https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/128

Kimani v Nduto & 2 others (Civil Case E216 of 2021) [2026] KEMC 128 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEMC 128 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case E216 of 2021 YA Shikanda, SPM May 28, 2026 Between John Wainaina Kimani Plaintiff and Peter Mutua Nduto 1st Defendant Nyamai Mambu 2nd Defendant Auto Japan (Mombasa) Ltd 3rd Defendant Judgment The Claim 1.John Wainaina Kimani (hereinafter referred to as the plaintiff) filed this suit on 30/9/2021 vide a plaint dated 27/9/2021. The plaintiff sued Peter Mutua Nduto, Nyamai Mambu and Auto Japan (Mombasa) Ltd (hereinafter referred to as the 1st, 2nd and 3rd defendants respectively) on account of a road traffic accident that allegedly occurred on 3/2/2019 at Macha hotel stage along Kibwezi-Kitui road. The plaintiff averred that he was a pedestrian along the said road when motor vehicle registration number KCS 338D was driven so carelessly and negligently that it knocked down the plaintiff while off the road and caused him to sustain injuries. 2.The defendants were sued as the registered and/or beneficial owners of motor vehicle registration number KCS 338D at the material time. From the plaint, it would appear that the plaintiff was not sure of who the driver of the motor vehicle was at the time of the alleged accident. The plaintiff relied on the doctrines of vicarious liability and Res ipsa loquitor as well as the Traffic Act and the Highway Code. He pleaded the following particulars of negligence against the defendants or the driver of motor vehicle registration number KCS 338D:a.Over speeding in the circumstances;b.Driving without due care and attention and more so without due regard to other road users;c.Allowing himself to drive the said motor vehicle when he knew or ought to have known he was not and fit to do so;d.Knowingly driving on a public road a defective motor vehicle tyrewise, lightwise and brakewise;e.Driving off the road;f.Overtaking when it was not safe from the wrong side;g.Failing to adhere to the Highway Code;h.Being reckless and careless in his driving. 3.The plaintiff further pleaded particulars of injuries sustained as well as those of special damages and prayed for judgment against the defendants jointly and severally for:a.General damages for pain and suffering;b.Special damages for Ksh. 5,550/=;c.Costs of the suit;d.Interest. Interlocutory Judgment 4.The record indicates that the 1st and 3rd defendants failed to enter appearance and file their defences and upon request by the plaintiff, interlocutory judgment was entered against them on 2/12/2021. The 2Nd Defendant’s Defence 5.The 2nd defendant entered appearance on 14/10/2021 and filed a statement of defence on 29/10/2021. The 2nd defendant generally denied the contents of the plaint, denied the particulars of negligence and further denied any agency relationship, liability and/or vicarious liability. He also denied the applicability of the doctrine of Res ipsa loquitor. In the alternative, the defendant averred that if the plaintiff was ever injured, then it was due to his own negligence as a pedestrian. He pleaded the following particulars of negligence against the plaintiff:a.Walking without due care and attention for his own safety;b.Walking without due regard to the existence of other road users;c.Failing to look ahead and give way to approaching vehicles;d.Failing to keep a safe distance.e.Failing to be on the lookout for possible danger while walking near a road. 6.The 2nd defendant denied the particulars of injuries and those of special damages. He prayed that the plaintiff’s claim be dismissed with costs. The Evidence The plaintiff’s Case 7.The Plaintiff’s case was partly heard by another magistrate who was subsequently transferred. The plaintiff called a total of three witnesses in support of his case. PW1 Dr. Esther Nzomo Musyoki testified that she examined the plaintiff on the 2nd August, 2021 and prepared a medical report. The witness produced the medical report in evidence as well as the payment receipt. PW2 Police Constable Joseph Mogo testified and produced a police abstract in respect of the accident. The witness confirmed the occurrence of the accident and the involvement of the motor vehicle in issue, as well as the plaintiff herein. According to PW2, one Peter Mugo Nduto was blamed for the accident and he was charged with offence of careless driving and fined a sum of Ksh. 21,000/=. 8.PW 3 was the plaintiff himself. The witness adopted his statement filed in court as part of his testimony. The plaintiff testified that on the 3rd February, 2019 in the afternoon, he was walking along Kibwezi-Kitui road on the left side of the road as one faces Kitui general direction. It was the evidence of the plaintiff that as he was walking off the tarmac, motor vehicle registration number KCS 338D emerged from Kibwezi direction, veered off the road and knocked down the plaintiff who fell in a ditch. The plaintiff stated that he was injured as a result of the accident. He identified the 1st defendant as the driver of the accident motor vehicle that had knocked him down. The plaintiff produced several documents in support of his case. The 2nd Defendant’s Case 9.The 2nd defendant called one witness in support of his case. DW1 Peter Mutua Nduto admitted that he was the 1st defendant in this case. He further admitted that he was the driver of the motor vehicle issue at the material time and that he was an employee of the 2nd defendant. DW1 testified that the plaintiff was a billion passenger on a motorcycle at the material time. The witness denied knocking down the plaintiff and alleged that it was the motorcycle that hit the left side mirror of the motor vehicle that the witness was driving. He further stated that it was actually the plaintiff who hit the side mirror as the motorcycle was passing on his left. According to the witness, it was the motorcyclist who lost control. DW2 stated that the accident was caused by the plaintiff and the motorcyclist. Facts Not In Dispute 10.From the evidence of both parties, the following facts are not in dispute:a.An accident occurred on the 3rd February, 2019 along Kibwezi-Kitui road;b.The accident involved motor vehicle registration number KCS 338D and the plaintiff herein;c.The 1st defendant was the driver of motor vehicle registration number KCS 338D at the material time;d.The said motor vehicle belonged to the 2nd defendant at the material time;e.The 1st defendant drove motor vehicle registration number KCS 338D in the course of his employment with the 2nd defendant;f.The 1st defendant was charged with and convicted of the offence of careless driving as a result of the accident;g.No appeal was filed against the conviction and sentence in the traffic case. Main Issues For Determination 11.In my opinion, the main issues for determination are as follows:i.Who was to blame for the accident?ii.Whether the 2nd defendant is vicariously liable for the accident;iii.Whether the plaintiff sustained injuries and suffered loss as a result of the accident;iv.