https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11360

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E038 OF 2022** **KUEHNE + NAGEL LIMITED………...……………...……………………..APPELLANT** **VERSUS** **PETER MUGO MURAGE..…………………….…….………….................RESPONDENT** **(Being an Appeal from the Judgment of Honourable A.K Mwicigi (S.P.M) delivered on 27/4/2022 at Baricho Civil Suit No. 100 of 2016)** **JUDGMENT** 1. By a Plaint dated 6/8/2016, the Appellant sued the Respondent seeking judgment in the sum of Ksh. 1,895,736 and costs of the claim plus interest. The Appellant pleaded that on or about 11/10/2013, his motor vehicle registration No. KBR 022 B was being carefully and lawfully driven by its authorized driver along Sagana - Karatina road at Kibingoti, when the Respondent so negligently, carelessly and recklessly drove, managed and/or controlled Motor Vehicle Registration No. KBR 231 E on the wrong side of the road that it violently rammed into his vehicle, thereby extensively damaging it. 2. The Respondent filed his statement of defence dated 18/8/2017 and prayed for the dismissal of the Appellant’s suit. 3. Upon full hearing of the case, the trial court found the Respondent 100% liable for the accident, and awarded the Appellant cost of repairs of Ksh. 1,869,129, assessment fees of Ksh.5,495, tracing charges of Ksh. 21,112, and costs of the suit with interest from judgment date. **The appeal** 1. On appeal, the Appellant vide its Memorandum of Appeal dated 23/5/2022 set out 2 grounds as follows: 1. *The learned trial magistrate erred in law and in fact by awarding interest on special damages from the date of judgment and not from the date of filing suit.* 2. *The learned trial magistrate erred in law and in fact by failing to appreciate that there was no justification in denying the Appellant interest due on special damages from the date of filing suit.* **Duty of the Court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See **Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123**). **Oral Evidence** 1. **PW1 Richard Mwangi Wachira**, adopted his statement dated 6/8/2016 as his evidence in chief. He testified that, *“I work with Kuehne + Nagel Limited. I’m here because of the accident which occurred on 11/10/2013. I was driving motor vehicle FH KBR 022 B. As I was driving along Sagana-Karatina road when I reached at Kibingoti I slowed down as the area is build up. Then an oncoming motor vehicle came from opposite direction came on high speed and hit a bump and lost control and knocked my lorry on the front right the driver’s side. I was knocked by motor vehicle KBR 231 E. The impact was on the driver’s side. The good Samaritans pulled the motor vehicle KBR 231 E at the victims were rushed to the hospital. The police were informed about the accident and they came to the scene. My lorry was towed to Sagana and I wrote this statement. I was issued with the police abstract. I did report the accused for the incidence. The motor vehicle was repaired by the insurance and later it started to operate.”* - 1. On cross examination, he stated that, *“I was driving along Sagana-Karatina road. I was on the left towards Karatina. Motor vehicle KBR 231 E was from Karatina. The Saloon car hit a bump on high speed and came to my lane. I swerved to the left to avoid the accident. I also applied brakes. It’s the police who did investigations and blamed the driver of motor vehicle KBR 231 E. I’m not the one who prepared the police abstract. The police came to the scene. I can't tell the speed of motor vehicle of KBR 231 E. He was to slow down because the market was crowded and there was a bump.”* 2. In re-examination, he stated that, *“Motor vehicle KBR 231 E was from the opposite direction. I was driving on my correct left lane. He came to this lane upon hitting the bump on high speed.”* 3. **PW2 Emmanuel Kiminja Nzioka**, adopted his statement dated 6/8/2018 as his evidence in chief. He testified that, *“I work for APA insurance as legal officer. Under Subrogation right of recovery, we issued motor vehicle KBR 022 B which belonged to Kuehne + Nagel limited. The accident happened on 10/10/2013 and the insurance produced the claim form and abstract to the insurance. Claim form Exhibit 1, police abstract Exhibit 2. We sought the service of the loss assessors aid they did an assessment and issued a report which I wish to produce as P. Exhibit 3(a) - (c). Receipt/invoioe. The motor vehicle was repaired by Simba calf as per the assessment. The total cost was Kshs. 1,766,746/=. We paid by cheque. We did issue the payment voucher and the letter submitting the cheques copy of payment voucher P. Exhibit 4 (a). After the repayment was done, we identified the other accident motor vehicle as KBR 231E. We sought the services of the investigator spot light investigators. We paid Kshs.26,475/= and we were issued with receipts. I have the report Exhibit 5 (a). Invoices Exhibit 5 (b) and payment voucher Exhibit 5 (c). The investigator attached a copy of records as ownership of motor vehicle KBR 231 E Exhibit 6. We are seeking that payment of cost repair which were paid on behalf of our client issued.”* 4. On cross examination, he stated that, *“The accident occurred on 11/10/13 and not 10/10/13. The report was made after the accident.”