REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 513 OF 2012
A.Z. SHAH T/A FASHION SPOT………...,,,,PLAINTIFF/APPLICANT
-VERSUS-
JAN MOHAMED
INVESTMENT LIMITED.................,,,,DEFENDANT/RESPONDENT
RULING
The Application
1. The subject of this ruling is the Notice of Motion (the Application) dated 26.07.2025 brought by A.Z. Shah T/A Fashion Spot (the Applicant) in which the following orders are sought:
(i) This Honourable Court be pleased to review the decree issued on 9 th October 2023 to correct the interest calculation therein.
(ii) The Court be pleased to adopt the revised interest computation annexed in the supporting affidavit herein as accurately reflecting the interest lawful interest due.
(iii) The costs of this application be provided for.
2. The Application is supported by the grounds laid out on its body and deposed in the Supporting Affidavit of the Applicant sworn on 27.07.2025. The Applicant has averred that a partial judgment was entered in his favour on 16.06.2015 and against Jan Mohmed Investment Limited (the Respondent) in the sum of Kshs. 1,518,362.10, plus costs and interest thereon, as prayed in the Plaint. That the remaining prayers in the Plaint proceeded to full trial, resulting in a final judgment on 13.10.2022, with interest on the awarded amount to accrue from 14.10.2022 until payment in full.
3. The Applicant has further averred that the interest computed in the resulting decree dated 9.10.2023 is erroneous and does not correspond with the terms of the judgment, which constitutes an error apparent on the face of the record.
4. The Applicant has averred, further, that he has since undertaken an independent computation of the interest referenced above and has tendered the same for this court’s consideration and that the above circumstances would therefore befit a grant of the prayers sought in this application.
Replying Affidavit
5. To oppose the Application, the Respondent has filed a Replying Affidavit sworn by its proprietor, Karim Janmohamed on 29.08.2025, in which it is deposed that the instant Application cannot be entertained by this court under the doctrines of functus officio and res judicata , in view of the judgment earlier delivered in the present suit. That, the instant Application constitutes a mere afterthought and has been brought with undue delay. That, furthermore, the Application is defective for having been brought under unspecified legal provision.
6. It is further deposed that the decretal amount has already been settled in full and that any issue of execution has since been overtaken by events therefore leaving no pending issues for determination by the court at this juncture.
Submissions
7. The Application was canvassed through written submissions. The Applicant has invoked Section 99 of the Civil Procedure Act (CPA) which provides for the amendment of judgments, decrees or orders for the purpose of correcting clerical or arithmetic errors therein. The Applicant has further anchored his submissions on the decisions in Steve Onyango v Techspa General Supplies Ltd & 2 others [2020] KEHC 2798 (KLR) and Leonard Mambo Kuria v Ann Wanjiru Mambo [2017] KECA 782 (KLR) where the respective courts applied Sections 99 and 100 of the CPA accordingly.
8. The Applicant has submitted that as seen in the above-cited provisions and judicial authorities, the court has the power to correct the error in the decree issued in the present suit by rectifying the omission to include a computation of interest on the principal sum awarded.
9. On those grounds, the Applicant has maintained that the Application ought to succeed and costs be awarded to him.
10. In opposing the Application, the Respondent has reiterated the averments made in the Replying Affidavit, that there has been an inordinate delay in bringing the Application since the date of delivery of the judgment and that, the decretal amount has been fully settled and hence the Respondent would suffer double jeopardy if required to pay additional sums at this point.
11. The Respondent has submitted, further, that the Applicant has not at all met the required threshold for review set out in Section 80 of the CPA and Order 45 of the Civil Procedure Rules (CPR). That in particular, no apparent error has been shown to exist on the face of the record, within the context elaborated in the case of Nyamogo and Nyamogo v Kogo [2001] EA 174. That the error referenced in this instance would require an investigation and interrogation of the facts in the matter and that, no sufficient reasons have been given warranting the review order sought.
12. It is the Respondent’s contention that the Application ought to be dismissed, with costs, for want of merit.
Analysis and determination
13. I have considered the Application together with the Supporting Affidavits and the Replying Affidavit in opposition. I have also considered the rival submissions filed by the parties and the authorities relied on.
14. I have noted the issue raised by the Respondent that this application is defective for the reasons that this court is functus officio and that the matter is res judicata .
15. The Court of Appeal in the case of Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR, upon considering the principle of functus officio , held as follows:
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…
The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions…”
16. In order to resolve the issue as to whether this court is functus officio , I have read the court record. From a clear reading of the instant Application, it is evident that the prayers sought relate to the decree, specifically a review and/or correction thereof. Sections 99 and 100 CPA vests this court with general powers to correct or amend its records. To my mind, it cannot be said that this court, while exercising the powers vested on it under the above provisions, is functus officio .
