Mutunga v Delcie Travellers Limited & 2 others (Civil Case E132 of 2021) [2026] KEMC 116 (KLR)

3. 4. c. Driving the said motor vehicle while sleepy and unable to drive well; d. Failing to have proper control of his motor vehicle; e. Overtaking dangerously and colliding with KBK 068D; f. Failing to have due care and attention to safety of other road users especially the driver of KBK 068D. The plaintifi further averred that the accident was substantially caused by the careless driving of motor tractor registration number KBK 068D, belonging to the 2nd and 3rd defendants. She pleaded the following particulars of negligence against the driver of Tractor registration number KBK 068D: a. Driving the tractor at night without rear lights and any warnings of its presence on the road; b. Failing to warn other motorists of the presence of the tractor on the road; c. Abruptly stopping the tractor on the road; d. Leaving the tractor on the road unattended or unmarked; e. Trying to make a U-turn on the road in an undesignated area. The plaintifi relied on the doctrine of Res ipsa loquitor, the Traffic Act and the Highway Code. He pleaded the particulars of injuries and special damages and prayed for judgment against the defendants jointly and severally for: a. General damages; b. Special damages for Ksh. 4,550/=; c. Costs and interest of the suit. Interlocutory Judgment 5. The record indicates that the 1st defendant was served but failed to enter appearance and file a statement of defence. Consequently, upon request by the plaintifi, interlocutory judgment was entered against the 1st defendant on 2/12/2021. The 2Nd And 3Rd Defendant’s Defence 6. The 2nd and 3rd defendants entered appearance on 27/9/2021 and filed a statement of defence on 6/10/2021. The 2nd and 3rd defendants admitted that they were the owners of Tractor registration number KBK 068D at the time of accident and that the 1st defendant was the registered owner of motor vehicle registration number KBV 625M. They indicated that they had no knowledge that the plaintifi was a passenger in motor vehicle registration number KBV 625M and that she was injured. The 2nd and 3rd defendants denied the particulars of negligence attributed to them. 7. The 2nd and 3rd defendants averred that the accident was caused by the negligent driving of KBV 625M. They pleaded the following particulars of negligence against the driver of KBV 625M: a. Driving too fast in the circumstances; b. Attempting to overtake the tractor when it was not safe to do so as there were oncoming motor vehicles; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 2

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8. c. Failing to observe the Highway Code to keep a safe distance between his vehicle and the tractor ahead of him and to overtake only when it was safe; d. Failing to keep a safe distance between the bus and the tractor; e. Losing control of the bus; f. Hitting the rear of the tractor and thereby causing the tractor driver to be injured when he was thrown ofi the tractor and onto the tarmac; g. Being a danger to himself and to other motorists; h. Exposing the 2nd and 3rd defendants and the tractor driver to a risk of loss and damage of which the bus driver knew or reasonably ought to have known; i. Driving a vehicle without brakes or with a defective braking system; j. Failing to slow down, to brake, to swerve or in any other way to manage his vehicle so as to avoid the accident; k. Having little or no regard for the 2nd and 3rd defendants, the tractor driver, the tractor itself and other motorists. The 2nd and 3rd defendants further averred that the bus driver was charged, convicted and sentenced for the ofience of careless driving and that no appeal was preferred. That they had been wrongly sued as their tractor did not contribute to the accident in any way. They urged the court to dismiss the suit against them with costs. The Evidence The plaintifi ’s Case 9. The plaintifi’s case was heard by another Magistrate who was subsequently transferred. Three witnesses testified on behalf of the plaintifi. PW 1 Police Constable Joseph Mugo produced the police abstract in respect of the accident. He confirmed that the plaintifi was involved in the accident, as well as the two motor vehicles. PW 2 Doctor Musyoki Esther Nzomo testified that she examined the plaintifi following the accident. The witness produced the medical report in evidence. PW 3 was the plaintifi herself. She adopted her statement filed in court as part of her testimony. 10. The plaintifi testified that on 2/2/2021 she was travelling in Motor vehicle registration number KBV 625M. That at about 8:00 pm when they were past Makindu town, the driver of the motor vehicle she was in drove at a high speed and carelessly crushed into a tractor that was ahead of them. The plaintifi blamed the driver of KBV 625M as well as the tractor driver for driving on the road without proper lighting. She produced in evidence, her claim supporting documents. The 1st Defendant’s Case The 1st defendant did not call any witness. The 2nd and 3rd defendants’ Case. 11. The 2nd and 3rd defendants called two witnesses. DW 1 was the 3rd defendant. He adopted his statement filed in court as part of his testimony. He admitted that he jointly owned tractor registration number KBK 068D with the 2nd defendant. The 3rd defendant admitted that the tractor was involved in a road accident with motor vehicle registration number KBV 625M on the material night. He stated that the tractor was in good condition and had all its lights. The 3rd defendant did not witness the accident but https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 3

