1. The applicant has moved this court by way of a notice of motion application under certificate of urgency seeking;
i. Spent
ii. Spent
iii. Pending the hearing and determination of this suit, this Honourable Court be pleased to grant an Order of temporary injunction directed at the Defendant, its agents, assigns, employees, disclosed and undisclosed principals, or any other person to preserve and in doing so not to remove from the Jurisdiction of this court; its moveable and immoveable assets and to withdraw from, utilize, encumber the funds held in its Bank accounts.
iv. The Court be pleased enter Judgment on admission in favour of the Plaintiff for the sum of KES 64,998,630.66 based on the Debt Settlement Agreement as at 2nd August 2022.
2. The application is anchored under sections 1A, 1B, and 3A of the Civil Procedure Act, Order 13 Rule 2; Order 39 Rule 1 and Order 40 of the Civil Procedure Rules. It is supported by the affidavit of Martha Wanjiru sworn on 13th January 2025 and on the grounds on the face of the application.
3. The applicant avers that that on diverse dates between 3rd November 2021 and 2nd August 2022, and thereafter between 24th April 2023 and 14th November 2023 it supplied the defendant with bitumen worth Kshs 168,648,085.70 on the understanding that the defendant would settle the invoices within 30 days of such receipt. That the contractual obligation was formalized in the Supply Agreement dated 25th August 2022 and the Deed of) Settlement Agreement dated 16th August 2022; the defendant has made staggered payments leaving a balance of Kshs 90,027,214.65 which the defendant has been adamant to pay; the applicant is apprehensive that the defendant is in the process of disposing off its property and withdrawing and/ or transferring all the funds in its Bank Account from the reach of the Plaintiff, and its directors are about to leave the local limits of the jurisdiction of the Court in order to make it impossible for recovery of the debt even by way of execution if the Plaintiff’s claim is successful.
4. The respondent, vide a replying affidavit sworn on 27th January 2025 by Andrew Sirkoi Iraru Amayi, deponed that it entered into an arrangement for the supply of construction material with the applicant to enable it fulfil its obligations under a contract for the construction of roads in Bomet and Machakos Counties. He confirmed receipt of road construction material worth
Ksh 168,648,085.7 over time. Further, that they had endeavored to settle all the invoices as and when they fell due. However, this proved challenging with the delays in disbursements from their main client/ employer, and a few other unrelated cash-flow issues facing the Company.
5. The defendant contended that despite the challenges, they paid up a cumulative of Kshs 78,620,871, leaving a balance of Kshs 90,027,214.65 which they have taken substantive steps to repay. It was also deponed that they formalized their relationship with the Plaintiff by signing the Supply Agreement and the Deed of Settlement dated 25 August 2022 and 16 August 2022 respectively.
6. They urged the Court not to freeze any of its assets or arrest any of the directors as they were committed to fulfilling the obligations under the supply arrangement, and the debt settlement agreement.
7. The application was heard by way of submissions. The applicant’s submissions are dated 6th February 2025 while the respondent’s are dated 10th February 2025.
Applicant’s Submissions
8. The Applicant set out the background of the dispute as enumerated in the earlier paragraphs of this ruling. It submitted that the Defendant had admitted the outstanding arrears owed to it amounting to Kshs 90,027,214.65 and prayed that judgment on admission be entered in its favour in line with the provisions of Order 13 Rule 2 of the Civil Procedure Rules. To support this argument the applicant relied upon the case of Choitram v. Nazari [1984] eKLR which held that admissions, whether express or implied, are sufficient grounds for entering judgment without needing further evidence.
9. Based on the admission made by the defendant, the applicant submitted that the defendant had no defence to the claim as the admissions conclusively established the plaintiff’s case.
10. The Plaintiff prayed for judgment on admission against the Defendant jointly and severally for the sum of KSh 90,027,214.65, costs of the suit and interest from the date of default being 25th August 2022 until payment in full.
Respondent’s Submissions
11. The defendant set out the issue for determination as whether the court should excuse it from an award of interest and allow the defendants to pay by instalments. The defendant acknowledged the debt and submitted that it faced financial constraints. It urged the court to exercise discretion to excuse the defendant from an award of interest and allow it to settle the debt by way of installments. That it is organizing its affairs to repay the debt in good time by recouping from its assets. The defendant referred to Section 26 (1) of the Civil Procedure Act as well as the case of Kenya Posts & Telecommunications Corporation v Paul Gachanga Ndarua [2001] KECA 121 (KLR) where the court of appeal held thus:
“It is quite clear that the court has jurisdiction to order interest to be paid both for the period before the suit, and after. The jurisdiction is discretionary and as we stated earlier exercise of judicial discretion requires material. …”
12. Reference was also made to Order 21 Rule 12 of the Civil procedure Rules. The defendant submitted that, it has been making fair repayment of the debt, and has undertaken to arrange a fair payment of the proportion of the debt. Reliance was made to the case of Lavington Security Limited vs Nairobi City Water & Sewerage Company Limited [2014] eKLR, where the court held that in considering the request to defray the decree by way of installments, the Court considers the circumstances of the case, conduct of the parties and the Applicant’s bona fides to pay a fair proportion of the debt.
