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Case Brief · caselaw.co.ke
High CourtDismissedNot stated in the judgment text· Not stated in the judgment text

JOHN SILAS LENANA OLE PULEIY v HOUSING FINANCE COMPANY OF KENYA & another

High Court of Kenya
30 September 2020
2,604 words in judgment
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·~10 min to read original · ~4 min brief

The bottom line

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When depositing court money, you must confirm the interest rate terms yourself; the court will not cover your losses if you fail to prove a higher rate.

What this practically means

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Executive summary

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Following a 2009 judgment awarding the Plaintiff Kshs. 5,938,849.60, the Defendant obtained a stay on condition that it deposit Kshs. 6,500,000 in a joint interest-earning account in a reputable bank. The account was opened at Co-operative Bank in the joint names of the parties' advocates. The Court of Appeal affirmed the award in July 2019, and the Bank paid out Kshs. 7,591,960.98. The Defendant, contending the deposit should have earned treasury-bill-rate interest of about Kshs. 5.65 million, moved the court under section 34 of the Civil Procedure Act for accounts to be taken, for an order compelling the Bank to pay any shortfall, alternatively for a declaration that the amount released fully discharged it, and further that the Plaintiff bear any loss since it had insisted on Co-operative Bank. The court first held it had jurisdiction: section 34(1) vests the executing court with power to determine questions relating to execution, discharge or satisfaction of a decree, and the application did not seek a rehearing of the merits. On the merits, the court held the Defendant, as the depositing party, bore responsibility for ascertaining the deposit terms; the Plaintiff was entitled to every cent of the decretal sum. On the Bank's liability, the Defendant failed to establish any agreement or trade custom requiring treasury-bill rates; the Bank had explained it applied 3% per annum absent agreement, and the Defendant did not dispute the computation. Ordering accounts would serve no purpose. The Notice of Motion dated 24th April 2020 was dismissed with costs to the Plaintiff and the interested party.

Key legal issues

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01

Whether the court is functus officio after final judgment and appeal

Holding

The court has jurisdiction under section 34(1) of the Civil Procedure Act to determine questions relating to execution, discharge or satisfaction of the decree.

Reasoning

The Plaintiff argued the court was functus officio since the High Court and Court of Appeal had determined the matter with finality. The court held that section 34(1) confers jurisdiction on the executing court over all questions between the parties relating to execution, discharge or satisfaction of the decree. The application did not seek a rehearing of the merits but a determination of who should pay the shortfall of the decree, a question of execution within the court's jurisdiction.

p. 2
02

Whether the Plaintiff should bear the loss of interest on the deposit

Holding

No. The Defendant, as the party depositing the money, was responsible for ascertaining the terms of the deposit; the Plaintiff is entitled to the full decretal sum.

Reasoning

The Defendant argued the Plaintiff insisted on the account being at Co-operative Bank and should bear any interest loss. The court held the decree entitlement was settled and could not be varied; the order was for deposit in a 'reputable bank', not a specific bank. The depositing party had to ascertain the deposit terms, and could not have blamed the Plaintiff had the appeal succeeded on disadvantageous terms.

p. 3
03

Whether Co-operative Bank should pay the shortfall in interest

Holding

No. In the absence of an agreement or custom requiring treasury-bill rates, the Bank was entitled to apply 3% interest and is not liable for the shortfall.

Reasoning

The Defendant claimed interest equivalent to treasury bill rates but produced no agreement or proof of trade custom or usage requiring banks to invest fixed deposits in treasury bills. The Bank explained that absent agreement it applied 3% per annum, the lowest prevailing rate, less withholding tax. The Defendant did not dispute the computation was based on the 3% rate, so ordering accounts would serve no purpose.

p. 3

Legal principles established

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  • A trial court retains jurisdiction under section 34(1) of the Civil Procedure Act to determine questions relating to execution, discharge or satisfaction of its decree even after final judgment and appeal.
  • The party depositing a decretal sum in a joint interest-earning account as security for stay bears responsibility for ascertaining the terms on which the money is held.
  • At common law, interest is not payable on a debt absent express agreement, course of dealing or custom; a party claiming a higher interest rate on a fixed deposit bears the burden of establishing its legal basis.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 24th April 2020
  2. 2.Costs of the application to the Plaintiff and the interested party

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)section 34(1)
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)section 34

Cases cited (5)

  • Leisure Lodges Limited v Japhet S. Asige and Another
    MSA HCCC No. 279 of 2004 (OS) [2018] eKLR

    A trial court retains jurisdiction over incidental proceedings after final judgment provided they do not amount to re-trying the cause.

  • Adiel Muriithi Philip v Thomas Maingi
    NYR CACA No. 282 of 2007 [2017] eKLR

    Matters concerning discharge and satisfaction of the decree are determined by the court executing the decree.

  • Githunguri Dairy Farmers Co-operative Society v Ernie Campbell & Company Another
    NRB CACA No. 123 of 2011 [2018] eKLR

    Cited in support of the proposition on discharge and satisfaction of decrees.

  • Thomas Adong Onuko Kisumu Expert Tailoring House v Small Enterprising Finance Company Limited
    KSM HCCC No. 110 of 1996 [2017] eKLR

    Accounts should be taken where a decretal sum is deposited in a joint interest-earning account and the interest earned is unclear.

  • Jetha Shah v Kantilal Narshi Shah and Another

    Referred to within the quoted passage as an ordinary account case, distinguished from a decretal-sum joint account.

Jurisdiction invoked
Section 34(1) of the Civil Procedure Act (Chapter 21 of the Laws of Kenya)

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 SILAS LENANA OLE PULEIY v HOUSING FINANCE COMPANY OF KENYA & another", Case Analysis (2020). Not stated in the judgment text. Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.