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Court of AppealOtherNot stated in the judgment copy provided· [2016] KECA 150 (KLR)

Tracom Ltd & another v Adan (Civil Appeal 192 of 2006) [2016] KECA 150 (KLR)

Court of Appeal of Kenya
4 November 2016
1,349 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that interest on damages runs from the date damages were assessed, not from when the lawsuit was filed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal delivered by GBM Kariuki on 4th November 2016 settling the terms of the order in an appeal whose judgment had been delivered on 6th November 2009. The appellate judgment had allowed the appeal in part, reducing the award for future medical expenses from Shs.1,250,000/= to Shs.880,000/=, setting aside Shs.900,000/= for loss of earnings as neither properly pleaded nor strictly proved, and reducing the total award to Shs.1,592,512.50 after 25% contribution, but it omitted to state the date from which interest would accrue. Counsel could not agree on items 1 and 4 of the draft order: the appellants contended interest could not run retrospectively and should run from the appellate assessment, while the respondents sought interest from the date of filing suit. Because the judges who heard the appeal were unavailable (Waki JA being out of the station), the President of the Court directed the matter to the writer, who held he had jurisdiction under rule 34(2)(d) of the Court of Appeal Rules. Applying the principle from Jefford v Gee that interest compensates a plaintiff for being kept out of money due, the court held that interest on both the Shs.880,000/= for future medical expenses and the total sum of Shs.1,592,512.50 runs from 6th November 2009, the date of assessment, since interest from the filing date would distort and inflate an award of future expenses. There was no order as to costs of the appearance.

Key legal issues

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01

Commencement date of interest on the award for future medical expenses (Shs.880,000/=)

Holding

Interest runs from the date of assessment of damages by the Court of Appeal, 6th November 2009, not from the date of filing suit.

Reasoning

The Shs.880,000/= was computed by applying a 22-year multiplier to yearly medical expenses of Shs.40,000/=, i.e. it represents future expenditure. Applying interest from filing would inflate the award. The general principle is that interest compensates a plaintiff for being kept out of money due; a plaintiff who has paid medical expenses gets interest from the date of payment (Jefford v Gee). Since damages were assessed on 6th November 2009, that is the date from which interest applies.

p. 3
02

Commencement date of interest on the total decretal sum of Shs.1,592,512.50 (item 4)

Holding

The same principle applies: interest runs from 6th November 2009, the date of assessment, notwithstanding that the bulk is general damages with an element of pre-appeal expenses.

Reasoning

The bulk of the sum is general damages, and the same principle governing the date of application of interest applies, although there is an element of expense incurred before the appeal's determination that reduced the original figure. The court accordingly directed that the sum carry interest from the date of assessment on 6th November 2009.

p. 3
03

Jurisdiction of a single judge to settle the terms of the appellate order

Holding

The single judge had jurisdiction: where the presiding judge and the other judges who sat are unavailable, the order may be settled by such judge as the President of the Court may direct, which is what occurred.

Reasoning

Under rule 34(2)(d) the judge who presided over the appeal bench should settle the order where parties disagree. Failing him, a judge who sat may do so; failing all, a judge directed by the President. Waki JA, the only remaining judge who sat on the appeal, was out of the station, so the President directed the matter before the writer, who proceeded on the basis the matter was properly before him and he had jurisdiction.

p. 2

Legal principles established

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  • Interest is awardable to a plaintiff for being kept out of money which ought to have been paid to him, and the court has a general discretionary power to award interest; interest on damages runs from the date those damages were assessed, not from the date of filing suit where the award represents future or general damages.
  • Interest should not be applied to an award of future medical expenses from the date of filing suit, because the sum relates to an expense to be incurred in the future and to do so would inflate and distort the award.
  • Where parties fail to agree on the form of the appellate order, rule 34(2)(d) of the Court of Appeal Rules requires the judge who presided over the appeal bench to settle it; in his absence a judge who sat on the bench, and in their absence any judge directed by the President of the Court, may settle the order.

Court orders

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  1. 1.The draft order in item 1 shall show that interest at court rates on the award of Shs.880,000/= for future medical expenses shall run from 6th November 2009 (the date of assessment of damages by this Court)
  2. 2.As regards item 4 of the draft order, the sum of Shs.1,592,512.50 shall carry interest from the date of assessment on 6th November 2009
  3. 3.There shall be no order as to costs with regard to the appearance relating to this determination

Authorities

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Legislation

  • Court of Appeal RulesRule 34(2)(d)

Cases cited (1)

  • Jefford and Another v. Gee
    [1970] 2QB 130
On appeal from
High Court of Kenya
Not stated in the judgment copy provided
Jurisdiction invoked
Rule 34(2)(d) of the Court of Appeal Rules - settlement of the form of the order by a judge of the court where the parties fail to agree and the judges who heard the appeal are unavailable, pursuant to a direction of the President of the Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tracom Ltd & another v Adan (Civil Appeal 192 of 2006) [2016] KECA 150 (KLR)", Case Analysis (2016). Not stated in the judgment copy provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/150/eng@2016-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.