1. The matter before the Court presents a classic intersection of procedural technicality and substantive justice. The Plaintiffs seek the immediate entry of judgment. They rely on documentary admissions of debt. The Defendant mounts a spirited resistance. The Defendant invokes the doctrines of limitation of actions and evidentiary privilege.
Background Facts
2. The 1st and 2nd Plaintiffs are limited liability companies. They manufacture and sell steel products. The Defendant is also a limited liability company. It purchases steel for its commercial operations.
3. On diverse dates between November 2017 and May 2021, the Plaintiffs sold and supplied steel to the Defendant on credit. The agreed credit period was 45 days. The Defendant received the goods. Invoices and delivery notes were duly acknowledged.
4. The payment plans never materialized. The Plaintiffs approached the Court. The Defendant filed a Statement of Defence dated 24th January, 2024. The Defendant denied the claim in its entirety. It asserted that the claim was time-barred.
5. The Plaintiffs filed a Notice of Motion application dated 27th May, 2024. The application is anchored on Order 36 Rule 1 of the Civil Procedure Rules, 2010, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and the inherent jurisdiction of the Court.
6. The Plaintiffs pray for the following orders:
1. THAT Summary Judgement be and is hereby entered in favour of the Plaintiffs against the Defendant as prayed in the plaint on the Defendant's own admission of indebtedness to the Plaintiff.
2. THAT costs of this application and of this suit be awarded to the Plaintiffs.
7. The application is supported by the affidavit of Niraj Shah, the Chief Financial Officer of the Plaintiffs. He annexes the returned cheques and the correspondence exchanged between the parties.
8. The Defendant opposes the application. It relies on a Replying Affidavit sworn by Kush Patel, a director of the Defendant, dated 22nd October, 2025.
Issues for Determination
9. The Court has carefully considered the application, the response, the rival submissions as well as the oral highlights by Counsel for the parties. The Court frames the following issues for determination:
(a) Whether an application for summary judgment is barred merely because a Statement of Defence has been filed.
(b) Whether the Plaintiffs' claim is caught by the law of limitation.
(c) What is the legal effect of the "without prejudice" correspondence?
(d) Whether there are any genuine triable issues raised in the Statement of Defence, or whether the claim is admitted entitling the Plaintiffs to judgment.
Analysis
10. An application of this nature calls for exercise of the Court’s discretion.
11. The Application is anchored under the provisions of Order 36 Rule 1 of the Civil Procedure Rules which states as follows:
“Summary judgment [Order 36, rule 1.]
(1) In all suits where a plaintiff seeks judgment for—
(a) a liquidated demand with or without interest; or
(b) the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of
covenant, or against persons claiming under such tenant or against a trespasser,
where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.
(2) The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any
amount claimed.
(3) Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.”
(a) Whether an application for summary judgment is barred merely because a Statement of Defence has been filed.
12. The Defendant submits that an application under Order 36 Rule 1 automatically collapses if a Statement of Defence is already on the record. This proposition represents a fundamental misapprehension of the law.
13. Order 36 Rule 1 of the Civil Procedure Rules, 2010, provides for summary judgment. The overriding purpose of summary procedure is to enable a Plaintiff with a clear, liquidated claim to obtain swift justice. It is designed to protect Plaintiffs from the delaying tactics of Defendants who have no genuine answer to a claim. In Quaker Ventures Limited v Equity Bank Limited [2015] KEHC 8321 (KLR) Gikonyo J. made the following sentiments which this Court finds agreeable:
“My view is that, it will be dangerous to prescribe as a rule of law that a belated defence should make a properly filed application under Order 36 of the Civil Procedure Rules to be incompetent or barren. I think in such scenario, the court should examine the belated defence within the framework of Order 36 to discern whether it raises any bona fide triable issue worth trial. Indeed, Order 36 rule 2 of the Civil Procedure Rules envisions a situation where a belated defence is filed after the application for summary judgment has been made. Such defence should be treated within rule 2 and be seen only as a means to…show…that he should have leave to defend the suit.”
