[2018] KEHC 1094 (KLR)
The application was dismissed because the plaintiffs sought to revisit and alter the nature of interest awarded in a judgment delivered over 10 years prior, which is contrary to the doctrine of laches and the requirements for review under Order 45 of the Civil Procedure Rules. The court found that the judgment had...
Source-derived case information.
- Citation
- [2018] KEHC 1094 (KLR)
- Parties
- Plaintiff: Stephen Mukiri Ndegwa; Plaintiff: Continental Marketing Limited; Defendant: Kenya Commercial Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 172 of 1997
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Application
- Outcome
- application dismissed with costs
- Judges
- MM Kasango
- Legal Topics
- Interest Awards, Review of Judgment, Doctrine of Laches
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mukiri Ndegwa
Plaintiff
Continental Marketing Limited
Plaintiff
Kenya Commercial Bank Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the court should order computation of interest on the decretal sum at commercial compound interest.
- 2 Whether the plaintiffs are entitled to review of the judgment delivered on 2nd May 2008 to alter the nature of interest awarded.
- 3 Whether the delay of over 10 years in seeking the order defeats the plaintiffs' application.
Ratio Decidendi
The application was dismissed because the plaintiffs sought to revisit and alter the nature of interest awarded in a judgment delivered over 10 years prior, which is contrary to the doctrine of laches and the requirements for review under Order 45 of the Civil Procedure Rules. The court found that the judgment had clearly specified interest at court rate, and there was no ambiguity or omission to be clarified. The plaintiffs' delay in bringing the application was unreasonable and prejudicial to the defendant, who may have relied on the finality of the original judgment. The court declined to second-guess the intention of the judge who delivered the original judgment and held that it was...
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 1st February 2018 is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
CIVIL SUIT NO. 172 OF 1997
STEPHEN MUKIRI NDEGWA................................................................1ST PLAINTIFF
CONTINENTAL MARKETING LIMITED..........................................2ND PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LIMITED............................................DEFENDANT
RULING
1. Judgement was delivered in this matter on 2nd May, 2008. In that judgement were orders amongst which was judgement for prayer 1 for USD 32, 869. 25 with interest at court rate from the date of filing suit until payment in full.
2. The plaintiffs have through their Notice of Motion dated 17 February, 2018 sought the order that:
“This Honourable Court do grant and order for computation of interest of the decretal sum at commercial compound interest.”
3. Although the 1st plaintiff through his affidavit in support of the application first stated that the court had not in the judgement stated the rate of interest applicable the judgement amount, the plaintiffs did later accept that the court had awarded interest at Court rate but added that the Court had not stated, in that judgement whether that rate of interest was to be calculated at simple or compound interest.
4. I need to state that although the defendants have faulted the application on the basis that there was a signed consent providing for total amount to be paid to the plaintiff as Kshs.7. 5 million and for costs at Kshs.3. 2 million, in full and final settlement, that consent has to date not been adopted as an order of the Court and accordingly I will not consider the issue of that consent any further.
5. Plaintiff relied on the authority FEROZ NURALJI HIRJI –V- HOUSING FINANCE COMPANY OF KENYA LTD AND ANOTHER (2015) eKLR. The distinguishing issue in that case Vis-à-vis this case is that when judgment was entered in that case the issue of the rate of interest was not determined. This I get from the second sentence of the Ruling of that case. In this present case the court did not leave the issue of interest, or the rate thereof, to be determined afterwards. It was determined in the judgment of 2nd May 2005, as stated above.
6. The plaintiffs also relied on the case VELEO (K) LTD –V- BARCLAYS BANK OF KENYA LTD (2013) eKLR. In that case parties approached the court seeking interpretation of the decree. The court in that case had awarded interest at the rate of 18% without stating whether it was simple or compound interest. Again I believe the facts of that case are distinguishable to the case at bar because in this case the interest awarded was stated in the judgment.
DETERMINATION
7. Having considered the parties affidavits, submission and authorities the court is of the view that the application must and does fail.
8. It firstly fails because delay defeats equities. Equity does not aid the indolent. That is the foundation of the doctrine of laches. The judgement in this matter was delivered on 2nd May 2008. That is more than 10 years ago. The plaintiff waited for 10 years to seek to have the rate of interest enhanced. Such an order would be unjust to the defendant who may have reorganized its affairs on the basis of the judgement of 2nd May 2008.
9. The application also fails because what the plaintiffs seek a review of the judgement of 2nd May 2008. Order 45 of the Civil Procedure Rules, under which power to order review, requires a party seeking review to apply without unreasonable delay. I dare say that 10 years is too long a period to wait before seeking review.
10. I also form the opinion that the court, by the judgement of Justice Lesiit, of 2nd May 2018 having determined the rate of interest applicable to the judgement amount, by the present application the plaintiffs seek this court to second guess what the Learned Judge meant by awarding interest at court rate.
11. For the above reasons the Notice of Motion dated 1st February 2018is dismissed with costs.
DATED, SIGNED and DELIVERED at NAIROBI this29thday of November,2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Plaintiffs
........................................... for the Defendant
MARY KASANGO
JUDGE