Jemu Gabriel Mazera & another v Hussein Jama & another [2014] eKLR

Key Facts

Deceased Name

Issues

• The Appellants argued that the Learned Magistrate erred in awarding excessive damages under the Law Reform Act and Fatal Accident Act. Specifically, they contested the Kshs. 500,000/- loss of dependency, Kshs. 10,000/- pain and suffering, and a 25-year multiplier for lost years. The Court upheld the awards, noting the trial magistrate's reasonable basis and adherence to legal principles.
• The Respondent's cross-appeal alleged the trial court erred in applying a 1/3 dependency ratio rather than 2/3. The Court affirmed the 1/3 ratio, citing evidence that the deceased's earnings likely did not cover two-thirds of the plaintiff's needs, as the plaintiff maintained some independent livelihood.
• The trial court awarded Kshs. 71,800/- for special damages instead of the Respondent's claimed Kshs. 80,800/-, as only proven receipts were accepted. The Court upheld this decision, aligning with the precedent in ZACHARIA WAWERU THUMBI –Vs- SAMUEL NJOROGE THUKU, which requires strict proof for special damages.

Holdings

• The court validated the special damages award of Kshs. 71,800/-, aligning with the precedent in ZACHARIA WAWERU THUMBI –Vs- SAMUEL NJOROGE THUKU [2006]eKLR. The award matched the pleaded amount for which receipts were provided, even if some receipts exceeded unclaimed expenses.
• The court upheld the trial court's determination on loss of dependency, affirming that the deceased's earnings of Kshs. 5,000/- per month as a casual laborer were sufficient to establish dependency on a balance of probability. The multiplier of 25 years was deemed reasonable given the nature of informal sector employment.
• The court affirmed the pain and suffering award of Kshs. 10,000/-, citing the deceased's instantaneous death and the precedent in HASSAN A. DERA –Vs- SONI FUEL INJECTION CO. LTD (2006)eKLR, which supports this amount under similar circumstances.
• The court rejected the cross-appeal challenging the 1/3 dependency ratio, noting the plaintiff's independent earnings (evidenced by selling camels for funeral expenses) justified the lower ratio. The trial court's application of the ratio was not erroneous.

Remedies

• The court awarded Kshs. 500,000/- for loss of dependency, calculated on the agreed liability ratio of 45% against the respondent and 55% against the appellants.
• Each party to bear their own costs.
• The appeal and cross-appeal are dismissed. Each party is to bear their own costs.
• The court awarded Kshs. 10,000/- for pain and suffering, calculated on the agreed liability ratio of 45% against the respondent and 55% against the appellants.
• The court awarded Kshs. 100,000/- for loss of expectation of life, calculated on the agreed liability ratio of 45% against the respondent and 55% against the appellants.

Probate Status

Legal Principles

• The appellate court cannot substitute its own damages assessment for the trial court's unless there was a legal error or the award was 'inordinately low or high' to constitute a wholly erroneous estimate. This principle was applied to uphold the trial magistrate's multiplier calculation and dependency ratio determination.
• Claimants must strictly prove special damages through documentary evidence (receipts) rather than mere invoices. This was used to justify the trial court's reduction of awarded special damages to the amount specifically claimed and supported by receipts.

Succession Regime

Precedent Name

• ZACHARIA WAWERU THUMBI –Vs- SAMUEL NJOROGE THUKU
• KINYOSI KITUNGI –Vs- SIMON OKOTH OBOK & ANO
• ROGER DAINTY –Vs- MWINYI OMAR HAJI & ANOTHER
• JOSEPH WACHIRA MAINA & ANOTHER -Vs- MOHAMMED HASSAN
• NANCE -Vs- BRITISH COLUMBIA ELECTRIC RAILWAYS CO. LTD
• ALI -Vs- NYAMBU T/A SISERA STORES
• HASSAN A. DERA –Vs- SONI FUEL INJECTION CO. LTD

Executor Name

Cited Statute

• Law Reform Act
• Fatal Accident Act

Executor Appointment

Judge Name

Passage Text

• Having considered the evidence on record I also find that the trial Court cannot be faulted on using multiplier of 25 years. Being a casual labourer, that is being employed in informal sector, in all probability Deceased would not have retired at the age of 60 years. It is possible that he could have continued to work until his health gave in. It is for that reason I do not fault the use of that multiplier.
• With that principle in mind and noting that the Learned Magistrate gave a basis for finding the multiplier I cannot say that the trial Magistrate was wholly erroneous as to attract interference of this Court. There is no merit, therefore in the Cross Appeal.
• There is evidence that the Deceased died instantly. I award the Plaintiff Kshs. 10,000/-.

Beneficiary Classes