https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12192

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **J.R. MISCELLANEOUS CIVIL APPLICATION NO. E004 OF 2021** **PATRICK NJIRU KURIA................................................................................APPLICANT** **VERSUS** **DIRECTOR OF CRIMINAL INVESTIGATIONS.................................................................................1ST RESPONDENT** **THE ATTORNEY GENERAL .............................................................2ND RESPONDENT** **RULING** 1. By a Notice of Motion dated 25/6/2025, under Article 159 (2) (d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the law, the Applicant seeks that; 1. The Honourable Court be pleased to review its Orders issued on the 20th December 2023, made in line with the consent dated 11th December 2023 2. The Honourable Court be pleased to order payment of the outstanding decretal sum of Kshs. 382,295,070/- with interests at Court rates, 14% from the date of the last installment until payment in full. 3. The costs for the application be borne by the Respondents on full indemnity. 2. The application is premised on the grounds on the face of it and the supporting affidavit of Patrick Njiru Kuria, the Applicant herein sworn on even date. He avers that he is the holder of a valid court order issued on 24/9/2022 in Kerugoya Constitutional Petition No. 2 of 2018, by which the Respondents were supposed to have forthwith paid him a total of Ksh. 747,411,189.04. Subsequently, he entered into a consent dated 11/12/2023 with the Respondents on the mode of settlement of the decretal sum, which was adopted as an order of the court on 20/12/2023. The Respondents failed to settle the total decretal sum by 30/6/2024 in blatant disregard of the consent order, and a sum of Ksh. 382,295,070 remains unsettled to date. Despite being indulged severally, the Respondents have never honoured their promises, thereby occasioning him prejudice. He is advised by his advocates on record that the Respondents’ actions hereinabove amount to a unilateral review of the terms of the consent dated 11/12/2023. He is greatly prejudiced by the Respondents’ non-compliance with the consent order and failure to commit themselves as to when the decree will be fully settled. He therefore seeks review of the consent order to allow the outstanding decretal sum to be paid with accrued interest at the rate of 14% from the date of the last instalment on 24/5/2025 until payment in full. 3. The Applicant swore a supplementary affidavit on 17/2/2026 in support of his application. 4. The Respondents opposed the application vide a replying affidavit sworn by Macheso Dan Weche, a litigation counsel, on 3/9/2025. He avers that in a bid to settle the decretal sum, the Respondents deposited Ksh. 215,116,119.65 and a further Ksh. 150,000,000, and the outstanding decretal sum is Ksh. 382,295,070. The Respondents are desirous of settling the amounts due and are only constrained by the budgetary cycle. The issue of interest was factored in the negotiations and calculated by consent at 14% from the date of judgment, which was 2/12/2019 up to 31/11/2023, which period is less than the 6 year period contemplated by Section 4 (4) of the Limitation of Actions Act as the maximum limit of interest on judgment debts. The remainder of Ksh. 382,295,070, which is awaiting payment, cannot accrue interest because at the time of filing the Judicial Review application, there had been a lapse of 6 years as per the provisions of Section 4 (4) of the Limitation of Actions Act, and thus the Applicant is only entitled to the remainder of the decretal sum. **Submissions** 1. The Applicant urges that the exclusion of further interest was clearly premised on timely settlement by 30/6/2024, and once there was default, the timeline basis upon which interest was excluded collapsed. He urges that the Respondents’ conduct demonstrates no concrete arrangements to settle the decretal sum, despite having had ample time to plan and organize for payment. He terms the Respondents’ argument that delayed payment arises from budgetary cycles, untenable and cites ***Republic v Attorney General & Another ex parte James Alfred Koroso (2013) eKLR***, for the proposition that, ***“Access to justice cannot be said to have been ensured when persons in whose favour judgments have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgment due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers carry out their duties for the benefit of the people of the Republic of Kenya.”*** He urges that while Section 4 (4) of the Limitation of Actions Act limits recovery of arrears of interest upon a judgment debt after 6 years, the consent dated 11/12/2023 constituted a fresh contractual arrangement.He urges that he has been deprived of the outstanding sum for an extended period, and without interest, he stands to suffer financial prejudice as there is no clear commitment by the Respondents on when the balance will be settled. In praying for grant of the orders sought, he urges that the Respondents breached the consent judgment by failing to settle the decretal sum within the agreed timelines, and cites ***Musa Gabiraari Hamza & another v Philip Otieno Olwaro [2021] KEHC 13447 (KLR)***. 