https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7773

Vivo Energy Kenya Ltd v Biashara Master Saw Mills Ltd (Civil Case E419 of 2024) [2026] KEHC 7773 (KLR) (Commercial and Tax) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7773 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case E419 of 2024 MO Ado, J June 4, 2026 Between Vivo Energy Kenya Ltd Plaintiff and Biashara Master Saw Mills Ltd Defendant Ruling 1.The issue before the Court is a narrow one. Following a referral of the parties to Court Annexed Mediation, the parties reached agreement on the mode of settlement of the decretal sum arising from this Court’s ruling delivered on 25th September 2025. They however failed to agree on whether interest is payable on the decretal sum and, if so, at what rate. The Court directed that the issue be canvassed by way of written submissions. 2.The background is largely undisputed. By a ruling delivered on 25th September 2025, the Court allowed the Plaintiff’s application for summary judgment and entered judgment against the Defendant in the sum of Kshs. 21,075,722.60 together with costs of the suit and the application. The ruling did not expressly address the question of interest. 3.The Decree Holder submits that notwithstanding the silence of the ruling on interest, Section 26(2) of the Civil Procedure Act is applicable and deems the Court to have ordered interest at six per cent per annum from the date of decree until payment in full. It contends that a successful litigant ought to be compensated for being kept out of its money and relies on the decision in Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR. 4.The Judgment Debtor takes a contrary position. It argues that the award of interest is a matter of judicial discretion under Section 26(1) of the Civil Procedure Act. Since the Court did not award interest in its ruling of 25th September 2025, it is said that the Court became functus officio and cannot revisit the issue. The Judgment Debtor relies principally on Kenya Planters Co-operative Union Limited v Interchem Co. Limited & 6 Others [2024] KECA 178 (KLR). Analysis and Determination 5.Having considered the rival submissions, the sole issue for determination is whether interest is payable on the decretal sum and, if so, at what rate. 6.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 six per cent per annum.” 7.The effect of subsection (2) has been the subject of judicial consideration over the years. The most recent pronouncement is that of the Court of Appeal in Kenya Planters Co-operative Union Limited v Interchem Co. Limited & 6 Others [2024] KECA 178 (KLR). In that case, the Court of Appeal considered a situation where judgment had been entered for a liquidated sum and costs, but the judgment was silent on interest. The Court affirmed the High Court’s finding that Section 26(2) applied and that interest was payable notwithstanding the absence of an express order on interest in the judgment. 8.The Court of Appeal stated:“...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 applies where no other interest is specified, the court rate shall apply.” 9.The Court further held that Section 26(2) applies where no other interest is specified and that a decree silent on post-judgment interest attracts interest at six per cent per annum from the date of decree until payment in full. 10.This Court is bound by that decision. The Defendant's argument that the Court became functus officio upon delivery of the ruling is not persuasive in the circumstances. The Court is not being asked to vary its judgment or to award a fresh substantive relief. Rather, the Court is being invited to determine the legal consequence of a decree that is silent on post-judgment interest. That consequence is expressly provided for by statute. 11.The judgment entered on 25th September 2025 was for payment of a liquidated sum. The Court awarded costs but did not expressly provide for further interest from the date of decree. In such circumstances, Section 26(2) of the Civil Procedure Act becomes operative and deems the Court to have ordered interest at six per cent per annum. 12.The Court therefore finds that the decretal sum attracts interest at the rate of six per cent (6%) per annum from 25th September 2025, being the date of judgment, until payment in full. 13.Accordingly, the Court makes the following orders:i.The decretal sum of Kshs. 21,075,722.60 shall attract interest at the rate of six per cent (6%) per annum from 25th September 2025 until payment in full.ii.The Deputy Registrar shall compute the interest payable in accordance with this ruling, if necessary.iii.Each party shall bear its own costs in respect of the present application. 14.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/A………………for the Applicant/DH……………for the Respondent/JD