(1968) East Africa Law Reports

1968
Volume 1
Volume 1
Samuels v Republic [1968] 1 EA 1 (HCK)
Trustees for the Port of Aden v Hathadaru and another [1968] 1 EA 7 (JCPC)
Nsubuga v Uganda [1968] 1 EA 10 (HCU)
Namyalo v Ratanshi [1968] 1 EA 14 (HCU)
Panesar v Popat [1968] 1 EA 17 (CAN)
Embu Public Road Services Ltd v Riimi [1968] 1 EA 22 (CAN)
Saldanha and others v Bhailal & Co and others [1968] 1 EA 28 (HCK)
Khaled and others v Athanas Bros (Aden) Ltd [1968] 1 EA 31 (JCPC)
Wambua v Wathome and another [1968] 1 EA 40 (HCK)
Kagenyi v Musiramo and another [1968] 1 EA 43 (HCU)
New Wangigi Hotel v Kabungo [1968] 1 EA 47 (HCK)
Patel v Republic [1968] 1 EA 50 (HCT)
Virani and another v Collector of Stamp Duties [1968] 1 EA 54 (CAN)
Soni v Mohan Dairy [1968] 1 EA 58 (CAN)
Ayoob v Ayoob [1968] 1 EA 72 (CAN)
Dent v Kiambu Liquor Licensing Court [1968] 1 EA 80 (HCK)
Amradha Construction Company v Sultani Street Agip [1968] 1 EA 85 (HCT)
Service Station
Mukasa v Ocholi [1968] 1 EA 89 (HCU)
Keeka v Damji [1968] 1 EA 91 (HCT)
Mbogo and another v Shah [1968] 1 EA 93 (CAN)
Patel v Republic [1968] 1 EA 97 (CAN)
Osman v the United India Fire and General Insurance [1968] 1 EA 102 (CAD)
Company Ltd
Lerunyani v Republic [1968] 1 EA 107 (HCK)
Koech v Republic [1968] 1 EA 109 (HCK)
Pazi v Mohamed [1968] 1 EA 111 (HCT)
Alidina v Globe Mercantile Corporation Ltd [1968] 1 EA 114 (CAD)
Nzarirehe v Kagubaire [1968] 1 EA 117 (HCU)
Selle and another v Associated Motor Boat Company Ltd [1968] 1 EA 123 (CAZ)
and others
Ombeka (alias Maranga) v Republic [1968] 1 EA 132 (HCK)
Dadacha and others v Republic [1968] 1 EA 135 (HCK)
Mwambola v Republic [1968] 1 EA 136 (HCT)
Masita v Republic [1968] 1 EA 138 (HCT)
Isango v Republic [1968] 1 EA 140 (HCT)
Manager Tank Building Contractors v Republic [1968] 1 EA 143 (HCT)
Republic v Saidi [1968] 1 EA 145 (HCT)
Republic v Saidi [1968] 1 EA 145 (HCT)
Mandavia v Rattan Singh [1968] 1 EA 146 (CAN)
Magon v Ottoman Bank [1968] 1 EA 156 (CAN)
Habib Punja and Sons v Agas [1968] 1 EA 160 (HCT)
Machango v Morjaria [1968] 1 EA 166 (HCT)
B A T Kenya Ltd and another v Express Transport Co [1968] 1 EA 171 (HCT)
Ltd and another
Mohanlal Mathuradas & Brothers v East African [1968] 1 EA 186 (HCT)
Navigators Ltd
Kionywaki v Republic [1968] 1 EA 195 (HCT)
Republic v Msungwe [1968] 1 EA 203 (HCT)
Ngura v Republic [1968] 1 EA 206 (HCT)
Odongkara and others v Kamanda and another [1968] 1 EA 210 (HCU)
Sekaddu v Ssebadduka [1968] 1 EA 213 (HCU)
Wanjiku v Macaria [1968] 1 EA 216 (HCK)
Essaji and others v Solanki [1968] 1 EA 218 (HCT)
Life Insurance Corporation of India v Valji [1968] 1 EA 225 (CAM)
Konig v Kanjee Naranjee Properties Ltd [1968] 1 EA 233 (CAN)
Anyangu and others v Republic [1968] 1 EA 239 (CAN)
Tejani and another v Life Insurance Corporation of India [1968] 1 EA 242 (HCU)
Benbros Motors Tanganyika Ltd v Patel [1968] 1 EA 247 (HCT)
Tancot House Ltd v Tanganyika Tegry Plastics Ltd [1968] 1 EA 251 (HCT)
Masaka District Growers Cooperative Union v [1968] 1 EA 258 (HCU)
Mumpiwakoma Growers Co-Operative Society Ltd
and four others
Jivraj v Devraj [1968] 1 EA 263 (CAN)
Re an Application by the American Cyanamid Co [1968] 1 EA 270 (HCU)
Elgood v Regina [1968] 1 EA 274 (CAN)
Waihi and another v Uganda [1968] 1 EA 278 (CAK)
Kenya Meat Commission v Commissioner of Income [1968] 1 EA 281 (CAN)
Tax
DSilva v Rahimtulla and others [1968] 1 EA 287 (CAE)
Kayanja v New India Assurance Company Ltd [1968] 1 EA 295 (CAK)
Sebei District Administration v Gasyali and others [1968] 1 EA 300 (HCU)
Ayor and another v Uganda [1968] 1 EA 303 (HCU)
A Baumann & Co (Uganda) Ltd v Nadiope [1968] 1 EA 306 (HCU)
Ghelani v Radia [1968] 1 EA 311 (HCU)
