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Court of AppealPartially AllowedCivil Appeal (Court of Appeal, Nairobi)· [2025] KECA 975 (KLR)

Jimcab Services Limited v Bartholomew Bernard Osodo & Jacob Otieno (suing As The Administrators of The Estate of Richard Omondi Odhiambo Deceased)

Court of Appeal of Kenya
23 May 2025
2,865 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal reduced a fatal accident award because salary vouchers showed part of the deceased's pay was an advance, not actual earnings.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against a judgment of the High Court (Sergon, J.) delivered on 19th February 2016, awarding the respondents, administrators of the estate of Richard Omondi Odhiambo, a total of Kshs. 3,214,055.00 for a fatal road traffic accident on 10th October 2005. Liability was not challenged; the appeal targeted the awards of general and special damages. The Court framed four issues: admissibility of documents under Section 35 of the Evidence Act, proof of the deceased's monthly income, the multiplier of 39 years, and the award of Kshs. 150,000 for pain and suffering. On admissibility, the Court held the trial judge was entitled to accept the explanation for the employer's inability to attend court, given his advantage of seeing and hearing the witnesses, and declined to interfere. On income, the Court found a discrepancy between the employer's letter (Kshs. 9,280.00) and the petty cash vouchers, which showed Kshs. 3,000.00 of the total was an advance; the proven monthly income was therefore Kshs. 6,280.00. On the multiplier, the Court noted both parties had urged a multiplier of 39 before the trial court, so the appellant could not belatedly challenge it. On pain and suffering, applying the Kemfro Africa principles, the Court declined to disturb Kshs. 150,000. The appeal was allowed only in part: the lost years award was reduced to Kshs. 1,959,360.00 and the total award substituted at Kshs. 2,278,055.00, with interest from 19th February 2016. The respondents received the costs of the High Court proceedings, and each party bore its own costs of the appeal. Judgment was delivered at Nairobi on 23rd May 2025 by S. Gatembu Kairu, F. Ochieng and A.O. Muchelule, JJ.A.

Key legal issues

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01

Admissibility of documents under Section 35 of the Evidence Act where the maker did not attend court

Holding

The trial judge did not err in admitting the employer's letter and salary vouchers; he was satisfied on evidence that the maker's attendance could not be procured, and an appellate court will not lightly disturb his findings.

Reasoning

The proviso to Section 35 permits admission without calling the maker where the maker is dead, cannot be found, is incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense. PW1's evidence showed the Managing Director had relocated to Homa Bay for treatment of a chronic illness. The judge, having seen and heard the witnesses, accepted the explanation; this Court had no basis for interfering with that finding of fact.

p. 3
02

Proof of the deceased's monthly income for computing damages for lost years

Holding

The proven monthly income was Kshs. 6,280.00, not Kshs. 9,280.00, because the petty cash vouchers showed Kshs. 3,000.00 of the total was an advance; the minimum wage question therefore did not arise.

Reasoning

Although the employer's letter stated a monthly salary of Kshs. 9,280.00, the admitted petty cash vouchers broke this down into an end-month salary of Kshs. 6,280.00 and an advance of Kshs. 3,000.00. Had the trial judge scrutinised the vouchers he would have detected the discrepancy. The appeal succeeded only to the extent that the lost-years award was recomputed on Kshs. 6,280.00, yielding Kshs. 1,959,360.00.

p. 4
03

The multiplier of 39 years adopted for a 21-year-old deceased

Holding

The Court would not disturb the multiplier of 39 years because both parties, in their submissions before the trial court, had presented that multiplier as applicable.

Reasoning

Although the multiplier for a 21-year-old appeared high on its face, both sides had urged a retirement age of 60 years and a multiplier of 39 in their submissions below. The only contested question was the multiplicand. The trial judge therefore rightly adopted the agreed multiplier, and it was too late for the appellant to challenge a matter that was not contested at trial.

p. 4
04

Whether to interfere with the award of Kshs. 150,000 for pain and suffering

Holding

The award of Kshs. 150,000 for pain and suffering was left undisturbed because the appellant failed to show it was a wholly erroneous estimate on the Kemfro Africa principles.

Reasoning

The trial judge found the deceased did not die on the spot but was taken to Kenyatta National Hospital where he died, suffering great pain. Although another court might have awarded a different amount, the appellant did not demonstrate that the judge took into account an irrelevant factor, omitted a relevant one, or that the amount was inordinately high or low. The invitation to interfere was declined.

p. 5

Legal principles established

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  • An appellate court will not lightly differ from the findings of fact of a trial judge who had the benefit of seeing and hearing the witnesses, and will interfere only if the findings are based on no evidence, on a misapprehension of the evidence, or on demonstrably wrong principles.
  • An appellate court may not disturb an award of damages unless the trial judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate of the damage.
  • Documents must be produced by their makers in civil proceedings except in the circumstances allowed by Section 35 of the Evidence Act (death, incapacity, or attendance that cannot be procured without unreasonable delay or expense).
  • Where damages are computed on a multiplicand, the court must scrutinise the documentary evidence of earnings and use only the amount actually proved.

Court orders

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  1. 1.The award for lost years of Kshs. 2,895,360.00 based on a multiplicand of Kshs. 9,280.00 is set aside and substituted with an award of Kshs. 1,959,360.00 (6,280.00 x 12 x 2/3 x 39)
  2. 2.The total award of Kshs. 3,214,055.00 made by the High Court is set aside and substituted with an award of Kshs. 2,278,055.00 (special damages Kshs. 68,695.00; pain and suffering Kshs. 150,000; lost years Kshs. 1,959,360; loss of expectation of life Kshs. 100,000)
  3. 3.Interest on that amount to accrue at court rates from the date of judgment of the High Court (19th February 2016) until payment in full
  4. 4.The respondents to have the costs of the proceedings before the High Court
  5. 5.Each party to bear its own costs of the appeal
On appeal from
High Court of Kenya at Nairobi
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules

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, "Jimcab Services Limited v Bartholomew Bernard Osodo & Jacob Otieno (suing As The Administrators of The Estate of Richard Omondi Odhiambo Deceased)", Case Analysis (2025). Civil Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/975/eng@2025-05-23

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