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Court of AppealPartially AllowedCivil Appeal No. 50 of 2010· [2016] KECA 592 (KLR)

Muthoga v Habib Zurich Finance (K) Ltd & another (Civil Appeal 50 of 2010) [2016] KECA 592 (KLR)

Court of Appeal
6 May 2016
3,803 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 cut interest on refunded court money, ruling that delays caused by the courts themselves should not be charged to litigants.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Githinji, Visram and G.B.M. Kariuki, JJ.A) delivered on 6th May 2016 in Civil Appeal No. 50 of 2010, an appeal against the ruling of Ransley J in HCCC No. 3008 of 1984 ordering the appellant, Lee G. Muthoga, to refund to Habib Zurich Finance (K) Ltd the decretal sum of Kshs.2,130,832.55 paid to him under a judgment later reversed in Civil Appeal No. 144 of 1991, together with costs of Kshs.215,000 and interest at 12% p.a., totalling Kshs.6,380,663.55. The appeal was brought under Section 91 of the Civil Procedure Act, which governs restitution where a decree is varied or reversed. The court held that the learned Judge was right to award interest on the restituted sum, in line with Rodger v Comptoir d'Escompte de Pois and the Westmont Power decision, but erred in ignoring the abnormally long 15-year delay attributable to the court itself. Applying the maxim actus curiae neminem gravabit and the principle of in pari causa, the court halved the interest attributable to the 12-year delay, reducing the interest from Kshs.4,034,831 to Kshs.2,420,098 and fixing the appellant's interest-bearing period at nine years. The court also held that the High Court was bound by the prior Court of Appeal determination on costs in Civil Appeal No. 144 of 1991 and should not have awarded the Kshs.215,000; that order was set aside, with each of the appellant and the 1st respondent bearing their own costs and the 1st respondent bearing the 2nd respondent's costs. The appeal succeeded partially, and each party was ordered to bear its own costs of the appeal. The in duplum rule under Section 44A of the Banking Act was held inapplicable to interest under a court order accruing after the order is made.

Key legal issues

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01

Entitlement to interest on a restituted sum under Section 91 of the Civil Procedure Act

Holding

The Judge correctly awarded interest on the restituted sum, following the principle in Rodger v Comptoir d'Escompte de Pois that money withheld under a reversed judgment must be restored with interest.

Reasoning

Section 91(1) obliges the court, on application, to make restitution placing parties in the position they would have occupied but for the reversed decree. Guided by Mulla's Code of Civil Procedure and Lord Cairns' judgment in Rodger v Comptoir, the court held that a party enjoying money under a reversed judgment must return it with the ordinary fruits of money; the respondents' authority, Westmont Power, supported interest at court rates on restituted sums.

p. 6
02

Allocation of interest for delay caused by the court

Holding

Interest for the 15-year delay was equitably apportioned: the appellant bears interest for 9 years (3-year normal disposal period plus half of the 12-year delay); interest for the other half is not payable.

Reasoning

Neither party was to blame for the delay; the 15-year delay was attributable to the court. Applying actus curiae neminem gravabit and the principle of in pari causa, the court held the parties should suffer equally for the court-caused delay, hence splitting the 12-year delay period between them and adding the three years a normal disposal would have taken.

p. 6
03

Applicability of the in duplum rule

Holding

The statutory in duplum rule under Section 44A of the Banking Act applies only to formal loans by financial institutions and does not apply to interest under a court order accruing after the order is made, nor to restitutionary interest.

Reasoning

Pelican Investment Ltd had refused to import the common-law in duplum rule into Kenya; it was later introduced by the Banking (Amendment) Act No. 9 of 2006. Section 44A(4) expressly excludes interest under a court order accruing after the order. The restitutionary interest here was court-ordered, so the statutory cap did not limit it, though the equities of delay were considered separately.

p. 5
04

Whether the High Court could award costs already determined by the Court of Appeal

Holding

The High Court had no jurisdiction to award costs the Court of Appeal had already dealt with in Civil Appeal No. 144 of 1991; that part of the ruling was set aside, with each of the appellant and 1st respondent bearing their own costs and the 1st respondent bearing the 2nd respondent's costs.

Reasoning

The Court of Appeal, differently constituted, had expressly ordered that the appellant and 1st respondent bear their own costs and that the 1st respondent pay the 2nd respondent's costs. Ransley J was bound by that determination; the only costs he could properly award were those of the restitution application before him.

p. 6

Legal principles established

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  • Where a decree is varied or reversed, Section 91(1) of the Civil Procedure Act confers a discretion on the court to order restitution of the decretal sum with interest, even where the appellate decree is silent on interest.
  • Interest on a restituted sum is discretionary and must be exercised judiciously; interest attributable to delay caused by the court itself should not be visited on the party whose money was refunded (actus curiae neminem gravabit).
  • A subordinate judge is bound by a prior determination of the Court of Appeal on costs and may not award costs already dealt with by the appellate court.

Court orders

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  1. 1.Interest on the restituted sum reduced from Kshs.4,034,831/= to Shs.2,420,098/=, the appellant to pay interest for 9 years (half of the 12-year court-caused delay period excluded)
  2. 2.The order of the High Court awarding the 1st respondent Kshs.215,000/= as costs set aside; the appellant and the 1st respondent shall each bear their own costs
  3. 3.The 1st respondent shall bear the costs of the 2nd respondent
  4. 4.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 91(1)
  • Banking ActSection 44A
  • Banking ActSection 44(6)
  • Banking (Amendment) ActAct No. 9 of 2006
  • Indian Transfer of Property Act, 1882applied to the charge (now repealed)
  • Indian Code of Civil ProcedureSection 144 (via Mulla Code of Civil Procedure, 18th Edn.)

Cases cited (7)

  • Selle and Another v Associated Motor Boat Company Ltd and Others
    [1968] 1 EA 123 (CAZ)
  • Abdul Hameed Saif v Ali Mohamed Sholan
    (1955) 22 E.A.C.A. 270
  • Guram Ditta v T. R.
    [1935] ALL L. J 251
  • Westmont Power (Kenya) Limited v Kenya Oil Company Limited
    Civil Application No. Nai 254 of 2013 [2014] eKLR
  • Mbogo V. Shah
    [1968] EA 93
  • Rodger V. Comptoir d'Escompte de Pois
    [1871] LR 3 PC 465
  • Pelican Investment Ltd V National Bank of Kenya Ltd
    [2000] 2 EA 488 (CAK)
On appeal from
High Court of Kenya, Nairobi
H.C.C.C. No. 3008 of 1984
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (Court of Appeal Act jurisdiction; the judgment does not invoke a specific article)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muthoga v Habib Zurich Finance (K) Ltd & another (Civil Appeal 50 of 2010) [2016] KECA 592 (KLR)", Case Analysis (2016). Civil Appeal No. 50 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/592/eng@2016-05-06

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