court makes efficient use of the limited judicial time.
a) Whether the Preliminary Objection raises pure points of law within the legally established parameters.
27. The parameters of a preliminary objection are well settled in our jurisprudence. The locus classicus remains the East African Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, cited by the Defendant.
28. In that celebrated case, Law JA formulated the governing principle as follows:
"So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."
29. Sir Charles Newbold P added a vital caveat that Courts must heed:
"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."
30. The Defendant challenges the jurisdiction of this Court. Jurisdiction is undeniably a pure point of law. The immortal words of Nyarangi JA in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) remain the guiding star for all Courts:
"Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.".
31. However, the basis of the Defendant's jurisdictional challenge is the existence of an arbitration clause in the Petroleum Products Supply Agreement. The Defendant argues that this arbitral clause automatically ousts the jurisdiction of the High Court and offends the doctrine of exhaustion.
32. This proposition is legally unsound. An arbitration clause does not, ipso facto, oust the jurisdiction of the High Court. Jurisdiction is conferred by the Constitution and by statute. It cannot be ousted by a private commercial contract between parties.
33. The Arbitration Act (No. 4 of 1995) does not strip the Court of its inherent jurisdiction over civil disputes. Rather, it imposes a statutory obligation on the Court to stay its proceedings and refer the parties to arbitration, provided specific procedural thresholds and timelines are strictly met by the Applicant.
34. This Court finds fortification in the Court of Appeal's holding in Mt Kenya University v Step Up Holding (K) Ltd [2018] eKLR. The Appellate Court clarified that an arbitration clause provides a mechanism for dispute resolution, but it operates as a contractual bar to litigation only when properly invoked under the strict confines of Section 6 of the Arbitration Act.
35. Furthermore, the determination of whether a party has waived its right to arbitrate by taking steps in the proceedings, and whether a genuine dispute exists, are mixed questions of fact and law. They require the Court to examine the sequence of pleadings. They require an interrogation of pre-suit correspondence. These are not pure points of law. They offend the strictures of Mukisa Biscuit.
36. The procedural vehicle chosen by the Defendant is also fundamentally defective. A party seeking to stay proceedings under Section 6 of the Arbitration Act must file a formal application under that specific statute. This is typically done via a Notice of Motion supported by an affidavit detailing the existence of the agreement, the promptness of the application, and the presence of a referable dispute.
37. A Preliminary Objection is an improper mechanism for seeking a stay of proceedings pending arbitration. The Court agrees with the holding cited by the Plaintiff in Sophia Wanjiku Kimani & 2 others v Mraradia Gatuya Rumwe & 4 others [2014] KEHC 3797 (KLR), where the Court correctly dismissed a preliminary objection used as a proxy for a stay application. The factual matrix surrounding the invocation of an arbitration clause must be sworn to and tested.
38. The Defendant's Preliminary Objection is technically flawed. It is procedurally inept. However, because Courts must prioritize substantive justice over procedural missteps, the Court will proceed to interrogate the core of the Defendant's argument regarding the arbitration clause and the effect of the filed Defence.
b) Whether the filing of a Statement of Defence by the Defendant has the legal effect of waiving its statutory right to refer the matter to arbitration.
39. The interplay between party autonomy (the freedom to contractually agree to arbitrate) and the jurisdiction of the Court is strictly governed by Section 6(1) of the Arbitration Act. The provision is peremptory. It provides a narrow, time-bound window for a party to invoke an arbitration clause.
40. Section 6(1) of the Arbitration Act states as follows:
"(1) A Court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—
(a) that the arbitration agreement is null and void, inoperative or incapable of being performed; or
(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration."
41. The statutory timeline is unforgiving. The application for stay must be made "not later than the time when that party enters appearance or otherwise acknowledges the claim."
42. The chronology of pleadings in the present suit is a matter of Court record and is undisputed. The Plaintiff filed the Plaint on 17th April, 2025. The Defendant entered an appearance on 19th May, 2025. The Defendant then filed a substantive Statement of Defence on 30th May, 2025. The Notice of Preliminary Objection seeking to enforce the arbitration clause was filed on afterthought on 5th June, 2025.
43. The Defendant took a substantive step in the proceedings by filing a Statement of Defence, traversing the Plaintiff's claims on the merits, and praying for the suit's dismissal with costs. Did this act constitute a waiver of the right to arbitrate? The jurisprudence of the Appellate Courts is emphatic and uniform.
44. In Corporate Insurance Company v Loise Wanjiru Wachira [1996] KECA 70 (KLR), the Court of Appeal held in:
"While we agree with the proposition that a Scott v Avery arbitration clause can provide a defence to a claim, we cannot accept the submission that the party relying on it can circumvent the statutory requirement to apply for a stay of proceedings. In the present case, if the appellant wished to take the benefit of the clause, it was obliged to apply for a stay after entering appearance and before delivering any pleading. By filing a defence the appellant lost its right to rely on the clause."
