[2017] KEHC 2910 (KLR)
The High Court found that the trial magistrate misdirected herself in concluding that dependency was not proved. The court held that the mother of the deceased, as a statutory dependant, sufficiently established dependency through her testimony that she relied on the deceased for support, including payment of school...
Source-derived case information.
- Citation
- [2017] KEHC 2910 (KLR)
- Parties
- Appellant: Dorine Pamela Adhiambo Yimbo (Suing as the legal representative in the estate of Vincent Owino Yimbo, Deceased); Respondent: Richard Ommusi Ochola
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 81 of 2015
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Judgment of the lower court set aside to the extent that damages under the Fatal Accidents Act are awarded to the appellant.
- Judges
- EM Muchoki
- Legal Topics
- Fatal Accidents Act, Law Reform Act, Dependency Claims, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorine Pamela Adhiambo Yimbo (Suing as the legal representative in the estate of Vincent Owino Yimbo, Deceased)
Appellant
Richard Ommusi Ochola
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in law and fact by not awarding damages under the head of dependency.
- 2 Whether dependency was proved on a balance of probabilities by the appellant.
- 3 Whether documentary evidence is mandatory to prove profession and earnings in fatal accident claims.
Ratio Decidendi
The High Court found that the trial magistrate misdirected herself in concluding that dependency was not proved. The court held that the mother of the deceased, as a statutory dependant, sufficiently established dependency through her testimony that she relied on the deceased for support, including payment of school fees for her last born. The court emphasized that the absence of documentary evidence regarding the deceased's profession or the particulars of the last born did not negate the existence of dependency, especially since the claim was for the mother’s benefit. The court further held that, in the absence of proof of actual earnings, the minimum wage should be applied, and a...
Court Disposition
Appeal allowed. Judgment of the lower court set aside to the extent that damages under the Fatal Accidents Act are awarded to the appellant.
Orders
- Damages under the Fatal Accidents Act awarded to the appellant in the sum of KES 1,134,590.20.
- Damages awarded under the Law Reform Act to stand as previously awarded.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
HCCA NO. 81 OF 2015
DORINE PAMELA ADHIAMBO YIMBO(Suing as the legal representative
in the estate ofVINCENT OWINO YIMBO (DECEASED)..........APPELLANT
VERSUS
RICHARD OMMUSI OCHOLA...................................................RESPONDENT
[Being an appeal from the judgement of the Resident Magistrate Hon. A. Odawo in Kisumu CMCCC No. 474 of 2014 delivered on the 19th August 2015]
JUDGMENT
The appellant, suing as the legal representative of Vincent Owino Yimbo, sought damages against the respondents under the Law Reform Act and the Fatal Accidents Act. At paragraph 6 of the plaint he averred that the action was brought on behalf of the mother of the deceased one Dorine Pamela Yimbo aged 50 years. He also sought specials damages of Kshs.42,150/=. The case proceeded by way of formal proof as the respondent though served did not enter appearance. The trial magistrate in the end declined to award damages under the Fatal Accidents Act and hence this appeal. The appellant has raised the following grounds of appeal-
1. “The learned magistrate erred in law and in fact by not awarding the appellant any damages under the head of dependancy against the weight of evidence given at the trial
2. The learned magistrate erred in law and fact in assessing damages which is at variance with the pleadings and against the weight of evidence
3. The magistrate erred by failing to appreciate the degree, extent and long term effect of the appellants loss and thereby failing to award damages under the head of dependency.”
In her judgment the learned trial magistrate while appreciating that documentary evidence is not the only means to prove a profession found that dependancy was not proved as the mother of the deceased did not give the name of her last born that the deceased allegedly used to pay school fees for, the institution the child went to or the level thereof nor the amount of fees.
It is trite that an appellate court cannot interfere with the magistrate’s findings of fact unless she was plainly wrong. Authorities on this abound but see Kiruga V Kiruga & Another [1988] KLR348. Having reviewed the evidence I am persuaded that the learned trial magistrate misdirected herself in arriving at the conclusion that dependency was not proved. Damages under the Fatal Accidents Act are awarded for the benefit of a mother, father, spouse and children. By stating that as a result of deceased’s death she could no longer pay fees for her last born the mother of the deceased was in my view stating that she depended on the deceased to help her and she had lost that dependency. Since the damages were not claimed for the benefit of the said last born but for her own benefit she needed not in my considered opinion to give his name, school and fees. That she was the mother of the deceased and that he used to assist her to among other things educate his siblings was not in any case controverted. Dependency was proved on a balance of probabilities and the trial magistrate clearly acted on a wrong principle of law in failing to award damages under the Fatal Accidents Act.
The trial magistrate rightly concluded that documentary evidence is not the only means of proving a profession. In Jacob Ayiga & Another V Simeon Obayo [2005]e KLR the judges of appeal expressed themselves thus-
“we do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things….”
Where earnings cannot be proved the courts resort to the minimum wage which at the time counsel submitted was Kshs 9780. 95. The certificate of death showed the deceased was 29 years and therefore had 31 years to retirement. As submitted by Counsel a multiplier of 25 years is reasonable. However as he was not married I would apply a ratio of one third 9780/95x29x12x1/3 = 1,134,590/20 which I award to the plaintiff in addition to the damages awarded under the Law Reform Act. The same shall attract interest at court rates from the date of the judgment in the court below. He shall also get the costs of this appeal. It is so ordered.
Signed, dated and delivered at Kisumu this 12th day of October 2017
E. N. MAINA
JUDGE
In the presence of:-
Mr. Ragot for the Appellant
N/A for the Respondent
Serah Sidera – Court Assistant