Camille v Merali and another [1968] 1 EA 314 (CAN)
Damani v Ndarumaki [1968] 1 EA 318 (HCT)
Lokoya v Uganda [1968] 1 EA 332 (CAK)
DSilva v Rahimtulla and others [1968] 1 EA 335 (CAN)
Sargent v Gautama [1968] 1 EA 338 (CAN)
Kaluma v and others Republic [1968] 1 EA 349 (CAN)
General Manager E A R & H A v Thierstein [1968] 1 EA 354 (HCK)
Karuru v Njeri [1968] 1 EA 361 (HCK)
Ganda v Lwasa [1968] 1 EA 363 (CAK)
Ssentale v Uganda [1968] 1 EA 365 (HCU)
Uganda v Lubega [1968] 1 EA 370 (HCU)
Uganda v Mukhalwe [1968] 1 EA 373 (HCU)
Uganda v Mukhalwe [1968] 1 EA 373 (HCU)
Zabasajja v Uganda [1968] 1 EA 384 (HCU)
Pioneer Investment Trust v Amarchand [1968] 1 EA 386 (CAN)
Rawal v The Mombasa Hardware Ltd [1968] 1 EA 392 (CAM)
Gakubu v Republic [1968] 1 EA 395 (HCK)
Beecham Group Ltd v International Products Ltd and [1968] 1 EA 398 (HCK)
another
Madhwa and others v City Council of Nairobi [1968] 1 EA 406 (HCK)
Robson and another v Commissioner of Income Tax [1968] 1 EA 415 (HCK)
Dritoo v West Nile District Administration [1968] 1 EA 428 (HCU)
Ajwang v The British India General Insurance Co Ltd [1968] 1 EA 436 (HCU)
Express Transport Co Ltd v BAT Tanzania Ltd [1968] 1 EA 443 (CAD)
Kimweri v Republic [1968] 1 EA 452 (CAD)
Malima v Republic [1968] 1 EA 455 (HCT)
Mwananchi Engineering and Contracting Co v Teja [1968] 1 EA 457 (HCT)
Patel v Benbros Motors Tanganyika Ltd [1968] 1 EA 460 (CAD)
Commissioner-General of Income Tax v Kiganga Estates [1968] 1 EA 464 (CAN)
Ltd
Official Receiver v Aggarwal [1968] 1 EA 468 (HCT)
Tarmal Industries Ltd v Commissioner of Customs and [1968] 1 EA 471 (HCT)
Excise
City Council of Kampala v Mukubira and another [1968] 1 EA 497 (HCU)
Figueredo v Editor Sunday Nation and others; Sanghani [1968] 1 EA 501 (HCU)
v Same; Trivedi v Same
Okech and another v Republic [1968] 1 EA 508 (CAN)
Onama v Uganda Argus Ltd [1968] 1 EA 511 (HCU)
White Line Retreads Ltd v The President Valuation [1968] 1 EA 517 (HCU)
Court
Wakiro and another v Committee of Bugisu [1968] 1 EA 523 (HCU)
Co-Operative Union
Sirley v Tanganyika Tegry Plastics Ltd [1968] 1 EA 529 (CAD)
East African Navigators Ltd v Mohanlal Mathuradas & [1968] 1 EA 535 (CAD)
Bros
Kassamali Gulamhusein & Co (Kenya) Ltd v Kyrtatas [1968] 1 EA 542 (CAM)
Brothers Ltd
Jiwaji and others v Jiwaji and another [1968] 1 EA 547 (CAM)
Collector v Heptulla and others [1968] 1 EA 555 (CAN)
Mlay v Phoneas [1968] 1 EA 563 (HCT)
Joshi v Uganda Sugar Factory Ltd [1968] 1 EA 570 (CAK)
Rwabugahya v East African Newspapers (Nation Series) [1968] 1 EA 576 (HCU)
Ltd
Rajabali v Curtis [1968] 1 EA 578 (HCT)
Republic v V B Patel and Company (Mwanza) Ltd [1968] 1 EA 580 (HCT)
Commissioner of Lands v Hussein [1968] 1 EA 585 (HCK)
Dullo v Shah Meghji Hemraj & Sons [1968] 1 EA 595 (HCK)
Abeid v Badbes [1968] 1 EA 598 (HCK)
Lone v Patel [1968] 1 EA 606 (HCK)
Republic v Ismael [1968] 1 EA 609 (HCT)
Republic v Sanga [1968] 1 EA 615(HCT)
Taparu v Roitei [1968] 1 EA 618 (HCK)
Taparu v Roitei [1968] 1 EA 618 (HCK)
Mangat v Sharma [1968] 1 EA 620 (HCT)
Masaka District Growers Co-operative Union v [1968] 1 EA 630 (CAK)
Mumpiwakoma Co-operative Society, Ltd and others
Re Maangi [1968] 1 EA 637 (HCK)
Fernandes v Kericho Liquor Licensing Court [1968] 1 EA 640 (HCK)
Matemba v Yamulinga [1968] 1 EA 643 (HCT)
Matemba v Matemba [1968] 1 EA 646 (HCT)
Republic v Hashimu [1968] 1 EA 656 (HCT)
DSilva v Republic [1968] 1 EA 660 (HCT)
Abilah v Republic [1968] 1 EA 662 (HCT)
Mohamed v Republic [1968] 1 EA 665 (HCT)
Makubi v Republic [1968] 1 EA 667 (HCT)
Nanjibhai Prabhudas & Co Ltd v Standard Bank Ltd [1968] 1 EA 670 (HCK)
Khimji and others v Bakari and others [1968] 1 EA 685 (HCK)
Samuels v Republic
