https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12492

REPUBLIC OF KENYA IN THE HIGH COURT AT KISII CIVIL APPEAL NO. E106 OF 2022 DENNIS NYABUTO …………………………..…......................... APPELLANT VERSUS G4S COMPANY LIMITED ………………...................................1ST RESPONDENT HOLIDAY CARS AND TOURS LIMITED…..................................2ND RESPONDENT as consolidated with CIVIL APPEAL NO. E006 OF 2023 G4S COMPANY LIMITED ………………...................................1ST APPELLANT HOLIDAY CARS AND TOURS LIMITED…..................................2ND APPELLANT VERSUS DENNIS NYABUTO …………………………..…......................... RESPONDENT RULING 1. Further to the directions of P.K ROTICH J, on 25. 6.2026, this file was placed before me for directions regarding the effective date of interest and the interest rate applicable. These were consolidated appeals arising from the judgment and decree of the trial court in Ogembo MCCC No. 51 of 2020, delivered on 06.12.2022 by Hon. G.N. Barasa (SRM). 2. The Appellant, Dennis Nyabuto, lodged Civil Appeal No. E106 of 2022 on 15.12.2022. The Respondents, G4S Company Limited and Holiday Cars and Tours Limited, subsequently lodged a separate appeal on 23.01.2023. The two appeals were admitted independently. The appeals were consolidated, with Civil Appeal No. E106 of 2022 designated as the lead file and determined on 19.01.2026. I made the following final orders: 3. In the upshot, I make the following orders: - 1. Civil Appeal No. E006 OF 2023 lacks merit, and it is dismissed. 2. Civil Appeal No. E106 OF 2022, on the other hand, is allowed; in lieu thereof, the *judgment and decree given in Ogembo MCCC 51 OF 2020 delivered on 6.12.2022 by Hon. G.N. Barasa, SRM(PM) is set aside and substituted with the following orders:* 4. The suit against the first respondent is dismissed as the proceedings against the first respondent were a nullity. 5. Judgment is entered on liability for the appellant against the second respondent at 100%. 6. Judgement of the lower court awarding general damages of Ksh. 1,000,000 is hereby set aside and substituted with an award of Ksh. 2,500,000. 7. The claim for diminished capacity is dismissed for not being pleaded. 8. Special damages of Ksh 124,500/=, 9. award of Ksh. 400,000/- for future medical expenses for an artificial limb is awarded. 10. Each party to bear their own costs in Civil Appeal No. E006 OF 2023. 11. Appellant to have costs of Ksh 145,000/= in Civil Appeal No. E106 of 2022. 12. 30 days' stay of execution. 13. The second Respondent to bear the appellant’s costs in the court below 14. 14 days' right of Appeal. 15. The file is closed. 16. The appellant filed an application dated 26.04.2026 and sought the following prayers: * 1. Spent 2. Insofar as the judgment of 19.01.2026 is concerned, the Honourable Court be pleased to make orders clarifying the issues of: 1. Award of interest 2. Operative dates i.e., Date(s) of commencement of calculation of interest, and 3. Rate thereof; 4. The Honourable Court be pleased to make orders that the applicant is awarded interest on the decretal amounts herein, which interest shall run: 1. from the date of filing of the trial suit in respect of special damages; and 2. from the date of the lower court judgement in respect of general damages and future medical expenses 3. Upon grant of Orders No. ‘2’ and ‘3’ above, the Honourable Court be pleased to correct the judgement of 19.01.2026 accordingly; 5. Costs of this Application be in the Court’s discretion; 17. The grounds were that the Court’s judgment, however, is silent on the issue of interest, operative dates, that is, the date(s) of commencement of calculation of interest, and rate thereof. Further that monetary decrees are ordinarily accompanied by orders on interest from specified commencement dates and at such rate as the court deems reasonable to be paid on the principal sum. 18. They continued that no prejudice stands to be suffered by any of the parties herein as the prayers sought herein are to ensure clarity and certainty from the judgment. It was their position that the Court is empowered under section 99 of the Civil Procedure Act to make the orders sought herein. The said section provides as follows: Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties. 1. The Applicant contended that the Notice of Motion was filed without undue delay and in good faith. The application was not opposed, save that in the proceedings before P K Rotich J, the parties indicated that I was in the best position to give directions on my judgment. Analysis 1. This is a fairly straightforward matter. The application seeks the correction of an omission pursuant to section 99 of the Civil Procedure Act. Section 99 of the Civil Procedure Act provides as follows: Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties. 1. The question of interest was not one of the issues submitted to the court for determination. It means that the status remains as per the lower court order. The lower court order was to the effect that : 1. Liability - against the Respondents at 50%:50% 2. General damages – Kshs. 1,000,000/= 3. Loss of earning capacity – nil 4. Future medical expenses – nil 5. Special damages – Ksh. 124,500/= 6. Costs and interest of the suit 2. Therefore, interest had been awarded and was not appealed from. There was no need to deal with uncontested issues. However, for avoidance of doubt, interest is provided as follows in section 26 of the Civil Procedure Act: (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. 