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High CourtDismissedCivil Appeal No 76 of 2019· [2020] KEHC 2326 (KLR)

Abubakar Abdalla Mwangi (Deceased) - Appeal against award of damages (appellant vs respondent, fatal accident claim)

High Court of Kenya
23 October 2020
7,275 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Appellate courts generally respect a trial judge's damage award unless there is a clear legal error or grossly erroneous estimate.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Malindi against a magistrates' court award of Kshs.885,381.25 (after 15% contributory negligence consent) to the mother of a 6-year-old boy fatally hit by the appellant's motor vehicle at Vipingo along the Kilifi-Mombasa road. The appellant challenged only quantum, contending the Kshs.900,000 loss of dependency award was inordinately high for a young child, that comparable awards were much lower, and that the Law Reform Act awards (Kshs.40,000 pain and suffering and Kshs.100,000 loss of expectation of life) should have been deducted from the dependency award. The respondent raised preliminary objections: the memorandum of appeal was filed out of time without leave under Section 79G, and the decree was omitted from the record of appeal. Nyakundi J held the appeal was filed within time once the December vacation period under Order 50 rule 4 was excluded from computation, and declined to strike out the appeal for omission of the decree, holding that Order 42 rule 13(4)(f) does not mandatorily require both judgment and decree, and that striking out would offend Article 159(2)(d)'s substantive justice principle. On quantum, the judge applied the settled standard that an appellate court interferes only where the trial court acted on wrong principles or reached an entirely erroneous estimate. He upheld the Kshs.40,000 pain and suffering award, held there is no legal requirement to mathematically deduct Law Reform Act awards from Fatal Accidents Act awards ('taken into account' does not mean 'deducted'), and found the total award not excessive for a child with a promising future. The appeal was dismissed, the trial judgment affirmed, with costs of the suit and appeal to the respondent together with interest.

Key legal issues

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01

Whether the trial court applied wrong principles in assessing damages for a deceased 6-year-old minor

Holding

No wrong principle or misapprehension shown; the award of Kshs.885,381.25 was not excessive and the trial court's discretion was properly exercised

Reasoning

The court applied the settled standard from Bashir Ahmed Butt v Uwais Ahmed Khan and related authorities: interference requires wrong principles or an entirely erroneous estimate. The trial court considered comparable authorities and inflation; the range for pain and suffering (Kshs.10,000-100,000) preserves discretion, and no uniform principle exists for tabulating damages for deceased minors.

p. 8
02

Whether Law Reform Act awards must be deducted from the Fatal Accidents Act award

Holding

No; deduction is not required, only that the loss of expectation of life award be taken into account to avoid double compensation

Reasoning

Relying on Hellen Waruguru Waweru v Kiarie Shoe Stores and Board of Trustees ACK Diocese of Marsabit v NIA, the court held that Section 4(2) of the Fatal Accidents Act uses 'taken into account', not 'deducted'; duplication arises only where beneficiaries are identical and only for the same heads.

p. 8
03

Whether the appeal was filed out of time and should be struck out for omission of the decree

Holding

Appeal was within time applying Order 50 rule 4 (December vacation period excluded); striking out for omission of the decree declined

Reasoning

Judgment was entered 17 December 2019, three days before the vacation break under Order 50 rule 4; counting after time resumed, the appeal filed 22 January 2020 fell within 30 days. On the decree, the court followed Nyota Tissue Products and the definition of 'decree' in Section 2 of the Civil Procedure Act, holding the judgment alone suffices.

p. 4

Legal principles established

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  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence
  • There is no legal requirement to mathematically deduct Law Reform Act awards from Fatal Accidents Act awards; the words 'taken into account' in Section 4(2) FAA do not mean deducted
  • Order 42 rule 13(4)(f) does not make it mandatory to attach both the judgment and the decree; attaching the judgment alone suffices
  • Damages are payable to parents/dependants of a deceased child irrespective of age or evidence of pecuniary contribution

Court orders

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  1. 1.Appeal on quantum dismissed; the trial Court's judgment on general damages affirmed
  2. 2.Respondent awarded the costs of the suit and of the appeal together with interest and the total sum awarded

