Kiran Kumar Chandubhai Patel & another v Greenview Developers Limited

RULING 1. By a Notice of Motion dated 12th July 2024, brought under Sections 1A, 1B and 63 of the Civil Procedure Act, Section 13(7) of the Environment and Land Court Act, and Order 13 Rule 2 of the Civil Procedure Rules, the Applicants seek the following orders: 1. THAT judgment in the sum of Kshs. 25,938,985/= be entered against the Respondent. 2. THAT the costs of this application be borne by the Respondents. 2. The application is based on the supporting affidavit of Kiran Kumar sworn on even date. THE APPLICANT’S CASE 3. The deponent averred that the Applicants commenced this suit by an Originating Summons dated 27 th November 2023, together with an application of even date. He stated that when the application came up for hearing, the Court issued orders preserving the suit property and referred the matter to CourtAnnexed Mediation. 4. He further averred that the parties recorded a consent on 11 th April 2024, under which the Respondent was ordered to reconstruct the collapsed perimeter wall within 45 days but failed to comply. Consequently, on 26th May 2024, the Applicants engaged a professional contractor and a quantity ELC OS NO. E020 OF 2023 2

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surveyor, who assessed the cost of reconstructing the wall at Kshs 25,938,985/=. He contended that prayer 3 of the Originating Summons should accordingly be granted, as the Respondent failed to construct the wall within the agreed period. THE RESPONDENTS' CASE 5. The Respondent opposed the application through the replying affidavit of its director, Darshna Salva, dated 20 th February 2025. 6. The deponent averred that the parties entered into an agreement dated 7th December 2015 for the off-plan sale of the property at a purchase price of Kshs 50,000,000/-. 7. She further averred that Clause Q of the agreement contained an arbitration clause under which the parties agreed to refer any dispute that may arise to the Chartered Institute of Arbitrators for arbitration. She averred that the Institute appointed Jacqueline Oyuyo Githinji as sole arbitrator and that both parties submitted to the arbitral tribunal’s jurisdiction. She further stated that the Tribunal published its final award dated 22nd August 2022. 8. She contended that despite the publication of the final award, the Applicants instituted the present suit seeking an order for the construction of the retaining wall on the suit property. ELC OS NO. E020 OF 2023 3

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9. She contended that the Applicants were attempting to enforce an arbitral award through an Originating Summons rather than by filing a chamber summons as required by law. She noted that the Applicants had previously filed an application in the High Court dated 20th March 2024 seeking enforcement of the award, which the Court allowed by its ruling delivered on 16 th December 2024. 10. She maintained that the mediation proceedings addressed only the timeline for the construction of the wall and did not address the coming into effect of prayer 3 of the Originating Summons. She further contended that the Respondent did not admit liability for any repairs and reconstruction undertaken by the Applicant. She further contended that the Applicants failed to annex any receipt, proof of payment of the purported bill of quantities, or county government approvals, describing the claim as an attempt at unjust enrichment. 11. She contended that the Applicants failed to adduce evidence of a plain, unequivocal or unconditional admission of liability by the Respondent. She asserted that granting the application would prejudice the Respondent, given that the orders for enforcement of the arbitral award remain in place. He maintained that this application is res judicata and an abuse of the court process, and should therefore be dismissed with costs. THE RESPONSE ELC OS NO. E020 OF 2023 4

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12. The Applicants filed a further affidavit dated 3 rd June 2025 in response to the replying affidavit. 13. The deponent acknowledged that the parties underwent arbitration, in which the Applicants were successful. She clarified that the arbitral proceedings concerned only defective workmanship at house No. 5, whereas the instant suit concerns the collapsed perimeter wall. She maintained that the suit is not res judicata, as the arbitral tribunal neither considered nor determined the question of the perimeter wall. 14. He asserted that, during the mediation, the Respondent directors consented to reconstruct the perimeter wall, with each director agreeing to contribute in proportion to their shareholding. 15. The application was canvassed by way of written submissions. THE APPLICANTS’SUBMISSIONS 16. The Applicants filed their submissions dated 11 th June 2025. 17. On behalf of the Applicants, Counsel outlined the following issues for the Court’s determination: a) Whether the suit and/or application dated 12 th July 2024 is res judicata; and b) Whether the application dated 12th July 2024 is fit for granting the orders as sought therein. ELC OS NO. E020 OF 2023 5