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claimed that he visited the scene after the accident. He produced documents in support of their case. DW 2 Dominic Mutinda Kisingu was the driver of the tractor on the material night. He also adopted his statement filed in court as part of his testimony. 12. DW 2 testified that he was employed by the 2nd and 3rd defendants as a driver. That on the material night, he was driving tractor registration number KBK 068D along Nairobi-Mombasa road. That suddenly, he heard a loud bang from the rear. The witness stated that motor vehicle registration number KBV 625M had attempted to overtake the tractor but there was oncoming trafic. In the process, KBV 625M rammed into the rear of the tractor. DW 2 blamed the driver of KBV 625M for the accident. Facts Not In Dispute 13. From the pleadings and evidence on record, the following facts are not in dispute: a. An accident occurred on 2/2/2021 at Makindu area along Mombasa-Nairobi Highway involving motor vehicles registration numbers KBV 625M and KBK 068D; b. The 2nd and 3rd defendants were the owners of motor vehicle registration number KBK 068D at the material time; Main Issues For Determination 14. In my opinion, the main issues for determination are as follows: i. Whether the plaintifi was a passenger in motor vehicle registration number KBV 625M at the material time; ii. Whether the 1st defendant was the owner of motor vehicle registration number KBV 625M at the material time; iii. Which of the two drivers was to blame for the accident? iv. Whether the defendants are vicariously liable for the accident; v. Whether the plaintifi sustained injuries and sufiered loss as a result of the alleged accident; vi. Whether the plaintifi is entitled to damages and if so, the nature and quantum thereof; vii. Who should bear the costs of this suit? The Plaintifi's Submissions 15. On liability, the plaintifi relied on the evidence on record and submitted that the 1st defendant’s driver was 25% liable for the accident and that the tractor driver was 75% liable for the accident. The plaintifi argued that conviction in a trafic case is not conclusive evidence of liability in a civil matter as there is the issue of contributory negligence. That the plaintifi was a mere passenger who did not contribute to the accident in any way. On quantum, the plaintifi submitted a sum of Ksh. 150,000/= in general damages and relied on the following authorities: 1. Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR. The plaintifi and respondent in the appeal sustained multiple soft tissue injuries as well as fractures of the rib and phalanx. The trial court awarded Ksh. 400,000/= in general damages on 4/12/2013. On appeal, the award was reduced to Ksh. 180,000/= on 3/10/2016. 2. Kamenju Charles v Gideon Muia Mutisya [2014] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 4