13. It was their final contention that the defendant has conducted itself diligently, acknowledged the debt, shown proof of previous payment, and undertaken to make necessary arrangements to pay the debt.
Analysis and determination
14. I have considered the Application, the affidavits and the submissions of both parties on record and find the issues arising for determination is whether the applicant have made a case for the orders sought.
15. This application seeks first, that this court grants a temporary injunction to preserve and not to remove from the jurisdiction of this court the defendant’s moveable and immoveable assets and/or to withdraw from, utilize, encumber the funds held in its Bank accounts and secondly, that Judgment on admission be entered in favour of the Plaintiff for the sum of Ksh 90,027,214.65.
16. Notably, in its submissions the applicant did not submit on the issue of grant of injunction but instead focused its submission on the request for entry of judgment on admission. On the other hand, the respondent urges the court not to freeze any of its assets or arrest any of the directors as they are committed to fulfilling the obligations under the supply arrangement and the debt settlement agreement. It further sought waiver on interest and that it be allowed to repay the outstanding debt in installments.
17. This court acknowledges that the grant of an injunction in these circumstances is at the discretion of the court and should be granted with caution only when deemed appropriately and necessary. Additionally, it should not be used to disrupt the operation of business or to serve as collateral for the satisfaction of judgment.
18. In the case of Fourie vs Le Roux & Ors [2007] UKHL 1 at Para 2, [2007] 1All ER 1087, Lord Bingham declared thus:-
“Mareva (or freezing) injunctions were from the very beginning, and continue to be, granted for an important but limited purpose: to prevent a Defendant dissipating his assets with the intention or effect of frustrating enforcement of a prospective judgment. They are not a proprietary remedy. They are not granted to give a claimant advance security for his claim, although they may have that effect. They are not an end in themselves. They are a supplementary remedy, granted to protect the efficacy of court proceedings, domestic or foreign.”
19. In this instance, I do note that the applicant has not demonstrated or shown any assets belonging to the defendant. It has also not produced any evidence to demonstrate a real and actual threat that any assets will be disposed or that the disposal of those assets are intended to defeat any judgment that would be entered in his favour. He has also not produced any evidence to substantiate the claims that the defendant’s directors are planning to leave the jurisdiction of the court.
20. This court finds that the applicant’s claims are speculative, and the request for a freezing order is founded on apprehensions not supported by evidence. Apart from seeking the prayer, the applicant has failed to provide proof to substantiate the claims. Consequently, I find that criteria for granting such an order have not been satisfied and I decline to grant the prayer. Besides, the applicant has not disputed that the respondent has continued making payments towards settling the outstanding debt. On its part, the respondent, despite acknowledging the financial constraints, has reiterated its commitment to make payments.
21. With regard to the second prayer for entry of judgment on admission, Order 13 Rule 2 of the Civil Procedure Rules provides
“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 admissions 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.”
22. The law on entry of judgment under Order 13 rule 2 is aimed at expediting the resolution of cases where a party admits to the claims against them. In Choitram v. Nazari [1984] eKLR Madan, JA (as he then was) held as follows;
“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…”
23. In its submissions, the applicant prays for judgment on admission for the sum of Ksh 90,027,214.65. This is the amount outstanding after the respondent made staggered payments, as averred in the affidavit by Martha Wanjiru in support of the application.
24. In this instance, the defendant through the replying affidavit sworn on its behalf plainly admitted to owing the plaintiff a cumulative sum of Ksh 90,027,214.64 and states that he is committed to fulfilling its financial obligation to the plaintiff. The respondent seeks to be allowed to pay the same in instalments
25. Notably, while the defendant admits to owing Kshs 90,027,214.64, the plaintiff in its application seeks entry of judgment for Kshs 64,998,630.66 based on the Debt Settlement Agreement as at 2nd August 2022. Being a liquidated claim more so founded on a contractual engagement between the parties, the same has to not only be pleaded but also proved. In the circumstance therefore and guided by the prayer sought in the application, I do enter judgment in favour of the plaintiff for the sum of Kshs 64,998,630.66 as prayed. This being a dispute arising out of a contract, the Court will not seek to rewrite the same at this juncture. The parties are at liberty to discuss a reasonable and workable payment plan as it will be premature for the court to address itself on any possible execution process. The applicant shall be awarded the costs of this application.
Orders accordingly
Delivered, Dated and Signed this 29th day of April 2025