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ELCDismissedNot stated in the judgment (ruling on Notice of Motion dated 7/11/2019)· [2020] KEELC 985 (KLR)

John Kiragu Kimani v Rural Electrification Authority [2020] KEELC 985 (KLR)

Environment and Land Court
15 October 2020
3,275 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (J G Kemei, J) determined a Notice of Motion dated 7/11/2019, amended 1/7/2020, by which the Plaintiff sought review of the judgment of 15/11/2018 - which had awarded him special damages of Kshs 981,939 and general damages of Kshs 250,000 for the destruction of trees - so as to include interest on both heads and to fix the mode of computation, alternatively correction of an accidental slip or omission under the slip rule. The Defendant opposed, arguing non-compliance with Order 9 Rule 9 Civil Procedure Rules, inordinate delay, that interest is discretionary and was in any event statutorily provided under Section 26(2), and that interest of Kshs 98,555 had been assessed and paid with the decree. The court framed four issues. First, it held that Simon Kiragu & Co Advocates' Notice of Appointment filed after judgment contravened Order 9 Rule 9 since it neither sought leave nor recorded consent, was not copied to the outgoing firm, and did not indicate it would act alongside it; the later grant of leave on 1/7/2020 could not cure the defective filing. Secondly, applying Sections 80 and 26 of the Civil Procedure Act and Order 45 Rule 1, the court held the silence on interest was cured by the deemed 6% interest under Section 26(2), calculated and included in the decree of 15/7/2019 and paid on 26/7/19 without objection; hence no error apparent on the face of the record existed. Thirdly, the application filed 4 months after the decree and 12 months after judgment, with the applicant having acquiesced, was inordinate delay. The court, concurring with Jersey Evening Post Ltd v Al Thani on functus officio, found no slip under Section 100. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Compliance with Order 9 Rule 9 of the Civil Procedure Rules

Holding

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.

Reasoning

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.

p. 3
02

Whether the failure to award interest is an error apparent on the face of the record justifying review

Holding

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.

Reasoning

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.

p. 4
03

Whether the application was filed without unreasonable delay

Holding

The application, filed about 4 months after the decree and 12 months after judgment, was inordinate and unexplained, defeating the review discretion.

Reasoning

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.

p. 4
04

Functus officio and the slip rule

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 26(1)
  • Civil Procedure ActSection 26(2)
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (1)

  • Jersey Evening Post Limited Vs Al Thani
    (2002) JLR 542
Jurisdiction invoked
Sections 80, 26 and 100 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)

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, "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.