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Court of AppealDismissedCivil Appeal 233 of 2005

COMMERCIAL TRANSPORTERS LTD v NZULA KIASYO [2010] KECA 399 (KLR)

Court of Appeal of Kenya
5 March 2010
ROR. S. C. OmoloSBS. E. O. BosireJNJ. G. Nyamu
1,529 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that courts can estimate a deceased person's income from their lifestyle when exact earnings cannot be proven.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Omolo, Bosire and Nyamu, JJA) dismissed an appeal by Commercial Transporters Ltd against a High Court judgment (Khaminwa, J, dated 25 August 2003) awarding Nzula Kiasyo Kshs.1,367,600/- in damages under the Law Reform Act and the Fatal Accidents Act following the death of her husband, a taxi driver killed in a collision with the appellant's lorry. Liability had been settled by consent at 70/30, leaving only quantum in dispute. On appeal, counsel for the appellant abandoned all grounds except the challenge to the trial Judge's adoption of Kshs.10,000/= per week as the multiplicand for loss of dependency, arguing there was no evidence of the deceased's income and seeking that the award be halved. The Court restated the classic Kemfro Africa principles: assessment of damages is discretionary and an appellate court interferes only where an irrelevant factor was considered, a relevant factor omitted, the award is an erroneous estimate, or the assessment rests on no evidence. It held that the deceased's income, though not precisely established, could reasonably be inferred from his rental payments, children in expensive schools, business activities, and property acquisitions. The award was modest - the Court even indicated it would have awarded more at first instance - and the appeal was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the trial Judge had a proper basis for assessing loss of dependency at Kshs.10,000/= per week despite finding the deceased's income uncertain
  2. 2.Whether the appellate court should interfere with the trial Judge's award of damages on loss of dependency

Key legal issues

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01

Whether an appellate court may interfere with a trial judge's award of damages for loss of dependency where the deceased's income was not precisely established

Holding

The Court declined to interfere: the award of Kshs.10,000/= per week was modest and properly founded on the evidence of the deceased's lifestyle, rental payments, children's schooling, and property acquisitions, despite the absence of proof of exact income.

Reasoning

Restating the Kemfro Africa principles, the Court held that damages assessment is discretionary and interference is warranted only on established grounds, none of which were met. Even on the taxi income alone, the deceased could reasonably spare Kshs.2,000/= weekly for his wife and Kshs.2,000/= for education, so the multiplicand was modest. The Court noted that had it been the trial court it might have awarded more, but as an appellate court it acts on settled principles.

p. 4

Legal principles established

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  • Assessment of damages is a matter within the discretion of the trial Judge; an appellate court will interfere only where the trial Judge took into account an irrelevant factor, left out a relevant factor, made an award so high or low as to be an erroneous estimate, or where the assessment is based on no evidence.
  • Where a deceased's exact income cannot be ascertained, the court may reasonably infer a sufficient level of income from the deceased's evident lifestyle, expenditure, and financial obligations.

Court orders

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  1. 1.Dismissal of the appeal
  2. 2.Costs of the appeal awarded to the respondent

The bench

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

RO
majority
SB
majority
JN
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 179 of 1996
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court in civil matters (Law Reform Act and Fatal Accidents Act damages claim)

Relief refused

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Appellant's prayer to halve the award of Kshs.10,000/= per week for loss of dependency

The Court found the award modest and no basis for interference under the settled principles governing appellate interference with assessment of damages

p. 4

Costs

The appeal was dismissed with costs to the respondent.

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.

In the result we find no basis for interfering with the trial Judge’s award on dependency, and therefore dismiss this appeal with costs to the respondent.
p. 4Final orders - dismissal of appeal
Assessment of damages is a matter within the discretion of the trial Judge. An appellate court will only interfere wherethe trial Judge in assessing damages either took into account an irrelevant factor or left outa relevant factor or thatthe award he made is too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence.
p. 3Principles for appellate interference with assessment of damages
However, as an appellate court we act on settled principles, which we set out earlier.
p. 4Appellate restraint on damages

Issues in the judgment

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minor

Judgment states the trial Judge found the deceased, a male businessman, 'earned reasonable income which was sufficient to reasonably support his four children' - the feminine pronoun appears to be a typographical error in the judgment.

minor

The judgment contains inconsistent figures for housekeeping contributions by the deceased to the respondent (Kshs.2,000 to Kshs.3,000 per week in evidence versus Kshs.2,000 per month in the trial Judge's findings, and Kshs.2,000 per week in the Court's analysis).

minor

The delivery date appears garbled in the record ('Dated and delivered at 5th this March day of March 2010'), though the date is otherwise ascertainable as March 2010.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "COMMERCIAL TRANSPORTERS LTD v NZULA KIASYO [2010] KECA 399 (KLR)", Case Analysis (2010). Civil Appeal 233 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/399/eng@2010-03-05

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