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ELCPartially AllowedNotice of motion dated 28th September 2016 (main suit number not stated in the judgment)· [2020] KEELC 3878 (KLR)

Abdulrahman Farah Osman v Julius Kangara Ndegwa & 3 others [2020] KEELC 3878 (KLR)

High Court of Kenya
23 January 2020
LKL. Komingoi
536 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff moved the court by notice of motion dated 28th September 2016 under Order 13 rule 2 and Order 51 rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, seeking judgment on admission against the 1st defendant for Kshs.20,000,000 plus interest at 20% per annum from 17th May 2016, or alternatively, striking out the 1st defendant's statement of defence dated 12th May 2015 and judgment as per the plaint, with costs. The application was supported by the affidavit of Abdulrahman Farah Osman and a supplementary affidavit, and opposed by the replying affidavit of Julius Kangara Ndegwa. The parties agreed to canvass the application by written submissions. The court framed a single issue: whether the application was merited. It observed that by a settlement agreement dated 10th September 2015 the defendant agreed to pay Kshs.20,000,000 in two tranches of Kshs.10,000,000 each, with any amount outstanding after 17th May 2016 accruing interest at 20% per annum. It was not disputed that the defendant had paid Kshs.13,900,000, leaving a balance of Kshs.6,100,000, which would accrue interest at 20% per annum under the agreement. The court therefore declined to enter judgment on admission for the full Kshs.20,000,000. Instead, to bring the matter to conclusion, it directed the 1st defendant to pay the plaintiff Kshs.6,100,000 within ninety (90) days, in default of which the plaintiff would be at liberty to proceed with execution. The 1st defendant was ordered to bear the costs of the application. The ruling was delivered in Nairobi on 23rd January 2020 by L. Komingoi, Judge.

Key legal issues

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Whether judgment on admission should be entered against the 1st defendant for Kshs.20,000,000 plus interest, or the defence struck out

Holding

The application succeeded only in part: judgment on admission was not entered for the full settlement sum because the defendant had paid Kshs.13,900,000, leaving an admitted balance of Kshs.6,100,000, which the court directed be paid within 90 days, failing which execution may issue

Reasoning

The court noted that by a settlement agreement dated 10th September 2015 the defendant agreed to pay Kshs.20,000,000 in two tranches, with interest at 20% p.a on any amount outstanding after 17th May 2016. It was not disputed that Kshs.13,900,000 had been paid, leaving Kshs.6,100,000. Entering judgment on admission for the full Kshs.20,000,000 would ignore the substantial payment already made. The court instead directed payment of the outstanding balance within 90 days, with liberty to execute in default, and awarded costs of the application to the plaintiff.

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Legal principles established

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  • Judgment on admission cannot be entered for a sum exceeding what has actually been admitted as outstanding; part-performance of a settlement agreement limits the amount admittable

Court orders

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  1. 1.The 1st defendant/respondent to pay the plaintiff/applicant Kshs.6,100,000 within ninety (90) days from the date of the ruling
  2. 2.In default of payment, the plaintiff/applicant be at liberty to proceed with execution
  3. 3.The 1st defendant/respondent to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure RulesOrder 13 rule 2
  • Civil Procedure RulesOrder 51 rule 1
Jurisdiction invoked
Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Order 13 rule 2 and Order 51 rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abdulrahman Farah Osman v Julius Kangara Ndegwa & 3 others [2020] KEELC 3878 (KLR)", Case Analysis (2020). Notice of motion dated 28th September 2016 (main suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3878/eng@2020-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.