Salim & another v Kikava (Civil Appeal 15 of 1989) [1989] KECA 42 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a cyclist's injury claim because his own testimony contradicted facts he had earlier admitted, confirming interest runs from judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether a partly negligent plaintiff has a cause of action
Yes. Section 4(1) of the Law Reform Act (cap 26) permits a plaintiff who partly caused his own damage to recover, reduced by his share of responsibility; his conviction for careless riding does not defeat the claim.
The court agreed with counsel that contributory negligence is a defence and cannot be used as a sword, but rejected the submission that a partly negligent claimant cannot sue. It relied on Robinson v Oluoch, which held it proper for a person convicted of a negligence offence to allege another's negligence in civil proceedings, and on section 4(1) of the Law Reform Act, identical to the English Law Reform (Contributory Negligence) Act 1945, as explained in The Miraflores and the Abedesa.
Whether the finding of contributory negligence against the first appellant was sustainable
No. The respondent's trial account contradicted the facts he admitted before the magistrate; the first appellant's account matched those admitted facts, showing the respondent wholly to blame.
There were three conflicting accounts of the accident. The trial judge made no finding on which version he accepted. The Court of Appeal, re-evaluating the evidence, found the first appellant's version, which mirrored the prosecutor's summary admitted by the respondent before the District Magistrate, more consistent with the truth, and that summary disclosed no negligence by the first appellant. The contributory negligence finding was therefore without factual basis and erroneous.
Whether the award of Kshs 80,000 general damages was excessive
No. The court found no error in the quantum awarded for the injuries sustained.
Comparing the injuries and comparable awards, the court was unable to say the judge fell into error in awarding Kshs 80,000. However, this ground became academic since the appeal succeeded on liability and the suit was dismissed in its entirety.
Whether interest on general damages could run from the date of filing suit
No. Interest on general damages runs from the date of judgment/assessment; the judge gave no reasons for departing from this and wrongly exercised his discretion under section 26(1) of the Civil Procedure Act.
Under section 26(1) of the Civil Procedure Act the award of interest from date of suit to date of decree is discretionary but must be exercised judicially. Following Prem Lata v Peter Musa Mbiyu and Mukisa Biscuit, interest on general damages should be from judgment, and on special damages only where actually expended before suit. The judge gave no reasons, and the special damages items had not been paid by the date of filing suit, making the order unsupportable.
Legal principles established
#- A person convicted of an offence involving negligence may still sue for damages caused partly by another's negligence, subject to apportionment under section 4(1) of the Law Reform Act; contributory negligence is a shield, not a sword.
- Interest on general damages should be awarded from the date of judgment/assessment, not from the date of filing suit; the discretion under section 26(1) of the Civil Procedure Act must be exercised judicially and with reasons.
- A first appellate court, and a trial judge faced with conflicting accounts of an accident, must make a finding as to which version it accepts before adjudicating on negligence.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of the High Court set aside
- 3.Respondent's suit dismissed with costs
- 4.Appellants awarded the costs of the appeal
- On appeal from
- High Court
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court (statutory appeal; no specific provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiama v Elite Westlands Limited & another (Miscellaneous Application E115 of 2024) [2026] KEELC 2968 (KLR)[2026] KEELC 2968 (KLR)19 May 2026
Cite this brief
#Cite this brief
Caselaw, "Salim & another v Kikava (Civil Appeal 15 of 1989) [1989] KECA 42 (KLR)", Case Analysis (1989). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/42/eng@1989-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.