Wilson Chumo v Messrs Kapsimatwo Express [1992] KECA 54 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the two-thirds dependency formula in fatal accident claims is not law — dependency must be proven from the actual facts of each case.
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 trial judge erred in the principles applied in assessing damages for loss of dependency
- 2.Whether the trial judge erred in failing to take into account dependency for the deceased's mother and her two children
- 3.Whether the 1/3 personal expenses - 2/3 dependency ratio is a rule of law
- 4.What multiplier and multiplicand were appropriate on the evidence
- 5.Whether the award of Kshs 5,000 for funeral expenses could stand where not pleaded or proved
Key legal issues
#Principles for disturbing quantum of damages on appeal
An appellate court interferes where the trial judge took into account an irrelevant factor or left out a relevant one, or where the award is so inordinately low or high as to be a wholly erroneous estimate
The court adopted the classic test from Ilanga v Manyoka as restated in Kemfro Africa Ltd v AM Lubia, applied by the former Court of Appeal of Eastern Africa and followed by this Court. The trial judge's omission of dependency for the deceased's mother and two children amounted to leaving out relevant factors, justifying interference with the assessment.
Whether two-thirds dependency is a rule of law
It is not; dependency and ascertainment of personal expenses are matters of fact to be determined on the evidence of each case
The court traced the 1/3-2/3 formula to Hayes v Patel and successive decisions, and noted that Kneller JA in Hassan's case had clarified that the two-thirds practice reflected assessments of pecuniary loss, not a binding rule. On the evidence here, three-fifths personal expenses and two-fifths dependency was the realistic apportionment.
Pleading and proof of funeral expenses
Funeral expenses, being special damages, must be pleaded and proved; under section 6 of the Fatal Accidents Act they are recoverable only if actually incurred
The claim for funeral expenses did not appear in the plaint and no evidence of incurrence was led; the trial judge's award of Kshs 5,000 as 'special or reasonable funeral expenses' was gratuitous and without basis, and was set aside by all three judges.
Assessment of multiplier and multiplicand
With net income of Kshs 4,827 per month, dependency of Kshs 1,930/80 per month (Kshs 23,169/60 per annum) and a 17-year multiplier were appropriate, yielding Kshs 393,883/20 for dependency
The court considered the deceased's age (36), steady employment with promotion prospects, retirement age, and the imponderables of illness, accident or death, together with the fact that dependants receive a lump sum. The trial judge's multiplicand ignored the mother and children and was too low given inflationary trends.
Legal principles established
#- An appellate court may disturb a trial judge's award of damages where the judge took into account an irrelevant factor, left out of account a relevant one, or the award is so inordinately low or high as to be a wholly erroneous estimate
- The 1/3 personal expenses - 2/3 dependency proportion is a practice, not a rule of law; dependency is a question of fact to be determined on the evidence existing at the date of death
- Special damages, including funeral expenses, must be specifically pleaded and proved
Court orders
#- 1.Appeal allowed
- 2.Judgment of the High Court dated 31st October 1989 set aside
- 3.Judgment substituted for the appellant in the sum of Kshs 453,883/20 (dependency of Kshs 393,883/20 plus Kshs 60,000 for loss of expectation of life)
- 4.Interest at court rates with effect from 31st October 1989 till payment in full
- 5.Costs of the appeal awarded to the appellant
- 6.Award of Kshs 5,000 for funeral expenses disallowed and set aside
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Lead judgment. Held the trial judge took into account irrelevant matters and left out relevant ones by considering dependency only for the father and ignoring the mother and the two children; funeral expenses of Kshs 5,000 were unpleaded and unproved and were set aside; the 1/3-2/3 dependency ratio is not a rule of law but a matter of fact; adopted a 3/5 personal expenses, 2/5 dependency ratio with a 17-year multiplier, awarding Kshs 453,883/20.
The ratio of 3/5 for her personal expenses and 2/5 dependency would be realistic.p. 4
Wrote the judgment
Agreed the appeal should be allowed. Emphasised that the two-thirds dependency convention is not the law; dependency must rest on evidence of the deceased's income and actual provision for dependants, including aged parents. Computed three-fifths personal expenses, two-fifths dependency, multiplier of 17, and held funeral damages must be pleaded and proved. Adopted the figure of Kshs 453,883/20 and made the consequential order substituting judgment.
On the question of special damages it is trite law that the claim must be pleaded and proved.p. 5
Wrote the judgment
Agreed the appeal should be allowed. Held dependency is a matter of fact dependent on the evidence of each case; two-fifths of net earnings was availed to dependants, giving a multiplicand of Kshs 23,169/60 per annum and a 17-year multiplier. Under section 6 of the Fatal Accidents Act funeral expenses must be incurred to be awardable; the Kshs 5,000 award was set aside. Would substitute judgment for Kshs 453,883/20 with interest and costs to the appellant.
dependency is a matter of fact and is dependent on the available evidence peculiar to each particular casep. 5
- On appeal from
- High Court of Kenya
- not stated
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court (statutory basis not expressly cited in the judgment); Fatal Accidents Act Cap 32 referred to on funeral expenses
Relief refused
#Award of Kshs 5,000 funeral expenses (upheld)
Funeral expenses were neither pleaded in the plaint nor proved by evidence as required for special damages and as required under section 6 of the Fatal Accidents Act
Costs
Costs of the appeal awarded to the appellant; judgment substituted together with costs and interest from 31st October 1989
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.
The ratio of 3/5 for her personal expenses and 2/5 dependency would be realistic.
The long list of decisions indicate that the 1/3, 2/3 proportion for personal expenses and dependency respectively has been applied under the assumption that it is the rule of law. It is not.
On the question of special damages it is trite law that the claim must be pleaded and proved.
The consequential order is that the appeal is allowed with costs. The judgment of the High Court is set aside and substituted with the judgment for the plaintiff in the sum of Kshs 453,883/20 together with interest at court rates with effect from 31st October, 1989, till payment in full.
Issues in the judgment
#Arithmetic discrepancy in the dependency computation: annual dependency of Kshs 23,169/60 multiplied by 17 is stated as Kshs 399,883/20 by Muli JA and Kshs 393,883/20 by Gicheru JA, while the final award in both is Kshs 453,883/20 (which corresponds to 393,883/20 plus 60,000)
The appellant's wife's age is stated inconsistently as about 56 years in the facts and about 55 years in the computation of dependency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Chumo v Messrs Kapsimatwo Express [1992] KECA 54 (KLR)", Case Analysis (1992). Court of Appeal, Nakuru (appeal against assessment of damages in fatal accident claim; appeal number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/54/eng@1992-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.