14. To this Court, it is trite law that a Plaintiff can apply for summary judgment even after a defence has been filed. The critical test under Order 36 is not whether a defence exists on the physical Court file. The test is whether that defence raises a bona fide triable issue. A sham defence, filed merely to delay the inevitable, will not save a defendant from summary judgment.
(b) Whether the Plaintiffs' claim is caught by the law of limitation.
15. The Defendant pleads at paragraph 10 of its Defence that the claim is time-barred. The Defendant argues that the cause of action arose in November, 2017.
16. Under Section 4(1)(a) of the Limitation of Actions Act (Cap 22) Laws of Kenya, an action founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. The Plaint was filed on 30th November, 2023. At first glance, a strict arithmetic calculation from November 2017 yields exactly six years.
17. However, the law of limitation is not blind to the conduct of the parties. Section 23(3) of the Limitation of Actions Act provides a statutory reset mechanism. It states:
"Where a right of action has accrued to recover a debt or other liquidated pecuniary claim... and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment."
18. The Court of Appeal provided binding clarity on this statutory provision in Shire v Thabiti Finance Co Ltd [2002] 1 EA 279. The Court held that an acknowledgment or part payment extends the limitation period. It revives an action that would otherwise be statute-barred. The fresh accrual begins from the exact date of the acknowledgment or part payment.
19. An examination of the evidentiary record reveals significant activity. The Defendant made part payments via two cheques dated 4th March, 2019. The cheques bounced the following day. The issuance of these cheques constituted an acknowledgment of the debt, resetting the limitation clock to March 2019.
20. Furthermore, the Defendant's advocates expressly acknowledged the debt in their letter dated 28th September, 2023. The Defendant itself acknowledged the full debt of Kshs. 33,027,564.68 in its subsequent letter of 3rd November, 2023.
21. These written acknowledgments triggered Section 23(3) of the Limitation of Actions Act. Time began to run afresh in late 2023. The suit filed in November 2023 is safely within the statutory window. The limitation defence is legally untenable. It is struck out.
(c) What is the legal effect of the "without prejudice" correspondence?
22. The Defendant mounts its most aggressive defence on the evidentiary shield of "without prejudice". The Defendant argues that the letter dated 28th September, 2023, was expressly marked "without prejudice". The Defendant contends it is privileged and must be expunged from the record.
23. Section 23(1) of the Evidence Act (Cap 80) Laws of Kenya codifies this common law privilege. It provides that in civil cases; no admission may be proved if made upon an express condition that evidence of it is not to be given. The underlying public policy is sound. Litigants must be encouraged to settle disputes out of Court. They must be free to lay their cards on the table without fear that their compromises will be weaponized against them.
24. However, the "without prejudice" privilege is not an absolute cloak of invisibility. It is not a magical incantation that immunizes a debtor from liability.
25. The Defendant relies on Guardian Bank Limited v Jambo Biscuits Kenya Limited [2014] KEHC 1796 (KLR). An objective reading of this authority fatally wounds the Defendant’s case. In Guardian Bank, Gikonyo J. correctly articulated the parameters of the rule. He held that for a communication to receive protection, it must be made during an amicable negotiation of a dispute with the intention of yielding a compromise.
26. The Court of Appeal and the High Court are in complete harmony on this point. Where there is no dispute on liability, the rule does not apply. In Geoloy Investments Ltd v Behal t/a Krishan Behal & Sons [2002] KEHC 1148 (KLR), Mwera J. held that the rule is strictly confined to cases where there is a genuine dispute or negotiation, and suggestions are made for settlement.
27. In Guardian Bank, Gikonyo J. admitted a letter that was written to propose a settlement figure, holding:
"The said letter does not contain any denial whatsoever of the plaintiff's claim... Although the letter refers to some meeting... there is nothing which shows the correspondence was intended to be privileged as it encapsulates the entire claim as admitted by the defendant to be due to the Plaintiff... The letter is an admission that the defendant owes a balance of Kshs. 10,000,000 and is not the type which is protected under the cover and practice of 'without prejudice'."
