Mbusya v Mbukoni Services Limited (Civil Case E295 of 2024) [2026] KEMC 109 (KLR)

3. e. Failing to stop, slow down, apply brakes, swerve or in any other way act so as to manage and/ or control the said motor vehicle so as to avoid the accident; f. Driving motor vehicle KCP 143V without regard to other road users especially the plaintifi and the pedestrians; g. Driving in a dangerous and careless manner; h. Failing to heed the instructions on safety precautions when riding; i. Driving a defective motor vehicle with defective brakes. The plaintifi further pleaded particulars of injuries sustained as well as those of special damages and prayed for judgment against the defendant for: a. General damages; b. Special damages for Ksh. 8,530/=; c. Costs of the suit; d. Interest at court rates. The Defendant’s Defence 4. The defendant entered appearance on 24/2/2025 and filed a statement of defence on the same day. The defendant denied that it was the registered owner of motor vehicle registration number KCP 143V, denied that the plaintifi was a lawful passenger in the said motor vehicle on 25/8/2023, denied that the said motor vehicle was driven carelessly or negligently, denied that it was involved in an accident and denied that the plaintifi sustained bodily injuries, loss and damage. The defendant denied the particulars of negligence pleaded by the plaintifi and averred in the alternative that if the accident occurred, as the plaintifi may prove, then the same was caused solely and/or substantially contributed to by the plaintifi’s own negligence. 5. The defendant pleaded the following particulars of negligence against the plaintifi: 6. a. Failing to take any or any adequate precaution for their own safety; b. Failing to heed instructions on safety precautions when travelling; c. Failing to heed the trafic rules and regulations when travelling. The defendant relied on the doctrine of Volenti non fit injuria and averred further in the alternative that if the alleged accident occurred, then the same was beyond the control of the defendant herein. The defendant denied the particulars of injuries, loss and damage pleaded by the plaintifi and prayed that the plaintifi’s suit be dismissed with costs. The Evidence The plaintifi ’s Case 7. Only the Plaintifi testified in support of his case. He adopted his statement filed in court as part of his testimony. The plaintifi testified that on 25/8/2023 he was lawfully travelling as a passenger aboard motor vehicle registration number KCP 143V along Kibwezi-Kitui road when the driver of the said motor vehicle drove negligently that he lost control of it and caused the motor vehicle to veer ofi the road and land in a ditch. That as a result of the accident, the plaintifi sustained injuries. The plaintifi https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 2

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was rushed to hospital where he was treated and discharged. The plaintifi blamed the driver of the accident motor vehicle for losing control of it and thereby causing the accident. The plaintifi produced documents in support of his case. The Defendant’s Case 8. The defendant did not call any witness, save that a medical report was produced by consent of the parties as defence exhibit 1. Main Issues For Determination 10. In my opinion, the main issues for determination are as follows: i. Whether an accident occurred on 25/8/2023 along Kibwezi-Kitui road involving motor vehicles registration numbers KCP 143V; ii. Whether the plaintifi was a passenger in motor vehicle registration number KCP 143V at the material time; iii. Whether the defendant was the owner of motor vehicle registration number KCP 143V at the material time; iv. Who was to blame for the accident? v. Whether the defendant is vicariously liable for the accident; vi. Whether the plaintifi sustained injuries and sufiered loss as a result of the alleged accident; vii. Whether the plaintifi is entitled to damages and if so, the nature and quantum thereof; viii. Who should bear the costs of this suit? The Plaintifi's Submissions 11. The Plaintifi relied on the motor vehicle copy of records and submitted that the defendant was the owner of motor vehicle registration number KCP 143V. That the defendant did not controvert the evidence. The plaintifi further submitted that the police abstract confirmed the occurrence of the accident and involvement of the accident motor vehicle. It was submitted by the plaintifi that as a passenger, he had no control over the manner of driving. That a passenger is not expected to exercise control over the driver and in the absence of evidence to the contrary, he is not guilty of contributory negligence. That the defence allegation of contributory negligence was not proved by any evidence. 12. The plaintifi invoked the doctrine of res ipsa loquitur and contended that the vehicle was under the exclusive control of the defendant’s driver and that he lost control, swerved ofi the road and landed in a ditch. That the defendant ofiered no explanation as to how the accident occurred without negligence. The plaintifi relied on the authority of John Mwangi Njoroge v Charles Wamae Njoroge [2019] KEHC 2883 (KLR). The plaintifi submitted that the defendant was vicariously liable for the negligence of its driver and that the doctrine of volenti non fit injuria was not applicable. That a fare-paying passenger cannot be said to have voluntarily assumed the risk of negligent driving. The plaintifi argued that he never consented to negligent driving. He urged the court to hold the defendant 100% liable. 13. On quantum, the plaintifi invited the court to find that the injuries sustained by the plaintifi were directly caused by the accident involving the defendant’s vehicle, and that the plaintifi has established both injury and causation on a balance of probabilities. The plaintifi proposed a sum of between Ksh. 300,000-400,000/= as general damages. The plaintifi relied on the following authorities https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 3

