Rosemary Mwasya v Steve Tito Mwasya & another [2018] KECA 822 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a driver's full liability for a fatal crash but cut the damages award by one third to account for tax.
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 learned Judge erred in finding the appellant wholly liable in negligence
- 2.Whether the learned Judge misapprehended the evidence and or took into consideration extraneous and irrelevant factors when arriving at the conclusion reached
- 3.Whether the learned Judge fell into error when he allowed the production of the Abstract from the police without calling the maker
- 4.Whether the learned Judge failed to consider the vagaries of life when choosing a multiplier of thirty (30) years
- 5.Whether the learned Judge erred in adopting a multiplicand of Kshs. 118,564/=
Key legal issues
#Liability of the driver for a fatal road accident in which the deceased was a passenger
The appellant, as owner and driver of the accident vehicle, was rightly held 100% liable; the deceased as a passenger had no control over the manner of driving, and the appellant attributed blame only to a third party against whom she failed to take out proceedings.
The court reviewed the pleadings and the uncontroverted testimony of the respondents' sole witness and found the trial judge's conclusions in tandem with the record. The appellant pleaded that she would enjoin the owner/driver of vehicle KBH 358C as third party but never did so, and tendered no defence evidence. She also did not blame the passengers. The finding of 100% liability was therefore affirmed on appeal.
Admissibility of a police abstract produced through PW1 without calling its maker
The trial judge's discretion to allow production of the abstract through PW1 was properly exercised and would not be disturbed; the appellant did not signal at pre-trial that she required the maker, and did not appeal the ruling.
The court applied the settled principles governing interference with judicial discretion, holding that the mode of production could only be faulted if the exercise of discretion was erroneous on the record. Even if the maker had testified to completed investigations attributing blame to a third party, that would not have absolved the appellant absent successful third party proceedings and exculpatory evidence.
Choice of multiplier and multiplicand for lost years where the deceased was a 19-year-old university student
The trial judge properly considered the vagaries of life by presuming employment at age 25 and retirement at 55, and properly adopted the salary survey figure for accountants as the multiplicand, subject to a one-third discount for taxation and statutory deductions.
The court found that pegging employment access at 25 years and retirement at 55, rather than the prevailing retirement age of 60, demonstrated that the vagaries of life were taken into account. The salary survey was the only evidence of earning capacity. However, the multiplicand had to be reduced by one third for taxation and compulsory statutory deductions, producing Kshs. 79,034/= and a lost years award of Kshs. 9,484,080.
Legal principles established
#- On a first appeal, the Court of Appeal must analyse and evaluate the evidence afresh and reach its own independent decision, while allowing for the trial court's advantage of hearing and seeing the witnesses.
- An appellate court may only interfere with the exercise of judicial discretion where the judge misdirected himself on the law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision was plainly wrong.
- In assessing damages for lost years, the multiplicand chosen must be discounted to reflect taxation and other compulsory statutory deductions from earnings.
- A defendant who blames a third party for an accident but fails to take out third party proceedings cannot be absolved from liability on the basis of that third party's alleged negligence.
Court orders
#- 1.Appeal on liability dismissed and liability affirmed at 100% against the appellant
- 2.Multiplier of thirty (30) years and multiplicand of Kshs. 118,546/= affirmed, save for factoring in a 1/3rd reduction in the multiplicand to cover taxation
- 3.Special damages of Kshs. 155,000/= with interest from the date of filing
- 4.General damages for pain and suffering of Kshs. 20,000/=
- 5.General damages for lost years of Kshs. 79,034 x 30 x 1/3 x 12 = Kshs. 9,484,080.00
- 6.General damages for loss of expectation of life of Kshs. 100,000.00
- 7.Total award on damages of Kshs. 9,759,080.00
- 8.General damages to carry interest from the date of Judgment in the court below
- 9.Appellant to have half (1/2) costs both on appeal and in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 221 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court's civil judgments
Relief refused
#Setting aside of the finding that the appellant was 100% liable in negligence
The trial judge's findings were in tandem with the pleadings and the uncontroverted evidence of the respondents' sole witness; the deceased, as a passenger, had no control over the manner in which the appellant drove the vehicle
Exclusion of the police abstract for failure to call its maker
The appellant failed to indicate at the pre-trial stage that she would require the maker of the abstract to attend court, did not appeal against the ruling allowing production through PW1, and its production would not in any way have affected the conclusion on liability
Costs
The appellant who has not substantially succeeded on his appeal will have half (1/2) costs both on appeal and the High Court
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.
For the reasons given in the assessment above, we dismiss the appeal on liability and affirm liability at 100% as against the appellant.
(3) General damages for lost years Kshs.79,034/=x30x1/3 x12=9,484,080.00. (4) General damages for loss of expectation of life Kshs. 100,000.00 Total award on damages Kshs. 9,759,080.00.
(7) The appellant who has not substantially succeeded on his appeal will have half (½) costs both on appeal and the High Court.
It is the duty of the Court of Appeal, as a first appellate court, to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeing the witnesses and their demeanour and giving allowance for that.
an appellate court may only interfere with the exercise of judicial discretion if satisfied either; (a) the Judge misdirected himself on law, or (b) that he misapprehended the facts, or (c) that he took account of considerations of which he should not have taken an account of; or (d) that he failed to take account of consideration of which he should have taken account; or (e) that his decision albeit discretionary one, was plainly wrong.
the failure to factor in, the element of taxation and other compulsory statutory deductions which in our view would have amounted to one third of the figure chosen as the multiplicand which would work out as Kshs. 118,546/=x 1/3=39,512.
Issues in the judgment
#The multiplicand figure appears inconsistently in the judgment - the trial judge's quoted judgment and the multiplicand issue use Kshs. 118,564/= and Kshs. 118,546/= interchangeably
The accident vehicle registration number appears inconsistently in the judgment, variously as KBR 100B and KBK 100B
The signature block lists E.M. Githinji without a rank title while Nambuye and Okwengu are marked JUDGE OF APPEAL, though the coram shows all three sat as JJ.A
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rosemary Mwasya v Steve Tito Mwasya & another [2018] KECA 822 (KLR)", Case Analysis (2018). Civil Appeal No. 100 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/822/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.