' 1. The plaintiff filed a notice of motion dated 15th November 2024 under Order 2 Rule 15(1)(a)(b)(c)(d), Order 13 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules seeking to strike out the defendant’s statement of defence and to enter summary judgment in the sum of Kshs. 21,348,318.30 with interest and costs.
2. In the alternative, the plaintiff prayed for judgment on admission for the same sum.
3. The application was grounded on a contract for sale of petroleum products dated 18/3/2022 pursuant to which the plaintiff supplied the defendant with products, but the defendant failed to pay. The plaintiff stated that the defendant had, on several occasions, through letters dated 6/10/2023 and 24/1/2024, admitted the debt and proposed settlement but failed to honour its commitments, only making part payment of Kshs. 2,000,000 on 22/2/2024.
4. The plaintiff contended that the defence filed amounted to mere denials, was frivolous, vexatious and an abuse of court process, and urged the court to strike it out and allow the application with costs.
5. In opposition to the application, the defendant filed grounds of opposition dated 6/12/2024. The defendant opposed the plaintiff’s motion on several grounds. It argued that the application was premature, frivolous, and bad in law, and that it offended Order 36 Rule 1 of the Civil Procedure Rules since a summary judgment may only be issued where a defence has not been filed.
6. The defendant noted that it had filed a defence dated 29/8/2024 raising triable issues that require full hearing, and even the plaintiff’s own pleadings disclosed such issues.
7. It denied having admitted the plaintiff’s claim, pointing to express denials in its defence. It contended that the application sought to unjustly bar it from a fair trial and to prevent contextualization of correspondence relied upon by the plaintiff. The defendant maintained that it had demonstrated clear intent to defend the suit and that no prejudice incapable of compensation by costs would be suffered by the plaintiff if the matter proceeded to trial.
8. It was further urged that the plaintiff had not placed before the court sufficient material to justify the exercise of its discretion and that the application amounted to an abuse of the court process. The defendant, therefore, prayed that the motion be dismissed with costs.
9. The defendant also filed a replying affidavit sworn on 6/12/2024 in opposition to the subject application. The deponent, a director of the defendant company, stated that the application was premature, frivolous, and legally untenable as it offended Order 36 Rule 1 of the Civil Procedure Rules, which permits summary judgment only where a defendant has failed to file a defence.
10. He noted that the defendant had filed its defence dated 29/8/2024 raising triable issues, and that even the application itself disclosed matters that could only be determined at trial.
11. He denied that the defendant had admitted the claim, pointing out that the defence expressly denied the allegations in the plaint and put the applicant to strict proof. He contended that the application sought to bar the defendant from its right to a fair hearing and from contextualizing certain correspondence relied on by the plaintiff. He argued that since the respondent had shown interest in defending the suit, it would be unjust to deny it the opportunity to do so.
12. He further deposed that no prejudice incapable of being compensated by costs would be suffered by the plaintiff if the matter proceeded to full trial, and that the plaintiff had failed to present any material warranting the court’s discretion. He concluded that the application was an abuse of the court process and ought to be dismissed with costs.
Analysis and determination
13. The plaintiff filed submissions dated 10/4/2025 while the defendant filed submissions dated 7/4/2025. I have carefully considered the same together with the pleadings filed in this matter.
14. A judgment on admission is provided for under Order 13, Rule 2 of the Civil Procedure Rules. It states the following:
“ 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 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.”
15. In this case, it is undisputed that the parties entered into a contract dated 18th March 2022 for the supply of various petroleum products by the Plaintiff to the Defendant. The Plaintiff asserted that the Defendant received and consumed the products but failed to settle the outstanding amounts.
16. The plaintiff further stated that upon demanding the outstanding amounts, the defendant acknowledged the debt and proposed a repayment plan.
17. The Plaintiff placed reliance on two letters annexed to the supporting affidavit, dated 6th October 2023 and 24th January 2024, respectively.
18. In the letter of 6th October 2023, the Defendant confirmed being indebted to the Plaintiff in the sum of Kshs. 18,823,722.60 and proposed a repayment schedule. In the subsequent letter dated 24th January 2024, the Defendant once again acknowledged indebtedness to the Plaintiff, this time in the amount of Kshs. 23,075,722.60, and similarly proposed a repayment plan.
19. These letters constitute unequivocal evidence of admission of debt. In both, the Defendant did not contest liability but was in agreement with the Plaintiff as to the amounts owed.
