John Magiri Mutuma v The Honourable Attorney General & 1 other

4. Counsel further submitted that Party & Party Costs in this matter were taxed by Hon. Isabelle Kimani, Deputy Registrar, at Kshs.163,845 on the 17th October 2024, a Certificate of Costs dated 28th November 2024 ensued from the above taxation followed by a Certificate of Order For Costs Against the Government also issued on 28th November 2024 and that the Contempt Application the subject of these submissions was filed on the 14th December 2023. Counsel contended that the Respondent failed to respond to or oppose the Contempt Application dated 14th December 2023 and instead conceded to the same by asking the court for time to settle all monies due to the Applicant, but has for the last seven (7) mentions of the matter failed to do so. 5. Counsel submitted that the Respondents have conceded that they have only paid Kshs.1,696,220/= in respect of the decretal sum. According to Counsel, computation of the sums due to the Applicant are as follows: 1. Decree Sum Kshs.900,000.00 2. Costs assessed in the lower Court Kshs.147,629.00 3. Interest on 1 above from 20/10/2015 to 27/11/2023 @ 14% p.a Kshs.1,022,153.42 4. Interest on 2 above from 20/10/2015 to 27/11/2023 @ 14% p.a Kshs.167,666.09 5. Total Kshs.2,237,448.51 6. Less Sum paid through Mithega and Kaqriuki Advocates on 27/11/2023 Kshs.1,696,220.80 7. Balance Kshs.541,227.71 8. Add Party to Party Costs Taxed in this JR (Certiifcate of Order of Costs dated 28/11/2024) Kshs.163,845.00 9. Total Due Kshs.705, 072.71 6. Counsel urged that the only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act which provides that payment will be based on a Certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. 7. Counsel maintained that once the certificate of order against the Government is served on the Hon Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6148/eng@2026-04-30 2

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pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues. Counsel relied on The Respondents’ Case 8. On his part, Counsel for the Respondent begun by noting that judgment in the primary suit was delivered on 20th October, 2015 in favour of the Plaintiff against the Defendant in Meru CMCC No.741 of 2002 John Magiri Mutuma v PC John Gachore & the Attorney General and that in the judgment, the court held that the Plaintiff's prosecution was malicious. Counsel further noted that the trial court awarded the Plaintiff Ksh.600.000.00/= as general damages for malicious prosecution. Ksh.300.000/= as punitive exemplary damages for unwarranted detention plus costs and interests of the suit and that costs in the lower court were assessed at Ksh.147.629.00/=. 9. According to Counsel, the amount payable to the Plaintiff inclusive of interest computed for six (6) years (from 20th October 2015 to 20th October 2021 as per section 4(4) of the Limitation of Actions Act is Ksh.1,696,220.80/= made up as follows: Damages ……………………………………………………………Kshs.900,000.00 Interest @ 12% WEF 20/10/2015 to 20/10/2021………Kshs.648.591.80 Costs ……………………………………………………….…………Kshs.147,629.00 Total decretal amount……………………………………….Kshs.1,696,220.80 10. Counsel cited Section 4(4) of the Limitation of Action Act and argued that from the said provision, it is evident that it is evident that arrears of interest on a judgment debt are irrecoverable after the lapse of six years from the date such interest became due. In the present case, judgment was entered on 20th October 2015, awarding the ex-parte Applicant damages, costs, and interest thereon A strict application of Section 4(4) of the Limitation of Actions Act means that the six-year period within which interest could accrue lapsed on 20 October 2021. 11. Counsel relied on the case of Ochanda v Attorney General & another [2025] KEHC 18275 (KLR), Makwata Construction and Engineering Company Ltd v Limuru Girls School (Miscellaneous Civil Application 532 of 2015) [2024] KEHC 16037 (KLR) and the case of Assia Pharmaceuticals Ltd v Kenya Alliance Insurance Co. Ltd (Civil Case 1605 of 1999) [2021] KEHC 19 (KLR). 12. Counsel thus submitted that these decisions underscore the consistent application of section 4(4) of the Limitation of Actions Act by courts on the issue of recovery of interests past the statutory provided period of six (6) months. It is submitted that in the present case there is no reason for this Honourable court to deviate from this path and as such we do pray that the court finds that the matter is settled since payment of Kshs.1,696,220 was already effected on 27 November 2023. 13. Counsel contended that court is bound by the certificate of order against government dated 20th January 2020 that was the basis of the Mandamus application and which the court relied to issue the Mandamus orders. 14. Counsel further submitted that incidental to the issue of interest is the applicable rate to be imposed by the court. Counsel cited Section 26(1) of the Civil Procedure Act Cap 21 and added that Section 26(1) of the Civil Procedure Act is operationalized by Practice Note No.1 of 1982 Rate of interest. Counsel submitted that an award of interest is a matter left to the discretion of the court. However, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6148/eng@2026-04-30 3

