Kiama v Elite Westlands Limited & another (Miscellaneous Application E115 of 2024) [2026] KEELC 2968 (KLR)

2. d. In default of payment, the Applicants be at liberty to execute the decree or the court be at liberty to summon the Respondent to show cause why he should not be punished for contempt by refusing to refund the overpaid interest. e. Cost of this application be assessed by the court or taxed in favour of the Applicants. The application is premised on grounds on its face and on the supporting afidavit of Edith Muchiri, Human Resources and Administration Manager of the 2nd Judgement Debtor. He asserts that the Arbitral Award dated 19th June 2024 was awarded as follows: a. Refund of kshs.1,821,476/= with interest at 16% per annum from 21st June 2022 until the date of payment. b. Compensatory damages of ksh.2,000000/= c. Damages of kshs.2,000,000/= being the difierence between the actual price and the sale price of the unit. d. Post judgement interest at the rate of 16% per annum. 3. He insists that subsequent to issuance of the Decree, the decretal amount of kshs.8,760,360.90/= that was deposited as security in the escrow account was released and paid to the Decree-holder’s advocates 0n 9th December 2025. He contends that on 27th January 2026, the said advocates demanded the sum of kshs.1,081,502.56/= being the alleged balance of the decretal amount, and threatened to instruct auctioneers to execute. Further, that in response to the said demand, the Judgement debtor’s advocates sought an account of how the purported Decretal balance was arrived at and in response, the Decree holder’s advocates confirmed a mistake had been made and demanded a new figure of ksh.243,521.93, which the Judgement debtors’ advocates disputed vide their letter dated 9th February 2026, demanding a refund of an overpayment of kshs.1,008,446.02. 4. He claims that as per the annexed interest statement form prepared by the Judgment debtors’ advocates accounts department, the total decretal amount payable as at 9th December 2025 should have been kshs.7,779,013.13/= and not kshs.8,760,360.90/= thus there was an overpayment of kshs.981,347.77/ = as at 9th December 2025 and applying the interest of 16% per annum, which was allowed by the Arbitrator, the overpayment came to Kshs. 1,008,446.02/= thus it is unlawful for the Decree holder to enrich himself by refusing to refund the interest that was overpaid. Response 5. The application is opposed by the Decree holder who filed a replying afidavit. He avers that the dispute solely revolves around the interpretation of the Decree issued herein on 21st November 2024 in his favour and avers that the plain, literal and only reasonable interpretation of the said Decree is that interest was awarded at 16% from 21st June 2022 on all heads (a-c) , not just on (a) which concerns general damages as the per the Judgement debtors interpretation which is an invitation of this court to re-write the Decree. The subject award was as follows; “ 1. The claimant’s claim succeeds as follows: a. Return of the kshs.1,821,476/= b. The difierence between the actual purchase price and the sale price of the unit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2968/eng@2026-05-19 2

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c. Compensatory damages in the amount of kshs.2,000.000/= d. Interest at 16% from 21st June 2022 until the date of payment. e. Post judgement interest at the rate of 16% f. ………………..” 6. The Decree holder also insists that vide the letter dated 11th February 2026, his advocates wrote to the Judgement debtors and gave a detailed breakdown of how they arrived at the Decretal sum and established that the Judgment debtors owe him kshs.243, 521.93/= which he now demands. 7. The application was canvassed by way of written submissions. Submissions 8. The Judgement debtors submit that interest on general damages runs from the date of assessment, not from the date the cause of action arose, thus clause (d) of the Decree dated 21st November 2024 which provides for interest at 16% from 21st June 2022 does not apply uniformly to the whole award as the said clause, when applied to the principle that general damages attract interest from the date of assessment could only apply to the special damages (refund awarded) under clause (a). 9. They submit that while Special damages attract interest to compensate a party for being kept out of monies already owed, general damages are unliquidated and are only quantified and brought into existence by the process of assessment as they are created by the judgment and can only bear interest from the moment they exist. To support this position, the Judgement Debtors relied on the following decisions: Shariff Salim & Another v Malundu Kikya [1989] eKLR; Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited; South Nyanza Sugar Company Limited v Oreko (Civil Appeal 138 of 2017) [2022] KECA 570 (KLR); Fredrick Mageria Githinji v Charles Mwangi Muriithi [2021] KEHC 4254 (KLR); King’ori v Basari Company Limited & 2 others [2025] KEHC and Jane Oyuyanzi Raphael v Salina Transporters [2020] KEHC 618 (KLR). 10. They also submit that the Decree holders’ approach that a literal reading of clause (d), is express, specific and unambiguous and that this Court cannot rewrite it, in execution proceedings is legally unsustainable. Further, that this Court retains jurisdiction under Order 22 Rule 22(2) of the Civil Procedure to order restitution where execution has resulted in an overpayment, adding that the principle against unjust enrichment is also applicable as Equity abhors it. To this end, they relied on the case of Theresia Runji & 3 Others v National Land Commission [2019] eKLR. 11. They also submit that Section 91 (1) of the Civil Procedure Act provides the primary statutory mechanism for restitution consequent upon the variation or reversal of a Decree. 12. On his part, the Decree holder reiterates his averments in his replying afidavit and submits that the Court exercised its discretion under Section26(1) of the Civil Procedure Act when it awarded interest at 16% from 21st June 2022. 13. He also submits that the authorities relied on by Judgement debtors only establish a general rule that applies when the Decree or judgement is silent on the commencement date for interest on general damages, they do not apply where, like in the instant case, the Decree is express, specific and unambiguous. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2968/eng@2026-05-19 3