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1. Ochieng & Another v Kariuki [2024] KEHC 11930 (KLR). The plaintifi and respondent in the appeal sustained blunt soft tissue injuries to the head, chest, back and pelvis (trunk). He continued to experience pain on the trunk. The trial court awarded Ksh. 400,000/= on 31/1/2023. On appeal, the award was afirmed on 4/10/2024. 2. Ndege & Another v Nyarindo [2024] KEHC 5782 (KLR). The plaintifi and respondent in the appeal sustained deep cut wounds on the frontal and occipital region of the head, cut wounds on the face, chest contusion, bruises on the neck, bruises on the face, laceration on the right and left upper limbs, multiple cut wounds on the right knee, laceration on the lower limbs, bruises on the upper limbs and bruises on the lower limbs. The trial court awarded Ksh. 300,000/= on 13/7/2023. On appeal, the award was afirmed on 25/4/2024. 3. Nabende & Another v Mega Wholesalers Limited & Another [2025] KEHC 13532 (KLR). The plaintifi and appellant in the appeal sustained head injury with loss of consciousness for approximately two hours, blunt injury to the neck, multiple bruises on the left upper limb, bruises on the left leg anteriorly, cut wound on the left leg mid anteriorly, cut wound on the left ankle joint. The trial court awarded Ksh. 245,000/= in general damages on 17/5/2023. On appeal, the award was afirmed on 30/9/2025. 14. The plaintifi further urged the court to award special damages of Ksh. 8,530/= as well as costs of the suit and interest. The Defendant’s Submissions 15. The defendant did not file written submissions. Analysis And Determination 16. I have carefully considered the evidence on record and given due regard to the submissions made by the parties. From the testimony of the plaintifi and the documents produced in evidence, I have no doubt that an accident occurred on 25/8/2023 at Kalamba area along Kibwezi-Kitui road involving motor vehicle registration number KCP 143V. There is also suficient evidence to show that the plaintifi was a passenger in motor vehicle registration number KCP 143V at the time of accident. The police abstract produced in evidence confirmed the position. In any event, the plaintifi's evidence was not controverted by the defence. 17. The plaintifi produced in evidence a copy of records from the Registrar of motor vehicles which indicates that the defendant was the registered owner of motor vehicle registration number KCP 143V as at 1/11/2023. The police abstract produced in evidence also indicates that the defendant was the owner of the said motor vehicle at the time of the accident. The defendant did not call a witness to deny that it was the owner of the said motor vehicle. I am satisfied that the defendant was the owner of motor vehicle registration No. KCP 143V at the time of accident. Liability 18. There is only one version regarding the accident. This was the version that was given by the plaintifi. It is the duty of the plaintifi to establish or prove negligence on the part of the defendant. 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 negligence and it is from the evidence that the court can make a https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 4

