[2009] KEHC 2719 (KLR)
The court found that the omission to award interest in the original judgment was an error, as interest is awardable as a matter of right once judgment and costs are granted to the plaintiff. The court accepted that the judgment should be reviewed to include an order for interest at court rates on the judgment sum...
Source-derived case information.
- Citation
- [2009] KEHC 2719 (KLR)
- Parties
- Plaintiff: Jasper Juma Nzuki; Defendant: James Wanyamu Mathuku; Defendant: Mutuku Wanyamu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 45 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Review of Judgment
- Outcome
- Application for review allowed; judgment reviewed to include award of interest at court rates from date of judgment until payment in full.
- Judges
- I Lenaola
- Legal Topics
- Review of Judgment, Award of Interest, Court Rates, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jasper Juma Nzuki
Plaintiff
James Wanyamu Mathuku
Defendant
Mutuku Wanyamu
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the omission to award interest in the original judgment was an error warranting review.
- 2 What rate and period of interest should be applied to the judgment sum and costs.
Ratio Decidendi
The court found that the omission to award interest in the original judgment was an error, as interest is awardable as a matter of right once judgment and costs are granted to the plaintiff. The court accepted that the judgment should be reviewed to include an order for interest at court rates on the judgment sum and costs from the date of judgment until payment in full. The court exercised its discretion under Section 26 of the Civil Procedure Act to award interest at court rates, aligning with established case law and the specific prayer in the plaint. Costs of the application were ordered to be in the cause, as the omission was not attributable to either party.
Court Disposition
Application for review allowed; judgment reviewed to include award of interest at court rates from date of judgment until payment in full.
Orders
- Interest is awarded to the Plaintiff on the judgment sum and costs at court rates from the date of judgment until payment in full.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CIVIL CASE 45 OF 2002
JASPER JUMA NZUKI ………………………………………….… PLAINTIFF
VERSUS
JAMES WANYAMU MATHUKU ……………………………. 1ST DEFENDANT
MUTUKU WANYAMU ……………………………………… 2ND DEFENDANT
RULING
1. On 17/9/2008, I delivered judgment in this matter and awarded Kshs.1,390,662/= plus costs. The Judgment was silent on interest although at prayer (iv) in the Plaint there was a specific prayer for “interest …at court rates”.
2. By its Notice of Motion dated 17/11/2008 the Plaintiff sought a review of the judgment to include the element of interest. That Application is unopposed as no Replying Affidavit nor grounds of opposition were filed in response to it. I note however that the advocate for the Defendant in his submissions invoked Section 26 (2) of the Civil Procedure Act in arguing that interest should be at 6% p.a. as was stated by Kasango J in Sanam Investments Ltd vs Pointex (K) Ltd & 2 Others (2004) e KLR at Page 3.
3. On the same point the advocate for the Plaintiff relying on the decision of Maraga Ag. J (as he then was) in Ali Abdalla Mbarak and Jagdish Udani H.C.C.C 3/2002 (Msa) argues that interest should be at court rates from the date of filing suit till payment in full.
4. I agree with both advocates and would state that failure to award interest was an omission on my part because once I entered judgment in favour of the Plaintiff including on the issue of costs, then interest was awardable as a matter of right. I therefore accept the argument that the judgment dated 17/9/2008 should be reviewed to include the following order:
“Interest is awarded to the Plaintiff on the judgment sum and costs at court rates from the date of judgment until payment in full.”
5. Costs of the Application shall be in the cause as no party is to blame for the omission.
6. Orders accordingly.
Dated and delivered at Machakos this 12thday of May2009.
ISAAC LENAOLA
JUDGE
In the Presence of: Mr Mutia h/b for Mr Tindika for Plaintiff
N/A for Defendant
ISAAC LENAOLA
JUDGE