REPUBLIC OF KENYA High Court at Kisumu Civil Case 121 of 2012 PATRIOTIC GUARD LIMITED ….........................................................PLAINTIFF VERSUS CHEMELIL SUGAR COMPANY LIMITED …..................................DEFENDANT RULING In a plaint dated 22nd June, 2012 the plaintiff/applicant PATRIOTIC GUARDS LIMITED sued the defendant/respondent CHEMELIL SUGAR COMPANY LIMITED for a liquidated sum of Kshs.12,577,476.75, costs and interest arising out of a contract between the two companies. The current application by way of Notice of Motion pursuant to Orders 57 Rule 1 & 36 rule 1 of the civil Procedure Rules was filed simultaneously with the suit. The plaintiff/applicant seeks for summary judgment for the sums due on the grounds that the defendant/respondent does not have any arguable defence, the defendant/respondent has made an admission owing the outstanding sums and has offered to pay by monthly instalments. Having been served with the application for summary judgement the defendant/respondent filed not only a replying affidavit but a defence and a counter claim. The replying affidavit captures the points raised in the defence and the counterclaim, there is also an admission by the defendant of shs.5,658,745.75/= and of which the defendant/respondent reduces the sum of Kshs.2,022.089/= being loss incurred by the plaintiff/respondent's employees leaving a total of Kshs.3,658,745.75. The defendant/respondent also filed a preliminary objection stating that the application is defective and premature. At the hearing of the application the preliminary objection was not seriously canvassed. I also note that although the application was filed simultaneously with the suit, without giving an opportunity to the defendant/respondent enter an appearance nor to file a defence. I further note that the defence was filed together with a counter-claim. Under Order 36 rule 1 such an application seeking for summary judgment may be filed where a defendant has entered appearance but has not filed a defence. The defendant/respondent's argument to this extend is therefore correct, the application should have awaited appearance. However, there is an admission by the defendant/respondent of the sum of Kshs.3,658,745.75, to dismiss this application as against the admission in my view will be to shun justice in an obvious
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situation. The applicant is caught up with a technicality but this in my view is not a sufficient reason to dismiss the same. In this regard therefore I enter judgement in favour of the plaintiff/applicant to the tune of Kshs.3,658,745.15 being the sum admitted so far. I direct however that in view of the dispute on the rest of the sum and the counter-claim raised, the matter be set down for hearing for the rest of the claim. Costs in the cause. Dated and delivered this 18th day of October 2012 ALI-ARONI JUDGE In the presence of: …......................................counsel for plaintiff/applicant ….......................................counsel for defendant/respondent
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