1. By a Notice of Motion dated 14.8.24, the Applicants seek the following orders:
3. THAT this application be certified urgent and service be dispensed with in the first instance.
4. THAT the Honourable Court be pleased to order the release of Kshs. 1,769,150.00 and interests thereon until fully released, being the total decretal amount from the money held in the Advocates' fixed joint interest-earning Account at I & M Bank Kenya Limited, Nyali Branch, as of 14th August 2024, as follows:-
iii The decretal sum of Kshs. 1,650,348.00 plus interest thereon until fully released, be released to the firm of Tsofwa Mweni Advocates on behalf of the Applicant in full and final settlement of the Judgment as awarded by the court, vide its judgment delivered on 16th July 2024 and the Decree dated 13th August 2024
iv. The remaining balance after releasing the decretal amount of Kshs. 1,650,348.00 from the deposited and jointly held sum of Kshs. 1,769,150.00 in the Advocates' fixed joint interest-earning Account at I & M Bank Kenya Limited, Nyali Branch plus interest thereon until fully released, be released to the firm of G.E.O Oduor & Company Advocates on behalf of the Respondent herein.
5. THAT the costs of this Application be provided for.
6. THAT this Honourable Court be pleased to make any other or further orders as the circumstances and interests of justice herein may require.
2. The Application is opposed by the Respondent vide a replying affidavit sworn on 27.8.24 by George Oduor, Advocate.
3. The matter arose from the judgment of this Court of 16.7.24 in Civil Appeal No. E117 of 2023, against the decision of the trial court in Malindi CMCC No. E308 of 2022. The record shows that the trial court had in its decision of 5.7.23 awarded damages to the Applicant in the sum of as follows:
Pain and suffering Kshs. 100,000/=
Loss of dependency Kshs. 1,500,000/=
Loss of expectation of life Kshs. 100,000/=
Special damages Kshs. 69,150/=
Costs of the suit and interest at court rates
4. Stay of execution pending appeal was granted on terms that the decretal sum be deposited in a joint interest earning account of the parties’ advocates.
5. The appeal partly succeeded and this Court reduced the award for loss of dependency to Kshs. 1,000,000/=. The total award for damages thus amounted to Kshs. 1,169,150. This together with undisputed costs of Kshs. 188,700/= was by an order of this Court of 14.10.24 released to the Applicants’ advocates.
6. The issue in dispute is whether interest is payable to the Applicants. In order to determine the same, the Court has looked at the record in Civil Appeal No. E117 of 2023. It is the Applicants’ contention that the interest held in the joint account should be paid to them. The Respondent’s position however is that this Court did not award interest and that if any interest is to be awarded it should run from 16.7.24 and not 5.7.23.
7. In the memorandum of appeal, the Respondent challenged the awards on loss of dependency and special damages. The challenge to the award for loss of dependency succeeded and the same was reduced to 1,000,000/=, while the award for special damages was upheld. The Court made a determination on the 2 awards that were challenged before it.
8. The record shows that the trial court awarded interest at court rates. In his appeal, the Respondent had not challenged the interest. The only change therefore to the trial court’s decision was the award on loss of dependency. All other awards thus remained the same. There is nothing in the judgment of this Court that can be construed as denying the Applicants the interest awarded by the trial court.
9. In light of the foregoing, I find that interest which was awarded in the trial court is payable to the Applicants with effect from 5.7.23, the date of judgment. The only rider is that the interest on the award for loss of dependency will be on the amount of Kshs. 1,000,000/= awarded by this Court.
DATED, SIGNED and DELIVERED in MALINDI this 23rd day of May 2025
3. THAT this application be certified urgent and service be dispensed with in the first instance.
4. THAT the Honourable Court be pleased to order the release of Kshs. 1,769,150.00 and interests thereon until fully released, being the total decretal amount from the money held in the Advocates' fixed joint interest-earning Account at I & M Bank Kenya Limited, Nyali Branch, as of 14th August 2024, as follows:-
iii The decretal sum of Kshs. 1,650,348.00 plus interest thereon until fully released, be released to the firm of Tsofwa Mweni Advocates on behalf of the Applicant in full and final settlement of the Judgment as awarded by the court, vide its judgment delivered on 16th July 2024 and the Decree dated 13th August 2024
iv. The remaining balance after releasing the decretal amount of Kshs. 1,650,348.00 from the deposited and jointly held sum of Kshs. 1,769,150.00 in the Advocates' fixed joint interest-earning Account at I & M Bank Kenya Limited, Nyali Branch plus interest thereon until fully released, be released to the firm of G.E.O Oduor & Company Advocates on behalf of the Respondent herein.
5. THAT the costs of this Application be provided for.
6. THAT this Honourable Court be pleased to make any other or further orders as the circumstances and interests of justice herein may require.
2. The Application is opposed by the Respondent vide a replying affidavit sworn on 27.8.24 by George Oduor, Advocate.
3. The matter arose from the judgment of this Court of 16.7.24 in Civil Appeal No. E117 of 2023, against the decision of the trial court in Malindi CMCC No. E308 of 2022. The record shows that the trial court had in its decision of 5.7.23 awarded damages to the Applicant in the sum of as follows:
Pain and suffering Kshs. 100,000/=
Loss of dependency Kshs. 1,500,000/=
Loss of expectation of life Kshs. 100,000/=
Special damages Kshs. 69,150/=
Costs of the suit and interest at court rates
4. Stay of execution pending appeal was granted on terms that the decretal sum be deposited in a joint interest earning account of the parties’ advocates.
5. The appeal partly succeeded and this Court reduced the award for loss of dependency to Kshs. 1,000,000/=. The total award for damages thus amounted to Kshs. 1,169,150. This together with undisputed costs of Kshs. 188,700/= was by an order of this Court of 14.10.24 released to the Applicants’ advocates.
6. The issue in dispute is whether interest is payable to the Applicants. In order to determine the same, the Court has looked at the record in Civil Appeal No. E117 of 2023. It is the Applicants’ contention that the interest held in the joint account should be paid to them. The Respondent’s position however is that this Court did not award interest and that if any interest is to be awarded it should run from 16.7.24 and not 5.7.23.
7. In the memorandum of appeal, the Respondent challenged the awards on loss of dependency and special damages. The challenge to the award for loss of dependency succeeded and the same was reduced to 1,000,000/=, while the award for special damages was upheld. The Court made a determination on the 2 awards that were challenged before it.
8. The record shows that the trial court awarded interest at court rates. In his appeal, the Respondent had not challenged the interest. The only change therefore to the trial court’s decision was the award on loss of dependency. All other awards thus remained the same. There is nothing in the judgment of this Court that can be construed as denying the Applicants the interest awarded by the trial court.
9. In light of the foregoing, I find that interest which was awarded in the trial court is payable to the Applicants with effect from 5.7.23, the date of judgment. The only rider is that the interest on the award for loss of dependency will be on the amount of Kshs. 1,000,000/= awarded by this Court.
DATED, SIGNED and DELIVERED in MALINDI this 23rd day of May 2025