KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
9.3 Pre-Judgment and Post-Judgment Interest Under the Civil Procedure Act, the court has discre- tion to award pre-judgment interest at such rate as it deems reasonable for: • any period prior to the filing of the suit (pre-judg- ment interest); • from the date of filing the suit to the date of judg- ment (pendente lite interest); and • from the date of judgment to the date of payment (post-judgment interest). Where a decree is silent on further interest after judg- ment, the Civil Procedure Act provides that the court is deemed to have ordered interest at 6% per annum from the date of the decree until payment. For arbitration proceedings and under the Arbitration Act, unless the parties agree otherwise, arbitrators in Kenya may award interest (simple or compound) in an arbitral award for sums payable, specified from such date, at such rate, with such rests as may be stated in the award. In some cases, awards have included post-award interest, running from the date of the award until full payment. There are no general statutory caps on pre- or post-judgment interest in Kenya. 9.4 Enforcement Mechanisms of a Domestic Judgment The enforcement of a domestic judgment in Kenya can be sought by the decree holder in the following ways: • delivery of property specifically decreed; • attachment and sale of the judgment debtor’s mov- able or immovable property; • arrest and detention of the judgment debtor in civil jail; • the appointment of a receiver to manage the debtor’s property; or • recovery by way of garnishee proceedings (attach- ing debts owed to the judgment debtor by third parties).
To set aside such an agreement, a party can file an application to that effect to the court where the set- tlement was made and/or endorsed, supported by an affidavit evidencing grounds such as fraud, duress, mistake, or illegality. The court will evaluate the claim and render a decision on whether to set aside the agreement or not. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant Parties to a suit in Kenya can be awarded a decree granting them contractual, equitable, or statutory relief, or any other appropriate relief. Remedies avail- able include damages (general, special, exemplary, or nominal), injunctions, declaratory orders, restitution, and specific performance where appropriate. 9.2 Rules Regarding Damages The awarding of damages in Kenya is governed pri- marily by the common law principles of contract and tort, as applied by the courts, and supplemented by statutory provisions. A party in breach of contract is required to compen- sate the counterparty by way of damages that natu- rally and directly arise from the breach, or that were within the reasonable contemplation of the parties at the time of contracting. Remote or speculative losses are not recoverable, and the claimant must prove actual loss suffered. The “but for” test is commonly applied, meaning no damages can be recovered unless the loss would not have occurred but for the breach. As to punitive or exemplary damages, Kenyan courts generally limit damages to compensatory relief. Puni- tive damages are rarely awarded. There are no statu- tory ceilings on the amount of damages, except where a specific statute prescribes limits such as in employ- ment.
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