Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that fatal accident compensation must be based on net salary after statutory deductions, and Law Reform Act awards need not be deducted.
What this practically means
#Executive summary
#Key legal issues
#Correct multiplicand for loss of dependency under the Fatal Accidents Act
Both courts below erred: the trial court wrongly used gross salary; the High Court wrongly went below the net salary after statutory deductions of Sh. 19,373, which was the proper multiplicand
Following Chunibhai J. Patel v P. F. Hayes, the dependency is the deceased's net earning power, i.e. income less tax. The pay-slip showed gross earnings of Sh. 39,683 reduced by statutory and other deductions to Sh. 16,036; the net salary after statutory deductions alone was Sh. 19,373, a figure conceded by respondent's counsel. The High Court had no reason to interfere with that figure.
Proof of farming income and the appropriate multiplier
Hellen's evidence on a balance of probability proved farming income of at least Sh. 20,000 per month; the High Court's figure of Sh. 30,000 per year was plucked out of the air; and the multiplier of 1 tied to retirement from employment was manifestly low, revised to 5 years
There was no concurrent finding on farming income so the court could reconsider the evidence. Documentary evidence including a 2002 horticulture earning of Sh. 200,000 supported the claim. Applying Jacob Ayiga Maruja v Simeone Obayo, strict documentary proof is not required. Retirement from teaching at 55 did not mean retirement from farming; the deceased would have had more time for the farm, justifying a multiplier of 5.
Whether the Law Reform Act award must be deducted from the Fatal Accidents Act award to avoid double compensation
The deduction by both courts below was erroneous in law; duplication arises only when the estate beneficiaries and dependants are the same as regards the lost years and dependency claims, not as regards pain and suffering and loss of expectation of life
The court clarified the Kenfro Africa decision via the fuller [1987] KLR 30 report: section 2(5) of the Law Reform Act makes estate rights in addition to, not in derogation of, dependants' rights under the Fatal Accidents Act; section 4(2) of the FAA requires the LRA award to be 'taken into account', not necessarily mathematically deducted. There is no compulsion in law to make the deduction.
Scope of a second appeal and appellate deference on assessment of damages
The second appeal lies on issues of law only under section 72 of the Civil Procedure Act; assessment of damages is for the trial court's discretion, disturbed only where the award is wholly erroneous or wrong principles were applied
The court invoked section 72(1) of the Civil Procedure Act confining second appeals to questions of law, and the settled principle in Kemfro Africa, Peter M. Kariuki and Bashir Ahmed Butt that an appellate court will not disturb a discretionary assessment of damages unless it is inordinately high or low or based on wrong principles or misapprehension of the evidence. The identified legal errors warranted interference.
Legal principles established
#- On a second appeal, findings of fact of the two courts below, especially where concurrent, will not be disturbed unless not based on any discernible evidence or based on a perversion of the evidence on record
- The multiplicand for loss of dependency is the net income of the deceased, net only of statutory deductions, not the gross salary nor the figure after loan and other non-statutory deductions
- Strict documentary proof is not required to establish a person's profession or earnings; a balance of probability suffices
- An award under the Law Reform Act is not to be mathematically deducted from an award under the Fatal Accidents Act; it is sufficient that the court bore it in mind, as the two claims lie in addition to and not in derogation of each other
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to be a wholly erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence
Court orders
#- 1.The appeal is allowed to the extent that the final award of damages is reassessed at Sh. 1,064,984 less 30% contribution, leaving Sh. 745,489
- 2.The multiplicand for salary dependency is fixed at net salary after statutory deductions of Sh. 19,373
- 3.The farming income is assessed at Sh. 20,000 per month with a multiplier of 5 years
- 4.No deduction of the LRA award from the FAA award shall be made
- 5.The appellant shall have the costs of the appeal
- On appeal from
- High Court of Kenya at Nyeri
- H.C.C.C. No. 58 of 2010
- Jurisdiction invoked
- Section 72 of the Civil Procedure Act (second appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR)", Case Analysis (2015). Civil Appeal No. 22 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/318/eng@2015-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.