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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 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.” 19. In the authority of Eastern Produce (k) Limited V Christopher Atiado Osiro [2006] KEHC 3200 (KLR), the court held: It is trite that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid down in the case of Kiema Mutuku v. Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258, where it was held that ‘there is as yet no liability without fault in the legal system in Kenya, and a plaintifi must prove some negligence against the defendant where the claim is based on negligence’. I have in mind the description of negligence as is to be found in Salmond and Heuston on The Law of Torts 19th Edn. where it is described as ‘conduct, not a state of mind – conduct which involves an unreasonably great risk of causing damage……….negligence is the omission to do something much a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human afiairs, would do, or doing something, which a prudent and reasonable man would not do.’ (Underlining is mine) The position is laid more clearly as ‘In strict legal analysis, negligence means more than needless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby sufiered by the person to whom the duty was owing.’ (Lord Wrigur in Lochgelly Iron and Coal Co. v. M’Mullan [1934] A. C. I, 25).” 20. The evidence of the plaintifi is that the driver of motor vehicle registration number KCP 143V drove carelessly, recklessly and/or negligently as a result of which he lost control and caused the motor vehicle to veer ofi the road and land in a ditch. The evidence was not controverted by the defence. The plaintifi relied on the doctrine of Res ipsa loquitor. In the leading case of Scott v London and St Katherine Docks Co (1865) 3 H & C 596, Erle CJ at page 600 held as follows: There must be reasonable evidence of negligence. But, where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it afiords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care". 21. In Black’s Law Dictionary 9th Edition page 1424, the principle is defined as follows: [Latin “the thing speaks for itself”] Torts. The doctrine providing that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a prima facie case. Often shortened to res ipsa.” 22. The Dictionary goes further to explain the circumstances the Court will infer negligence as follows: The phrase ‘res ipsa loquitur’ is a symbol for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintifi’s prima facie case, and present a question of fact for the defendant to meet with an explanation. It is merely a short way of saying that https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 5

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the circumstances attendant on the accident are of such a nature as to justify a jury, in light of common sense and past experience, in inferring that the accident was probably the result of the defendant’s negligence, in the absence of explanation or other evidence which the jury believes.” “It is said that res ipsa loquitur does not apply if the cause of the harm is known. This is a dark saying. The application of the principle nearly always presupposes that some part of the causal process is known, but what is lacking is evidence of its connection with the defendant’s act or inference that the defendant’s negligence was responsible. It must of course be shown that the thing in his control in fact caused the harm. In a sense, therefore, the cause of the harm must be known before the maxim can apply.” ‘Res ipsa loquitur is an appropriate form of circumstantial evidence enabling the plaintifi in particular cases to establish the defendant’s likely negligence. Hence the res ipsa loquitur doctrine, properly applied, does not entail any covert form of strict liability … The doctrine implies that the court does not know, and cannot find out, what actually happened in the individual case. Instead, the finding of likely negligence is derived from knowledge of the causes of the type or category of accidents involved.” 23. Kennedy L.J. in Russel v. L. & S. W. Ry [1908] 24 T.L.R. 548 at p. 551 held as follows: ….that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without. The res speaks because the facts stand unexplained, and therefore the natural and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody; that is some want of reasonable care under the circumstances.” 24. The Learned Judge then continued: Res ipsa loquitur does not mean, as I understand it, that merely because at the end of a journey a horse is found hurt, or somebody is hurt in the streets, the mere fact that he is hurt implies negligence. That is absurd. It means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of things which is complained of.” 25. In Henderson v Henry E Jenkins & Sons [1970] AC 282 at 301 Lord Pearson stated: In an action for negligence the plaintifi must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge had to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintifi’s action fails. The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintifi’s favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential of proof resting on the defendants...” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 6

