https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4988

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. E170 OF 2023** **LOFTY LES FONDS LIMITED - PLAINTIFF** **VS** **TOTAL KENYA PLC - DEFENDANT** **RULING** **(In respect of the Defendant’s application dated 4/3/2026 and the Plaintiff’s** **application dated 10/4/2026)** 1. Before this Court are two applications for determination: the Defendant’s application dated 4/3/2026 and the Plaintiff’s application dated 10/4/2026. 2. The Defendant’s application dated 4/3/26 is brought under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, and under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The Defendant prays for the following orders THAT; 3. There be an order of stay of execution or the enforcement of the judgment and decree delivered on 19/2/2026 or any part thereof pending the hearing of the intended appeal and/or until further orders of this Court. 4. Costs of this application be granted to the applicant herein. 5. The application is premised on the grounds set out on the face of it and is further supported by the Affidavit of Boniface Abala, the Defendant’s Legal Manager, of even date. The deponent avers that judgment was delivered on 19/2/2026 in favour of the Plaintiff, awarding a sum of Kshs. 329,894,878/= together with costs and interest. Dissatisfied with the entire judgment, the Defendant has lodged a Notice of Appeal. 6. The Deponent states that a stay of execution is warranted pending the determination of the intended appeal, as the decretal sum is substantial and immediate execution would cause substantial loss. It is further deposed that the Plaintiff's financial capacity is unknown, creating uncertainty as to its ability to refund the decretal amount should the appeal succeed. Conversely, it is averred that the Defendant is a financially stable listed oil marketing company with assets exceeding Kshs. 70 Billion, hence capable of satisfying the decree if the appeal ultimately does not succeed. 7. The deponent further asserts that the intended appeal is arguable and raises several substantial questions of law and fact. 8. It is asserted that the application has been filed without delay and that the applicant is willing to furnish such security as the Court may direct. 9. In addition, it is contended that refusing a stay would undermine the Defendant's right of appeal and cause irreparable prejudice. By contrast, granting a stay would preserve the subject matter of the appeal and promote the overriding objective of ensuring the fair and proportionate administration of justice pending the determination of the intended appeal. 10. In its grounds of opposition dated 9/4/2026, the Plaintiff opposed the Defendant's application on the ground that it is frivolous, vexatious, devoid of merit, and an abuse of the court process intended solely to delay the Plaintiff/Respondent from enjoying the fruits of a lawfully obtained judgment. 11. It is further contended that the Defendant has failed to satisfy the threshold for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, having neither demonstrated the substantial loss it would suffer if the decretal sum were paid nor identified the nature or extent of any such loss. The Plaintiff further asserts that the Defendant failed to investigate the Plaintiff's financial standing and instead relied on the generalised assertion that its financial status is unknown, despite having been its tenant for over thirty years and therefore being well aware of its financial capability. 12. The Plaintiff further avers that the decree in issue is purely monetary and is therefore capable of restitution should the intended appeal ultimately succeed. It is maintained that the Plaintiff is a substantial company with sufficient financial resources and assets well in excess of the decretal sum, enabling it to refund the decretal amount if required. The Defendant, having occupied the Plaintiff's premises for decades, is fully aware of this financial capacity. Accordingly, it is argued that the Defendant has failed to establish that the intended appeal is arguable or that it would be rendered nugatory without a stay of execution, and that the Defendant appears to conflate the statutory right of appeal with an automatic entitlement to a stay of execution. 13. The Plaintiff also contends that the decretal sum of approximately Kshs. 400,000,000/= is insignificant compared with the Defendant's reported net worth exceeding Kshs. 32,000,000,000/= and cash at bank of over Kshs. 11,000,000,000/= as at the end of 2024. It is therefore argued that the Defendant will suffer no substantial, irreparable, or other loss if compelled to satisfy the decree pending appeal. Further, the Defendant is said to have failed to offer or furnish security for the due performance of the decree as required by law. The Plaintiff consequently urges the Court to dismiss the application with costs for want of merit. 