1. This matter has been active in the court system for the last 29 years, and if litigation does not come to an end, it shall soon hit the 30 year anniversary since the filing of the suit in March, 1997. The court has been kept busy with one application after another, pre and post judgement, including proceedings before the Court of Appeal and the Supreme Court.
2. The background of this application is the Ruling of this court delivered on 22/05/2025 where the Plaintiff/ Decree-Holder had sought for prohibitory orders issued against the Defendant’s / Judgment-Debtor’s property known as L.R. No. 1549/ Section 1 Mainland North Mombasa (CR 13445) where the Defendant was restrained from transferring or selling the said property.
3. In addition, the court granted the Plaintiff/ D.H leave to sell the property by way of public auction in satisfaction of the decretal sum of Kshs. 144,396,796/= on condition that the Plaintiff/ D.H complies with Order 22, Rule 7 of the Civil Procedure Rules to have the court understand how the decretal sum was arrived at.
4. The parties appeared before this court on 18/02/2026, where the Plaintiff/ D.H confirmed compliance with Order 22 Rule 7 of the Civil Procedure Rules, and that Notice to Show Cause on why execution should not issue was extracted. She sought to have the prayer for auction of the suit property issued.
5. The counsel for the Defendant/ J.D informed the court that there was a pending ruling before the Court of Appeal in Civil Appeal No. E049 of 2025, which an application for stay of execution of the ruling dated 22/05/2025 and stay of further proceedings in the matter. Leave was granted subject to the outcome of the Court of Appel Ruling. This court was informed on 05/05/2026 that the Court of Appeal in its ruling dated 25/03/2026 declined to grant the stay orders. The said ruling has been filed for perusal of this court and further information.
6. An order dated 13/03/2026 was extracted, and which is subject of the application at hand. The suit property is pending public auction on 26/06/2026 and the outcome of this ruling will determine whether or not, the auction shall proceed as scheduled.
7. The Defendant/ J.D filed a Notice of Motion dated 17/04/2026 seeking to stay the execution of the orders issued on 13/03/2026, and that this court do review the said order and rectify the decretal sum to read Kshs. 69,660,000/= and costs of Kshs. 7,172,847.16/= in line with the decree issued by the court.
8. In support of the application, the Defendant/ J.D in the Replying Affidavit sworn by Nirmal Dhanjal, Director of the Applicant, stated that the court did not award interest on the decretal sum of Kshs. 692,660,000/= plus costs, and the same was upheld by the Court of Appeal. The warrants of attachment indicated the decretal amount as Kshs. 212,463,000/= tabulated as hereunder;
a. Principal amount………………………………..Kshs. 69,660,000/=
b. Interest from 31/05/2019 to date at 30% p.a……Kshs. 142,803,000/=
Total……………………………………………..Kshs. 212,463,000/=
which was contrary to the judgment of both the High Court and the Court of Appeal as the court did not award any interest at a rate of 30% p.a.
9. The Applicant seeks for the reviewing of the order of the court in order to rectify the error on the face of the record in order to capture the correct decretal sum. The Applicants prays to have the application allowed as it will suffer irreparable loss and damages if the same id declined.
10. In the Replying Affidavit dated 31/04/2026, the Respondent/ J.D through its Director Bryan Waruhiu, stated that the court ordered for interest on Kshs. 38,700,000/= at a rate of 30% p.a until payment in full, and up to date, the decretal sum is yet to be paid in full.
11. It was further stated that there was no error on the face of the record as the court simply adopted the figures as approved during the Notice to show cause. The Applicant was also accused of delaying the matter further despite the 29 years it has been active. The Respondent prayed that the application be dismissed with costs.
12. The application was canvassed by way of written submissions. Both parties complied by filing their rival submissions which I have considered.
Analysis and Determination
13. I have carefully considered the application, the Replying Affidavit and the submissions for and against, the authorities cited as well as the law and I discern the following issues for determination: -
a) Whether the Defendant/ J.D is entitled to the prayers sought for review
b) What is the order as to costs?
14. The Applicant/ J.D states and submits that the court did not award interest in its judgment. On the other hand, the Respondent/ D.H states that the court awarded interest at a rate of 30% p.a until payment in full, and the decretal amount is yet to be settled. I have perused through the judgment of the court dated 31/05/2029.