17. The Court of Appeal in the case of Leonard Mambo Kuria v Ann Wanjiru Mambo [2017] KECA 782 (KLR) relied on by the Applicant in the submissions, rendered itself in the following manner:
“The application of these two sections [Sections 99 and 100 of the Civil Procedure Act, CAP 21] has been considered before in several decisions. They vest a general power to the courts to correct or amend their records. As such they are an exception to the doctrine of ‘functus officio’-- the principle that once a decision has been given, it is (subject to any right of appeal) final and conclusive. It cannot be revoked or varied by the decision-maker. As the court stated in the case of Jersey Evening Post Limited vs. Ai Thani [2002] JLR 542 at 550:-
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”.
18. Upon consideration of this issue, I find that there is nothing to indicate that the prayers being sought touch on the merits of the suit herein, or that this court is being called upon to revisit the already determined issues in dispute in the suit. Consequently, I find that the functus officio principle is not applicable.
19. On the issue of res judicata , Section 7 of the CPA which is the applicable provision on the above subject, states that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
20. With the above provision in mind, I have noted from the record that what is currently before the court is an application seeking a review and correction of the decree issued in this suit, on the computation of interest. I find no evidence that a similar issue was previously canvassed before the court and a determination made thereon. In the circumstances, I similarly find that the res judicata principle is not applicable in this matter.
21. I have noted the issue raised by the Respondent that the instant Application is defective for not having been brought under any specific legal provision. While I note that this is the case, I do not think that such omission would automatically render the Application fatally defective. The omission, in my view, is a technicality that is curable under Article 159 (2) (d) of the Constitution of Kenya, 2010.
22. I have considered the Application on its merits. Notwithstanding that the Applicant did not come under any specific legal provision, the orders sought are clear and understandable. The Application rides on Section 80 CPA and Order 45 of the CPR on the issue of review, as well as Sections 99 and 100 of the CPA on correction of clerical and arithmetic errors, and amendments in general.
23. An Applicant seeking review under the above provisions must demonstrate the following:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or
(ii) Some mistake or error apparent on the face of the record, or
(iii) Any other sufficient reason, and must
(iv) File the application without unreasonable delay.
24. The Applicant has relied on ‘ error apparent on the face of the record .’ To determine whether the Application meets the threshold of ‘error apparent on the face of the record’, I am guided by the decision in Muyodi v Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243 where the Court of Appeal rendered itself in the following manner:
“In Nyamogo and Nyamogo v Kogo [2001] EA 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”
25. Further, I refer to the decision of the Court of Appeal in the case of National Bank of Kenya Limited v Ndungu Njau [1997] KECA 71 (KLR) where that Court stated that:
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”
26. Does the purported error in this Application meet the threshold of self-evidence or does it require elaborate arguments to support it?
27. It is clear, from the record, that the Applicant purports that the interest indicated in the decree issued on 9.10.2023 does not reflect the interest awarded in the ruling delivered on 16.06.2015 and in the judgment entered on 13.10.2022.
28. My reading of the record shows that in the ruling of 16.06.2015 the court upon striking out the Respondent’s statement of defence, entered judgment in favour of the Applicant in the sum of Kshs 1,518,362/- plus costs and interest as prayed in the Plaint, whilst ordering that the remainder of the claim, being the set-off amount pleaded by the Respondent to the tune of Kshs. 500,000/-, do proceed for trial.
29. After the hearing, the court, in delivering the final judgment in the matter on 13.10.2022, found that the Respondent had failed to prove the set-off to the required standard and therefore entered judgment in favour of the Applicant for the abovementioned sum of Kshs. 500,000/- for rent arrears wrongly paid or overpaid. The learned Judge also awarded the Applicant costs of the suit and interest thereon at court rates, from 14.10.2008 until payment in full.
30. For clarity purposes, the Ruling of 16.6.2015 related to an application dated 12.2.2013 seeking to strike out the defence dated 30.5.2013. The court found the defence amounted to mere denials and struck it out and entered judgment in the tune of Kshs 1,518,362.10, with costs and interests as prayed in the Plaint. The interest as sought in the Plaint, which interest was sought at 14% per annum from 6.8.1999.