14. In further response to the application, the Plaintiff filed a Replying Affidavit, sworn by Charles Njogu Lofty, its Director, on 9/4/2026. He reiterated the grounds set out in the opposition and urged the court to dismiss the application. 15. He added that the Plaintiff avers that it has the means and assets to make any refunds should the court find the appeal meritorious. [An elaborate list of assets is set out in para 9 of the Replying Affidavit] 16. That allowing the application would deny the Plaintiff the opportunity to economically utilise funds that ought to have been paid as rent since 2020. Conversely, that the Defendant, a multinational publicly listed company with substantial assets, would not be prejudiced by the Plaintiff's enjoyment of the judgment. That any potential loss to the Defendant, if any, if the application is not granted, is negligible compared to the prejudice it would suffer if the application were allowed. 17. Further, the Defendant has failed to satisfy the mandatory requirements for the grant of a stay under Order 42 Rule 6(2) of the Civil Procedure Rules by failing to demonstrate that it will suffer any substantial loss if the orders sought are not granted. The deponent contends that, given the Defendant's substantial asset base, pleaded at Kshs. 70,000,000,000/= in the supporting affidavit; the Defendant’s equity value of Kshs. 32,000,000,000/=; and cash at bank balances of over Kshs. 11,400,000,000/= as of December 2024, the decretal sum is fairly insignificant and payment thereof pending appeal would not adversely affect the Defendant's working capital or cash flows. On that basis alone, the allegations of substantial loss are therefore vague, speculative and unsupported by credible evidence. 18. Regarding the question of the appeal being rendered nugatory, the deponent maintains that the Defendant has neither demonstrated that the intended appeal is arguable nor shown that it would be rendered nugatory in the absence of the orders sought. He argues that the intended appeal is without merit, as it impermissibly challenges the court's reliance on valuation reports, seeks to revive an arbitration clause consistently dismissed by both the court and an arbitrator, attempts to avoid payment of rent properly incurred, and contests the award of contractually agreed interest. 19. Further, the Defendant has failed to offer any security for the decretal sum as required. In these circumstances, the Plaintiff urges the court to dismiss the application with costs, as it is devoid of merit. 20. The Plaintiff’s application is anchored on the provisions of Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The Plaintiff prays, in the main, for orders that; 21. This Honourable Court be pleased to review, correct and/or clarify its judgment delivered on 19th February 2026 by granting/addressing Prayer (6) of the Plaint dated 15th November 2023, which was inadvertently not addressed in the said Judgment, namely: “Interest on prayers (2), (4) and (5) above from the date of judgment until payment in full,” 1. This Honourable Court be pleased to review and correct under the “Slip Rule” its Judgment delivered on 19th February 2026 at paragraph 52 where the court erroneously stated: “52 The Plaintiff contends that, pursuant to Recital C of the Deed of Variation, the Lease was varied only to the extent of determining rent for the suit premises for the period between 1/7/2015 and 30/6/2025…”, by replacing “2025” with “2020” which is the correct date and is consistent with the pleadings, evidence, submissions and context. 1. Costs of this Application be provided for. 2. The application is premised on the face of the record and further supported by the affidavit sworn on 10/4/2026 by the Plaintiff’s Director, Charles Njogu Lofty. The Director avers that upon delivery of judgment by this Honourable Court on 19/2/2026 in favour of the Plaintiff, an inadvertent omission occurred in Prayer (6) of the plaint, which sought interest on certain awarded sums from the date of judgment until payment in full. The court neither addressed nor determined that prayer. It is contended that this omission constitutes an error apparent on the face of the record, rendering the relief partially undetermined, and that this Court possesses jurisdiction to review the same under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. 3. The deponent further asserts that the judgment contains a second error apparent on the face of the record at paragraph 52, where the Court recorded that the Plaintiff contended that the Deed of Variation varied the lease only in respect of rent for the period between 1/7/2015 and 30/6/2025. It is contended that this date is a typographical error, as the Plaintiff’s pleadings, submissions, witness testimony, and the evidence on record consistently refer to the period affected by the Deed of Variation as ending on 30/6/2020. The lease itself governed the subsequent term from 1/7/2020 to 30/6/2025. He states that the application was filed without unreasonable delay, that no prejudice will be occasioned to the Respondent, and that it is in the interests of justice for the judgment to be reviewed and clarified accordingly. 