https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8056

Thelmax Contractors Limited v Kenya National Highway Authority & 2 others (Criminal Miscellaneous Application 58 of 2015) [2026] KEHC 8056 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 8056 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Miscellaneous Application 58 of 2015 S Mbungi, J June 3, 2026 Between Thelmax Contractors Limited Applicant and Kenya National Highway Authority 1st Respondent The Officer In-Charge Busia Weigh Bridge 2nd Respondent The Director Of Public Prosecutions 3rd Respondent Ruling 1.Before this Court is the Notice of Motion dated 18th September 2025,the Applicant seeks orders that this Honourable Court be pleased to direct that:a.Interest on the General Damages awarded to the Applicant do accrue at the rate of 12% per annum from the date of judgment until payment in full;b.Interest on the Special Damages awarded to the Applicant do accrue at the rate of 12% per annum from the date of filing suit until payment in full;c.Interest on taxed costs do accrue at the rate of 14% per annum from the date of taxation until payment in full;d.In the alternative, that the decree issued on 14th May 2025 be upheld;e.Costs of the application be provided for. 2.The application is supported by the affidavit of Samwel Omusula Libuyi sworn on 25th August 2025 together with the annextures thereto. 3.Judgment in this matter was delivered on 8th July 2022 by Hon. Justice William Musyoka wherein the Applicant was awarded Kshs 3,000,000/= as General Damages and Kshs 15,575,320/= as Special Damages together with costs of the suit. 4.The Applicant contends that although the Court awarded damages and costs, the judgment did not expressly pronounce itself on the issue of interest payable on the decretal sums and costs. 5.The Applicant further states that costs were subsequently taxed at Kshs 1,093,393/= as evidenced by the Certificates of Taxation annexed to the supporting affidavit. 6.It is also deponed that the 1st Respondent, being dissatisfied with the judgment, lodged a Notice of Appeal and thereafter moved to the Court of Appeal vide Application No. E010 of 2024. However, on 21st June 2024, the Court of Appeal found the said application incompetent and directed the 1st Respondent to file separate and appropriate applications. 7.According to the Applicant, no further appeal or competent application has since been filed by the 1st Respondent. 8.The Applicant further avers that on 30th July 2024 the 1st Respondent paid a sum of Kshs 19,093,393/= towards satisfaction of the decree. Subsequently, a dispute arose between the parties regarding the applicable interest rates and the outstanding decretal balance. 9.On 14th May 2025 this Court issued aa amended decree capping the interest rate at 6% and indicating the outstanding balance as Kshs 8,314,358.74/=. 10.The Applicant argues that the said decree does not reflect the intention of the trial court nor the applicable principles governing award of interest under Kenyan law. 11.The Respondents objected to the said decree through a letter dated 4th June 2025 and contended that the outstanding balance stood at Kshs 1,405,980.36/= only. Issues for Determination 12.Having considered the Notice of Motion dated 25th August 2025, the supporting affidavit, the rival positions taken by the parties and the applicable law, the following issues arise for determination:a.Whether this Court has jurisdiction to determine and vary the applicable interest rates where the judgment delivered on 8th July 2022 was silent on interest.b.Whether the Applicant is entitled to interest at the rates sought on general damages, special damages and taxed costs.c.Whether the decree issued on 14th May 2025 ought to be varied. Analysis and Determination a. Whether this Court has jurisdiction to determine and vary the applicable interest rates where the judgment delivered on 8th July 2022 was silent on interest 13.The Applicant contends that although Hon. Justice William Musyoka awarded general damages, special damages and costs in the judgment delivered on 8th July 2022, the Court did not expressly pronounce itself on the issue of interest and therefore clarification is necessary. 14.The law governing the award of interest is principally found under Section 26 of the Civil Procedure Act. Section 26(1) grants a trial court discretion to award interest and determine the applicable rate and period. It provides that where a decree is for the payment of money, the court may order interest at such rate as it deems reasonable. 15.However, Section 26(2) of the Civil Procedure Act provides as follows:“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 six per cent per annum.” 16.The effect of the foregoing provision is that where a court grants a monetary decree but remains silent on post-judgment interest, the law itself intervenes and supplies the applicable rate, namely six per cent (6%) per annum from the date of the decree until payment in full. 17.Consequently, the silence of the trial court on the issue of interest did not create a lacuna requiring a subsequent court to exercise afresh the discretion donated under Section 26(1) of the Civil Procedure Act. The applicable post-judgment interest became fixed by operation of law. 18.The Supreme Court in Monica Wangu Wamwere & 5 Others v Attorney General emphasized the doctrine of finality of litigation and reiterated that courts should not reopen, vary or supplement substantive determinations already made except as permitted by law. The Court underscored the importance of certainty and finality in judicial proceedings. 