[2022] KEHC 11855 (KLR)

Musa Mohammed Dagane & 25 others v Attorney General & another; Kenya National Commission on Human Rights & another (Interested Parties) (Constitutional Petition 56 of 2009) [2022] KEHC 11855 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11855 (KLR)

Republic of Kenya

In the High Court at Embu

Constitutional Petition 56 of 2009

LM Njuguna, J

July 13, 2022

Between

Musa Mohammed Dagane & 25 others

Petitioner

and

Attorney General

1st Respondent

District Commissioner Garissa

2nd Respondent

and

Kenya National Commission on Human Rights

Interested Party

Board of Governors Umu Salama Secondary School

Interested Party

Ruling

1. Before this court is a Notice of Motion dated 22. 10. 2021 wherein the applicants seek for orders that:i)The Honourable court be pleased to order the respondent to pay interest at 6% on the principal sum with effect from 27. 03. 2013. ii)The Honourable court be pleased to make such other orders as may be necessary in the circumstances.

2. The application is premised on the grounds on its face and further supported by the supporting affidavit of Ali Ismail Baraki. The applicants’ case is premised on the fact that on 16. 11. 2006, they instituted a suit against the 1st and 2nd respondents being Nairobi Constitutional Petition No. 697 of 2009 which was later transferred to Embu and registered as Embu Constitutional Petition No. 56 of 2006. That on 19. 02. 2013, a judgement was issued against the defendants/ respondents for Kshs. 8,066,000/= as compensation for injuries and loss suffered.

3. It is their case that a decree was issued on 27. 03. 2013 and thereafter, the applicants proceeded to file a judicial review application being Embu JR Misc. Application No. 6 of 2016 where they sought for an order of mandamus to compel the respondents to pay the sum of Kshs. 21,647,680/= in respect of the decree dated 27. 03. 2013.

4. That on 17. 12. 2018, judgment was issued against the respondents for Kshs. 21,647,680/= being the decretal amount and accrued interest in respect of the decree dated 27. 03. 2013; but the court was silent on the issue of interest. Reliance was placed on section 26(2) of the Civil Procedure Act which provides for interest at 6% where the court is silent on the same.

5. They averred that they will suffer prejudice if the court fails to award the interest from the date of the decree given that the payment has been outstanding for a period of eight years and thus interest is justified in the circumstances. They contended that in the interest of justice and the rule of law, it’s only fair that this Honourable Court grants the orders as sought in the application herein.

6. The court directed the parties to file and exchange submissions but neither of them complied with the order.

7. The complaint before court is that the applicants were awarded damages as prayed but the court was silent on the interest. Accordingly, the issue for determination herein is whether, in the circumstances, interest is due, and if so, at what rate and for what period?

8. The applicants claim interest on the sum of Kshs. 21,647,680/= at 6% under Section 26(2) of the Civil Procedure Act. The petitioner’s claim was for a liquidated amount of which the court awarded Kshs. 21,647,680/=. Section 26 of the Civil Procedure Act provides for interest on the principal sum awarded by the Court and interest on costs of the suit as follows:(1)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.(2)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.

9. As enumerated above, under Section 26(2) of the Civil Procedure Act, where the judgment is silent on interest, then the applicable interest is 6%. In the case of B.O.G. Tambach Teachers Training College v Mary Kipchumba; (2018) eKLR Muriithi J. stated;“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 rate of interest is provided for under Section 26 (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.”

10. In the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited (No 2)[1970] EA, 469 at 475, Spry V.P states as follows:-“The principle that emerges is that where a person is entitled to a liquidated amount or to specific goods and has been deprived of them through the wrongful act of another person, he should be awarded interests from the date of filing suit. Where, however, damages have to be assessed by the Court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of the judgment.”

11. Needless to say, the rationale for an award of interest on the principal sum is to compensate a plaintiff for the deprivation of any money that is rightfully due to it through the wrongful act of a defendant. Thus, in Highway Furniture Mart Ltd v Permanent Secretary Office of the President & Another [2006] eKLR the point was made 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 a defendant."

12. Likewise, in Lata v Mbiyu [1965] EA 392 it was held that:“The award of interest on a decree for payment of money for a period from the date of the suit to the date of the decree is a matter entirely within the court’s discretion, 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 on the part of the defendant, the party who has been deprived of the use of goods or money to which he is entitled should be compensated for such deprivation by the award of interest.”[See Ajay Indravadan Shah v Guilders International Bank Ltd[2003] eKLR; also Dipak Emporium v Bond's Clothing [1973] EA 553].

13. I am guided by the case of B.O.G. Tambach Teachers Training College [2018] eKLR], in which Muriithi J adopted 6% as the interest rate applicable since there was no order on the applicable rate. Similarly, in the case of Margaret Wanjiru Mburu & 3 Others v Kenya Commercial Bank, Justice Emukule (as he then was) adopted 6% P.A as the applicable rate.

14. On the issue of the period from when interest should be applicable, it is submitted that interest should be applied from the date of the decree and in this case from 27. 03. 2013. However, having perused the record, I hereby note that the judgment delivered by Muchemi J on 17. 12. 2018 was outright as to when the debt was to start accruing interest, I proceed to reproduce the same as follows;An order of mandamus compelling the defendants to pay the plaintiffs the judgment debt in the sum of Kshs. 21,647,680. 00 being the decretal sum, and accrued interest up to 07. 10. 2016 in respect of the Decree dated 27. 03. 2013 in Embu Constitutional Petition No. 56 of 2009.

15. However, I note that despite that order, the respondents did not pay the decretal sum as ordered. It is only fair that interest be paid to them even for the period after 7. 06. 2016 until payment in full.

16. In reference to the above, I am guided by the case of New Tyres Enterprises Limited v Kenya Alliance Insurance Company Ltd [1988] eKLR where Justice Masime C.A stated as follows:-“In the present case, the liability of the Respondent to pay for the appellant loss was not determined until the date of the judgment and that is the date from which interest should be payable.”

17. From the provisions of Section 26(1), the court can award interest in the following instances;i)From any period before the institution of the suit.ii)From the date of filing the suit.iii)From the date of the decree.[See Jane Wanjiku Wambu v Anthony Kigamba Hoto & Others, [2018] eKLR].

18. In any event, in our jurisdiction, the normal rule is that interest on costs begins running from the date of the judgment or order containing the entitlement to costs. Interest on costs cannot begin at an earlier date before the Court pronounces entitlement to those costs. [See Jane Wanjiku Wambu v Anthony Kigamba Hato & 3 others [2018] eKLR].

19. In this regard, I allow the application and order that:i.The damages awarded in the sum of Kshs 21,674,680/= will attract interest at 6% as from 27. 03. 2013. ii.The applicants will have the costs of the application.

20. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF JULY, 2022. L. NJUGUNAJUDGE........................... for the Petitioner........................... for the Respondents**