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Court of AppealDismissedCivil Appeal No. 86 of 2016

Dickson Taabu Ogutu (Suing as the legal representative of the estate of Wilberforce Ouma Wanyama v Festus Akolo & another [2020] KECA 884 (KLR)

Court of Appeal
31 January 2020
1,739 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed the estate's appeal because it never pleaded or proved that the deceased's wife and parents depended on him, so only a 1/3 dependency ratio stood.

What this practically means

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Executive summary

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This was a second appeal before the Court of Appeal at Kisumu (Asike-Makhandia, Kiage and Odek, JJ.A) arising from a fatal road accident on 18th September 2013 in which the deceased was struck by a tractor driven by the 1st respondent. The trial magistrate awarded Kshs. 1,320,000, adopting a dependency ratio of 2/3 on the basis that the deceased supported his parents, wife and daughter. On consolidated first appeals, the High Court (Tuiyott, J) found no evidence supporting dependency by the parents or wife and reduced the ratio to 1/3, lowering the award. The appellant appealed, contending the Judge misdirected himself on the dependency ratio. The respondents maintained that dependency is a question of fact with which a second appellate court should not interfere. The Court of Appeal held that, applying the Supreme Court's characterization of 'matters of law' in the Munya case, the challenge fell within the evidentiary element and was properly before it. However, on the merits, the Court found the appellant had never pleaded that the deceased had a wife and had failed to prove that the aged parents were dependants or the extent of their loss; relief flows only from the pleadings and the burden of proving dependency lay on the appellant. The Judge therefore neither misapprehended the facts nor applied wrong principles, and the Court declined to interfere with the 1/3 ratio. The appeal was dismissed with no order as to costs. The decision binds lower courts on the second appellate court's confinement to matters of law, the rule that relief flows only from pleadings, and the absence of any fixed rule for ascertaining dependency.

Questions the Court framed

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

  1. 1.Whether the issue of the dependency ratio is a matter of fact or a matter of law for purposes of a second appeal
  2. 2.Whether the learned Judge of the first appellate court erred in reducing the dependency ratio from 2/3 to 1/3 on the basis that the deceased had only one dependant, his child

Key legal issues

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01

Whether the dependency ratio is a matter of fact or law in a second appeal

Holding

The issue is not purely factual; the evidentiary element of 'matters of law' permits a second appellate court to evaluate the High Court's evidentiary conclusions, so the issue was properly before the Court.

Reasoning

Applying the Munya characterization of 'matters of law', the Court found the challenge to the High Court's evidentiary conclusion on dependency fell within the evidentiary element, giving it jurisdiction on second appeal notwithstanding that dependency is primarily factual.

p. 3
02

Whether the first appellate Judge erred in reducing the dependency ratio to 1/3

Holding

The Judge did not err: the appellant pleaded only the parents and daughter as dependants, never pleaded a wife, and adduced no evidence of the parents' dependency or its extent, so the reduction to 1/3 could not be disturbed.

Reasoning

Relief flows only from pleadings; the wife's existence surfaced only in cross-examination and was never pleaded. The appellant bore the onus of proving the parents' dependency and the extent of loss, which was not discharged. Counsel's citation of authorities did not displace the evidentiary failure, and the Court had no basis to interfere with the first appellate Judge's determination.

p. 3

Legal principles established

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  • A second appellate court is confined to matters of law and will not interfere with findings of fact unless the two courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
  • Reliefs sought from a court can only flow from the pleadings; damages must be proved, not merely claimed
  • The degree of dependency on a deceased's income is a matter of fact to be ascertained from the evidence of earnings and expenditure on the family; there is no fixed rule or principle
  • The onus lies on the party claiming dependency to prove both the dependency and the extent of the loss suffered
  • Matters of law comprise a technical element (interpretation of constitutional or statutory provisions), a practical element (application of the law to facts or evidence) and an evidentiary element (evaluation of a trial court's conclusions on the evidence)

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs

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 Busia
High Court Civil Appeal 27 & 30 of 2014
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable appellate framework, confined to matters of law

Relief refused

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Setting aside the dependency ratio of 1/3 adopted by the High Court and substituting it with a 2/3 ratio

The appellant did not plead that the deceased had a wife, nor prove that the aged parents were dependants or the extent of dependency; the Judge neither misapprehended the facts nor applied wrong principles

p. 3

Costs of the appeal to the appellant

The appeal lacked merit and was dismissed with no order as to costs

p. 3

Costs

No order as to costs - each party to bear their own costs

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.

In the result, this appeal lacks merit and is hereby dismissed with no order to costs.
p. 3Disposition
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
p. 2Duty of a second appellate court
It is trite law that reliefs sought from court can only flow from the pleadings.
p. 3Relief flows from pleadings
The onus was on the appellant to prove that their aged parents were indeed dependent on the deceased and the extent of loss they have suffered
p. 3Burden of proving dependency
There can be no rule or principle in such a situation.
p. 3No fixed dependency ratio rule

Issues in the judgment

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minor

Typographical error in the key dispositive sentence: 'In those circumstances find that the learned Judge did misapprehend the facts nor apply the wrong principles of law' - the sentence appears to omit 'we' and likely intended 'did NOT misapprehend', which the following sentence confirms ('He did not err').

minor

The arithmetic of the reduction is unexplained: reducing dependency from Kshs. 1,200,000 to Kshs. 970,000 does not correspond to a straightforward change of ratio from 2/3 to 1/3, and the High Court's award table includes a 'General Damages' head duplicating the earlier heads.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dickson Taabu Ogutu (Suing as the legal representative of the estate of Wilberforce Ouma Wanyama v Festus Akolo & another [2020] KECA 884 (KLR)", Case Analysis (2020). Civil Appeal No. 86 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/884/eng@2020-01-31

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