Mfalila, J.A., delivered the following considered judgment of the court:
I The respondent in this appeal is shown as Rose Jumbe in her capa-
city as administrator of the Estate of one Jumanne Jumbe. A brief explanation is therefore called for. A Jumanne Y Jumbe was the husband of Rose Jumbe and at all material times he was employed as Export Officer by the second appellant, General Tyre East Africa Ltd headquartered at Arusha. According to the claim, on or about 21 October 1978, the said Jumanne Jumbe while in the course of B his employment with the second appellant, was travelling in the second appellant's motor vehicle driven by the first appellant, when the said motor vehicle was involved in an accident and caused serious injuries to the said Jumanne Jumbe. After his recovery, Jumanne Jumbe filed a claim in tort C against the second appellant as employer and the first appellant as driver of the said motor vehicle and employee of the second appellant. He claimed general damages amounting to Shs 600,000/= against the first appellant for his negligent driving and against the second appellant as being vicariously liable for the negligence of the first appellant, its employee. The suit took inordinately long D before it was finally determined by the High Court, hence unfortunately Jumanne Jumbe the plaintiff in Arusha High Court Civil Case No 103 of 1983 died in 1988 while it was still pending. At this stage, the widow Rose Jumbe applied for and was granted letters of administration to administer the estate E of her late husband. After getting letters of administration, she applied to be brought on the record as the legal representative of the deceased plaintiff to continue the suit. The application was granted on 13 December 1989, and it was ordered that she be brought on the record and henceforth the suit F was prosecuted by her in that capacity and it is in that capacity that she appeared before us as the respondent. Having traced the history of how Rose Jumbe came to be on the record of this appeal, the next question is whether her being brought on record was proper in law. The learned Judge who granted the application and everyone else appear to have assumed the automatic nature of the Gposition.
The actual position is neither automatic nor simple. The question is whether on the death of the original plaintiff Jumanne Jumbe, the suit abated. The governing legal provision is Order 22 Rule 1 of the Civil Procedure Code 1966 which provides as follows: H
`The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.' (The emphasis is ours.)
When therefore Mrs Rose Jumbe applied to be brought on the record to continue the suit as personal representative of the de- I
A ceased, the Court should have asked itself whether the plaintiff's right to sue the appellants survived his death. In this connection it was incumbent upon the respondent who was claiming that the deceased plaintiff's right to sue had survived to her, to show either that she was entitled to assert the right to the same relief claimed by the deceased plaintiff or that there are some statutory B provisions entitling her to do so.
The general rule is that all rights of action and all demands existing in favour of or against a person at the time of his death survive to and against his representatives, except those rights which are tied up C with the individuality of the deceased, these are caught up in the maxim - actio personalis moritur cum persona, ie a personal right of action dies with the person. As a general rule this maxim applies to actions in respect of torts so that on the death of either party to such action the right to sue will be D extinguished. Hence in the present case since the claim by the deceased plaintiff was based on tort, this right to sue did not survive his death. In the circumstances, the respondent's application to be brought on record as the deceased's legal representative, should not have been granted in the E automatic manner in which it was. The only salvation left to the respondent was whether there are statutory provisions to override the common law position. In the Indian Civil Procedure Code, the position is saved by the provisions in the Indian Succession Act 1925 and the Probate and F Administration Act. However our own Probate and Administration Ordinance cap 445 would not be of any assistance to the respondent because the nearest provision in s 40 does not specifically provide for the survival of causes of action. We have laboured to save this suit because given the gross mishandling that it has suffered and the unnecessary delays to which it was subjected mostly due to G the plaintiff's own counsel, we thought it would be most unfortunate and tragic for the unfortunate widow if the suit were to fail on the basis that the right to sue did not survive the death of the plaintiff. The Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance cap 360 came readily to H our assistance. Section 9 of this Ordinance provides as follows:
`9(1) Subject to the provisions of this section, on the death of any person after the commencement of this Ordinance, all causes of action subsisting against or vested in him shall survive against, or as the case may be for the benefit I of his estate:
Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one A spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.