28. Furthermore, "without prejudice" communications are admissible for specific statutory purposes. They are admissible to prove an acknowledgment of debt for the purposes of defeating the Limitation of Actions Act.
29. Let us examine the letters in question. The letter of 28th September, 2023, from JP Advocates explicitly states:
“Tononoka Steel Mills Ltd
Airport North Road, Embakasi
P.O. Box 44689-00100
Nairobi
Advance Copy via Email to: tononoka@tononokastecls.com
"Without prejudice"
Attention: Navin Savla
Dear Sirs,
RE ACKNOWLEDGEMENT OF DEBT AND PAYMENT PROPOSAL
We refer to the above matter.
We have been retained by Aquva Agencies Ltd (our Client) with instructions to address you in terms hereunder:
That our Client acknowledges owing you the consolidated total sum of Kshs. 31, 463,183/= (the Debt) as of today's
date. In that regard, our Client proposes to repay the Debt in the following manner;
On or before the 9th October 2023 Kshs. 15,000,000/=
On or before the 9th November 2023 Kshs. 8,000,000/= and
The balance of Kshs. 8, 463,183 on or before 25th November 2023
Upon full payment in respect of the Debt. parties will be at liberty to compute and agree on interest payable (if
any) and the same will be payable as soon as the ongoing case pitting our Client against Tumaz Tumaz
Enterprises Ltd is concluded.
Kindly signify acceptance of this offer to enable our Client to proceed to remit the payments.
We look forward to hearing from you.”
30. This letter expressly, clearly and unequivocally admits the debt and liability for the sum of Kshs. 31, 463,183/=. It proposes a payment schedule. There is no dispute raised regarding liability. There is no dispute regarding the delivery or quality of the steel. There is no compromise being offered on a contested issue. It is a naked admission of debt, wrapped in a plea for time. Marking such a letter "without prejudice" is a blatant abuse of the privilege.
31. Even if this Court were to expunge the 28th September, 2023 letter, the Defendant’s fate remains sealed. The subsequent letter dated 3rd November, 2023, written directly by Aquva Agencies, reads:
"Re: Payment Plan - Kshs. 33,027,564.68... We are requesting for a meeting on Wednesday 8th November at Eleven o'clock to negotiate a payment plan."
32. This letter is not marked "without prejudice". It refers to the exact quantum pleaded in the Plaint. It seeks a payment plan. It is a clear, unequivocal, and unshielded admission of the debt. The Defendant's reliance on the "without prejudice" rule is entirely misplaced. The correspondence is fully admissible.
(d) Whether there are any genuine triable issues raised in the Statement of Defence, or whether the claim is admitted entitling the Plaintiffs to judgment.
33. We now arrive at the core of the application. Are there triable issues? Is the debt admitted?
34. Order 13 Rule 2 of the Civil Procedure Rules, 2010, provides for judgment on admission. The rule dictates that where admissions of fact have been made, either on the pleadings or otherwise, any party may apply for judgment. The Court has the discretion to grant such judgment without waiting for the determination of any other question.
35. The jurisprudential standard for an admission under Order 13 Rule 2 is exceptionally high. The admission must be clear and unequivocal. It must not require copious interpretations to discern.
36. In Cassam & another v Sachania & another [1982] KECA 1 (KLR), the Court of Appeal held that the discretion to grant judgment on admission 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. There is no case conflict between the High Court and the appellate Courts on this principle.
37. Madan JA (as he then was) eloquently captured this standard in Choitram & another v Nazari [1984] KECA 47 (KLR). He stated:
"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."
38. Is the admission in this case as plain as a pikestaff? The Court answers in the affirmative. The Defendant's letter of 3rd November, 2023, admits a debt of Kshs. 33,027,564.68. The amount matches the Plaint to the final decimal point. The Defendant merely asked for time to pay.
39. In its Statement of Defence, the Defendant issues blanket denials. It denies purchasing steel. It denies receiving deliveries. Yet, it offers no explanation for its own correspondence. It offers no explanation for the bounced cheques issued to the Plaintiffs in 2019.