20. The principles governing judgment on admission were set out in Choitram v Nazari [1984] KLR 237, where the Court held that: -
“For the purpose of order XII rule 6, admissions can be express or implied either on the pleadings or otherwise, e.g. in correspondence. Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning. 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. ……”
21. Similarly, in Crown Health Care v Jamu Imaging Centre Limited [2021] eKLR, the Court entered judgment on admission where a debt was clearly acknowledged in prior correspondence but later denied in a defence. The Court held that such denial was a sham aimed at frustrating or delaying the Plaintiff’s claim. The court stated that: -
“A reading of the above letter which was authored by Dr. Peter Umara Marenya, the same person who swore the defendant’s replying affidavit leaves no doubt that the defendants defence is a sham, a mere denial aimed at frustrating or delaying the Plaintiff claim. In the letter, the debt is clearly admitted in no uncertain terms. The author even admits issuing bouncing cheques and proposes to remedy the situation. He proceeds to tabulate a repayment plan. There is no mention at all of a disputed amount or the alleged substandard goods. What emerges is that the defendant’s defence is an afterthought crafted in bad faith to defeat summary judgment and unfairly delay the conclusion of this case. The defence is a mere denial. The diametrically opposed positions taken by the same defendant in the letter on one side and the sworn affidavit and defence on the other side has not been explained. In my view, it is a clear manifestation of utmost bad faith.”
22. In the present case, it is not disputed that the Defendant made part payment of Kshs. 2,000,000 on 22nd February 2024, leaving an outstanding balance of Kshs. 21,075,722.60 as pleaded in the Plaint dated 8th July 2024.
23. Having admitted to the debt in no uncertain terms, I am of the view that the defence is a mere afterthought designed to defeat a summary judgement in this case. The defence contradicts the defendant’s earlier admissions and consists of baseless denials.
24. I find, therefore, in the interest of justice and in line with Order 13, rule 2 of the Civil Procedure Rules, that the plaintiff has made a case to enter a judgment on admission in its favour.
25. Accordingly, the application succeeds, and I make the following orders:
a) Judgment is hereby entered for the Plaintiff against the Defendant in the sum of Kshs. 21,075,722.60.
b) The Defendant shall bear the costs of this application and the suit.
26. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
25TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Koech h/b for Onyango….…..for the Applicant
Maranga..……………..…..... for the Respondent
'
2. In the alternative, the plaintiff prayed for judgment on admission for the same sum.
3. The application was grounded on a contract for sale of petroleum products dated 18/3/2022 pursuant to which the plaintiff supplied the defendant with products, but the defendant failed to pay. The plaintiff stated that the defendant had, on several occasions, through letters dated 6/10/2023 and 24/1/2024, admitted the debt and proposed settlement but failed to honour its commitments, only making part payment of Kshs. 2,000,000 on 22/2/2024.
4. The plaintiff contended that the defence filed amounted to mere denials, was frivolous, vexatious and an abuse of court process, and urged the court to strike it out and allow the application with costs.
5. In opposition to the application, the defendant filed grounds of opposition dated 6/12/2024. The defendant opposed the plaintiff’s motion on several grounds. It argued that the application was premature, frivolous, and bad in law, and that it offended Order 36 Rule 1 of the Civil Procedure Rules since a summary judgment may only be issued where a defence has not been filed.
6. The defendant noted that it had filed a defence dated 29/8/2024 raising triable issues that require full hearing, and even the plaintiff’s own pleadings disclosed such issues.
7. It denied having admitted the plaintiff’s claim, pointing to express denials in its defence. It contended that the application sought to unjustly bar it from a fair trial and to prevent contextualization of correspondence relied upon by the plaintiff. The defendant maintained that it had demonstrated clear intent to defend the suit and that no prejudice incapable of compensation by costs would be suffered by the plaintiff if the matter proceeded to trial.
8. It was further urged that the plaintiff had not placed before the court sufficient material to justify the exercise of its discretion and that the application amounted to an abuse of the court process. The defendant, therefore, prayed that the motion be dismissed with costs.
9. The defendant also filed a replying affidavit sworn on 6/12/2024 in opposition to the subject application. The deponent, a director of the defendant company, stated that the application was premature, frivolous, and legally untenable as it offended Order 36 Rule 1 of the Civil Procedure Rules, which permits summary judgment only where a defendant has failed to file a defence.