1. It is established principles of interpretation regarding interest that there are two sets of start dates, whether or not the court indicates so. 1. Interest on special damages 2. Interest on general damages 2. The court of appeal [EM Githinji, RN Nambuye & MK Koome, JJA, as they then were]addressed the question of interest and the rate of interest in liquidated claims, which also applies to special damages, by parity of reasoning in the case of [Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/208/eng%402013-10-11), as follows: In the absence of both the respondent and the learned trial Judge having shown a basis and justification for an award of interest at the rate of 25% from the pre-claim period, in the wake of the silence on the rate of interest applicable in the agreement of 4th March, 1996, we find this rate of interest was granted in error and should not be allowed to stand. Failure to intervene on our part would offend the principle of justice and fairness as it is enshrined in the overriding objective principle (Supra). The interest of justice and fairness to both appellant and the respondent, in the peculiar circumstances of this case, demanded and still demands that interest on the resulting figure forming the 8% professional fees due from the appellant, adjudged in favour of the respondent, should have attracted interest at court rates. We so order that the resulting figure forming the 8% professional fees recoverable by the respondent from the appellant will carry interest at court rates….. The said sum will carry interest at court rates from the date of filing of the suit till payment in full. 1. Further, in the case of [Maqsooda Begum Sroya v Sunmatt Limited [2017] KECA 390 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/390/eng%402017-07-28), the court of appeal [**MAKHANDIA JA, OUKO JA(as he then was) & MURGOR, J.A]** posited as follows regarding interest: He entered judgment in the above sum with costs in favour of the appellant. The court awarded interest on special damages from the date of filing the suit and on general damages, from the date of judgment until payment in full. It is that decision that has provoked this appeal. .. In the result, we find no merit in the appeal. We accordingly dismiss it with no orders as to costs. 1. The correct position remains that general damages attract interest from the date of judgment in the primary court, in this case the court that heard the matter in the first instance. Interest on special damages is awarded from the date of filing of suit in the court below. The rate of interest is court rates. 2. It is not necessary to state the actual rate of interest as the interest is generally accepted as 12% as per the Practice Direction 1 of 1982 issued by Simpson Ag. CJ as he then was. Interest rate is discretionary. However, the lower court awarded the same at court rates. There has been a debate on what the rate of interest is. This was settled and has never been discussed by a long line of authorities, most of which are binding on this court. In the case of [Kipchumba v BOG Tambach Teachers Training College [2023] KECA 802 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/802/eng%402023-06-30), the Court of Appeal posited as follows: As stated earlier, the grant of an award of interest is an exercise of the court’s discretion, but that discretion must always be exercised within limits. It must not be capricious or based on whim. In the case of [Abok James Odera T/A as A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates](https://kenyalaw.org/akn/ke/judgment/keca/2013/208%22%20%5Ct%20%22_blank), (supra), the Court was confronted with an appeal where the learned judge had awarded 25% claimed by a party in the plaint. The court considered the propriety of that rate of interest. It stated that the judge fell into error in awarding that rate when it had neither been provided for in the agreement between the parties, nor in the documents filed before the court. The court expressed itself in the following manner: Bearing the above principles in mind, we have no hesitation in finding that the learned trial Judge made an error in awarding interest as prayed in the plaint at the rates of 25% from 4th March, 1996 when the same had neither been provided for in the said agreement or justification made for its claim by the respondent both in the plaint filed, affidavit in support of the application for summary Judgment and or oral highlights in court at the time of the respondents request for the said summary Judgment. We appreciate that section 26 (1) of the [Civil Procedure Act](https://kenyalaw.org/akn/ke/act/1924/3) Cap 21 Laws of Kenya tended to give the learned trial Judge a wide discretion about the award of interest. It reads: - Where and in so far as a decree is for the payment of money, the court may in the decree order interest at such rates as the court deems reasonable to be paid on the principal such adjudged from the date of the suit to the date of decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit….” The above discretion notwithstanding, it is now trite that the exercise of the judicial discretion conferred by this section 26(1) above is not absolute. It has to be exercised judiciously, not with caprice or whim but with reason. Herein, the learned trial Judge gave no reason as to why he awarded interest at the rate of 25% from the pre-claim period.” 