1.Before Court is the application dated 16/12/2022 brought under sections 1A, 1B & 3A of the Civil Procedure Act CAP 21 Laws of Kenya and Order 13 rule 1 and 2 Order 51 rule 1 and 3 of the Civil Procedure Rules 2010.
2.The application seeks judgment on admission in favour of the defendant for USD 20,697 and judgment on the counterclaim with costs. The application was premised on the grounds set out on the face of it and on the supporting affidavit of Winnie Ouko sworn on 16/12/2022.
3.It was the defendant’s position that the plaintiff had made admissions to owing it the sum of USD 48,594.20 and had made part payment thereof leaving a balance of USD 20,697.67. It was stated that the plaintiff’s director Titus Kigen in his witness statement had admitted the debt of USD 48,594.20 and proposed to settle the same on monthly installments of USD 4050. That since the amount is admitted there was no other issue left to proceed for trial.
4.The plaintiff opposed the application vid a replying affidavit of Titus Kigensworn on 19/1/2023 and grounds of opposition filed on even date. It was contended that the plaintiff had been paying the outstanding sum and as at January 2023, the outstanding sum was USD 16,697.67 and not USD 20,687.67 as alleged by the defendant. That the terms and conditions for the sale of the generator had been complied with.
5.The defendant filed a supplementary affidavit dated 6/3/2023 sworn by Winnie Oujo wherein it was confirmed that the outstanding balance was USD 16,697.67 and sought for judgment on that amount. The application was canvassed by way of written submissions which I have considered.
6.The defendant submitted that the plaintiff in the pleadings had admitted to owing the defendant USD 16,697.67 and the said amount was not been disputed. On whether interest should be paid on the defaulted sum, the defendant submitted that it was not a financial institution and therefore not bound by the in duplum rule. It was contended that the outstanding interest was USD 56.77 since the last payment had been made on 10/01/2023. Counsel submitted that the defendant was entitled to the costs of the suit.
7.The plaintiff submitted that it denied owing the sum of monies as claimed by the defendant. On the issue of interest, the plaintiff submitted that the defendant was levying illegal interest at the rate of 2% per month which is contrary to the in duplum rule under section 44A of the Banking Act.
8.I have considered the pleadings, submissions and the authorities cited. The issue for determination is whether judgment on admission should be entered for the sum of USD 16,697.67
9.Order 13 Rule 2 of the Civil Procedure Rules, 2010 provides: -“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.”
10.In Choitram v Nazari  KLR 327, Madan JA (as he then was) observed thus: -
11.From the foregoing, judgment on admission is entered only where the admission is unequivocal and clear. In the present case, the defendant contends that the plaintiff admitted owing the sum of USD 16,697.67. The admissions were both in the witness statement of Titus Kigenand in his replying affidavit sworn on 10/3/2022. On its part, the plaintiff admitted to paying the outstanding sum owed to the defendant in monthly installments of Kshs. 500,000/-.
12.Based on the foregoing, there is a clear admission by the plaintiff on the sums owed to the defendant. Where the admission is clear and unequivocal, judgment should be entered forthwith. This I proceed to do accordingly.
13.On the issue of interest, I note that the same was contractual and the Court cannot interfere.
14.In the upshot, the Court finds that the defendant has made out a case for grant of the orders sought. The application dated 16/12/2022 is hereby allowed and judgment is entered in favour of the defendant against the plaintiff for the sum of USD 16,697.67 together with interest thereon and costs of the application and suit.It is so ordered.