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ELCDismissedNot stated in judgment· [2018] KEELC 1219 (KLR)

Systems Reliability Limited & another v Yaya Towers Limited [2018] KEELC 1219 (KLR)

High Court of Kenya
25 October 2018
3,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that missing documents in an appeal can be forgiven, and that interest on a clear money debt runs from the date you file suit.

What this practically means

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Executive summary

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This was an appeal to the High Court at Nairobi against a ruling of Hon. S. N. Riechi, C.M. of 1st November 2010 in Nairobi CMCC No. 8207/2006, a suit transferred from the High Court in which the respondent landlord had recovered rent and service charge arrears from the appellants tenants by judgment of 6th May 2010. The decree extracted on 31st May 2010 computed interest on the principal sum of Kshs.1,989,995.20 from the date of filing suit (4th February 2002). The appellants moved the lower court to amend the decree so that interest ran from the date of judgment, contending no such prayer had been made. The magistrate found that the judgment was silent on the accrual date, and held that on a liquidated claim interest ordinarily runs from the date of filing suit under section 26 of the Civil Procedure Act. On appeal, the respondent argued the appeal was incompetent for omission of the amended decree and the Notice of Motion from the record. The High Court, S. Okong'o J, held the omission was a curable procedural mishap excusable under Article 159(2)(d), the documents being before the court through an affidavit filed in a stay application. On the merits, the court applied Shah v Guilders International Bank Ltd on section 26 and held the magistrate had power under section 99 of the Civil Procedure Act and Order XX Rule 7 to correct the omission as to the accrual date. The appeal failed wholly and was dismissed with costs to the respondent on 25th October 2018.

Key legal issues

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01

Competency of the appeal for omission of primary documents from the record

Holding

The omission was a curable procedural mishap under Article 159(2)(d); the appeal was not incompetent.

Reasoning

The respondent argued, citing Kenya Industrial Estates Ltd v Samuel Sang, that omission of primary documents renders an appeal incurably defective. The court agreed the documents were primary and crucial, but held the omission could be corrected by supplementary record, no prejudice was shown, the documents were before the court via the stay application affidavit, and the pre-2010 Constitution authority was doubtful in light of Article 159(2)(d).

p. 3
02

Date from which interest on the judgment sum accrues where the judgment is silent

Holding

The lower court correctly held that interest on the liquidated sum accrued from the date of filing suit.

Reasoning

The judgment of 6th May 2010 awarded interest but was silent on the accrual date. Invoking Shah v Guilders International Bank Ltd on section 26 of the Civil Procedure Act, the court held it had discretion over the accrual date and that the established practice is interest from filing suit for liquidated claims. The appellants themselves had invited the court to fix the date, and no ground for interfering with that discretion was established.

p. 4
03

Whether the magistrate amended or added to the judgment and unlawfully created two decrees

Holding

No addition was made; the magistrate merely corrected an omission, and the amended decree replaced the original, which ceased to have effect.

Reasoning

The original decree dated 31st May 2010 contained an arithmetical error corrected by the amended decree of 9th November 2010. The ruling of 1st November 2010 only clarified the accrual date. The interest computation followed the court's own decision and was not unlawful; grounds 5, 6 and 7 failed.

p. 4

Legal principles established

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  • Failure to include primary documents in a record of appeal is a procedural mishap excusable under Article 159(2)(d) of the Constitution where no prejudice is shown, and can be corrected by filing a supplementary record of appeal.
  • Under section 26 of the Civil Procedure Act the court has discretion to award interest covering the period before suit, from filing to judgment, and from judgment to payment; where judgment is silent on the accrual date, interest ordinarily accrues from the date of filing suit in the case of a liquidated claim.
  • A court has power under section 99 of the Civil Procedure Act and Order XX Rule 7 of the old Civil Procedure Rules to correct an omission in a judgment as to the date from which interest accrues.
  • An appellate court will not interfere with the exercise of judicial discretion unless it is shown the discretion was exercised on an irrelevant matter, a relevant matter was ignored, the law was misapprehended, evidence was misappreciated, or the decision was plainly wrong.
  • Once an original decree is amended, it ceases to have effect; two decrees cannot co-exist in the same suit.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The respondents were ordered to pay costs of the suit

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(d)
  • Civil Procedure ActSections 1A, 3A, 26, 99
  • Civil Procedure Rules (old)Order XX rules 6, 7

Cases cited (2)

  • Kenya Industrial Estates Ltd. v Samuel Sang and Hema Investments Ltd.
    [2007] eKLR
  • Shah v Guilders International Bank Ltd.
    [2002] 1 EA 269 (CAK)
On appeal from
Chief Magistrate's Court at Nairobi
Nairobi CMCC No. 8207/2006
Jurisdiction invoked
Appellate jurisdiction of the High Court over appeals from the Chief Magistrate's Court (Civil Procedure Act)

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, "Systems Reliability Limited & another v Yaya Towers Limited [2018] KEELC 1219 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1219/eng@2018-10-25

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