(2) not applicable
(3) no proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section B have survived against the estate of a deceased person unless either -
(a) proceedings against him in respect of that cause of action were pending at the date of his death; or
(b) proceedings are taken in respect therefor not later than six months after his executor or administrator took out representation.' C
This section specifically saves causes of action based on tort from abating on the death of either party unless they are for defamation, seduction or inducing spouses to separate, which this one is D not any of these. Therefore the right to sue in this suit survived the death of the plaintiff and the legal representative was properly brought on the record.
Having firmly established the respondent's legal position, we now turn to the suit itself. In the formal amended plaint which was about the fourth version, the plaintiff alleged that on or about 21 October E 1978, while in the course of their employment, the first defendant and the plaintiff were travelling in the second defendant's motor vehicle, the first defendant being the driver, attempted to overtake motor vehicle registration No TZ 34121, Isuzu and in the process crashed into the Isuzu whereby the F plaintiff sustained injuries leading to permanent disabilities. The plaintiff went on to assert that this accident was a result of the negligence of the first defendant as employee and/or authorised driver of the second defendant. He particularised the first defendant's negligence as follows: G
(a) attempting to overtake the Isuzu vehicle while it was not possible and in the process crashed into the same;
(b) while overtaking, the first defendant went completely off course as the other vehicle's driver tried to swerve to the right; H
(c) that due to the above mentioned negligence the plaintiff suffered injuries and permanent disabilities.
The injuries suffered by the plaintiff were also particularised as follows: I
A (a) Injuries to the spine from the mid-thoracic spine resulting in complete paraplegia.
(b) Multiple bodily bruises.
(c) Nervous shock.
B By reasons thereof the plaintiff claimed general damages amounting to Shs 600,000/=, interest on the decretal amount at 9% per month from the date of suit till date of full and final payment and costs of the suit.
C At the conclusion of the trial in the High Court, the learned Judge found on the evidence before her that at the time of the alleged accident, the plaintiff was in the course of his employment with the second defendant, that the accident was caused by the negligence of the first defendant and that therefore the plaintiff was entitled to the damages as claimed in the plaint. Accordingly, she awarded D the plaintiff the sum of Shs 600,000/= as general damages, but reduced the interest claimed from 9% to 5% per month from the date of filing the suit to the date of full settlement and costs of the suit. The appellants then lodged this appeal but only against the rate of interest awarded. They were apparently satisfied with the Judge finding on their liability and have in fact already paid to the respondent the principal sum adjudged. In their memorandum of appeal which contained two E grounds, the appellants complained:
`1. That the learned Trial Judge erred in law in awarding interest on the decretal amount at the rate of 5% per F month beyond the date of delivery of judgment.
(b) That the learned Trial Judge erred in law and fact in awarding interest on the principal sum at the rate of 5% per month, which rate is clearly excessive and out of proportion.'
G As indicated, this appeal is not concerned with the liability of the appellants in negligence because there was no appeal against the Judge's finding on this point. In this appeal we are only concerned with the rate of interest which was awarded. However, having gone through the record of trial and noted some shortcomings, we have decided to deal with the question of the absence or presence of H negligence on the part of the first appellant and the second applicant's vicarious liability so that our observations can act as a guide in future cases. It was for the same reason that we dealt with the point whether the plaintiff's right to sue survived his death.
