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Court of AppealPartially AllowedCivil Appeal No. 85 of 2010· [2013] KECA 428 (KLR)

Board of Governors of Ekalakala Secondary School v Francisca Katumbi Ndwili (suing as Legal Representative of the Estate of Shadrack Kyalo Mwania) [2013] KECA 428 (KLR)

Court of Appeal
25 July 2013
1,949 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 the damages calculation used projected future earnings instead of the deceased teacher's actual documented pay at death.

What this practically means

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Executive summary

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This was a first appeal against the assessment of damages only, liability having been settled by consent at 95:5% in favour of the respondent, the legal representative of a teacher who died as a passenger in the appellant school's bus. The High Court (W. Karanja, J.) adopted a multiplicand of Kshs. 50,000/=, drawn from a projection by a Teachers Service Commission officer of the deceased's future earnings over fifteen years, and awarded Kshs. 6,137,000/= after a 5% deduction. The Court of Appeal (Visram, Koome & Odek, JJ.A) allowed the appeal. It restated that assessment of damages is at the trial court's discretion, but interference is warranted where an irrelevant factor was considered, a relevant factor omitted, the award is an erroneous estimate, or the assessment rests on no evidence. Holding that the projection was extraneous and that the multiplicand was unsupported by any evidence, the Court substituted the deceased's actual earnings at death - basic salary plus house, medical and transport allowances, less statutory deductions - giving a multiplicand of Kshs. 29,678/=. Applying a multiplier of 16 years and a 2/3 dependency ratio, it substituted an award of Kshs. 3,798,784/= under the Fatal Accidents Act, producing a total of Kshs. 3,665,844.80/= after the 5% contribution. The appellant was awarded half the costs of the appeal. The judgment binds lower courts on the evidential basis for fixing a multiplicand and on the test for appellate interference with quantum.

Key legal issues

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01

Whether the multiplicand of Kshs. 50,000/= used by the trial court was sustainable

Holding

It was not; the multiplicand must be drawn from evidence of the deceased's actual earnings at the time of death, being total earnings less statutory deductions

Reasoning

The trial judge adopted Kshs. 50,000/= relying on a projection by the Teachers Service Commission officer of future earnings over fifteen years. The Court held the multiplicand was unsupported by evidence and that the pay-slips produced, particularly the July 2006 pay-slip at time of death, should have been used. Basic salary plus house, medical and transport allowances, less tax, gave a multiplicand of Kshs. 29,678/=.

p. 4
02

The test for interfering with the trial court's discretion in the assessment of damages

Holding

Interference is warranted only where an irrelevant factor was considered, a relevant factor omitted, the award is an erroneous estimate, or the assessment is based on no evidence

Reasoning

Assessment of damages is discretionary in the trial court. The Court, citing Kemfro Africa Ltd v A.M. Lubia, restated the settled test for appellate interference and found the trial judge's adoption of an evidentially unsupported multiplicand crossed that threshold, justifying substitution of its own computation.

p. 3

Legal principles established

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  • An appellate court will not interfere with the trial court's discretion in assessing damages unless it 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 based the assessment on no evidence
  • On a first appeal, the Court of Appeal has the duty of re-evaluating the evidence, assessing it and making its own conclusions without overlooking the conclusions of the trial court and bearing in mind that it neither saw nor heard the witnesses
  • A multiplicand must be supported by evidence; the proper multiplicand is the deceased's earnings at the time of death, being basic salary plus allowances, less statutory deductions and living expenses

Court orders

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  1. 1.The appeal is allowed
  2. 2.The damages awarded under the Fatal Accidents Act by the trial court are set aside and an award of Kshs. 3,665,844.80 is entered in favour of the respondent being damages under the said Act
  3. 3.The appellant shall have half of the costs of this appeal

Authorities

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Legislation

  • Law Reform Act, Chapter 26, Laws of Kenya
  • Fatal Accidents Act, Chapter 32, Laws of Kenya

Cases cited (6)

  • Selle v Associated Motor Boat Company Ltd
    [1968] EA 123
  • Kemfro Africa Ltd t/a Meru Express Service, Gathogo Karimi v. A.M. Lubia and Another
    [1982 – 88] 1 KAR 727
  • Dainty -vs- Haji & another
    Civil Appeal No. 59 of 2004
  • Kenya Horticultural Exporters ltd -vs- Julius Munguti Maweu
    Civil Appeal No. 9 of 2004
  • Kenya Bus Services Ltd. -vs- Dina Kawira Humphrey
    Civil Appeal 295 of 2000
  • Gammel -vs- Wilson
    (1981) 1 ALL ER 578
On appeal from
High Court at Embu
H.C.C.C No. 86 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal No. 85 of 2010 from the High Court at Embu)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Board of Governors of Ekalakala Secondary School v Francisca Katumbi Ndwili (suing as Legal Representative of the Estate of Shadrack Kyalo Mwania) [2013] KECA 428 (KLR)", Case Analysis (2013). Civil Appeal No. 85 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/428/eng@2013-07-25

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