4. In its Replying Affidavit, sworn on 22/5/2026 by Boniface Abala, the Defendant’s Legal Manager, the Defendant contends that the trial court’s refusal to grant prayer 6 in the plaint was a deliberate exercise of judicial discretion and cannot be a proper ground for review. The deponent avers that any relief not expressly granted by the court is deemed to have been declined. He further states that the inclusion of the date 30/6/2025 in paragraph 52 of the judgment was neither accidental nor inadvertent but intentional and consistent with the evidence on record. He further states that the Plaintiff's witness expressly acknowledged the applicability of the deed of variation after 2020 and admitted to having received rent thereunder for the relevant period. It is contended that the evidence and pleadings established that the deed of variation governed the determination of rent for the period from 1/7/2015 to 30/6/2025, as correctly held by the court. 5. It is accordingly argued that any alleged misinterpretation of the facts or the law by the trial court, if any, is a matter for appeal rather than review. On that basis, the Defendant argues that the Plaintiff’s application is an afterthought, amounting to an impermissible attempt to re-litigate issues already determined. The court is thus urged to dismiss the application with costs. 6. The court directed the parties to file their submissions. The parties complied, filing two submissions each in support of and in opposition to the other’s application. The Plaintiff’s submissions are both dated 6/7/2026, whereas the Defendant’s submissions are both dated 19/6/2026. The Court has read and duly considered the submissions in its analysis and determination. Analysis and determination 1. I have considered the applications, the rival affidavits thereto and the submissions filed in support thereof. I distil the following three issues for determination: 2. Whether the Defendant has demonstrated that the orders of stay of execution pending appeal are merited. 3. Whether the Judgment delivered on 19/2/2026 in this suit should reviewed as sought by the Plaintiff; 4. Who should bear the costs of the suit? **Whether the Defendant has demonstrated that the orders of stay of execution pending appeal are merited.** 1. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides: “No order for stay of execution shall be made under sub rule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 1. Therefore, an applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. 2. In **Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365,** the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. 3. On the first condition of substantial loss is, it was observed in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, that: “No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 1. I agree with the position held by Platt, Ag. JA (as he then was) in Kenya Shell Limited vs. Kibiru [1986] KLR 410, at page 41 expressed himself as follows: “It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money”. 1. According to the authority cited above, demonstrating that substantial loss is likely to be suffered is central to granting a stay pending appeal. Following the principle that he who alleges must prove, the onus of proving substantial loss rests on the party seeking the stay. It is thus not enough to allege that one stands to suffer substantial loss. The Applicant must show that she will be totally ruined in relation to the appeal if the stay is not granted. The Defendant is therefore bound to place before the court real and cogent evidence showing that it stands a risk of suffering substantial loss, whether financially or otherwise, if the stay is denied. 2. In its submissions, the Defendant submits that it stands to suffer substantial loss, as the decretal sum of Kshs. 329,894,878/=, exclusive of costs and interest, is substantial by any standard. It further submits that, in a money decree such as this, the court is required to consider the magnitude of the amount involved. The Defendant further argues that there is no assurance that the Plaintiff would be able to refund the decretal sum should the appeal ultimately succeed, as no evidence has been adduced regarding the Plaintiff's financial standing, including audited accounts, annual returns, or proof of any income-generating business. 3. In response, the Plaintiff asserts that no legitimate reason has been advanced for keeping it away from the fruits of its Judgment, and that it is able to repay the decretal sum should the Appeal succeed. 