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Court of AppealPartially AllowedCivil Appeal No. 250 of 2016· [2020] KECA 867 (KLR)

Silverstone Quarry Limited & another v Beatrice Mukulu Kang’uta & another (suing as Administrators of the Estate of Philip Musyoka Muthoka [2020] KECA 867 (KLR)

Court of Appeal
21 February 2020
WKW. KaranjaHOHannah OkwenguFSF. Sichale
4,578 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal cut a fatal accident payout by using minimum wage as income proof and confirming two death-compensation laws can both apply.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Karanja, Okwengu and Sichale, JJ.A) partly allowed this first appeal, and dismissed the respondents' cross-appeal, against the judgment of Nyamweya, J of the High Court at Machakos awarding the respondents Kshs. 1,345,679 for the death of Philip Musyoka Muthoka in a road traffic accident on Mombasa Road. On liability, the Court re-evaluated the evidence, accepted the eyewitness account of Masai indicating that the 2nd appellant was speeding, and upheld the trial court's apportionment of 70% against the driver and 30% contributory negligence against the deceased. On damages, the Court held that in the absence of documentary proof of the deceased's income as a mason, the gazetted minimum wage of Kshs. 11,831.20 should have been adopted as the multiplicand rather than Kshs. 19,200. The award of Kshs. 200,000 for pain and suffering was reduced to Kshs. 50,000, the deceased having endured pain for only about five hours before death. Following Hellen Waruguru Waweru v Kiarie Shoe Stores Limited, the Court reaffirmed that awards under the Law Reform Act and the Fatal Accidents Act are independent and do not constitute double compensation; the trial court need only take the Law Reform Act award into account, not deduct it. However, since the trial judge made no reference to the Law Reform Act award in assessing loss of dependency, the Court reduced that award to Kshs. 900,000. The total award was recomputed at Kshs. 795,459 after the 30% deduction. The appellants were awarded half their costs.

Key legal issues

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01

Liability and apportionment of contributory negligence in a fatal road traffic accident

Holding

The 2nd appellant was more to blame than the deceased; the 70%:30% apportionment by the trial court was upheld.

Reasoning

The eyewitness Masai's account of screeching tyres, a loud bang and the vehicle speeding off indicated the 2nd appellant was speeding despite his claim of driving at 60 kph. The greater burden rested on the driver of the motor vehicle, which required careful handling, especially as another person was already on the road. The deceased, however, crossed a busy dual carriageway with oncoming traffic and was also negligent.

p. 3
02

Proof of the deceased's income as the multiplicand

Holding

Where income is not substantiated by documents, the court should apply the gazetted minimum wage; the multiplicand of Kshs. 19,200 was replaced with Kshs. 11,831.20.

Reasoning

Employment as a mason was undisputed, but the alleged daily income of Kshs. 800 was unsupported by any documents or evidence of where the deceased worked. It was reasonable to apply the gazetted minimum wage for masons since nothing substantiated higher earnings. The alleged pastoral income also failed for want of evidence, the burden being on the respondents, who could easily have obtained such evidence from the church.

p. 4
03

Award of damages for pain and suffering where death followed shortly after the accident

Holding

The award of Kshs. 200,000 was excessive for a deceased who endured pain for only about five hours; it was reduced to Kshs. 50,000.

Reasoning

Damages for pain and suffering are assessed on the basis of the length of suffering endured before death. The deceased died about five hours after the accident. The trial judge gave no reason for departing from the authorities cited in submissions, which awarded Kshs. 100,000 and Kshs. 150,000, and in one case the deceased had suffered for two days.

p. 4
04

Whether awards under both the Law Reform Act and the Fatal Accidents Act amount to double compensation

Holding

There is no double compensation; the two Acts independently provide for awards, and the trial court need only take the Law Reform Act award into account when assessing Fatal Accidents Act damages. However, the trial judge here made no reference to the Law Reform Act award, justifying interference with the loss of dependency award.

Reasoning

Relying on Hellen Waruguru Waweru v Kiarie Shoe Stores Limited, the Court reiterated that duplication occurs only when the beneficiaries under both Acts are the same and even then it does not bar awards for pain and suffering and loss of expectation of life, which arise only under the Law Reform Act. There is no requirement of mathematical deduction; it suffices that the judge considered the Law Reform Act award. Here the trial judge's silence showed she did not, warranting reduction of the dependency award to Kshs. 900,000.

p. 5

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • An appellate court may only disturb a trial judge's award of damages if the judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate.
  • An award under the Law Reform Act is not to be deducted from damages under the Fatal Accidents Act; the two Acts confer independent rights, and the trial court need only take the Law Reform Act award into account, not make a mathematical deduction.
  • Income or profession need not be proved solely by documentary evidence or certificates; oral and other evidence may suffice.

Court orders

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  1. 1.Upheld the trial court's apportionment of liability at 70%:30% in favour of the respondents
  2. 2.Adopted the gazetted minimum wage of Kshs. 11,831.20 as the multiplicand instead of Kshs. 19,200
  3. 3.Upheld the award of Kshs. 150,000 for loss of expectation of life
  4. 4.Reduced the award for pain and suffering from Kshs. 200,000 to Kshs. 50,000
  5. 5.Reduced damages for loss of dependency to Kshs. 900,000 under the Fatal Accidents Act, taking into account the Law Reform Act award
  6. 6.Reviewed total damages payable to Kshs. 795,459 after deduction of 30% contributory negligence (Law Reform Act Kshs. 200,000; Fatal Accidents Act Kshs. 900,000; special damages Kshs. 36,370; less Kshs. 340,911)
  7. 7.Awarded the appellants half their costs

Authorities

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Legislation

  • Law Reform ActSection 2(5)
  • Fatal Accidents ActSection 4(2)
  • Law Reform Act (Cap 26)Section 2(5)
  • Fatal Accidents ActCap 32 (fatal accidents and dependency claims)

Cases cited (10)

  • Livingstone Otundo v Naima Mahood
    [1990] eKLR (Nairobi Civil Appeal No 110 of 1986)
  • Joyce Mumbi Ngugi v The Co-operative Bank of Kenya Limited & Others
    Civil Appeal No 214 of 2004
  • Butt vs Khan
    [1981] KLR 345
  • Jacob Ayiga Maruja & Another vs Simeon Obayo
    [2005] eKLR
  • Richard Omeyo Omino vs Christine A Onyango
    [2009] eKLR
  • Selle & Anor vs Associated Motor Boat Company LTD
    [1968] EA 123
  • Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor, No. 2
    [1987] KLR 30
  • General Motors EA Limited vs Eunice Alila Ndeswa
    [2015] eKLR
  • George Moraa vs Nairobi Womens Hospital
    [2015] eKLR
  • 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 Machakos
HCCC No. 56 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment identifies itself as 'a first appeal'); no specific constitutional or statutory provision is cited.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Silverstone Quarry Limited & another v Beatrice Mukulu Kang’uta & another (suing as Administrators of the Estate of Philip Musyoka Muthoka [2020] KECA 867 (KLR)", Case Analysis (2020). Civil Appeal No. 250 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/867/eng@2020-02-21

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