19.In the present case, Hon. Justice Musyoka rendered judgment on 8th July 2022 and awarded damages and costs. The judgment did not award interest nor specify the rate thereof. 20.This Court exercises jurisdiction concurrent with that exercised by Hon. Justice Musyoka. It cannot therefore purport to revisit the judgment and introduce substantive orders relating to interest that were not granted by the trial court. To do so would amount to varying or supplementing the judgment of a court of coordinate jurisdiction. 21.I therefore find that while this Court may interpret and give effect to the judgment, it lacks jurisdiction to substitute the statutory consequence provided under Section 26(2) of the Civil Procedure Act with fresh rates of interest not awarded in the judgment. b. Whether the Applicant is entitled to interest at the rates sought on general damages, special damages and taxed costs 22.The Applicant seeks interest at the rate of 12% per annum on general damages from the date of judgment, 12% per annum on special damages from the date of filing suit, and 14% per annum on taxed costs from the date of taxation. 23.It is settled law that interest on special damages ordinarily runs from the date of filing suit while interest on general damages ordinarily runs from the date of judgment. This principle was discussed in cases such as Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd and Highway Furniture Mart Ltd v Permanent Secretary Office of the President & Another. 24.However, those principles are applied by the trial court when exercising its discretion under Section 26(1) of the Civil Procedure Act and making an express award of interest. 25.In the present matter, the judgment delivered on 8th July 2022 did not award interest on either the special damages or the general damages. This Court cannot, through a subsequent application, enlarge the judgment by introducing interest that was not awarded therein. 26.Once the judgment remained silent on post-judgment interest, Section 26(2) became operative and deemed the decree to carry interest at six per cent per annum from the date of the decree until payment in full. 27.The Applicant’s invitation to apply interest at court rates of 12% per annum would therefore require this Court to alter the substance of the judgment, which it cannot do. 28.With regard to taxed costs, the Applicant relies on Rule 7 of the Advocates Remuneration Order and seeks interest at 14% per annum. 29.While Rule 7 permits the charging of interest on an advocate’s costs in appropriate circumstances, the issue before this Court is whether it can now introduce a substantive award of interest on costs where the judgment itself was silent on such interest. 30.In my view, granting the orders sought would amount to supplementing and varying the judgment delivered by Hon. Justice Musyoka. Such a course is impermissible before a court of concurrent jurisdiction. This court has no capacity to question the Judicial discretion of another Judge of comparative jurisdiction. It is only an appellate court which can question. c. Whether the decree issued on 14th May 2025 ought to be varied.31.The Applicant contends that the decree issued on 14th May 2025 incorrectly capped interest at six per cent and consequently understated the outstanding decretal balance. 32.However, as already observed, Section 26(2) of the Civil Procedure Act expressly provides that where a decree is silent on post-judgment interest, the court shall be deemed to have ordered interest at six per cent per annum. 33.The decree issued on 14th May 2025 be set aside, the taxing master to draw a fresh decree which will be exchanged among the parties before the final approval by the taxing master. The taxing master to take into account the provisions of section 26 (2) of the civil procedure Act , shall also take into account the money already paid by the 1st Respondent . Conclusion 34.Having carefully considered the Notice of Motion dated 18th September 2025, the supporting affidavit, the applicable law and the authorities cited, I find that the judgment delivered on 8th July 2022 was silent on the issue of interest and that Section 26(2) of the Civil Procedure Act therefore became operative by operation of law. 35.This Court, being a court of coordinate jurisdiction, cannot revisit or supplement the substantive orders made by Hon. Justice William Musyoka by introducing fresh rates of interest not contained in the judgment. 36.Consequently, the Notice of Motion dated 18th August 2025 lacks merit and is hereby dismissed. 37.Given that the dispute arises from the interpretation and execution of an existing judgment, each party shall bear its own costs of this application. 38.Right of Appeal 30 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 3RD DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/VelmaMr. Mbaka for the Applicant present online.Ms. Waliaula holding brief for Mr. Mbogo for the 1st Respondent, present.