https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4912

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CONST. PET. NO. E027 OF 2022** **IN THE MATTER OF: ARTICLE 22 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF: ARTICLES 10,19,20,23,40,47,162,165 AND 258 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF: SECTION 13 OF THE ENVIRONMENT AND LAND COURT ACT, 2012** **AND** **IN THE MATTER OF: SECTIONS 107, 111, 112, 113, 115 AND 117 OF THE LAND ACT, 2012** **AND** **IN THE MATTER OF: CONTRAVENTION OF THE BILL OF RIGHTS UNDER ARTICLES 40 AND 47 OF THE CONSTITUTION OF KENYA, 2010** **BETWEEN** **BALJEET SINGH……………………………………………PETITIONER** **VERSUS** **KENYA PORTS AUTHORITY………………………1ST RESPONDENT** **NATIONAL LAND COMMISSION……………….2ND RESPONDENT** **KENYA NATIONAL HIGHWAYS AUTHORITY…...3RD RESPONDENT** **KENYA RAILWAYS CORPORATION…….……..4TH RESPONDENT** **RULING** 1. By the Notice of Motion dated 17th September 2025, Baljeet Singh (the Petitioner) prays for an order that this Honorable Court be pleased to review the Judgment delivered on 9th July 2025 by the Honourable Justice L.L. Naikuni by specifying whether the interest on the compensation for the suit property be subjected to the prevailing market rate or the Court rate. 2. The application is supported by an Affidavit sworn by the Petitioner and is premised on the grounds: 3. **That Judgment was delivered on 9th July 2025 in favour of the Petitioner;** 4. **That in awarding interest on the compensation for the suit property, the Court did not specify whether such interest would accrue at the prevailing market or at Court rate;** 5. **That it is necessary that the file be placed before the Honourable Mr. Justice L.L. Naikuni currently sitting in Kwale as he is the one who delivered the Judgment;** 6. **That it is in the interest of justice that the Honourable Judge pronounces himself on the interest rate to be used;** 7. **That the Petitioner is desirous of having this matter concluded in the shortest time possible so that he enjoys the fruits of his successful litigation; and** 8. **That the Respondents will not suffer any prejudice should the application be allowed.** 9. The Kenya Ports Authority (the 1st Respondent) is opposed to the application. In a Replying Affidavit sworn on its behalf by its Senior Estates and Ratings Officer John Chau Mwangi, the 1st Respondent avers that the application before the Court is fatally defective as the same is undated and that some of the pages are missing. 10. The 1st Respondent avers that pursuant to orders (e) and (f) of the Judgment delivered by this Court on 9th July 2025, the 2nd Respondent has published notices in the Kenya Gazette pursuant to the provisions of Section 107 and 111 of the Land Act in respect of the compulsory acquisition process. 11. The 1st Respondent further avers that Section 117 as read together with Sections 133 (c) (1) (7) and 133 of the Land Act provide the basis for payment of compensation and interest and that the application for review of the judgement on the issue of payment of interest payable is misconceived, legally untenable and an improper invitation to this Honorable Court to sit on appeal over its own Judgment. 12. The 1st Respondent further avers that the law is unequivocal that it is the 2nd Respondent, and not the Court, that is mandated to determine the interest payable as part of the compensation process. 13. The 1st Respondent further avers that since the 2nd Respondent has already commenced the acquisition process, including the assessment of compensation and interest, the Petitioner’s dissatisfaction of the process, if any, ought to be ventilated through the mechanisms provided under the Land Act 2012 after the 2nd Respondent renders its decision. 14. I have carefully perused and considered both the Petitioner’s application as well as the response thereto by the 1st Respondent. I have similarly perused and considered the submissions placed before the Court by the Learned Advocates representing the Petitioner. I was unable to find any submissions on the part of the Respondents. 15. By the application before the Court, the Petitioner has sought an order that this Court be pleased to review the Judgment delivered herein on 9th July 2025 by the Honourable Justice L.L. Naikuni by specifying whether the interest on the compensation for the suit property should be subjected to the prevailing market rate or the Court’s rate. For that purpose, the Petitioner has urged this Court to place this file before the Honourable Justice Naikuni who is currently sitting in Kwale to make that determination. 16. On the request to have the file placed before the Learned Judge in Kwale, I did not think that this Court had the jurisdiction to reassign the file from Mombasa to Kwale. For such a reassignment to be made, it was my considered view that one would have to make a formal application to the Honourable the Chief Justice whose office is vested with administrative authority under Articles 161 and 165 of the Constitution to allocate duties to Judges and Judicial Officers. Accordingly, I declined the invitation to place the file before the Learned Judge in Kwale to hear the application. 17. On matters of review, Section 80 of the Civil Procedure Act provides as follows: **“Any person who considers himself aggrieved—** 1. **by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or** 2. **by a decree or order from which no appeal is allowed by this Act, may apply for a review of Judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”** 3. Furthermore, Order 45 Rule 1 (1) of the Civil Procedure Rules provides thus: **“Any person considering himself aggrieved—** 1. **by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or** 2. **by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of the Judgment to the Court which passed the decree or made the order without unreasonable delay.”