John Ngowah v East Africa Safari Air Express Ltd [2015] KEELRC 206 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO.2258 OF 2012

JOHN NGOWAH ….................................................. CLAIMANT

VERSUS

            EAST AFRICA SAFARI AIR EXPRESS LTD …………. RESPONDENT

RULING

1. On 17^th July 2015 the Claimant filed application through Notice of Motion under Order 45 rule 1, 2 and 3 and order 51 of the Civil procedure Act and seeking for orders that the judgement of the Court delivered on 2^nd July 2015 be rectified to indicate the period from which the interest is to accrue on the decretal sum and the rate applicable thereof. This application is supported by the annexed affidavit of Ben Musundi, advocate for the claimant.

2. The application is based on the grounds that the judgement granted the Claimant a sum of kshs.202, 380.00 with interest at Court rates and that this was in agreement with the Claimant that such interest should accrue from 20^th December 2010 when the Claimant was terminated by the Respondent but the judgement is silent on this fact. That there is good and sufficient cause to rectify the judgement and decree herein for the Court to specify which interest is due and from when. There is no appeal or delay and in the interests of justice, the orders sought be granted.

3. In the affidavit of ben Musundi he avers that the respondents have dispute the time from when the judgement should accrue interest and the payable interest. The Respondent has applied a 6% rate while the Claimant is seeking 12% which is the Court rate. That the interest is payable from 8^th November 2012 when the claim was filed whereas such interest arise from 20^th December 2010 when the Claimant was terminated.

4. The Respondent filed their Grounds of Opposition on 16^th September 2015 on the grounds that the application is incompetent and an abuse of Court process as there is no error or mistake in the judgement of the court. It is not mandatory for the Court to indicate the interest applicable as the law at section 38(3) of the Court Rules and section 26(2) of the Civil Procedure Act make such a provision. The Respondent has fully complained with the judgement of the Court and paid the Claimant fully save for costs.

5. The Respondent also filed the Replying Affidavit of George Kivindyo confirming the payments made to the claimant.

Submissions

6. Both parties filed their written submissions.

7. The Claimant submitted that the judgement is silent on the interest rates to be paid and in this case the claim was for such interest to be paid from 20^th December 2010 when the Claimant was terminated. The interest rate to be applied is 12% as under the provisions of rule 28 of the Court Rules.

8. In submissions, the Respondent state that Rule 28 of the Court Rules make provision for the interests and costs payable to a successful litigant. Where the decree is silent on the payable interest it shall be deemed to be at 6% per annum under section 26(2) of the Civil Procedure Act. The judgement herein was silent on the interest rate payable and in this case section 26 of the civil procedure Act apply.

Determination

9. The rectification of a judgement or ruling of the Court is regulated under the provisions of Rule 32 of the Employment and Labour Relations Court (Procedure) Rules. Where the Rules of the Court do not address any specific matter, reliance is on any other written law applicable to superior courts. In this regard the Court has sufficiently relied on the Civil Procedure Act and the Rules thereto where the Court Rules are not sufficient.

10. The application by the Claimant is on the basis that the Court judgement of 2^nd July 2015 did not state the interest payable and at what period. That the Respondent has applied a rate of 6% and assessed the same as payable since the date of filing suit. In this case, the Court has issued final orders and directed the payment of the judgement award with interest and costs. The assessment of the due costs and interests are matters ordinarily addressed by the Registrar of the Court and the Deputy Registrar by application of the Rules.

11.  However, in this regard Section 28(3) of the Employment and Labour Relations Court Act provides;

28. Costs and Interest.

(1) The Court shall be guided by section 12(8) of the Act in awarding costs to a party.

(2) The Court shall not award exemplary or punitive costs.

(3)  Where a suit involves a liquidated amount that is claimed and specified at the time of filing a statement of claim and the Court orders that the amount claimed or part of the amount be paid to the claimant, the Court may in addition to that order, direct that interest be paid on the liquidated amount awarded at applicable interest rates as if the suit was filed in the High Court.

12. The Rule does not set out the percentage payable. However as noted by the Respondent is that Civil Procedure Act and Rules thereto are insightful. Section 26(1) of the Civil Procedure Act stipulates 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.

13. In the case of Francis Njakwe Githiari 7 Another versus Hon. Daniel Arap Moi t/a Moi Educational Centre, HCCC No.596 the Court held;

… The Court does have discretion on the interest to be awarded to a successful litigant.  Such discretion is exercisable in three parts, namely, for the period prior to the institution of the suit; for the period between the date when the suit was instituted, to the date of judgement; and for the period after judgement until payment is made or to such earlier date as the Court may deem fit.

Whilst the Court has the said discretion on the question of interest payable on the principal sum, the Court cannot be expected to exercise the said discretion in a vacuum.  In other words, it was not good enough for the plaintiffs to remind the Court of its discretion, and then leave the issue to it, for determination.

14.       In the memorandum of claim, the claim is for;

h. costs of the suit

i. interest at commercial rates.

15. In the Court judgement of 30^th June 2015 Court awarded;

f) costs of the suit;

g) interests on (c), (d) and (e) above at Court Rates.

16. Noting the above, I find no ambiguity with regard to interest rates to be paid. Such rates are as set out in the Court judgement. The costs of the suit on the other hand relate to the suit as filed and nothing before such suit was filed. The effective date is therefore the suit was filed in Court and not on any other date.

Interest rates applicable refers to order (g) in the Court judgement. Such rates are payable from the date of filing suit herein. Each party shall bear their own costs for this application.

Delivered in open court at Nairobi and dated this 29^th day of October 2015.

M. Mbaru

JUDGE

In the presence of:

Lilian Njenga: Court Assistant

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