Kenya Breweries Ltd v Saro [1991] KECA 12 (KLR)
The bottom line
#Kenyan parents can claim compensation when a child of any age dies, even without proof the child earned money.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a father was entitled to claim damages under the Fatal Accidents Act (cap 32) for the death of his six year old child in the absence of evidence of pecuniary contribution by the deceased
- 2.Whether the award of Shs 100,000 by the High Court was so excessive as to warrant interference by the Court of Appeal
Key legal issues
#Entitlement to damages under the Fatal Accidents Act for the death of a young child
Damages are payable to parents of a deceased child irrespective of age and irrespective of evidence of pecuniary contribution.
Relying on this Court's earlier decision in Sheikh Mushaq v Nathan Mwangi Kamau Transporters, the Court held that the established customs of African and Asian communities in Kenya, under which children are expected to care for their parents in adulthood, mean the presence of a child of any age is a valuable asset. High Court authorities awarding damages for very young deceased children supported this conclusion. The age of the child is relevant to quantum, not to entitlement.
Principles governing appellate interference with an award of general damages
The Court of Appeal interferes only where wrong principles were applied or where the award is so inordinately high or low that a wrong application of principles must be inferred.
The Court applied the well-established restraint principle, noting that apart from the child's age the appellant showed no factor rendering the assessment wrong. Comparisons with earlier awards (Shs 8,000 in 1974; Shs 70,000 in 1982) showed the 1990 award of Shs 100,000 was not inordinately high, especially taking depreciation in the value of money into account. The Court would have awarded slightly less, but that alone did not justify interference.
Legal principles established
#- Some damages are payable to parents for the death of a child of any age, without proof of pecuniary contribution, because in Kenyan society the mere presence of a child in a family is a valuable asset.
- The Court of Appeal will only interfere with a trial judge's assessment of damages where wrong principles were applied or the award is so inordinately high or low that a wrong application of principles must be inferred.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCCC No 602 of 1987
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Fatal Accidents Act (cap 32) claim (as conferred by the Judicature Act/appellate framework; no specific article cited in the judgment)
Relief refused
#Setting aside of the respondent's entitlement to damages under the Fatal Accidents Act (ground one)
Damages are payable to parents of a deceased child irrespective of the child's age or proof of pecuniary contribution
Reduction of the award of Shs 100,000 as excessive (ground two)
The award could not be said to be so inordinately high that an application of wrong principles must be inferred
Costs
Appeal dismissed with costs (costs to the respondent)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The issue of some damages being payable is no longer an open question in Kenya. This is because in the Kenyan Society, at least as regards Africans and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parents are proud of and are entitled to keep intact.
It is now well established that the Court of Appeal can only interfere with a trial judge’s assessment of damages where it is shown that the judge has applied wrong principles or where the damages awarded are so inordinately high or low that an application of wrong principles must be inferred.
In our view this appeal must wholly fail and we order it dismissed with costs.
Issues in the judgment
#The headnote lists 'Hassan v Nathan Mwangi Kamau Transporters' among cases while the judgment body quotes 'Sheikh Mushaq v Nathan Mwangi Kamau Transporters & Five others [1985-1986] 4KCA 217'; the relationship between the two citations is not clarified in the judgment.
The judgment states inconsistent years for the award in Abdullahi v Githinye, first describing it as awarded in 1974 and later as 1984.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Breweries Ltd v Saro [1991] KECA 12 (KLR)", Case Analysis (1991). Civil Appeal No 144 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1991/12/eng@1991-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.