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Court of AppealDismissedCivil Appeal (HCCC No. 2381 of 1979 and HCCC No. 2382 of 1979 consolidated)

Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR)

Court of Appeal of Kenya
27 February 1985
AKA.A. KnellerJNJ.O. NyarangiZCZ.R. Chesoni
5,624 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a Law Reform Act award must be considered, but not automatically subtracted, when calculating fatal accident compensation.

What this practically means

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Executive summary

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This consolidated appeal arose from a 1978 road traffic collision at Kiganjo in which Myra Minayo died and her husband Lubia and daughter Olive were injured, when the vehicle driven by Kanini, Kemfro's servant, collided with the family Peugeot. Liability was admitted by consent before Cockar J, who consolidated Civil Suits 2381 and 2382 of 1979; only quantum went to trial. Cockar J awarded, under the Law Reform Act, nil for pain and suffering and Kshs 25,000 for loss of expectation of life to Myra's estate, and Kshs 150,000 to Lubia plus Kshs 10,000 to the children under the Fatal Accidents Act, and in the second suit Kshs 150,000 to Olive and Kshs 17,000 to Lubia. Kemfro and Kanini appealed, contending the Kshs 25,000 should be arithmetically deducted from Lubia's award and that Olive's award was manifestly excessive. Olive's cross-appeal was withdrawn. The Court of Appeal (Kneller, Nyarangi and Chesoni Ag JJAA) unanimously dismissed both appeals. It held the trial judge took the Law Reform Act award into account; deduction need not be arithmetical; the burden lay on the appellants to prove the pecuniary gain, including proof of the relevant Luhya customary law of intestate succession, which they failed to discharge; and section 2(5) of the Law Reform Act preserves the right to sue under both statutes for the same death. Olive's award was not out of step with comparable awards, her case being distinguishable from Bundi Malube. The appeals were dismissed with costs, and the appellants received the costs of the withdrawn cross-appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the award of Kshs 25,000 under the Law Reform Act should be arithmetically deducted from the award of Kshs 150,000 under the Fatal Accidents Act in Civil Suit 2381 of 1979
  2. 2.Whether the award of Kshs 150,000 to Olive in Civil Suit 2382 of 1979 was manifestly excessive so as to warrant interference by the Court

Key legal issues

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01

Whether the Law Reform Act award must be arithmetically deducted from the Fatal Accidents Act award

Holding

No. The award under the Law Reform Act must be taken into account but need not be arithmetically deducted; the English rule of deduction need not apply mechanically in Kenya.

Reasoning

The court noted the two Kenyan statutes mirror the English ones, so English decisions may help, but declined to follow them rigidly. The trial judge had expressly directed himself to avoid overlapping damages, and his award under the Fatal Accidents Act was not manifestly excessive even without deduction. Customary law on intestate inheritance had to be proved as a fact and was not proved. The better view, per Chesoni Ag JA, is that 'taken into account' is not the same as 'deducted'.

p. 8
02

Who bears the burden of proving pecuniary gain to dependants from the estate

Holding

The party alleging the accruing pecuniary benefit (here the appellants) bears that burden and failed to discharge it.

Reasoning

Although Mr Barasa argued that under Luhya customary law the widower inherited the whole estate, customary law must be proved as a fact and no evidence of the relevant Luhya customary law was adduced. The appellants also had to prove that the same person entitled to the estate was among the dependants, which they did not do.

p. 8
03

Whether the Kshs 150,000 award to Olive for loss of her eye was manifestly excessive

Holding

No. Each award is made on its own facts; Olive's case, involving a young girl with a disfiguring glass eye, was distinguishable from Bundi's, and comparable awards supported the sum.

Reasoning

The court considered Bundi Malube (Kshs 30,000 for a boy losing an eye) and Mohamed Juma (Kshs 70,000 for a man), but held Olive's case was distinguishable: she was a girl whose matrimonial prospects and appearance were affected, and there was risk of total blindness. Comparable English and Ugandan awards, as helpful indicators, ranged up to Kshs 223,500. The award was neither inordinately high nor based on a wrong principle.

p. 6
04

Whether courts can abolish loss of expectation of life awards or deduction practice absent legislative change

Holding

No. It is for Parliament, not the court, to change the law, and Kenya's Law Reform Commission has made no such recommendation.