[1968] 1 EA 1 (HCK)
Division: High Court of Kenya at Nairobi

Date of judgment: 8 September 1967
Case Number: 700/1967
Before: Sir John Ainley CJ and Rudd J
Sourced by: LawAfrica
[1] Criminal Law Removal from Kenya of foreigner Recommendation for Whether jurisdiction
exists to order removal after completion of part of sentence When should be made Exchange Control
offence and forgery Penal Code, s. 26 (a) (K.).
[2] Criminal Law Forgery Knowingly and fraudulently uttering false official document Meaning of
fraudulently Whether includes intent to deceive public officer without intent to cause economic loss
Penal Code, s. 353 (K.).
[3] Criminal Law Forgery Uttering false official document Whether entry made in expired
passport for exchange control purposes is official document Penal Code, s. 353 (K.).
Editors Summary
The appellant, a foreigner, entered Kenya in July, 1965. Exchange control had just been introduced and
passengers coming from outside East Africa had to declare what currency they carried. A record of the
amount of currency, other than East African currency, was then entered in their passports. The appellant
declared B22 Os. Od., and a customs officer entered that amount on the British passport of the
appellant, stamped the entry with an official stamp, and signed it. Subsequently the appellant added a
number of false entries after the amount of B22 Os. Od. above the signature of the preventive officer,
including an entry E.A. Shs. 1,500,000/-. In May, 1967, after the validity of this passport had expired,
the appellant came to Nairobi airport with some K.18,000 of Kenya currency, clearly intending to leave
Kenya with it in breach of the exchange control regulations. In trying to leave he produced the expired
passport with the false entries in it to an investigating officer, and claimed that the money he had with
him was only money which he had brought into Kenya. He was convicted of knowingly and fraudulently
uttering a false official document, and was sentenced to two and a half years imprisonment for this
offence and also for offences under the customs and exchange control laws. He appealed. On appeal it
was argued that the passport, having expired, was not an official document; that there had been no
intent to defraud, i.e. to cause economic loss to the person to whom it was uttered, such intent being a
necessary ingredient of the offence, but only an intent to burke inquiry; and that the sentence was
Page 2 of [1968] 1 EA 1 (HCK)
excessive. It was also suggested that the court should recommend his removal from the country after he
had served part of this sentence.
Held
(i) the page in the passport on which the entry was made by the customs officer was a record made by
an official for officials the validity of which never expired and never could expire, and it was still
an official document notwithstanding the expiry of the passport;
(ii) although it is proper in the context of forgery and uttering to equate fraudulently with intent to
defraud, nevertheless to defraud is not confined to the idea of depriving a man by deceit of
some economic advantage or inflicting upon him some economic loss;
(iii) the appellant by uttering this false document intended to deceive public officers and by that deceit
to cause them to take action which they would not otherwise have taken or to refrain from action
which they would otherwise have taken, and that intent was fraudulent (Welham v. D.P.P. (2)
applied);
(iv) the sentence was proper;
(v) the power to recommend removal under s. 26 (a) of the Penal Code is a power to recommend
immediate removal or else removal on completion of sentence. There is no halfway house.
