John Kiragu Kimani v Rural Electrification Authority [2020] KEELC 985 (KLR)
The bottom line
#A Kenyan court refused to add interest to a land damages award, ruling that the law itself already grants 6% interest when a judgment is silent.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Order 9 Rule 9 of the Civil Procedure Rules
The Notice of Appointment filed by Simon Kiragu & Co Advocates after judgment contravened Order 9 Rule 9; the notice did not indicate the new firm would act alongside the previous firm and was not copied to it, and no leave or consent existed at the time of filing.
The suit was filed by Mwangi Chege & Co Advocates who remained on record through judgment and decree. The incoming firm's notice was not copied to the previous firm and did not state it would act in addition to it. Although leave was later granted on 1/7/2020, the court held the substantive application filed on 7/11/19 remained a contravention warranting rejection.
Whether the failure to award interest is an error apparent on the face of the record justifying review
No. The silence on interest was cured by the deemed 6% interest under Section 26(2) of the Civil Procedure Act, which was calculated and included in the decree; the applicant acquiesced to that decree.
The court found that the deemed interest of Kshs 98,555 was assessed and included in the decree of 15/7/2019 and paid by RTGS on 26/7/19 without objection. Section 26(2) operates where the judgment is silent on interest. Consequently there was no error apparent on the face of the record to warrant review or correction under the slip rule.
Whether the application was filed without unreasonable delay
The application, filed about 4 months after the decree and 12 months after judgment, was inordinate and unexplained, defeating the review discretion.
Review under Section 80 and Order 45 requires application without unreasonable delay. The applicant, though represented by counsel throughout, did not move until 4 months after the decree extracted on 13/6/19 and after the decree had been satisfied on 26/7/19. Having acquiesced to the state of affairs, the delay was inordinate and unattractive to the court's discretion.
Functus officio and the slip rule
The court endorsed the functus officio doctrine but noted it does not bar correction of clerical errors; however, no slip under Section 100 was demonstrated.
The court concurred with Jersey Evening Post Ltd v Al Thani that a court is functus once its judgment is perfected, though the doctrine does not prevent correcting clerical errors or a judicial change of mind before perfection. Since the silence on interest was statutorily cured and no error was shown, there was nothing to correct under Section 100.
Legal principles established
#- Where a decree is silent on further interest, Section 26(2) of the Civil Procedure Act deems interest at 6% per annum, curing any omission in the judgment
- A change of advocate after judgment requires leave of court or consent of the outgoing advocate under Order 9 Rule 9; a subsequent grant of leave does not cure a filing made in contravention of the rule
- An application for review made after inordinate delay, where the applicant has acquiesced to the decree, does not attract the court's discretion
- The functus officio doctrine does not prevent a court from correcting clerical errors, but proceedings are only fully concluded and the court functus when its judgment or order has been perfected
Court orders
#- 1.The Notice of Motion dated 7/11/2019 (amended 1/7/2020) seeking review of the judgment delivered 15/11/2018 is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Sections 80, 26 and 100 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kiragu Kimani v Rural Electrification Authority [2020] KEELC 985 (KLR)", Case Analysis (2020). Not stated in the judgment (ruling on Notice of Motion dated 7/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/985/eng@2020-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.