4. It has been stated by the Courts that, whereas the Applicant bears the onus of proving that an Appeal in a monetary decree would be rendered nugatory by the Respondent’s inability to pay the decretal sum, where a reasonable fear has been raised, the burden shifts to the Respondent to prove their ability to do so. This position was stated by the Court of Appeal in National Industrial Credit Bank Ltd –vs- Aquinas Francis Wasike & Another [2006] eKLR, where the learned Judges opined as follows: “… while the legal duty is on the Applicant to prove the allegation that an appeal would be rendered nugatory because a Respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a Respondent or lack of them. Once an Applicant expresses a reasonable fear that a Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show what resources he has, since that is a matter which is peculiarly within his knowledge.” 1. See also the case of **Kenya Posts & Telecommunications Corporation vs. Paul Gachanga Ndarua [2001] eKLR** where **the Court of Appeal held as follows:** “There is also the possibility that it may be affirmed in whole or in part. Whatever the position will be this Court has a duty to guard against the Corporation’s success in its intended appeal being rendered nugatory. The respondent has not fully answered the Corporation’s assertion that he has no known assets. The decree in his favour is for a whopping kshs.53, million odd. That by ordinary standards is a very large sum of money and it was incumbent upon the respondent to satisfactorily counter the Corporation’s assertion that he had no known assets by showing the basic assets he has which if need would arise, he would depend on to repay the decretal sum. Of course, ordinarily the burden was on the Corporation to show that were its appeal to succeed, the success would be rendered nugatory because the respondent would be unable to restore the decretal sum if that sum was immediately paid out to the respondent. But in a case such as this where it is alleged that the respondent has no known assets, the evidential burden must shift to him to show that he has assets from which he can refund the decretal sum. That must be so because the property a man has is a matter so peculiarly within his knowledge that an applicant such as the Corporation may not reasonably be expected to know them. He did not do so. An undertaking to give security by way of a bank or insurance bond is, in the circumstances of this matter, not sufficient.” 1. What amounts to reasonable grounds for believing that a Respondent will not be able to refund the decretal sum is a matter of fact which depends on the facts of a particular case. In this case, the Applicant contends that the decretal amount is colossal and the Respondent is unlikely to repay. 2. In its Replying Affidavit, the Plaintiff has listed some of its assets with a total value of about Kshs. 974,000,000/=. The Plaintiff has annexed Certificates of Lease and/or Title Deeds, as well as Certificates of Search, for some of the properties it owns. Valuation Reports for the listed parcels have also been annexed. In addition, the Plaintiff has adduced Logbooks for the listed motor vehicles and proof of payment for those vehicles. The Plaintiff has evidently discharged its burden of proof. It has shown its financial capacity to refund the decretal sum in the event the appeal succeeds. 3. It is therefore the court’s finding that the Defendant has failed to prove that it is likely to suffer substantial loss if execution proceeds and the decretal amount is paid to the Plaintiff. 4. Secondly, the applicant must show that the application for a stay of execution was filed without unreasonable delay. The judgment in this suit was delivered on 19/2/2026, while the present application was filed on 4/3/2026. There is only about 14 days between the judgment and the filing of the present application. In my view, this period does not constitute an inordinate delay. 5. Thirdly, is the condition of payment of security for the due performance of the decree. The requirement of security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules is premised on the principle that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal fails. 6. In the case of Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates **& 2 Others (2014) eKLR** the court held that: “The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.” 1. Security is discretionary and it is upon the court to determine the same. The Defendant having indicated that it is ready to provide a bank guarantee as security, it is upon the court to set the terms thereof. 