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The plaintifi and respondent in the appeal sustained multiple soft tissue injuries. The trial court awarded Ksh.170,000/= in general damages on 10/8/2011. On appeal, the award was afirmed on 29/9/2014. 3. Patrick Mwiti M’Imanene & another v Kevin Mugambi Nkunja [2013] eKLR. The plaintifi and respondent in the appeal sustained multiple soft tissue injuries. The trial court awarded Ksh. 170,000/= in general damages. On appeal, the award was afirmed on 28/3/2013. The plaintifi urged the court to award special damages of Ksh. 4,550/= as well as costs of the suit and interest. The 1St Defendant’s Submissions 16. The 1st defendant did not file submissions. Submissions On Behalf Of The 2Nd And 3Rd Defendants 17. The 2nd and 3rd defendants relied on their evidence and submitted that the plaintifi did not prove liability against them, but against the 1st defendant. That the plaintifi did not adduce any evidence linking the 2nd and 3rd defendants to the occurrence of the accident or to any negligent act or omission. They argued that they were victims of the accident as their tractor was damaged and their driver injured. That the 1st defendant’s driver was charged, convicted and sentenced for the ofience of Careless driving. The 2nd and 3rd defendants relied on the provisions of section 47A of the Evidence Act and contended that it was conclusive proof of liability against the 1st defendant’s driver. They relied on the authority of Philip Keiptoo Chemwolo & another v Augustine Kubende [1986] eKLR. The 2nd and 3rd defendants did not submit on quantum and urged the court to dismiss the suit against them with costs. Analysis And Determination 18. I have carefully considered the evidence on record and given due regard to the submissions made by the parties. There is suficient evidence to show that the plaintifi was a passenger in motor vehicle registration number KBV 625M at the time of accident. Her testimony and the police abstract produced in evidence confirmed the position. In any event, the plaintifi's evidence on that aspect was not controverted by the defence. 19. The plaintifi produced in evidence a copy of records from the Registrar of motor vehicles which indicates that the 1st defendant was the registered owner of motor vehicle registration number KBV 625M as at 24/2/2021.The 1st defendant did not file a defence nor attend court to deny that it was the owner of the said motor vehicle. I am satisfied that the 1st defendant was the owner of motor vehicle registration No. KBV 625M at the time of accident. Liability 20. The evidence from both the plaintifi and the 2nd and 3rd defendants indicates that motor vehicle registration number KBV 625M rammed into KBK 068D from the rear. Both motor vehicles were moving in the same direction and it was at night. The plaintifi blames both drivers and argues that the driver of the 2nd and 3rd defendants should bear 75% of the blame. On the other hand, the 2nd and 3rd defendants argue that their driver was not to blame at all. It is the duty of the plaintifi to establish or prove negligence on the part of the defendants. It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintifi must adduce evidence to prove such particulars of https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 5

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negligence and it is from the evidence that the court can make a finding on liability. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held as thus: The burden was always on the plaintifi to prove his case on the balance of probabilities even if the case was heard on formal proof.” 21. The plaintifi pleaded contradictory particulars of negligence against the driver of KBK 068D. From the particulars of negligence pleaded, it was not clear whether the tractor was stationary or in motion at the time of accident. The plaintifi’s testimony was also contradictory as to whether the tractor was stationary or in motion. However, DW 2 who was the driver of the tractor testified that it was in motion. In the authority of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR), the Court of Appeal held that under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is suficient evidence to rebut this presumption. A driver is required to maintain a safe distance between his motor vehicle and the motor vehicle ahead to prevent accidents, especially in emergencies. Failure to do so can lead to a finding of negligence if it results in a collision. 22. In my considered view, if there is a motor vehicle behind another, the driver of the motor vehicle behind owes a greater duty of care to the one in front. I say so for the following reasons: 23. 24. a. The driver behind has a clearer view of the motor vehicle ahead and can control their own speed, distance and reaction. The driver in front cannot easily monitor what happens behind them; b. Trafic laws and road safety regulations require that the driver behind should keep or maintain a safe distance so as to be able to stop or react in time if the vehicle ahead slows down or stops suddenly. Failure to maintain a safe distance often constitutes negligence; c. When a rear-end collision occurs, the law presumes that the driver behind was negligent unless there is strong evidence to the contrary; d. The driver behind must anticipate that the vehicle ahead may slow down, stop or turn and should drive in a manner that prevents a collision even if that happens. Since it is agreed that motor vehicle registration number KBV 625M was behind motor vehicle registration number KBK 068D, and there is agreed evidence that motor vehicle registration number KBK 068D was hit from the rear, the driver of KBV 625M had a duty to rebut such evidence. The question to be answered is whether that evidence was successfully rebutted. The 1st defendant did not file a defence nor call a witness. It was not for the plaintifi to rebut the evidence. I find that the presumption that the driver of KBV 625M was at fault has not been rebutted. Furthermore, the driver of KBV 625M, who rammed into the Tractor also owed these duties: i. To drive at a speed that allows stopping within the visible distance ahead; ii. To keep a proper lookout; iii. To adjust driving to conditions (darkness, rain, slippery road). There is a strong presumption that a driver who collides with the rear of another vehicle has likely failed to keep proper control or lookout. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 6

