Mbogori v Rahedi (Civil Appeal 125 of 2015) [2017] KECA 682 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs. 12 million fatal accident award, confirming courts can estimate income from lifestyle evidence when documents are missing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Judge erred in assessing the deceased's income at Kshs. 100,000/= per month based on lifestyle evidence rather than documentary proof
- 2.Whether the trial Judge considered extraneous or irrelevant matters in assessing damages
- 3.Whether the degree of dependency and the multiplier of 15 years were properly determined
- 4.Whether damages awarded under the Law Reform Act ought to have been deducted from the damages under the Fatal Accidents Act to avoid double compensation
- 5.Whether the award of Kshs. 12,000,000/= under the Fatal Accidents Act was manifestly excessive
Key legal issues
#Interference with discretionary awards of damages under the Fatal Accidents Act
The trial Judge's discretion was properly exercised; the appellate court will not substitute its own figure merely because it would have assessed differently.
The Fatal Accidents Act vests discretion in the trial court. Interference requires misdirection, wrong principles, or an inordinately high or low figure. The Judge here analysed the contradictory financial statements, rejected the claimed Kshs. 350,000/= income, and conservatively assessed Kshs. 100,000/= per month, finding no non-judicious exercise of discretion.
Proof of income without documentary evidence
Lifestyle evidence may be used to determine income where documentary proof is absent or unreliable.
The Court endorsed Jacob Ayiga Maruja v Simeon Obayo, holding that proof of earnings is not confined to documents such as payslips, tax returns or bank statements. The trial Judge was entitled to rely on anecdotal evidence of the family's lifestyle — expensive schools, tennis, mortgage and loans — to arrive at a fair estimate of the deceased's income.
Double compensation between the Law Reform Act and the Fatal Accidents Act
There is no requirement to deduct Law Reform Act awards from Fatal Accidents Act damages where the heads of loss differ.
Relying on Kemfro Africa and Hellen Waruguru Waweru, the Court held that section 2(5) of the Law Reform Act makes the two sets of rights cumulative. Deduction is only required where duplication exists, i.e. where the estate beneficiaries and dependants are the same and the awards cover the same loss. Here the Law Reform Act awards were for non-pecuniary loss and the dependency award was distinct.
Dependency and multiplier
Dependency is a matter of fact and the 15-year multiplier for a 44-year-old businessman was reasonable.
Applying Boru v Onduu, the extent of support depends on the circumstances of each case. There was no evidence that the trial Judge misdirected himself in finding the deceased applied 2/3 of his income to his family, notwithstanding the respondent's own employment. A businessman aged 44 could work until his early 70s, so a 15-year multiplier was reasonable.
Legal principles established
#- An appellate court will not interfere with a discretionary award of damages unless it is demonstrated the trial Judge misdirected himself or the award is an entirely erroneous estimate.
- Income and profession may be proved by evidence other than documentary evidence; absence of records does not defeat proof of earnings.
- The degree of dependency is a question of fact with no fixed rule, to be ascertained from the evidence of the deceased's earnings and family support.
- An award under the Law Reform Act need not be mathematically deducted from a Fatal Accidents Act award; duplication arises only where the beneficiaries are the same persons and the awards cover the same heads.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nai. Civil Case No. 676 of 2009
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate Jurisdiction Act / Civil Procedure rules (decision of the High Court in a civil suit)
Relief refused
#Reduction of the Fatal Accidents Act award to Kshs. 6,000,000/= as urged by the appellant
The award was not inordinately high and the trial Judge exercised his discretion judicially
Deduction of Law Reform Act damages from the Fatal Accidents Act award
No duplication arose because the Law Reform Act awards were for pain and suffering and loss of expectation of life, while the Fatal Accidents Act award was for loss of dependency
Costs
The appeal is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.
If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.
The damages awarded under the FatalAccidents Act were for loss of dependency hence, there was no duplication.
In conclusion therefore, we find and hold that there is no reason to interfere with the quantum of damages as awarded by the trial Judge.
In the circumstances, we find that this appeal is for dismissal. The same is dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbogori v Rahedi (Civil Appeal 125 of 2015) [2017] KECA 682 (KLR)", Case Analysis (2017). First Appeal against High Court Nai. Civil Case No. 676 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/682/eng@2017-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.