Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistratePartially AllowedNot stated in the judgment (plaint dated 18/5/2021, filed 19/5/2021)

Kyule v Thuku & another (Civil Case E125 of 2021) [2025] KEMC 227 (KLR)

Magistrates' Court (Makindu)
4 August 2025
2,728 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

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

#
The plaintiff, sued in his own name but in substance as a subrogated claimant for CIC General Insurance Ltd, claimed special damages of Ksh. 1,587,450/= arising from a road traffic accident of 24/5/2018 at Civicon area along Nairobi-Mombasa road, in which motor vehicle KCP 469M, driven by the 2nd defendant and owned by the 1st defendant, allegedly rammed the plaintiff's vehicle KCA 482S. The defendants denied the claim entirely and called no witness. On 6/11/2023 the parties recorded a consent on liability fixing the plaintiff at 20% and the defendants at 80%, which the court adopted in the judgment. The plaintiff called two witnesses, including a claims analyst and an assessor, and produced receipts and an assessment report. The court identified three issues: proof of loss, entitlement to and quantum of damages, and costs. Applying the rule that special damages must be specifically pleaded and strictly proved, it awarded repair costs of Ksh. 1,548,900/= and assessment fees of Ksh. 11,600/=, both proved by receipts. Tracing fees were reduced: the court declined to rule on an oral amendment application deferred to judgment, and since only a receipt for Ksh. 17,100/= was produced against a pleaded Ksh. 23,815/=, only that sum was awarded. Total special damages of Ksh. 1,577,600/= were reduced by 20% contribution to Ksh. 1,262,080/=. Costs and interest were awarded to the plaintiff, with interest on special damages running from the date of filing suit to the date of judgment/decree.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff suffered loss and damage as a result of the alleged accident
  2. 2.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof
  3. 3.Who should bear the costs of this suit?

Key legal issues

#
01

Whether the plaintiff suffered loss and damage as a result of the accident

Holding

Yes - the plaintiff proved loss through the assessment report, receipts for repair costs and assessment fees

Reasoning

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.

p. 3
02

Whether special damages were strictly proved

Holding

Repair costs and assessment fees were strictly proved by receipts; only Ksh. 17,100/= of the tracing fees claim was proved

Reasoning

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.

p. 5
03

Liability apportionment under the consent recorded by the parties

Holding

The plaintiff 20% liable, defendants 80% liable, by adoption of the consent

Reasoning

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.

p. 2
04

Rate and commencement of interest on special damages

Holding

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

Reasoning

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.

p. 6

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. 1.Adoption of the consent on liability recorded on 6/11/2023, holding the plaintiff 20% liable and the defendants 80% liable
  2. 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. 3.Less 20% contribution of Ksh. 315,520/=, leaving a balance of Ksh. 1,262,080/= due to the plaintiff
  4. 4.Interest on the special damages awarded to accrue from the date of filing suit to the date of judgment/decree
  5. 5.Costs of the suit awarded to the plaintiff

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

YS
Y.A ShikandaSenior Principal Magistrate
majority

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

p. 5

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:
p. 5disposition - finding on proof
Total Special damages.........................................................................Ksh. 1,577,600/=
p. 5final orders - quantum awarded
Less 20% contribution.............................................................................Ksh. 315,520/=
p. 5final orders - apportionment
Balance due to the plaintifi..................................................................Ksh. 1,262,080/=
p. 5final orders - net award
The plaintifi is also awarded costs of the suit and interest.
p. 5final orders - costs and interest
Consequently, interest on the special damages awarded shall accrue from the date of filing suit to the date of judgment/decree.
p. 6interest on special damages
It is trite law that special damages must be specifically pleaded and strictly proved.
p. 3special damages
With all due respect to my predecessor, I doubt that the court can make a determination on an interlocutory application in the judgment.
p. 5interlocutory applications must be determined before judgment

Issues in the judgment

#
minor

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.

minor

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.