Authorities

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Legislation

  • Civil Procedure ActSection 79G; Section 2 (definition of decree)
  • Civil Procedure RulesOrder 42 rule 13(4)(f); Order 50 rule 4
  • Law Reform ActCap 26 (pain, suffering and loss of expectation of life)
  • Fatal Accidents ActSection 4(2)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (48)

  • Selle & Another v Associated Motor Boat Company Ltd & Others
    {1968} EA 123

    Duty of first appellate court to re-evaluate evidence it did not hear

  • Nance v British Columbia Electric Railway Co. Ltd
    (4) {1951} A.C. 601

    Deduction of LRA awards from FAA awards (cited by appellant)

  • Henry Ilanga v Manyema Manyoka
    {1961} EA 705 (CAD)

    Deduction principle (cited by appellant)

  • Cecilia W. Mwangi & Another v Ruth Mwangi
    {1977} eKLR

    Deduction of LRA awards; cited Lim Pho Cho v Camden and Islington Area Health Authority

  • Lim Pho Cho v Camden and Islington Area Health Authority
    {1979} 1 ALL ER 332

    Cited with approval within Cecilia W. Mwangi

  • Tayab v Kananu
    (1982-88) 1 KAR 90

    Deduction principle (cited by appellant)

  • Sammy Kipkori Kosgei v Edina Musikoye Mulinya & Another
    {2017} eKLR

    Deduction principle (cited by appellant)

  • Shabani v City Council of Nairobi
    {1985} KLR 516

    Deduction principle (cited by appellant)

  • Abubakar Abdalla Salim v Tawfiq Bus Services & TSS Bus Service
    {2013} eKLR

    Kshs.20,000 conventional award for pain and suffering where death followed immediately

  • James Gakinya Karienye & Another v Perminus Kariuki Githinji
    {2015} eKLR

    Kshs.10,000 conventional award for pain and suffering on immediate death

  • Charles Masoso Barasa & Another v Chepkoech Rotich & Another
    {2014} eKLR

    Loss of expectation of life for a minor (cited by appellant)

  • Satwidner Singh Bhogal v Satwinder Kaur Benawr & 2 others
    {2004} eKLR

    Kshs.70,000 award for loss of expectation of life for a young girl

  • Benard Odhiambo Ogecha (Suing as the Legal representative and Administrator of the Estate of the late Oscar Onyango Ogecha
    {2014} KLR

    Comparable dependency award for a 14-year-old deceased

  • Chhabhadiya Entreprise Ltd & Another v Gladys Mutenyo Bitali
    {2018} eKLR

    Comparable dependency award for a class 4 pupil

  • Kibet Langat & Another v Miriam Wairimu Ngugi
    {2016} eKLR

    Upheld dependency award for a 14-year-old minor

  • Chen Wembo & 2 others v I.K.K. & Another
    {2017} eKLR

    Speculative nature of lost-years awards for minors; comparable dependency award

  • S.M.K. v Josephat Nkari Makaga
    Civil Appeal No. 66 of 2011

    Kshs.800,000 dependency award for a 6-year-old child (cited by respondent)

  • Daniel Mwangi Kimemi & 2 others v J.G.M & S.M.M
    Civil Appeal No. 18 of 2014

    Dependency award for a 9-year-old revised to Kshs.1,000,000 (cited by respondent)

  • Francis Ndung'u Wambui & 2 Others v Julius Muchiri Muriuki
    Civil Appeal No. 65 of 2017

    Award not excessive (cited by respondent)

  • Eston Mwirigi Ndege & Anor v Damaris Kariari
    Civil Appeal No. 73 of 2017

    No law requiring mathematical deductions (cited by respondent)

  • Butler v Butler
    CA 49 of 1993

    Principles for interfering with damages awards (cited by respondent)

  • Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo
    {2016} eKLR

    Decree is an inextricable part of an appeal; omission fatal (cited by respondent)

  • Nyota Tissue Products v Charles Wanga Wanga & 4 others
    {2020}

    Not mandatory to attach both judgment and decree; too draconian to strike out

  • Shah, Paul v E. A. Cargo Handling Services Ltd
    {1974} EA 75

    Discretionary jurisdiction of first appellate court exercised on evidence and sound legal principles