40. A defence consisting of general denials, which is directly contradicted by the Defendant's own contemporaneous documents, is a classic sham defence. It raises no bona fide triable issues. Allowing this matter to proceed to a full trial would be a travesty of justice.
41. Such a course of action would offend the overriding objective of this Court. Sections 1A and 1B of the Civil Procedure Act (Cap 21) mandate the just, expeditious, proportionate, and affordable resolution of civil disputes. The Court has a statutory duty to prevent the abuse of its processes through unnecessary delays.
42. It is undesirable to litigate when there is no genuine question of fact or law to be tried. The Plaintiffs have established a liquidated demand. The Defendant has admitted the liability. The legal hurdles raised by the Defendant—limitation and privilege—have been systematically dismantled. The path to judgment is clear.
43. The application dated 27th May, 2024, is overwhelmingly meritorious. The Defendant's Statement of Defence is a mere sham, devoid of any triable issues. Furthermore, the Defendant has unequivocally admitted the debt.
44. As to costs, the same lie at the discretion of this Court and ordinarily follow the event. The Court is persuaded that the Plaintiffs are deserving of costs as the successful applicants.
45. As to interest, this being a commercial claim the interest sought is awarded on the amount claimed at Court rates from the date of filing this claim until payment in full.
Determination
46. Consequently, the Court makes the following orders in relation to the Plaintiffs’ application by way of a Notice of Motion dated 27th May, 2024:
(a) THAT Summary Judgement be and is HEREBY entered in favour of the Plaintiffs against the Defendant as prayed for in the Plaint on the Defendant's own admission of indebtedness to the Plaintiffs.
(b) THAT interest on the aggregate sum of Kshs. 33,027,564.68 shall accrue at Court rates from the date of filing the suit until payment in full.
(c) THAT the costs of the application and the main suit are awarded to the Plaintiffs together with interest at Court rates from the date of Judgment until payment in full.
47. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 15TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Oluomo for the Plaintiffs.
N/A for the Defendant.
Mr. John Paul - Court Assistant.
Background Facts
2. The 1st and 2nd Plaintiffs are limited liability companies. They manufacture and sell steel products. The Defendant is also a limited liability company. It purchases steel for its commercial operations.
3. On diverse dates between November 2017 and May 2021, the Plaintiffs sold and supplied steel to the Defendant on credit. The agreed credit period was 45 days. The Defendant received the goods. Invoices and delivery notes were duly acknowledged.
4. The payment plans never materialized. The Plaintiffs approached the Court. The Defendant filed a Statement of Defence dated 24th January, 2024. The Defendant denied the claim in its entirety. It asserted that the claim was time-barred.
5. The Plaintiffs filed a Notice of Motion application dated 27th May, 2024. The application is anchored on Order 36 Rule 1 of the Civil Procedure Rules, 2010, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and the inherent jurisdiction of the Court.
6. The Plaintiffs pray for the following orders:
1. THAT Summary Judgement be and is hereby entered in favour of the Plaintiffs against the Defendant as prayed in the plaint on the Defendant's own admission of indebtedness to the Plaintiff.
2. THAT costs of this application and of this suit be awarded to the Plaintiffs.
7. The application is supported by the affidavit of Niraj Shah, the Chief Financial Officer of the Plaintiffs. He annexes the returned cheques and the correspondence exchanged between the parties.
8. The Defendant opposes the application. It relies on a Replying Affidavit sworn by Kush Patel, a director of the Defendant, dated 22nd October, 2025.
Issues for Determination
9. The Court has carefully considered the application, the response, the rival submissions as well as the oral highlights by Counsel for the parties. The Court frames the following issues for determination:
(a) Whether an application for summary judgment is barred merely because a Statement of Defence has been filed.
(b) Whether the Plaintiffs' claim is caught by the law of limitation.
(c) What is the legal effect of the "without prejudice" correspondence?
