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Court of AppealPartially AllowedCivil Appeal No. 345 of 2012

Vincent Sululu & another v Rose Wanjiru [2016] KECA 156 (KLR)

Court of Appeal of Kenya
2 June 2016
2,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that fatal accident awards depend on net income (after statutory deductions only) and a fact-based multiplier, and costs are split when an appeal partly succeeds.

What this practically means

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Executive summary

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This was a second appeal from the High Court at Bungoma (Muchelule, J.), which had partially allowed the respondent's first appeal against a fatal-accidents award arising from a matatu accident in which Henry Barasa Namachanja, a fare-paying passenger, died. Liability had been agreed at 80:20 in the appellants' favour. The High Court upheld the special damages award of Kshs.174,845/= but reduced loss of dependency from Kshs.2,188,800/= to Kshs.1,123,200/= by lowering the multiplicand to Kshs.13,500/= (excluding SACCO dividends) and the multiplier from 18 to 13, and subjected all awards to 20% contributory negligence, with full costs to the respondent. The appellants challenged the multiplier, the multiplicand, and the award of full costs. The Court of Appeal reaffirmed that its second-appeal jurisdiction is confined by section 72(1) of the Civil Procedure Act to questions of law. It declined to disturb the multiplier of 13, holding the choice of multiplier to be a discretionary, fact-specific exercise. On the multiplicand, it laid down that only statutory deductions are subtracted from gross income; voluntary deductions such as SACCO contributions and loan repayments, and one-off annual income such as dividends, are not deductible, computing the correct multiplicand at Kshs.27,463.75 but declining to disturb the High Court's figure since the appellants raised no complaint on it. On costs, the Court held that as the first appeal was only partially successful, the respondent was entitled to only half the costs, and the appellants half the costs of the second appeal, with interest running from the dates of the respective judgments.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the first appellate court erred in adopting a multiplier of 13 years in computing loss of dependency
  2. 2.Whether the first appellate court erred in reducing the multiplicand from Kshs.19,000/= to Kshs.13,500/=, including whether SACCO dividends and non-statutory deductions should be excluded from the multiplicand
  3. 3.Whether the award of full costs of the first appeal to the respondent was correct where the appeal only partially succeeded

Key legal issues

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01

Multiplier in loss of dependency

Holding

The reduction of the multiplier from 18 to 13 was properly within the first appellate court's discretion given the deceased's risky work as a police officer and other imponderables.

Reasoning

Citing Roger Dainty v Mwinyi Haji, the Court reiterated that a reasonable multiplier is a question of fact depending on the deceased's income, kind of work, promotion prospects and expectation of working life, plus age and anticipated retirement age. The judge here considered the risky police work and other imponderables of life, factors the trial court had not considered, so no basis existed to interfere.

p. 3
02

Multiplicand - net versus gross income and non-statutory deductions

Holding

The multiplicand is the deceased's monthly net income after statutory deductions only; voluntary deductions such as SACCO savings and loan repayments, and one-off annual income such as SACCO dividends, must not be subtracted.

Reasoning

The Court reasoned that what was available to the deceased for maintaining his family was gross income less statutory deductions; voluntary deductions formed part of income he would have expended on dependants but chose to save or use to repay loans often acquired for the dependants' benefit. A one-off annual dividend cannot count as monthly income. The Court recalculated the correct multiplicand as Kshs.27,463.75 but declined to disturb the High Court's assessment because the appellants raised no complaint on that point.

p. 4
03

Costs where an appeal partially succeeds

Holding

Costs follow the event, but where an appeal only partially succeeds, the successful party is entitled to only a proportionate share (here, half) of the costs.

Reasoning

The Court affirmed the trite position that costs follow the event: the appellants having succeeded at trial were entitled to full costs of the suit. However, because the respondent's first appeal only partially succeeded (reducing dependency award but failing on special damages), full costs to the respondent was wrong; she was entitled to half. The same logic governed the second appeal costs.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law as prescribed by section 72(1) of the Civil Procedure Act.
  • The multiplicand in loss-of-dependency claims is the deceased's net income (gross income less statutory deductions only); voluntary deductions such as SACCO contributions and loan repayments must not be subtracted, and one-off annual income such as SACCO dividends is excluded.
  • The choice of multiplier is a matter of judicial discretion to be exercised judiciously and with reason, determined from the peculiar circumstances of each case.

Court orders

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  1. 1.The respondent was entitled to half of the costs of the first appeal in the High Court, and the appellants half
  2. 2.The appellants are entitled to half of the costs of this second appeal
  3. 3.Interest on the actual sums payable plus costs of the initial suit and of the first appeal to run from the date of the respective judgments
  4. 4.The ground of appeal on the multiplicand was dismissed; the multiplier of 13 and the High Court's award as adjusted stand

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Bungoma
H.C.C.A. No. 81 of 2011
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal on matters of law only)

Relief refused

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Interference with the multiplicand as assessed by the High Court

The appellants did not complain before the Court about the exclusion of non-statutory deductions, leaving no basis to interfere

p. 4

Interference with the multiplier of 13 adopted by the first appellate court

The judge's choice of multiplier took into account circumstances the trial court had not considered

p. 3

Costs

Respondent entitled to half the costs of the first appeal; appellants entitled to half the costs of this second appeal; interest on sums payable and on costs of the initial suit and first appeal from the dates of the respective judgments.

Quotable passages

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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 jurisdiction of this Court on a second appeal in Civil matters is prescribed by section 72(1) of the Civil Procedure Act.
p. 3Second appeal jurisdiction
what is a reasonable multiplier is a question of fact to be determined from the peculiar circumstances of each case
p. 3Multiplier as question of fact
The choice of a multiplier is a matter of the court’s discretion which discretion has to be exercised judiciously with a reason.
p. 3Judicial discretion in choosing a multiplier
In computing a reasonable multiplicand, voluntary deductions or any deductions from the deceased’s salary that were not statutory in nature, for example, SACCO contributions and loan repayments, should not have been subtracted from the gross earnings.
p. 4Multiplicand - statutory deductions only
As regards costs of the appeal before the High Court, we agree with the appellants that the appeal was partially successful. It follows therefore the respondent was entitled to half of the costs, and we so find and order.
p. 4Costs - partial success (final orders)
The appellant is also entitled to half of the costs of this appeal. Interest on the actual sums payable plus costs of the initial suit as well as those of the first appeal shall be with effect from the date of the respective judgments.
p. 4Costs and interest - final orders

Issues in the judgment

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minor

The same authority appears under two spellings in the judgment - 'ROGER DAINTY v MWINYI HAJI & ANOTHER [2004] eKLR' and 'ROGER DANITY V MWINYI OMAR HAJI & ANOTHER (supra)' - apparently referring to one case.

minor

The judgment is headed 'AT ELDORET' but is dated and delivered at Kisumu.

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, "Vincent Sululu & another v Rose Wanjiru [2016] KECA 156 (KLR)", Case Analysis (2016). Civil Appeal No. 345 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/156/eng@2016-06-02

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