  • Peters v Sunday Post Limited
    {1958} EA 424

    Caution in appellate review of findings of fact (Sir Kenneth O'Connor)

  • Watt v Thomas
    {1947} A.C. 484

    Circumstances in which an appellate court may take a different view on facts

  • Mary Wanjiku Gachigi v Ruth Muthoni Kamau
    Civil Appeal No. 172 of 2000

    First appellate court duty to reconsider and re-evaluate evidence

  • Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another
    Civil Appeal No. 345 of 2000

    First appellate court duty to reconsider and re-evaluate evidence

  • Virani T/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd
    Kisumu HCCC No. 88 of 2002

    First appellate court principles

  • Bashir Ahmed Butt v Uwais Ahmed Khan
    {1982-88} KAR 5

    Appellate court will not disturb damages award unless entirely erroneous estimate or wrong principles

  • Savanna Saw Mills Ltd v George Mwale Mudomo
    {2005} eKLR

    Assessment of damages is at the discretion of the trial court

  • Loice Wanjiku Kagunda v Julius Gachau Mwangi
    CA 142 of 2003

    Interference only where judge acted on wrong principles or misapprehended facts

  • Mariga v Musila
    {1984} KLR 257

    Cited within Loice Wanjiku Kagunda on wrong principles test

  • Gitobu Imanyara & 2 others v Attorney General
    {2016} eKLR

    Court disinclined to disturb trial judge's damages award absent wrong principle or erroneous estimate

  • Rook v Rairrie
    {1941} 1 ALL ER 297

    Principle on reversing trial judge on quantum (cited within Gitobu Imanyara)

  • Gicheru v Morton & Another
    {2005} 2 KLR 333

    Requirements for reversing trial judge on quantum

  • Hyder Nthenya Musili & Another v China Wu Yi Limited & Another
    {2017} eKLR

    Conventional ranges: Kshs.100,000 loss of expectation of life; Kshs.10,000-100,000 pain and suffering

  • Rose v Ford
    {1937} AC 826

    Damages for loss of expectation of life recoverable on behalf of the estate

  • Benham v Gambling
    {1941} AC 157

    Only moderate awards under loss of expectation of life; objective assessment

  • Oshivji Kuvenji & Another v James Mohammed Ongenge
    {2012} eKLR

    No uniform principle for tabulating general damages for deceased minors (Ngenye J)

  • Kenya Breweries Limited v Saro
    {1991} KLR 408 (also cited as {1981} eKLR 408 and {1999} KLR 408)

    Age of a child must be considered; damages payable to parents of a child of whatever age

  • Sheikh Mushtaq Hassan v Nassan Mwangi Kamau Transporter & 5 others
    {1986} KLR 457

    Damages payable to dependants of a deceased child

  • Board of Trustees of the Anglican Church of Kenya Diocese of Marsabit v NIA (minor suing through her next friend IAIS) & 3 Others
    {2018} eKLR

    No requirement to deduct loss of expectation of life award from loss of dependency award

  • Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited
    {2015} eKLR

    'Taken into account' in Section 4(2) FAA does not mean mathematical deduction; no double compensation for LRA heads

  • Kimunya Abednego alias Abednego Munyao v Zipporah S Musyoka & Another
    {2019} eKLR

    'Taken into account' means considered, not necessarily deducted

  • Hassan v Nallia Mwangi Kamau Transporters & 4 others
    {1986} KLR 457

    Calculation of loss of dependency - what the deceased would have saved or distributed

  • Gammell v Wilson
    {1981} 1 ALL ER 578

    Lost years of earning capacity for a young child are speculative; exceptions depend on evidence

  • Kenfro Africa Ltd T/a Meru Express Services 1976 & Another v Lubia & Another (No. 2)
    {1987} KLR 30

    Award for a deceased minor is not ipso facto excessive or erroneous

On appeal from
Magistrates' Court (trial court)
null
Jurisdiction invoked
First appeal from the subordinate court to the High Court under the Civil Procedure Act (appeal on quantum); Article 159(2)(d) of the Constitution invoked on substantive justice

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abubakar Abdalla Mwangi (Deceased) - Appeal against award of damages (appellant vs respondent, fatal accident claim)", Case Analysis (2020). Civil Appeal No 76 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/2326/eng@2020-10-23

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