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25. Moreover, the 2nd and 3rd defendants produced in evidence a copy of the proceddings in Makindu Trafic Case No. E117 OF 2021 in which the 1st defendant’s driver was charged and convicted on his own plea of guilty on 18/2/2021 as a result of the accident. He was then sentenced to pay a fine of Ksh. 30,000/= or serve 6 months imprisonment in default of payment of the fine. This evidence was not controverted and there is no evidence of an appeal having been filed. Section 47A of the Evidence Act provides as follows: A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal ofience shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that ofience as charged". 26. In the case of Philip Keipto Chemwolo & Mumias Sugar Co. Ltd v Augustine Kubende [1982-88] 1 KAR 1036, the Court of Appeal held as follows: It was not for the Judge to read the proceedings in the Trafic case as if the evidence recorded there was the final position in the case since not only is it notorious that difierent aspects of the evidence emerge during a civil case, while not disturbing a conviction, but it is also well known that both parties to an accident might have driven carelessly and each could be convicted of careless driving for their respective types of carelessness. It was therefore premature to come to the conclusion that not even prima facie case of contributory negligence could be established. It would have been right to have held that there was some evidence upon which a triable issue as to contributory negligence arose on the strength of the proceedings in the trafic case...It was correct for the learned Judge to refer to the conviction because section 47A of the Evidence Act (Chapter 80) declares that where a final judgement of competent court in criminal proceedings has declared any person to be guilty of criminal ofience, after expiry of the time limited for appeal, judgement shall be taken as conclusive evidence that the person so convicted was guilty of that ofience. But that does not matter because it may also be that the other party was also guilty of carelessness and despite the other party’s conviction, the issue of contributory negligence may still be alive if the facts warrant it and this may afiect the quantum of damages”. 27. It has largely been held by the superior courts that a conviction in respect of a trafic ofience does not close the door to a defence on liability, as the issue of contributory negligence is open to the defendant. In the case of Francis Mwangi v Omar Al-Kurby Civil Appeal No. 87 of 1992 the Court of Appeal was of the view that a conviction is conclusive evidence of negligence but does not rule out the element of contributory negligence and therefore where both parties do not give evidence but there is evidence of conviction, there is nothing on record to show in what way, if at all, the plaintifi contributed to the accident. There is no evidence from the driver of KBV 625M to show that the driver of the tractor or even the plaintifi contributed to the accident. 28. The evidence of the plaintifi that the tractor did not have rear lights or any warning signs was disputed by the driver of the tractor. With such confiicting evidence, an inspection report would have resolved the issue. In the absence of the motor vehicle inspection report, I cannot ascertain who between the plaintifi and the driver of the tractor told the truth. In any event, the plaintifi cannot speak for the driver of KBV 625M to the efiect that he could not see the tractor in good time. He who alleges must prove. It is my finding that there is suficient evidence to prove that the driver of motor vehicle registration number KBV 625M was solely negligent in the circumstances. Consequently, I find him 100% liable for the accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 7

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29. Vicarious liability is a form of secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. The owner of a motor vehicle can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver his or her agent, if the driver is using the car primarily for the purpose of performing a task for the owner. 30. In the case of Morgan v Launchbury [1972] ALL ER 606, it was held, inter alia, that: To establish agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or in its instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.” 31. Similarly, In Kaburu Okelo & Partners v Stella Karimi Kobia & 2 Others [2012] eKLR the Court of Appeal held that: Vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority.” 32. Where a motor vehicle is driven by a person other than the owner, there is a rebuttable presumption that the driver was acting as an agent of the owner of the motor vehicle. In the case of Kenya Bus Services Ltd v Humphrey [2003] KLR 665; [2003] 2 EA 519, the Court of Appeal cited Kansa v Solanki [1969] EA 318 wherein it was held that: Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.” 33. It has not been denied in evidence that the driver of motor vehicle registration number KBV 625M was driving in the course of his employment with the 1st defendant. Consequently, I find the 1st defendant 100% vicariously liable for the accident. Quantum 34. 35. The medical evidence on record indicates that the plaintifi sustained the following injuries: a. Severe soft tissue injuries to the right elbow joint with swelling and tenderness; b. Severe soft tissue injuries below the right knee with swelling and tenderness. There is no contrary evidence. I find that there is suficient evidence to prove that the plaintifi sustained injuries as a result of the accident. Given the fact that the 1st defendant has been held 100% vicariously liable for the accident, the plaintifi is thus entitled to damages as against the 1st defendant. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 8

