ABDULHAMID ESMAIL vs MOHAMMED KASSAM & HUSSEIN DAIRY LIMITED [2001] KEHC 379 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL SUIT NO.442 OF 1998

ABDULHAMID ESMAIL ……………………………..……… PLAINTIFF

V E R S U S

MOHAMMED KASSAM………………………………1ST DEFENDANT

HUSSEIN DAIRY LIMITED…………………………..2ND DEFENDANT

R U L I N G

The Notice of Motion dated 23. 11. 1998 is totally misconceived and must fail. It is an application for summary judgment under O.35 r.1 & 2 of the Civil Procedure Rules where the Plaintiff seeks the following order:-

“1. That Judgment may be entered against the Defendants jointly and severally as prayed in the Plaint.

a) Kshs.8,729,400/ - liquidated damages.

b) Kshs.1. 5 million being value of the motor vehicle.

c) Kshs.47,005,627. 90 under paragraph 9.

d) Kshs.319,173/ - for tyres and repairs”.

The total of those figures is Kshs.57,554,200. The sum is said to “prayed in the Plaint” and one would therefore expect the final prayers made in the Plaint to state that figure and for filing fees in respect thereof to have been paid. Turning to the Plaint however, the main prayer made therein is:-

“Specific performance of the said Agreement”

.     And in the alternative “the value thereof ”.

The other main prayer is for “financial loss and damages ”. The fees paid for filing that Plaint was Kshs.3,175/= since no specific amount was prayed for. That would mean one of two things:- either that the Plaintiff did not wish to claim any specific sum leaving it to the court to determine the quantum after hearing the suit; or that the Plaintiff intended to claim specific amounts which he deliberately avoided to pray for with the intention of avoiding payment of high Court-filing fees. Neither of them attracts favourable consequences.

In the latter proposition the Plaintiff must be prepared to have the filing fees reassessed and paid before the claim can be considered; while in the former proposition the whole matter is removed from the ambit of O.35 r.1 Civil Procedure Rules. I would indeed add that it would be fraudulent and an abuse of the court process to deliberately omit prayers for special damages which are apparent on the pleading, with the sole purpose of avoiding payment of prescribed Court Fees. A party so inclined will not be treated with favour by the Court.

At all events it is clear to me that the application is made under a misapprehension that it falls within the ambit of Order 35 r.1. Rule 1(1)(a) provides:-

“1(1) In all suits where a Plaintiff seeks judgment for …..

(a) a liquidated demand with or without interest”.

Learned counsel Ms Echesa for the Applicant submits that although the figures stated in the application are not prayed for in the Plaint they form liquidated damages which are pleaded in the Plaint. With respect, “liquidated damages” are not synonymous with “liquidated demand”. I had occasion to consider similar submissions in the past and I clarified the position on authority. In two cases HCCC.31/95ESSAK –v- MWANYOTA & 2 OTHERS (UR) and HCCC.12/97 PAMBO LA NYUMBA LTD. –vs- ROBERTO CELLINI(UR) I stated:

“In the Essak case above, I quoted Wambuzi J.A. in Gupta –vs- Continental Builders Ltd (1978) KLR at page 95 “…… under Order 35 Rule 1 …….. an application for summary judgment must be for a liquidated demand”. I also accepted the exposition of the words “Liquidated demand” as foud in the Supreme Court Practice 19 85 Vol.I and Halsbury’s Laws 4 th Edn. Vol.26, thus; “A liquidated demand is in the nature of a debt ……. If the ascertainment of a sum of money even though it be specified or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a “debt or liquidated demand” but constitutes “damages”.

A claim for unliquidated damages is not made a liquidated demand by the Plaintiff naming a definite figure”. I came to the conclusion that Order 35 Rule 1(a) is applicable where the Plaintiff seeks to recover a sum that is “indisputably due” or “ is agreed to be paid”.

In the defence filed and in submissions of learned counsel for the Defendants Mr. Salim Ghalia, it is denied that the amounts claimed were either due or agreed. They are in the nature of special damages which have to be pleaded specifically and strictly proved.

In my Judgment the figures cited require investigation beyond mere calculation and are not indisputably due or agreed to be paid. There are numerous triable issues at any rate even if it was a liquidated demand, which it is not.

I dismiss the application with costs.

Dated this 15th day of March 2001.

P.N. WAKI

J U D G E