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ELCPartially AllowedNotice of motion dated 23rd April 2018 (arising from judgment delivered on 12th March 2018)· [2018] KEELC 1930 (KLR)

Samuel Mwangi Gatoto t/a Diani Farmers Day & Night Club & t/a Gombato Guest House v Attorney General [2018] KEELC 1930 (KLR)

Environment and Land Court
20 September 2018
900 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court corrected how interest is calculated on a large damages award and revived a burnt oranges claim, but said factual disagreements belong in appeals, not reviews.

What this practically means

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Executive summary

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The plaintiff, Samuel Mwangi Gatoto, moved the court by notice of motion dated 23rd April 2018 under Order 45 seeking review of part of the judgment delivered on 12th March 2018 in his damages claim against the Attorney General. He sought three corrections: interest on the special damages of Kshs 20,837,310 from the date of filing the suit (and at 14% per annum), damages of Kshs 6,750,000 for burnt mature oranges, and damages for loss of business during the renovation period March to September 2008. The Attorney General opposed the application as misconceived, frivolous, vexatious and an abuse of court process, contending the loss of business claim was never pleaded and that no substantive basis existed for 14% interest. The court held that under section 26 of the Civil Procedure Act the award of interest is discretionary and contains no 14% rate; the only error apparent was the date from which interest ran, which was corrected to the date of filing the suit at court rates. The loss of business claim was held to fall under general damages; the earlier finding that it was unproved was a reasoned evidential finding that could not be reversed on review, the remedy being appeal. However, a crop assessment report dated 30.7.2014 estimating the destroyed oranges at Kshs 6,750,000 disclosed an error in the original dismissal, so the court awarded that sum with interest from the report's date. The application partially succeeded, with each party bearing their own costs.

Key legal issues

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01

Date from which interest on special damages runs under section 26 of the Civil Procedure Act

Holding

The only error apparent was the date from which interest was calculated, not the rate; interest at court rates is payable from the date of filing the suit

Reasoning

Section 26(1) leaves the award of interest to the court's discretion and permits interest from the date of suit to the date of decree. The applicant sought 14% per annum, but the statute contains no such rate; where the court is silent on interest, the deemed rate is 6% per annum. The court corrected the start date of the interest but declined to vary the rate.

p. 2
02

Whether the loss of business claim could be revived on review

Holding

No - the dismissal of the loss of business claim was a finding on the evidence, not an error apparent on the face of the record

Reasoning

The court had found the loss of business was not proved because the plaintiff did not say he was unable to continue with business after the renovations. Reasons had been given for that finding, so it could not be characterised as an error apparent on the face of the record. The proper avenue for a party dissatisfied with such a factual finding is an appeal to a higher court, not an application for review.

p. 2
03

Whether the burnt oranges claim could be revived on review

Holding

Yes - a crop assessment report dated 30.7.2014 estimating the loss at Kshs 6,750,000 showed an error in the original dismissal; the sum was awarded with interest from the date of the report

Reasoning

The original judgment dismissed the claim for burnt oranges because no agricultural officer's report was produced. On review the court saw a letter dated 30.7.2014 referenced as a crop assessment report for the applicant, estimating the cost of oranges destroyed at Kshs 6,750,000. This persuaded the court there was an error in the judgment, justifying revival of the claim for that sum.

p. 2

Legal principles established

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  • Under section 26(1) of the Civil Procedure Act, the award of interest on a decree for payment of money is discretionary, and where the court is silent the deemed rate is 6% per annum; the section does not provide for a 14% rate
  • A review under Order 45 lies only for error apparent on the face of the record; a finding on evidence that the applicant disagrees with must be challenged by appeal, not review

Court orders

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  1. 1.Interest at Court rates on Kshs 20,837,310 is chargeable from the date of filing of the suit till payment in full
  2. 2.An award of Kshs 6,750,000 is made in favour of the plaintiff as damages for the mature oranges burnt during the incident
  3. 3.Interest at Court rates is awarded on the sum of Kshs 6,750,000 from the date of the report i.e. 30.7.2014
  4. 4.Each party bears their costs of this application

Authorities

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Legislation

  • Civil Procedure Actsection 26(1) and 26(2)
  • Civil Procedure RulesOrder 45
  • Practice Note No. 1 of 1982referenced in grounds of opposition
Jurisdiction invoked
Order 45 of the Civil Procedure Rules (review of judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Samuel Mwangi Gatoto t/a Diani Farmers Day & Night Club & t/a Gombato Guest House v Attorney General [2018] KEELC 1930 (KLR)", Case Analysis (2018). Notice of motion dated 23rd April 2018 (arising from judgment delivered on 12th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1930/eng@2018-09-20

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