I In our view, the most important question was whether negligence
on the part of the first appellant was established. After establishing negligence on the part of the first A appellant, the respondent had to show that at the time of the accident, the first appellant was acting in the course of his employment as employee of the second appellant. What was the evidence in this regard? In her evidence in chief the respondent said nothing regarding the first appellant's alleged B negligence, this is not surprising because she admitted that she does not know much about the accident as she did not witness it. But in cross-examination, she acted that although she was not present when the accident happened, the deceased had told her that the accident occurred when the first appellant was overtaking an Isuzu truck TZ 34121 in the course of which the first appellant's C vehicle hit the Isuzu truck. The next question is what were the circumstances in which the first appellant's vehicle hit the lorry? Two explanations were offered; one by the first appellant and the other by the respondent. Of course the respondent not having been at the scene could only hazard a guess. She said that since the first appellant knocked the lorry as he was overtaking it causing his D own vehicle to overturn, this circumstance, she said, appears to suggest that the overtaking was done recklessly without due attention. And, in her written submissions at the end of the trial, the respondent submitted that the first appellant's negligence was to be found in the speed at which he E was driving. In her submission, the first appellant's failure to stop or otherwise manage the vehicle at the time of the accident, is evidence of high speed and therefore reckless driving.
On the other hand the first appellant explained that the accident happened when he started F overtaking an Isuzu lorry after indicating to the lorry driver his intention to do so. As he came abreast with the lorry, it swerved onto his path knocking his vehicle and causing it to overturn. He added that G the lorry swerved to his side because its driver was trying to avoid a cyclist. His tyre also burst in the process. In the circumstances the appellants submitted that there was no thread of evidence adduced by the respondent before the Court to prove that the accident which resulted in the alleged injuries was due to the negligence of the first appellant. They added that in the Criminal Court the first H appellant was acquitted of the charge of reckless driving.
In reply, the respondent stated that since her claim was not founded on the negligence by the first appellant but rather on a claim based on injuries sustained in the course of employment, the first I appellant's negligence was immaterial. The Trial Judge did not
A comment on this strange submission, but on our part we are satisfied that it was misconceived both in fact and law. It was misconceived in fact because the respondent specifically pleaded the first appellant's negligence in para 6 and particularised the alleged negligence in the same paragraph in B three sub-paragraphs. It was misconceived in law because the vicarious liability of an employer does not depend on his relationship with the victim of the accident, but with the tort-feaser. It was therefore extremely important and material to prove the first appellant's negligence.
C In her judgment the Trial Judge had the following to say on the appellant's liability in negligence:
`With regard to issue 2 (ie whether the accident was caused by the negligence of the first appellant) there is the evidence of the first defendant who was driving the accident vehicle at the material time. He stated that he flashed to D an Isuzu lorry ahead of him that he was overtaking the said lorry but the lorry driver would not give way thereby causing some tyres of the Range Rover ARG 134 to leave the tarmac road resulting in the said Range Rover overturning. It is the considered view of the Court that if the lorry driver would not give way to allow the first defendant to pass safely, the first defendant was duty bound to slow down and drive behind the Isuzu lorry until it was safe to E overtake it. The first defendant would have done so if he were driving with due care and attention and not at an excessive speed. The circumstance of the Range Rover the first defendant was driving getting off the tarmac and overturning indicate that the first defendant was driving at such excessive speed or with such recklessness that he F failed to control the said Range Rover thereby causing it to overturn. Even if the first defendant were not negligent in his driving, the plaintiff would still be entitled to damages for personal injuries sustained in the material accident on the concept of res ipsa loquitor (sic) and furthermore because the plaintiff was within the scope of duties G assigned to him by his employer the General Tyre (EA) Limited when the motor accident occurred.'
From the above passage of the Trial Court judgment, we have been able to extract four reasons on H which the learned Judge based her finding that the first defendant was negligent thereby entitling the plaintiff to damages. These are:
(1) that the first defendant was driving at an excessive and reckless speed.
I (2) that he overtook a vehicle when it was not safe to do so as the vehicle in front of him would not give him way.
(3) on the doctrine of res ipsa loquitur. A
(4) that the plaintiff was at the time of the accident acting within the scope of his employment.
