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Court of AppealAllowedCivil Appeal No 151 of 2018· [2019] KECA 637 (KLR)

Mahenzo Kathengi & another Chambeyu (Suing as the legal representatives of the estate of Hamisi Chambeyu Munyaka v Magunadu Company Limited & another [2019] KECA 637 (KLR)

Court of Appeal of Kenya
28 May 2019
3,182 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal restored higher compensation awards, ruling that courts may not use documents absent at trial to reduce payouts.

What this practically means

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Executive summary

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This was a second appeal arising from a fatal road traffic accident at Mackinon Road on 7th July 2009 in which three passengers in a Toyota Hiace died. Liability against the respondents, owner and driver of the semi-trailer, was settled at 100% by consent, leaving only quantum for trial. Three magistrates' courts awarded damages, including loss of dependency computed on a multiplicand of Ksh. 6,000 (or Ksh. 6,130 in one matter). On first appeal, the High Court (P. J. Otieno, J.) reduced the loss of dependency awards by holding that where there is no documentary proof of earnings, courts should adopt the statutory minimum wage, and further found that one deceased worked outside the municipality, reducing the applicable wage. The Court of Appeal, VISRAM, KARANJA and KOOME, JJ.A, allowed the appeal. Applying the principle that a second appeal is confined to questions of law, and adopting the reasoning in Jacob Ayiga Maruja v Simeon Obayo that earnings need not be proved only by documents, the Court held the Judge misdirected himself by relying on minimum wage regulations not adduced in evidence at trial and by disregarding the evidence before the magistrates. It found no evidence that the deceased in the third matter worked outside the municipality. The Court set aside the High Court judgment, substituted an order dismissing that appeal, and restored the trial courts' loss of dependency awards of Ksh. 980,000, Ksh. 960,000 and Ksh. 980,800, with costs to the appellants in both courts.

Key legal issues

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01

Whether the High Court was entitled to interfere with the trial magistrate's discretion in assessing the multiplicand

Holding

The Judge went beyond the set parameters: he relied on minimum wage documents not adduced in evidence at trial and ignored the evidence and submissions before the trial court. The interference was a misdirection; the trial awards were restored.

Reasoning

The court reiterated that income need not be proved solely by documents, as stated in Jacob Ayiga Maruja v Simeon Obayo. The trial magistrates had assessed the multiplicand of Ksh. 6,000 based on evidence properly before them, balancing the parties' rival proposals. The Judge, having appreciated that dependency is a matter of fact proved by evidence, contradicted himself by disregarding the widow's evidence and substituting a minimum wage figure drawn from regulations not relied upon at trial. That was an erroneous exercise of the discretion to interfere with damages.

p. 4
02

Whether the Judge was entitled to find the deceased in Civil Appeal No. 36 of 2014 worked outside the municipality, thereby reducing the minimum wage multiplicand

Holding

No. There was no evidence before the trial court that the deceased worked outside the municipality; the accident occurring at Mackinon Road did not establish that he worked there. The trial magistrate's multiplicand of Ksh. 6,130 was justified, reasonable and not perverse.

Reasoning

The trial magistrate had applied the minimum wage for a general labourer under Legal Notice No. 70 of 2009, and the Judge did not fault that approach. The Judge's sole ground of interference was his own finding that the deceased worked outside a municipality, but the record contained no evidence supporting that finding; the place of the accident was not evidence of the deceased's place of work. The appellate court therefore found the trial court's assessment unimpeachable and restored the original award.

p. 4

Legal principles established

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  • On a second appeal the Court confines itself to matters of law, resisting the temptation to delve into matters of fact.
  • Income and profession need not be proved only by documents; where a court assesses the multiplicand on the material properly before it, an appellate court ought not to interfere on the basis of documents not adduced at trial.
  • Where documents (such as minimum wage regulations) were not relied upon during trial, a Judge misdirects himself by interfering with the trial court's assessment of damages based on such extraneous material.

Court orders

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  1. 1.Appeals from Civil Appeal Nos. 26 and 35 of 2014 allowed; awards of loss of dependency of Ksh. 604,480 set aside and substituted with Ksh. 980,000 and Ksh. 960,000 respectively as per the trial court's judgment
  2. 2.Appeal in Civil Appeal No. 36 of 2014 allowed; award of loss of dependency of Ksh. 523,200 set aside and substituted with the original award of Ksh. 980,800
  3. 3.Judgment of the High Court set aside and substituted with an order dismissing it with costs to the appellants
  4. 4.Appellants to have the costs of this appeal
On appeal from
High Court of Kenya at Mombasa (P. J. Otieno, J.)
MSA Civil Appeal No. 36 of 2014 (consolidated with Civil Appeal Nos. 26 & 35 of 2014)
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable appellate framework, confined to matters of law

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, "Mahenzo Kathengi & another Chambeyu (Suing as the legal representatives of the estate of Hamisi Chambeyu Munyaka v Magunadu Company Limited & another [2019] KECA 637 (KLR)", Case Analysis (2019). Civil Appeal No 151 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/637/eng@2019-05-28

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