31. The court directed that the case proceeds for hearing in respect of Kshs 500,000, being a set-off said to have been used for repairs of the premises. The latter proceeded to hearing and a final judgment pronounced on 13.10.2022 in which the court found in favour of the Plaintiff that the Plaintiff was entitled to the balance of Kshs 500,000 with interest at court rates.
32. In view of this, I am persuaded that there is an error apparent on the face of the decree on the subject of interest, warranting a review.
33. This brings me to the subject of correction of the error. Sections 99 and 100 of the CPA which were earlier cited, are the applicable provisions on this. The former proviso stipulates that:
“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”
34. The latter Section 100 (supra) on its part, expresses thus:
“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”
35. From the foregoing provisions, it is not in doubt that the court is vested with the power to correct any clerical or arithmetic errors in the manner set out above. This position was reaffirmed by the Court of Appeal in the earlier cited case of Leonard Mambo Kuria v Ann Wanjiru Mambo and later restated in the case of Steve Onyango v Techspa General Supplies Ltd & 2 others [2020] KEHC 2798 (KLR) also cited in the Applicant’s submissions.
36. The impugned Decree dated 9.10.2022 has an error in that it states that the interest payable is from 14 th October 2008 until payment in full. This is erroneous, given that judgment was delivered on 13.10.2022. Interest ought to apply from 14.10.2022. Consequently, I hereby grant prayer (i) of the Application as prayed.
37. As relates to the second prayer in the Motion seeking the adoption of the interest computation undertaken by the Applicant, upon my perusal of the computation annexed to the Motion, it is apparent that the interest rate applied is that of 14% per annum. However, the terms of the judgment delivered on 13.10.2022 is clear that the court declined to apply a similar rate of 14% per annum. proposed by the Applicant and instead ordered that the awarded sum would accrue interest at court rates.
38. In the circumstances therefore, I decline to adopt the computation annexed to the Motion, and therefore, prayer (ii) of the Application collapses.
39. Consequently, the Notice of Motion dated 26.07.2025 partly succeeds in the following terms:
a) That the decree issued on 9 th October 2023 is hereby reviewed to correct the interest calculated therein to reflect that interest is payable at court rates from 14 th October 2022 until payment in full.
b) Each party shall bear own costs of this Notice of Motion.
40. Orders shall issue accordingly.
Dated, signed and delivered this 22 nd day of September 2026.
CIVIL CASE NO. 513 OF 2012PAGE 2
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 513 OF 2012
A.Z. SHAH T/A FASHION SPOT………...,,,,PLAINTIFF/APPLICANT
-VERSUS-
JAN MOHAMED
INVESTMENT LIMITED.................,,,,DEFENDANT/RESPONDENT
RULING
The Application
1. The subject of this ruling is the Notice of Motion (the Application) dated 26.07.2025 brought by A.Z. Shah T/A Fashion Spot (the Applicant) in which the following orders are sought:
(i) This Honourable Court be pleased to review the decree issued on 9 th October 2023 to correct the interest calculation therein.
(ii) The Court be pleased to adopt the revised interest computation annexed in the supporting affidavit herein as accurately reflecting the interest lawful interest due.
(iii) The costs of this application be provided for.
2. The Application is supported by the grounds laid out on its body and deposed in the Supporting Affidavit of the Applicant sworn on 27.07.2025. The Applicant has averred that a partial judgment was entered in his favour on 16.06.2015 and against Jan Mohmed Investment Limited (the Respondent) in the sum of Kshs. 1,518,362.10, plus costs and interest thereon, as prayed in the Plaint. That the remaining prayers in the Plaint proceeded to full trial, resulting in a final judgment on 13.10.2022, with interest on the awarded amount to accrue from 14.10.2022 until payment in full.
3. The Applicant has further averred that the interest computed in the resulting decree dated 9.10.2023 is erroneous and does not correspond with the terms of the judgment, which constitutes an error apparent on the face of the record.
4. The Applicant has averred, further, that he has since undertaken an independent computation of the interest referenced above and has tendered the same for this court’s consideration and that the above circumstances would therefore befit a grant of the prayers sought in this application.
Replying Affidavit
5. To oppose the Application, the Respondent has filed a Replying Affidavit sworn by its proprietor, Karim Janmohamed on 29.08.2025, in which it is deposed that the instant Application cannot be entertained by this court under the doctrines of functus officio and res judicata , in view of the judgment earlier delivered in the present suit. That, the instant Application constitutes a mere afterthought and has been brought with undue delay. That, furthermore, the Application is defective for having been brought under unspecified legal provision.
6. It is further deposed that the decretal amount has already been settled in full and that any issue of execution has since been overtaken by events therefore leaving no pending issues for determination by the court at this juncture.