Each of these reasons prompted some question in our minds. With regard to the first reason, was B there any evidence led to support it? Apart from the fact that there is no evidence led to support the first reason, it was not part of the pleadings, in other words excessive and reckless speed was not among the particularised acts of negligence pleaded in para 6 of the plaint. The Trial Judge should not therefore have imported it. The second reason is well founded because it came from the first C appellant's own mouth. He said, `I had flashed to the Isuzu lorry that I was overtaking but the said lorry driver did not give me way so that the accident occurred. . . .' It is clear from this that the first defendant was forcing his way to overtake the lorry while fully aware that the lorry driver was not ready to give him way as apparently there was a cyclist in front. Although speed was not pleaded in D the particulars of negligence, and this is just one of the numerous weaknesses in the conduct of the respondent's case, the first appellant must have been travelling at a high speed while forcing his way to overtake the lorry. The act of forcing his way to overtake the lorry even without the high speed E constituted negligent driving. Since the accident involving the Range
Rover driven by the first appellant and the Isuzu lorry was thus obviously due to the negligent and careless driving of the first appellant, the question of applying the maxim res ipsa loquitur did not F arise as the Trial Judge indicated as being another reason establishing the first appellant's negligence. We intend therefore to dwell at length on this maxim and clarify its application. The learned Judge stated: `even if the defendant was not negligent in his driving, the plaintiff would still be entitled to damages for personal injuries sustained in the material accident on the concept of res ipso G loquitor' (sic). This statement was a contradiction in terms arising out of the confusion of the concept in this maxim and how and in what circumstances it should be applied. If there is no negligence, the maxim simply would not arise. The circumstances which give rise to the application of the maxim, constitute prima facie evidence of negligence against the defendant. We think we H cannot better the explanation of this maxim given by Professor Winfield in his book on Torts 13th ed at 125:
`In order to discharge the burden of proof placed upon him, it is usually necessary for the plaintiff to prove specific I acts or omissions
A on the part of the defendant which will qualify as negligent conduct. Sometimes, however the circumstances are such that the Court will be prepared to draw an inference of negligence against the defendant without hearing detailed evidence of what he did or did not do. Thus for example the presence of an unlighted vehicle on the road at B night will, if there is no other lighting, be regarded prima facie evidence of negligence on the part of the driver. It is important to appreciate however that this means no more than that in the absence of an explanation from the defendant, the plaintiff has discharged his burden of proof. The inference of negligence is by no means irresistible and the nature of the evidence required from the defendant in rebuttal will depend in each case on the standard of C care called for in the circumstances.
The position has, however, been complicated and obscured by the use in many cases of the maxim res ipsa loquitur. As Morris LJ has said, the maxim `possesses no magic qualities, nor has it any added virtue, other than D that of brevity, merely because it is expressed in Latin. When used on behalf of a plaintiff it is generally a short way of saying: `I submit that the facts and circumstances which I have proved establish a prima facie case against the defendant.' There are certain happenings that do not normally occur in the absence of negligence, and upon proof of these a court will probably hold that there is a case to answer. In other words the maxim does no more than express E in three words what has just been said.'
From this passage we discern one condition before this maxim can be applied to a particular F situation. That is that the mere fact of the accident having happened should tell its own story and raise the inference of negligence so as to establish a prima facie case against the defendant. The story should be clear and indicate only a prima facie case of negligence against the defendant. This concept is illustrated by the following two cases. In Scott v London and St Katherine Docks Co (1) six bags of sugar fell on the plaintiff whilst lawfully passing a doorway of defendant's warehouse. G Defendants called no evidence and Erle CJ stated:
`There must be sufficient evidence of negligence. But where the thing is shown to be under the management of the H defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from want of care.'
On this principle, the Chief Justice found that sufficient evidence of negligence existed in the case I before him. From the above passage
three conditions for the application of the maxim can be extracted. These are: A
(1) That the thing causing the damage be under the control of the defendant(s) or his servant(s).
(2) That the accident must be such as would not in the ordinary course of things have B happened without negligence.
