Roger Dainty V Mwinyi Omar Haji & Another  EKLR
|Civil Appeal 59 of 2004||30 Jul 2004|
Riaga Samuel Cornelius Omolo, John walter Onyango Otieno, Erastus Mwaniki Githinji
Court of Appeal at Mombasa
Roger Dainty v Mwinyi Omar Haji & Mwinyi Haji Faki
Roger Dainty v Mwinyi Omar Haji & another  eKLR
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.
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.
1. Kitavi v Coastal Bottlers Limited  KLR 47; [1982-88] 1 KAR 891
2. Shabani v City Council of Nairobi  KLR 516; [1982 - 88] 1 KAR 681
3. Hassan v Nathan Mwangi Kamau Transporters & 4 others  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  KLR 251; [1982 – 88] 1 KAR 507
7. Pickett v British Rail Engineering Ltd  1 All ER 774;  AC 136;  3 WLR 955;  1 Lloyds Rep 519
8. Gammel v Wilson  1 All ER 578 ;  2 WLR 248;  AC
9. Muka, Stella F v Vishra Ranji Halale & another High Court Civil Case No 1870 of 1984
1. Fatal Accidents Act (cap 32)
2. Law Reform Act (cap 26)
Mr Satchu for Appellants