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Court of AppealPartially AllowedCivil Appeal 48 of 2006· [2008] KECA 258 (KLR)

MAHMUD SALIM OMAR v M.A. BAYUSUF [2008] KECA 258 (KLR)

Court of Appeal of Kenya
8 February 2008
ROR.S.C. OmoloEOE.O. O'KubasuEGE.M. Githinji
1,892 words in judgment
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The bottom line

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Kenya's Court of Appeal increased a fatal accident payout to Shs.317,000, ruling that damages under the Law Reform Act are added on top of dependency awards unless proven otherwise.

What this practically means

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Executive summary

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This was a first appeal against quantum in a fatal road-accident claim. The appellant, as administrator of the estate of his son Islam Mahmud Salim, a turn boy crushed to death between two trucks in Mombasa on 9th October 1997, sued the respondent, whose driver was held 100% liable. Mwera, J. awarded Shs.120,000/= under the Law Reform Act but entered final judgment of only Shs.197,000/=, comprising Shs.180,000/= for loss of dependency (using an assumed Shs.2,500/= monthly wage and a multiplier of 18 with a one-third deduction) and Shs.17,100/= special damages. On appeal, counsel argued the award was grossly inadequate, that the Shs.120,000/= had been omitted from the total, and that the wage figure was unsupported. A three-judge bench of the Court of Appeal at Mombasa (Omolo, O'Kubasu and Githinji, JJA) restated the duty of a first appellate court to re-evaluate the evidence, and adopted the Kemfro Africa principles limiting interference with quantum to cases where a relevant factor was omitted, an irrelevant one considered, or the award is a wholly erroneous estimate. The court declined to disturb the Shs.197,000/= loss-of-dependency award or the wage figure, holding the plaintiff bore the burden of proving earnings. However, it allowed the appeal in part, holding that absent evidence the Law Reform Act damages would go solely to the appellant, that Shs.120,000/= was payable in addition, entering judgment of Shs.317,000/= with costs of the appeal to the appellant.

Key legal issues

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01

Standard for interfering with an award of damages on appeal

Holding

The appellate court will not disturb quantum unless an irrelevant factor was considered, a relevant one omitted, or the award is inordinately low or high such that it is a wholly erroneous estimate of the damage.

Reasoning

The court adopted the principles in Kemfro Africa Ltd t/a Meru Express Service v A.M. Lubia, which themselves restated the former Court of Appeal for Eastern Africa's approach in Ilango v Manyoka and Lukenya Ranching v Kavoloto. Applying these principles, the court found the trial judge had the correct principles in mind and declined to disturb the Shs.197,000/= loss-of-dependency award.

p. 4
02

Burden of proving the deceased's earnings for multiplier purposes

Holding

The plaintiff bears the burden of proving the salary of the deceased; absent evidence, the trial judge's adopted figure cannot be faulted.

Reasoning

Counsel for the appellant, who had also acted at trial, contended the Shs.2,500/= monthly wage was unsupported. The court held that it was for the appellant and his counsel to provide the exact salary; the burden lay on the plaintiff on a balance of probabilities, so the trial judge's assessment of dependency stood.

p. 3
03

Deduction of awards under the Law Reform Act from Fatal Accidents Act damages

Holding

Because there was no concrete evidence that the Law Reform Act damages would go solely to the appellant, the Shs.120,000/= under that Act had to be awarded in addition to the Shs.197,000/= loss-of-dependency award.

Reasoning

The court noted the appellant's unrebutted evidence that he sought compensation on his own behalf and for other dependants. Without evidence that the Law Reform Act award would solely benefit the appellant, the two awards were cumulative, raising the total to Shs.317,000/=. This ground of appeal therefore succeeded.

p. 4

Legal principles established

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  • On a first appeal, the court must re-evaluate the evidence and reach its own conclusions while making due allowance for not having seen or heard the witnesses
  • An appellate court will interfere with quantum of damages only where the trial judge took into account an irrelevant factor or left out a relevant one, or where the award is so inordinately low or high as to be a wholly erroneous estimate of the damage

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the superior court set aside and judgment entered for the appellant for Shs.120,000/= under the Law Reform Act plus Shs.197,000/= under the Fatal Accidents Act, totalling Shs.317,000/=
  3. 3.Appellant awarded the costs of this appeal

Authorities

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Legislation

  • Law Reform Actnot specified (damages for pain and suffering, loss of expectation of life)
  • Fatal Accidents Actnot specified (loss of dependency)

Cases cited (5)

  • SELLE V. ASSOCIATED MOTOR BOAT COMPANY LTD.
    [1968] E.A. 123
  • WILLIAMSON DIAMONDS LTD. V. BROWN
    [1970] E.A. 1
  • KEMFRO AFRICA LIMITED t/a MERU EXPRESS SERVICE GATHOGO KANINI V. A.M. LUBIA AND OLIVE LUBIA
    (1982–88) 1 KAR 727
  • ILANGO V. MANYOKA
    [1961] E.A. 705
  • LUKENYA RANCHING AND FARMING CO-OPERATIVES SOCIETY LTD V. KAVOLOTO
    [1970] E.A. 414
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 97 of 1998
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act/APPEALS from the High Court (statutory first appeal); no specific constitutional provision invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "MAHMUD SALIM OMAR v M.A. BAYUSUF [2008] KECA 258 (KLR)", Case Analysis (2008). Civil Appeal 48 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/258/eng@2008-02-08

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