[2023] KEHC 26488 (KLR)

Ali & another (Suing as the Administrator of the Estate of the Late Hussein Asman Ali) v Multiple Hauliers E.A. Ltd (Civil Suit 2 of 2016) [2023] KEHC 26488 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26488 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit 2 of 2016

FROO Olel, J

December 14, 2023

Between

Hassan Osman Ali

1st Plaintiff

Alima Hassan Ibrahim

2nd Plaintiff

Suing as the Administrator of the Estate of the Late Hussein Asman Ali

and

Multiple Hauliers E.A. Ltd

Defendant

Ruling

1. The application before this court for determination is the Notice of Motion application dated 17th February 2021 brought pursuant to provisions of Section 26(2) of the civil procedure Act and all other enabling provision of law. By the said application, the plaintiff/applicant seeks to have this court give direction as to the issue of interest pursuant to provisions of section 26(2) of the civil procedure Act. The application is supported by a supporting affidavit dated 17th February 2021 sworn by Nelson Harun Muturi the advocate for the plaintiff/applicant, wherein he did state that the decree issued herein was silent on the issue of interest applicable and pursuant to the said section 26(2) of the civil procedure Act, the court had powers to award interest at court rates.

2. The Respondent did oppose this application through their counsel’s replying affidavit sworn by one Ooko Stpehen, wherein he did state that the award of interest was made at the discretion of the court and once the court had given its verdict, it became functus officio. If the plaintiff/applicant was dissatisfied with any part of the said judgment, their only option was to file an appeal. Section 26(2) relied upon was only applicable to further interest but not where the initial judgment did not provide for any interest.

Determination 3. I have carefully considered the Application before court, its supporting affidavit, the replying affidavit filed in opposing the said application and both sets of submissions filed in support and in opposition to the said application and do find that the only issue for determination is whether this court award the plaintiffs/applicants interest on the judgment deliver on 3rd August 2017.

4. Order 26 of the civil procedure Act does provide that the court may award interest on the degree for payment of money.Order 26 (1) of the civil procedure Act provide that;“where and in so far as a decree is for payment of money, the court may, in the decree order interest at such rate as the court deems reasonable to be paid on the principle sum adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.”Order 26 (2) of the civil procedure Act; further provides that;“where such a decree is silent with respect to the payment of further interest on such aggregate sum as foretasted from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum”

5. As enumerated above, under section 26(2) of the civil procedure Act, where judgment is silent on interest, then the applicable interest rate is 6%. In the case of B.O.G Tambach teachers training college Vrs Mary Kipchumba (2018) eKLR Muriithi J, did state that“To be sure the 1982 practice note did not pretend to amend or guide application of the rate of interest where the court was silent on applicable rate. The practice note clearly affected only “the power of the court to order interest to be paid at such rate as the court deems reasonable” This power to order reasonable interest is provided for under section 21(1) of the Act. Indeed section 26(2) of the Act applies to situations where the decree of the court is silent that is where court does not order any rate of interest and this provision has not been amended.”

6. In the case of Mukisa Biscuits Manufacturing ltd Vs West end Distributers ( No 2 (1970) EA, 469 at 475, spray V.P did state that;“The principle that emerges is that where a person is entitled to a liquidated amount or to specific goods and has ben deprived of them through the wrongful act of another person, he should be awarded interest from the date of filing the suit. Where however damages have to be assessed by court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of judgment.”

7. The rationale and/or justification for an award of interest on the principle sum is so as to compensate the plaintiff for any deprivation of any money that is rightfully due to him/her, through the wrongful act of the defendant. Thus in Highway furniture Mart Ltd Vrs Permanent secretary office of the president & Another ( 2006) eKLR, it was pointed out thus;“The justification for an award of interest on the principal sum is to compensate a plaintiff for the deprivation of any money or specific goods through the wrong act of the defendant.

8. Further in Lata Vrs Mbiyu (1965) EA 392 it was held that;“The award of interest on a decree of money for a period from the date of the suit to the date of the decree is a matter entirely within the discretion of the court by section 26 of the civil procedure Act, but such discretion must, of course be judicially exercised……. It is clearly right that in cases where the successful party was deprived of the use of goods or money by reason of a wrongful act of the defendant, the party who has bene deprived of the use of the goods or money to which he is entitled should be compensated for such deprivation by the award of interest” Also see {Ajay Indravadan shah Vs Guilders International Bank Ltd (2003) eklr & Dipak Emporium Vs Bonds clothing (1973) E.A 553. }

9. Finally, even where the judgment did not award the plaintiff interest in a money decree. courts are guided by the provisions of Article 159(2)(d) of the Constitution and Section 1A and 1B of the Civil Procedure Act in administering justice. The focus being on substantive justice, rather than procedural technicalities, and the just, efficient and expeditious disposal of cases.

10. In Stephen Boro Gitiha vs. Family Finance Building Society & 3 Others Civil Application No. Nai. 263 of 2009, Nyamu, JA held inter alia that the overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way.

11. The same Judge in Kenya Commercial Bank Limited vs. Kenya Planters Co-Operative Union Civil Application No. Nai. 85 of 2010 held that:“where there is a conflict between the statute (overriding objective principle) and a subsidiary legislation (rules of the court) the statute must prevail. Although the rules have their value and shall continue to apply subject to being O2 complaint, the O2 principle is not there to fulfil them but to supplant them where they prove to be a hindrance to the O2 principle or attainment of justice and fairness in the circumstances of each case.”

12. The Court is expected to ensure that the aims of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie. In the circumstances of this case, it would be plainly unfair and unjust to deny the plaintiff/applicant interest on judgment for the simple oversight that the same was not mentioned in the judgment delivered on 3rd August 2017. Either way under section 26(2) of the civil procedure Act or under the provisions of Section 1A & 1B of the said Act, the orders sought are merited.

Disposition 13. The plaintiff/applicant application dated 17th February 2021 has merit. The same is allowed in terms of prayer (2). Interest is hereby awarded on the judgment dated 3rd August 2017 at 6% per annum from the date of judgment until date of payment/settlement of the decree.

14. Each party shall bear their own costs of this application.

15. It is so ordered.

READ, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS ON THIS 14TH DAY OF DECEMBER, 2023. FRANCIS RAYOLA OLELJUDGEIn the presence of: -Mr. Muturi for plaintiffMr. Ooko for defendant