15. By the Plaint dated 11/02/1997 and amended on 15/05/2008, the Plaintiff sought inter alia the following orders;
“ a. Kshs. 38,700,000/= being the balance of the purchase price owed to the Plaintiff by the Defendant.
b. Interest on (b) at 30% per annum as agreed payable from the date the Defendant took possession of the suit property being the 27th January 1996 until payment in full.”
16. Paragraph 4 and 5 of the judgment indicate that on 17/04/2013, the balance as claimed was fully paid by the Defendant/ J.D pursuant to a consent dated 07/09/2012 and recorded in the Court of Appeal in Civil Application No. 200 of 1997. The issue remaining for determination was the payment of interest at 30% until payment in full.
17. The court made a determination of the above as follows;
“60. It is the view of this Court that interest is payable at 30% to the Plaintiff as a result of the Defendant being a purchaser in possession from the 13th July 2006 to the 7th September 2012 when the balance of the purchase price was paid in full minus interest.
61. The total amount of interest payable to the Plaintiff would 38,700,000 × 30/100 × 6 = 69,660,000/=.”
18. From the above, the interest calculated was from the time the Defendant/ J.D too possession of the suit property until when the balance was paid in full, at the agreed rate of 30% per annum for the 6 years. The court was silent on interest of the decretal sum post judgment.
19. On the award of interest, Section 26 of the Civil Procedure Act provides as follows;
“(1) 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.
(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.”
20. In the case of National Media Group Limited v Muya [2025] KEHC 170 (KLR), my brother Judge HM Nyaga stated as follows;
14. “In the Practice Direction No. 1 of 1982 issued on March 16, 1982, Simpson AG CJ gave the following practice direction;
“The Civil Procedure Act (cap 21 Laws of Kenya) section 26 enables the court to order interest on the principal sum adjudged in a decree both before and after the date of the decree to be paid at such rate as the court deems reasonable. In the absence of any valid reason for ordering a higher or lower rate of interest, the rate of interest should now be 12%.”
15.The issue of the applicable interest rates was also determined by the Court of Appeal in Kipchumba v BOG Tambach Teachers Training College (Civil Appeal 100 of 2019) [2023] KECA 802 (KLR) (30 June 2023). The court held as follows;
“What then should the appropriate interest rate be? The appellant has suggested 12% as the current court rates while the respondent aligns with the judgment of the learned Judge that the applicable interest rate is 6%. In the circumstances of the present case, we rely on our rich jurisprudence and judicial practices to determine what the appropriate interest rate on liquidated damages is. The rate used by the courts, absent special or exceptional circumstances is 12% per annum from the date of filing suit until payment in full….From the foregoing, we find that the applicable interest rate in this case is 12% per annum.”
21. The court having been silent on the interest on the decretal sum, I find that the interest rate applicable is 12% per annum from the date of judgment, that is 31/05/2019 until payment in full but not 30% per annum as tabulated by the Plaintiff/ D.H. This is a sufficient reason to obtain a review of the decree of the court under Order 45, Rule 1 of the Civil Procedure Rules, but only to the extent that the interest rate applicable is 12% per annum. The decree and the warrants issued should be amended accordingly.
22. Upon the rectification of the decree and the warrants, the Plaintiff is at liberty to proceed with execution of the said decree as the review of the interest rates does not amount to stay of execution orders.
23. On costs, it is settled that the same follows the event. However, the court retains discretion whether to grant them or not. The application being partially successful, each party is to bear its own costs.
24. The court notes that the Applicant/ J.D in the Notice of Motion dated 07/04/2026 and the written submissions dated 04/05/2026, proposed to have the decretal amount liquidated at monthly instalments of Kshs. 5,000,000/= until payment in full. The parties in the spirit of Article 159 (2) (c) of the Constitution, are encouraged to engage and settle on the payment of the decretal sum as an alternative to the pending public auction of the suit property.
Determination
25. Having found as above, the following orders flow therefrom: -
a) The application dated 17/04/2026 is partially successful and on the following terms;
i. That the interest on the decretal sum from the date of judgement is reviewed from 30% per annum to 12% per annum and the decree and subsequent warrants be amended accordingly.
ii. The court declines to grant stay of execution orders.
b) Each party to bear its own costs.
c) The parties are encouraged to engage on the mode of liquidating the decretal sum as an alternative to the pending public auction of the suit property.
d) File deemed as closed.
Orders accordingly.
Dated, delivered virtually, and signed at Mombasa on this 18th day of June, 2026.
