[1996] KECA 71 (KLR)
The Court of Appeal held that the trial judge did not err in adopting a multiplicand of KES 10,000 per month for loss of dependency, as the widow's evidence regarding the deceased's monthly remittances was unchallenged and credible. The court further found that the multiplier of 12 years was reasonable given the...
Source-derived case information.
- Citation
- [1996] KECA 71 (KLR)
- Parties
- Appellant: Joseph Kimani Mwega; Respondent: Selina F. Okune (suing as personal representative of the estate of Philemon Muga Okune)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 150 of 1995
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Assessment of Damages, Loss of Dependency, Fatal Accidents, Multiplicand and Multiplier, Appellate Review, Evidence of Income
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kimani Mwega
Appellant
Selina F. Okune (suing as personal representative of the estate of Philemon Muga Okune)
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial judge erred in assessing the multiplicand for loss of dependency without sufficient proof of the deceased's income.
- 2 Whether the multiplier of 12 years used by the trial judge was excessive in the circumstances.
- 3 Whether the appellate court should interfere with the trial judge's assessment of damages.
Ratio Decidendi
The Court of Appeal held that the trial judge did not err in adopting a multiplicand of KES 10,000 per month for loss of dependency, as the widow's evidence regarding the deceased's monthly remittances was unchallenged and credible. The court further found that the multiplier of 12 years was reasonable given the deceased's age of 48 and his status as a businessman likely to work until 60. The appellate court reiterated that its role is not to substitute its own assessment for that of the trial judge unless there is a clear error of principle, which was not demonstrated in this case. Consequently, the appeal lacked merit and was dismissed with costs to the respondent.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAKURU
Civil Appeal 150 of 1995
JOSEPH KIMANI MWEGA....................……….....................................................APPELLANT
AND
SELINA F. OKUNE (SUING AS PERSONALREPRESENTATIVE OF THE ESTATE OF
PHILEMON MUGA OKUNE...............……......................................................RESPONDENT
(Appeal from the judgment and decree of the High Court of Kenya at Nakuru (Mr. Justice D.M. Rimita) dated 8th December, 1993
IN
NAKURU HCCC NO. 344 OF 1992)
*******************************
JUDGMENT OF THE COURT
The principles on which this Court would interfere with the trial judge's assessment of damages are now well settled. The court will only do so where it is shown that the Judge has taken into account an irrelevant factor or has failed to take into account a relevant factor or short of these, that the damages awarded are so inordinately low or high that an error of principle must be assumed. We do not think the learned trial Judge committed any of these errors. Mr. Maraga for the appellant says that the Judge ought not to have used a multiplicand of Shs.10,000/= per month on the basis that there was no proof of the deceased's income. We do not think that is right. The widow of the deceased gave evidence that the deceased used to send to her between Shs.3000/= and Shs.4000/= per month. She was cross examined on that point but no evidence was called by the appellant to contradict her. We are not satisfied that the cross-examination of Mr. Maraga so much discredited her evidence on this point that she could not be believed. Again there was evidence that the deceased was living with and educating their five children in Nairobi. It cannot be said that he had no income to enable him do so. The learned judge believed her evidence and in these circumstances we are not convinced that the Shs.10,000 per months used by the trial Judge was based on no evidence. Perhaps if we, or any of us, were sitting in the High Court we might have used a slightly lower figure but that is not the basis upon which the court interferes. Nor do we find any substance in the complaint that the multiplier of 12 years used by the judge was excessive. The deceased was, if we may put it so, some kind of a businessman. He was 48 years old at the time of his death. The learned judge thought he might have worked at his job, whatever it was, until he attained the age of sixty. There is nothing unreasonable in that it would not be right for us to interfere. In our view, there is no merit in the appeal and that being the stand which commends itself to us, we order that this appeal be and is hereby dismissed with costs.
Dated and delivered at Nakuru this 24th day of September, 1996.
J.E. GICHERU
.............................
JUDGE OF APPEAL
R.S.C. OMOLO
........................
JUDGE OF APPEAL
A.A. LAKHA
..........................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR