Festus Were & another v John Chiliva Wafula & another[2004] eKLR

Key Facts

Issues

• The court examined whether the award of damages for loss of consortium to the first plaintiff was appropriate given the spouse's death. The applicant argued that such damages are only applicable when the spouse is alive and incapacitated under common law, and that the Fatal Accidents Act does not cover consortium. The respondent maintained the court's authority to award consortium damages even post-death, citing specific judicial findings. The judge concluded that while the award may be legally questionable, it did not constitute an error on the face of the record and could not be reviewed under the Civil Procedure Act.
• The court addressed whether the judge's decision to award consortium damages was an error on the face of the record, which would justify a review under Order 44 Rule 1. The applicant contended this was a clear procedural mistake, while the respondent argued it was not reviewable and required an appeal. The judge ruled that the award, though potentially incorrect, did not meet the threshold for an error on the face of the record and dismissed the application.

Holdings

• The court dismissed the application for review of the judgment concerning the award of Kshs.100,000 for loss of consortium, determining that the error was not on the face of the record and thus not a valid ground for review.
• The court held that the award of damages for loss of consortium in this case was not an error on the face of the record, as the spouse's death does not automatically invalidate such an award, and the matter must be addressed through an appeal.

Remedies

Monetary Damages

Legal Principles

• The court referenced the Fatal Accidents Act, noting that it only provides for dependency (loss of income) and does not cover loss of consortium. This statutory interpretation was used to argue the inapplicability of consortium damages in this case.
• The court held that an award of damages for loss of consortium in the case of a deceased spouse is not an error on the face of the record and thus cannot be reviewed under Order 44 Rule 1. The ruling emphasized that such errors require an appeal rather than a review by a court of equal jurisdiction.

Precedent Name

• S.J. Chege and Another v Johanna W M Vesters and Another
• Nyamogo and Nyamogo Advocates v Kogo

Cited Statute

• Civil Procedure Act
• Fatal Accidents Act
• Civil Procedure Rules

Judge Name

Passage Text

• I therefore dismiss this application with costs to the respondent.
• In my view it is not an error on the face of the record. Though in the case of Nyamogo and Nyamogo Advocates –vs- Kogo the court held that an error on the face of record cannot be defined precisely or exhaustively, the court went on to state at page 175 line (9) that 'where error or wrong view is certainly no grounds for a review although it may be for appeal.' In my view, the finding and award of damages for loss of consortium in this particular case could be wrong as the spouse died but it was not an error on the face of the record. It can be challenged, but only through an appeal. It is no ground for a review.