10. He noted that the defendant had filed its defence dated 29/8/2024 raising triable issues, and that even the application itself disclosed matters that could only be determined at trial.
11. He denied that the defendant had admitted the claim, pointing out that the defence expressly denied the allegations in the plaint and put the applicant to strict proof. He contended that the application sought to bar the defendant from its right to a fair hearing and from contextualizing certain correspondence relied on by the plaintiff. He argued that since the respondent had shown interest in defending the suit, it would be unjust to deny it the opportunity to do so.
12. He further deposed that no prejudice incapable of being compensated by costs would be suffered by the plaintiff if the matter proceeded to full trial, and that the plaintiff had failed to present any material warranting the court’s discretion. He concluded that the application was an abuse of the court process and ought to be dismissed with costs.
Analysis and determination
13. The plaintiff filed submissions dated 10/4/2025 while the defendant filed submissions dated 7/4/2025. I have carefully considered the same together with the pleadings filed in this matter.
14. A judgment on admission is provided for under Order 13, Rule 2 of the Civil Procedure Rules. It states the following:
“ 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 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.”
15. In this case, it is undisputed that the parties entered into a contract dated 18th March 2022 for the supply of various petroleum products by the Plaintiff to the Defendant. The Plaintiff asserted that the Defendant received and consumed the products but failed to settle the outstanding amounts.
16. The plaintiff further stated that upon demanding the outstanding amounts, the defendant acknowledged the debt and proposed a repayment plan.
17. The Plaintiff placed reliance on two letters annexed to the supporting affidavit, dated 6th October 2023 and 24th January 2024, respectively.
18. In the letter of 6th October 2023, the Defendant confirmed being indebted to the Plaintiff in the sum of Kshs. 18,823,722.60 and proposed a repayment schedule. In the subsequent letter dated 24th January 2024, the Defendant once again acknowledged indebtedness to the Plaintiff, this time in the amount of Kshs. 23,075,722.60, and similarly proposed a repayment plan.
19. These letters constitute unequivocal evidence of admission of debt. In both, the Defendant did not contest liability but was in agreement with the Plaintiff as to the amounts owed.
20. The principles governing judgment on admission were set out in Choitram v Nazari [1984] KLR 237, where the Court held that: -
“For the purpose of order XII rule 6, admissions can be express or implied either on the pleadings or otherwise, e.g. in correspondence. Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning. 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. ……”
21. Similarly, in Crown Health Care v Jamu Imaging Centre Limited [2021] eKLR, the Court entered judgment on admission where a debt was clearly acknowledged in prior correspondence but later denied in a defence. The Court held that such denial was a sham aimed at frustrating or delaying the Plaintiff’s claim. The court stated that: -
“A reading of the above letter which was authored by Dr. Peter Umara Marenya, the same person who swore the defendant’s replying affidavit leaves no doubt that the defendants defence is a sham, a mere denial aimed at frustrating or delaying the Plaintiff claim. In the letter, the debt is clearly admitted in no uncertain terms. The author even admits issuing bouncing cheques and proposes to remedy the situation. He proceeds to tabulate a repayment plan. There is no mention at all of a disputed amount or the alleged substandard goods. What emerges is that the defendant’s defence is an afterthought crafted in bad faith to defeat summary judgment and unfairly delay the conclusion of this case. The defence is a mere denial. The diametrically opposed positions taken by the same defendant in the letter on one side and the sworn affidavit and defence on the other side has not been explained. In my view, it is a clear manifestation of utmost bad faith.”
22. In the present case, it is not disputed that the Defendant made part payment of Kshs. 2,000,000 on 22nd February 2024, leaving an outstanding balance of Kshs. 21,075,722.60 as pleaded in the Plaint dated 8th July 2024.
23. Having admitted to the debt in no uncertain terms, I am of the view that the defence is a mere afterthought designed to defeat a summary judgement in this case. The defence contradicts the defendant’s earlier admissions and consists of baseless denials.
24. I find, therefore, in the interest of justice and in line with Order 13, rule 2 of the Civil Procedure Rules, that the plaintiff has made a case to enter a judgment on admission in its favour.
25. Accordingly, the application succeeds, and I make the following orders:
a) Judgment is hereby entered for the Plaintiff against the Defendant in the sum of Kshs. 21,075,722.60.
b) The Defendant shall bear the costs of this application and the suit.
26. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
25TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Koech h/b for Onyango….…..for the Applicant
Maranga..……………..…..... for the Respondent
'