** 3. In the matter before me, while the Petitioner does not expressly state so, it was apparent from their submissions that they considered that there was an error apparent on the face of the record. It is the Petitioner’s case that in the Judgment delivered on 9th July 2025, the Court awarded interest on the compensation due for the suit property that has been deemed to have been compulsorily acquired by the Respondents. It is the Petitioner’s case that in awarding the interest on the compensation, the Court did not specify whether such interest would accrue at the prevailing market rate or at Court rates. 4. From a perusal of the Judgment, the Learned Judge in awarding interest held as follows at paragraph 115 (g) of the Judgment: **“A declaration be and is hereby issued that the Petitioner be and is hereby entitled to interest on the compensation award for the property known as LR No. MN/VI/2444 at the prevailing market interest rate or as such a rate as this Honourable Court shall deem just with effect from the year 2012 and/or from the date when the 1st Respondent, its agents/servants/employers and/or its contractors entered upon the Suit Property or such other relevant date as this Honourable Court shall deem fit immediately.”** 1. According to the Petitioner, the said order was ambiguous and it would not therefore be possible to properly tabulate the interest despite its being awarded. It is on that account that the Petitioner urges the Court to clarify which rate of interest was awarded for purposes of tabulation of the same. 2. On the other hand, the 1st Respondent avers that the application is misconceived as the law is unequivocal that it is the 2nd Respondent, and not the Court, that is mandated to determine the interest payable as part of the compensation process. 3. I was unable to agree with the position taken by the 1st Respondent. The order granted by the Court clearly arose from the prayers made by the Petitioner to the Court. Having heard the dispute, it was evident that the Court had determined that the Petitioner was entitled to interest on the amount of compensation that would be found to be due and an order had been made to that effect. That order has neither been set aside nor varied. 4. As it were, it was indeed apparent that the Court had not clarified the interest rate that was payable upon compensation. In regard to matters of interest rate, Section 26 of the Civil Procedure Act provides 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.”** 1. In the Practice Directions No. 1 of 1982 issued on 16th March 1982, Simpson Ag. CJ varied the rate and issued the following practice directions: **“The Civil Procedure Act (Cap 21 Laws of Kenya) Section 26 enables the Court to order interest on the principal sum adjudged in a decree both before and after the date of the decree to be paid at such rate as the Court deems reasonable. In the absence of any valid reason for ordering a higher or lower rate of interest, the rate of interest should now be 12%.”** 1. The issue of the applicable interest rates in a matter such as this was determined by the Court of Appeal in ***Kipchumba –vs- BOG Tambach Teachers Training College (Civil Appeal 100 of 2019) [2023] KECA 802 (KLR) (30 June 2023),*** where the Court held as follows: **“What then should the appropriate interest rate be? The appellant has suggested 12% as the current court rates while the respondent aligns with the Judgment of the learned Judge that the applicable interest rate is 6%. In the circumstances of the present case, we rely on our rich jurisprudence and judicial practices to determine what the appropriate interest rate on liquidated damages is. The rate used by the courts, absent special or exceptional circumstances is 12% per annum from the date of filing suit until payment in full.... From the foregoing, we find that the applicable interest rate in this case is 12% per annum.”** 1. That being the case, it is my finding that the applicable rate of interest is 12% calculated on a simple basis. In stating so, this Court again places reliance on the decision of the Court of Appeal in ***Barclays Bank (K) Limited –vs- William Mwangi Nguruki (2014) eKLR*** where the Court held thus: ***“The Respondent in his plaint prayed for interest at Court rates. Interest at Court rates is calculated on a simple interest and not on compounded basis. It is our finding that any interest due to the Respondent must be calculated on a simple interest and not on compounded basis”*** 1. Arising from the foregoing, paragraph 115 (g) of the Judgment delivered herein on 9th July 2025 is hereby varied to read that: **“A declaration be and is hereby made that the Petitioner is entitled to interest on the compensation award for the property known as LR No. MN/VI/2444 at the rate of 12% per annum from the date of filing of this suit until payment in full.”** 1. I make no order as to costs. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 30th day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Ms. Maiga holding brief for Mathare Advocate for the Petitioner c) Ms. Karungari holding brief for Munyao Advocate for the 1st Respondents d) No appearance for the 2nd, 3rd and 4th Respondent