[2015] KEHC 3973 (KLR)
The High Court, sitting as an appellate court, determined that it could not alter the lower court's decree regarding interest because there was no cross-appeal by the respondent. The court found that the lower court's judgment, which awarded interest at 8% from 9th February 2011 until payment in full, remained...
Source-derived case information.
- Citation
- [2015] KEHC 3973 (KLR)
- Parties
- Appellant: African Merchant Assurance Co. Ltd; Respondent: Jane Otieno
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 100 of 2012
- Procedural Posture
- Civil Appeal / Post Judgment Ruling on Interest and Date Applicable
- Outcome
- Application on interest and commencement date determined; lower court decree on interest upheld.
- Judges
- MM Kasango
- Legal Topics
- Interest Award, Declaratory Judgment, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
African Merchant Assurance Co. Ltd
Appellant
Jane Otieno
Respondent
Procedural Posture
Civil Appeal / Post Judgment Ruling on Interest and Date Applicable
Legal Issues
- 1 What is the applicable rate of interest on the principal sum awarded to the respondent.
- 2 From which date is the interest on the principal sum to be calculated.
Ratio Decidendi
The High Court, sitting as an appellate court, determined that it could not alter the lower court's decree regarding interest because there was no cross-appeal by the respondent. The court found that the lower court's judgment, which awarded interest at 8% from 9th February 2011 until payment in full, remained undisturbed. The appellate court's role was limited to the issues raised in the appeal, and since the respondent did not challenge the lower court's findings, the appellate court was bound to uphold the interest rate and commencement date as set out in the original decree. The court expressly declined to exercise discretion under section 26 of the Civil Procedure Act, holding that...
Court Disposition
Application on interest and commencement date determined; lower court decree on interest upheld.
Orders
- Interest rate is 8%.
- Interest applies from 9th February 2011 until payment in full.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL NO. 100 OF 2012
AFRICAN MERCHANT ASSURANCE CO. LTD........APPELLANT
VERSUS
JANE OTIENO..........................................................RESPONDENT
R U L I N G
This court delivered a judgment to this appeal in 19th June 2014 whereby the appellants appeal was dismissed with costs. The effect of that dismissal was to keep in place without disturbing the lower court's judgment which was in favour of the respondent in this appeal. By that lower court's judgment the respondent succeeded in having declaratory judgment entered in her favour against the appellant, an insurance firm.
This court having upheld that declaratory judgment the respondent was entitled to be paid the principal sum, which the parties agree is Ksh 869,675/= What however is now contested is the applicable rate of interest , toward that principal sum and which date is that interest applicable. Parties agreed to do written submission on those two issues and it is those two issues that this Ruling is addressing.
I must begin by stating that I have carefully considered the parties written submissions but in my view both parties largely expended their energies in those submissions on matters that I need not consider in this Ruling. For example the provisions of section 26 of the Civil Procedure Act or whether the court has, in this case, discretion to determine the interest payable and the date from which it should apply.
I hold the view that this court is restricted in its determination of the issues agreed by parties because this was the appellate court. Being so it was restricted to only determine the appeal before it. The court made that determination by its judgment of 19th June 2014, when it dismissed the appeal. This court was not faced by a cross appeal by the respondent. The respondent, therefore did not challenge the judgment of the lower court. It is therefore to the lower court that I shall look to, to determine the issues before me.
After the respondent obtained a judgment on 9th February 2011 in her favour in the lower court under the case Mombasa CMCC NO. 387 of 2006, a decree was drawn by that court dated 1st November 2011. That decree reflected judgment in favour of the respondent as follows:
- Principal Amount Ksh 826,575. 00
- Interest at 8% Ksh 636,462. 00
- Decretal Amount Ksh 1,463,037. 00
That decree did not show the date from which the interest was applicable. But the decree did note that judgment was as at 9th February 2011.
From the information above, and because the respondent did not cross appeal for the lower court decree to be disturbed I find that:
- Interest rate is 8%.
- That interest will apply from 9th February 2011utill payment in full.
8. It is so ordered.
Dated and delivered at Mombasa this 25th day of June 2015.
MARY KASANGO
JUDGE
25. 6.2015
Coram
Before Justice Mary Kasango
C/Assistant – Kavuku
For Appellant:
For Respondent:
Court
The Ruling delivered in their presence/absence in open court.
MARY KASANGO
JUDGE