Submissions
7. The Application was canvassed through written submissions. The Applicant has invoked Section 99 of the Civil Procedure Act (CPA) which provides for the amendment of judgments, decrees or orders for the purpose of correcting clerical or arithmetic errors therein. The Applicant has further anchored his submissions on the decisions in Steve Onyango v Techspa General Supplies Ltd & 2 others [2020] KEHC 2798 (KLR) and Leonard Mambo Kuria v Ann Wanjiru Mambo [2017] KECA 782 (KLR) where the respective courts applied Sections 99 and 100 of the CPA accordingly.
8. The Applicant has submitted that as seen in the above-cited provisions and judicial authorities, the court has the power to correct the error in the decree issued in the present suit by rectifying the omission to include a computation of interest on the principal sum awarded.
9. On those grounds, the Applicant has maintained that the Application ought to succeed and costs be awarded to him.
10. In opposing the Application, the Respondent has reiterated the averments made in the Replying Affidavit, that there has been an inordinate delay in bringing the Application since the date of delivery of the judgment and that, the decretal amount has been fully settled and hence the Respondent would suffer double jeopardy if required to pay additional sums at this point.
11. The Respondent has submitted, further, that the Applicant has not at all met the required threshold for review set out in Section 80 of the CPA and Order 45 of the Civil Procedure Rules (CPR). That in particular, no apparent error has been shown to exist on the face of the record, within the context elaborated in the case of Nyamogo and Nyamogo v Kogo [2001] EA 174. That the error referenced in this instance would require an investigation and interrogation of the facts in the matter and that, no sufficient reasons have been given warranting the review order sought.
12. It is the Respondent’s contention that the Application ought to be dismissed, with costs, for want of merit.
Analysis and determination
13. I have considered the Application together with the Supporting Affidavits and the Replying Affidavit in opposition. I have also considered the rival submissions filed by the parties and the authorities relied on.
14. I have noted the issue raised by the Respondent that this application is defective for the reasons that this court is functus officio and that the matter is res judicata .
15. The Court of Appeal in the case of Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR, upon considering the principle of functus officio , held as follows:
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…
The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions…”
16. In order to resolve the issue as to whether this court is functus officio , I have read the court record. From a clear reading of the instant Application, it is evident that the prayers sought relate to the decree, specifically a review and/or correction thereof. Sections 99 and 100 CPA vests this court with general powers to correct or amend its records. To my mind, it cannot be said that this court, while exercising the powers vested on it under the above provisions, is functus officio .
17. The Court of Appeal in the case of Leonard Mambo Kuria v Ann Wanjiru Mambo [2017] KECA 782 (KLR) relied on by the Applicant in the submissions, rendered itself in the following manner:
“The application of these two sections [Sections 99 and 100 of the Civil Procedure Act, CAP 21] has been considered before in several decisions. They vest a general power to the courts to correct or amend their records. As such they are an exception to the doctrine of ‘functus officio’-- the principle that once a decision has been given, it is (subject to any right of appeal) final and conclusive. It cannot be revoked or varied by the decision-maker. As the court stated in the case of Jersey Evening Post Limited vs. Ai Thani [2002] JLR 542 at 550:-
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”.
18. Upon consideration of this issue, I find that there is nothing to indicate that the prayers being sought touch on the merits of the suit herein, or that this court is being called upon to revisit the already determined issues in dispute in the suit. Consequently, I find that the functus officio principle is not applicable.
19. On the issue of res judicata , Section 7 of the CPA which is the applicable provision on the above subject, states that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
20. With the above provision in mind, I have noted from the record that what is currently before the court is an application seeking a review and correction of the decree issued in this suit, on the computation of interest. I find no evidence that a similar issue was previously canvassed before the court and a determination made thereon. In the circumstances, I similarly find that the res judicata principle is not applicable in this matter.
21. I have noted the issue raised by the Respondent that the instant Application is defective for not having been brought under any specific legal provision. While I note that this is the case, I do not think that such omission would automatically render the Application fatally defective. The omission, in my view, is a technicality that is curable under Article 159 (2) (d) of the Constitution of Kenya, 2010.
22. I have considered the Application on its merits. Notwithstanding that the Applicant did not come under any specific legal provision, the orders sought are clear and understandable. The Application rides on Section 80 CPA and Order 45 of the CPR on the issue of review, as well as Sections 99 and 100 of the CPA on correction of clerical and arithmetic errors, and amendments in general.
