Washington Okumu Dinga v John Kibunga Kimani

of James Ndung'u, Advocate sworn on 25th November 2024 on grounds that the Court’s appellate judgment dated 17th May 2024 did not expressly distinguish the dates from which interest should accrue separately on special and general damages and further that in accordance with settled law, special damages ought to accrue interest from the date of filing suit, while general damages attract interest from the date of judgment. 5. The Respondent opposed the application through a Replying Affidavit sworn by Newton Mwangi, Advocate on 17th April 2025, contending that the application was brought with undue delay and that this Court had become functus officio, having already rendered its judgment on the issue of interest. Issues for Determination 6. Having considered the affidavit evidence on record alongside the judgment of the trial court and the appellate judgment of this Court, the issues arising for determination are as follows: 1. Whether the Appellant’s application for review and clarification is merited; 2. Whether the Respondent’s objections based on undue delay and the principle of functus officio are sustainable; 3. What is the semantic distinction between the terms “this judgment” and “the judgment”; 4. Whether interest on special damages should accrue from the date of filing suit; 5. Whether interest on general damages should accrue from the date of the trial court’s judgment. Analysis and Determination 1. Whether the application is properly before the court 7. The Appellant seeks clarification on the appropriate dates from which interest on special and general damages should accrue. This application falls within the ambit of Order 45 Rule 1 of the Civil Procedure Rules, which grants the Court jurisdiction to review its judgment or order where there is an error apparent on the face of the record, the discovery of new and important matter, or for any other sufficient reason. The clarification sought by the Applicant falls squarely within the ambit of this provision. It does not seek to reopen the merits of the appeal or alter the substance of the judgment, but rather to ensure clarity and accuracy in the execution of the decree. It is well established that a court has the residual power to correct or clarify its own decision in order to give proper effect to its intention. Accordingly, I am satisfied that this application is properly before the Court. (2) Respondent’s Objections (a) On Delay 8. This court’s judgment was delivered on 17th May 2024, while the present application was filed on 25th November 2024, a delay of approximately six months. While there has been some delay, it is not so inordinate as to be prejudicial or fatal, particularly considering that the issue at hand relates to clarification essential for the enforcement of the judgment. In the circumstances, I find that the delay is not unreasonable or fatal to the application. (b) On Functus Oficio 9. Although it is a well-established principle that a court becomes functus officio after delivering its final judgment, there are exceptions under Section 80 of the Civil Procedure Act and Order 45 Rule 1. A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12173/eng@2025-05-08 2

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court retains limited jurisdiction to correct errors, clarify ambiguities, or review its judgment where sufficient cause is shown. 10. In this case, the Applicant seeks a clarification rather than a re-opening of the judgment on its merits. Accordingly, the doctrine of functus officio does not bar this Court from granting the clarification sought. (3) Semantic Diffierence between "This Judgment" and "The Judgment" 11. The expressions "this judgment" and "the judgment" bear distinct meanings within the context of judicial proceedings. The term "the judgment" points backward to an earlier decision, while "this judgment" signifies the decision currently before the court. 12. Consequently, I do not find any ambiguity in this court judgment rendered on 17th May 2024 for the reason that the term "the judgment" refers to the judgment delivered by the trial court on 06th March 2020, which was the subject of the appeal to this Court. 4. Interest on special damages and general damages 13. The power of the court to award interest is governed by Section 26(1) of the Civil Procedure Act. In Shariff Salim & Another v Malundu Kikava [1989] KECA 42 (KLR), citing Prem Lata v Peter Musa Mbiyu [1965] EA 592, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1970] EA 469, and Dipak Emporium v Bond’s Clothing [1973] EA 553, the Court of Appeal affirmed that interest on special damages should accrue from the date of filing suit, provided that the sums claimed were already expended or incurred at that time. The court additionally stated that interest on general damages should accrue from the date of judgment, which is the date when the assessment of general damages is made by the court. 14. Applying these principles to the present matter, I find that interest on the special damages awarded to the Appellant should accrue from the date of filing suit and interest on the general damages from the date of the trial court’s judgment, being 06th March 2020. Disposition 15. Given the foregoing findings, it is hereby ordered: 1. The Respondent’s application dated 25th November 2024 is allowed. 2. Interest on special damages shall accrue from the date of filing of the primary suit. 3. Interest on general damages shall accrue from 06th March 2020 being the date of the trial court’s judgment 4. Each party shall bear its own costs of the application. 5. File closed DELIVERED AT NAIROBI THIS 08TH DAY OF MAY 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Nyambala https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12173/eng@2025-05-08 3

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For Appellant - Mr. Mwangi for Anne W.Kimani & Co. Advocates For Respondent - Mr. Ndungu for S.N.Ngare & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12173/eng@2025-05-08 4

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