2. The hurdles under Order 42 Rule 6 of the Civil Procedure Rules must be met conjunctively. Looking at the totality of the circumstances of this case, this being a monetary decree and the Defendant having failed to prove substantial loss, the court finds that the Defendant’s application for stay of execution is not merited. It is hereby dismissed. **Whether the Judgment delivered on 19/2/2026 in this suit should reviewed as sought by the Plaintiff** 1. The substantive powers for reviewing a judgement or an order made by a court are set out in Section 80 of the Civil Procedure Act, while Order 45 of the Civil Procedure Rules 2010 sets out the procedural requirements. Pursuant to these provisions, the grounds for review are as follows. 2. Discovery of new and important matter or evidence 3. Mistake or error apparent on the face of the record; or 4. Any other sufficient reason. 5. The Plaintiff herein cites ‘error on the face of the record’ as the basis for seeking a review of the Judgment of the Court. It avers that the Court inadvertently failed to adjudicate on Prayer (6) of the Plaint, which reads as follows, ‘Interest on (2), (4) and (5) above from the date of judgment until payment in full.’ It argues that, although the Court intended to grant the prayer by allowing the claim as prayed, it mistakenly failed to address Prayer (6). As for the typographical error in the date at paragraph 52 of the Judgment, the Plaintiff argues that it was erroneously stated as “30/6/2025” instead of “30/6/2020” as stated in the record. 6. The Defendant, on the other hand, argues that the judge’s denial of prayer 6 was not inadvertent or erroneous, but intentional and within the Court’s discretion, and therefore cannot form the basis for review. It contends that this is a preserve of the Appellate Court. The Defendant submits that the parties had agreed on the applicable interest in the contract, and awarding any further interest is akin to the court rewriting the contract for the parties. As for the date in Paragraph 52, the Defendant argues that there was no error, as the court considered the evidence before it, particularly the Plaintiff’s witness, who admitted that the deed of variation was applicable post-2020. 7. Section 99 of the Civil Procedure Act Cap 21, universally recognized as the "slip rule," provides that: - “clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.” 1. Explaining the court’s inherent power to recall its own judgment, Sir Charles Newbold P held in the case of “Lakshmi Brothers Ltd – Versus - R. Raja & Sons (1966) EA 313” at page 315 as follows: - “Indeed, there has been a multitude of decisions by this court, on what is known generally, as the slip rule, in which the inherent jurisdiction of the court to recall a judgment in order to give effect to its manifest intention has been held to exist. The circumstances, however, of the exercise of any such jurisdiction are very clearly circumscribed. Broadly these circumstances are where the court is asked in the application subsequent to the judgment to give effect to the intention of the court when it gave its judgment or to give effect to what clearly would have been the intention of the court had the matter not inadvertently been omitted. I would here refer to the words of this court given in Raniga case (2) (1965) E.A. at p. 703 as follows: - “A court will, of course, only apply the slip rule where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given, or in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention.” These are the circumstances in which this court will exercise its jurisdiction and recall its judgment, that is, only in order to give effect to its intention or to give effect to what clearly would have been its intention had there not been an omission in relation to the particular matter.” 1. The Court of Appeal had earlier on held as follows in “Vallabhdas Karsandas Raniga – VS - Mansukhlal Jivraj and Others (1965) 1 EA 700(CAN)”: - “Section 3(2) of the Appellate Jurisdiction Act confers on the Court of Appeal the same jurisdiction to amend judgments, decrees and orders that the High Court has under section 99 of the Civil Procedure Act, making it unnecessary to look to the inherent powers of the court. The words “at any time” in section 99 clearly allow the power of amendment to be exercised after the issue of a formal order …. “Slip orders” are made to rectify omissions resulting from the failure of counsel to ask for costs and other matters to which their clients are entitled .….. A court will only apply the slip rules where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention. In the present case, if the facts had been before the court when judgment was given on appeal, the court would, on application or indeed of its own motion, have made the order for refund, now sought, which was necessarily consequential on the decision on the main issues.” [Emphasis mine] 1. The Civil Procedure Rules provide under Order 21 Rule 3 (3) that: - “A judgment once signed shall not afterwards be altered or added to save as provided by section 99 of the Act or on review.” 