Onchwari v National Authority for the Campaign Against Alcohol and Drugs (Employment and Labour Relations Cause 2036 of 2017) [2025] KEELRC 89 (KLR)
The bottom line
#A Nairobi court ruled that once judgment is delivered, parties can freely waive interest outside court, and such waivers bind even if never filed.
What this practically means
#Executive summary
#Key legal issues
#Validity of the deed of waiver of interest
On a balance of probabilities, the claimant voluntarily waived interest from the date of filing suit to the date of judgment; no evidence of forgery or of challenge to the declaration before the Law Society of Kenya
The court compared the documents produced by the respondent (DOK-1) and by the former advocate (CKM 6), found them similar on face value, found no evidence of forgery of the applicant's signature, no relevant stamp issues, and no challenge to the declaration in the Law Society of Kenya proceedings. The applicant's inconsistency - denying signature yet arguing about filing of consent - undermined his candour, and the 12-month delay after receiving payment showed the application was an afterthought.
Whether the unfiled consent/waiver was binding on the parties
Failure to file the deed of variation in court did not vitiate the waiver; the judgment in Prabhudas Dhanji was distinguished because in that case the court was not functus officio, whereas here the trial court was functus officio
The applicant argued that varying a decree required review under Section 80 of the Civil Procedure Act and Order 45 Rule 1, relying on Prabhudas Dhanji. The court examined that decision, noted it turned on the finding that the court was not functus officio and that the judgment was unperfected. In the instant case the court held the trial court was functus officio after delivery of judgment, so the parties were free to engage and vary interest between themselves without filing the deed in court.
Abuse of process and delay
The application was an afterthought, brought 18 months after receipt of payment, and an abuse of court process
The decretal sum was paid on or around 15th July 2022; the application was filed some 18 months later. Equity aids the vigilant, not the indolent. The claimant benefited from the waiver agreement while spending the decretal sum and only attacked the declaration when the money was exhausted. The court found no iota of evidence to vitiate the deed/consent and dismissed the application as an abuse of process.
Legal principles established
#- Upon delivery of judgment a trial court becomes functus officio, and the parties are free to deal with the judgment as they deem fit, including waiving interest without filing the variation in court
- A deed of waiver varying interest need not be filed in court to bind the parties
- A party who has accepted the benefit of a settlement cannot turn around to defeat it; raising technicalities to escape a valid agreement already benefited from will not be countenanced
- A duly instructed advocate has implied authority to compromise and settle an action
- Doctrine of election: no party can accept and reject the same instrument; one cannot approbate and reprobate
Court orders
#- 1.The Notice of Motion dated 18th October 2023 is dismissed
- 2.Costs of the application to the respondent
- Jurisdiction invoked
- Original jurisdiction over a post-decree Notice of Motion dated 18th October 2023 seeking orders relating to interest awarded under the court's own decree; no specific constitutional or statutory provision stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onchwari v National Authority for the Campaign Against Alcohol and Drugs (Employment and Labour Relations Cause 2036 of 2017) [2025] KEELRC 89 (KLR)", Case Analysis (2025). Not stated in the judgment (the subject decree arose out of a defamation claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/89/eng@2025-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.