* 5. In re-examination, he stated that, *“The accident occurred on 11/10/13. There is an error on my statement as to the date.”* 6. **DW1 Peter Mugo Murage**, adopted his statement dated 4/4/2018 as his evidence in chief. He testified that, *“I reside at sagana and I am a teacher at Nyeri.”* 7. On cross examination, he stated that, *“I spotted a woman crossing the road. I swerved to the right on the lane of on-coming vehicles. I hit the motor vehicle KBR. There were speed bump. I had noticed them. The police blamed me for the accident.”* **Submissions** 1. The Appellant cites ***Mbogo v Shah [1968] EA*** on the applicable principles on appeals, and it further cites ***Shariff Salim & Another v Malundu Kikava [1989] eKLR***, on the power of the court to award interest under section 26 (1) of the Civil Procedure Act. It urges that it is trite law that the issue of costs is a discretionary one that is awarded to a successful party, which must be exercised judiciously and a party cannot be denied costs unless it can be shown that they acted unreasonably. It urges the court to allow the appeal, set aside the judgment awarding interest from the date of judgment and substitute it with an order awarding the Appellant interest on special damages from the date of filing suit. It cites ***Madison Insurance Company Ltd v Mung’ot [2022] KEHC 9800 KLR, I 0 0 Minor (suing through father and next friend M O R) v Franciscan Sisters of the Immaculate [2018] eKLR, Fredrick Mageria Githinji v Charles Mwangi Muriithi [2021] eKLR, Fredrick Mageria Githinji v Charles Mwangi Muriithi [2021] eKLR and Heinz Broer v Buscar (K) Ltd & Others [2019] eKLR*** to buttress its submissions. 2. The Respondent did not file any submissions. **Analysis and determination** 1. From the grounds of appeal as framed, the sole issue for determination is whether the trial court erred by awarding interest from the date of judgment rather than from the date of filing the suit. 2. Section 26 (1) of the Civil Procedure Act provides that; ***“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.”*** 3. In ***Prem Lata v Peter Musa Mbiyu [1965] EA 952***, the court elucidated that: ***“In personal injury cases, interest on general damages should not be awarded for the period between the date of filing suit and judgment but interest should normally be awarded on special damages, if the amount claimed has been actually expended or incurred at the date of filing the suit.”*** 1. The rationale for awarding interest on general damages from the date of judgment is premised on the ground that such damages remain unliquidated and incapable of ascertainment at the time of instituting the suit, and thus, a plaintiff cannot be said to have been kept away from monies that had not yet been quantified. Conversely, interest on special damages is awarded from the date of filing the suit to compensate the plaintiff for the deprivation of the use of his money occasioned by the wrongful conduct of the defendant. 2. In ***John Richard Okuku Oloo v South Nyanza Sugar Co Ltd [2013] KECA 73 (KLR)***, the Court of Appeal held that: ***“We have shown that the pleading on special damages suffered by the appellant was clear and sufficient enough and the learned judge was clearly in error to dismiss the appeal on the ground that the appellant had not specifically pleaded for the same to the required standard nor offered sufficient proof. Having found that the learned judge erred in his findings this appeal has merit and is accordingly allowed. The orders of the High Court and those of the subordinate court are hereby set aside and we substitute thereof an order entering judgement for the appellant/plaintiff as prayed at prayer (a) in the plaint. We also award interest from the date of filing suit.”*** 1. In the same vein, in ***Lwanga v Centenary Rural Development Bank [1999] 1 EA 180 it* was observed that:** **“*Ogus on the Law of Damages* *at 100 rationalises award of interest in two ways: (1) that the Plaintiff is thereby being compensated for being kept out of his money. He has been deprived of the use of his money from the time he incurred his loss. On that basis, interest is to run from that date. (2) that the Defendant wrongfully withheld the Plaintiff’s money. The emphasis here is on the Defendant’s wrongful withholding of the Plaintiff’s money. On that basis, interest is to run from the date when the Defendant ought reasonably to have settled the plaintiff’s claim. This is rather punitive.”*** 1. This court finds that the trial court’s failure to award interest on the special damages from the date of filing the suit was an error of principle, and thus, there is a basis for interference. 2. The appeal was based solely on the issue of failure to award interest from the date of filing suit. On the successful appeal, costs of the appeal shall follow the event. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the Appellant’s appeal is merited, and it is allowed in the following terms: 1. The interest on the special damages of Ksh.1, 895,736 shall be calculated from the date of filing the suit. 2. The costs of the appeal shall be paid by the Respondent to the Appellant. *Order accordingly.* **DATED AND DELIVERED THIS 23RD DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Wamae Ndegwa for the Appellant. N/A for the Respondent.