……………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of:
M/S Wambui Advocate for the Plaintiff/ D.H
Mrs. Otieno Advocate for the Defendant/ J.D
Ms. Salwa, Court Assistant
2. The background of this application is the Ruling of this court delivered on 22/05/2025 where the Plaintiff/ Decree-Holder had sought for prohibitory orders issued against the Defendant’s / Judgment-Debtor’s property known as L.R. No. 1549/ Section 1 Mainland North Mombasa (CR 13445) where the Defendant was restrained from transferring or selling the said property.
3. In addition, the court granted the Plaintiff/ D.H leave to sell the property by way of public auction in satisfaction of the decretal sum of Kshs. 144,396,796/= on condition that the Plaintiff/ D.H complies with Order 22, Rule 7 of the Civil Procedure Rules to have the court understand how the decretal sum was arrived at.
4. The parties appeared before this court on 18/02/2026, where the Plaintiff/ D.H confirmed compliance with Order 22 Rule 7 of the Civil Procedure Rules, and that Notice to Show Cause on why execution should not issue was extracted. She sought to have the prayer for auction of the suit property issued.
5. The counsel for the Defendant/ J.D informed the court that there was a pending ruling before the Court of Appeal in Civil Appeal No. E049 of 2025, which an application for stay of execution of the ruling dated 22/05/2025 and stay of further proceedings in the matter. Leave was granted subject to the outcome of the Court of Appel Ruling. This court was informed on 05/05/2026 that the Court of Appeal in its ruling dated 25/03/2026 declined to grant the stay orders. The said ruling has been filed for perusal of this court and further information.
6. An order dated 13/03/2026 was extracted, and which is subject of the application at hand. The suit property is pending public auction on 26/06/2026 and the outcome of this ruling will determine whether or not, the auction shall proceed as scheduled.
7. The Defendant/ J.D filed a Notice of Motion dated 17/04/2026 seeking to stay the execution of the orders issued on 13/03/2026, and that this court do review the said order and rectify the decretal sum to read Kshs. 69,660,000/= and costs of Kshs. 7,172,847.16/= in line with the decree issued by the court.
8. In support of the application, the Defendant/ J.D in the Replying Affidavit sworn by Nirmal Dhanjal, Director of the Applicant, stated that the court did not award interest on the decretal sum of Kshs. 692,660,000/= plus costs, and the same was upheld by the Court of Appeal. The warrants of attachment indicated the decretal amount as Kshs. 212,463,000/= tabulated as hereunder;
a. Principal amount………………………………..Kshs. 69,660,000/=
b. Interest from 31/05/2019 to date at 30% p.a……Kshs. 142,803,000/=
Total……………………………………………..Kshs. 212,463,000/=
which was contrary to the judgment of both the High Court and the Court of Appeal as the court did not award any interest at a rate of 30% p.a.
9. The Applicant seeks for the reviewing of the order of the court in order to rectify the error on the face of the record in order to capture the correct decretal sum. The Applicants prays to have the application allowed as it will suffer irreparable loss and damages if the same id declined.
10. In the Replying Affidavit dated 31/04/2026, the Respondent/ J.D through its Director Bryan Waruhiu, stated that the court ordered for interest on Kshs. 38,700,000/= at a rate of 30% p.a until payment in full, and up to date, the decretal sum is yet to be paid in full.
11. It was further stated that there was no error on the face of the record as the court simply adopted the figures as approved during the Notice to show cause. The Applicant was also accused of delaying the matter further despite the 29 years it has been active. The Respondent prayed that the application be dismissed with costs.
12. The application was canvassed by way of written submissions. Both parties complied by filing their rival submissions which I have considered.
Analysis and Determination
13. I have carefully considered the application, the Replying Affidavit and the submissions for and against, the authorities cited as well as the law and I discern the following issues for determination: -
a) Whether the Defendant/ J.D is entitled to the prayers sought for review
b) What is the order as to costs?
14. The Applicant/ J.D states and submits that the court did not award interest in its judgment. On the other hand, the Respondent/ D.H states that the court awarded interest at a rate of 30% p.a until payment in full, and the decretal amount is yet to be settled. I have perused through the judgment of the court dated 31/05/2029.
15. By the Plaint dated 11/02/1997 and amended on 15/05/2008, the Plaintiff sought inter alia the following orders;
“ a. Kshs. 38,700,000/= being the balance of the purchase price owed to the Plaintiff by the Defendant.
b. Interest on (b) at 30% per annum as agreed payable from the date the Defendant took possession of the suit property being the 27th January 1996 until payment in full.”
