JANET WANGUI MAINA (Deceased)……………………………RESPONDENT
(Being an appeal from the decree arising from the judgment of Hon. G. W. Kirugumi (Principal Magistrate) delivered on 27/1/2021 in Kerugoya Magistrates Court Civil Case No. 9 of 2016)
Background
1. The appellant filed this appeal through a memorandum dated 15/6/2023. The record of appeal was filed on 4/9/2023. The appeal is about interest payable on general damages, that is, whether it is from the date of filing suit or from the date of judgment.
2. The appeal arises from a judgment of the trial court dated 27/1/2021 in a suit by the respondents against the appellant and a co-defendant claiming compensation under the Law Reform Act (Cap. 26) Laws of Kenya and the Fatal Accidents Act (Cap. 32) in general and special damages for fatal injuries sustained by Janet Wangui Maina (deceased). The accident arose out of a road traffic accident that occurred on 30/7/2013 along Kagio-Kutus road and involved motor vehicle registration number KBU 979Q owned by the 1st co-defendant in which the deceased was travelling as a passenger and motor vehicle registration number KBU 655D owned by the appellant.
3. Interlocutory judgment was entered against the appellant and his co-defendant for failing to enter appearance on 29/5/2018. The matter proceeded by way of formal proof. However, upon application by the appellant, the interlocutory judgment and proceedings were set aside and he was given an opportunity to enter appearance out of time, file defence and participated in the hearing. The interlocutory judgment against his co-defendant was confirmed on 6/11/2019.
4. After trial the court found the appellant and his co-defendant jointly and severally liable for the accident and apportioned liability in the ratio of 50:50 against each of them. The court then awarded KShs 200,000/= general damages for pain and suffering, KShs 150,000/= for loss of expectation of life and KShs 2,704,000/= loss of dependency and KShs 388,349/= as special damages.
5. At the end of the judgment the trial court stated that “the plaintiffs shall have the costs of the suit with interest at court rates from the date of filing suit until payment in full.”
6. It is this statement that brings the appellant to court.
Grounds of appeal
7. This appeal is on one ground only, that the learned judge (should be trial magistrate) erred in law and in fact in awarding interest on general damages from the date of filing the suit until payment in full.
8. The appellant therefore prays to this court to allow the appeal and award him costs thereof.
Submissions
9. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
10. The submissions by the learned counsels are more extensively set out and considered in the analysis following.
Duty of appellate court on a first appeal
11. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
12. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
13. The case before the trial court was as set out in the introductory paragraphs above. The issue for determination herein is whether the learned trial magistrate erred in law and fact by ordering that interest on general damages shall be from the date of filing suit until payment in full.
Analysis
14. The position by the appellant in this appeal is that the trial court had no reason to order that even on general damages, interest was to be paid from the date of filing the suit. Learned counsel for the appellant submits that the proper position in law is that interest on general damages should be from the date of judgment as settled in various decisions of the superior courts namely Shariff Salim & Another v Malundu Kikava [1989] eKLR, Heinz Broer V Buscar (K) Ltd & others [2019] eKLR and Jane Ovuyanzi Raphael (Suing as the Legal Representative of the Estate of Japheth Amaayi v Salina Transporters [2020] eKLR.
15. Learned counsel for the respondent on his part relies on section 26 of the Civil Procedure Act (Cap. 21) Laws of Kenya and argues that the period from which interest should run is at the discretion of the trial court. The said section 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.
16. Learned counsel has cited the following cases in support of his submissions:
Kenindia Assurance Co Ltd v Alpha Knits Ltd and another [2003] E.A. 512; Gulam Hussein v French Somaliland Shipping Co. Ltd (1959) E.A. 25; Pius Kinuthia Njuguna v John Musembi & another HCCC No. 1616 of 1992 and Jane Wanjiku Wambu v Antony Kigamba Hato & 3 others [2018] eKLR
17. In the case of Jane Wanjiku Wambu v Antony Kigamba Hato & 3 others [2018] eKLR cited by learned counsel for the respondent the court held that:
“Our Superior Courts have, over time, come up with several principles derived from this general rule in Section 26 of the Civil Procedure Act which have, over time acquired stable meanings. The following three principles in this regard seem relevant for the appeal at hand.
