David Sakari Wasike (Suing as the Legal Representative of the Estate of the Late Jentrix Nakhumicha Simiyu v Barisi & another (Civil Appeal 146 of 2017) [2021] KECA 145 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a family's claim for loss of dependency damages because they failed to prove who actually depended on the deceased.
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 trial judge erred in failing to award damages for loss of dependency under the Fatal Accidents Act
- 2.Whether the appellant proved the existence and dependency of the alleged dependants (the deceased's mother and brother)
- 3.The duty of a first appellate court to re-evaluate the evidence and the threshold for interfering with an award of damages
Key legal issues
#Whether the appellant proved loss of dependency under the Fatal Accidents Act
The appellant failed to prove the existence and dependency of the deceased's alleged mother, the only person who would qualify as a dependant under section 4(1) of the Fatal Accidents Act, as she neither testified nor was named in the chief's letter.
Section 4(1) of the Fatal Accidents Act confines actions for the benefit of the wife, husband, parent and child of the deceased. The appellant was therefore obligated to prove the existence of the alleged mother. He failed by not calling her to testify and not naming her as a dependant in the chief's letter tendered in evidence. The court adopted the Gerald Mbale Mwea position that dependency is a question of fact to be proved by the one who asserts it, and aligned with James Mukolo Elisha where no documentary evidence of dependency was adduced.
Duty of a first appellate court and the threshold for interfering with an award of damages
A first appellate court must re-evaluate the evidence and reach its own conclusion, but may only interfere with a damages award where it is inordinately low or high, or where the trial judge acted on wrong principles or misapprehended the facts.
Relying on Kenya Ports Authority v Kuston and Selle v Associated Motor Boat Co., the court reiterated that it is not bound by the trial judge's findings of fact where the judge failed to take account of particular circumstances or probabilities, or where the impression based on a witness's demeanour is inconsistent with the evidence generally. On damages, Kemfro Africa and Jane Chelagat Bor set the threshold for interference. Applying these principles, the court found no basis to disturb the trial court's refusal to award loss of dependency.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence adduced before the trial court and come to its own conclusion, bearing in mind that the trial court had the advantage of seeing and assessing the demeanour of the witnesses.
- An appellate court may only interfere with an award of damages where the award is inordinately low or high so as to represent an erroneous estimate, or where the trial judge acted on wrong principles of law or misapprehended facts.
- Dependency under the Fatal Accidents Act is a question of fact that must be proved by the person asserting it; the claimant must adduce evidence proving both the existence of the alleged dependant and their dependency on the deceased.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- HCCC No. 169 of 2012 (originally SPMCC No. 89 of 2011, Senior Principal Magistrate's Court at Molo)
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal (appeal as of right against the decision of the High Court; no specific constitutional or statutory provision cited in the judgment)
Relief refused
#Damages for loss of dependency under the Fatal Accidents Act
The appellant failed to prove the existence and dependency of the alleged dependants; the alleged mother was neither called to testify nor named as a dependant in the chief's letter
Costs
The appeal is dismissed with costs to the respondents
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 being a first appeal, it is the duty of this court to reconsider and reevaluate the evidence that was adduced before the trial court and come to its own conclusion, bearing in mind that the trial court had the advantage of seeing and assessing the demeanor of the witnesses.
The issue of dependency is always a question of fact to be proved by he who asserts it.
The upshot of the above assessment and reasoning is that we find no merit in the appellant's appeal. The same is accordingly dismissed with costs to the respondents.
Issues in the judgment
#The names of the respondents are not stated in the judgment; they are identified only as the owner/insurer and driver of motor vehicle registration KBK 731D. The appellant's full name is also not expressly stated in the judgment text.
The appeal number of the present appeal before the Court of Appeal is not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Sakari Wasike (Suing as the Legal Representative of the Estate of the Late Jentrix Nakhumicha Simiyu v Barisi & another (Civil Appeal 146 of 2017) [2021] KECA 145 (KLR)", Case Analysis (2021). Civil Appeal No. 21 of 2018 (as inferred from Memorandum of Appeal dated 2nd October, 2017 - appeal number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/145/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.