Samuel Mwangi Gatoto t/a Diani Farmers Day & Night Club & t/a Gombato Guest House v Attorney General [2018] KEELC 1930 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Date from which interest on special damages runs under section 26 of the Civil Procedure Act
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
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.
Whether the loss of business claim could be revived on review
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
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.
Whether the burnt oranges claim could be revived on review
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
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.
Legal principles established
#- 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
#- 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.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.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.Each party bears their costs of this application
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules (review of judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Plaintiff v First to Seventh Defendants (Adverse Possession Suit - Preliminary Objection on Constitutionality of Section 38, Limitation of Actions Act)[2014] KEHC 6265 (KLR)14 Mar 2014followed
Cite this brief
#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.