Background and Introduction
1. This Ruling determines the plaintiff’s application dated 23rd May 2024 brought specifically under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 13 Rule 2 and Order 51 Rule I of the Civil Procedure Rules. The applicant seeks judgement for the sum of Kshs. 102,876,730/- to be entered against the respondent on its own admission.
2. The applicant claims to have paid the defendant a sum of Kshs. 184,326,730/- to procure payment and performance guarantees in respect of two tenders that were awarded to the applicant by the Government of Kenya. These are;
i. Tender No. MLPWHUD/SDHUD/AHP/212/2023-2024 for Kshs. 575,295,623.70,
ii. Tender number MLPWHUD/SDHUD/AHP/220/2023-2024 for Kshs. 537,107,350.08.
3. The respondent represented to the applicant that it had the capacity to issue the guarantees, which it did not have. As a result, the payment guarantees issued by the respondent were returned and the Government of Kenya demanded fresh guarantees from the applicant. The applicant demanded the monies paid to the respondent and the respondent refunded the amount of Kshs. 81,500,000/= leaving a balance of Kshs. 102,826,730/= which the applicant claims.
4. The application is opposed by way of a replying affidavit sworn on 1st July 2024 by the respondent’s Chief Executive, John Njihia. The respondent confirms the issuance of the performance guarantees at the applicant’s request. The respondent also confirms owing the respondent a total of Kshs. 137,479,821.40, out of which a total of Kshs.112,777,658/= had been paid. As such, respondent confirms that it only owes Kshs. 24,702,163.40 and not Kshs. 102,826,730/= which is claimed.
Analysis and Determination
5. Order 13 Rule 2 of the Civil Procedure Rules governs the right of this Court to enter judgment on admission. The respondent’s affidavit admits indebtedness to the applicant, but only to the extent of Kshs. 24,702,163.40. Paragraph 13 of the replying affidavit states as follows;
“Out of the Kshs. 137,479,821.40 actually owed to the plaintiff, the defendant has already paid Kshs. 112,777,658/= leaving only a balance of Kshs.24,702,163.40”.
6. On the face of it, the admission is straightforward and specific. The respondent has even quantified the amount it owes the applicant and there is no apparent caveat or condition attached to this acknowledgment. By all indications, this is to me, an unequivocal admission of a debt, albeit a partial one, fitting the description of a “plain and obvious” admission that “leaves no room for doubt”. This scenario satisfies the threshold laid out in judicial precedents such as Choitram v. Nazari (1984) KLR 327, Cassam v. Sachania (1982) KLR 191 and Guardian Bank Ltd v. Jambo Biscuits (K) Ltd [2014] eKLR amongst others.
7. Although the motion before the Court is based on judgment on account of admissions, the respondent’s failure to formally enter appearance or defend the suit cannot be ignored. By failing to file a statement of defense the respondent left the entirety of the claim unanswered.
8. Be that as it may, the applicant pegs its prayer in this application to the admission. Strictly under Order 13 Rule 2, the Court can only enter judgment “as upon such admissions he may be entitled to.” That remainder, therefore, does not meet the test of an unequivocal admission as it is not admitted at all. It would be outside the scope of Order 13 Rule 2 to grant judgment for an amount that is not admitted.
9. In conclusion, the applicant’s motion succeeds to the extent of the respondent’s clear admission only.
Disposition
10. Accordingly, judgment is hereby entered for the plaintiff/applicant against the defendant/respondent in the sum of Kshs. 24,702,163.40 with interest on this amount from the date of filing suit until payment in full. The applicant shall also have half the costs of the application.
DATED, SIGNED AND DELIVERED IN MOMBASA
THIS 16TH DAY OF APRIL OF 2025
F. MUGAMBI
JUDGE
1. This Ruling determines the plaintiff’s application dated 23rd May 2024 brought specifically under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 13 Rule 2 and Order 51 Rule I of the Civil Procedure Rules. The applicant seeks judgement for the sum of Kshs. 102,876,730/- to be entered against the respondent on its own admission.
2. The applicant claims to have paid the defendant a sum of Kshs. 184,326,730/- to procure payment and performance guarantees in respect of two tenders that were awarded to the applicant by the Government of Kenya. These are;
i. Tender No. MLPWHUD/SDHUD/AHP/212/2023-2024 for Kshs. 575,295,623.70,
ii. Tender number MLPWHUD/SDHUD/AHP/220/2023-2024 for Kshs. 537,107,350.08.
3. The respondent represented to the applicant that it had the capacity to issue the guarantees, which it did not have. As a result, the payment guarantees issued by the respondent were returned and the Government of Kenya demanded fresh guarantees from the applicant. The applicant demanded the monies paid to the respondent and the respondent refunded the amount of Kshs. 81,500,000/= leaving a balance of Kshs. 102,826,730/= which the applicant claims.
4. The application is opposed by way of a replying affidavit sworn on 1st July 2024 by the respondent’s Chief Executive, John Njihia. The respondent confirms the issuance of the performance guarantees at the applicant’s request. The respondent also confirms owing the respondent a total of Kshs. 137,479,821.40, out of which a total of Kshs.112,777,658/= had been paid. As such, respondent confirms that it only owes Kshs. 24,702,163.40 and not Kshs. 102,826,730/= which is claimed.
Analysis and Determination
5. Order 13 Rule 2 of the Civil Procedure Rules governs the right of this Court to enter judgment on admission. The respondent’s affidavit admits indebtedness to the applicant, but only to the extent of Kshs. 24,702,163.40. Paragraph 13 of the replying affidavit states as follows;
“Out of the Kshs. 137,479,821.40 actually owed to the plaintiff, the defendant has already paid Kshs. 112,777,658/= leaving only a balance of Kshs.24,702,163.40”.
6. On the face of it, the admission is straightforward and specific. The respondent has even quantified the amount it owes the applicant and there is no apparent caveat or condition attached to this acknowledgment. By all indications, this is to me, an unequivocal admission of a debt, albeit a partial one, fitting the description of a “plain and obvious” admission that “leaves no room for doubt”. This scenario satisfies the threshold laid out in judicial precedents such as Choitram v. Nazari (1984) KLR 327, Cassam v. Sachania (1982) KLR 191 and Guardian Bank Ltd v. Jambo Biscuits (K) Ltd [2014] eKLR amongst others.
7. Although the motion before the Court is based on judgment on account of admissions, the respondent’s failure to formally enter appearance or defend the suit cannot be ignored. By failing to file a statement of defense the respondent left the entirety of the claim unanswered.
8. Be that as it may, the applicant pegs its prayer in this application to the admission. Strictly under Order 13 Rule 2, the Court can only enter judgment “as upon such admissions he may be entitled to.” That remainder, therefore, does not meet the test of an unequivocal admission as it is not admitted at all. It would be outside the scope of Order 13 Rule 2 to grant judgment for an amount that is not admitted.
9. In conclusion, the applicant’s motion succeeds to the extent of the respondent’s clear admission only.
Disposition
10. Accordingly, judgment is hereby entered for the plaintiff/applicant against the defendant/respondent in the sum of Kshs. 24,702,163.40 with interest on this amount from the date of filing suit until payment in full. The applicant shall also have half the costs of the application.
DATED, SIGNED AND DELIVERED IN MOMBASA
THIS 16TH DAY OF APRIL OF 2025
F. MUGAMBI
JUDGE