16. Paragraph 4 and 5 of the judgment indicate that on 17/04/2013, the balance as claimed was fully paid by the Defendant/ J.D pursuant to a consent dated 07/09/2012 and recorded in the Court of Appeal in Civil Application No. 200 of 1997. The issue remaining for determination was the payment of interest at 30% until payment in full.
17. The court made a determination of the above as follows;
“60. It is the view of this Court that interest is payable at 30% to the Plaintiff as a result of the Defendant being a purchaser in possession from the 13th July 2006 to the 7th September 2012 when the balance of the purchase price was paid in full minus interest.
61. The total amount of interest payable to the Plaintiff would 38,700,000 × 30/100 × 6 = 69,660,000/=.”
18. From the above, the interest calculated was from the time the Defendant/ J.D too possession of the suit property until when the balance was paid in full, at the agreed rate of 30% per annum for the 6 years. The court was silent on interest of the decretal sum post judgment.
19. On the award of interest, Section 26 of the Civil Procedure Act provides as follows;
“(1) 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.
(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.”
20. In the case of National Media Group Limited v Muya [2025] KEHC 170 (KLR), my brother Judge HM Nyaga stated as follows;
14. “In the Practice Direction No. 1 of 1982 issued on March 16, 1982, Simpson AG CJ gave the following practice direction;
“The Civil Procedure Act (cap 21 Laws of Kenya) section 26 enables the court to order interest on the principal sum adjudged in a decree both before and after the date of the decree to be paid at such rate as the court deems reasonable. In the absence of any valid reason for ordering a higher or lower rate of interest, the rate of interest should now be 12%.”
15.The issue of the applicable interest rates was also determined by the Court of Appeal in Kipchumba v BOG Tambach Teachers Training College (Civil Appeal 100 of 2019) [2023] KECA 802 (KLR) (30 June 2023). The court held as follows;
“What then should the appropriate interest rate be? The appellant has suggested 12% as the current court rates while the respondent aligns with the judgment of the learned Judge that the applicable interest rate is 6%. In the circumstances of the present case, we rely on our rich jurisprudence and judicial practices to determine what the appropriate interest rate on liquidated damages is. The rate used by the courts, absent special or exceptional circumstances is 12% per annum from the date of filing suit until payment in full….From the foregoing, we find that the applicable interest rate in this case is 12% per annum.”
21. The court having been silent on the interest on the decretal sum, I find that the interest rate applicable is 12% per annum from the date of judgment, that is 31/05/2019 until payment in full but not 30% per annum as tabulated by the Plaintiff/ D.H. This is a sufficient reason to obtain a review of the decree of the court under Order 45, Rule 1 of the Civil Procedure Rules, but only to the extent that the interest rate applicable is 12% per annum. The decree and the warrants issued should be amended accordingly.
22. Upon the rectification of the decree and the warrants, the Plaintiff is at liberty to proceed with execution of the said decree as the review of the interest rates does not amount to stay of execution orders.
23. On costs, it is settled that the same follows the event. However, the court retains discretion whether to grant them or not. The application being partially successful, each party is to bear its own costs.
24. The court notes that the Applicant/ J.D in the Notice of Motion dated 07/04/2026 and the written submissions dated 04/05/2026, proposed to have the decretal amount liquidated at monthly instalments of Kshs. 5,000,000/= until payment in full. The parties in the spirit of Article 159 (2) (c) of the Constitution, are encouraged to engage and settle on the payment of the decretal sum as an alternative to the pending public auction of the suit property.
Determination
25. Having found as above, the following orders flow therefrom: -
a) The application dated 17/04/2026 is partially successful and on the following terms;
i. That the interest on the decretal sum from the date of judgement is reviewed from 30% per annum to 12% per annum and the decree and subsequent warrants be amended accordingly.
ii. The court declines to grant stay of execution orders.
b) Each party to bear its own costs.
c) The parties are encouraged to engage on the mode of liquidating the decretal sum as an alternative to the pending public auction of the suit property.
d) File deemed as closed.
Orders accordingly.
Dated, delivered virtually, and signed at Mombasa on this 18th day of June, 2026.
……………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of:
M/S Wambui Advocate for the Plaintiff/ D.H
Mrs. Otieno Advocate for the Defendant/ J.D
Ms. Salwa, Court Assistant