M’Itabari (Suing as the Administrator of the Estate of the Erastus Kirimi Mithika (Deceased)) v Celina (Civil Appeal 131 of 2018) [2023] KECA 1647 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that documents submitted only in written arguments cannot be used as evidence to calculate damages awards.
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 law in failing to properly re-evaluate the evidence before revising downward the trial court's award of damages
- 2.Whether the document 'Civil Servants Salaries and Allowances in Kenya', introduced through written submissions, could properly form the basis of a multiplicand for the lost-years/loss-of-dependency award
- 3.Whether the High Court's global award of Kshs.1,000,000/= for loss of dependency was inordinately low and an erroneous estimate warranting appellate interference
Key legal issues
#Whether evidence may be introduced through written submissions
No. A document not included in the agreed list of documents and not produced on oath is extraneous and cannot ground an award of damages, even if published in the Gazette.
The parties elected to proceed by consent on agreed documents and witness statements. The Civil Servants Salaries document appeared only in the appellant's written submissions. The appellant, bearing the burden of proof, was obliged to testify and produce the document or secure the respondent's agreement; the respondent was entitled to challenge it. Actual or expected income is a question of fact requiring proof by evidence, and the trial court could not take judicial notice of it.
Whether the High Court's global award of Kshs.1,000,000/= for loss of dependency was inordinately low
No. The award was a proper exercise of discretion, informed by comparable decisions and the deceased's circumstances, and did not warrant interference.
The learned Judge, deprived of a multiplicand by the improper document, resorted to a global award, considering that children in Kenya, regardless of age, are expected to support their parents, the deceased's age of 18 and pending university admission, and comparable Meru High Court decisions awarding Kshs.1,000,000/= to Kshs.1,200,000/=. Applying the Catholic Diocese of Kisumu v Sophia Achieng Tete standard, the Court found no basis to interfere.
Scope of the Court's mandate on second appeal
The mandate on second appeal is confined to matters of law, subject to the exceptions of consideration of irrelevant matters, failure to consider relevant matters, or perversity.
The Court invoked its settled second-appeal jurisdiction as recognised in Maina v Mugiria and Kenya Breweries Ltd – Godfrey Odongo. The dispute before it raised a pure question of law: whether the multiplicand adopted by the trial court had a legal and evidential basis. The factual findings of both lower courts, including that the deceased would have supported his parents, were common ground.
Legal principles established
#- Parties cannot introduce evidence through written submissions; a document not included in the agreed list of documents and not produced on oath cannot form the basis of an award, whether or not it was published in the official Gazette.
- On a second appeal, the Court of Appeal's mandate is limited to matters of law, unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- An appellate court may interfere with the quantum of damages only where the trial court applied wrong principles or misapprehended the evidence so as to arrive at an entirely erroneous estimate; it may not substitute its own figure merely because it would have awarded differently.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- Jurisdiction invoked
- Second appeal to the Court of Appeal limited to matters of law (Court of Appeal's appellate jurisdiction over High Court decisions)
Relief refused
#Substitution of a higher award for loss of dependency/lost years in place of the Kshs.1,000,000/= global award
The award was not inordinately low and no basis existed to interfere with the learned Judge's discretion
Reliance on the Civil Servants Salaries document as a multiplicand
The document was introduced through submissions, was not part of the agreed list of documents, and could not be used as evidence
Costs
The appeal is dismissed with costs (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.
Submissions are not evidence.
The upshot is that the appeal lacks merit, and is dismissed with costs.
we agree with the respondent that the award of Kshs.1,000,000/= for loss of dependency was not inordinately low to warrant our interference.
Our mandate on second appeal is limited to matters of law only
The trial magistrate could not take judicial notice of the document when the fact of actual or expected income of the deceased is a question of fact that ought to be proved by evidence.
Issues in the judgment
#The multiplicity of case-number fields is not stated in the judgment itself; no appeal number appears in the copy provided, only the delivery date and station.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’Itabari (Suing as the Administrator of the Estate of the Erastus Kirimi Mithika (Deceased)) v Celina (Civil Appeal 131 of 2018) [2023] KECA 1647 (KLR)", Case Analysis (2023). Court of Appeal Civil Appeal (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1647/eng@2023-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.