Appeal dismissed. Appellant recommended for removal on the completion of his sentence.
Cases referred to in judgment:

(1) Mahendra Raja Jain v. Republic, [1966] E.A. 319.
(2) Welham v. Director of Public Prosecutions, [1961] A.C. 103.
(3) R. v. Toshack (1849), 4 Cox C.C. 38.
Judgment
Sir John Ainley CJ: delivered the following judgment of the Court: In this case the appellant was
convicted of uttering a false official document, contrary to s. 353 of the Penal Code, and he was
sentenced to two and a half years imprisonment.
He appeals from conviction and sentence.
The particulars of the offence set out in the charge sheet read as follows:
SAMUEL TSVI SAMUELS: On the 13th day of May, 1967, at Nairobi in the Nairobi Area, knowingly and
fraudulently uttered a certain forged document, namely, a certain entry in a cancelled British Passport No.
138386 purporting to be an official entry of the East African Customs and Excise Department shewing inter
alia that the said Samuel Tsvi Samuels had on the 8th July, 1965, physically imported East African Shs.
1,500,000/- into Kenya.
There has been very little dispute about the facts. On May 13 this year the appellant came to Nairobi
Airport carrying with him some 18,000 worth of Kenya currency with which it was clearly his intention
to leave Kenya. He had no lawful authority to take that currency out of the country, and he was convicted
in other proceedings of an offence contrary to s. 147 (c) (ii) of the East African Customs Management
Act 1952, and s. 24 of the Exchange Control Act.
Besides this vast amount of currency the appellant carried, in addition to his current passport, a
British passport which had no longer in May, 1967, any validity, but which was valid when the appellant
entered Kenya at Nairobi Airport on July 8, 1965, on what seems to have been a visitors pass.
Page 3 of [1968] 1 EA 1 (HCK)
Exchange control was introduced in Kenya in June, 1965, and it was in evidence that throughout July,
1965 all incoming passengers save those from what was then Tanganyika and from Uganda were asked
by the preventive officers to declare what currency they carried. On occasion a physical check was made
of the currency carried by passengers.
If currency other than an East African currency was carried by the passenger the amount was written
down on a page of the passengers passport by the preventive officer concerned. If more than 25 worth
of East African money was carried the excess was taken into safe keeping and a receipt issued, but no
entry was made in the passport. Now when the appellant entered the country he was questioned about the
currency he carried by a preventive officer of the Customs and Excise Department who was the first
prosecution witness in the court below, one Piara Singh. To Mr. Singh the appellant declared that he had
22 0s. 0d. Sterling with him. Mr. Singh then made on p. 30 of the British passport the entry Into Kenya
LY 141 on 8.7.65 and thereunder Sterling 22 0s. 0d.. Mr. Singh next stamped the page with one of
the official East African Customs and Excise stamps which read E.A. Customs and Excise, 8th July,
1965, Nairobi Airport, Nairobi, Kenya and signed over the stamped impression. All that, this official
said, and no one doubts that what he said was true, was an entry made in the course of his duty. An entry
of this kind, moreover, cannot be regarded as a mere aide memoire for the visitor to Kenya. It was at the
time in question the position, and the matter was brought to the attention of the court below, that a
non-resident, tourist, or visitor could take out of Kenya the same amount of money in foreign currency as
he brought in.
Thus the entry made by Mr. Singh on p. 30 of the appellants passport was at the least intended for the
scrutiny of public officers if and when the question of what money could be taken from the country by
the appellant arose. There may well have been other official reasons for making this record on a page of
the appellants travel document, but no one can doubt that this record was made by an official in the
course of his duty for the use of other officials.
Now the appellant, though he was not charged with it, clearly caused much to be added to p. 30 of this
passport below the entry, Into Kenya LY 141 on 8.7.65 which was made by Mr. Singh. There was
added a series of entries relating to foreign currencies finishing with E.A. Shs. 1,500,000, One million
and five hundred thousand E.A. shillings. This last entry is, if we may use the expression, tangled up
with the signature of Mr. Singh and the official stamp to which reference has been made. But though the
attempted deception may not have been a very clever one an attempt at deception was made, and the
intention behind the making of the additions was very clearly to induce the belief that on July 8, 1965,
the appellant entered Kenya with, inter alia, one and a half million East African shillings, and that the
official whose duty it was to inquire into these matters made, signed, and stamped an entry to that effect.
To continue with the narrative, the appellant when checked in his attempt to leave the country with
the small fortune in currency to which we have referred, and when reminded that he could only take out
Shs. 250/- said, I am declaring only what I brought in. It was pointed out to him that nothing relevant
had been entered on his current passport, and he then produced from an inside pocket the passport which
contained the false entries we have mentioned, opened it at p. 30 and handed it over to the investigating
officer who was questioning him. The investigating officer was not impressed with the entries on p. 30.
