Eliphas Mutegi Njeri & another v Stanley M’mwari M’atiri [2010] KECA 224 (KLR)
The bottom line
#Kenya's Court of Appeal cut a fatal accident award by Kshs.100,000 to avoid double compensation, confirming most of the High Court's damages stood.
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 issue of ownership of the accident vehicle and employment of the first appellant were properly before the Court having not been raised in the defence or memorandum of appeal
- 2.Whether the multiplicand of Kshs.5,000/= adopted for the deceased, a secondary school teacher, was excessive
- 3.Whether the dependency ratio applied by the trial court was wrong
- 4.Whether the award under the Law Reform Act for loss of expectation of life should be deducted from the award under the Fatal Accidents Act to avoid duplication
- 5.Whether liability should have been apportioned for contributory negligence
Key legal issues
#Deduction of Law Reform Act award from Fatal Accidents Act award
The award of Kshs.100,000/= for loss of expectation of life must be deducted from the overall award to avoid duplication, as the same dependants benefit under both Acts.
The Court adopted the principle in Asal v Muge & Anor that although section 2(5) of the Law Reform Act makes its damages additional to those under the Fatal Accidents Act, the same beneficiaries take under both, creating a danger of duplication. The Court accordingly reduced the award of Kshs.890,000/= by Kshs.100,000/= to Kshs.790,000/=, confirming this as the correct path.
Pleas not raised in defence or memorandum of appeal
Ownership of the vehicle and employment of the first appellant, having neither been denied in the joint defence nor raised in the memorandum of appeal, could not be raised on appeal.
The appellants argued, for the first time on appeal and without evidence from the second appellant, that the Diocese was not the owner of the vehicle. The Court held the point was not pleaded or raised in the appeal and found no merit in it, applying the principle that parties are bound by their pleadings.
Reasonableness of the multiplicand
The multiplicand of Kshs.5,000/= for a secondary school teacher was not excessive; teachers' salaries are a matter of public notoriety and gazetted, and the applicable range was Kshs.10,000/= to Kshs.15,000/= per month.
The Court treated teachers' earnings as a matter of public notoriety ascertainable from gazetted salaries. Legal Notice 142/2003 placed a teacher of the deceased's status in the Kshs.10,000/-15,000/= range, so the trial court's multiplicand of Kshs.5,000/= was, if anything, low. The appeal on the multiplicand therefore failed.
Dependency ratio
The trial court's use of a 2/3 dependency ratio was not an error; the rate adopted depends on the circumstances of each case.
Counsel for the respondent submitted, citing Jane Chelagat Bor, that the dependency rate is not a rigid rule of thumb. The Court accepted that the trial court considered the totality of the evidence, including that the deceased's parents were wholly dependent on him, and did not disturb the ratio applied.
Legal principles established
#- Awards for loss of expectation of life under the Law Reform Act must be deducted from awards under the Fatal Accidents Act to avoid double compensation to the same dependants
- The dependency ratio is not a rigid rule of thumb and depends on the circumstances of each case
- A party cannot raise on appeal a matter (such as ownership or employment) neither pleaded in the defence nor raised in the memorandum of appeal
Court orders
#- 1.Reduction of the total award of Kshs.890,000/= by Kshs.100,000/= to Kshs.790,000/=
- 2.Dismissal of the rest of the appeal with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- Meru H.C.C.C. No. 149 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate Jurisdiction Act (appeal from the decree of the High Court)
Relief refused
#Substitution of a dependency ratio of 1/3 for the 2/3 applied by the trial court
The dependency rate does not constitute a rigid rule of thumb; the respondent's reliance on Jane Chelagat Bor was accepted
Reduction of the multiplicand of Kshs.5,000/=
Court found the multiplicand, if anything, on the lower side given gazetted teachers' salaries
Apportionment of liability for contributory negligence
Not disturbed by the Court; appeal dismissed on the remaining grounds
Submission that the Diocese was not owner of the vehicle
Ownership was neither denied in the defence nor raised in the memorandum of appeal
Costs
Costs of the appeal to the respondent, who was substantially successful; the rest of the appeal dismissed with 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.
Accordingly, we reduce the award of Ksh.890,000/= by Ksh.100,000/= to Ksh.790,000/=.
All in all, our inclination is to dismiss this appeal save for the reduction of the total award by Ksh.100,000/= and as a result the rest of the appeal is hereby dismissed with costs to the respondent who in our view has been substantially successful. It is so ordered.
This is not done then there is a danger of duplication of awards
we are of the view that the salary of Ksh.5,000/= was on the lower side
Issues in the judgment
#The ground of appeal asserts the judge applied a ratio of 2/3 instead of 1/3 'since the deceased was unmarried', but the record states the deceased's mother and father were wholly dependent on him and the Court did not disturb the ratio; the judgment does not resolve this discrepancy expressly
The judgment body refers to counsel relying on a decision 'JANE CHELAGAT BOR... (1990) 2 KAR' while the ground of appeal and judgment refer to the Fatal Accident Act; the judgment inconsistently renders the statute's name ('Fatal Accident Act' and 'Fatal Accidents Act')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Eliphas Mutegi Njeri & another v Stanley M’mwari M’atiri [2010] KECA 224 (KLR)", Case Analysis (2010). Civil Appeal No. 237 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/224/eng@2010-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.