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18. Regarding the first issue, Counsel cited Section 7 of the Civil Procedure Act and relied on the cases of John Florence Maritime Services Limited & another v Cabinet Secretary Transport and Infrastructure & 3 others (2021) KESC 39 (KLR), Communications Commission of Kenya & 5 others vs Royal Media Services Ltd & 5 others (2014) eKLR and Dina Management Ltd v County Government of Mombasa & 5 others to submit on the doctrine of res judicata. 19. Counsel submitted that the present proceedings are not res judicata because they arise from the collapse of the perimeter wall after the arbitral proceedings concluded, thereby creating a new cause of action, whereas the arbitral proceedings concerned the poor workmanship of the townhouse No. 5. 20. Counsel maintained that the Applicants cannot invoke the arbitral Tribunal’s jurisdiction because the arbitrator had become functus officio, hence the filing of this suit. Counsel argued that new facts arose after the case was determined and that these do not constitute res judicata. Counsel relied on Dina Management Limited v County Government of Mombasa and 5 others to address the elements that must be proved in a claim of res judicata. Counsel further argued that similarity of parties alone does not constitute res judicata, as the other elements must be present. ELC OS NO. E020 OF 2023 6

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21. Counsel further submitted that the defence of res judicata cannot be raised in the present application, as the cause of action in the arbitral proceedings is distinct from that in the present application. Counsel further submitted that neither the Court nor the Tribunal had addressed the issue of reconstructing the perimeter wall around the Applicants' property. 22. Regarding the second issue, Counsel submitted that the application is merited because it seeks to enforce a consent judgment binding the parties herein. 23. Concluding his submissions, Counsel urged the Court to allow the application as prayed. THE RESPONDENTS’ SUBMISSIONS 24. The Respondent filed its submissions dated 11th June 2025. 25. On behalf of the Respondent, Counsel outlined the following issues for the Court’s determination: a) Whether the Court should grant an order for judgment on admission against the Respondent; and b) Whether this matter is res judicata. 26. Regarding the first issue, Counsel relied on Order 13 Rule 2 of the Civil Procedure Rules to emphasize when a judgment can be entered on admission. To support this point, Counsel relied on Cassan & Another v Sachania & Another (1982), ELC OS NO. E020 OF 2023 7

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Synergy Industrial Credit Limited v Oxplus International Limited & 2 others (2021) eKLR and Express Automobile Kenya Limited v Kenya Farmers Association Limited & another (2020). 27. Counsel submitted that the Respondent denied liability for repairs and reconstruction of the Property. Counsel further submitted that the mediation proceedings specifically addressed the 45-day timeline for construction of the wall. Counsel further submitted that an agreement to construct the wall cannot be construed as an acknowledgement of liability for Kshs 25,938,985/ in repair costs. Counsel argued that the Applicants have not demonstrated any plain, deliberate or unequivocal admission of liability by the Respondent. 28. Counsel contended that the burden of proving liability lay with the Applicants. It was submitted that the Applicants have not demonstrated that an agreement to construct the wall within specific timelines constitutes a plain, unambiguous and unequivocal admission of liability for repairs and reconstruction. Counsel invoked Section 107 of the Evidence Act and the case of Springboard Capital Limited v Njenga & Another (2024) eKLR to submit that the Applicants have not proved, in their documents, such an admission, nor demonstrated that an agreement to construct the wall within a specific timeline amounts to a plain, unambiguous and ELC OS NO. E020 OF 2023 8

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unequivocal admission of liability for repairs and reconstruction. 29. Regarding the second issue, Counsel submitted that the present suit is res judicata because the Applicants had referred the dispute to arbitration, resulting in a final arbitral award dated 22nd August 2022, which was subsequently adopted only for the Applicants to institute the present suit. To support this point, Counsel relied on Section 7 of the Civil Procedure Act and the case of John Florence Maritime Services & Another v Cabinet Secretary Transport and Infrastructure, (2021) eKLR. 30. Counsel submitted that the arbitral award dated 22 nd August 2022 shows that the Applicants sought an award of damages against the Respondent for compensation to rebuild their property and were awarded 85,000/=. Counsel further submitted that the High Court, in its ruling delivered on 16 th December 2024, allowed the Applicants to recognise and enforce the award. Counsel submitted that the orders issued on 30th November 2023 conclusively settled this matter, and that the Court ordered the Respondent to safeguard the suit property by ensuring it does not deteriorate or be further laid to waste. Counsel argued that the Applicants are seeking a judgment on admission in the sum of Kshs 25,938,985, despite being aware that the issue of rebuilding the suit property, including the retaining wall, had already been determined. ELC OS NO. E020 OF 2023 9

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ANALYSIS AND DETERMINATION 31. Having considered the application, the respective affidavits and the rival submissions, the following issues arise for determination: a) Whether the application is barred by the doctrine of res judicata; and b) Whether the Applicants have established a basis for entry of judgment on admission for Kshs 25, 938,985/-. 32. Regarding the first issue, the Respondent contends that the application is res judicata by virtue of the arbitral award. The doctrine of res judicata is anchored in Section 7 of the Civil Procedure Act which provides as follows: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 33. In John Florence Maritime Services Limited & another vs. Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR, the Supreme Court held that: ELC OS NO. E020 OF 2023 10