45. The legal landscape was further clarified by the Court of Appeal in Eunice Soko Mlagui v Suresh Parmar & 4 others [2017] KECA 736 (KLR). The Court examined the amendments to Section 6(1) and stated unequivocally:
"The main difference between the position before and after 2009 is that before 2009, a party was required to apply for referral of the dispute to arbitration at the time of entering appearance or before filing any pleadings or taking any other step in the proceeding. After 2009, the provision still requires a party to apply for referral of the dispute to arbitration at the time of entering appearance or before acknowledging the claim in question. In our minds, filing a defence constitutes acknowledgement of a claim within the meaning of the provision."
46. The Court is further persuaded by the decision in Lorcan Byrne v Frontier Services Group East Africa Limited [2019] KEELRC 2157 (KLR), which reiterated that the right to seek a stay is lost the moment a defence is filed. By dint of the defence, the party subjects itself to the jurisdiction of the Court and cannot thereafter resile from that position.
47. The moment a Statement of Defence is filed, the Defendant has submitted to the jurisdiction of the Court. The Defendant has joined issues on the merits. The Defendant cannot thereafter retreat into the sanctuary of the arbitration clause. The statutory right under Section 6(1) is irrevocably extinguished by the active participation in the litigation process.
48. The Defendant blew hot and cold. The Defendant filed a defence, demanded strict proof, denied the execution of the agreement, and prayed for the dismissal of the suit. Five days later, the Defendant claimed the Court lacked jurisdiction to hear the very suit it had just defended.
49. The law does not permit such approbating and reprobating. A party cannot actively participate in the judicial arena, test the waters with a substantive pleading, and then invoke arbitration when it becomes convenient.
50. The Court finds that the Defendant waived its right to refer the matter to arbitration. The Defendant irrevocably submitted to the jurisdiction of this Court. The Preliminary Objection is legally bankrupt. It is hereby dismissed.
c) Whether a genuine dispute exist capable of being referred to arbitration, or has the debt been unequivocally admitted.
51. Even if the Defendant had successfully navigated the procedural minefield of Section 6(1) and had not waived its right to arbitrate, the Court must interrogate whether a referable dispute actually exists.
52. Section 6(1)(b) of the Arbitration Act commands the Court not to stay proceedings if it finds "that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration."
53. Arbitration is a mechanism for resolving genuine conflicts of fact or law. Where a party acknowledges liability, the element of conflict evaporates. An unfulfilled promise to pay an admitted commercial debt does not constitute a "dispute" within the contemplation of the Arbitration Act.
54. The Plaintiff has presented sufficient documentary evidence proving admission. Following the Plaintiff's demand letter on 16th January, 2024, the Defendant replied on 24th January, 2024. The Defendant wrote as follows:
"We acknowledge receipt of your letter dated 16th January 2024 on the subject matter and we deeply regret the inconvenience caused by the delay in payment. We request that you allow us to regularise the outstanding amount in our account by 15th of February 2024. The delay in settling the due invoices has been occasioned by delay in receipt of payment for services offered by some of our client."
55. The Defendant did not dispute the nineteen separate invoices. The Defendant did not challenge the quality or quantity of the Automotive Diesel Oil delivered. The Defendant did not contest the pricing. The Defendant merely pleaded for time, citing its own cash flow challenges.
56. Following a physical meeting, the Defendant authored a letter on 8th March, 2024, proposing a detailed payment plan. The plan laid out weekly instalments culminating in May 2024. The total recognized sum was Kshs. 40,812,015.00.
57. The final nail in the coffin of the Defendant’s denial is the Tripartite Settlement and Release Agreement. Under Clause 1.4, the Defendant irrevocably stated as follows:
"Roy Hauliers acknowledges and irrevocably confirms that the amounts that are due and owing to OEKE following the partial settlement as set out under Clause 1.1 hereinabove are Kenya Shillings Thirty Nine Million Seven Hundred and Eleven Thousand Four Hundred and Seventy One Cents Twenty Five (KES 39,711,471.25) and undertakes to settle the same as full and final settlement of Roy Hauliers debt obligation to OEKE under the Supply Agreement."
58. The jurisprudence is clear. In Clearspan Construction (A) Limited v East African Gas Co. Ltd [2008] KEHC 1015 (KLR), Justice Sergon held as follows:
"It is well settled that a defendant cannot succeed to obtain a stay by relying on an arbitration clause unless there is a dispute. I am convinced that a refusal to pay an outstanding debt cannot by any stretch of imagination amount to a dispute... First, an action can properly be brought in the High Court in respect of an admitted claim, even though the contract contains an arbitration clause. The claimant may apply for summary judgment... and the defendant cannot either fend off judgment or obtain a stay simply by relying on the arbitration clause for unless there is a dispute, there is nothing to be referred to arbitration.".
