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Court of AppealPartially AllowedCivil Appeal No. 120 of 2015· [2020] KECA 551 (KLR)

Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) v Hellena Wanjiru Rukanga [2020] KECA 551 (KLR)

Court of Appeal of Kenya
10 July 2020
HOHannah OkwenguPKP.O. KiageFSF. Sichale
4,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed families don't need paperwork to prove a deceased small trader's income when claiming compensation for their loss.

What this practically means

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Executive summary

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This was a first appeal against the judgment of the High Court at Nakuru (A. Mshila, J) in a fatal accident claim brought by the legal representatives of Loise Gathoni Mugo, who died in an accident involving the respondent's lorry. Liability was settled by consent at 70:30, special damages at Kshs 58,910, and Kshs 100,000 for loss of expectation of life, leaving loss of dependency for trial. The trial judge awarded nil for loss of dependency, holding that proof of income was the cornerstone of such a claim and that neither income nor dependency by the deceased's adult children was proved, and awarded Kshs 50,000 as funeral expenses. The Court of Appeal allowed the appeal in part. It held that the trial judge misdirected herself by questioning the existence of the deceased's business, which was uncontroverted, and by requiring strict documentary proof of income and dependency from a small sole-proprietor enterprise. Relying on Jacob Ayiga Maruja, Kimatu Mbuvi and related authorities, the Court assessed the deceased's net income at Kshs 30,000 per month, adopted a multiplier of 15 years (the government retirement age being irrelevant to a self-employed person), and fixed dependency at two-thirds, awarding Kshs 3,400,000 for loss of dependency after taking the Law Reform Act award into account. It set aside the additional Kshs 50,000 funeral expenses award, being inconsistent with the consent on special damages. The appeal was otherwise allowed with costs to the appellants and interest on general damages from the date of the High Court judgment, the total award after 30% contribution being Kshs 2,505,237.

Key legal issues

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01

Proof of a deceased's income for loss of dependency where the deceased was a self-employed sole proprietor

Holding

The trial judge erred by insisting on documentary proof; the uncontroverted evidence of the business and the bank statement sufficed, and the court should have assessed net income as best it could. The Court assessed it at Kshs 30,000 per month.

Reasoning

The trial court questioned whether the deceased had a business at all, despite uncontroverted evidence that she ran a timber and furniture yard. Lack of licences and accounts was explainable for a sole proprietor; the bank statement showed normal business flows. Following Jacob Ayiga Maruja and Kimatu Mbuvi, the Court held income must be assessed from available evidence, adopting Kshs 30,000 as net monthly income.

p. 4
02

Dependency of adult children under the Fatal Accidents Act

Holding

Adult children above 18 may still be dependants; dependency is a question of fact provable by oral evidence, and the uncontroverted testimony that the deceased was the breadwinner established dependency at two-thirds.

Reasoning

The trial judge wrongly assumed adult children are dependants only while in school or college. Catherine's uncontroverted evidence showed a son who had just joined college and a daughter starting a business, both dependent on their mother. Absence of tuition receipts did not displace that evidence. A dependency ratio of 2/3 was justified.

p. 5
03

The appropriate multiplier for a self-employed deceased aged 47

Holding

The trial court's multiplier of 9 years (referenced in the judgment) based on the government retirement age of 60 was wrong because the deceased was self-employed; 15 years was fair and reasonable.

Reasoning

The government retirement age has no application to a self-employed businesswoman whose capacity to work depended on her health, for which there was no contrary evidence. Taking her age and the vagaries of life into account, the Court settled on a multiplier of 15 years.

p. 3
04

Relationship between awards under the Law Reform Act and the Fatal Accidents Act

Holding

Awards need not be mathematically deducted; the Law Reform Act award is simply taken into account in assessing damages under the Fatal Accidents Act, following Hellen Waruguru Waweru v Kiarie Shoe Stores.

