Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a Law Reform Act award must be considered, but not automatically subtracted, when calculating fatal accident compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Law Reform Act award must be arithmetically deducted from the Fatal Accidents Act award
No. The award under the Law Reform Act must be taken into account but need not be arithmetically deducted; the English rule of deduction need not apply mechanically in Kenya.
The court noted the two Kenyan statutes mirror the English ones, so English decisions may help, but declined to follow them rigidly. The trial judge had expressly directed himself to avoid overlapping damages, and his award under the Fatal Accidents Act was not manifestly excessive even without deduction. Customary law on intestate inheritance had to be proved as a fact and was not proved. The better view, per Chesoni Ag JA, is that 'taken into account' is not the same as 'deducted'.
Who bears the burden of proving pecuniary gain to dependants from the estate
The party alleging the accruing pecuniary benefit (here the appellants) bears that burden and failed to discharge it.
Although Mr Barasa argued that under Luhya customary law the widower inherited the whole estate, customary law must be proved as a fact and no evidence of the relevant Luhya customary law was adduced. The appellants also had to prove that the same person entitled to the estate was among the dependants, which they did not do.
Whether the Kshs 150,000 award to Olive for loss of her eye was manifestly excessive
No. Each award is made on its own facts; Olive's case, involving a young girl with a disfiguring glass eye, was distinguishable from Bundi's, and comparable awards supported the sum.
The court considered Bundi Malube (Kshs 30,000 for a boy losing an eye) and Mohamed Juma (Kshs 70,000 for a man), but held Olive's case was distinguishable: she was a girl whose matrimonial prospects and appearance were affected, and there was risk of total blindness. Comparable English and Ugandan awards, as helpful indicators, ranged up to Kshs 223,500. The award was neither inordinately high nor based on a wrong principle.
Whether courts can abolish loss of expectation of life awards or deduction practice absent legislative change
No. It is for Parliament, not the court, to change the law, and Kenya's Law Reform Commission has made no such recommendation.
The English Law Commission proposed abolishing loss of expectation of life awards and the deduction of estate benefits, but Kenyan institutions have made no comparable recommendation and Parliament has not changed the law, so the court would not depart from the established principle.
Legal principles established
#- An appellate court will not disturb quantum of damages unless the trial judge took into account an irrelevant factor, left out a relevant one, or the award is so inordinately low or high as to be a wholly erroneous estimate of the damage
- A pecuniary gain accruing to a dependant from the same death (including benefits from a Law Reform Act award) is to be taken into account when assessing damages under the Fatal Accidents Act
- There is no requirement in law for the trial judge to engage in a mathematical deduction of the Law Reform Act award from the Fatal Accidents Act award; it is enough that the award be taken into account
- The party seeking to set off a pecuniary benefit against a dependant's loss bears the burden of proving that the benefit accrued or will accrue to the dependants as a result of the death
- Section 2(5) of the Law Reform Act means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death
Court orders
#- 1.The appeals in HCCC No. 2381 of 1979 and HCCC No. 2382 of 1979 are dismissed with costs
- 2.The appellants (Kemfro and Kanini) have the costs of the cross-appeal by Olive, which was withdrawn
- On appeal from
- High Court of Kenya at Nairobi
- Civil Suit 2381 of 1979 and Civil Suit 2382 of 1979
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeals filed October 10, 1983); appeals on quantum only
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jkn (a Minor Suing Through Next Friend and Mother Dwn) & 1 other v Tirus Mburu Chege & 1 other[2026] KECA 1610 (KLR)31 Jul 2026followed
- Ishmael Omula Egala & 7 others v The Attorney General[2026] KECA 1649 (KLR)31 Jul 2026
- Phyllis Kamwada Tumwesigye v Fransisca Mueni Mutua & 1 other[2026] KECA 1333 (KLR)10 Jul 2026applied
- John Ng'ang'a Kuria v Kenya Broadcasting Corporation[2026] KECA 971 (KLR)15 May 2026applied
- Sheer Logic Management Consultants v Baha (Appeal E253 of 2024) [2025] KEELRC 2867 (KLR)[2025] KEELRC 2867 (KLR)9 Oct 2025applied
- Devki Limited v Barongo (Appeal E162 of 2024) [2025] KEELRC 2632 (KLR)[2025] KEELRC 2632 (KLR)26 Sept 2025
- Zainab Mwinyi v Saifudeen Abdulla Bhai & 1 other[2025] KECA 1309 (KLR)18 Jul 2025applied
- Jimcab Services Limited v Bartholomew Bernard Osodo & Jacob Otieno (suing As The Administrators of The Estate of Richard Omondi Odhiambo Deceased)[2025] KECA 975 (KLR)23 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR)", Case Analysis (1985). Civil Appeal (HCCC No. 2381 of 1979 and HCCC No. 2382 of 1979 consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/137/eng@1985-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.