Shariff Salim & Another V Malundu Kikava eKLR
|Civil Appeal 15 of 1989||13 Oct 1989|
Johnson Evan Gicheru, Richard Otieno Kwach, John Mwangi Gachuhi
Court of Appeal at Malindi
Shariff Salim & another v Malundu Kikava
Shariff Salim & another v Malundu Kikava eKLR
Shariff Salim & another v Malundu Kikava
Court of Appeal at Mombasa
October 13, 1989
Gachuhi, Gicheru & Kwach JJ A
Civil Appeal No 15 of 1989
(Appeal from the judgment and decree of the High Court at Mombasa, Bosire J,
in HCCC No 865 of 1983 dated 9th November 1987)
Negligence – contributory negligence – whether a party who suffers damage from his own negligence has a cause of action against the other negligent party – respondent involved in accident with appellant – respondent pleading guilty to careless riding – respondent subsequently suing the appellant for negligence – whether respondent’s suit disclosed a cause of action – Law Reform Act (cap 26) section 4(1)
Civil Practice and Procedure – interest – discretion of the court in awarding interest – how this discretion should be exercised – whether proper to grant interest on general damages from the date of filing suit –
failure by judge to give reasons for granting such interest – whether judge’s discretion properly exercised. Civil Procedure Act (cap 21) section 26(1) The respondent who was charged and convicted by the magistrates court of the offence of careless riding sued the appellants in the High Court seeking damages for injuries sustained as a result of the accident. The High Court (Bosire J) contributory negligence at 25% and 75% between the first appellant and the respondent respectively. The court awarded special and general damages and further ordered interest from the date of suit until payment in full. The appellants appealed against the decision of the High Court on grounds inter alia that the respondent having been convicted of the offence of careless riding had no reasonable cause of action against them and challenged the finding that the first appellant contributed to the accident.
The appellants further argued that the learned Judge erred in law in awarding interest on damages from the date of filing suit.
1. A Plaintiff who has suffered damage partly from his own negligence and partly from the negligence of any other person can bring an action for damages against that other person subject to apportionment of contributory negligence between them. This is allowed by section 4(1) of the Law Reform Act (cap 26).
2. Before the judge could make any proper adjudication on the issue of negligence he was bound to consider the evidence before him and make a finding as to which version he accepted as true. The judge had failed to make any finding in that regard.
3. The summary of facts left no room for only doubt that the accident was caused wholly by negligence on the part of the respondent. The finding by the judge that the first appellant was guilty of contributory negligence was made without any factual basis and was erroneous.
4. 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.
5. According to authorities, interest on general damages should be paid from the date of assessment which is the date of judgment. That is the earliest date when the defendant’s liability to pay does arise.
6. The judge had given no reason for ordering that interest, including interest on general damages, was to be paid from the date of filing the
suit. This lead to the conclusion the judge had wrongly exercised his
discretion to award interest.
1. Robinson v Oluoch  EA 376
2. Miraflores, The and Abadesa, The  1 All ER 672;  1Lloyd’s Rep 191;  1 AC 826;  2 WLR 806
3. Lata v Mbiyu  EA 592
4. Mukisa Biscuit Manufacturing Company Ltd v West End DistributorsLtd (No 2)  EA 469
5. Dipak Emporium v Bond’s Clothing  EA 553
1. Traffic Act (cap 403) section 87(1)
2. Evidence Act (cap 80) section 47A
3. Law Reform Act (cap 26) section 4(1)
4. Law Reform (Contributory Negligence) Act 1945 [UK] section 1
5. Civil Procedure Act (cap 21) section 26(1)
Mr Khanna for the Appellant.