59. Similarly, in Nanchang Foreign Engineering Company (K) Limited v Easy Properties Kenya Limited [2014] KEHC 3846 (KLR), the Court held that alternative dispute resolution is not intended to cause delays or deny a party who is rightly entitled to payment. If there is no dispute, the Court automatically assumes jurisdiction once a suit is filed for its determination.
60. The Defendant’s failure to pay is a simple breach of contract, not a dispute over the interpretation, construction, or execution of the contract. The debt is crystallized. The debt is admitted. The debt is undisputed.
61. The Court finds that there is no dispute in fact capable of being referred to arbitration. The Defendant’s invocation of the arbitration clause is a transparent tactical manoeuvre designed to delay the realization of the Plaintiff's rightful dues.
d) Whether the Statement of Defence raises any bona fide triable issues, or ought it to be struck out and judgment entered for the Plaintiff on admission.
62. The Plaintiff seeks draconian reliefs. The Plaintiff prays for the striking out of the Statement of Defence under Order 2 Rule 15 and the entry of judgment on admission under Order 13 Rule 2 of the Civil Procedure Rules.
63. The Court exercises the power to strike out pleadings with immense caution. It is a jurisdiction reserved for the clearest of cases. The Court is mindful of the constitutional imperative to afford parties a fair hearing. The Court is guided by the seminal decision of Madan JA in DT Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR).
64. In that case, Madan JA stated as follows:
"The Court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court... As far as possible indeed, there should be no opinions expressed upon the application which may prejudice the fair trial of the action..."
65. However, this protective shield is not absolute. Where a defence is a sham, where it consists of bare denials, and where it raises no bona fide triable issues, the Court must wield the sword. Allowing a frivolous defence to proceed to a full trial is an affront to the overriding objective of the Civil Procedure Act. It clogs the judicial arteries. It keeps a deserving plaintiff away from the judgment seat.
66. In Kenya Commercial Bank v Suntra Investment Bank Ltd [2015] KEHC 8144 (KLR), Justice F. Gikonyo articulated the delicate balance in the following details:
"Although Courts have been loath to enter summary judgment as it is seen to be a draconian measure, but it should be entered in the clearest of case where:
a. The amount claimed has been specified;
b. The amount claimed has been ascertained or is capable of being ascertained;
c. The amount claimed is due and payable. See the decision in The Kenya Power and Lighting Company Limited vs. Alliance Media Kenya Limited [2014] eKLR and the Ecobank.
.... I have stated in past decisions, and I will state again, that the policy considerations of the above approach are that; 1) on one hand, a Plaintiff should not be kept away from his judgment by unscrupulous Defendant who has filed a defence which is a sham for the purpose only of temporizing on the case as long as possible; and 2) on the other hand, a defendant who has bona fide issue worth of trial should not be denied the opportunity to be heard on his defence on merit to enable the Court determine the real issues in controversy completely; that is serving substantive justice on consideration of all facts of the case..".
67. The Court turns its attention to the Defendant's Statement of Defence dated 30th May, 2025. The Defence is a masterclass in evasion. The Defendant relies entirely on general traverses.
68. The Defendant claims the amounts are "exaggerated and inaccurate." The Defendant claims the invoices "do not bear the Defendant's stamp." The Defendant claims the supply agreement is "undated and not fully executed.".
69. These averments ring spectacularly hollow against the weight of the documentary evidence. How can the amounts be exaggerated when the Defendant expressly admitted owing Kshs. 39,711,471.25 in a formally executed Tripartite Agreement? How can the agreement be unexecuted when the Defendant performed under it, received the fuel on nineteen separate occasions, and made partial payments to reduce the debt?
70. A general denial is insufficient in a commercial claim of this nature. Order 2 Rule 12 of the Civil Procedure Rules requires a Defendant to deal specifically with each allegation of fact. The Defence filed does not raise a single bona fide triable issue. It is a textbook example of a frivolous and vexatious pleading. It is an abuse of the court process. It is a sham.
71. The Court finds that the Statement of Defence meets the threshold for striking out under Order 2 Rule 15 of the Civil Procedure Rules.
72. With the Defence struck out, the Court considers the prayer for judgment on admission. Order 13 Rule 2 of the Civil Procedure Rules empowers the Court to enter judgment at any stage of a suit where admissions of fact have been made on the pleadings or otherwise.
73. The standard of proof for an admission was laid down in the celebrated case of Choitram & another v Nazari [1984] KECA 47 (KLR). The admission must be clear, unequivocal, and unambiguous. The Court must not be left guessing as to the intention of the maker.
74. In Choitram v Nazari, Madan JA (as he then was) expressed himself as follows:
" 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. ".