The appellant was urged to produce all he had and from sundry packages, a typewriter case, a body belt
and other places of concealment the East African currency emerged. During these proceedings the
appellant said more than once. This is only money that I brought into Kenya.
Page 4 of [1968] 1 EA 1 (HCK)
It was upon these facts that the learned magistrate convicted the appellant of the charge preferred.
It is first said that even if this document was a false document it was not an official document. The
argument here was based upon the assertion that though a passport is an official document so long as it is
valid as a passport it ceases to be an official document when it ceases to be an effective passport. The
learned magistrate met this argument head-on by saying:
The argument that a passport once cancelled ceases to be an official document is not one to which I can
subscribe. It may no longer be current but I cannot see that it ceases to be an official document.
We think that the learned magistrate was right there, but in truth neither the argument nor counter
argument were very relevant. The appellant was not charged with uttering a forged passport. He was
charged, in effect, with uttering p. 30 of this expired passport. Page 30 when Mr. Singh had finished with
it was a record by an official for officials. The validity of that entry never expired, and never could
expire. It purported to be the record of a fact and it was an official record of a fact. We make no doubt
whatever that when Mr. Singh had finished with it, it was an official document, and when the appellant
had caused the false entries to be made it was a false official document. It was a forged document. It is
admitted that it told a lie, and very obviously it told a lie about itself for it purported to be a record made
solely by Mr. Singh, a preventive officer, on a particular date, and of course it was no such thing. It was a
document purporting to be what in fact it was not. That the appellant knew that the document was a false
document cannot be doubted.
Now since this document was, beyond all argument, uttered by the appellant, one matter only remains
for consideration and that is whether he uttered it fraudulently. Counsel for the respondent has addressed
some interesting arguments to us which were directed to show that the word fraudulently in s. 353 of
the Penal Code may have a wider meaning than the phrase intent to defraud and may include a mere
intent to deceive, but with respect we really do not see why that should be so and we think it proper in the
context of forgery and uttering to equate fraudulently with intent to defraud. We note that the Court
of Appeal for Eastern Africa took the same view in Mahendra Raja Jain v. Republic ([1966] E.A. 319).
But having said so much we yet realize the need to advance circumspectly. The word defraud is an
English word of respectable antiquity and is one which has been used in Acts concerned to punish
forgery at least as early as 1830, yet as late as 1961 the meaning of the word was being elaborately
discussed in Welham v. Director of Public Prosecutions ([1961] A.C. at p. 123). The appeal before the
House of Lords in that case concerned the uttering of certain forged hire purchase agreements on the
strength of which finance companies advanced money to a concern known as Motors (Brighton) Ltd.
Welham, who uttered the forgeries, said that he did so to deceive the public authorities who were
concerned with credit restrictions and not to defraud the finance companies, or anyone else. The jury
were directed that this admitted intention was an intention to defraud. The House of Lords held that
direction to be correct.
Lord Radcliffe moved quickly to the conclusion, with which we very respectfully agree, that neither
in ordinary speech nor in law is the expression to defraud confined to the idea of depriving a man by
deceit of some economic advantage or inflicting upon him some economic loss. He said ([1961] A.C. at
p. 124):
. . . In that special line of cases where the person deceived is a public authority or a person holding a public
office, deceit may secure an advantage
Page 5 of [1968] 1 EA 1 (HCK)
for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to
the person deceived. If there could be no intent to defraud in the eyes of the law without an intent to inflict a
pecuniary or economic injury, such cases as these could not have been punished as forgeries at common law,
in which an intent to defraud is an essential element of the offence, yet I am satisfied that they were regularly
so treated.
He then quoted three cases, the last being the case of R. v. Toshack ((1849), 4 Cox C.C. 38). This was the
case of a testimonial forged over the purported signature of the master of a sailing ship in order to
deceive the Trinity House examiners, and so obtain a masters certificate. The forger was charged on a
count which alleged an intent to injure, deceive, prejudice and defraud the examiner and that he did the
same thing for the purpose of deceiving Trinity House. He was convicted of the offence of forgery at
common law, and the unanimous opinion of six judges including Pollock, C.B. and Alderson, B. was that
the conviction was right. Lord Radcliffe made this comment ([1961] A.C. at p. 125) upon Toshacks
case:
In my opinion it is clear that in connection with this offence the intent to defraud existed when the false
document was brought into existence for no other purpose than that of deceiving a person responsible for a
public duty into doing something that he would not have done but for the deceit, or not doing something that
but for it he would have done. Correspondingly, to put such a document forward with knowledge of its falsity
and with a similar intent was to commit the crime of uttering it. That seems to me to be the essential point of
the present appeal.
