Musyimi v Muasya & 2 others (Civil Case E188 of 2022) [2026] KEMC 420 (KLR) (16 June 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **CIVIL CASE NO E188 OF 2022** **IMMACULATE NZEMBI MUSYIMI………..………………….…………………………………………..PLAINTIFF** **VERSUS** **STELLAH NTHAMBI MUASYA…….…………………………………………………….............1ST DEFENDANT** **ALVIS MAMBO NGUNDI………………………………………………………………..…………..2ND DEFENDANT** **AND** **NANAK TRUCKING CO. LTD……………………………………………………………………….…….THIRD PARTY** **JUDGMENT** **THE CLAIM** Jacinta Wanjiku Gikaru (hereinafter referred to as the plaintiff) filed this suit on 2/2/2023 vide a plaint dated 27/1/2023. The plaintiff sued Mohamed Swaleh Abubakar and Saab Express Limited (hereinafter referred to as the 1st and 2nd defendants respectively) on account of a road traffic accident that allegedly occurred on 31/7/2022 near Kanga area along Nairobi-Mombasa road. The plaintiff averred that she was lawfully travelling as a fare paying passenger aboard motor vehicle registration number KCV 107T when the driver of motor vehicle registration number KBQ 236B/ZD 7349 drove in such a manner by allowing it to negligently stall or stagnate on the road without any sign or signal, thus causing motor vehicle registration number KCV 107T to ram into it. That the plaintiff was injured. The 1st defendant was sued as the registered owner of motor vehicle registration number KBQ 236B/ZD 7349 whereas the 2nd defendant was the beneficial owner and insured of the said motor vehicle at the material time. The plaintiff averred that the accident was solely caused by the careless and reckless driving of the defendants’ driver and that the defendants were vicariously liable. The plaintiff pleaded the following particulars of negligence against the defendants’’ driver: 1. Parking the said motor vehicle at the road without any indication that the same was stationary; 2. Failing to put lifesavers before and after the vehicle to show that the said vehicle was unmovable; 3. Failing to exercise reasonable precautions on the said road to avoid the said incident/accident; 4. Failure to push or place the stalled vehicle completely off the road; 5. Failing to take reasonable precautions to avoid the said accident; 6. Failing to mind the safety and welfare of other road users; 7. Failing to ensure that the said motor vehicle was in proper working condition as well as enough fuel before the same being allowed to be on the road. The plaintiff relied on the doctrine of *Res ipsa loquitor* and further pleaded particulars of injuries sustained as well as those of special damages and prayed for judgment against the defendants jointly and severally for: 1. General damages; 2. Special damages for Ksh. 27,370/=; 3. Costs of the suit and interest. **THE DEFENDANTS’ DEFENCE** The defendants entered appearance on 18/9/2023 and filed a joint statement of defence on the same day. The defendants denied that they were the registered and beneficial owners respectively of motor vehicle registration number KBQ 236B/ZD 7349, denied that the plaintiff was a lawful passenger in motor vehicle registration number KCV 107T, denied that the driver of motor vehicle registration number KBQ 236B/ZD 7349 was negligent, denied the occurrence of the accident in the manner pleaded by the plaintiff and denied that the plaintiff sustained injuries. The defendants averred in the alternative that if the accident occurred, then the same was caused by the sole negligence of the plaintiff. The defendants pleaded the following particulars of negligence against the plaintiff: 1. Failing to take any proper look out; 2. Failing to observe her safety by ensuring that she had buckled safety protective seatbelt while on board motor vehicle registration number KCV 107T; 3. Falling asleep while on board motor vehicle registration number KCV 107T; 4. Onboarding defective motor vehicle; 5. Being inattentive, careless, negligent, inconsiderate, unconcerned passenger by letting the ignorant and/or reckless driver to over speed overtake and unsafely change lanes; 6. Failing to observe road safety and traffic rules; 7. Failing to heed the nature of traffic on particular road; 8. Failing to blow whistle to the over speeding driver and/or warn the driver to give way, stop and avoid the accident; 9. Causing road traffic accident. The defendants denied the applicability of the doctrine of Res ipsa loquitor as well as the particulars of injuries, loss and damage pleaded by the plaintiff and prayed that the plaintiff’s suit be dismissed with costs. **THE THIRD PARTY** The defendants applied to have the third party joined to the proceedings. The application was allowed where after the third party was served with a notice but failed to enter appearance nor file any documents in defence. **THE EVIDENCE** ***The plaintiff’s Case*** The Plaintiff testified in support of her case and called one other witness. The plaintiff adopted her statement filed in court as part of her testimony. The plaintiff testified that on 31/7/2022 she was a lawful passenger in motor vehicle registration number KCV 107T along Nairobi-Mombasa road. That near Kanga area, motor vehicle registration number KBQ 236B/ZD 7349 had stalled and there were no signs on the road. In the process, motor vehicle registration number KCV 107T rammed into motor vehicle