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Court of AppealPartially AllowedCivil Appeal 59 of 2004· [2004] KECA 147 (KLR)

Roger Dainty v Mwinyi Omar Haji & another [2004] KECA 147 (KLR)

Court of Appeal
30 July 2004
ROR. S. C. OmoloEGE. M. GithinjiJOJ. W. Onyango Otieno
2,209 words in judgment
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The bottom line

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Kenya's Court of Appeal raised a fatal accident payout from Shs.3.76 million to Shs.6.28 million because the judge's estimate of living expenses lacked evidence.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Omolo, Githinji and Onyango Otieno, JJAA) heard an appeal against quantum only, in a fatal road-traffic claim brought by Roger Dainty, administrator of the estate of James George William Campbell, who died in a head-on collision in August 1998. Liability had been apportioned 80% against the respondents with no appeal against that apportionment. The trial judge (Khaminwa, J) had awarded Shs.3,756,000 for lost years under the Law Reform Act, applying a multiplier of 10 to a multiplicand of Shs.31,300, derived from the deceased's basic pay of Shs.81,300 less Shs.9,000 tax and Shs.50,000 living expenses. The appellant sought a higher multiplier of 17 to 20 years, relying on other High Court decisions. The Court rejected the notion of an established practice fixing multipliers by age, holding the reasonable multiplier is a question of fact for the circumstances of each case, and found no basis to disturb the multiplier of 10. It upheld the principle that a deceased's living expenses are deducted in lost-years claims under both the Law Reform Act and the Fatal Accidents Act, but found the trial judge erred in principle in fixing living expenses at Shs.50,000 with no evidential basis, the deceased being single with company benefits and no proof of monthly expenditure. Substituting Shs.29,000 as reasonable living expenses, the multiplicand became Shs.52,300, yielding Shs.6,276,000. The appeal was allowed to that limited extent, with two-thirds costs of the appeal to the appellant.

Key legal issues

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01

Whether the multiplier of 10 years for a 27-year-old was erroneous

Holding

The multiplier of 10 was not disturbed; no error of principle or misapprehension of evidence was shown, and the deceased was on a three-year contract so working to age 65 did not arise.

Reasoning

The court applied the established principles for disturbing awards of damages, holding that the reasonable multiplier depends on the peculiar circumstances of each case, including income, nature of work, promotion prospects and expectation of working life. Comparisons with multipliers in other High Court decisions, mainly under the Fatal Accidents Act, were rejected as establishing no binding practice, by analogy with Boru v Onduu where a purported dependency rule was rejected.

p. 3
02

Whether the deceased's living expenses were properly deducted from the multiplicand in a lost-years claim under the Law Reform Act

Holding

Living expenses are properly deducted in a deceased's lost-years claim, but the trial judge erred in principle in fixing them at Shs.50,000 per month, an inordinately high figure with no evidential basis.

Reasoning

The court distinguished the position of a living plaintiff whose working life is shortened (where living expenses are not deducted, per Mariga v Musila) from a deceased's lost-years claim under either statute, where living expenses are deducted because they cannot form part of the estate (Pickett v British Rail Engineering Ltd; Gammell v Wilson; Hassan v Nathan Mwangi Kamau Transporters). However, with no evidence of the deceased's monthly expenditure, the Shs.50,000 figure was an error of principle justifying interference.

p. 4
03

The correct multiplicand and resulting award for lost years

Holding

Reasonable monthly living expenses should have been Shs.29,000 inclusive of tax, giving a multiplicand of Shs.52,300, which with a multiplier of 10 yields Shs.6,276,000, substituted for Shs.3,756,000.

Reasoning

Having held the deduction for living expenses excessive and unsupported by evidence (the deceased had a company car benefit, housing benefit and medical insurance, was single, and there was no evidence of his monthly expenditure), the court recalculated the multiplicand and applied the undisturbed multiplier of 10 to arrive at the substituted award.

p. 4

Legal principles established

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  • An appellate court may interfere with an award of damages only where it is so inordinately low or high that it is an entirely erroneous estimate, or where the judge proceeded on a wrong principle or misapprehended the evidence in some material respect.
  • The reasonable multiplier is a question of fact to be determined from the peculiar circumstances of each case; there is no established practice prescribing multipliers for particular age groups.
  • In computing a deceased's loss of earnings in the lost years under both the Fatal Accidents Act and the Law Reform Act, the deceased's estimated living expenses are deducted because they cannot form part of the deceased's estate.
  • The loss to the estate in lost-years cases is what the deceased would likely have had available to save, spend or distribute after meeting his living costs at a standard suggested by his job and career prospects at death; the judge must make the best estimate on the known facts.

Court orders

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  1. 1.The award of Shs.3,756,000 as damages for lost years is set aside and substituted with an award of Shs.6,276,000
  2. 2.The appellant is awarded two-thirds (2/3) costs of the appeal

Authorities

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Legislation

  • Law Reform Act
  • Fatal Accidents Act

Cases cited (9)

  • Kitavi v Coastal Bottlers Limited
    [1985] KLR 470
  • Shaban v City Council of Nairobi
    [1985] KLR 516
  • Hassan v Nathan Mwangi Kamau Transporters
    [1986] KLR 457
  • Gammell v Wilson
    [1981] 1 All ER 578
  • Pickett v British Rail Engineering Ltd
    [1980] AC 136
  • Musa Alulwa v The Attorney General & Another
    Nairobi H.C.C.C. No. 1597 of 2000
  • Boru v Onduu
    [1988-1992] KAR 299
  • Mariga v Musila
    [1984] KLR 251
  • Stella P Muka v Vishra Ranji Halale & Another
    H.C.C.C. No. 1870 of 1984 Nairobi (unreported)
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. RD 107 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal against quantum of damages (court exercises appellate review of the trial court's assessment; no specific constitutional provision invoked in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Roger Dainty v Mwinyi Omar Haji & another [2004] KECA 147 (KLR)", Case Analysis (2004). Civil Appeal 59 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/147/eng@2004-07-30

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