(d) Whether there are any genuine triable issues raised in the Statement of Defence, or whether the claim is admitted entitling the Plaintiffs to judgment.
Analysis
10. An application of this nature calls for exercise of the Court’s discretion.
11. The Application is anchored under the provisions of Order 36 Rule 1 of the Civil Procedure Rules which states as follows:
“Summary judgment [Order 36, rule 1.]
(1) In all suits where a plaintiff seeks judgment for—
(a) a liquidated demand with or without interest; or
(b) the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of
covenant, or against persons claiming under such tenant or against a trespasser,
where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.
(2) The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any
amount claimed.
(3) Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.”
(a) Whether an application for summary judgment is barred merely because a Statement of Defence has been filed.
12. The Defendant submits that an application under Order 36 Rule 1 automatically collapses if a Statement of Defence is already on the record. This proposition represents a fundamental misapprehension of the law.
13. Order 36 Rule 1 of the Civil Procedure Rules, 2010, provides for summary judgment. The overriding purpose of summary procedure is to enable a Plaintiff with a clear, liquidated claim to obtain swift justice. It is designed to protect Plaintiffs from the delaying tactics of Defendants who have no genuine answer to a claim. In Quaker Ventures Limited v Equity Bank Limited [2015] KEHC 8321 (KLR) Gikonyo J. made the following sentiments which this Court finds agreeable:
“My view is that, it will be dangerous to prescribe as a rule of law that a belated defence should make a properly filed application under Order 36 of the Civil Procedure Rules to be incompetent or barren. I think in such scenario, the court should examine the belated defence within the framework of Order 36 to discern whether it raises any bona fide triable issue worth trial. Indeed, Order 36 rule 2 of the Civil Procedure Rules envisions a situation where a belated defence is filed after the application for summary judgment has been made. Such defence should be treated within rule 2 and be seen only as a means to…show…that he should have leave to defend the suit.”
14. To this Court, it is trite law that a Plaintiff can apply for summary judgment even after a defence has been filed. The critical test under Order 36 is not whether a defence exists on the physical Court file. The test is whether that defence raises a bona fide triable issue. A sham defence, filed merely to delay the inevitable, will not save a defendant from summary judgment.
(b) Whether the Plaintiffs' claim is caught by the law of limitation.
15. The Defendant pleads at paragraph 10 of its Defence that the claim is time-barred. The Defendant argues that the cause of action arose in November, 2017.
16. Under Section 4(1)(a) of the Limitation of Actions Act (Cap 22) Laws of Kenya, an action founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. The Plaint was filed on 30th November, 2023. At first glance, a strict arithmetic calculation from November 2017 yields exactly six years.
17. However, the law of limitation is not blind to the conduct of the parties. Section 23(3) of the Limitation of Actions Act provides a statutory reset mechanism. It states:
"Where a right of action has accrued to recover a debt or other liquidated pecuniary claim... and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment."
18. The Court of Appeal provided binding clarity on this statutory provision in Shire v Thabiti Finance Co Ltd [2002] 1 EA 279. The Court held that an acknowledgment or part payment extends the limitation period. It revives an action that would otherwise be statute-barred. The fresh accrual begins from the exact date of the acknowledgment or part payment.
19. An examination of the evidentiary record reveals significant activity. The Defendant made part payments via two cheques dated 4th March, 2019. The cheques bounced the following day. The issuance of these cheques constituted an acknowledgment of the debt, resetting the limitation clock to March 2019.
20. Furthermore, the Defendant's advocates expressly acknowledged the debt in their letter dated 28th September, 2023. The Defendant itself acknowledged the full debt of Kshs. 33,027,564.68 in its subsequent letter of 3rd November, 2023.
21. These written acknowledgments triggered Section 23(3) of the Limitation of Actions Act. Time began to run afresh in late 2023. The suit filed in November 2023 is safely within the statutory window. The limitation defence is legally untenable. It is struck out.
(c) What is the legal effect of the "without prejudice" correspondence?