Lord Denning said ([1961 A.C. at p. 134):

Welham on his own evidence had an intent to defraud, because he uttered the hire-purchase documents for
the purpose of fraud and deceit. He intended to practice a fraud on whomsoever might be called upon to
investigate the loans made by the finance companies to the motor dealers. Such a person might be prejudiced
in his investigation by the fraud. That is enough to show an intent to defraud. I think the Common Serjeant
was entitled to direct the jury as he did.
We turn now to the intent of the appellant in the present case. It was said by counsel on his behalf that
the intent of the appellant was, the worst having come to the worst, to burke inquiry into the sources of
the huge sum he carried. If such was the intent it falls we think squarely within all that was said in
Welhams case ([1961] A.C. 103) and certainly squarely within the wording of those passages from the
judgments of Lord Radcliffe and Lord Denning which we have quoted. If such was the intent it was a
fraudulent intent.
The appellant himself in an unsworn statement to the court below appears to bear out what counsel
has said, but this statement is ambiguous. The one clear and positive assertion made is that the false
document was not uttered in an attempt by the appellant to bluff his way through with the money. The
learned magistrate did not, we think, believe this assertion. He said:
I think it is clear that accuseds intention was not only to deceive but to cause Mr. Brooks (the officer to
whom the document was uttered) to act to the prejudice or detriment of the exchange control which he
represented and thereby to defraud.
The learned magistrate chose, we think, what was one of the more obviously possible intentions. Though
he could not perhaps have believed that the appellant confidently expected to deceive Mr. Brooks, he did
believe this at least that the
Page 6 of [1968] 1 EA 1 (HCK)
appellant sought to do so and desperately hoped to do so. It is impossible to say that the magistrate came
to an unreasonable finding there.
It does not require much ingenuity to think of other possible intentions, but it is impossible, we think,
to conjure up any intention which was not fraudulent within the meaning given to that word by the House
of Lords in Welhams case (supra). Beyond all doubt the appellant intended by uttering this false
document to deceive public officers, and by that deceit to cause them to take action which they would not
otherwise have taken or to refrain from action which they would otherwise have taken. Beyond all
question, or so we think, if the appellant so intended his intent was fraudulent; he uttered this document
knowingly and fraudulently. Though we have written much this was a very clear case and the conviction
was perfectly proper.
We turn now to the sentence which was heavy but which was ordered to run concurrently with the
sentence passed in Nairobi Criminal Case 1353/67 to which we have referred. For the whole transaction
in which he engaged the appellant has been sent to prison for a total period of two and a half years. This
transaction comprised an attempt to evade the laws relating to currency control on a great scale and the
use in an effort to mislead and baffle public officers of a forged document. Whether he was in possession
of his own money (which is very unlikely) or whether he was running currency for others he treated
with contempt laws which for the protection of this countrys currency must be obeyed.
We do not think the sentence excessive, and we dismiss the appeal.
We are aware of the provisions of s. 26 (a) of the Penal Code. The alternatives posed by that section
appear to us to be a recommendation of immediate removal or a recommendation of removal on the
completion of the sentence. There is no halfway house. In our opinion men of this kind should be
punished, and foreigners contemplating similar activities should not suppose that the worst they may
expect is expulsion from Kenya without the money they sought to export. We recommend that the
appellant be removed from and remain out of the country on the completion of his sentence. This
recommendation shall be conveyed to the Minister.
Appeal dismissed.
For the appellant

Sir William OBrien Lindsay
Hamilton Harrison & Mathews, Nairobi
For the respondent:

JR Hobbs (Deputy Public Prosecutor, Kenya)
Attorney-General, Kenya
Trustees for the Port of Aden v Hathadaru and another

[1968] 1 EA 7 (JCPC)
Division: Judicial Committee of the Privy Council

Date of judgment: 15 November 1967
Case Number: 30/1966 Before: Harris J
[1] Civil Practice and Procedure Agreement Issues submitted for determination of Court Formal
written agreement necessary Civil Procedure (Revised) Rules 1948, O. 14, rr. 6 and 7 (K.).
[2] Damages Loss of expectation of life Usual award is Shs. 8,000/-.
[3] Fatal Accident Damages Assessment Hindu joint family Deceased son managing family
business Whether dependencies of parents to be considered separately What deductions should be
made.