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Counsel maintained that such discretion must always be exercised within judicial limits and it must not be capricious or based on whim. He cited the case of Kipchumba v BOG Tambach. 15. Counsel argued that in this case the Applicants in their computation claimed that interest to be charged is 14% from the date of delivery of the judgment. Counsel submitted that the applicant misapprehended the law on this issue by suggesting a rate of 14% which is the rate of interest on costs as per Section 27(2) of the Civil Procedure Act. The provision provides that; The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 16. Counsel maintained that the interest in contention in the present matter is on the decretal amount awarded in Meru CMCC No.741 of 2002 John Magiri Mutuma v PC John Gachore & The Attorney General not on costs as alleged by the applicant. 17. Counsel argued that a further claim of interest as proposed by the Ex-parte applicant would be in violation of the in-duplum rule which prevents interest accumulation from exceeding the principal. Counsel argued that in the primary case, the interest on costs was never awarded and as such should not be claimed. Determination 18. I have carefully considered the parties submissions. I find that the only issue for determination to be as follows: a. whether interest on the decretal sum continued to accrue beyond the six-year period considering the provisions of Section 4(4) of the Limitation of Actions Act. b. Whether interest on the decretal sum continued to accrue beyond the six-year period in view of the provisions of Section 4(4) of the Limitation of Actions Act. 19. The Respondents argue that interest on the judgment debt is recoverable only within six (6) years from the date it became due and that therefore no interest could lawfully accrue after 20/10/2021, given that the decree was issued in October 2015. They rely on Section 4(4) of the Limitation of Actions Act and several authorities. 20. The Applicant on the other hand, contends that interest continues to accrue until the decretal sum is fully settled. The Applicant’s position is that part-payment of a debt extinguishes a defense that the said debt is barred by the limitation of action. 21. Section 4(4) of the Limitation of Actions Act expressly limits the period within which “interest on a judgment” may be recovered. The section reads as follows: “ 4(4)An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.” 22. There is no dispute that the Applicant herein who was the Plaintiff in Meru Chief Magistrate Court Civil Suit No. 741 of 2002 was awarded the sum of Kshs.600,000/= as general for malicious prosecution and Kshs.300,000/= as punitive exemplary damages plus costs and interest on 20/10/2015. The Principal sum was to attract interest from the date of Judgment until full payment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6148/eng@2026-04-30 4

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23. There is no dispute that interest is ordinarily an incident of the judgment in money decrees and that it continues to run until satisfaction of decree as stipulated in section 26 of the Civil procedure Act. However, the legislative framework under Section 4(4) of the Limitation of Actions Act expressly limits the period within which “interest on a judgment” may be recovered. In the instant case, however there is evidence indicating that in view of the Respondents having failed to settle the judgment sum in view of the Certificate of Order Against the Government duly issued on 20/01/2020. The Applicant filed a Judicial Review Application dated 30/11/2021 to compel them to do so. The Applicant obtained orders of mandamus against the Respondents on 8/12/2022 and a Certificate of Order Against the Government on 24/05/2023. In this regard therefore, time began to run from 24/05/2023 and not 20/10/2015 as purported by the Respondents. The Respondents have not denied that there was default on their part paying the decretal sum on time. Given the circumstances, the Applicant herein cannot be said to have slept on his rights to interest as purported by the Respondents. 24. In my view, the law did not intend to stop the charging of interest on the outstanding amount even after the lapse of six years in circumstances where it can be outrightly seen that the Respondents have been frustrating the execution process. The record shows that the Respondents have made part payment of the judgment sum and what is thus pending is the interest thereon which they ought to pay. 25. With regard to the rate to be used while calculating interest accrued. The Respondents urged that Section 26(1) of the Civil Procedure Act as read together with Practice Note 1 of 1982 on Rate of Interest should be the guiding framework. According to the Respondents the rate to be used should be 12% and not 14% as denoted by the Applicant. According to the Respondents, the Applicant herein has misapprehended the law on this issue by suggesting a rate of 14% which is the rate of interest on costs as per Section 27(2) of the Civil Procedure Act. In this case, it clear that the interest accrued is not only with respect to the deretal sum but the cost that were awarded by the trial Court. Therefore the Respondents cannot fault the Applicant for including interest on costs in their computation. 26. Section 26(1) of the Civil Procedure Act provides as follows; Where and in so far as a decree is for the 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 from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. 27. Section 27 of the Civil Procedure Act on the other hand provides as follows: (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6148/eng@2026-04-30 5

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28. In Kenya, Courts generally charge interest on decretal sums at a rate of 12% per annum, although they have the discretion to set rates up to 14% or follow agreed contractual rates. This interest is typically applied as simple, uncompounded interest from the date of filing the suit or judgment until full payment. Thus, in this case, I find no reason to interfere with the rate applied by the Applicant. The same is within set statutory frame. Order; 29. The Applicant shall have interest on both the decretal sum and the costs awarded by the Meru Chief Magistrate Court Civil Suit No. 741 of 2002 in the judgment dated 20/10/2015. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL, 2026. ……………………………… J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6148/eng@2026-04-30 6

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