22. The Defendant mounts its most aggressive defence on the evidentiary shield of "without prejudice". The Defendant argues that the letter dated 28th September, 2023, was expressly marked "without prejudice". The Defendant contends it is privileged and must be expunged from the record.
23. Section 23(1) of the Evidence Act (Cap 80) Laws of Kenya codifies this common law privilege. It provides that in civil cases; no admission may be proved if made upon an express condition that evidence of it is not to be given. The underlying public policy is sound. Litigants must be encouraged to settle disputes out of Court. They must be free to lay their cards on the table without fear that their compromises will be weaponized against them.
24. However, the "without prejudice" privilege is not an absolute cloak of invisibility. It is not a magical incantation that immunizes a debtor from liability.
25. The Defendant relies on Guardian Bank Limited v Jambo Biscuits Kenya Limited [2014] KEHC 1796 (KLR). An objective reading of this authority fatally wounds the Defendant’s case. In Guardian Bank, Gikonyo J. correctly articulated the parameters of the rule. He held that for a communication to receive protection, it must be made during an amicable negotiation of a dispute with the intention of yielding a compromise.
26. The Court of Appeal and the High Court are in complete harmony on this point. Where there is no dispute on liability, the rule does not apply. In Geoloy Investments Ltd v Behal t/a Krishan Behal & Sons [2002] KEHC 1148 (KLR), Mwera J. held that the rule is strictly confined to cases where there is a genuine dispute or negotiation, and suggestions are made for settlement.
27. In Guardian Bank, Gikonyo J. admitted a letter that was written to propose a settlement figure, holding:
"The said letter does not contain any denial whatsoever of the plaintiff's claim... Although the letter refers to some meeting... there is nothing which shows the correspondence was intended to be privileged as it encapsulates the entire claim as admitted by the defendant to be due to the Plaintiff... The letter is an admission that the defendant owes a balance of Kshs. 10,000,000 and is not the type which is protected under the cover and practice of 'without prejudice'."
28. Furthermore, "without prejudice" communications are admissible for specific statutory purposes. They are admissible to prove an acknowledgment of debt for the purposes of defeating the Limitation of Actions Act.
29. Let us examine the letters in question. The letter of 28th September, 2023, from JP Advocates explicitly states:
“Tononoka Steel Mills Ltd
Airport North Road, Embakasi
P.O. Box 44689-00100
Nairobi
Advance Copy via Email to: tononoka@tononokastecls.com
"Without prejudice"
Attention: Navin Savla
Dear Sirs,
RE ACKNOWLEDGEMENT OF DEBT AND PAYMENT PROPOSAL
We refer to the above matter.
We have been retained by Aquva Agencies Ltd (our Client) with instructions to address you in terms hereunder:
That our Client acknowledges owing you the consolidated total sum of Kshs. 31, 463,183/= (the Debt) as of today's
date. In that regard, our Client proposes to repay the Debt in the following manner;
On or before the 9th October 2023 Kshs. 15,000,000/=
On or before the 9th November 2023 Kshs. 8,000,000/= and
The balance of Kshs. 8, 463,183 on or before 25th November 2023
Upon full payment in respect of the Debt. parties will be at liberty to compute and agree on interest payable (if
any) and the same will be payable as soon as the ongoing case pitting our Client against Tumaz Tumaz
Enterprises Ltd is concluded.
Kindly signify acceptance of this offer to enable our Client to proceed to remit the payments.
We look forward to hearing from you.”
30. This letter expressly, clearly and unequivocally admits the debt and liability for the sum of Kshs. 31, 463,183/=. It proposes a payment schedule. There is no dispute raised regarding liability. There is no dispute regarding the delivery or quality of the steel. There is no compromise being offered on a contested issue. It is a naked admission of debt, wrapped in a plea for time. Marking such a letter "without prejudice" is a blatant abuse of the privilege.
31. Even if this Court were to expunge the 28th September, 2023 letter, the Defendant’s fate remains sealed. The subsequent letter dated 3rd November, 2023, written directly by Aquva Agencies, reads:
"Re: Payment Plan - Kshs. 33,027,564.68... We are requesting for a meeting on Wednesday 8th November at Eleven o'clock to negotiate a payment plan."