1. The Australian Civil Procedure has provisions in “pari materia” with Section 99. As was stated in the case of “Newmont Yandal Operations Pty Limited – Versus - The J. Aron Corp & The Goldman Sachs Group Inc. [2007] 70 NSWLR 411”, “the inherent jurisdiction extends to correcting a duly entered judgment where the orders do not truly represent what the court intended. A court will, of course, only apply the slip rule where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention.” 1. From the above-cited decisions, the court can apply the slip rule where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked. Where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention. What is certainly not permissible in the application of Section 99, is to ask the court to sit on appeal on its own decision, or where the amendment requires the exercise of an independent discretion, or generally where the intended corrections go to the substance of the judgment or order. 2. In the instant case, the Court at paragraph 79 of the Judgment stated that it was of the considered view that the Plaintiff had discharged the burden of proof hence its suit was meritorious. The court held that the Plaintiff’s suit is allowed as prayed. Evidently, the court intended to grant Prayer 6 of the Plaint, albeit on its merit. 3. Although the Defendant contends the Court is functus officio on the said prayer, the same could only be applicable if the court had pronounced itself on the issue. The principle of functus officio is therefore not applicable in the instant circumstances. 4. It is therefore my finding that the court intended to grant Prayer No. 6 of the Plaint on its merit. The omission to address the prayer of interest was nothing but a simple inadvertent slip and/or clerical error. 5. In the persuasive decision of Vishva Builders Limited v Moi University [2024] KEHC 1891 (KLR), where the Learned Judge held that; “In fidelity to the guide given by the Supreme Court in the case of Fredrick Otieno Outa –vs- Jared Odoyo Okello and 3 Others [2017] eKLR, I am clear in my mind that in this instant case, the “slip rule” permits me to correct the error since the same is apparent on the face of the Judgment of 2/02/2024. The error is so obvious that its correction cannot generate any honest controversy regarding the decision of the Court. Further, the error is of such nature that its correction would not change the substance of the Judgment or alter the clear intention of the Court. I am satisfied that contrary to the protests by the Defendant’s Counsel, invoking “slip rule” herein does not and cannot be interpreted to amount to usurping of jurisdiction or sitting on appeal over this Court’s own Judgment. The correction does not also amount to review of the Judgment as to substantially alter it. I am therefore satisfied that the correction is in fact a demonstration of the true import of the “slip rule”. 1. Section 26 of the Civil Procedure Act which provides as follows: 2. Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest 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. 3. Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid 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. 4. In the case of Jane Wanjiku Wambu -vs- Anthony Kigamba Hato & 3 Others [2017] eKLR, the court drew out several principles derived from the general rule in Section 26 of the Civil Procedure Act, which have, over time, acquired stable meanings. The following three principles seem relevant to the case at hand; 5. First, at all times a Trial Court has wide discretion to award and fix the rate of interest provided that the discretion must be used judiciously. 6. Second, under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely: The period from the date the suit is filed to the date when the Court gives its judgment; and the period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the Court may, in its discretion fix. 7. Third, when it comes to the period before the filing of the suit, Section 26 of the Civil Procedure Act has no application. Instead, interest prior to the date of the suit is a matter of substantive law and is only claimable where under an agreement there is stipulation for the rate of interest (contractual rate of interest) or where there is no stipulation, but interest is allowed by mercantile usage (which must be pleaded and proved) or where there is statutory right to interest or where an agreement to pay interest can be implied from the course of dealing between the parties. 8. The Plaintiff herein seeks interest on its reliefs in prayers 2, 4 and 5. I note that the Defendant did not expressly address the said prayer in its Amended Defence dated 6/12/2023. Further, although the Defendant, in its final submissions dated 1/8/2025, identified the last issue for determination as ‘whether the Plaintiff is entitled to the claims sought’, it contended only for the grant of interest on prayer 4, not on the other two prayers. 