33. The rate of 14% was suggested by the appellant who later chose 12% as provided for by the Chief Justice’s practice directions. The learned Judge observed that the trial court did not indicate the rate of interest to be applied. We find that the original decree did not indicate the applicable interest rate. Had the court specified the applicable rate of interest. We would have been guided by Practice Direction 1 of 1982, which expressly states that: “in the absence of any valid reason for ordering a higher or lower rate of interest, the rate of interest should now be 12%.” In the present circumstances, no interest rate was ordered that would be deemed to have been a higher or lower interest rate. Therefore, there was no cause for the court to be called upon to consider if there are any valid reasons for awarding interest at a higher or lower rate than provided. 34. What then should the appropriate interest rate be? The appellant has suggested 12% as the current court rates, while the respondent aligns with the judgment of the learned Judge that the applicable interest rate is 6%. In the circumstances of the present case, we rely on our rich jurisprudence and judicial practices to determine what the appropriate interest rate on liquidated damages is. The rate used by the courts, absent special or exceptional circumstances, is 12% per annum from the date of filing suit until payment in full. See: [Orix Oil (Kenya) Limited v Paul Kabeu & 2 others [2014] KEHC 5086 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/5086/eng%402014-05-27), [Autolog Kenya Limited V Navisat Telematics(Kenya) Limited [2013] KEHC 4098 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/4098/eng%402013-04-19) and [Permuga Auto Spares & another v Margaret Korir Tagi [2016] KEHC 3758 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/3758/eng%402016-07-21) 1. Interest rates were more succinctly addressed in the case of [Orix Oil (Kenya) Limited v Paul Kabeu & 2 others [2014] KEHC 5086 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/5086/eng%402014-05-27); F Gikonyo J posited as follows: [8] Equally, I find and hold that the plaintiff has a judgment for a liquidated amount which it had been deprived of through the wrongful act of the Defendant, and therefore, it should be awarded interest from the date of filing the suit. For better grounding, see the cases cited by the Plaintiff, which are quite relevant on the issue. In Mukisa Biscuit Manufacturing Co. Ltd. V West End Distributors Ltd. [1970] E. A 469, the court reinforced the position I have stated and relied on the following passage in the case of PREM LATA v PETER MUSA MBIYU (supra) that: “… The principle that emerges is that where a person is entitled to a liquidated amount or to specific goods and has been deprived of them through the wrongful act of another person, he should be awarded interest from the date of filing suit. Where, however, damages have to be assessed by the Court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of judgment…” See also the case of AUTOLOG KENYA LIMITED V. NAVISAT TELEMATICS (KENYA) LIMITED 2013 eKLR, where Mabeya J stated that, “…in that case the rate of interest should be 12% from the date of filing suit… In the circumstances I award interest on the decretal sum at the rate of 12% per annum from the date of filing suit until payment in full…” Across the border, the High Court of Uganda in the case of Pan African Insurance Company (U) Ltd. V International Air Transport Assoc. (HCT-00-CC-CS-0667 OF 2003) was as categorical that, “As regards interest, the principle is that where a party is entitled to a liquidated amount or specific goods and has been deprived of them through the wrongful act of another party, he should be awarded interest from the date of filing the suit. Where however, damages does not arise until they are assessed, in such event, interest is only given from the date of judgment.” 1. The judgment is interpreted accordingly and corrected pursuant ot section 99 of the Civil Procedure Act. Determination 1. The judgment delivered on 19.1.2026 is interpreted in respect of interest as follows: 1. The rate of interest applicable is court rates, that is, 12%. 2. General damages shall attract interest from the date of judgment in the lower court, that is, 06.12.2022. 3. Special damages shall attract interest from the date of filing suit in the lower court. 4. Damages for future medical expenses shall attract interest from the date of judgment in the court below. 5. There be no order as to costs. 6. 30-day stay of execution. **DELIVERED, DATED** and **SIGNED** at **NYERI** this 29th day of **July** the year of our Lord Two Thousand and Twenty - Six. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of;** Mr Were for the applicant NA for the Respondent Court Assistant -Timothy