(3) Absence of any explanation, by the defendant, in other words there must be no evidence of the actual cause of the accident. This is because if the facts are sufficiently known the question ceases to be whether they speak for themselves, the only question being whether on the facts as established negligence is to be inferred or not. C
The case going the other way is Barkway v South Wales Transport Co Ltd (2). In this case B was travelling as a passenger in the defendant's omnibus and was killed when it veered across the road D and fell over an embankment. A great deal of evidence was given by the defendants and it was established that the cause of the accident was a defect in one of the tyres which could have been discovered beforehand if the defendants had required their drivers to report occurrences which could result in what was described as `impact fractures'. The House of Lords held that as the cause of the E accident was known, res ipsa loquitur did not apply, but that on the facts the negligence of the defendants was established.
Like in the Barkway case (2), the cause of the accident in the present case is known ie the first appellant attempting to forcibly overtake a lorry when it was obviously not safe to do so. The maxim F res ipsa loquitur was therefore clearly not applicable.
The fourth and last reason used to establish the second defendant's liability was that the plaintiff was at the time of the accident acting within the scope of his employment. With respect, this also G confused issues. The vicarious liability of an employer in tort as we have already stated, is not governed by the relationship between the employer and the victim of the tort of negligence. Rather his liability is based on his relationship with the tort-feaser who must have at the time of the accident been acting within the scope of his employment. The relationship of the plaintiff to the second H defendant would have been relevant only if he had based his claim on the Workmen's Compensation Ordinance. On the facts of this case, there is no doubt that the first defendant or the present first appellant was at the time of the accident acting within the scope of his employment with the second appellant. In the circumstances the I
A vicarious liability of the second appellant was thus firmly established.
The other point which we want to deal with again purely for reasons of future guidance is the question of damages which were claimed and awarded in this case. We say for future guidance B because the question is not before us. We have felt compelled to make these observations because we strongly feel that the respondent in this appeal as was her plaintiff husband, did not get proper advice as regards their claim for damages, and at the end of the trial the Court did not face and C resolve this problem properly to the plaintiff's fullest advantage. In all the four plaints, only general damages amounting to Shs 600,00/= were claimed. We are at a loss to understand why Counsel on behalf of the plaintiff limited himself to this head of claim. We think this was very unfortunate. In an accident of such magnitude which resulted in such serious incapacitating injuries to the plaintiff, the D following reliefs in addition to the general damages should have been specifically claimed.
(a) damages for loss of future earnings
(b) damages for pain and suffering
E (c) damages for loss of expectation of life.
This we think could have done justice to the plaintiff or his estate. But as it turned out only a meagre Shs 600,000/= was claimed as general damages. The Trial Court automatically awarded this figure F acting as if its hands were tied to the figure asked for. The fact of the matter is that the Court was not tied to the figure of Shs 600,000/= which in any case should not have been pleaded. A plaintiff should only ask for general damages and leave the quantification to the Court. The Court determines how much damages are due be it in contract or tort, which so far as money can compensate, will G give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act. As Lord Dunedin stated in the case of Admiralty Commissioners v SS Susquehanna (3):
H `If the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question.' (read Court).
I Hence the fact that in the present case the plaintiff mentioned a specific figure did not take away the function of the Court to de-
termine and quantify the damage suffered. In the circumstances of this case where only one head of A claim was made, the Trial Court would have been perfectly entitled to ignore the figure claimed and award a much higher figure. During the hearing of the appeal, Mr Makange, Counsel for the respondent, invited us to assess afresh the general damages because according to him, this Court B is not tied to the amount claimed or that awarded by the High Court. This Court, he said, can award damages as it thinks fit. We agree with Mr Makange that we are not tied to the amount claimed or that awarded by the High Court, but we have to be moved to exercise this jurisdiction. We cannot do it in the absence of an appeal and since in this case there was no appeal against the C amount of general damages awarded, we cannot take up the matter on our own with a view to interfering or changing what was claimed or awarded.
