Jimcab Services Limited v Osodo & another (Suing as the Administrators of the Estate of Richard Omondi Odhiambo - Deceased) (Civil Appeal 566 of 2019) [2025] KECA 975 (KLR)
The bottom line
#Kenya's Court of Appeal reduced a fatal accident award because salary vouchers showed part of the deceased's pay was an advance, not actual earnings.
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 Judge erred in admitting documents in proof of the deceased's employment and income, and whether in doing so Section 35(1)(b) of the Evidence Act was violated
- 2.Whether the deceased's monthly income of Kshs. 9,280.00 on which the Judge based computation of damages was proved, and whether the minimum wage for labourers should have been the basis of computation
- 3.Whether the Judge erred in applying a multiplier of 39 years
- 4.Whether this Court should interfere with the award of Kshs. 150,000 general damages for pain and suffering
Key legal issues
#Admissibility of documents under Section 35 of the Evidence Act where the maker did not attend court
The trial judge did not err in admitting the employer's letter and salary vouchers; he was satisfied on evidence that the maker's attendance could not be procured, and an appellate court will not lightly disturb his findings.
The proviso to Section 35 permits admission without calling the maker where the maker is dead, cannot be found, is incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense. PW1's evidence showed the Managing Director had relocated to Homa Bay for treatment of a chronic illness. The judge, having seen and heard the witnesses, accepted the explanation; this Court had no basis for interfering with that finding of fact.
Proof of the deceased's monthly income for computing damages for lost years
The proven monthly income was Kshs. 6,280.00, not Kshs. 9,280.00, because the petty cash vouchers showed Kshs. 3,000.00 of the total was an advance; the minimum wage question therefore did not arise.
Although the employer's letter stated a monthly salary of Kshs. 9,280.00, the admitted petty cash vouchers broke this down into an end-month salary of Kshs. 6,280.00 and an advance of Kshs. 3,000.00. Had the trial judge scrutinised the vouchers he would have detected the discrepancy. The appeal succeeded only to the extent that the lost-years award was recomputed on Kshs. 6,280.00, yielding Kshs. 1,959,360.00.
The multiplier of 39 years adopted for a 21-year-old deceased
The Court would not disturb the multiplier of 39 years because both parties, in their submissions before the trial court, had presented that multiplier as applicable.
Although the multiplier for a 21-year-old appeared high on its face, both sides had urged a retirement age of 60 years and a multiplier of 39 in their submissions below. The only contested question was the multiplicand. The trial judge therefore rightly adopted the agreed multiplier, and it was too late for the appellant to challenge a matter that was not contested at trial.
Whether to interfere with the award of Kshs. 150,000 for pain and suffering
The award of Kshs. 150,000 for pain and suffering was left undisturbed because the appellant failed to show it was a wholly erroneous estimate on the Kemfro Africa principles.
The trial judge found the deceased did not die on the spot but was taken to Kenyatta National Hospital where he died, suffering great pain. Although another court might have awarded a different amount, the appellant did not demonstrate that the judge took into account an irrelevant factor, omitted a relevant one, or that the amount was inordinately high or low. The invitation to interfere was declined.
Legal principles established
#- An appellate court will not lightly differ from the findings of fact of a trial judge who had the benefit of seeing and hearing the witnesses, and will interfere only if the findings are based on no evidence, on a misapprehension of the evidence, or on demonstrably wrong principles.
- An appellate court may not disturb an award of damages unless the trial 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 of the damage.
- Documents must be produced by their makers in civil proceedings except in the circumstances allowed by Section 35 of the Evidence Act (death, incapacity, or attendance that cannot be procured without unreasonable delay or expense).
- Where damages are computed on a multiplicand, the court must scrutinise the documentary evidence of earnings and use only the amount actually proved.
Court orders
#- 1.The award for lost years of Kshs. 2,895,360.00 based on a multiplicand of Kshs. 9,280.00 is set aside and substituted with an award of Kshs. 1,959,360.00 (6,280.00 x 12 x 2/3 x 39)
- 2.The total award of Kshs. 3,214,055.00 made by the High Court is set aside and substituted with an award of Kshs. 2,278,055.00 (special damages Kshs. 68,695.00; pain and suffering Kshs. 150,000; lost years Kshs. 1,959,360; loss of expectation of life Kshs. 100,000)
- 3.Interest on that amount to accrue at court rates from the date of judgment of the High Court (19th February 2016) until payment in full
- 4.The respondents to have the costs of the proceedings before the High Court
- 5.Each party to bear its own costs of the 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 Nairobi
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules
Relief refused
#Interference with the award of Kshs. 150,000 general damages for pain and suffering
The appellant did not demonstrate that the trial judge's award was impeachable on the Kemfro Africa grounds; the Judge considered the passage of time between the accident and death
Challenge to the multiplier of 39 years
Both parties were at one on the multiplier of 39 before the trial court, so it was not a contested matter
Application of the minimum wage (Kshs. 4,638.00) as multiplicand
Once the proven monthly income was found to be Kshs. 6,280.00, the minimum wage question did not arise
Costs
The respondents will have the costs of the proceedings before the High Court. Each party will bear its own 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.
In conclusion the appeal fails save and to the extent that the award for lost years in the amount of Kshs.2,895,360.00 based on a multiplicand of Kshs. 9,280.00 is hereby set aside and substituted with an award for Kshs.1,959,360 made up as follows: 6,280.00 x 12 x 2/3 x39=1,959,360.00.
Consequently, the total award made by the High Court in the amount of Kshs. 3,214,055.00 is hereby set aside and substituted with an award of Kshs. 2,278,055.00
Interest on that amount will accrue at court rates from the date of judgment of the High Court (19th February 2016) until payment in full. The respondents will have the costs of the proceedings before the High Court. Each party will bear its own costs of the appeal.
it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
It will not lightly difier from the findings of fact of a trial judge who has had the benefit of seeing and hearing all the witnesses
Issues in the judgment
#The judgment is a certified copy and contains recurring OCR-style typographical errors (e.g. 'sufiering', 'difier'), which does not affect the substance.
The appellate record shows the parties' trial submissions computed lost years as multiplicand x 12 x 2/3 x 39, yet paragraph 28 states the trial court's lost years award as Kshs. 2,895,360.00, which does not correspond to 9,280 x 12 x 2/3 x 39 (which is 2,894,400.00).
The judgment does not state the case number of the appeal, and the case number of the High Court suit is not disclosed in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jimcab Services Limited v Osodo & another (Suing as the Administrators of the Estate of Richard Omondi Odhiambo - Deceased) (Civil Appeal 566 of 2019) [2025] KECA 975 (KLR)", Case Analysis (2025). Civil Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/975/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.