Reasoning

The English Law Commission proposed abolishing loss of expectation of life awards and the deduction of estate benefits, but Kenyan institutions have made no comparable recommendation and Parliament has not changed the law, so the court would not depart from the established principle.

p. 4

Legal principles established

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  • An appellate court will not disturb quantum of damages unless the trial judge took into account an irrelevant factor, left out a relevant one, or the award is so inordinately low or high as to be a wholly erroneous estimate of the damage
  • A pecuniary gain accruing to a dependant from the same death (including benefits from a Law Reform Act award) is to be taken into account when assessing damages under the Fatal Accidents Act
  • There is no requirement in law for the trial judge to engage in a mathematical deduction of the Law Reform Act award from the Fatal Accidents Act award; it is enough that the award be taken into account
  • The party seeking to set off a pecuniary benefit against a dependant's loss bears the burden of proving that the benefit accrued or will accrue to the dependants as a result of the death
  • Section 2(5) of the Law Reform Act means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death

Court orders

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  1. 1.The appeals in HCCC No. 2381 of 1979 and HCCC No. 2382 of 1979 are dismissed with costs
  2. 2.The appellants (Kemfro and Kanini) have the costs of the cross-appeal by Olive, which was withdrawn

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority

Wrote the judgment

Wrote the leading judgment. Held that an award under the Law Reform Act must be taken into account, though not necessarily arithmetically deducted, when assessing damages under the Fatal Accidents Act, and that the Kshs 150,000 award to Olive was not manifestly excessive. Proposed dismissal of both appeals with costs.

Thus, I would dismiss the appeal from the award in Civil Suit 2381 of 1979.p. 5
JN
concurring

Wrote the judgment

Agreed both appeals should be dismissed. Held the trial judge's direction to avoid overlap and double compensation was correct, and that Olive's case was clearly distinguishable from Bundi's, so the award should not be disturbed.

The appeal from the award in HCCC 2381 of 1979 is without merit and should be dismissed.p. 6
ZC
concurring

Wrote the judgment

Wrote separately, giving the fullest analysis of the deduction question. Held that only the persons entitled to the estate need be the same as the dependants for deduction, that the burden of proving the accruing pecuniary benefit lies on the party alleging it, and that the trial judge need only 'take into account' the Law Reform Act award, not make a mathematical deduction. Found the award to Olive not manifestly excessive.

The burden of proof lies on the party alleging the accruing of pecuniary benefits to the dependants which he / she seeks to be set against the dependants’ loss to prove that the pecuniary benefit was accrued or will accrue to the dependants as a result of the death.p. 8
On appeal from
High Court of Kenya at Nairobi
Civil Suit 2381 of 1979 and Civil Suit 2382 of 1979
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeals filed October 10, 1983); appeals on quantum only
Consolidated with
Civil Suit 2381 of 1979, Civil Suit 2382 of 1979

Relief refused

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Reduction of the Civil Suit 2381 award by Kshs 25,000 (the Law Reform Act award)

The trial judge took the Law Reform Act award into account; no arithmetical deduction is required in law

p. 8

Setting aside and fresh assessment of the Kshs 150,000 award to Olive

The award was not manifestly excessive nor based on a wrong principle

p. 9

Costs

The appeals in both HCCC No 2381 and 2382 of 1979 are dismissed with costs; the appellants have the costs of the withdrawn cross-appeal by Olive

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Thus, I would dismiss the appeal from the award in Civil Suit 2381 of 1979.
p. 5Disposition - first appeal dismissed
I would, therefore, dismiss the appeal in Civil Suit 2382 of 1979.
p. 6Disposition - second appeal dismissed
I propose that this appeal be dismissed with costs and that Kemfro and Kanini should have the costs of the cross-appeal by Olive. Nyarangi JA and Chesoni Ag JA agree so those are the orders of the court.
p. 6Final orders and costs
To be taken into account and to be deducted are two different things.
p. 8Relationship between Law Reform Act and Fatal Accidents Act awards
In my view what section 2(5)of the Law Reform Act means is that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death.
p. 8Interpretation of section 2(5) of the Law Reform Act
it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage
p. 3Principles for appellate interference with quantum
The burden of proof lies on the party alleging the accruing of pecuniary benefits to the dependants which he / she seeks to be set against the dependants’ loss to prove that the pecuniary benefit was accrued or will accrue to the dependants as a result of the death.
p. 8Burden of proof on set-off of estate benefits
It is not for this court to lay down what sum should be awarded in all cases for this loss or what should be the minimum and the maximum award.
p. 7Judicial restraint in tariff-setting for damages

Issues in the judgment

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minor

The appellants' name for the Bundi case is spelled inconsistently across the judgment (Bundi Malube, Bundi Marube, Bundi Makube), apparently referring to the same appeal

minor

The judgment records the appeal as filed October 10, 1983, while Olive's cross-appeal is recorded as filed August 24, 1982, an earlier date than the appeals themselves

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR)", Case Analysis (1985). Civil Appeal (HCCC No. 2381 of 1979 and HCCC No. 2382 of 1979 consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/137/eng@1985-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.