Having digressed for so long in the hope that our digression will be of assistance in future cases, we D now turn to the appeal before us regarding the rate of interest which was awarded by the Trial Court. As indicated earlier on in this judgment, the Trial Judge awarded interest on the principal sum of 5% per month from the date of filing the suit to the date of full settlement. In their memorandum of E appeal, the appellants stated that the Trial Judge erred in law in awarding interest on the decretal amount at the rate of 5% per month beyond the date of delivery of judgment and that in any case awarding interest at the rate of 5% per month was clearly excessive and out of proportion. At the hearing of the appeal, Mr Maro, learned Counsel who appeared for the appellants, submitted that the F power of the Trial Court to award interest is provided in s 29 of the Civil Procedure Code and that interest on general damages cannot be awarded from the date of filing the suit but from the date of judgment. Interest from the date of filing the suit is only awarded on special damages. He added that G since general damages are not known until they are assessed by the Court, they are not owed until they are pronounced hence interest on them cannot be backdated. In this case, he submitted, where the award was only for general damages, the Trial Court could only award interest from the date of judgment and this at the Court rate only. H
On the second ground of appeal, Mr Maro submitted that the rate awarded of 5% per month was too high and that in any event the rate applicable after judgment is between 7% and 12% per annum. The rate awarded at 5% per month is equivalent to 60% per annum which is clearly exorbitant. I
In reply Mr Makange defined the rate of interest awarded saying
A that in awarding interest at this rate, the Trial Judge took into consideration the heavy responsibilities which have fallen on the respondent after the death of her husband and also the devaluation of the shilling. In the circumstances, he said, the interest rate at 5% per month is not B excessive to warrant intervention by this Court. In any case, he added, this was not the first time that a Court has awarded interest at the monthly rate.
As Mr Maro rightly pointed out, the statutory power to award interest on judgment debts is contained C in s 29 and O 20 r 21 of the Civil Procedure Code 1966. Section 29 provides as follows:
`Section 29 - The Chief Justice may make rules prescribing the rate of interest which shall be carried by judgment debts and, without prejudice to the power of the Court to order interest to be paid up to the date of judgment at such rates as it may deem reasonable, every judgment debt shall carry interest at the rate prescribed from the date of the D delivery of the judgment until the same shall be satisfied.'
Order 20 r 21 provides as follows:
`The rate of interest on every judgment debt from the date of delivery of the judgment until satisfaction shall be seven E per centum per annum or such other rate, not exceeding twelve per centum per annum as the parties may expressly agree in writing before or after the delivery of the judgment or as may be adjudged by consent.'
F The rate of interest prescribed under powers conferred on the Chief Justice by s 29 vide GN No 410/64 are the same as those prescribed under O 20 r 21 namely between the minimum of 7% and the maximum of 12% per annum from the date of the delivery of judgment until satisfaction. The rate G of interest to be awarded for the period prior to the delivery of judgment is set at the discretion of the Court. The rate which it considers reasonable. There are thus two divisions of interest under Tanzania Law as opposed to three under s 34 of the Indian Civil Procedure Code which ceased to apply in Tanzania in 1966. These two divisions correspond to the period for which interest is H awarded. The first period covers the whole of that period up to the delivery of judgment. The second period is the period from the delivery of judgment to final satisfaction. The rate to be awarded for the first period is entirely at the discretion of the Court, whereas the rate to be awarded for the second I period is also at the discretion of the Court but within set limits ie between 7% and 12% per annum. Although for the pur-
