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Case Brief · caselaw.co.ke
Court of AppealDismissedCourt of Appeal Civil Appeal (Nyeri)· [2023] KECA 1647 (KLR)

John Mithika M’iabari & 2 others v Maingi Celina

Court of Appeal of Kenya
17 November 2023
3,021 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that documents submitted only in written arguments cannot be used as evidence to calculate damages awards.

What this practically means

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Executive summary

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The deceased, Erastus Kirimi Mithika, an 18-year-old awaiting admission to the University of Kabianga, died in a road traffic accident on 17th December 2013 while travelling in a matatu owned by the respondent. Liability was settled by consent at 85:15 against the respondent. The trial magistrate at Nkubu awarded Kshs.3,966,750/= gross, including Kshs.3,722,400/= for lost years, computed on a multiplicand of Kshs.31,030/= drawn from a document titled 'Civil Servants Salaries and Allowances in Kenya' introduced through the appellant's written submissions. On first appeal, the High Court (D.S. Majanja, J.) held that the document was improperly admitted since it was not part of the agreed list of documents and submissions are not evidence; lacking a multiplicand, the Judge substituted a global award of Kshs.1,000,000/= for loss of dependency. The father appealed to the Court of Appeal at Nyeri, contending that the document was a gazetted public document subject to judicial notice and that the global award was inordinately low. The Court of Appeal, in a unanimous judgment delivered on 17th November 2023, affirmed the High Court. It reaffirmed that parties cannot introduce evidence through written submissions and that the expected income of a deceased is a question of fact to be proved by evidence, not judicial notice. Applying the settled standard for interference with quantum, it held the Kshs.1,000,000/= global award reasonable and dismissed the appeal with costs. The judgment binds lower courts on the rule that submissions are not evidence.

Key legal issues

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01

Whether evidence may be introduced through written submissions

Holding

No. A document not included in the agreed list of documents and not produced on oath is extraneous and cannot ground an award of damages, even if published in the Gazette.

Reasoning

The parties elected to proceed by consent on agreed documents and witness statements. The Civil Servants Salaries document appeared only in the appellant's written submissions. The appellant, bearing the burden of proof, was obliged to testify and produce the document or secure the respondent's agreement; the respondent was entitled to challenge it. Actual or expected income is a question of fact requiring proof by evidence, and the trial court could not take judicial notice of it.

p. 6
02

Whether the High Court's global award of Kshs.1,000,000/= for loss of dependency was inordinately low

Holding

No. The award was a proper exercise of discretion, informed by comparable decisions and the deceased's circumstances, and did not warrant interference.

Reasoning

The learned Judge, deprived of a multiplicand by the improper document, resorted to a global award, considering that children in Kenya, regardless of age, are expected to support their parents, the deceased's age of 18 and pending university admission, and comparable Meru High Court decisions awarding Kshs.1,000,000/= to Kshs.1,200,000/=. Applying the Catholic Diocese of Kisumu v Sophia Achieng Tete standard, the Court found no basis to interfere.

p. 6
03

Scope of the Court's mandate on second appeal

Holding

The mandate on second appeal is confined to matters of law, subject to the exceptions of consideration of irrelevant matters, failure to consider relevant matters, or perversity.

Reasoning

The Court invoked its settled second-appeal jurisdiction as recognised in Maina v Mugiria and Kenya Breweries Ltd – Godfrey Odongo. The dispute before it raised a pure question of law: whether the multiplicand adopted by the trial court had a legal and evidential basis. The factual findings of both lower courts, including that the deceased would have supported his parents, were common ground.

p. 5

Legal principles established

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  • Parties cannot introduce evidence through written submissions; a document not included in the agreed list of documents and not produced on oath cannot form the basis of an award, whether or not it was published in the official Gazette.
  • On a second appeal, the Court of Appeal's mandate is limited to matters of law, unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • An appellate court may interfere with the quantum of damages only where the trial court applied wrong principles or misapprehended the evidence so as to arrive at an entirely erroneous estimate; it may not substitute its own figure merely because it would have awarded differently.

Court orders

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  1. 1.The appeal is dismissed with costs
On appeal from
High Court of Kenya at Meru
Jurisdiction invoked
Second appeal to the Court of Appeal limited to matters of law (Court of Appeal's appellate jurisdiction over High Court decisions)

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, "John Mithika M’iabari & 2 others v Maingi Celina", Case Analysis (2023). Court of Appeal Civil Appeal (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1647/eng@2023-11-17

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