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.
Third, when it comes to the period before the filing of the suit, Section 26 of the Civil Procedure Act has no application. Instead, interest prior to the date of the suit is a matter of substantive law and is only claimable where under an agreement there is stipulation for the rate of interest (contractual rate of interest) or where there is no stipulation, but interest is allowed by mercantile usage (which must be pleaded and proved) or where there is statutory right to interest or where an agreement to pay interest can be implied from the course of dealing between the parties. See Gulamhussein v French Somaliland Shipping Company Limited [1959] EA 25; Highway Furniture Mart Limited – v- The Permanent Secretary & Another EALR (2006) 2 EA 94; Mulla – The Code of Civil Procedure (16th Ed.) Vol. 1 at p. 505.”
18. In the case of Shariff Salim & Another v Malundu Kikava [1989] eKLR which is relied upon by learned counsel for the appellant, the Court of Appeal dealt with the issue of when interest on general damages is payable as follows:
“There is no gainsaying the fact under Section 26 of the Civil Procedure Act, the award of interest on a decree for the payment of money for the period from the date of the suit to the date of the decree is a matter entirely within the discretion of the court. But this discretion being a judicial one must be exercised judicially. The whole idea at the end of the day is to do justice to both parties. In the case of Prema Lata vs Peter Musa Mbiyu [1965] EA 592, the appellant, in a suit for damages for personal injuries, was awarded Kshs 24,000, as general damages and Kshs 1,742.80 as special damages but the judge refused an application to award interest on these two sums from the date of filing suit until judgment. On appeal, the Court of Appeal for East Africa held 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 that 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…..The judge gave no reason for ordering that interest even on general damages was to be paid from the date of filing the suit. According to the authorities interest on general damages should be paid from the date of assessment which of course is the date of judgment. That is the earliest date when the defendant’s liability to pay does arise. That order even in relation to payment of interest on special damages is, in our view, unsupportable. Quite apart from the fact that the claim for special damages was not proved by any evidence beyond being itemised in the plaint, except for kshs 100, paid for police abstract, the remaining items had not been paid for at the date of the filing of the suit on August 19, 1983. As a result, it is impossible to ascertain the reasons which compelled the judge to award interest from the date of filing suit and this leads us to the inevitable conclusion that the learned judge wrongly exercised his discretion. This ground of appeal accordingly succeeds.”
19. The interpretation given by the Court of Appeal with regard to the period from which interest on general damages is payable is as held in the case of Shariff Salim & another above that such interest is payable from the date of assessment which in this case is the date the trial court delivered its judgment. This court and of course the trial court below are bound by that decision. The respondent has not provided any other authority from the Court of Appeal or Supreme Court holding otherwise. The decisions cited by learned counsel for the respondent are generally on the discretion of the trial court to award interest on damages or the rate of interest without specifically addressing the issue of when interest on general damages should be calculated unlike as was done in the Shariff Salim case above.
20. It would appear to me that the issue herein arose from an error by the trial court in lumping the issue of when interest was payable for special damages together with general damages. I do not understand why the parties could not simply go back to the trial court soon after the judgment to issue clarity on the matter of how interest was to be calculated on each of the heads of damages. This would have saved a lot of time seeing that there was no other issue on appeal.
21. From the foregoing, it follows that the appeal succeeds and the same is allowed. The order of the trial court that interest on general damages be paid from the date of filing suit is set aside and substituted with an order that interest on general damages be paid from the date of the judgment.
22. I will make no orders as to costs.
23. Orders accordingly.
24. Dated, signed and delivered on the Virtual Platform, Teams this 10th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Jae (Ms) for Appellant.
