[2018] KEHC 6152 (KLR)
The court held that since the appellate court, in partially allowing the appeal, substituted the trial court's award but did not address the issue of interest, the interest as ordered by the trial court remains applicable to the substituted award. The trial court's decree expressly provided for interest on the...
Source-derived case information.
- Citation
- [2018] KEHC 6152 (KLR)
- Parties
- Appellant: Emmanuel Otieno Kongili; Appellant: South Nyanza Sugar Co. Ltd; Respondent: Jimmy Joseph O. Owuor
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 74 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion Regarding Interest After Partial Allowance of Appeal
- Outcome
- Application allowed; interest ordered by the trial court applies to the substituted award.
- Legal Topics
- Appeal Awards, Interest on Judgment, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Otieno Kongili
Appellant
South Nyanza Sugar Co. Ltd
Appellant
Jimmy Joseph O. Owuor
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion Regarding Interest After Partial Allowance of Appeal
Legal Issues
- 1 Whether interest awarded by the trial court remains applicable to the substituted award after partial allowance of appeal.
- 2 Whether the appellate court's silence on interest affects the enforceability of the trial court's order on interest.
Ratio Decidendi
The court held that since the appellate court, in partially allowing the appeal, substituted the trial court's award but did not address the issue of interest, the interest as ordered by the trial court remains applicable to the substituted award. The trial court's decree expressly provided for interest on the awarded sum until payment in full, and the appellate court's silence on the matter does not amount to a variation or setting aside of that order. Therefore, the substituted award by the appellate court attracts interest as per the original trial court decree.
Court Disposition
Application allowed; interest ordered by the trial court applies to the substituted award.
Orders
- Interest ordered by the trial court on the awarded sum applies to the substituted award until payment in full.
- Matter to be mentioned on 24th July 2018 for final order on interest payable.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. 74 OF 2010
BETWEEN
EMMANUEL OTIENO KONGILI........................1ST APPELLANT
SOUTH NYANZA SUGAR CO. LTD...................2ND APPELLANT
AND
JIMMY JOSEPH O. OWUOR...................................RESPONDENT
(An Appeal arising from the Judgment and Decree of Hon. G. Oduor SRM dated 23rd March 2010 in Kisii CMCC No. 229 of 2006)
RULING
I am constrained to allow the appellants’ Notice of Motion dated 5th June 2015. The issue is straightforward. The appeal was allowed partially and substituted the trial court’s award amounting to Ksh. 170,500/=. The appellate court did not make an award of interest or indeed mention the same. In my view, the issue of interest was never a ground of appeal and the substitution was only in respect of the total award in the trial court hence the interest ordered by the trial court remained and applied to the substituted award. Accordingly, to the interest ordered by the trial court, which was not effected by the order allowing the appeal “partially” is applicable. The decree of the trial court dated 23rd March 2010 states that the “Defendant do pay the plaintiff interest on the awarded sum until payment in full”. In this case “the awarded sum” is now the High Court appeal substituted award in the trial court which attracts interest.
As parties have requested, the matter will be mentioned on 24th July 2018 for the final order on interest payable.
D.S MAJANJA , J
19/6/2018
Court: Ruling read and delivered in open court.
D.S MAJANJA, J
19/6/2018