75. The admission in the present case leaves no room for doubt. The Defendant’s letters of 24th January, 2024, and 8th March, 2024, contain explicit, written acknowledgments of the debt. The payment plan drafted by the Defendant validates the specific figures claimed by the Plaintiff.
76. Most decisively, the Tripartite Settlement and Release Agreement is a formal, legally binding commercial instrument. Clause 1.4 contains an irrevocable confirmation that the sum of Kshs. 39,711,471.25 is due and owing to the Plaintiff. The Defendant undertook to settle the same as full and final settl
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2. The matter before the Court presents a classic clash between procedural manoeuvring and substantive commercial justice. The Court is confronted with two rival applications. The first is a Preliminary Objection raised by the Defendant. The second is an application for striking out the defence and entering judgment on admission, championed by the Plaintiff.
Background Facts
3. The dispute stems from a commercial relationship. The Plaintiff and the Defendant entered into a Petroleum Products Supply Agreement. The agreement is dated 29th June, 2022.
4. The Plaintiff agreed to supply the Defendant with its total requirements of Automotive Diesel Oil. The terms were explicit.
Clause 4.1 mandated that supplies would be on a Bankers Cheque Before Delivery (BCBD) basis, subject to the Plaintiff's credit policy. Payment was required within 45 days of the date of the statement.
Clause 4.3 contained a penal provision. It obligated the Defendant to pay interest on any overdue amounts. The interest was pegged at the prevailing Central Bank Rate (CBR) plus a margin of 4% per annum on a reducing balance.
5. The Plaintiff avers full compliance with the agreement. It supplied Automotive Diesel Oil to the Defendant on various dates between 9th October, 2023, and 28th December, 2023. The total value of the supplies amounted to Kshs. 41,214,558.02. The deliveries are evidenced by the schedule of invoices and production orders set out in the Plaint.
6. The Defendant defaulted on payment. By 16th January, 2024, the Defendant was indebted to the Plaintiff in the sum of Kshs. 40,897,577.75.
7. The Plaintiff issued a demand letter on 16th January, 2024. The Defendant responded in writing on 24th January, 2024. The Defendant acknowledged the delay and the inconvenience caused. The Defendant formally undertook to regularize the account by 15th February, 2024.
8. The Defendant failed to honour the undertaking. The Plaintiff issued subsequent demands on 19th February, 2024, and 28th February, 2024. The parties subsequently held a physical meeting on 8th March, 2024, at the Plaintiff's offices.
9. Following this meeting, the Defendant authored a letter acknowledging its total indebtedness at Kshs. 40,812,015.00. The Defendant proposed a structured payment plan culminating in May 2024, where it offered to pay the sum of Kshs. 40,812,015
10. The Defendant remitted a mere Kshs. 200,000.00 against this plan. The outstanding balance thereby reduced to Kshs. 40,612,014.75 as of 19th March, 2024.
11. The parties then executed a Tripartite Settlement and Release Agreement. The third party to this instrument was OLA Energy Uganda Limited. Under Clauses 1.1 and 1.4 of this Tripartite Agreement, the Defendant unequivocally admitted the debt. A sum of Kshs. 900,543.50 owed to the Defendant by OLA Energy Uganda Limited for transportation services was ceded directly to the Plaintiff. The remaining outstanding balance crystallized at Kshs. 39,711,471.25.
12. The Defendant failed to settle the remaining balance despite final demands. The Plaintiff instituted this suit by way of a Plaint on 17th April, 2025. The Plaintiff seeks judgment for the principal sum of Kshs. 39,711,471.25, accrued interest from 15th February, 2024 at CBR plus 4%, and costs.
13. The Defendant entered a Memorandum of Appearance on 19th May, 2025, through M/s. F.N. & Brian Advocates.
14. The Defendant subsequently filed a Statement of Defence on 30th May, 2025. The Defence contained general denials of the debt, averring that the amounts claimed were exaggerated, that the Plaintiff had not presented production orders, and that the invoices lacked the Defendant's stamp.
15. The Plaintiff countered the Defence with a Notice of Motion application to strike it out and enter judgment on admission. Contemporaneously, the Defendant mounted a Preliminary Objection challenging the Court's jurisdiction on the basis of an arbitration clause.
16. The Defendant filed a Notice of Preliminary Objection dated 5th June, 2025. The objection challenges the jurisdiction of this Court on the basis of an arbitration agreement.
17. The Notice cites Section 6 of the Civil Procedure Act, 2010. The Court observes that this statutory citation is fundamentally flawed, as the doctrine of stay pending arbitration is governed by the Arbitration Act. Nevertheless, the Court will look to the substance of the objection to serve the overriding objective of justice.
