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ELRCPartially AllowedKakamega HCCA No. 56 of 2009 (Notice of Motion dated 11th March, 2015)· [2015] KEELRC 404 (KLR)

Otieno Nalwayo v Mumias Sugar Co. Ltd [2015] KEELRC 404 (KLR)

High Court of Kenya
9 October 2015
1,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Mumias Sugar Co. Ltd, the Respondent in two successful appeals (Kakamega HCCA Nos. 17 and 56 of 2009), moved the court by Notice of Motion seeking a stay of execution, a declaration that the matters were fully settled, and recall of a Warrant of Attachment and Sale issued to Dasemy Auctioneers. The Applicant had issued cheques totalling Shs.341,495 in satisfaction of the decrees, but counsel for the Appellants extracted decrees including five years' interest, leaving a balance of Shs.100,505 in Appeal No. 17 of 2009 for which the warrant of attachment issued. The court perused both appellate judgments and found that in Appeal No. 56 of 2009 interest was expressly awarded, but in Appeal No. 17 of 2009 the judgment was silent on interest. Applying section 26 of the Civil Procedure Act, the court held that interest cannot be presumed where a judgment is silent and none was payable in Appeal No. 17 of 2009. The correct decree was therefore Shs.208,500 (principal of Shs.103,500 plus agreed costs of Shs.105,000) rather than Shs.289,950. The application succeeded in part: the decree and the warrant of attachment were recalled and set aside, a fresh decree was ordered for the principal sum and costs with credit for amounts paid, and each party was to bear its own costs of the application.

Key legal issues

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01

Whether interest was payable in Appeal No. 17 of 2009 whose judgment was silent on interest

Holding

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

Reasoning

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.

p. 3
02

Whether the warrant of attachment should be set aside

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Recall and set aside the decree herein and the Warrant of Attachment and Sale issued to Dasemy Auctioneers
  2. 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. 3.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 26(1) and (2)
On appeal from
Subordinate court
Jurisdiction invoked
High Court appellate jurisdiction over appeals from subordinate courts; Civil Procedure Act, section 26

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, "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.