Susan Nyambura v Francis Nguru Gichia

amount payable is Kshs.259,107.00 which ought to be remitted to the Respondent and the balance to be paid to the Advocates. 3. The Respondent opposed the application through Replying Affidavit of Francis Nguru Gichia sworn on 14th March, 2025, wherein he has argued that the date of tabulating the interest was clearly indicated by the court as being from the date of filing the claim, which was on 27th April, 2022, and this being the case, the court is now functus officio since it already pronounced itself on the issue. 4. Pursuant to this court’s directions on 11th March, 2025, the application was canvassed by way of written submissions with the Appellant filing submissions dated 19th March, 2025 while the Respondent’s submissions are dated 19th March, 2025, where the parties have reiterated the arguments raised in their respective affidavits in support of their respective cases. Analysis and Determination 5. Having read through the Notice of Motion application alongside the affidavit in support thereof, the Replying Affidavit and the submissions, the court finds that the main issue for determination are:a. Tabulation of interest payable. b. What amount from the total decretal sum inclusive of the interest and costs arrived at to be released o the Respondent and balance to be released to the Appellant/Applicant Advocates. 6. To determine the issues arising from the application, the starting point is that the claim before the trial court was for payment of a sum of Kshs. 336,000/= which was allowed and judgment in favour of the Plaintiff entered together with costs of the suit and interest on 28th June, 2022. The costs were then assessed at Kshs. 61,100/=. Being aggrieved with this judgment, the Applicant filed a Memorandum of Appeal dated 17th July, 2022 seeking judgment to be entered in favour of the Respondent as against the Appellant for the undisputed sum of Kshs. 231,000/=. 7. In the judgment dated 12th July, 2024, the court ordered the Applicant to pay Kshs. 231,000/= plus costs of the claim and interest. With regard to interest, the court further held that since the claim was for liquidated sum, the finding that the interest was to accrue from the date of the judgment was set aside and substituted with a finding that interest accrues from the date when the claim was filed until the date of payment. Analysis and Determination 8. Having carefully read the Judgment delivered on 12th July, 2024, the court finds that the Hon. Judge held; (verbatim), (19) 9. with respect to interest, the claim was for a liquidated sum. I therefore set aside the adjudicator’s order for payment of interest from the date of Judgment and substitute it with an order that the award shall attract interest from the date of filing of the claim till the date of payment”. A reading of the said order clearly shows that the wording thereof is self-explanatory that the interest was to continue accruing from the date of filing the claim until payment in full. In view of this, the Applicant cannot claim that the interest stopped accruing when she deposited the decretal amount in court since the purpose of depositing the same in court was that it serves as security for the due performance of the appeal and not payment towards the decretal sum. The principle behind this requirement for a party to provide security for due performance is that it guarantees a party seeking to appeal their right of appeal while cushioning the party holding a judgment in their favour against https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4215/eng@2026-01-23 2

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being deprived of the fruits of his/her judgment in the event the appeal is dismissed. Simply put, the security is a safeguard to prevent frivolous suits or appeal and also covers costs to be incurred by the winning party. Therefore, the respondent is still deserving of the interest that has accrued and it would be unfair to deny her the same since the Judgment is yet o be remitted to his account as full payment. 10. According to the Applicant, the interest is to accrue on 25th May, 2022 when the amended claim was filed and 10th August, 2022, when the decretal amount was deposited in court. The Respondent on the other hand is of the view that for as long as the decretal amount is yet to be remitted to his account or full payment. 11. For these reasons, the court finds that the Notice of Motion application dated 14th October, 2024 unmerited and the same is thus dismissed with costs to the Respondent. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 23RD DAY OF JANUARY, 2026. D. O. CHEPKWONY JUDGE In the presence of; Mr. Mwaura counsel for Respondent Court Assistant – Martin/Sakina https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4215/eng@2026-01-23 3

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