Kyule v Thuku & another (Civil Case E125 of 2021) [2025] KEMC 227 (KLR)
The bottom line
#A Kenyan court awarded a crash victim over Ksh. 1.26 million, but cut his claim because he had receipts for some costs only.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff suffered loss and damage as a result of the alleged accident
- 2.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof
- 3.Who should bear the costs of this suit?
Key legal issues
#Whether the plaintiff suffered loss and damage as a result of the accident
Yes - the plaintiff proved loss through the assessment report, receipts for repair costs and assessment fees
The plaintiff produced an assessment report showing his motor vehicle was damaged in the accident, together with receipts proving payment of Ksh. 1,548,900/= in repair costs and Ksh. 11,600/= in assessment fees. The defendants called no witness to controvert this evidence. The court was satisfied the plaintiff suffered loss and was entitled to damages against the defendants.
Whether special damages were strictly proved
Repair costs and assessment fees were strictly proved by receipts; only Ksh. 17,100/= of the tracing fees claim was proved
Applying the rule that special damages must be specifically pleaded and strictly proved, the court accepted receipts for repairs and assessment fees. For tracing fees, the payment requisition voucher was not proof of payment and the receipt covered only Ksh. 17,100/=, not the Ksh. 23,815/= pleaded nor the Ksh. 26,950/= sought by amendment.
Liability apportionment under the consent recorded by the parties
The plaintiff 20% liable, defendants 80% liable, by adoption of the consent
Although the consent on liability recorded on 6/11/2023 had not been adopted as an order of the court, the court adopted it in the judgment since the parties were in agreement, thereby apportioning liability at 20% to the plaintiff and 80% to the defendants.
Rate and commencement of interest on special damages
Interest on special damages accrues from the date of filing suit to the date of judgment/decree, per section 26 of the Civil Procedure Act
Relying on section 26 of the Civil Procedure Act and the authorities of Jane Wanjiku Wambui v Anthony Kigamba Hato and Omunyokol Akol Johnson v Attorney General, the court held that interest on special damages runs from the date of loss/filing of suit, while general damages attract interest only from judgment, as general damages are ascertained in the judgment.
Legal principles established
#- Special damages must be specifically pleaded and strictly proved
- An invoice or payment requisition voucher is not proof of payment; only receipts suffice to prove special damages
- Interest on special damages runs from the date of loss/filing of suit, while interest on general damages runs from the date of judgment
Court orders
#- 1.Adoption of the consent on liability recorded on 6/11/2023, holding the plaintiff 20% liable and the defendants 80% liable
- 2.Total special damages of Ksh. 1,577,600/= (repair costs Ksh. 1,548,900/=; assessment fees Ksh. 11,600/=; tracing fees Ksh. 17,100/=)
- 3.Less 20% contribution of Ksh. 315,520/=, leaving a balance of Ksh. 1,262,080/= due to the plaintiff
- 4.Interest on the special damages awarded to accrue from the date of filing suit to the date of judgment/decree
- 5.Costs of the suit awarded to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a road traffic accident claim (subrogated claim by CIC General Insurance Ltd under the doctrine of subrogation)
Relief refused
#Amendment of tracing fees from Ksh. 23,815/= (as pleaded) to Ksh. 26,950/=, and proof of the pleaded figure
The court declined to determine the interlocutory amendment application at judgment stage and found no receipt for the pleaded amount; only Ksh. 17,100/= was supported by a receipt
Costs
The plaintiff is awarded costs of the suit and interest.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In summary, I hold that the plaintifi has proven his case on a balance of probability as against the defendants. Consequently, I make the following awards:
Total Special damages.........................................................................Ksh. 1,577,600/=
Less 20% contribution.............................................................................Ksh. 315,520/=
Balance due to the plaintifi..................................................................Ksh. 1,262,080/=
The plaintifi is also awarded costs of the suit and interest.
Consequently, interest on the special damages awarded shall accrue from the date of filing suit to the date of judgment/decree.
It is trite law that special damages must be specifically pleaded and strictly proved.
With all due respect to my predecessor, I doubt that the court can make a determination on an interlocutory application in the judgment.
Issues in the judgment
#The judgment states the plaintiff's claim is basically one for special damages but the plaint's prayer does not include general damages; the court nonetheless discusses interest on general damages citing the general/special damages distinction.
Inconsistent citation of Total (Kenya) Limited v Janevams Limited: paragraph 15 cites it as [2015] KECA 822 [KLR] while paragraph 14 quotes it within Christine Mwigina Akonya as [2015] eKLR.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kyule v Thuku & another (Civil Case E125 of 2021) [2025] KEMC 227 (KLR)", Case Analysis (2025). Not stated in the judgment (plaint dated 18/5/2021, filed 19/5/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/227/eng@2025-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.