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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 165 of 1993

Allan Njuguna T/A Mwireri Mbao Stores" v 1. Veronica Nyambura Karuga 2. Jane Wanjiru Karuga 3. Grace Wanjiru Karuga

Court of Appeal of Kenya
14 February 1997
1,866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal cut a fatal accident award because it was based on false tax records, ruling courts cannot reward undeclared income.

What this practically means

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Executive summary

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The Court of Appeal (Omolo, Akiwumi and Shah, JJ.A.) allowed in part a first appeal confined to the quantum of general damages under the Fatal Accidents Act. The deceased, John Karuga Kamau, was fatally knocked down by the appellant's matatu in September 1990; liability was entered by consent and the matter proceeded to assessment before Mbogholi-Msagha J, who adopted the deceased's net earnings of Kshs.856,390.20 for 1989 as the multiplicand, as shown in yearly accounts prepared by the deceased's accountant, Mr Waswa. On appeal, the court found that Mr Waswa had admitted preparing income tax returns that did not reflect the true income, an offence under section 110(1) of the Income Tax Act, rendering the accounts-based evidence discredited. The court held it unacceptable for a court to be party to an unlawful act by benefiting a wrongdoer or those claiming through him, and rejected the trial judge's reasoning based on the deceased's loans and income trend. Reaffirming the test for interfering with discretionary awards, the court found the trial judge had ignored the tainted nature of the evidence, producing an inordinately high award. It adopted a multiplicand of Kshs.100,000.00 per year, a two-thirds dependency ratio, and the unchallenged multiplier of 15 years, reducing general damages under the Fatal Accidents Act to Kshs.1,000,000.00 with interest from the date of the superior court judgment. Awards under the Law Reform Act and special damages were left undisturbed, and the appellant received three quarters of his costs.

Key legal issues

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01

Reliance on tainted evidence of earnings for the multiplicand

Holding

The trial judge erred in adopting the deceased's earnings as shown in accounts prepared by an accountant who admitted preparing false income tax returns; the court instead adopted a reasonable multiplicand of Kshs.100,000.00 per year

Reasoning

The accountant admitted preparing returns that did not reflect true income, an offence under section 110(1) of the Income Tax Act. The court held that a court cannot be party to an unlawful act by benefiting the wrongdoer. The loans and upward trend relied on by the trial judge did not necessarily reflect financial standing, and the judge failed to consider the damning aspects of the accountant's conduct, warranting appellate interference with the discretion.

p. 4
02

Dependency in the absence of direct evidence

Holding

In the absence of evidence of dependency, the court presumed that in the deceased's society a husband and father is expected to maintain his wives and children, and assessed dependency at two thirds of earnings

Reasoning

No evidence was given by the respondents or other dependants to show they were dependent on the deceased or in what manner. The court nonetheless assumed, as normal within the deceased's society, that he supported his wives and children in some way, and in the particular circumstances assessed what he spent on dependants at two thirds of his earnings.

p. 4
03

Interference with discretionary award of general damages on first appeal

Holding

The court interfered because the trial judge failed to take into account the discredited nature of the accountant's evidence, producing an inordinately high award

Reasoning

As a first appeal, the court re-evaluated the evidence. It reaffirmed the principle that discretion on general damages is not interfered with unless a relevant matter was ignored or the award is a wholly erroneous estimate. The judge's failure to weigh the accountant's admitted criminal conduct and the lack of evidence of actual dependency led to an inordinately high award, justifying reduction.

p. 4

Legal principles established

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  • A court must not allow itself to be party to an unlawful act by ignoring it and making an order to the benefit of a wrongdoer or those claiming through him
  • An appellate court may interfere with a trial judge's discretion on general damages where the judge failed to take into account a matter he ought to have considered, or where the award is so inordinately high or low as to be a wholly erroneous estimate
  • Evidence of earnings founded on false income tax returns, made to evade tax, is discredited and cannot found an award of damages based on the undeclared income

Court orders

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  1. 1.General damages under the Fatal Accidents Act reduced to Kshs.1,000,000.00 (Kshs.100,000.00 x 2/3 x 15/1) with interest at court rates from the date of the judgment of the superior court
  2. 2.Award of general damages under the Law Reform Act and special damages left undisturbed, with interest at court rates - on general damages from the date of assessment and on special damages from the date of filing suit
  3. 3.Appellant awarded three quarters of his costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 5718 of 1990
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory first appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Allan Njuguna T/A Mwireri Mbao Stores" v 1. Veronica Nyambura Karuga 2. Jane Wanjiru Karuga 3. Grace Wanjiru Karuga", Case Analysis (1997). Civil Appeal No. 165 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/361/eng@1997-02-14

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