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14. He insists that the subject Decree must be executed according to its plain and literal terms. To buttress his averments, he relied on the case of Kaloki & 2 others v Kenya Aerotech Limited [2025] KEELRC 3465 eKLR. Analysis and Determination 15. I have considered the instant Notice of Motion application including the respective afidavits and rivalling submissions and the only issue for determination is whether the Judgement Debtors are entitled to the Orders as sought in the said instant application. 16. It is not in dispute that at clause (d) of the Decree dated 21st November 2024, which Decree is reproduced at paragraph 5 herein, this court awarded interest at 16% from 21st June 2022. The bone of contention between the Judgement debtors and the Decree holder is whether the said interest applies uniformly to clause (a) – (c) or clause (a) only. The Judgement debtors contend that it could only apply to special damages as pre-assessment of interest on general damages would be a logical impossibility since interest cannot run on a debt that does not yet exist. 17. On his part, the Decree Holder submits that this Court exercised its discretion under Section 26(1) of the Civil Procedure Act when it awarded interest at 16% from 21st June 2022 thus the interest should apply on all heads from the specific date of 21st June 2022. 18. The Decree holder also contends that interpreting the Decree as proposed by the Judgement Debtors would amount to rewriting of the Decree, yet the Court used its discretion to award interest in the manner it did. 19. This difierence in interpretation of the Decree is what creates the accounting issue herein where the Judgement debtors claim for an alleged overpayment in the sum of kshs. Kshs.1, 008, 446.02 and Decree holder’s demand an outstanding balance of Kshs. 243,521.93/=. 20. Section 26(1) of the Civil Procedure Act provides that: “ Where and in so far as decree is for payment of money, the court may, in the decree, order interest at such rate, as the court deems reasonable to be paid on the principal sum adjudged on sum principal sum for any period before the institution of the suit, with further interest as sum rate as the court deems reasonable on the aggregate so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.” 21. While interpreting this provision, the Court of Appeal stated as follows in South Nyanza Sugar Co. Ltd v Anyango (Suing as the Administratrix of the Estate of Jared Onyango Onguka) (Civil Appeal 171 of 2019) [2024] KECA 694 (KLR) (21 June 2024) (Judgment): “ The section is explicit that the court has discretion to award interest on the principal sum where the decree is for the payment of money; and further that the court has discretion to determine the appropriate rate of such interest. None of the limitations the appellant urges us to impose are found in the statutory provision. This was a liquidated claim based on a breach of contract. There is absolutely no justification to limit the interest payable on account of the fact that the ultimate amount payable would exceed the principal amount claimed: the fact that it is so, is merely a refiection of the delay of the appellant in meeting its obligations” 22. While Section 91. (1) of the Civil Procedure Act provides that: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2968/eng@2026-05-19 4

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(1) 23. Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of the party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.” In Shariff Salim & another v Malundu Kikava [1989] KECA 42 (KLR) , the Court of Appeal stated thus: “ The judge gave no reason for ordering that interest even on general damages was to be paid from the date of filing the suit. According to the authorities interest on general damages should be paid from the date of assessment which of course is the date of judgment. That is the earliest date when the defendant’s liability to pay does arise.” 24. Further, in Kaloki & 2 others v Kenya Aerotech Limited [2025] KEELRC 3465 eKLR, the Court stated that: “ The Court of Appeal in Bwana vs Said & Others (1991) 2KAR 262 held that execution proceedings are limited to enforcing a decree, not re-opening it. Similarly, in Nyamogo & Nyamogo Advocates v. Kogo [2001] EA 173, the court emphasized that post judgment applications cannot overturn or vary the substance of the judgment, but may clarify ambiguity for purposes of enforcement.” 25. For the avoidance of doubt, I wish to reproduce an excerpt from the Arbitrator’s Award, which forms the fulcrum of the dispute herein: Award 1. Return of the 1, 821, 476 KES. 2. The difierence between the actual purchase price and the sale price of the unit. 3. Interest at 16% from the 21 June 2022 until the date of payment. 4. Post judgement interest at the rate of 16% 26. On a keen reading of this excerpt, I find that the Arbitrator was clear on when interest was to be charged. Further, I do not find that he distinguished on when interest was to be charged on the various heads but awarded interest generally at 16% from the 21 June 2022 until the date of payment and then post judgement interest. It is my considered view that the Judgement debtors’ interpretation on calculation of the disputed interest is an invitation to this Court to rewrite the Decree which emanated from an Arbitral Award. It is trite that execution proceedings as in this instance are strictly limited to enforcement of a Decree and not variation of the same. Further, the import of any post judgment application touching on execution of a Decree is simply to clarify an ambiguity to aid in smooth execution of the same and not to overturn or vary the substance of the judgment and resultant Decree emanating therefrom. I will hence decline to vary the Decree herein as regards the calculation of interest. 27. In the foregoing, while relying on the legal provisions quoted and associating myself with the decisions cited, I find the instant Notice of Motion application unmerited and will proceed to dismiss it. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2968/eng@2026-05-19 5

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28. Each party to bear their own costs. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF MAY, 2026 CHRISTINE OCHIENG JUDGE Wanyama for Decree holder/ Respondent Ongeri HB for Allen Gichuhi SC for Judgement Debtors/Applicants Court Assistant: Catherine https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2968/eng@2026-05-19 6

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