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof;v.Who should bear the costs of this suit? The Plaintiff's Submissions 12.The plaintiff’s counsel informed the court that they had filed written submissions but upon checking the CTS, I did not see any submissions filed on behalf of the plaintiff. The 2Nd Defendant’s Submissions 13.The 2nd defendant filed written submissions. The 2nd defendant submitted that it is the Plaintiff’s duty to establish and prove the alleged negligence in order for liability to attach. That the burden of proof has not been discharged by the Plaintiff as liability against the 2nd defendant and damages have not been proved. The 2nd defendant argued that PW 2 confirmed that he was not involved in the investigation and did not produce any photographs of the scene of accident for the court to confirm what was at the scene following the impact. The 2nd defendant further argued that PW 2 did not produce any sketch map to demonstrate how the vehicle and the plaintiff were placed at the scene of accident, did not produce any OB records from the police station and did not even know who reported the accident in the first place. Further, PW 2 did not produce any document to show that the motor vehicle mentioned in the claim belonged to the 2nd defendant. 14.The 2nd defendant submitted that the plaintiff did not adduce any evidence to prove that he was indeed a pedestrian walking on the side of the road to discount the 1st defendant’s assertion that the plaintiff was being carried on a motor cycle. That PW 2 and PW 3 did not adduce any evidence of the speed of the motor vehicle at the time of the alleged accident. Further, the allegations that the motor vehicle was defective were not supported by any inspection report. The 2nd defendant argued that there was no evidence to prove the allegations that the motor vehicle was overtaking and doing it from the wrong side. That there was no evidence adduced to show that the 1st Defendant (the driver) was intoxicated at the time of the accident as alleged. According to the 2nd defendant, there was no evidence to demonstrate the allegations of driving without due care and attention, failing to adhere to the Highway Code or being reckless and careless in driving. That there was absolutely no evidence that the driver of the motor vehicle ever left his lane and proceeded to hit the Plaintiff while off the road and not a single eye witness was called to shed light on the circumstances of the alleged accident despite the plaintiff testifying that there were many pedestrians on the road. 15.The 2nd defendant made an interesting argument that even if the 1st defendant was charged with a traffic offence and fined, it does not prove that the driver was at fault. That it is possible that had the prosecution in that traffic case been required to prove the guilt of the driver, it would have failed and the driver would have been acquitted after a protracted trial. It was argued that he 1st Defendant may just have admitted to the charges so that he could avoid a long court battle far away from his home. That since the driver was not tried and adjudged guilty, nothing turns on the fact that he paid a fine. 16.The 2nd defendant submitted that the accident happened solely due the negligence and carelessness of the plaintiff and the plaintiff ought to bear the liability at 100%. The 2nd defendant contended that the plaintiff had not proven his case on a balance of probabilities and his case should be dismissed for want of proof. That should the court find that the 1st defendant was negligent in any way, the court ought to consider the issue of contributory negligence and apportion the larger blame to the plaintiff. The 2nd defendant relied on the authorities of Benter Atieno Obonyo v Anne Nganga & another [2021] KEHC 7520 (KLR) and Ishmael Nyasimi & Another v David Onchangu Orioki suing as personal representative of Antony Nyabando Onchango (deceased) [2018] eKLR. 17.On quantum, the 2nd defendant proposed a sum of Ksh. 30,000/= in general damages. He relied on the authority of Eva Karemi & 5 others v Koskei Kieng & another [2020] eKLR, wherein Ksh. 40,000/= to 70,000/= was awarded to plaintiffs who sustained soft tissue injuries. On special damages, the 2nd defendant argued that only Ksh. 4,550/= had been proven. Analysis And Determination 18.I have carefully considered the evidence on record and given due regard to the submissions made by the 2nd defendant. Liability 19.As indicated earlier, there is interlocutory judgment against the 1st and 3rd defendants. Ordinarily, where interlocutory judgment has been entered, the issue of liability becomes settled. This position has been confirmed by various judicial pronouncements. In the case of Abdullahi Ibrahim Ahmed (Suing as The Personal Representative of The Estate of Anisa Sheikh Hassan (Deceased)) v Lem Lem Teklue Muzolo [2013] eKLR, the Court of Appeal stated thus:“..............save to reiterate what is now settled law that once interlocutory judgment has been entered the question of liability becomes a foregone conclusion.............we can do no better than to repeat what was said by this court in the case of Felix Mathenge v Kenya Power & Lighting Co. Ltd. Civil Appeal No. 215 of 2002 that:-The role of the Court after entering the interlocutory judgment was only to assess damages since interlocutory judgment having been regularly obtained there can never be any doubt that judgment was final with regard to liability and was unassailable. It was only interlocutory with regard to the quantum of damages.” 