18. The Orders sought in the Notice of Preliminary Objection are reproduced as follows:
"TAKE NOTICE that at the hearing of this suit the Defendant will raise a Preliminary Objection on a point of law and shall oppose the Plaintiff's Suit on the following grounds that: -
1. This Honourable Court lacks jurisdiction to hear and determine this suit for the reason that the entire suit offends the doctrine of exhaustion as the agreement between parties contains an arbitration clause and which offence deprives the Court of the necessary Jurisdiction to entertain the suit.
2. It is therefore just expedient and in the interest of justice that the suit be struck out forthwith with Costs to the Defendants."
19. The Plaintiff, represented by M/s Iseme, Kamau & Maema Advocates, opposed the Preliminary Objection. The Plaintiff filed Grounds of Opposition dated 19th June, 2025. The Plaintiff contends that the Preliminary Objection is procedurally incompetent, substantively defective, and that the right to arbitrate has been waived.
20. The Grounds of Opposition are reproduced as follows:
"TAKE NOTICE that at the hearing of the Defendant's Preliminary Objection dated 5 June 2025, the Plaintiff will oppose the said Preliminary Objection on the following grounds:-
a) THAT the Preliminary Objection is incompetent, fatally defective and misconceived.
b) THAT the Defendant's Preliminary Objection contravenes the mandatory provisions of Section 6(1) of the Arbitration Act and is therefore incompetent.
c) THAT the Defendant has forfeited the right to apply for referral of the matter to arbitration.
d) THAT there is not in fact any dispute between the parties in this matter with regard to the matters agreed to be referred to arbitration.
e) THAT there is no proper basis laid for this Honourable Court to divest itself of jurisdiction in the matter.
f) THAT in the circumstances, the Preliminary Objection ought to be dismissed with costs to the Plaintiff."
21. Running parallel to the jurisdictional contest is the Plaintiff's bid for summary disposal of the suit. The Plaintiff filed a Notice of Motion application dated 30th June, 2025, supported by the Affidavit of Sharon Chepkorir Mwei.
22. The application is predicated on the assertion that the Defence is a sham, consisting of bare denials, and that the Defendant has unequivocally admitted the debt in writing.
23. The prayers sought in the application are reproduced as follows:
1. THAT this Honourable Court be pleased to strike out the Defendant/Respondent's Defence dated 30 May 2025 and to enter judgment in favour of the Plaintiff/Applicant as prayed in the Plaint.
2. THAT in the alternative, this Honourable Court be pleased to enter judgment on admission in favour of the Plaintiff/Applicant against the Defendant/Respondent in the sum of KES 39.711.471.25 as prayed in the Plaint.
3. THAT the costs of this application and the suit plus interests as prayed for in the Plaint be borne by the Defendant/Respondent.
24. The grounds sought in the application are reproduced as follows:
"a) The Defendant/Respondent ("the Respondent")'s Defence dated 30 May 2025 contains bare denials and does not raise any triable issue.
b) The Respondent has admitted owing the Plaintiff/Applicant ("the Applicant") the sum of KES 39,711,471.25.
c) The Defence does not disclose any defence in law.
d) The Defence is therefore frivolous and vexatious whose sole intention is to stymie an expeditious determination of the Applicant's suit.
e) To the extent the Respondent admits its indebtedness to the Applicant, the Applicant's Defence rings hollow and is in abuse of the court process.
f) That this is a fit and proper case for striking out of the Defence and entry of judgment in favour of the Applicant or judgment on admission."
Issues for Determination
25. The Court has considered the Application, the response, the Preliminary Objection, the Grounds of Opposition filed, the rival submissions and oral highlights by the Counsel for the parties. The Court frames four (4) issues for determination as follows:
a) Whether the Preliminary Objection raises pure points of law within the legally established parameters.
b) Whether the filing of a Statement of Defence by the Defendant has the legal effect of waiving its statutory right to refer the matter to arbitration.
c) Whether a genuine dispute exist capable of being referred to arbitration, or has the debt been unequivocally admitted.
d) Whether the Statement of Defence raises any bona fide triable issues, or ought it to be struck out and judgment entered for the Plaintiff on admission.
Analysis
26. This Court is called upon to consider the Notice of Preliminary Objection as well as the Application by the Plaintiff seeking to strike out the defence or have judgement entered on the basis of admissions. The Notice of Preliminary Objection was filed in response and as a shield to the Motion. Should it succeed, the Plaintiff’s suit will be struck out and terminate. Should it fail, the Court will then proceed to consider the Motion, which stands unopposed. This to the Court makes efficient use of the limited judicial time.
a) Whether the Preliminary Objection raises pure points of law within the legally established parameters.
27. The parameters of a preliminary objection are well settled in our jurisprudence. The locus classicus remains the East African Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, cited by the Defendant.
28. In that celebrated case, Law JA formulated the governing principle as follows:
"So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."
29. Sir Charles Newbold P added a vital caveat that Courts must heed:
"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."
