David Gitau Thairu v County Government of Machakos & 2 others [2019] KEELC 3946 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether judgment on admissions can be entered under Order 13 Rule 2 based on a settlement offer letter
No; a mere offer subject to acceptance and assessment is not a plain admission, and the letter was privileged as part of without prejudice negotiations
The court applied Choitram v Nazari: admissions must be plain and obvious. The letter of 12th October 2015 was an offer conditional on the Petitioner's acceptance and quantification of compensation, which was never accepted. Although not marked 'without prejudice', it was the first in a series of settlement letters, the response and all subsequent letters being marked 'without prejudice'. Following Guardian Bank and Athi River Steel, the court treated it as privileged and not an admission.
Whether a letter omitted the 'without prejudice' marking can still attract privilege
Yes; the court examines the entire circumstances and whether the communication was a genuine settlement attempt
Relying on Ochieng J in Athi River Steel Plant and Gikonjo J in Guardian Bank, the court held that inadvertent omission of the 'without prejudice' label does not defeat privilege where the correspondence is part of a genuine attempt to settle. The letter was one of many in a without prejudice exchange. The applicable test is whether the communication was a genuine attempt to settle the dispute, in which case it is protected.
Legal principles established
#- Communications forming part of a genuine attempt to settle a dispute are protected as without prejudice, even if not expressly so marked, and cannot be adduced as evidence or admissions
- Where express 'without prejudice' marking is lacking, the court examines the communication and surrounding circumstances to determine whether it was intended to be inadmissible
Court orders
#- 1.The Application dated 15th December, 2017 is dismissed with costs
- Jurisdiction invoked
- Original petition before the Environment and Land Court; Application under Order 13 Rule 2 of the Civil Procedure Rules (Judgment on admissions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Gitau Thairu v County Government of Machakos & 2 others [2019] KEELC 3946 (KLR)", Case Analysis (2019). Not stated in excerpt (Petition dated 20th December 2013; relates to Machakos JR. No. 1 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3946/eng@2019-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.