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36. This Court has to bear in mind the principles that guide assessment of damages as espoused in West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said: But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”. 37. I am also guided by Lord Denning’s decision in Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case of Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that: In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintifi and the defendant. …………………..the plaintifi cannot be fully compensated for all the loss sufiered but the court should aim at compensating the plaintifi fairly and reasonably but in the process should not punish the defendant.” 38. 39. The following principles are germane in assessing damages for personal injury claims: i. An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries sufiered; ii. The award should be commensurate to the injuries sufiered; iii. Awards in decided cases are mere guides and each case should be treated on its own facts and merit; iv. Where awards in decided cases are to be taken into consideration then the issue of or element of infiation has to be taken into consideration; v. Awards should not be inordinately too high or too low. Based on the above principles, I proceed to assess the damages payable as follows. General Damages for pain, sufiering and loss of amenities 40. I have considered the injuries sustained by the plaintifi. The medical evidence produced by the plaintifi indicates that the plaintifi was treated as an outpatient. I have further considered the submissions made by the plaintifi on quantum as well as the authorities relied upon. On my part, I have considered the following authorities: 1. Ochola v Owuor [2024] KEHC 7689 (KLR). The plaintifi and respondent in the appeal sustained soft tissue injuries to the right shoulder joint, soft tissue injuries to the anterior chest wall, soft tissue injuries to the neck, back and both knees. The trial court awarded Ksh. 250,000/= on 12/5/2022. On appeal, the award was reduced to Ksh. 150,000/= on 25/6/2024. 2. Pascal v Ouko [2023] KEHC 24463 (KLR). The plaintifi and respondent in the appeal sustained chest contusion, blunt injuries to the back, scalp, neck, upper limbs and lower limbs and lacerations to the right knee. The trial https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 9

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court awarded Ksh. 200,000/= in general damages on 21/12/2021. On appeal, the award was reduced to Ksh. 150,000/= on 18/10/2023. 41. Given the age of the awards in the above authorities coupled with the vagaries of infiation, I agree with the proposal by the plaintifi and find that an award of Ksh. 150,000/= in general damages would sufice. I award the same. Special Damages 42. The plaintifi pleaded special damages as follows: a. Medical report…………………………………………..….Ksh. 4,000/= b. Copy of records of motor vehicle……………………..Ksh. 550/= 43. It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/a Kisumu Beach Resort- v - Phoenix of East Africa Assurance Co. Ltd the court said: “It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded" 44. In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintifi in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L. J’s Judgment on page 532 and 533 in Ratclifie v Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage: 45. The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 46. The pleaded special damages were suficiently proven. I award Ksh. 4,550/= as special damages. Disposition 47. In summary, I hold that the plaintifi has proven his case on a balance of probabilities as against the 1st defendant. As for the 2nd and 3rd defendants, the plaintifi has failed to prove her case against them to the required standard. Consequently, I make the following orders: a. The suit is hereby dismissed with costs as against the 2nd and 3rd defendants; b. Judgment is hereby entered for the plaintifi as against the 1st defendant for the following awards: i. General damages……………………………………………….............Ksh. 150,000/= ii. Special damages……………………………………………….…………..…..Ksh. 4,550/= Total…………………………………………………………………………….……….…..Ksh. 154,550/= 48 The plaintifi is also awarded interest on the damages as well as costs of the suit as against the 1st defendant. 49. The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 10

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50. (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.” In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that: First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380. 51. 53. Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely: a. The period from the date the suit is filed to the date when the Court gives its judgment; and b. The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.” Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of Omunyokol Akol Johnson v Attorney General (CIVIL APPEAL NO.6 of 2012, UGSC 4 (8th April 2015) stated in part, as follows: It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.” (Emphasis supplied) 54. From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with efiect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR). Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full whereas interest on special damages shall accrue from the date of filing suit to the date of judgment. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 21ST DAY OF APRIL, 2026. Y.A SHIKANDA https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 11

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SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/116/eng@2026-04-21 12

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