Reasoning

The respondent argued damages could not be duplicated under the two Acts and should be deducted. The Court endorsed the principle that avoiding double benefit does not require a mathematical deduction exercise; the court takes the Law Reform Act award into account when making the Fatal Accidents Act award.

p. 5
05

Special damages for funeral expenses

Holding

The additional Kshs 50,000 awarded by the trial court for funeral expenses was set aside, as the parties had consented to special damages of Kshs 58,910 and there was no cross-appeal on that award.

Reasoning

The consent recorded before the trial court settled special damages at Kshs 58,910; the trial judge's award of a further Kshs 50,000 as funeral expenses was inconsistent with that consent, and the Court set it aside while noting it lacked jurisdiction to revisit the consented award absent a cross-appeal.

p. 5

Legal principles established

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  • Strict documentary proof of a deceased's income is not required where the deceased ran a small business as a sole proprietor; the court must assess income as best it can on the available evidence.
  • Dependency and income may be proved by evidence other than documents.
  • Adult children may be dependants of their parent even when not in school, on uncontroverted oral evidence.
  • In awarding damages under the Fatal Accidents Act, the court need only take the Law Reform Act award into account; it is not obliged to make a mathematical deduction.
  • The government retirement age is irrelevant to a self-employed deceased's working-life expectation.
  • A first appellate court must reconsider and re-evaluate the evidence and reach its own conclusion, bearing in mind the trial court's advantage on demeanour.
  • An appellate court may interfere with a damages award where it is an erroneous estimate, or where the trial judge acted on wrong principles or misapprehended the facts.

Court orders

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  1. 1.Set aside the additional Kshs 50,000 awarded by the trial judge as special damages for funeral expenses
  2. 2.Set aside the trial judge's order awarding nil for loss of dependency
  3. 3.Award Kshs 3,400,000 as damages for loss of dependency
  4. 4.Final award: Kshs 20,000 pain and suffering; Kshs 100,000 loss of expectation of life; Kshs 3,400,000 loss of dependency; Kshs 58,910 special damages; sub-total Kshs 3,578,910; less 30% contribution of Kshs 1,073,673; total Kshs 2,505,237
  5. 5.Appellants to have costs of the appeal and interest on general damages from the date of the High Court judgment

Authorities

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Legislation

  • Law Reform Act
  • Fatal Accidents Act
  • Constitution of KenyaArticle 159(2)(d)
  • Evidence ActSection 107

Cases cited (16)

  • Jacob Ayiga Maruja & anor vs. Simeon Obaya
    [2005] eKLR
  • Rev. Fr. Leonard O. Ekisa vs. Major K. Birgen
    [2005] eKLR
  • Mary Njeri Murigi vs. Peter Macharia & Anor
    [2016] eKLR
  • Hassan vs. Nathan Mwangi Kamau Transporters & 5 others
    [1986] KLR 457
  • Chania Shuttle vs Mary Mumbi
    [2017] eKLR
  • Jane Chelagat Bor vs. Andrew Otieno Onduu
    [1988-92] 2 KAR 288
  • Coast Bus Company vs. Joseph Maundu Mukusu suing as next of kin of Jane Paul Mang'eng'e, Tabitha Muthoki Mang'eng'e and Paul Mang'eng'e (deceased)
    [2019] eKLR
  • Kenya Ports Authority versus Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Selle & another vs. Associated Motor Boat Co. Ltd & others
    (1968) EA 123
  • Kemfro Africa Ltd t/a Meru Express Service, Gathogo Karimi v. A.M. Lubia & another
    [1982-88] 1 KAR 727
  • Kemfo Africa Limited t/a as Meru Express Services 1976 & Anor vs. Lubia & Anor
    [1987] KLR 30
  • Chunibhai J Patel & another v. PF Hays & others
    [1957] EA 748
  • Vincent Sululu & another v. Rose Wanjiru
    [2016] eKLR
  • Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko
    [2006] eKLR
  • Wambua v. Patel & Anor
    [1980] KLR 336
  • Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited
    [2015] eKLR
On appeal from
High Court of Kenya at Nakuru
HCCC No. 205 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) v Hellena Wanjiru Rukanga [2020] KECA 551 (KLR)", Case Analysis (2020). Civil Appeal No. 120 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/551/eng@2020-07-10

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