23. An Applicant seeking review under the above provisions must demonstrate the following:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or
(ii) Some mistake or error apparent on the face of the record, or
(iii) Any other sufficient reason, and must
(iv) File the application without unreasonable delay.
24. The Applicant has relied on ‘ error apparent on the face of the record .’ To determine whether the Application meets the threshold of ‘error apparent on the face of the record’, I am guided by the decision in Muyodi v Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243 where the Court of Appeal rendered itself in the following manner:
“In Nyamogo and Nyamogo v Kogo [2001] EA 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”
25. Further, I refer to the decision of the Court of Appeal in the case of National Bank of Kenya Limited v Ndungu Njau [1997] KECA 71 (KLR) where that Court stated that:
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”
26. Does the purported error in this Application meet the threshold of self-evidence or does it require elaborate arguments to support it?
27. It is clear, from the record, that the Applicant purports that the interest indicated in the decree issued on 9.10.2023 does not reflect the interest awarded in the ruling delivered on 16.06.2015 and in the judgment entered on 13.10.2022.
28. My reading of the record shows that in the ruling of 16.06.2015 the court upon striking out the Respondent’s statement of defence, entered judgment in favour of the Applicant in the sum of Kshs 1,518,362/- plus costs and interest as prayed in the Plaint, whilst ordering that the remainder of the claim, being the set-off amount pleaded by the Respondent to the tune of Kshs. 500,000/-, do proceed for trial.
29. After the hearing, the court, in delivering the final judgment in the matter on 13.10.2022, found that the Respondent had failed to prove the set-off to the required standard and therefore entered judgment in favour of the Applicant for the abovementioned sum of Kshs. 500,000/- for rent arrears wrongly paid or overpaid. The learned Judge also awarded the Applicant costs of the suit and interest thereon at court rates, from 14.10.2008 until payment in full.
30. For clarity purposes, the Ruling of 16.6.2015 related to an application dated 12.2.2013 seeking to strike out the defence dated 30.5.2013. The court found the defence amounted to mere denials and struck it out and entered judgment in the tune of Kshs 1,518,362.10, with costs and interests as prayed in the Plaint. The interest as sought in the Plaint, which interest was sought at 14% per annum from 6.8.1999.
31. The court directed that the case proceeds for hearing in respect of Kshs 500,000, being a set-off said to have been used for repairs of the premises. The latter proceeded to hearing and a final judgment pronounced on 13.10.2022 in which the court found in favour of the Plaintiff that the Plaintiff was entitled to the balance of Kshs 500,000 with interest at court rates.
32. In view of this, I am persuaded that there is an error apparent on the face of the decree on the subject of interest, warranting a review.
33. This brings me to the subject of correction of the error. Sections 99 and 100 of the CPA which were earlier cited, are the applicable provisions on this. The former proviso stipulates that:
“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”
34. The latter Section 100 (supra) on its part, expresses thus:
“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”
35. From the foregoing provisions, it is not in doubt that the court is vested with the power to correct any clerical or arithmetic errors in the manner set out above. This position was reaffirmed by the Court of Appeal in the earlier cited case of Leonard Mambo Kuria v Ann Wanjiru Mambo and later restated in the case of Steve Onyango v Techspa General Supplies Ltd & 2 others [2020] KEHC 2798 (KLR) also cited in the Applicant’s submissions.
36. The impugned Decree dated 9.10.2022 has an error in that it states that the interest payable is from 14 th October 2008 until payment in full. This is erroneous, given that judgment was delivered on 13.10.2022. Interest ought to apply from 14.10.2022. Consequently, I hereby grant prayer (i) of the Application as prayed.
37. As relates to the second prayer in the Motion seeking the adoption of the interest computation undertaken by the Applicant, upon my perusal of the computation annexed to the Motion, it is apparent that the interest rate applied is that of 14% per annum. However, the terms of the judgment delivered on 13.10.2022 is clear that the court declined to apply a similar rate of 14% per annum. proposed by the Applicant and instead ordered that the awarded sum would accrue interest at court rates.
38. In the circumstances therefore, I decline to adopt the computation annexed to the Motion, and therefore, prayer (ii) of the Application collapses.
39. Consequently, the Notice of Motion dated 26.07.2025 partly succeeds in the following terms:
a) That the decree issued on 9 th October 2023 is hereby reviewed to correct the interest calculated therein to reflect that interest is payable at court rates from 14 th October 2022 until payment in full.
b) Each party shall bear own costs of this Notice of Motion.
40. Orders shall issue accordingly.
Dated, signed and delivered this 22 nd day of September 2026.
CIVIL CASE NO. 513 OF 2012PAGE 2