Mahenzo Kathengi & another Chambeyu (Suing as the legal representatives of the estate of Hamisi Chambeyu Munyaka v Magunadu Company Limited & another [2019] KECA 637 (KLR)
The bottom line
#Kenya's Court of Appeal restored higher compensation awards, ruling that courts may not use documents absent at trial to reduce payouts.
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 Judge erred by interfering with the multiplicand of Ksh. 6,000 used by the trial court when no ground of appeal challenged it
- 2.Whether the Judge misdirected himself by relying on minimum wage documents (Regulation of Wages (General) Order, 2013 and Legal Notice No. 68 of 2009) that were not before the trial court
- 3.Whether the Judge erred in holding that the deceased in Civil Appeal No. 36 of 2014 worked outside the municipality so as to reduce the applicable minimum wage
Key legal issues
#Whether the High Court was entitled to interfere with the trial magistrate's discretion in assessing the multiplicand
The Judge went beyond the set parameters: he relied on minimum wage documents not adduced in evidence at trial and ignored the evidence and submissions before the trial court. The interference was a misdirection; the trial awards were restored.
The court reiterated that income need not be proved solely by documents, as stated in Jacob Ayiga Maruja v Simeon Obayo. The trial magistrates had assessed the multiplicand of Ksh. 6,000 based on evidence properly before them, balancing the parties' rival proposals. The Judge, having appreciated that dependency is a matter of fact proved by evidence, contradicted himself by disregarding the widow's evidence and substituting a minimum wage figure drawn from regulations not relied upon at trial. That was an erroneous exercise of the discretion to interfere with damages.
Whether the Judge was entitled to find the deceased in Civil Appeal No. 36 of 2014 worked outside the municipality, thereby reducing the minimum wage multiplicand
No. There was no evidence before the trial court that the deceased worked outside the municipality; the accident occurring at Mackinon Road did not establish that he worked there. The trial magistrate's multiplicand of Ksh. 6,130 was justified, reasonable and not perverse.
The trial magistrate had applied the minimum wage for a general labourer under Legal Notice No. 70 of 2009, and the Judge did not fault that approach. The Judge's sole ground of interference was his own finding that the deceased worked outside a municipality, but the record contained no evidence supporting that finding; the place of the accident was not evidence of the deceased's place of work. The appellate court therefore found the trial court's assessment unimpeachable and restored the original award.
Legal principles established
#- On a second appeal the Court confines itself to matters of law, resisting the temptation to delve into matters of fact.
- Income and profession need not be proved only by documents; where a court assesses the multiplicand on the material properly before it, an appellate court ought not to interfere on the basis of documents not adduced at trial.
- Where documents (such as minimum wage regulations) were not relied upon during trial, a Judge misdirects himself by interfering with the trial court's assessment of damages based on such extraneous material.
Court orders
#- 1.Appeals from Civil Appeal Nos. 26 and 35 of 2014 allowed; awards of loss of dependency of Ksh. 604,480 set aside and substituted with Ksh. 980,000 and Ksh. 960,000 respectively as per the trial court's judgment
- 2.Appeal in Civil Appeal No. 36 of 2014 allowed; award of loss of dependency of Ksh. 523,200 set aside and substituted with the original award of Ksh. 980,800
- 3.Judgment of the High Court set aside and substituted with an order dismissing it with costs to the appellants
- 4.Appellants to have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa (P. J. Otieno, J.)
- MSA Civil Appeal No. 36 of 2014 (consolidated with Civil Appeal Nos. 26 & 35 of 2014)
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the applicable appellate framework, confined to matters of law
- Consolidated with
- Civil Appeal No 153 of 2018, Civil Appeal No 168 of 2018
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.
In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts.
We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents.
In our view this was well justified, reasonable and not perverse as to warrant interference.
In effect the appeal is allowed, we set aside the judgment of the High court and substitute it with an order dismissing it with costs to the appellants. The appellants shall also have the costs of this appeal.
Issues in the judgment
#Two paragraphs in the judgment are both numbered [12], and two paragraphs are both numbered [15].
The judgment states the award of loss of dependency set aside as Ksh. 604,480 in one passage but the High Court's reduction is earlier described as Ksh. 604,840.
The award restored in respect of Civil Appeal No. 36 of 2014 is stated as Ksh. 980,800, whereas the trial court's award in CMCC No 3595/2009 (the corresponding matter) was a total of Kshs 1,105,000 with loss of dependency of Kshs. 980,000; the figure Ksh. 980,800 does not match any trial award set out earlier.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mahenzo Kathengi & another Chambeyu (Suing as the legal representatives of the estate of Hamisi Chambeyu Munyaka v Magunadu Company Limited & another [2019] KECA 637 (KLR)", Case Analysis (2019). Civil Appeal No 151 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/637/eng@2019-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.