20.I find it strange that the 1st defendant opted not to enter appearance nor file a defence but appeared as a witness on behalf of the 2nd defendant. I do not think it was a smart move. There are two versions on how the accident occurred. There is a version that was given by the plaintiff and another that was given by the 1st defendant who did not enter appearance nor file a defence. The court will have to analyse both versions and decide which one is more probable. I agree with the 2nd defendant that it is the duty of the plaintiff 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 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.” 21.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).” 22.The evidence of the plaintiff is that the 1st defendant caused the motor vehicle he was driving to veer off the road and knock down the plaintiff who was a pedestrian. That he was off the road and was knocked down from behind. On the other hand, the 1st defendant testified that the plaintiff was a pillion passenger on a motor cycle and that it was the plaintiff or the motor cycle that hit the side mirror of the motor vehicle that was being driven by the 1st defendant. I have quite a number of reasons as to why I cannot believe the testimony of the 1st defendant:1.The 1st defendant did not enter appearance nor file a defence. His testimony is not based on any pleadings;2.There is already interlocutory judgment against the 1st defendant, which settles the issue of liability;3.The testimony of the 1st defendant is at variance with the statement of defence filed by the 2nd defendant. The 2nd defendant did not allege that the plaintiff was a pillion passenger on a motor cycle. In fact, it identifies, albeit in the alternative, that the plaintiff was a pedestrian;4.The 2nd defendant’s statement of defence does not mention nor attribute any negligence on a motorcyclist;5.No third party notice was issued to the alleged motorcyclist or the owner of the alleged motor cycle;6.The 1st defendant was charged with and convicted on his own plea of guilty of the offence of careless driving. 23.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 offence 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 offence as charged". 24.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 Traffic case as if the evidence recorded there was the final position in the case since not only is it notorious that different 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 traffic 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 offence, after expiry of the time limited for appeal, judgement shall be taken as conclusive evidence that the person so convicted was guilty of that offence. 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 affect the quantum of damages”. 25.It has largely been held by the superior courts that a conviction in respect of a traffic offence 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. Even if the court were to believe that the plaintiff was a pillion passenger on a motor cycle, he cannot be blamed for the accident since he was not in control of the motor cycle. Without joining the motorcyclist as a third party, the 2nd defendant cannot purport to establish negligence against such motorcyclist. I find no reason to apportion negligence on the plaintiff. Consequently, I find the 1st defendant 100% liable for the accident. 26.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. 27.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.” 28.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.” 29.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.” 30.The 1st defendant, who was called as a witness for the 2nd defendant admitted that he was driving the accident motor vehicle in the course of his employment with the 2nd defendant. There is no contrary evidence. Consequently, I find the 2nd defendant 100% vicariously liable for the accident. Quantum 31.The medical evidence on record indicates that the plaintiff sustained the following injuries:a.Soft tissue injuries on the right forearm;b.Soft tissue injuries on the right wrist joint. 32.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”. 33.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.” 34.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 suffered;ii.The award should be commensurate to the injuries suffered;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 inflation 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, suffering and loss of amenities 35.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 2nd defendant 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 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 25/6/2024.2.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. 36.The plaintiff herein sustained less severe injuries compared to those sustained by the victims in the above authorities. Given the age of the awards in the above authorities coupled with the vagaries of inflation, I find that an award of Ksh. 150,000/= in general damages would suffice. I award the same. Special Damages 37.The plaintiff pleaded special damages as follows:a.Search for motor vehicle…………………....Ksh. 550/=b.Medical report…………………………………Ksh. 4,000/=c.Cost of traffic proceedings………………Ksh. 1,000/- 38.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" 39.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.” 40.The special damages were sufficiently proven as required by law. Consequently, I award Ksh. 5,550/= as special damages. Disposition 41.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:a.Judgment is hereby entered for the plaintiff as against the defendants jointly and severally for the following awards:i.General damages……………………………………………….............Ksh. 150,000/=ii.Special damages……………………………………………….…………..…..Ksh. 5,550/=Total…………………………………………………………………………….……………………….Ksh. 155,550/=The plaintiff is also awarded interest on the damages as well as costs of the suit as against the defendants. 42.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.” 43.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. 44.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; andb.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.” 44.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) 45.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 28TH DAY OF MAY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.