poses of fixing interest rates there are only two periods, the first period can be subdivided in two: A namely the period prior to the institution of the suit and the period between the filing of the suit till judgment. In the present case the learned Trial Judge awarded interest at the uniform rate of 5% per month from the date of filing the suit to the date of full and final payment. The Judge therefore B consolidated two distinct periods, the one before and after judgment. Could the Judge properly do this? This is the basis of the two complaints in the memorandum of appeal. The two periods as we have already indicated are governed by different methods of fixing the rates of interest. One in which C the Court has complete discretion, and the other where the Court's discretion is bound within a limited area. We do not think in the circumstances that the two periods could be consolidated and treated as one for the purpose of fixing interest rates. In Mohamed s/o Mohamed v Athman Shamte (4) the appellant obtained judgment against the respondent for Shs 1,000/= with interest therein D amounting to Shs 1,190/= to the date of filing proceedings and further interest on the principal sum at the rate of 6% per annum from the date of filing proceedings to the date of final payment. The plaintiff was not satisfied with the rate of interest awarded between the date of filing the suit and the date of judgment. He appealed to the High Court in which he complained among other things that the learned E resident magistrate erred in not allowing the rate of interest as agreed between the parties from the date of filing until judgment. At the hearing, Counsel for the appellant submitted that as the rate of interest under the loan agreement was 84% per annum, the appellant should be allowed interest at F this rate also for the period between the date of filing of the suit to the date of judgment the High Court held Mosdell J:
`Quite apart from legislative provisions on the subject, it is clear that this Court has an inherent power to reopen a G harsh and unconscionable bargain between two parties and in particular in relation to the rate of interest agreed to be paid on a loan. . . .
The rate prescribed from the date of delivery of judgment is 6% as laid down in the relevant Rules. But the interest H rate between the date of the filing of the suit and the date of judgment is left to the discretion of the Court. In the instant case the Resident Magistrate reached the conclusion that although a contractual rate of interest might be deemed reasonable by the Court, it was not bound to award such a rate of interest if it considered it harsh and I unconscionable. . . .
A The discretion of the Court is not displaced by an agreement to pay a certain rate of interest. The Court may or may not award the contractual rate of interest between the date of the institution of the suit and judgment in the exercise of its discretion. Whether it does so or not depends upon whether or not such rate is reasonable.'
B Although the Athman Shamte case as well as J S Joban Putra v G M Jaffer (5) and Hooda v G M Gulamali (6) were concerned with contractual rates of interest, unlike the present case where the principal judgment debt is in the nature of general damages in tort, nevertheless they underline the C principle governing the award of rates of interest for different periods and the discretionary nature of the award for the period prior to the delivery of judgment. In the two revision cases, a rate of interest at 21/2% per month was awarded but this as indicted was in contract and for periods in which the D Court had discretion as to what rate to award ie the period before judgment.
The case which is almost on all fours with the present case and therefore directly relevant is Prem E Lata v Peter Musa Mbuju (7) which was an appeal from the High Court of Kenya. In that case the appellant in a suit for damages for personal injuries was awarded Shs 24,000/= as general damages and Shs 1,742/80 as special damages but the Trial Judge refused an application to award interest on F these two sums from the date of filing suit until judgment. The Court held that in personal injuries 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 suit. The Court (Law JA) stated at 593 (C-H):
G `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 Court's discretion, by s 26 (equivalent to our s 29 supra) of the Civil Procedure Act. Such a discretion must of course be judicially exercised, and where as in this case no reasons are given for the H exercise of a judicial discretion in a particular manner, it will be assumed that the discretion has been correctly exercised, unless the contrary be shown. (Toprani v Patel [1958] EA 346.) In an attempt to satisfy us that the normal practice is to award interest on the amount of a money judgment from the date of filing suit, Counsel for the appellants referred us to Eastern Radio Service v R J Patel1962 EA 818 and Y F Gulan Hussein v French I Somaliland Shipping Co Ltd
