Otieno Nalwayo v Mumias Sugar Co. Ltd [2015] KEELRC 404 (KLR)
The bottom line
#The High Court confirmed that interest on a judgment cannot be added unless the court awarded it, and set aside an inflated decree and attachment warrant.
What this practically means
#Executive summary
#Key legal issues
#Whether interest was payable in Appeal No. 17 of 2009 whose judgment was silent on interest
Interest is not payable where the judgment is silent; under section 26(2) of the Civil Procedure Act the deemed 6% interest applies only to further interest from decree to payment, not to the principal sum adjudged, so the decree here should be for principal sum and costs only
The court perused both appellate judgments. In Appeal No. 56 of 2009 interest was expressly awarded from the date of the lower court's judgment. In Appeal No. 17 of 2009 the judgment made no provision for interest. Relying on section 26 of the Civil Procedure Act, the court held that interest cannot be presumed where the judgment is silent, and that the deemed 6% provision under section 26(2) relates to further interest on the aggregate sum from the date of the decree, which does not justify the interest claimed here on the principal sum.
Whether the warrant of attachment should be set aside
Yes; since the decree as drawn exceeded the correct amount, the warrant of attachment and the decree were recalled and set aside and a fresh decree ordered
Having found that no interest was payable, the decretal amount of Shs.289,950 was excessive; the correct figure was Shs.208,500 (principal plus costs), less amounts already paid. The warrant of attachment issued for the balance of Shs.100,505 was therefore founded on an irregular decree and was set aside, with a fresh decree to be drawn giving credit for payments made.
Legal principles established
#- Where a decree is silent on interest, a party cannot presume interest; interest is not payable unless awarded or deemed under section 26 of the Civil Procedure Act
Court orders
#- 1.Recall and set aside the decree herein and the Warrant of Attachment and Sale issued to Dasemy Auctioneers
- 2.A fresh decree to be drawn for the principal sum of Shs.103,500 and agreed party and party costs of Shs.105,000, with credit for any amount paid towards the same
- 3.Each party to bear its own costs of the application
- On appeal from
- Subordinate court
- Jurisdiction invoked
- High Court appellate jurisdiction over appeals from subordinate courts; Civil Procedure Act, section 26
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.
- Tamurei Kobilo Chepkaitany v Joanes Ochiel Nyawara & another [2018] KEELC 2484 (KLR)[2018] KEELC 2484 (KLR)21 Jun 2018
Cite this brief
#Cite this brief
Caselaw, "Otieno Nalwayo v Mumias Sugar Co. Ltd [2015] KEELRC 404 (KLR)", Case Analysis (2015). Kakamega HCCA No. 56 of 2009 (Notice of Motion dated 11th March, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/404/eng@2015-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.