[2020] KEHC 9400 (KLR)
The court found that the plaintiff is entitled to interest on the unpaid principal sum of Kshs. 5,831,690.90 at the contractual rate of 15% per annum, but only from 1st February 2007, as pleaded in the Amended Plaint, and not from 1st May 2005 as initially sought. The court reasoned that the effective date for...
Source-derived case information.
- Citation
- [2020] KEHC 9400 (KLR)
- Parties
- Plaintiff: Mathias Nasubo Ogama; Defendant: Rebman Ambalo Malala
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 129 of 2017
- Procedural Posture
- Notice of Motion / Post Judgment Enforcement Ruling
- Outcome
- Motion allowed in part; interest awarded from 1st February 2007 until payment in full; each party to bear own costs.
- Judges
- F Tuiyott
- Legal Topics
- Contract Enforcement, Interest on Judgment Debt, Retirement Agreement, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathias Nasubo Ogama
Plaintiff
Rebman Ambalo Malala
Defendant
Procedural Posture
Notice of Motion / Post Judgment Enforcement Ruling
Legal Issues
- 1 Whether the plaintiff is entitled to interest on the unpaid principal sum as per the Retirement Agreement.
- 2 From which date should interest on the unpaid sum accrue.
Ratio Decidendi
The court found that the plaintiff is entitled to interest on the unpaid principal sum of Kshs. 5,831,690.90 at the contractual rate of 15% per annum, but only from 1st February 2007, as pleaded in the Amended Plaint, and not from 1st May 2005 as initially sought. The court reasoned that the effective date for interest must align with the plaintiff's own pleadings, and the plaintiff cannot claim more than what was specifically requested. The court also confirmed that the principal sum due is not in dispute, and the only outstanding issue was the computation and commencement date of interest. The court thus allowed the motion in part, granting interest from the correct date, and ordered...
Court Disposition
Motion allowed in part; interest awarded from 1st February 2007 until payment in full; each party to bear own costs.
Orders
- Interest on the unpaid principal sum of Kshs. 5,831,690.90 to be paid at 15% per annum from 1st February 2007 until payment in full.
- Each party to bear its own costs for the motion.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
HCCC NO. 129 OF 2017
MATHIAS NASUBO OGAMA ................................................ PLAINTIFF
VERSUS
REBMAN AMBALO MALALA ………………………...... DEFENDANT
RULING
1. The unresolved portion of the Notice of Motion dated 9th July 2019 is for the following orders:-
1. This Honourable Court be pleased to enter final orders in terms of paragraph 44, 45 and 46 of this Honourable Court’s Judgment dated 5th October 2018 as follows:-
(ii) That interest on the unpaid principal sum owing sum of Kshs.5,831,690. 90 be paid in accordance with paragraphs 2(a)(ii), 2(b) and 3 of the Retirement Agreement of 19th May 2005 such interest being at the rate of 15% per annum with effect from the 1st May 2005 until payment in full.
2. It is now common cause that the amount due and outstanding to the Plaintiff from the Defendant is Kshs. 5,831,690. 90. The only outstanding issue is on interest. On this, the Court had in its decision of 5th October 2018 held;
44. The decision I reach is that Malala is in breach of the Terms of the Retirement Agreement and is liable to make some payment to Ogama. As to the exact amount due, this is a mathematical issue which this Court urges the parties to work and agree on. In the event of disagreement then the same shall be submitted to an Accountant to be appointed and paid jointly by the parties or in the absence of consensus to be appointed by the Chairperson of the Institute of Chartered Public Accountants (k) (ICPAK). Fees of the Accountant to be shared equally by the parties.
45. The Accounts will be done on the basis that a sum of Khs.12,402,390/= was due to Ogama from Malala and will establish;-
(i) Whether the amount paid so far is Khs.5,070,199/= by Ogamas’ version or Khs.6,570,699. 10 as asserted by Malala.
(ii) The interest that the unpaid sum has attracted by giving effect to clauses 2(a) (ii), 2(b) and 3 of the Retirement Agreement of 19th May 2005.
3. I do not perceive that the order brooks of any ambiguity and I therefore allow prayer (1) (ii) of the motion of 9th July, 2019 but with a rider that interest shall be charged with effect from 1st February 2007 until payment in full. The effective date is drawn from the Plaintiff’s own pleadings, the Amended Plaint of 4th February 2010. The Plaintiff cannot have more than what he asked for.
4. Just as in the main cause, each side shall bear its own costs for the Motion.
Dated, Signed and Delivered in Court at Nairobi this 17th Day of January 2020
F. TUIYOTT
JUDGE
PRESENT;
Aloo for Plaintiff
Omolo for Lubulellah for Defendant
Court Assistant: Nixon