9. Under prayer 2, the Plaintiff sought Kshs. 236,866,510.69, representing the open market rent for the period from 1/7/2020 to 30/6/2024. As stated in the Judgment, the parties executed a Lease Agreement dated 11/5/2005 for a term of 20 years. The Lease did not provide for interest on rent arrears. However, the subsequent Deed of Variation dated 20/8/2015 provided for interest on rent arrears. Clause 9 thereof provides that; ‘Any rent in arrears for more than eighteen (18) days from the due date (July 1st) shall attract penalty interest at Kenya Shilling base lending rate as may be published by Barclays Bank of Kenya Limited (from time to time) from the date it was due until the date it is paid in full (both days inclusive). This shall not apply to the first year provided that the rent for 2015 is paid on or before the thirtieth (30th) day of July 2015.’ 1. Parties having agreed on the interest payable shall be at Kenya Shillings base lending rate as may be published by Barclays Bank of Kenya Limited, that is the applicable rate. At the time of Judgment, the lending rate at Absa Bank Kenya (formerly Barclays) was 13.48% per annum. Therefore, the amount granted at Prayer 2 of the Plaint shall attract 13.48% per annum from the date the rent fell due till payment in full. 2. The Plaintiff also sought interest on prayer 4. The Plaintiff sought interest at 14.5 % per annum from the respective dates stated thereon till the date of the Judgment. The said relief was already granted by the Court in the Judgment. 3. The Plaintiff also sought interest on costs of the suit, that is, prayer 5 of the Plaint. The authority and discretion of a Court to award interest on costs is provided for in Section 27(2) of the Civil Procedure Act. It is in the following terms: The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 1. There is no rule of thumb that a successful litigant who has been awarded costs must get interest on those costs. Indeed, the decisional principle in our jurisdiction seems to run in the opposite direction: it is not normal to award interest on costs. This was the holding in Hasanali v City Motor Accessories Ltd & Others [1972] EA 423. “I have no doubt that this court has power to award interest on costs but it is not the normal practice and I do not consider that facts of this issue call for a warrant a departure from the normal practice.” 1. The Plaintiff has not stated the reasons why the court should depart from the normal practice and grant interest on costs. Accordingly, I exercise my discretion and decline to grant interest on costs of the suit. 2. The second prayer of the application is a correction of the date at paragraph 52 of the Judgment from 30/6/2025 to 30/6/2020. It is evident that Recital C of the Deed of Variation provided for a five (5) year period of the term commencing on 1/7/2015. The period therefore runs from 1/7/2015 to 30/6/2020 NOT 30/6/2025. 3. I therefore find that there is an error apparent on the face of the record and an accidental slip occurred. The period of the term thereof is therefore amended from 1/7/2015 to 30/6/2025 to 1/7/2015 to 30/6/2020. 4. In the upshot, the two applications are determined in the following terms; - 5. The Defendant’s application dated 4/3/2026 seeking stay of execution of the Judgment delivered on 19/2/2026 is hereby dismissed. 6. The Plaintiff’s application dated 10/4/2026 is partially allowed in the following terms; 7. The prayer to review, correct and/or clarify its judgment delivered on 19/2/2026 to grant/address Prayer (6) of the Plaint dated 15/11/2023 is allowed only in terms of interest on prayer 2 of the Plaint. 8. The prayer to review and correct under the “Slip Rule” its Judgment delivered on 19/2/2026 at paragraph 52 where the court erroneously stated: “52 The Plaintiff contends that, pursuant to Recital C of the Deed of Variation, the Lease was varied only to the extent of determining rent for the suit premises for the period between 1/7/2015 and 30/6/2025…”, by replacing “2025” with “2020” is allowed. 1. Accordingly, the Judgment delivered herein on 19/2/2026 is corrected as follows: - 2. Paragraph 52 shall read as follows; The Plaintiff contends that, pursuant to Recital C of the Deed of Variation, the Lease was varied only to the extent of determining rent for the suit premises for the period between 1/7/2015 and 30/6/2020. 1. Prayer f is added as follows: f. The amount granted at Prayer 2 of the Plaint shall attract interest at 13.48% per annum from the date the rent fell due till payment in full. 1. Each party shall bear its own costs 2. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF JULY 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Mr. Omuganda for the Plaintiff 2. Mr. Thange for the Defendant 3. C.A – Mr. Amos