Editors Summary
In this fatal accident case the dependants admitted liability for the death of the deceased. The parties
produced an agreed statement of issues on damages for the decision of the Court, under O. 14, r. 6 of the
Civil Procedure (Revised) Rules 1948; but they did not sign a formal agreement under r. 7. On the
question of damages the evidence was that the deceased was twenty-four, unmarried, in good health and
lived in his parents household. He worked in his fathers business and was being credited with a
monthly wage of Shs. 1,000/-. This wage was not paid to the deceased in cash but was put back into the
business. His father, who was sixty, had taken him into the business to get experience with a view to
taking it over eventually. For two years before the deceaseds death he had been in fact managing the
business. Since his death the business had not prospered and another son of the family had had to be
brought in to assist in it. At the time of his death there was no immediate prospect of the deceased
marrying or leaving the household. The deceaseds estate was valued at Shs. 24,500/-. The deceaseds
only dependants were his parents.
Held
(a) parties who wish to submit issues for decision by the Court under O. 14, r. 6 of the Civil
Procedure (Revised) Rules 1948 should enter into a formal written agreement;
(b) (i) the deceaseds expectation of life was forty years;
(ii) Shs. 8,000/- should be awarded to the estate of the deceased as damages for loss of
expectation of life;
(iii) the dependency of each parent should be ascertained separately (Kassam v. Kampala
Aerated Water Co., Ltd. (4) considered);
(iv) Nothing should be allowed by way of increase of damages in respect of the savings made by
the deceased;
(v) the degree of dependency of the father should be reduced by twenty-five per cent, because
there were other sons in the family;
Page 686 of [1968] 1 EA 685 (HCK)
(vi) the cessation of the deceaseds drawings from the business should not be taken into account
(Patel v. Hayes (7) applied);
(vii) after making the appropriate deductions the correct figure to be awarded was Shs.
27,000/-under the Fatal Accidents Act to the parents.
Judgment for the third plaintiff as administrator against the defendants jointly and severally for Shs.
35,700/- with interest and costs (to be reduced by one-fourth).

(1) C. V. Naik v. Nasib Singh Anjla and Another (Tanganyika High Court Civil Case No. 183 of 1961)
(unreported).
(2) Davies v. Powell Duffryn Associated Collieries, Ltd., [1942] A.C. 601.
(3) Kampala Aerated Water Co., Ltd. v. Kassam, [1961] E.A. 291.
(4) Kassam v. Kampala Aerated Water Co., Ltd., [1965] E.A. 587.
(5) Nance v. British Columbia Electric Railway Co., [1951] A.C. 601.
(6) Hayes v. Patel (Kenya Supreme Court Civil Case No. 173 of 1956) (unreported).
(7) C. J. Patel v. Hayes, [1957] E.A. 748.
(8) Daniels v. Jones, [1961] 1 W.L.R. 1103.
Judgment
Harris J: This is an action for damages brought under the Law Reform Act and the Fatal Accidents Act
(chapters 26 and 32 respectively of the Laws of Kenya), arising out of the death of one Jayantilal
Lakhamshi, as a result of a motor-car accident which occurred on the Nairobi-Mombasa road on July 20,
1963. The defendants admit that they are responsible for the death of the deceased and the parties have
agreed that the issues which arise for determination are:
(i) what sum, if any, is due from the defendants to the plaintiffs in respect of loss of expectation of life of
the deceased; and
(ii) after taking into account any sum to be awarded under (i) what sum, if any, is due from the defendants
to the plaintiffs as damages under the Fatal Accidents Act?
These issues were reduced to writing and submitted by the parties jointly for the determination of the
Court in purported pursuance of O. 14, r. 6, of the Civil Procedure (Revised) Rules 1948. Rule 6 provides
that where the parties to a suit are agreed as to the question of fact or of law to be decided between them
they may state the question in form of an issue and enter into an agreement in writing as mentioned in the
rule which will have the effect of implementing the finding of the Court upon such issue. Rule 7 provides
that where the Court is satisfied, after making such inquiry as it deems proper, that inter alia the
agreement was duly executed by the parties it shall proceed to record and try the issue and state its
finding thereon. These rules are in identical terms with the corresponding rules of O. 14 of the Indian
Civil Procedure Code, from which no doubt they are taken, but the Indian Code sets out in an appendix
the form of the agreement into which the parties are required to enter, making it clear that the rules are
intended to mean what in fact they say, namely, that the parties, in addition to stating the issue, must
enter into and sign a formal agreement to take appropriate action following the Courts decision. I refer
to this matter because on the opening of the case I enquired, as by r. 7 I am bound to do, as to whether the
required agreement had been prepared and executed, and was informed by counsel for each side that they
felt that the agreement was implicit in the statement of the issues and that, since that statement had been
Page 687 of [1968] 1 EA 685 (HCK)
signed by the advocates for the respective parties, the provisions of the rules had been sufficiently
complied with. Not without some doubt in my mind I allowed the hearing to continue but as I
subsequently had an opportunity to consider the provisions of the Indian Code and was satisfied that this
statement does not in itself comprise the required agreement, I caused the case to be mentioned in
Chambers when I informed the respective counsel that in my opinion a formal agreement was necessary,
and this document, signed by the respective advocates, has now been filed.