30. The Defendant challenges the jurisdiction of this Court. Jurisdiction is undeniably a pure point of law. The immortal words of Nyarangi JA in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) remain the guiding star for all Courts:
"Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.".
31. However, the basis of the Defendant's jurisdictional challenge is the existence of an arbitration clause in the Petroleum Products Supply Agreement. The Defendant argues that this arbitral clause automatically ousts the jurisdiction of the High Court and offends the doctrine of exhaustion.
32. This proposition is legally unsound. An arbitration clause does not, ipso facto, oust the jurisdiction of the High Court. Jurisdiction is conferred by the Constitution and by statute. It cannot be ousted by a private commercial contract between parties.
33. The Arbitration Act (No. 4 of 1995) does not strip the Court of its inherent jurisdiction over civil disputes. Rather, it imposes a statutory obligation on the Court to stay its proceedings and refer the parties to arbitration, provided specific procedural thresholds and timelines are strictly met by the Applicant.
34. This Court finds fortification in the Court of Appeal's holding in Mt Kenya University v Step Up Holding (K) Ltd [2018] eKLR. The Appellate Court clarified that an arbitration clause provides a mechanism for dispute resolution, but it operates as a contractual bar to litigation only when properly invoked under the strict confines of Section 6 of the Arbitration Act.
35. Furthermore, the determination of whether a party has waived its right to arbitrate by taking steps in the proceedings, and whether a genuine dispute exists, are mixed questions of fact and law. They require the Court to examine the sequence of pleadings. They require an interrogation of pre-suit correspondence. These are not pure points of law. They offend the strictures of Mukisa Biscuit.
36. The procedural vehicle chosen by the Defendant is also fundamentally defective. A party seeking to stay proceedings under Section 6 of the Arbitration Act must file a formal application under that specific statute. This is typically done via a Notice of Motion supported by an affidavit detailing the existence of the agreement, the promptness of the application, and the presence of a referable dispute.
37. A Preliminary Objection is an improper mechanism for seeking a stay of proceedings pending arbitration. The Court agrees with the holding cited by the Plaintiff in Sophia Wanjiku Kimani & 2 others v Mraradia Gatuya Rumwe & 4 others [2014] KEHC 3797 (KLR), where the Court correctly dismissed a preliminary objection used as a proxy for a stay application. The factual matrix surrounding the invocation of an arbitration clause must be sworn to and tested.
38. The Defendant's Preliminary Objection is technically flawed. It is procedurally inept. However, because Courts must prioritize substantive justice over procedural missteps, the Court will proceed to interrogate the core of the Defendant's argument regarding the arbitration clause and the effect of the filed Defence.
b) Whether the filing of a Statement of Defence by the Defendant has the legal effect of waiving its statutory right to refer the matter to arbitration.
39. The interplay between party autonomy (the freedom to contractually agree to arbitrate) and the jurisdiction of the Court is strictly governed by Section 6(1) of the Arbitration Act. The provision is peremptory. It provides a narrow, time-bound window for a party to invoke an arbitration clause.
40. Section 6(1) of the Arbitration Act states as follows:
"(1) A Court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—
(a) that the arbitration agreement is null and void, inoperative or incapable of being performed; or
(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration."
41. The statutory timeline is unforgiving. The application for stay must be made "not later than the time when that party enters appearance or otherwise acknowledges the claim."
42. The chronology of pleadings in the present suit is a matter of Court record and is undisputed. The Plaintiff filed the Plaint on 17th April, 2025. The Defendant entered an appearance on 19th May, 2025. The Defendant then filed a substantive Statement of Defence on 30th May, 2025. The Notice of Preliminary Objection seeking to enforce the arbitration clause was filed on afterthought on 5th June, 2025.
43. The Defendant took a substantive step in the proceedings by filing a Statement of Defence, traversing the Plaintiff's claims on the merits, and praying for the suit's dismissal with costs. Did this act constitute a waiver of the right to arbitrate? The jurisprudence of the Appellate Courts is emphatic and uniform.
44. In Corporate Insurance Company v Loise Wanjiru Wachira [1996] KECA 70 (KLR), the Court of Appeal held in:
"While we agree with the proposition that a Scott v Avery arbitration clause can provide a defence to a claim, we cannot accept the submission that the party relying on it can circumvent the statutory requirement to apply for a stay of proceedings. In the present case, if the appellant wished to take the benefit of the clause, it was obliged to apply for a stay after entering appearance and before delivering any pleading. By filing a defence the appellant lost its right to rely on the clause."
45. The legal landscape was further clarified by the Court of Appeal in Eunice Soko Mlagui v Suresh Parmar & 4 others [2017] KECA 736 (KLR). The Court examined the amendments to Section 6(1) and stated unequivocally:
"The main difference between the position before and after 2009 is that before 2009, a party was required to apply for referral of the dispute to arbitration at the time of entering appearance or before filing any pleadings or taking any other step in the proceeding. After 2009, the provision still requires a party to apply for referral of the dispute to arbitration at the time of entering appearance or before acknowledging the claim in question. In our minds, filing a defence constitutes acknowledgement of a claim within the meaning of the provision."
