Easy Coach Limited & another v Elizabeth Musondi & Justice Okwero (Suing As The Legal Representative Of The Estate Of Ignatious Oketch Ombara [2015] KECA 865 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 17-year multiplier in a fatal accident award but cut funeral expenses from KShs. 50,000 to the KShs. 30,000 actually claimed.
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 multiplier of 17 years adopted by the learned judge for a deceased aged 35 years was inordinately high, given the alleged civil service retirement age of 55 rather than 60 years
- 2.Whether the learned judge failed to discount the multiplier for the uncertainties and vagaries of life
- 3.Whether the award of Kshs. 50,000/= for funeral expenses, which exceeded both the pleaded claim and the sum of Kshs. 30,000/= sought in written submissions, was erroneous
- 4.Whether the clerical error in the judgment ('a multiplicant of fifteen (17) years') rendered the multiplier unclear
Key legal issues
#Principles for disturbing an award of damages on appeal
The appellate court will not interfere unless the trial judge took into account an irrelevant factor, omitted a relevant one, or the award is a wholly erroneous estimate
Relying on Kemfro Africa v Lubia and Butt v Khan, the court reaffirmed that quantum is quintessentially a matter for the trial judge. Interference requires demonstration of a wrong principle, misapprehension of the evidence, or an award so inordinately high or low as to be entirely erroneous. Applying these tests, the multiplier of 17 years was within the judge's discretion and not inordinately high, since even at a 55-year retirement age the deceased had 20 working years left.
Choice of multiplier
There is no fixed multiplier for any age group in Kenya; it is a question of fact dependent on the circumstances of each case, including the deceased's remaining working life
Following Roger Dainty v Mwinyi Omar Haji, the court held that no standard multiplier has been established in Kenyan practice. The learned judge correctly considered the deceased's age, permanent and pensionable employment, and the vagaries of life, discounting from the full remaining working years. The choice of 17 years was a legitimate exercise of discretion not open to disturbance on appeal.
Funeral expenses as special damages and awards exceeding the pleadings
The award of Kshs. 50,000/= for funeral expenses was erroneous because it exceeded both the unpleaded claim and the Kshs. 30,000/= sought in submissions; it was substituted with Kshs. 30,000/=
Funeral expenses fall under special damages, which must be specifically pleaded and strictly proved. However, courts have relaxed this rule in fatal accident cases, allowing reasonable awards for legitimate funeral expenses even without strict proof. Notwithstanding that relaxation, a court cannot award more than was claimed; the respondents claimed Kshs. 30,000/= in submissions, so the award of Kshs. 50,000/= was set aside and replaced with Kshs. 30,000/=.
Effect of a clerical error in a judgment
A clerical error in a judgment does not invalidate the award where the figure actually applied in the computation is clear; the remedy is correction under the Civil Procedure Act
The judgment below stated 'a multiplicant of fifteen (17) years', an internal inconsistency. The court held this was a clerical error because the judge worked out the total award using seventeen years. Counsel's proper course was to write to the trial court for correction under the Civil Procedure Act; the complaint raised on appeal had no merit.
Legal principles established
#- An appellate court may disturb a trial judge's award of damages only where the 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
- There is no fixed multiplier in Kenya for particular age groups; the reasonable multiplier is a question of fact determined from the circumstances of each case
- On a first appeal, the Court of Appeal has a duty to analyse and re-assess the evidence on record
- Although special damages must be specifically pleaded and strictly proved, courts have consistently relaxed this rule for funeral expenses in fatal accident cases
Court orders
#- 1.Appeal dismissed save for the order in respect of funeral expenses
- 2.Judgment of the High Court awarding Kshs. 50,000/= for funeral expenses set aside and substituted with a sum of Kshs. 30,000/=
- 3.Appellants awarded ¼ of the costs of the appeal; respondents awarded ¾ of the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- HCCC No. 3 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision)
Relief refused
#Interference with the multiplier of 17 years
The learned judge considered all relevant factors; even on a 55-year retirement age the deceased had 20 years of working life left, so the multiplier was not inordinately high
Correction or disturbance of the award on account of the clerical error in the judgment
The error was clerical only; seventeen years was actually applied in the calculation, and counsel should have sought correction under the Civil Procedure Act
Costs
Appellants awarded ¼ of the costs of the appeal; respondents awarded ¾ of the costs
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.
This appeal therefore has no merit and is dismissed save for our order in respect of the award in respect of funeral expenses.
For the reason that the appellants managed to disturb the judgment to that extent only we award the appellant ¼ costs of this appeal while the respondents have ¾ of the costs. These, then, are our orders.
We are entitled to and do set aside that part of the judgement awarding a sum of Kshs. 50,000/= for funeral expenses and substitute thereof a sum of Kshs. 30,000/=.
We are of the considered opinion that the learned judge considered all relevant factors in reaching his decision on the multiplier and the multiplier applied was not inordinately high at all.
What is a reasonable multiplier in our jurisdiction is a question of fact to be determined from the peculiar circumstances of each case.
Courts in Kenya have consistently departed from the general rule that special damages must be specifically pleaded and strictly proved when dealing with fatal accident cases.
Issues in the judgment
#The judgment contains an internal clerical inconsistency in the trial judge's quoted wording, expressly noted by this Court: the text says 'fifteen (17) years' while the actual multiplier applied was seventeen years
The second appellant's name appears inconsistently in the judgment: 'Dancan Wachira Munyua' in the title/cause and 'Dancan Wachira Maina' in the body
The judgment states the trial judgment was delivered on 25th July, 2012 in one passage (consent order date) and 25th July, 2013 in another; the appeal heading states the judgment was dated 25th July, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Easy Coach Limited & another v Elizabeth Musondi & Justice Okwero (Suing As The Legal Representative Of The Estate Of Ignatious Oketch Ombara [2015] KECA 865 (KLR)", Case Analysis (2015). Civil Appeal No. 33 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/865/eng@2015-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.