The French oil marketer Rubis Energy Kenya is embroiled in a dispute with the aviation services provider Skytanking Kenya Limited, claiming an unpaid bill of Sh396.4 million for jet fuel supplied more than two years ago.
In the dispute, filed at the High Court in Nairobi, Rubis is claiming a sum of $2,726,127 (equivalent to Sh352.3 million) as the principal sum, plus $341,436.90 (Sh44,130,719) in interest, cumulatively Sh396.4 million. Rubis is asking for interest at a rate of two percent London Interbank Offer Rate.
However, Skytanking claims to have paid the sum by remitting $6,115,846 (Sh790.4 million at current exchange rates).
Skytanking offers aviation services, including ground handling, into-plane fuelling, aviation fuel storage, and investment in aviation fuel facilities at airports. It also provides engineering services to support airline, airport and oil company customers.
According to the contract, Rubis supplied the company with jet fuel on various days between April 1 and September 30, 2022.
Pending determination of the claim, Justice Bernard Musyoki rejected Rubis’ request for an instant judgment on grounds that the aviation firm had admitted the debt.
The judge said he could not make a ruling based on two other ongoing proceedings in the chief magistrate and insolvency courts, where the aviation company has allegedly admitted liability.
He noted that issues raised by Skytanking’s defence raises issues that warrant a full hearing, such as the claim of payment of $6.1 million.
“Rubis has not exhibited the defence it may have filed in the said chief magistrate’s court’s suit to enable this court ascertain whether existence of the debt in this matter was made an issue in the said suit. This court cannot deduce or assume an admission based on pleadings in a separate suit especially where the other suit is a contested one,” said Justice Musyoki.
The court took note of Skytanking’s explanation that one of the other cases was litigation between Rubis and one of the Skytanking’s directors, which has no bearing on the current dispute neither did it concern the company.
“I have looked at the pleadings produced by Rubis. It is clear that the suit was filed by Mark Kithuka Mutua against Rubis with Metropol Credit Reference Bureau Limited being an interested party. The cause of action in that suit was a defamation claim where the said director was seeking damages for being listed by the interested party as a defaulter of debts allegedly owed by Skytanking,” he stated.
The said director stated that the listing was a reckless and deliberate action meant to defame him.
“It is my considered view that those averments and pleadings cannot be construed as admission of the debt claimed in this suit because, in addition to the said director being a separate entity from Skytanking, the basis of the suit was denial of existence of the alleged debt. Even the figures stated in the said suit are worlds apart from the amount claimed in this matter,” said the judge.
He also noted that the alleged admission in the insolvency case was an expression by Skytanking in an affidavit that it was able to pay its debts.
“I don’t see how this statement amounts to an admission. I have gone through the replying affidavit and in my view, the contents negate any form of admission. The deponent stated that the defendant would pay its debts as and when the same fell due and that by April 2022, the defendant had cleared its then pending debts,” said the judge.