46. The Court is further persuaded by the decision in Lorcan Byrne v Frontier Services Group East Africa Limited [2019] KEELRC 2157 (KLR), which reiterated that the right to seek a stay is lost the moment a defence is filed. By dint of the defence, the party subjects itself to the jurisdiction of the Court and cannot thereafter resile from that position.
47. The moment a Statement of Defence is filed, the Defendant has submitted to the jurisdiction of the Court. The Defendant has joined issues on the merits. The Defendant cannot thereafter retreat into the sanctuary of the arbitration clause. The statutory right under Section 6(1) is irrevocably extinguished by the active participation in the litigation process.
48. The Defendant blew hot and cold. The Defendant filed a defence, demanded strict proof, denied the execution of the agreement, and prayed for the dismissal of the suit. Five days later, the Defendant claimed the Court lacked jurisdiction to hear the very suit it had just defended.
49. The law does not permit such approbating and reprobating. A party cannot actively participate in the judicial arena, test the waters with a substantive pleading, and then invoke arbitration when it becomes convenient.
50. The Court finds that the Defendant waived its right to refer the matter to arbitration. The Defendant irrevocably submitted to the jurisdiction of this Court. The Preliminary Objection is legally bankrupt. It is hereby dismissed.
c) Whether a genuine dispute exist capable of being referred to arbitration, or has the debt been unequivocally admitted.
51. Even if the Defendant had successfully navigated the procedural minefield of Section 6(1) and had not waived its right to arbitrate, the Court must interrogate whether a referable dispute actually exists.
52. Section 6(1)(b) of the Arbitration Act commands the Court not to stay proceedings if it finds "that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration."
53. Arbitration is a mechanism for resolving genuine conflicts of fact or law. Where a party acknowledges liability, the element of conflict evaporates. An unfulfilled promise to pay an admitted commercial debt does not constitute a "dispute" within the contemplation of the Arbitration Act.
54. The Plaintiff has presented sufficient documentary evidence proving admission. Following the Plaintiff's demand letter on 16th January, 2024, the Defendant replied on 24th January, 2024. The Defendant wrote as follows:
"We acknowledge receipt of your letter dated 16th January 2024 on the subject matter and we deeply regret the inconvenience caused by the delay in payment. We request that you allow us to regularise the outstanding amount in our account by 15th of February 2024. The delay in settling the due invoices has been occasioned by delay in receipt of payment for services offered by some of our client."
55. The Defendant did not dispute the nineteen separate invoices. The Defendant did not challenge the quality or quantity of the Automotive Diesel Oil delivered. The Defendant did not contest the pricing. The Defendant merely pleaded for time, citing its own cash flow challenges.
56. Following a physical meeting, the Defendant authored a letter on 8th March, 2024, proposing a detailed payment plan. The plan laid out weekly instalments culminating in May 2024. The total recognized sum was Kshs. 40,812,015.00.
57. The final nail in the coffin of the Defendant’s denial is the Tripartite Settlement and Release Agreement. Under Clause 1.4, the Defendant irrevocably stated as follows:
"Roy Hauliers acknowledges and irrevocably confirms that the amounts that are due and owing to OEKE following the partial settlement as set out under Clause 1.1 hereinabove are Kenya Shillings Thirty Nine Million Seven Hundred and Eleven Thousand Four Hundred and Seventy One Cents Twenty Five (KES 39,711,471.25) and undertakes to settle the same as full and final settlement of Roy Hauliers debt obligation to OEKE under the Supply Agreement."
58. The jurisprudence is clear. In Clearspan Construction (A) Limited v East African Gas Co. Ltd [2008] KEHC 1015 (KLR), Justice Sergon held as follows:
"It is well settled that a defendant cannot succeed to obtain a stay by relying on an arbitration clause unless there is a dispute. I am convinced that a refusal to pay an outstanding debt cannot by any stretch of imagination amount to a dispute... First, an action can properly be brought in the High Court in respect of an admitted claim, even though the contract contains an arbitration clause. The claimant may apply for summary judgment... and the defendant cannot either fend off judgment or obtain a stay simply by relying on the arbitration clause for unless there is a dispute, there is nothing to be referred to arbitration.".
59. Similarly, in Nanchang Foreign Engineering Company (K) Limited v Easy Properties Kenya Limited [2014] KEHC 3846 (KLR), the Court held that alternative dispute resolution is not intended to cause delays or deny a party who is rightly entitled to payment. If there is no dispute, the Court automatically assumes jurisdiction once a suit is filed for its determination.