[1959] EA 25. In both these cases the successful party was deprived of the use of goods or money by reason of a A wrongful act on the part of the defendant, and in such a case it is clearly right that the party who has been deprived of the use of goods or money to which he is entitled should be compensated for such deprivation by the award of interest. But suits for damages for personal injuries are in a different category. It cannot be said that, at the date of B filing suit, the plaintiff is entitled to any particular amount. This depends on the decision of a number of factors, including liability contributory negligence, and the assessment of damages which may include as in this case, a considerable element in respect of future disability. In these circumstances, we do not consider that the Chief Justice wrongly exercised his discretion in refusing to award interest from the date of filing suit in respect of the C general damages, as the infant plaintiff cannot have been deprived of the money represented by these damages from any particular date before judgment. Counsel for the respondent does not however, oppose an order for the payment of interest on the special damages awarded to the next friend as these represent out of pocket expenses actually paid or incurred at the date of filing suit. We agree.' D
In the present case where no special damages were pleaded and awarded, the Trial Judge overlooked every principle enunciated in the Prem Lata case quoted above as well the provisions of E O 20 r 21 of the Civil Procedure Code when she awarded interest at the rate of 5% per month from the date of filing the suit to the date of satisfaction of the decree. Since the award was only for general damages, no interest could be awarded for the period prior to the delivery of judgment F because before delivery of the judgment which awarded general damages, the plaintiff was not entitled to any particular amount which could attract interest. Interest on general damages is only due after the delivery of judgment because then the principal amount due is known. The Court has a G discretion to award interest for the period before the delivery of judgment only on special damages actually expended or incurred, but even this at such rate as the Court thinks reasonable. This discretion does not extend to the period after the delivery of judgment. The rate of interest to be awarded during the period after the judgment is delivered is governed by the provisions of O 20 r 21 H of the Civil Procedure Code which is limited between the minimum of seven per centum per annum and the maximum of twelve per centum per annum. The Trial Judge awarded a rate of interest at 60% per annum. Even for the period prior to the delivery of judgment for which the Court has unlimited discretion subject to reasonableness, the award of interest at that rate cannot be any description or yardstick be re- I
A garded as reasonable. It is twice the normal bank rate. Even if we were to agree with Mr Makange that in fixing the interest at this rate, the Trial Judge took into account the responsibilities which fell on the respondent upon the death of her husband as well as the devaluation of the shilling, this rate B would still appear unreasonable. But these two considerations have one main objection, that they are irrelevant when considering the rate of interest to be awarded. They could be relevant in assessing the amount of damages and then only if the claim was made vide the provisions of Law Reform (Fatal Accidents Miscellaneous Provisions) Ordinance cap 360. Then, the responsibilities of the C widow or other dependants would feature prominently. But this was a case of the legal representative stepping into the shoes of the plaintiff in a claim for personal injuries. With regard to the devaluation of the shilling, this Court in National Bank of Commerce v Parma Shoe Company (8) approved the D principle. In that case the High Court awarded Shs 50,000/= as compensation for the depreciation in value of the sum claimed ie Shs 34,500/=. The present appeal is however different, it is concerned with the rate of interest to be awarded on the principal sum. This as it has been shown is governed by statute. The depreciation in value of the principal sum is a separate and unrelated issue. E Therefore both the considerations advanced by Mr Makange to support the 5% per month interest rate are irrelevant.
For the reasons we have given, we uphold the appeal against the rate of interest awarded by the Trial Court and say that the Trial Judge was wrong to grant interest on general damages from the date of F filing the suit, that the Trial Judge was wrong to award interest at the rate of 5% per month beyond the date of delivery of judgment and that such rate in any case was too high and out of proportion. We accordingly set aside the interest awarded at 5% per month from the date of filing the suit to full payment. We order instead that the principal sum of Shs 600,000/= awarded as general damages, G shall carry interest at the rate of 12% per annum from the date of judgment to the date of full payment.
With regard to the costs of this appeal, we are aware that ordinarily the costs must follow the event, H but in this case we have taken into account the fact that due to the errors of her advocates in the High Court the respondent has been grossly underpaid, her new responsibilities in the family and the fact that she was saddled with this appeal purely on account of the Trial Court's errors in law. We I think for these reasons that she should not be burdened further with extra costs.
A
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