No appearance for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE
(Being an appeal from the decree arising from the judgment of Hon. G. W. Kirugumi (Principal Magistrate) delivered on 27/1/2021 in Kerugoya Magistrates Court Civil Case No. 9 of 2016)
Background
1. The appellant filed this appeal through a memorandum dated 15/6/2023. The record of appeal was filed on 4/9/2023. The appeal is about interest payable on general damages, that is, whether it is from the date of filing suit or from the date of judgment.
2. The appeal arises from a judgment of the trial court dated 27/1/2021 in a suit by the respondents against the appellant and a co-defendant claiming compensation under the Law Reform Act (Cap. 26) Laws of Kenya and the Fatal Accidents Act (Cap. 32) in general and special damages for fatal injuries sustained by Janet Wangui Maina (deceased). The accident arose out of a road traffic accident that occurred on 30/7/2013 along Kagio-Kutus road and involved motor vehicle registration number KBU 979Q owned by the 1st co-defendant in which the deceased was travelling as a passenger and motor vehicle registration number KBU 655D owned by the appellant.
3. Interlocutory judgment was entered against the appellant and his co-defendant for failing to enter appearance on 29/5/2018. The matter proceeded by way of formal proof. However, upon application by the appellant, the interlocutory judgment and proceedings were set aside and he was given an opportunity to enter appearance out of time, file defence and participated in the hearing. The interlocutory judgment against his co-defendant was confirmed on 6/11/2019.
4. After trial the court found the appellant and his co-defendant jointly and severally liable for the accident and apportioned liability in the ratio of 50:50 against each of them. The court then awarded KShs 200,000/= general damages for pain and suffering, KShs 150,000/= for loss of expectation of life and KShs 2,704,000/= loss of dependency and KShs 388,349/= as special damages.
5. At the end of the judgment the trial court stated that “the plaintiffs shall have the costs of the suit with interest at court rates from the date of filing suit until payment in full.”
6. It is this statement that brings the appellant to court.
Grounds of appeal
7. This appeal is on one ground only, that the learned judge (should be trial magistrate) erred in law and in fact in awarding interest on general damages from the date of filing the suit until payment in full.
8. The appellant therefore prays to this court to allow the appeal and award him costs thereof.
Submissions
9. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
10. The submissions by the learned counsels are more extensively set out and considered in the analysis following.
Duty of appellate court on a first appeal
11. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
12. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
13. The case before the trial court was as set out in the introductory paragraphs above. The issue for determination herein is whether the learned trial magistrate erred in law and fact by ordering that interest on general damages shall be from the date of filing suit until payment in full.
Analysis
14. The position by the appellant in this appeal is that the trial court had no reason to order that even on general damages, interest was to be paid from the date of filing the suit. Learned counsel for the appellant submits that the proper position in law is that interest on general damages should be from the date of judgment as settled in various decisions of the superior courts namely Shariff Salim & Another v Malundu Kikava [1989] eKLR, Heinz Broer V Buscar (K) Ltd & others [2019] eKLR and Jane Ovuyanzi Raphael (Suing as the Legal Representative of the Estate of Japheth Amaayi v Salina Transporters [2020] eKLR.
15. Learned counsel for the respondent on his part relies on section 26 of the Civil Procedure Act (Cap. 21) Laws of Kenya and argues that the period from which interest should run is at the discretion of the trial court. The said section 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.
16. Learned counsel has cited the following cases in support of his submissions:
Kenindia Assurance Co Ltd v Alpha Knits Ltd and another [2003] E.A. 512; Gulam Hussein v French Somaliland Shipping Co. Ltd (1959) E.A. 25; Pius Kinuthia Njuguna v John Musembi & another HCCC No. 1616 of 1992 and Jane Wanjiku Wambu v Antony Kigamba Hato & 3 others [2018] eKLR
17. In the case of Jane Wanjiku Wambu v Antony Kigamba Hato & 3 others [2018] eKLR cited by learned counsel for the respondent the court held that:
“Our Superior Courts have, over time, come up with several principles derived from this general rule in Section 26 of the Civil Procedure Act which have, over time acquired stable meanings. The following three principles in this regard seem relevant for the appeal at hand.