60. The Defendant’s failure to pay is a simple breach of contract, not a dispute over the interpretation, construction, or execution of the contract. The debt is crystallized. The debt is admitted. The debt is undisputed.
61. The Court finds that there is no dispute in fact capable of being referred to arbitration. The Defendant’s invocation of the arbitration clause is a transparent tactical manoeuvre designed to delay the realization of the Plaintiff's rightful dues.
d) Whether the Statement of Defence raises any bona fide triable issues, or ought it to be struck out and judgment entered for the Plaintiff on admission.
62. The Plaintiff seeks draconian reliefs. The Plaintiff prays for the striking out of the Statement of Defence under Order 2 Rule 15 and the entry of judgment on admission under Order 13 Rule 2 of the Civil Procedure Rules.
63. The Court exercises the power to strike out pleadings with immense caution. It is a jurisdiction reserved for the clearest of cases. The Court is mindful of the constitutional imperative to afford parties a fair hearing. The Court is guided by the seminal decision of Madan JA in DT Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR).
64. In that case, Madan JA stated as follows:
"The Court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court... As far as possible indeed, there should be no opinions expressed upon the application which may prejudice the fair trial of the action..."
65. However, this protective shield is not absolute. Where a defence is a sham, where it consists of bare denials, and where it raises no bona fide triable issues, the Court must wield the sword. Allowing a frivolous defence to proceed to a full trial is an affront to the overriding objective of the Civil Procedure Act. It clogs the judicial arteries. It keeps a deserving plaintiff away from the judgment seat.
66. In Kenya Commercial Bank v Suntra Investment Bank Ltd [2015] KEHC 8144 (KLR), Justice F. Gikonyo articulated the delicate balance in the following details:
"Although Courts have been loath to enter summary judgment as it is seen to be a draconian measure, but it should be entered in the clearest of case where:
a. The amount claimed has been specified;
b. The amount claimed has been ascertained or is capable of being ascertained;
c. The amount claimed is due and payable. See the decision in The Kenya Power and Lighting Company Limited vs. Alliance Media Kenya Limited [2014] eKLR and the Ecobank.
.... I have stated in past decisions, and I will state again, that the policy considerations of the above approach are that; 1) on one hand, a Plaintiff should not be kept away from his judgment by unscrupulous Defendant who has filed a defence which is a sham for the purpose only of temporizing on the case as long as possible; and 2) on the other hand, a defendant who has bona fide issue worth of trial should not be denied the opportunity to be heard on his defence on merit to enable the Court determine the real issues in controversy completely; that is serving substantive justice on consideration of all facts of the case..".
67. The Court turns its attention to the Defendant's Statement of Defence dated 30th May, 2025. The Defence is a masterclass in evasion. The Defendant relies entirely on general traverses.
68. The Defendant claims the amounts are "exaggerated and inaccurate." The Defendant claims the invoices "do not bear the Defendant's stamp." The Defendant claims the supply agreement is "undated and not fully executed.".
69. These averments ring spectacularly hollow against the weight of the documentary evidence. How can the amounts be exaggerated when the Defendant expressly admitted owing Kshs. 39,711,471.25 in a formally executed Tripartite Agreement? How can the agreement be unexecuted when the Defendant performed under it, received the fuel on nineteen separate occasions, and made partial payments to reduce the debt?
70. A general denial is insufficient in a commercial claim of this nature. Order 2 Rule 12 of the Civil Procedure Rules requires a Defendant to deal specifically with each allegation of fact. The Defence filed does not raise a single bona fide triable issue. It is a textbook example of a frivolous and vexatious pleading. It is an abuse of the court process. It is a sham.
71. The Court finds that the Statement of Defence meets the threshold for striking out under Order 2 Rule 15 of the Civil Procedure Rules.
72. With the Defence struck out, the Court considers the prayer for judgment on admission. Order 13 Rule 2 of the Civil Procedure Rules empowers the Court to enter judgment at any stage of a suit where admissions of fact have been made on the pleadings or otherwise.
73. The standard of proof for an admission was laid down in the celebrated case of Choitram & another v Nazari [1984] KECA 47 (KLR). The admission must be clear, unequivocal, and unambiguous. The Court must not be left guessing as to the intention of the maker.
74. In Choitram v Nazari, Madan JA (as he then was) expressed himself as follows:
" 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. ".
75. The admission in the present case leaves no room for doubt. The Defendant’s letters of 24th January, 2024, and 8th March, 2024, contain explicit, written acknowledgments of the debt. The payment plan drafted by the Defendant validates the specific figures claimed by the Plaintiff.
76. Most decisively, the Tripartite Settlement and Release Agreement is a formal, legally binding commercial instrument. Clause 1.4 contains an irrevocable confirmation that the sum of Kshs. 39,711,471.25 is due and owing to the Plaintiff. The Defendant undertook to settle the same as full and final settl
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