registration number KBQ 236/ZD 7349. The plaintiff claimed that she was injured. She blamed the driver of motor vehicle registration number KBQ 236B/ZD 7349 for leaving the stalled motor vehicle on the road. The plaintiff produced documents in support of the claim. PW 2 Police Constable Isaac Wambugu produced the police abstract in evidence. He stated that after investigations, the driver of KBQ 236B/ZD 7349 was charged with the offence of causing death by dangerous driving but the matter was still pending before court. ***The Defendants’ Case*** The defendants did not call any witness. ***The Third Party’s Case*** As already indicated, there was no appearance by the third party, hence no witness on their part. **MAIN ISSUES FOR DETERMINATION** In my opinion, the main issues for determination are as follows: 1. Whether an accident occurred on 31/7/2022 near Kanga area along Nairobi-Mombasa road involving motor vehicles registration numbers KBQ 236B/ZD 7349 and KCV 107T; 2. Whether the plaintiff was a passenger in motor vehicle registration number KCV 107T at the material time; 3. Whether the defendants were the owners of motor vehicle registration number KBQ 236B/ZD 7349 at the material time; 4. Who was to blame for the accident? 5. Whether the defendants are vicariously liable for the accident; 6. Whether the plaintiff sustained injuries and suffered loss as a result of the alleged accident; 7. Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof; 8. Who should bear the costs of this suit? **THE PLAINTIFF'S SUBMISSIONS** The Plaintiff relied on the evidence on record and submitted that her evidence was uncontroverted. She urged the court to hold the defendants 100% liable. On quantum, the plaintiff proposes a sum of Ksh. 300,000/= and relied on the authority of ***Johnstone Mutuku Kilango v Elijah Wambua [2016] eKLR*,** wherein Ksh. 250,000/= was awarded on appeal for soft tissue injuries on 28/10/2016. The plaintiff urged the court to award special damages as pleaded **THE DEFENDANTS’ SUBMISSIONS** The defendants also filed written submissions. The defendants argued that the police abstract produced in evidence indicated that the matter was pending under investigations and that PW 2’s oral testimony could not override the police abstract. That since the police abstract showed that the matter was pending under investigation, it means that the investigations were inconclusive and no determination of fault was made. The defendants relied on several alleged authorities whose copies were not annexed. It is not the duty of the court to go out on a hunting expedition for authorities cited by the parties. The defendants argued that the plaintiff had failed to discharge her burden. That there was no conclusive police finding, no sketch maps nor independent evidence. The defendants further argued that the accident could have been caused by the driver of the motor vehicle which the plaintiff had boarded. They urged the court to dismiss the suit or apportion minimal liability on the defendants. On quantum, the defendants proposed a sum of Ksh. 100,000/= but once again, failed to file copies of alleged authorities which they relied upon. The defendants submitted that the plaintiff had proven special damages of Ksh. 7,370/= only. **ANALYSIS AND DETERMINATION** I have carefully considered the evidence on record and given due regard to the submissions made by the parties. From the testimony of the plaintiff and the documents produced in evidence, I have no doubt that an accident occurred on 31/7/2022 near Kanga area along Nairobi-Mombasa road involving motor vehicles registration numbers KBQ 236B/ZD 7349 and KCV 107T. There is also sufficient evidence to show that the plaintiff was a passenger in motor vehicle registration number KCV 107T at the time of accident. The police abstract produced in evidence confirmed the position. In any event, the plaintiff's evidence was not controverted by the defence. The plaintiff 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 KBQ 236B as at 2/10/2022. The police abstract produced in evidence indicates that the 2nd defendant was the owner of the said motor vehicle at the time of the accident. The defendants did not call a witness to deny that they were the owners of the said motor vehicle. I am satisfied that the defendants were the owners of motor vehicle registration No. KBQ 236B at the time of accident. **Liability** There is only one version regarding the accident. This was the version that was given by the plaintiff. It is the duty of the plaintiff 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 plaintiff must adduce evidence to prove such particulars of 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 thus: ***“The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.”*** Similarly, in the authority of ***Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR)***, the Court of Appeal held: ***“We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the defendant has not testified. The proposition that failure by the defendant to call evidence lessens the burden on the plaintiff to make out his case on a balance of probabilities as propounded in Karugi & Another v. Kabiya & 3Others (supra) is totally different from the proposition advanced by the appellant in this appeal, namely that the failure by the defendant to call evidence invariably entitles the plaintiff to judgement, irrespective of the quality and credibility of the evidence that the plaintiff has presented. In our view the latter proposition has no sound legal basis.”