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.
Third, when it comes to the period before the filing of the suit, Section 26 of the Civil Procedure Act has no application. Instead, interest prior to the date of the suit is a matter of substantive law and is only claimable where under an agreement there is stipulation for the rate of interest (contractual rate of interest) or where there is no stipulation, but interest is allowed by mercantile usage (which must be pleaded and proved) or where there is statutory right to interest or where an agreement to pay interest can be implied from the course of dealing between the parties. See Gulamhussein v French Somaliland Shipping Company Limited [1959] EA 25; Highway Furniture Mart Limited – v- The Permanent Secretary & Another EALR (2006) 2 EA 94; Mulla – The Code of Civil Procedure (16th Ed.) Vol. 1 at p. 505.”
18. In the case of Shariff Salim & Another v Malundu Kikava [1989] eKLR which is relied upon by learned counsel for the appellant, the Court of Appeal dealt with the issue of when interest on general damages is payable as follows:
“There is no gainsaying the fact under Section 26 of the Civil Procedure Act, the award of interest on a decree for the payment of money for the period from the date of the suit to the date of the decree is a matter entirely within the discretion of the court. But this discretion being a judicial one must be exercised judicially. The whole idea at the end of the day is to do justice to both parties. In the case of Prema Lata vs Peter Musa Mbiyu [1965] EA 592, the appellant, in a suit for damages for personal injuries, was awarded Kshs 24,000, as general damages and Kshs 1,742.80 as special damages but the judge refused an application to award interest on these two sums from the date of filing suit until judgment. On appeal, the Court of Appeal for East Africa held 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 that 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…..The judge gave no reason for ordering that interest even on general damages was to be paid from the date of filing the suit. According to the authorities interest on general damages should be paid from the date of assessment which of course is the date of judgment. That is the earliest date when the defendant’s liability to pay does arise. That order even in relation to payment of interest on special damages is, in our view, unsupportable. Quite apart from the fact that the claim for special damages was not proved by any evidence beyond being itemised in the plaint, except for kshs 100, paid for police abstract, the remaining items had not been paid for at the date of the filing of the suit on August 19, 1983. As a result, it is impossible to ascertain the reasons which compelled the judge to award interest from the date of filing suit and this leads us to the inevitable conclusion that the learned judge wrongly exercised his discretion. This ground of appeal accordingly succeeds.”
19. The interpretation given by the Court of Appeal with regard to the period from which interest on general damages is payable is as held in the case of Shariff Salim & another above that such interest is payable from the date of assessment which in this case is the date the trial court delivered its judgment. This court and of course the trial court below are bound by that decision. The respondent has not provided any other authority from the Court of Appeal or Supreme Court holding otherwise. The decisions cited by learned counsel for the respondent are generally on the discretion of the trial court to award interest on damages or the rate of interest without specifically addressing the issue of when interest on general damages should be calculated unlike as was done in the Shariff Salim case above.
20. It would appear to me that the issue herein arose from an error by the trial court in lumping the issue of when interest was payable for special damages together with general damages. I do not understand why the parties could not simply go back to the trial court soon after the judgment to issue clarity on the matter of how interest was to be calculated on each of the heads of damages. This would have saved a lot of time seeing that there was no other issue on appeal.
21. From the foregoing, it follows that the appeal succeeds and the same is allowed. The order of the trial court that interest on general damages be paid from the date of filing suit is set aside and substituted with an order that interest on general damages be paid from the date of the judgment.
22. I will make no orders as to costs.
23. Orders accordingly.
24. Dated, signed and delivered on the Virtual Platform, Teams this 10th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Jae (Ms) for Appellant.
No appearance for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE