1. The applicant/1st Respondent has moved this court by way of a Notice of Motion application seeking that;
a. Kenya shillings five hundred and sixty four thousand, six hundred and ninety two (ksh.564,692) be paid to the 1st respondent/applicant’s advocate (Mulwa & Mulwa Advocate) from Kenya shillings one million, six hundred and thirty eight thousand, one hundred and fifty two (ksh.1,638,152) deposited at KCB bank Account No.1285792297 held jointly in the names of the Appellant and the 1st Respondent’s advocate and the remaining amount of Kenya shillings one million, seventy three thousand four hundred and sixty (ksh.1,073,460) be paid to the Appellant’s advocate (Munga kibanga and Co. Advocates).
b. That the accrued interest of ksh.236,819 be paid to the 1st Respondent’s advocate Mulwa & Mulwa.
2. The genesis of this matter is a road traffic accident involving two motor vehicles in which the 1st Respondent, was involved. He filed suit Machakos CMCC No. 360 of 2012. The test suit Machakos CMCC No 856 of 2011 determined the question on liability where it was apportioned as follows; 85% against the 2nd and 3rd Respondents and 15% against the Appellant.
3. Despite the apportionment of liability, in the test suit, the trial court in Machakos CMCC No.360 of 2012, in its judgment delivered on 11th July 2019 held that the appellant, the 2nd and 3rd respondent were 100 per cent jointly and severally liable for the accident. The trial court proceeded to award quantum as follows;
General damages - ksh.1,700,000/-
Special damages - ksh.241,440
Future medical - ksh.570,000
Total 2,511,440/-
4. By a letter dated 19th July 2019, the 1st Respondent made a demand of the decretal sum based on the liability apportioned by the trial court. It also included a demand for costs amounting to Ksh.221,896/=.
5. In response to the demand letter on 20th September 2019 the Appellant, remitted a cheque of Kenya shillings four hundred and fourteen thousand, three hundred and forty-six (Ksh.414,346) in full satisfaction of its liability. This was 15 percent of the amount demanded and aligned with apportionment of liability by the test suit
6. . On 4th December 2020, the 1st Respondent obtained a decree and commenced execution proceedings against the parties. The Appellant lodged an appeal, and as a condition for stay of execution, the court directed that Kenya shillings one million, six hundred and thirty eight thousand, one hundred and fifty two (Ksh.1,638,152/-) be deposited in a joint interest-earning account in the names of the parties’ advocates. A condition the appellant complied with.
7. The appeal was heard and on 16th March 2023 it was dismissed with costs. However, the appellate court held that liability in CMCC No. 360 of 2012 should follow the finding of the test suit, that is, the Appellant was directed to pay 15% portion on liability and that any excess amount deposited in the joint names of the advocates be refunded to the appellant, and the 1st respondent was at liberty to execute the decree in the lower court against the other respondents in line with the finding on liability.
8. The uncontested issues are: the appellant’s apportionment of liability is at 15 per cent of the trial court judgment; that the costs of the appeal was assessed at Kenya shillings one hundred and eighty one thousand, six hundred and twenty eight (ksh.181,628/-) is to be paid by the appellant and remains unpaid; and the appellant paid kshs 414,346 towards the trial court judgment and costs.
9. The 1st respondent contends that the decree issued on 4th December 2020, set out the decretal amount and interest at kshs 3,400,929 as at 4th December 2020. According to him a deficit of Kenya shillings ninety five thousand, seven hundred and ninety six (ksh.95,796/-) remains unpaid to satisfy the appellant’s 15% portion of decretal sum and interest.
10. From the record, a letter dated 19th July 2019 from the 1st respondent counsel, Mulwa & Mulwa Advocates demanded Ksh.2,762,308 (being the decretal sum plus costs). The Appellant responded on 20th September 2019 enclosing a cheque of Ksh.414,236/-, which he deemed full settlement.
11. The 1st Respondent does not dispute receiving the sums of money but alleges that the decretal sum with interest was not fully paid, as confirmed by a decree dated 4th December 2020. However, this court motes that the decree did not factor the payment of decretal sum already made by the Appellant, yet it was issued after the payment had been effected. No explanation has been provided for the failure to capture the payments made by cheque dated 20th September 2019.
12. This court notes that interest on the decretal sum is earned and calculated based on the number of days the decretal sum remains unpaid. In this instance judgment was entered on 11th July 2019, the 1st respondent made a demand for payment of the decretal sum and costs of the suit vide its letter dated 19th July 2019. The appellant made good the demand by paying a share equivalent to 15 per cent of the judgment and costs by a cheque dated 20th September 2019. Based on this, the only interest payable to the 1st respondent is interest accrued for the period the decretal sum remained unpaid. In the instant case interest accrued upto 20th September 2019 when the Appellant paid his portion of the decretal sum.
13. Therefore, this Court finds that the 1st Respondent is not entitled to claim interest as set out in the decree, for the reason that the decree did not factor payments already made by the Appellant prior to its extraction. The 1st Respondent conduct in extracting the decree without disclosure of payment was misleading, prejudicial and abuse of the court’s process.
14. Accordingly, this Court holds that the decree issued on 4th December 2019 was based on misrepresentation of facts and is erroneous to the extent that it purports to impose interest on sums already settled. The 1st respondent cannot, in law or equity, benefit from interest calculated on amounts that had been discharged. The upshot of the above is that the 1st respondents claim of Kshs 95,793/- is declined.
15. Based on the foregoing;
a. The decree issued on 4th December 2020 is erroneous for failing to consider kshs Ksh.414,236/- being payments made by the appellant to the 1st Respondent.
b. The Deputy Registrar to rectify the decree issued on 4th December 2020 to align with the allocation of liability as apportioned between the appellant, the 1st and 2nd respondent.
c. In calculating interest, the Deputy Registrar to take into account the amount already paid on 20th September 2019, as interest does not accrue to the sum already paid.
d. After recalculation of interest any amount due to the 1st respondent to be paid from the funds held in the joint account.
e. Ksh.181,628/= being costs of the appeal to be paid to Mulwa & Mulwa Advocates from the joint account.
f. The 1st respondent is not entitled to interest accrued on the joint account.
g. Upon compliance with orders (d) and (e) the balance and accrued interest in the joint account will be released to the Appellant’s advocate.
h. The costs of this application is awarded to the Appellant/Respondent
Signed, dated and delivered at Machakos this 11th day of November, 2025.
a. Kenya shillings five hundred and sixty four thousand, six hundred and ninety two (ksh.564,692) be paid to the 1st respondent/applicant’s advocate (Mulwa & Mulwa Advocate) from Kenya shillings one million, six hundred and thirty eight thousand, one hundred and fifty two (ksh.1,638,152) deposited at KCB bank Account No.1285792297 held jointly in the names of the Appellant and the 1st Respondent’s advocate and the remaining amount of Kenya shillings one million, seventy three thousand four hundred and sixty (ksh.1,073,460) be paid to the Appellant’s advocate (Munga kibanga and Co. Advocates).
b. That the accrued interest of ksh.236,819 be paid to the 1st Respondent’s advocate Mulwa & Mulwa.
2. The genesis of this matter is a road traffic accident involving two motor vehicles in which the 1st Respondent, was involved. He filed suit Machakos CMCC No. 360 of 2012. The test suit Machakos CMCC No 856 of 2011 determined the question on liability where it was apportioned as follows; 85% against the 2nd and 3rd Respondents and 15% against the Appellant.
3. Despite the apportionment of liability, in the test suit, the trial court in Machakos CMCC No.360 of 2012, in its judgment delivered on 11th July 2019 held that the appellant, the 2nd and 3rd respondent were 100 per cent jointly and severally liable for the accident. The trial court proceeded to award quantum as follows;
General damages - ksh.1,700,000/-
Special damages - ksh.241,440
Future medical - ksh.570,000
Total 2,511,440/-
4. By a letter dated 19th July 2019, the 1st Respondent made a demand of the decretal sum based on the liability apportioned by the trial court. It also included a demand for costs amounting to Ksh.221,896/=.
5. In response to the demand letter on 20th September 2019 the Appellant, remitted a cheque of Kenya shillings four hundred and fourteen thousand, three hundred and forty-six (Ksh.414,346) in full satisfaction of its liability. This was 15 percent of the amount demanded and aligned with apportionment of liability by the test suit
6. . On 4th December 2020, the 1st Respondent obtained a decree and commenced execution proceedings against the parties. The Appellant lodged an appeal, and as a condition for stay of execution, the court directed that Kenya shillings one million, six hundred and thirty eight thousand, one hundred and fifty two (Ksh.1,638,152/-) be deposited in a joint interest-earning account in the names of the parties’ advocates. A condition the appellant complied with.
7. The appeal was heard and on 16th March 2023 it was dismissed with costs. However, the appellate court held that liability in CMCC No. 360 of 2012 should follow the finding of the test suit, that is, the Appellant was directed to pay 15% portion on liability and that any excess amount deposited in the joint names of the advocates be refunded to the appellant, and the 1st respondent was at liberty to execute the decree in the lower court against the other respondents in line with the finding on liability.
8. The uncontested issues are: the appellant’s apportionment of liability is at 15 per cent of the trial court judgment; that the costs of the appeal was assessed at Kenya shillings one hundred and eighty one thousand, six hundred and twenty eight (ksh.181,628/-) is to be paid by the appellant and remains unpaid; and the appellant paid kshs 414,346 towards the trial court judgment and costs.
9. The 1st respondent contends that the decree issued on 4th December 2020, set out the decretal amount and interest at kshs 3,400,929 as at 4th December 2020. According to him a deficit of Kenya shillings ninety five thousand, seven hundred and ninety six (ksh.95,796/-) remains unpaid to satisfy the appellant’s 15% portion of decretal sum and interest.
10. From the record, a letter dated 19th July 2019 from the 1st respondent counsel, Mulwa & Mulwa Advocates demanded Ksh.2,762,308 (being the decretal sum plus costs). The Appellant responded on 20th September 2019 enclosing a cheque of Ksh.414,236/-, which he deemed full settlement.
11. The 1st Respondent does not dispute receiving the sums of money but alleges that the decretal sum with interest was not fully paid, as confirmed by a decree dated 4th December 2020. However, this court motes that the decree did not factor the payment of decretal sum already made by the Appellant, yet it was issued after the payment had been effected. No explanation has been provided for the failure to capture the payments made by cheque dated 20th September 2019.
12. This court notes that interest on the decretal sum is earned and calculated based on the number of days the decretal sum remains unpaid. In this instance judgment was entered on 11th July 2019, the 1st respondent made a demand for payment of the decretal sum and costs of the suit vide its letter dated 19th July 2019. The appellant made good the demand by paying a share equivalent to 15 per cent of the judgment and costs by a cheque dated 20th September 2019. Based on this, the only interest payable to the 1st respondent is interest accrued for the period the decretal sum remained unpaid. In the instant case interest accrued upto 20th September 2019 when the Appellant paid his portion of the decretal sum.
13. Therefore, this Court finds that the 1st Respondent is not entitled to claim interest as set out in the decree, for the reason that the decree did not factor payments already made by the Appellant prior to its extraction. The 1st Respondent conduct in extracting the decree without disclosure of payment was misleading, prejudicial and abuse of the court’s process.
14. Accordingly, this Court holds that the decree issued on 4th December 2019 was based on misrepresentation of facts and is erroneous to the extent that it purports to impose interest on sums already settled. The 1st respondent cannot, in law or equity, benefit from interest calculated on amounts that had been discharged. The upshot of the above is that the 1st respondents claim of Kshs 95,793/- is declined.
15. Based on the foregoing;
a. The decree issued on 4th December 2020 is erroneous for failing to consider kshs Ksh.414,236/- being payments made by the appellant to the 1st Respondent.
b. The Deputy Registrar to rectify the decree issued on 4th December 2020 to align with the allocation of liability as apportioned between the appellant, the 1st and 2nd respondent.
c. In calculating interest, the Deputy Registrar to take into account the amount already paid on 20th September 2019, as interest does not accrue to the sum already paid.
d. After recalculation of interest any amount due to the 1st respondent to be paid from the funds held in the joint account.
e. Ksh.181,628/= being costs of the appeal to be paid to Mulwa & Mulwa Advocates from the joint account.
f. The 1st respondent is not entitled to interest accrued on the joint account.
g. Upon compliance with orders (d) and (e) the balance and accrued interest in the joint account will be released to the Appellant’s advocate.
h. The costs of this application is awarded to the Appellant/Respondent
Signed, dated and delivered at Machakos this 11th day of November, 2025.