Mbugua v Kibue (Environment and Land Appeal 10 of 2020) [2024] KEELC 14114 (KLR) (19 December 2024) (Ruling) Neutral citation: [2024] KEELC 14114 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAKURU ENVIRONMENT AND LAND APPEAL 10 OF 2020 A OMBWAYO, J DECEMBER 19, 2024 BETWEEN ELIZABETH WANJIKU MBUGUA ........................................................ APPLICANT AND GRACE WANJIRU KIBUE ................................................................. RESPONDENT RULING 1. This is a ruling in respect the application dated 30th March, 2023 led by the Appellant which sought the following orders: a) Spent. b. That the Deputy Registrar does compute the amount of interest payable on the sum of Kshs 829,000/= from 30th July, 2012 to 27th September, 2022. c. That in computation of the interest, the court applies the interest rate prescribed under Section26 of the Civil Procedure Act and the applicant be granted a period of 45 days to settle the interest payable. d. That costs of this application be borne by the Respondent. 2. The Application was based on grounds set out and supported by the Adavit of Elizabeth Wanjiku Mbugua The Appellant herein sworn on 30th March, 2023. 3. It was stated that the court delivered its judgment on 27th September, 2022 where she was ordered to pay a sum of Kshs 829,000/= together with interest from 30th July, 2012. 4. She stated that she paid a sum of Kshs 824,000/= and a further sum of Kshs 500,000/= through bankers cheque on 25th January, and 27th March, 2023 respectively. She further stated that on 11th October, 2022 through her advocates, the Respondent was requested to compute the interest payable but they https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14114/eng@2024-12-19 1
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never got any response. That on 28th November, 2022, the Respondent’s counsel wrote to the registrar of the court requesting computation of the interest but there was no response. She went on to state that computation of interest was a matter falling within the mandate of the Deputy registrar guided by provisions of Section 26 of the Civil Procedure Act. 5. It was stated that the court had given her a period of 6 months to settle the decretal sum and without computation of the same, she is unable to settle the amount. Response 6. The Respondent did not le any response to the application. Submissions 7. Counsel for the Appellant led his submissions dated 26th July, 2023 where he relied on Section 26(2) of the Civil Procedure Act and submits that the applicable rate is 6%. He further relied on the case of B.O.G Tambach Teachers Training College v Mary Kipchumba [2018] eKLR that cited with approval the case of Highway Furniture Mart Limited v Permanent Secretary Office of the President & another [2006] eKLR. 8. It was counsel’s submission that the Practice note never set interest rate but only acted as a guide for the trial court in exercise of its discretion to award interest under Section 26 of the Civil Procedure Act. He further submits that to set an interest rate would be unconstitutional since the legislative authority vests with Parliament and not the Chief Justice. 9. In conclusion, he urged the court to allow the application as prayed. 10. Counsel for the Respondent on the other hand led his submissions dated 24th July, 2023 where he relied on Section 26 of the Civil Procedure Act and submits that the applicable rate was 14%. He further relied on the Practice Directions of 1982 and the case of Highway Furniture Mart Limited v Permanent Secretary Office of the President & another [2006] eKLR. 11. It was his submission that the trial court in its judgment was not silent on the applicable interest since it held that interest would be computed at the court’s rate. He urged the court to order the applicable rate as 14% in the tabulation of its interest due. Analysis and Determination 12. This court has considered the application and supporting adavit the submissions and the main issue for determination is whether the application is merited. 13. It is not in dispute that the instant application was determined by the Deputy Registrar in her ruling delivered on 18th July, 2024. The court held that it lacked the jurisdiction to x the rate of interest applicable and she proceeded to refer the instant application before this court for directions. I am of the view that the prayers in the instant application defeats this court to make a determination since prayer (b) requests the Deputy Registrar to compute the interest payable. In addition, prayer (c) is closely intertwined to prayer (b) and with that, it leaves the court with nothing to determine. 14. It is my view that there is nothing before this court to determine since the forum to which the application was set for determination was before the Deputy Registrar. The Applicant ought to have led the relevant application before this court for its determination. The upshot of the foregoing is that the present application is hereby struck out with no orders as to costs. It is so ordered. SIGNED BY: HON. JUSTICE ANTONY O. OMBWAYO NAKURU ENVIRONMENT AND LAND COURT https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14114/eng@2024-12-19 2
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ENVIRONMENT AND LAND COURT DATE: 2024-12-19 10:18:09 https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14114/eng@2024-12-19 3
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