*** 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 plaintiff 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 affairs, 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 suffered 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).”*** The evidence of the plaintiff is that motor vehicle registration number KBQ 236B/ZD 7349 had stalled on the road and that there were no warning signs. That motor vehicle registration number KCV 107T then rammed into motor vehicle registration number KBQ 236B. Quite unfortunately, neither the defendants nor the third party called witnesses. The court will therefore consider the only evidence on record in determining who was liable between the defendants and the third party. The police abstract indicates that the accident occurred close to mid night. It was therefore dark. There is no indication as to whether the scene was a straight stretch or whether there was a bend on the road. The plaintiff’s evidence establishes *prima facie* evidence of negligence on the part of the driver of motor vehicle registration number KBQ 236B/ZD 7349. Contrary to the submissions by the defence, it was not the duty of the plaintiff to prove that the driver of the motor vehicle she had boarded was not negligent. Having joined the alleged owner of motor vehicle registration number KCV 107T to the proceedings, it was incumbent upon the defendants to show that the driver of the said motor vehicle was negligent. The defendants did not give a counter narrative as to how the accident occurred. It is trite law that pleadings remain mere allegations unless backed up by evidence. In the authority of ***Kenya Power & Lighting Company Limited v Pamela Awino Ogunyo [2015] KECA 761 (KLR)***, the Court of Appeal had this to say: ***“We note, in any event, that the appellant made various allegations in its statement of defence against the respondents. These included, inter alia, that the appellant was not the supplier of electricity in the stated region where fire damage took place; that the damaged crop was illegally planted in an area reserved for the appellant as a way-leave for its power lines and electric cables and that the respondents had failed to leave adequate space between the crops and electric poles so as to prevent the possibility of the crop being burnt in the event that a fire broke out. A party who asserts or alleges that certain facts exist has a legal burden to prove those claims – Sections 107 – 109 of the Evidence Act which place a legal burden of proof or what may be called evidential burden of proof on the party making the assertion. In Janet Kaphiphe Ouma & Another v Marie Stopes International Kenya (Kisumu) HCCC No. 68 of 2007 Ali-Aroni, J citing Edward Muriga through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 had this to say of the said provisions of the Evidence Act:*** ***‘In this matter; apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations. Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence*.”** Without adducing evidence of negligence on the part of the plaintiff or the third party driver, the allegations in the defence by the defendants remain mere allegations and cannot amount to evidence. In any event, no allegations or even particulars of negligence on the part of the driver of motor vehicle registration number KCV 107T were pleaded in the defence. The particulars of negligence were only stated in the third party notice. A third party notice is not a pleading. In my view, the defendant ought to have amended the defence before or soon after joining the third party, to allege that the third party driver was negligent. This court cannot properly apportion liability on the third party driver when there are no pleadings nor evidence to indicate that such driver was negligent. A third-party notice is not a substitute for evidence. The party seeking indemnity or contribution bears the burden of proving entitlement to that relief. The plaintiff was a mere passenger in one of the motor vehicles. She had absolutely no control over any of the accident motor vehicles. There is no evidence to show that the plaintiff was negligent. I have already indicated that the plaintiff has established negligence on the part of the driver of KBQ 236B/ZD 7349. No evidence was adduced by the defendants to negate the plaintiff’s claim or even impute negligence on the third party motor vehicle. There is also absolutely no evidence to show that the third party was the owner of motor vehicle registration number KCV 107T at the time of accident. The police abstract produced in evidence shows that the motor vehicle was owned by Liberia Empire. In the circumstances, I have no reason to disregard the uncontroverted evidence of the plaintiff. The evidence proves, on a balance of probabilities that the driver of motor vehicle registration number KBQ 236B/ZD 7349 was negligent by failing to put up warning signs on the road after the motor vehicle stalled. The situation was made worse by the fact that it was at night when visibility is not clear. Consequently, I find the driver of motor vehicle registration number KBQ 236B/ZD 7349 100% liable for the accident. 