Emmanuel Wasike Wabukesa v Muneria Ndiwa Burman [2019] KECA 524 (KLR)
The bottom line
#Kenya's Court of Appeal nearly tripled compensation for a toddler's death, ruling courts cannot use the wrong legal rules to calculate damages.
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 High Court erred in principle in substituting a global award of Shs. 200,000 for lost years where the authorities relied on concerned loss of dependency under the Fatal Accidents Act rather than lost years under the Law Reform Act
- 2.What is a reasonable award of damages for lost years payable to the estate of a deceased child
Key legal issues
#Whether the High Court's global award for lost years rested on an error of principle
Yes. The learned Judge was guided by case law on loss of dependency under the Fatal Accidents Act, which was inapplicable to a lost years claim under the Law Reform Act, and this error produced an inordinately low award.
Lost years damages compensate pecuniary loss to the estate, while loss of dependency compensates dependants; the two are governed by different statutes and assessed on different factors. The authorities the Judge relied on, and those counsel cited, were all loss-of-dependency cases; no authority was cited where a global award had been made for lost years. Relying on them to fix the quantum was an error of principle resulting in an inordinately low award.
How damages for lost years should be assessed for a young child
The Sheikh M Hassan guidelines apply: the award is compensation for pecuniary loss, assessed justly and with moderation, deducting living expenses, with a young child's present or future earnings in most cases nil; subtle mathematical calculations are out of place and the judge must make the best estimate on known facts.
The claim was for pecuniary loss to the estate of a child of 1½ years whose life was shortened by a tortious act. A multiplier approach based on hypothetical earnings was inappropriate, but a proper global estimate should account for the probability that the child would have lived a normal life, engaged in an income-generating venture or profession, and saved money for some years.
Legal principles established
#- On a second appeal under section 72(1) of the Civil Procedure Act the Court of Appeal confines itself to matters of law, and an appellate court may not interfere with an award of damages unless the trial judge took into account an irrelevant factor or disregarded a relevant one, or the award is so inordinately low or high that it is a wholly erroneous estimate of damages amounting to an error of principle.
- Damages for lost years under the Law Reform Act are a distinct category from loss of dependency under the Fatal Accidents Act, governed by different statutes and assessed on different factors; authorities on loss of dependency cannot be used to fix a global award for lost years.
Court orders
#- 1.Appeal allowed to the extent that the global award of Shs. 200,000 for lost years is set aside and substituted with an award of Shs. 500,000
- 2.Total award of Shs. 780,000 less 20% contributory negligence, giving a net grand total of Shs. 624,000
- 3.The sum of Shs. 624,000 to carry interest from date of judgment at court rates
- 4.Appellant entitled to half of the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- H.C.C.C. No. 27 of 2015
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on matters of law)
Relief refused
#Any further increase in the awards for pain and suffering and loss of expectation of life
The High Court had increased the pain and suffering award and there was no cross-appeal against the awards
Costs
The appellant is entitled to half of the costs of the appeal.
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.
Indeed, no authority was cited where a global award has been made for lost years.
an appellate court is not entitled to interfere with the award unless it is satisfied that the judge took into account an irrelevant factor or disregarded a relevant one, or that short of this, the amount is inordinately so low or so inordinately high that it must be a wholly erroneous estimate of damages and thus an error of principle.
In the premises, the appeal is allowed to the extent that the global award for Shs. 200,000 for lost years is set aside and substituted with an award of Shs. 500,000/-.
The sum of Shs. 624,000 shall carry interest from date of judgment at court rates. The appellant is entitled to half of the costs of the appeal.
Issues in the judgment
#The judgment contains internal inconsistencies in its own arithmetic narration: it states the appellant's ground of appeal as reduction from Shs. 1,360,000 to Shs. 1,088,000, while the High Court's actual decree reduced the net award to Shs. 384,000; also the High Court decree heading assigns 'Shs. 200,000' to 'Pain and suffering' whereas the trial award for pain and suffering was Shs. 20,000.
Typographical errors in the quoted Sheikh M Hassan guidelines ('lost ears' for 'lost years') and in the judgment text ('lability' for 'liability').
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Emmanuel Wasike Wabukesa v Muneria Ndiwa Burman [2019] KECA 524 (KLR)", Case Analysis (2019). Civil Appeal No. 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/524/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.