|Civil Appeal 73 of 1994
|Salvatore De Luca v Abdullahi Hemed Khalil & Salim Al Amody
|27 Jan 1994
|Court of Appeal at Mombasa
|Riaga Samuel Cornelius Omolo, Philip Kiptoo Tunoi, Richard Otieno Kwach
|Salvatore De Luca v Abdullahi Hemed Khalil & another  eKLR
|Mr. Kasmani for the Appellant
|(Appeal from a judgement of the High Court of Kenya at Mombasa (Mr Justice E M Githinji) dated 21st May, 1990, in Civil Case No 778 of 1987)
|Individual v Individual
|Mr. Kasmani for the Appellant
Salvatore De Luca v Khalil & another
Court of Appeal, at Mombasa January 27, 1995
Kwach, Omolo and Tunoi JJ A
Civil Appeal No 73 of 1994
(Appeal from a judgement of the High Court of Kenya at Mombasa (Mr Justice E M Githinji) dated 21st May, 1990, in Civil Case No 778 of 1987)
Judgment – payment in foreign currency – rule in – validity of an order for conversion of currency as at the date of the accident.
Fatal Accident – husband and wife – loss of consortium and servitium – trial court rejecting claim for – validity of order.
The appellant who lost his wife in fatal accident sued the respondent and obtained judgment in default of defence in February 26, 1988.
In assessing damages the trial judge awarded damages in Italian Lira (the currency of the appellant’s country) and directed that the date of conversion be the date of the accident. The learned judge however rejected the appellant’s claim for damages for loss of companionship and servitium of his wife.
The appellant contested the trial judge’s finding by appealing on two main grounds, namely, that the learned judge erred in converting the loss and damages in Italian Lira as at the date of the accident and secondly that failure to award damages for loss of love and consort was erroneous.
1. Where judgment involves payment in foreign currency the conversion date to be inserted in the claim or in the judgment of the court is the date of payment.
2. While the learned judge erred in holding that proper date of conversion of damages in Italian Lira into Kenya Shillings was in 1986 the Court would not upset his judgment in view of confusion appertaining to the date of payment of the decretal sum.
3. There is no doubt that the appellant lost companionship of his wife, there is moreover an impairment in the social life of the appellant and his young children who, too have lost love, care and devotion of their mothers. The learned judge accordingly erred in failing to award any damages for loss of consortium and servitium.
No cases referred to.
1. Law Reform Act (cap 26)
2. Fatal Accidents Act (cap 32)
Mr Kasmani for the Appellant
|One party or some parties represented
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE COURT OF APPEAL
(Coram: Kwach, Omolo and Tunoi JJ A )
CIVIL APPEAL NO 73 OF 1994
SALVATORE DE LUCA...............................APPELLANT
ABDULLAHI HEMED KHALIL................RESPONDENT
SALIM AL AMODY..................................RESPONDENT
(Appeal from a judgement of the High Court of Kenya at Mombasa (Mr Justice E M Githinji) dated 21st May, 1990,
Civil Case No 778 of 1987)
JUDGMENT OF THE COURT
This is an appeal from a judgement and decree of the High Court of Kenya at Mombasa (Githinji, J) given on 21st May, 1990 awarding the appellant a total of Shs. 770,239.40 in general and special damages under the law Reform Act and the Fatal Accidents Act.
The appellant is an Italian citizen domiciled in Italy. He was the husband of Anna Deo Meo whilst on a tour of Kenya was tragically killed in a road accident along the busy Mombasa-Malindi road on March 27, 1986. The learned judge of the superior court assessed the damages pursuant to an interlocutory judgement entered against the respondents on February 26, 1988 following their failure to file a defence.
The appellant had appealed to this court on four grounds of appeal but at the commencement of the hearing, Mr. Kasmani, counsel for the appellant, argued on two grounds only. These were as follows;-
“1. The learned judge erred in law in converting the loss and damages in Italian Lira at the rate of Kshs 1.00, which was the conversion rate in1986.
3.The learned judge erred in failing to award any damages for loss of love and consort by the plaintiff and for loss by his two sons at their tender age, of love, care and devotion of their mother.”
There is considerable merit in the first ground of appeal since it is now well settled that where judgement involves payment in foreign currency the conversion date to be inserted in the claim or in the judgement of the court is the date of payment. However, Mr. Kasamani informed the court from the bar that the decretal sum was fully paid to the appellant “sometime in 1991” but he did not know the exact date of payment nor the prevailing rate of exchange at the date of payment he was, in fact, not sure of the most elementary details of the payment. Whilst we would agree that the learned judge erred in holding that proper date for conversion of damages in Italian Lira into Kenyan Shillings was in 1986 we will not upset his judgement in view of the confusion appertaining to the date of payment of the decretal sum. The first ground of appeal must therefore fail.
So far as consortium is concerned, there is evidence that the appellant loved his wife and so did their children. The appellant has not re-married. No doubt, he had lost his wife’s companionship. There is, moreover, an impairment in the social life of the appellant and his young children who, too, have lost love, care and devotion of their mother. The learned judge clearly erred, in our view, in failing to award any damages for loss of consortium and servitium. Bearing in mind the fact that each case should be judged on its own facts, we would think that an award of Shs. 40,000/= is a fair measure for this head of damages and we award the appellant this sum with interest from the date of judgement in the superior court until payment in full.
As the appeal has succeeded on one ground only we award the appellant one third of his taxed costs.
Dated and delivered at Mombasa this 27th day of January, 1994.
JUDGE OF APPEAL
R. S. C. OMOLO
JUDGE OF APPEAL
P. K. TUNOI
JUDGE OF APPEAL