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. 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.”*** 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.****”* 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 heldthat: ***“ 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 whosenegligence 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.”*** It has not been denied in evidence that the driver of motor vehicle registration number KBQ 236B/ZD 7349 was driving in the course of his employment with the defendants. Consequently, I find the defendants **100% vicariously liable** for the accident. **Quantum** The medical evidence on record indicates that the plaintiff sustained the following injuries: 1. Deep cut wound on the chin; 2. Blunt injuries to the chest with tenderness; 3. Blunt injuries to the left fingers; 4. Lacerations on the left lower limb; and 5. Lacerations on the right lower limb. 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”.*** 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 plaintiff and the defendant. …………………..the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should not punish the defendant.”*** The following principles are germane in assessing damages for personal injury claims: 1. An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered; 2. The award should be commensurate to the injuries suffered; 3. Awards in decided cases are mere guides and each case should be treated on its own facts and merit; 4. Where awards in decided cases are to be taken into consideration then the issue of or element of inflation has to be taken into consideration; 5. 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, suffering and loss of amenities** I have considered the injuries sustained by the plaintiff. The medical evidence produced by the plaintiff indicates that the plaintiff was treated as an outpatient. I have further considered the submissions made by the plaintiff on quantum as well as the authority relied upon. The authority relied upon by the plaintiff is comparable. On my part, I have considered the following authorities: 1. ***Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR.*** The plaintiff 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 affirmed on 3/3/2022; 1. ***Ochola v Owuor [2024] KEHC 7689 (KLR).*** The plaintiff 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; 1. ***Pascal v Ouko [2023] KEHC 24463 (KLR).*** The plaintiff 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; 1. ***Ndege & Another v Nyarindo [2024] KEHC 5782 (KLR).*** The plaintiff 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 affirmed on 25/4/2024; 1. ***Nabende & Another v Mega Wholesalers Limited & Another [2025] KEHC 13532 (KLR).*** The plaintiff 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 affirmed on 30/9/2025. Given the age of the awards in the above authorities coupled with the vagaries of inflation, I find that an award of Ksh. **260,000/=** in general damages would suffice. I award the same. **Special Damages** The plaintiff pleaded special damages as follows: 1. Medical report………………………………………......Ksh. 5,000/= 2. Treatment expenses..……………………………….…Ksh. 1,820/= 3. Police officer’s court attendance fee ..…..….Ksh. 10,000/= 4. Doctor’s court attendance fee…………………..Ksh. 10,000/= 5. Official search……………………………………………...…Ksh. 550/= Total……………………………………………………….….**Ksh. 27,370/=** 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"*** In ***Ouma v Nairobi City Council [1976] KLR 304*** after stressing the need for a plaintiff 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 ***Ratcliffe 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.”*** I will disregard the claim for the doctor’s and police officer’s attendance costs. The doctor never attended court. Even if the doctor had attended, any charges paid to him cannot be termed as special damages. They can only be claimed as part of the costs of the suit. The same applies to any charges paid to the police officer. In any event, there was no strict proof of payment to the doctor and police officer. The only pleaded and proves special damages amount to Ksh. **7,370/=.** I award the same. **DISPOSITION** In summary, I hold that the plaintiff has proven his case on a balance of probabilities as against the defendants. Consequently, I make the following orders: 1. Judgment is hereby entered for the plaintiff as against the defendants, jointly and severally for the following awards: 2. General damages……………………………………………….............Ksh. 260,000/= 3. Special damages……………………………………………….…………..…..Ksh. 7,370/= Total…………………………………………………………………………….………………………**.Ksh. 267,370/=** The plaintiff is also awarded interest on the damages as well as costs of the suit as against the defendants. 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.”*** In the case of ***Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR***, the courtstated 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.*** ***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*)* 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 effect 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 16TH DAY OF JUNE, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**