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“We reaffirm our position, as in the Muiri Coffee case, that the doctrine of res judicata is based on the principle of finality, which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded, and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.” 34. The Supreme Court further laid down the principles that must be demonstrated to invoke the doctrine in a civil matter as follows: “For res judicata to be invoked in a civil matter, the following elements must be demonstrated: a) There is a former Judgment or order which was final; b) The Judgment or order was on merit; c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d)There must be between the first and the second action identical parties, subject matter and cause of action. (See Uhuru ELC OS NO. E020 OF 2023 11

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Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and see the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR). 35. In the present case, it is common ground that the parties submitted a dispute to arbitration and that a final award was rendered on 22nd August 2022. It is also not disputed that the Applicants subsequently obtained orders from the High Court recognising and enforcing the award. 36. The Applicants contend that the arbitration proceedings concerned the workmanship of House No. 5, whereas the present proceedings concern the reconstruction of the perimeter wall. They further contend that the wall's collapse gave rise to a subsequent cause of action. The Respondent, on the other hand, argues that the arbitral proceedings addressed compensation for rebuilding the property and that the Applicants are seeking a second award on the same subject matter. 37. The arbitral award related to the dispute that had been submitted to the arbitral tribunal. However, the present application is based on the subsequent consent recorded in the Court-Annexed Mediation proceedings, under which the Respondent was to undertake construction of the perimeter wall within 45 days. ELC OS NO. E020 OF 2023 12

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38. The issue of reconstructing the perimeter wall was neither raised before nor heard and finally determined by the Arbitral Tribunal. In light of the foregoing, I find that the suit is not barred by the doctrine of res judicata. 39. Regarding the second issue, the Applicant seeks judgment against the Respondent for the sum of Kshs 25,938,985/-. Order 13 Rule 2 of the Civil Procedure Rules provides as follows: “Any party may at any stage of a suit where an admission of facts has been made, either on the pleadings or otherwise, apply 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.” 40. The principles governing judgment on admissions are well settled. 41. In Choitram v Nazari (1982) KLR 1, the Madan JA stated as follows: “For the purpose of Order XII Rule 6, admission can be expressed or implied on the pleadings or otherwise, e.g in correspondence. Admissions have to be plain and obvious as plain ELC OS NO. E020 OF 2023 as a pikestaff and clearly readable 13

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because they result in judgment being entered. They must be obvious in the face of them without requiring a magnifying glass to ascertain their meaning.” 42. Similarly, in Express Automobile Kenya Limited v Kenya Farmers Association Limited & another (202) eKLR, the court emphasised that the remedy of judgment on admission is discretionary and must be exercised with caution. 43. The Applicants relied on the partial settlement agreement dated 3rd April 202 recorded during the mediation. It is not in dispute that the Respondent’s three directors, Darshna Salva, Chandulat Fotania and Saresh Fatania, agreed to reconstruct the perimeter wall. The cost of reconstruction was apportioned among the directors as follows: Darshna 50%, Suresh 25% and Chandulal 25%. The Respondent expressly disputes both liability for the amount and the evidentiary basis of the claim, including the lack of receipts or proof that the Applicants incurred the alleged expenditure. The dispute is consequently not merely one of arithmetic. 44. The settlement agreement does not explicitly acknowledge the Respondent's liability to pay Kshs 25,938,985/=, nor does it explicitly provide that any failure to construct the wall within the specified period would automatically render the Respondent liable for that sum. 45. The Applicants' evidence shows that after the Respondent failed to construct the wall within the stipulated period, they ELC OS NO. E020 OF 2023 14

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engaged a professional contractor and a quantity surveyor, who estimated 25,939,985/=. the The cost of Applicants reconstruction at obtained valuation the Kshs unilaterally from their appointed professional contractor and quantity surveyor. The Respondent disputed this figure and denied liability for the quantified amount. 46. The amount claimed arises from a subsequent assessment rather than from an amount expressly admitted by the Respondent. The court would be required to determine whether the Respondent is liable for the claimed costs, whether the Applicants were entitled to undertake the works themselves, whether the works were undertaken, and whether the amount claimed is recoverable under the terms of the consent. These matters cannot be determined by summary jurisdiction under Order 13 Rule 2. 47. In light of the foregoing, I find that the Applicants have not demonstrated that the Respondent has made a plain, unequivocal and unconditional admission of liability in respect of Kshs 25,938,985/=. Accordingly, this Court finds that the threshold for entry of judgment on admission has not been met. 48. The upshot of the foregoing is that the application dated 12 th July 2024 lacks merit and is hereby dismissed with no orders as to costs. ELC OS NO. E020 OF 2023 15

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JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 18TH DAY OF SEPTEMBER, 2026. .………………………………………… HON. T. MURIGI JUDGE IN THE PRESENCE OF: Ochieng for the Applicant Vena – Court assistant ELC OS NO. E020 OF 2023 16

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