32. This letter is not marked "without prejudice". It refers to the exact quantum pleaded in the Plaint. It seeks a payment plan. It is a clear, unequivocal, and unshielded admission of the debt. The Defendant's reliance on the "without prejudice" rule is entirely misplaced. The correspondence is fully admissible.
(d) Whether there are any genuine triable issues raised in the Statement of Defence, or whether the claim is admitted entitling the Plaintiffs to judgment.
33. We now arrive at the core of the application. Are there triable issues? Is the debt admitted?
34. Order 13 Rule 2 of the Civil Procedure Rules, 2010, provides for judgment on admission. The rule dictates that where admissions of fact have been made, either on the pleadings or otherwise, any party may apply for judgment. The Court has the discretion to grant such judgment without waiting for the determination of any other question.
35. The jurisprudential standard for an admission under Order 13 Rule 2 is exceptionally high. The admission must be clear and unequivocal. It must not require copious interpretations to discern.
36. In Cassam & another v Sachania & another [1982] KECA 1 (KLR), the Court of Appeal held that the discretion to grant judgment on admission 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. There is no case conflict between the High Court and the appellate Courts on this principle.
37. Madan JA (as he then was) eloquently captured this standard in Choitram & another v Nazari [1984] KECA 47 (KLR). He stated:
"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."
38. Is the admission in this case as plain as a pikestaff? The Court answers in the affirmative. The Defendant's letter of 3rd November, 2023, admits a debt of Kshs. 33,027,564.68. The amount matches the Plaint to the final decimal point. The Defendant merely asked for time to pay.
39. In its Statement of Defence, the Defendant issues blanket denials. It denies purchasing steel. It denies receiving deliveries. Yet, it offers no explanation for its own correspondence. It offers no explanation for the bounced cheques issued to the Plaintiffs in 2019.
40. A defence consisting of general denials, which is directly contradicted by the Defendant's own contemporaneous documents, is a classic sham defence. It raises no bona fide triable issues. Allowing this matter to proceed to a full trial would be a travesty of justice.
41. Such a course of action would offend the overriding objective of this Court. Sections 1A and 1B of the Civil Procedure Act (Cap 21) mandate the just, expeditious, proportionate, and affordable resolution of civil disputes. The Court has a statutory duty to prevent the abuse of its processes through unnecessary delays.
42. It is undesirable to litigate when there is no genuine question of fact or law to be tried. The Plaintiffs have established a liquidated demand. The Defendant has admitted the liability. The legal hurdles raised by the Defendant—limitation and privilege—have been systematically dismantled. The path to judgment is clear.
43. The application dated 27th May, 2024, is overwhelmingly meritorious. The Defendant's Statement of Defence is a mere sham, devoid of any triable issues. Furthermore, the Defendant has unequivocally admitted the debt.
44. As to costs, the same lie at the discretion of this Court and ordinarily follow the event. The Court is persuaded that the Plaintiffs are deserving of costs as the successful applicants.
45. As to interest, this being a commercial claim the interest sought is awarded on the amount claimed at Court rates from the date of filing this claim until payment in full.
Determination
46. Consequently, the Court makes the following orders in relation to the Plaintiffs’ application by way of a Notice of Motion dated 27th May, 2024:
(a) THAT Summary Judgement be and is HEREBY entered in favour of the Plaintiffs against the Defendant as prayed for in the Plaint on the Defendant's own admission of indebtedness to the Plaintiffs.
(b) THAT interest on the aggregate sum of Kshs. 33,027,564.68 shall accrue at Court rates from the date of filing the suit until payment in full.
(c) THAT the costs of the application and the main suit are awarded to the Plaintiffs together with interest at Court rates from the date of Judgment until payment in full.
47. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 15TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Oluomo for the Plaintiffs.
N/A for the Defendant.
Mr. John Paul - Court Assistant.