[2018] KEHC 1741 (KLR)
The court found that the trial magistrate correctly applied the law and relevant principles in assessing damages. The awards for pain and suffering and loss of expectation of life under the Law Reform Act were within reasonable limits, and arguably on the lower side considering currency depreciation. The calculation...
Source-derived case information.
- Citation
- [2018] KEHC 1741 (KLR)
- Parties
- Appellant: Mombasa Maize Millers Limited; Respondent: Jennifer Linda Mutsiambo (suing as representative of the estate of Festo Allan Mwashi, deceased); Respondent: Western Cross Express Co. Limited
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 77 of 2016
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DN Musyoka
- Legal Topics
- Assessment of Damages, Fatal Accidents Act, Law Reform Act, 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
Jennifer Linda Mutsiambo (suing as representative of the estate of Festo Allan Mwashi, 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 under the Law Reform Act and Fatal Accidents Act were excessive or reasonable.
- 2 Whether the trial court applied the correct principles in assessing the multiplicand, multiplier, and dependency ratio for loss of dependency.
Ratio Decidendi
The court found that the trial magistrate correctly applied the law and relevant principles in assessing damages. The awards for pain and suffering and loss of expectation of life under the Law Reform Act were within reasonable limits, and arguably on the lower side considering currency depreciation. The calculation of loss of dependency under the Fatal Accidents Act was based on the deceased's proven net income, an appropriate multiplier of 30 years (considering retirement age and life uncertainties), and a dependency ratio of 1/3, which was suitable for a young unmarried man supporting his mother and siblings. The appellate court held that there was no basis to interfere with the trial...
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. 77 OF 2016
BETWEEN
MOMBASA MAIZE MILLERS LIMITED.....................................APPELLANT
VERSUS
JENNIFER LINDA MUTSIAMBO(suing as representative of the estate of FESTO
ALLAN MWASHI, 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. 216 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. 3, 642, 840. 65 for loss of dependency. It arrived at that figure after it was established that the deceased net pay was Kshs 30, 857. 00, and adopted that as the multiplicand applicable. The deceased died at 23 years of age and was a military serviceman. The court adopted a multiplier of 30 after taking into account the retirement age in the Kenya Defense Forces was 60 years. At age 23 the deceased still had 37 years to go before retirement at 60. 37 would have been an ideal multiplier but the court reduced it to 30 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 in the armed forces. 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.
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 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