[2018] KEHC 1730 (KLR)
The court found that the trial magistrate properly applied the law in assessing damages. The awards under both the Law Reform Act and the Fatal Accidents Act were within reasonable limits, considering the deceased's age, occupation, and net income. The multiplier of 28 was justified, as it took into account the...
Source-derived case information.
- Citation
- [2018] KEHC 1730 (KLR)
- Parties
- Appellant: Mombasa Maize Millers Limited; Respondent: George Sylvester J. Khasiani (suing as representative of the estate of Oscar Angolio Khasiani, deceased); Respondent: Western Cross Express Co. Limited
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 76 of 2016
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DN Musyoka
- Legal Topics
- Fatal Accidents Act, Law Reform Act, Assessment of Damages, Loss of Dependency, Pain and Suffering, Multiplicand and Multiplier
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mombasa Maize Millers Limited
Appellant
George Sylvester J. Khasiani (suing as representative of the estate of Oscar Angolio Khasiani, deceased)
Respondent
Western Cross Express Co. Limited
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the general damages awarded by the trial court were excessive in the circumstances.
- 2 Whether the trial court properly applied the principles for assessment of damages under the Law Reform Act and the Fatal Accidents Act.
Ratio Decidendi
The court found that the trial magistrate properly applied the law in assessing damages. The awards under both the Law Reform Act and the Fatal Accidents Act were within reasonable limits, considering the deceased's age, occupation, and net income. The multiplier of 28 was justified, as it took into account the deceased's age at death (27), the retirement age (60), and possible life uncertainties. The dependency ratio of 1/3 was appropriate for a young, unmarried man whose dependents were his mother and adult siblings. The court found no basis to interfere with the trial court's discretion in awarding damages, noting that the amounts were not excessive and, if anything, the awards under...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The respondent shall have the costs of the appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL APPEAL NO. 76 OF 2016
BETWEEN
MOMBASA MAIZE MILLERS LIMITED.................................APPELLANT
VERSUS
GEORGE SYLVESTER J. KHASIANI(suing as representative
of the estate of OSCAR ANGOLIO KHASIANI, deceased).....1ST RESPONDENT
WESTERN CROSS EXPRESS CO. LIMITED................2ND RESPONDENT
(Being an appeal arising from the judgment and decree of the Hon. S. Wahome Senior Principal Magistrate (SPM) in Kakamega CMCCC No. 218 of 2016 of 27th July 2016)
JUDGMENT
1. The appeal herein turns only on the question of general damages, the parties having resolved the issues of liability and special damages by consent.
2. The trial court awarded under the Law Reform Act, Cap 26 Laws of Kenya, Kshs 50, 000. 00 for pain and suffering after holding that the deceased had died instantly in the absence of any other evidence, and Kshs 100, 000. 00 for loss of expectation of life. Under the Fatal Accidents Act Cap 32, Laws of Kenya, the court awarded Kshs 4, 642, 097. 60 for loss of dependency. It arrived at that figure having established that the deceased net pay was Kshs 41, 447. 30, and adopted that as the multiplicand applicable. The deceased died at 27 years of age and was a procurement officer at Masinde Muliro University. The court adopted a multiplier of 28 after taking into account the retirement age of 60 years. At age 27 the deceased still had 33 years to go before retirement at 60. 33 would have been an ideal multiplier but the court reduced it to 28 to take care of any imponderables such as sickness, acts of God, terrorism, among others which could one way or the other have terminated the employment before he turned 60. The court picked a dependency ratio of 1/3.
3. The appeal generally raises the point that the awards made were on the higher side. I have considered the authorities placed before me by the parties. I am of the persuasion that the awards made, under both the Law Reform Act and the Fatal Accidents Act, fell within the range of what is reasonable in the circumstances. Indeed, it is my view that the awards under the Law Reform Act are on the lower side taking into account the depreciation of the shilling over the years. I see nothing to fault with regard to the award under the Fatal Accidents Act. The multiplicand adopted by the court was founded on the net income of the deceased from his employment with the Masinde Muliro University. The multiplier took into account his age, the date he would have retired and the imponderables. The dependency ratio of 1/3 was just right for a young unmarried man, it was just his mother and siblings who were dependent on him. Indeed, all the siblings were adults.
4. I shall accordingly disallow the appeal. The appeal shall accordingly be dismissed. The respondent shall have the costs thereof. Should any party be dissatisfied with the outcome of these proceedings, there is a right to appeal against the same at the Court of Appeal within twenty-eight (28) days.
DATED, SIGNED and DELIVERED at KAKAMEGA this 3RD DAY OF DECEMBER , 2018
W. MUSYOKA
JUDGE