Roger Dainty v Mwinyi Omar Haji & another

Court of Appeal, at Mombasa July 30, 2004

Omolo, Githinji JJ A & Onyango-Otieno Ag JA

Civil Appeal No 59 of 2004

(Appeal from the Judgment of the High Court of Kenya at Mombasa (Lady Justice Khaminwa) dated 21st day of November, 2003 in HCCC No RD 107 of 1999)

Damages – award of damages- general damages – assessment of damages for lost years – whether living expenses should be deducted from such damages – whether courts have established a standard multiplier in awarding the damages – how the multiplier is ascertained.

This appeal was against an award of damages for lost years under the Law Reform Act. The appellant argued that the Superior Court erred in failing to take into account the multiplier applied in other cases which showed an established practice. Further, the appellant contended that living expenses should not be deducted from an award of damages for lost years.

Held:

1. Courts have not established as a matter of practice the appropriate multiplier to be applied to different age groups of victims of accidents.

What is a reasonable multiplier in our jurisdiction is a question of fact to be determined from the peculiar circumstances of each case.

2. To ascertain the reasonable multiplier in each case the Court would have to consider such relevant factors as: the income of the deceased, the kind of work he was doing, the prospects of promotion and his expectation of working.

3. Where the working life of a living plaintiff has been shortened by injury he suffers loss of prospective earnings and is entitled to an award for the “lost years” being the period which he could have worked had he not suffered the injuries. In such a case, the plaintiff’s living expenses are not deducted from his net salary in assessing the appropriate multiplier.

4. Conversely, in computing a deceased person’s loss of earnings in the lost years both under the Fatal Accidents Act and under the Law Reform Act, the person’s estimated living expenses in the lost years are deducted for the reason that they cannot constitute part of the deceased’s estate.

Cases

1. Kitavi v Coastal Bottlers Limited [1985] KLR 47; [1982-88] 1 KAR 891

2. Shabani v City Council of Nairobi [1985] KLR 516; [1982 - 88] 1 KAR 681

3. Hassan v Nathan Mwangi Kamau Transporters & 4 others [1986] KLR 457; [1982 – 88] 1 KAR 946

4. Alulwa, Musa v Attorney General & another High Court Civil Case No 1597 of 2000

5. Bor v Onduu [1988 – 1992] 2 KAR 288

6. Mariga v Musila [1984] KLR 251; [1982 – 88] 1 KAR 507

7. Pickett v British Rail Engineering Ltd [1979] 1 All ER 774; [1980] AC 136; [1978] 3 WLR 955; [1979] 1 Lloyds Rep 519

8. Gammel v Wilson [1981] 1 All ER 578 ; [1981] 2 WLR 248; [1982] AC

9. Muka, Stella F v Vishra Ranji Halale & another High Court Civil Case No 1870 of 1984

Statutes

1. Fatal Accidents Act (cap 32)

2. Law Reform Act (cap 26)

Advocates

Mr Satchu for Appellants

Katana Kitsao Nzingo v Republic

Court of Appeal, at Mombasa January 30, 2004

Tunoi, O’Kubasu JJ A & Onyango Otieno Ag JA

Criminal Appeal No 200 of 2003

(Appeal from the judgment of the High Court of Kenya at Mombasa (Tutui,

Commissioner of Assize) dated 1st August, 2003 in HCCr Appeal No 14 of 2003)

Criminal Practice and Procedure – appeal - jurisdiction of a single judge to hear an appeal – whether a single judge has jurisdiction to hear an appeal – circumstances under which a single Judge can hear an appeal – effect of a single judge hearing an appeal without authority of the Chief Justice

Criminal Practice and Procedure – appeal - legal representation- where an appellant appeals against a judgment in a capital offence – whether an appellant has a right to legal representation

The appellant was charged with robbery with violence but convicted of a lesser offence of stealing from the person and sentenced to five years imprisonment together with five strokes of the cane.

He preferred an appeal to the High Court, where he was unrepresented.

He argued that the sentence was harsh and pleaded for leniency. The

Commissioner of Assize reinstated the original charge of robbery with violence and proceeded to sentence the appellant to death.

A second appeal was filed where the Principal State Counsel conceded to the appeal submitting that the Court had no jurisdiction to entertain the appeal

Held:

1. The Commissioner of Assize proceeded to hear the appeal as a single judge contrary to the provisions of section 359(1) of the Criminal Procedure Code. There is no indication that there were directions from the Chief Justice giving authority for her to hear the appeal as a single judge.

2. The procedure adopted by the High Court was prejudicial to the appellant. It is standard practice that an appellant who appeals against the judgment in a capital offence must be provided with legal representation.

3. The Commissioner of Assize did not have jurisdiction to entertain the appellant’s appeal and the proceedings had to be declared a nullity.

Proceedings in the superior court declared a nullity, appellant’s appeal remitted to the High Court.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 279(a); 296(2)

2. Criminal Procedure Code (cap 75) section 359(1)

Advocates

Mr Mwangi for the State/ Respondent.

Mr Buti for the Appellant.