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26. In the case of Embu Public Roads Services Ltd v Riimi (1968) EALR 22, the Court of Appeal held as follows: The doctrine of res ipsa loquitor is one which a plaintifi, by proving that an accident occurred, in the circumstances in which an accident should not have occurred thereby discharges in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident". 27. From the foregoing, it is clear that the doctrine of res ipsa loquitor applies only where circumstances are established which afiord reasonable evidence (in the absence of explanation by the defendant) that the incident leading to the injuries arose from their negligence. In an appropriate case, the plaintifi establishes a prima facie case by relying upon the fact of the incident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintifi will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the incident. 28. Loosely speaking, this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case. On the basis of the evidence on record, a prima facie case of negligence has been established as there is a causal link between the driver of the accident motor vehicle and the injuries that were sustained by the plaintifi. The doctrine, in my view, will apply to the circumstances of this case. It is reasonably possible to decide on the evidence on record as to who is to blame for the accident. I find suficient evidence to hold the driver of motor vehicle registration number KCP 143V solely liable for the accident. A motor vehicle being driven by a prudent driver cannot just veer ofi the road and overturn. The plaintifi was a mere passenger who had no control of how the motor vehicle was being driven. In any event, the defence did not adduce any evidence to show that the plaintifi was negligent. 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 7

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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 KCP 143V was driving in the course of his employment with the defendant. Consequently, I find the defendant 100% vicariously liable for the accident. Quantum 34. 35. The medical evidence on record indicates that the plaintifi sustained the following injuries: a. Blunt injury to the shoulder; b. Blunt injuries to the chest; c. Blunt injuries to the back; and d. Blunt injuries to the pelvis (trunk). There is no contrary evidence. 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. 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”. 36. 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.” 37. The following principles are germane in assessing damages for personal injury claims: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 8

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38. 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 39. 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. The authorities relied upon by the plaintifi are comparable although the plaintifis in the authorities sustained more severe injuries. On my part, I have considered the following authorities: 1. Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR. The plaintifi and respondent in the appeal sustained rugged cut wounds on the temporal region of the head, soft tissue injuries to the neck, anterior chest, lower back, shoulders, right hand as well as swelling and bruises on the right index finger and both legs. The trial court awarded Ksh. 250,000/= in general damages on 26/5/2021. On appeal, the award was afirmed on 3/3/2022. 2. 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. 3. Pascal v Ouko [2023] KEHC 24463 (KLR). 40. 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 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 find that an award of Ksh. 220,000/= in general damages would sufice. I award the same. Special Damages 42. The plaintifi pleaded special damages as follows: a. Imaging medical services……………..Ksh. 1,000/= b. Medical bills…………………………………Ksh. 3,030/= c. Medical report……………………..…..….Ksh. 4,000/= https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 9

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d. Copy of records…………………………….…Ksh. 500/= Total………………………………………….….Ksh. 8,530/= 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: 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.” 45. Ksh, 4,000/= for the medical report was proven as per the law. Some receipts are not legible. I cannot award what I cannot see and verify. There is a receipt for the copy of records and a receipt for Ksh. 50/ = for drugs. Consequently, I award Ksh. 4,550/= only as special damages. Disposition 46. In summary, I hold that the plaintifi has proven his case on a balance of probabilities as against the defendant. Consequently, I make the following orders: a. Judgment is hereby entered for the plaintifi as against the defendant for the following awards: i. General damages……………………………………………….............Ksh. 220,000/= ii. Special damages……………………………………………….…………..…..Ksh. 4,550/= Total…………………………………………………………………………….……………………….Ksh. 224,550/= 47. The plaintifi is also awarded interest on the damages as well as costs of the suit as against the defendant. 48. The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that: (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.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 10

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49. In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that: 50. 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. 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: 52. 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) 53. 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 28TH DAY OF APRIL, 2026. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/109/eng@2026-04-28 11

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