2. The Respondents urge that satisfaction of decrees by the government must align with parliamentary appropriation and budgetary processes, and cite ***Republic v County Secretary, County Government of Tharaka Nithi & 3 Others; Kingdom Developers Merchants Ltd (Exparte Applicant) [2023] KEHC 2574 (KLR) and Kisya Investments Ltd v Attorney General & another [2005] KEHC 3226 (KLR)***. They cite ***Wasike v Wamboko (Civil Appeal 81 of 1984) [1985] KECA 149 (KLR), Samuel Mbugua Ikumbu v Barclays Bank of Kenya Limited [2015] KECA 390 (KLR), Hiram v Kassam (1952) 19 EACA 131 and Owaga v Koech (Civil Suit 399 of 1996) [2022] KEHC 17144 (KLR)*** on when a consent can be reviewed. They urge that the consent order conclusively settled the issue of interest as delay in payment does not revive interest where parties agreed on a global sum and pray for the dismissal of the application with costs. **Analysis and Determination** 1. After considering the application, the replying affidavit and the submissions on record together with the authorities relied on, this court discerns the issue for determination to be whether the consent order ought to be reviewed to reintroduce interest. 2. The law on variation of a consent judgments and/or orders is now settled to the effect that such variation can only be on grounds that would allow for a contract to be vitiated. These grounds include but are not limited to fraud, collusion, illegality, mistake, the agreement being contrary to the policy of the court, absence of sufficient material facts and ignorance of material facts. In ***Brooke Bond Liebig (T) Ltd v Mallya*** *(****1975) E.A. 266*** the Court of Appeal held as follows: ***“A consent judgment may only be set aside for fraud, collusion, or for any reason which would enable the Court to set aside an agreement.”*** 1. Whereas the Applicant urges that the Respondents’ continued non-compliance with the consent is in effect a backdoor review thereof and interest should accrue from the date of last instalment, the Respondents contend that the delayed settlement of the decretal sum was attributable to budgetary cycles, and Section 4 (4) of the Limitation of Actions Act bars recovery of further interest beyond 6 years. 2. The court has examined the text of the consent order, which reads in no uncertain terms as follows: “ ***“1. The Respondents shall pay to the Applicant the decretal amount of Kshs. 482,670,000/= together with interest calculated at 14% from 2nd December 2019 to 31st November 2023 totaling to Kshs. 747,411,189.04/=.*** ***2. The said sums as referenced in order (1) above shall be paid within this financial year ending 30th June, 2024.*** ***3. That upon payment as per order (1) above, two suits and pending applications therein shall stand fully settled.*** ***4. That each party shall bear its own costs.”*** 1. While the court notes that the consent order expressly capped interest up to 31/11/2023, and did not make any provision for the consequences of default, the default was solely occasioned by the Respondents, and they cannot be permitted to derive an advantage from their breach. It is now approximately 3 years since the consent order was entered into, yet the decretal sum remains unsettled in blatant disregard of the consent judgment. 2. Section 26 of the Civil Procedure Act provides that; ***“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.”*** 3. As reiterated by the Court of Appeal in ***Kenya Planters Co-operative Union Limited v Interchem Co. Limited & 6 Others [2024] KECA 178 (KLR)***, that; ***“As for the applicability of section 26 of the*** [***Civil Procedure Act***](https://new.kenyalaw.org/akn/ke/act/1924/3)***, we are satisfied that the matter having been placed before the trial judge, and the same one at that, he was well placed to express his discretion on the issue. In confirming the applicability of interest, the provisions of section 26 having been brought to his attention the trial judge stated: “… This court therefore holds that the fact that it did not specifically state that interest would be paid in respect of the decretal sum in the Ruling, did not mean that the Plaintiffs were not entitled to be paid interest on the decretal sum. Indeed, section 26 (2) of the*** [***Civil Procedure Act***](https://new.kenyalaw.org/akn/ke/act/1924/3) ***applies where no other interest is specified, the court rate shall apply. Manifestly, the trial judge construed section 26 (2) of the*** [***Civil Procedure Act***](https://new.kenyalaw.org/akn/ke/act/1924/3)***, disjunctively from section 26 (1). In this regard, we agree with the trial court that section 26 (2) applies where no other interest is specified.”*** 1. TheRespondents also assert that Section 4 (4) of the Limitation of Actions Act, which bars recovery of arrears of interest on a judgment debt after 6 years from the date the interest became due, precludes the interest now claimed. 2. That Section provides that; ***“An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”*** 3. It is clear thatSection 4 (4) of the Limitation of Actions Act bars the revival of stale interest claims left dormant for years. The interest sought by the Applicant is from the date of default being 22/5/2025, and therefore that contention is manifestly misconceived. 4. Moreover, the Respondents cannot properly invoke the provisions of Section 4 (4) of the Limitation of Actions Act when it was their own breach of the terms of the consent order that precipitated the present application. A party cannot benefit from his own default. 5. This court, in the exercise of its inherent jurisdiction and to render substantive justice to the parties, will allow the review sought, by declaring the interest payable on the outstanding balance of Kshs.382,295,070 in accordance with Section 26 of the Civil Procedure Act. **ORDERS** 1. Accordingly, for the reasons set out above, the court finds the application dated 25/6/2025 and is allowed as prayed. 2. The Court does not make any orders as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Ms. Ngumbao for the applicant. Mr. Weche for the Respondent.