At the hearing evidence was given by the deceaseds father and no other witness was called for either
side. From this evidence it appeared that the deceased at the time of his death was within a few days of
his twenty-fourth birthday and unmarried, had always enjoyed good health and was living with his
parents in Nairobi, the household including also a married brother and the latters wife, an unmarried
brother, and two sisters. The deceased had left school in the year 1957, having reached form 3, and
continued his studies for some time until, in 1958, he took up employment in the municipal market in
Nairobi. In 1959 he worked for a short time in the provision department of a trading firm close to the
market and then in a vegetable shop, and in 1960 he commenced working with his father in the latters
business as a merchant dealing in empty bags and tins. His wages in 1958 amounted to Shs. 350/- per
month, in 1959 to Shs. 450/- per month, and in 1960, upon joining his father, he was credited with a
monthly wage of Shs. 400/-, which was increased in 1962 to Shs. 1,000/- per month and so remained to
the date of his death.
It further appeared that during the years 1958 and 1959 the deceased had contributed out of his wages
to the expense of running the household but that this had ceased when he took up work in his fathers
business in 1960, from which time onwards his earnings had not been paid to him in cash but had been
credited to him and ploughed back into the business, and the deceased had made no direct contributions
thereout to the expenses of the household, which amounted to about 1,200 a year. The fathers evidence,
which I accept, was to the effect that, being then about sixty years of age, he took the deceased into the
business with the twofold object of enabling him to obtain experience of the trade and, in his turn, to
assist in the running of the business with a view to his ultimately taking it over. He said that for the last
two years of his life the deceased had in fact been managing the business, the father doing little more
than keeping an eye on things, and that the deceased had suggested that the latter might retire. The father
said that he and his wife, who is now aged fifty-one years, had expected the deceased to support them in
their old age, and there is no reason to suppose that, had the necessity arisen, the deceased, assisted
probably by the other children, would not have supported his parents so far as he could. Having regard to
his age and state of health at the time of his death I would conclude that the deceased had an expectation
of life of not less than forty years and that accordingly he might have been expected long to outlive his
parents.
No figures were produced to indicate the effect on the business of the death of the deceased but the
father stated that it now has to be run by him with the assistance of the youngest son who has had to
interrupt or abandon his academic studies to enable him to do so, and that the business is not prospering.
The father also thought that, at the time of his death, there was little immediate danger of the deceased
getting married or leaving the household but agreed that, if he did marry, his wife and their children, if
any, would have to be supported out of the business.
In these circumstances it is necessary to consider both the legal position and the factual probabilities
of the situation existing at the date of the death. The assets of the deceased at death were sworn at Shs.
24,500/-, which presumably
Page 688 of [1968] 1 EA 685 (HCK)
represents principally his interest in the business into which his monthly remuneration during the years
from 1960 to 1963 had been sunk, but which I understood did not include any sum on account of the
claim made in this present suit for shortened expectation of life. If, then, the deceased had at any time
decided to discontinue his association with the business, possibly in order to leave Kenya or to set up in
trade on his own, he would prima facie have been entitled to withdraw both a substantial sum and his
own services with perhaps severe consequences to the business. On the other hand, he may well have felt
that, since the business would probably, in any event, have passed to him on his fathers death, if not
sooner, his better prospects lay in maintaining it and, with it, his parents so far as they needed assistance.
In this connection I should say at once that the picture to be drawn from the fathers evidence was that of
a united family in which one would expect to find the children, and particularly the son upon whom the
family business was devolving, very ready to maintain the parents during old age. What, then, is the
measure of the loss resulting from the death of the deceased, and by whom has the loss been borne?
The first head of damage to be considered is the claim for loss of expectation of life. Bearing in mind
such of the matters set out above as are relevant, including the age of the deceased, his state of health at
the time of the accident and his station in life, I can see no reason for departing from what has now come
to be a generally accepted award of Shs. 8,000/-. Under the provisions of the Law Reform Act this claim
enures for the benefit of the estate of the deceased and not for that of his dependants as such, and there
will accordingly be judgment for that amount in favour of the father as administrator. The defendants
have paid an equivalent sum into Court in full settlement of this claim and I will reserve for later
consideration in this judgment the form of order to be made and the matter of costs.
The second head of claim is for the sum of Shs. 200/- as funeral expenses paid by the father
presumably as administrator. This claim was not disputed and must be allowed.
We now come to the more difficult question as to the damages to be awarded under the Fatal
Accidents Act. The only relevant judicial decision which the researches of counsel were able to produce
was an unreported judgment of Mosdell, J., sitting in the High Court of Tanganyika in C. V. Naik v.
Nasib Singh Anjla and Another (Civil Case No. 183 of 1961: August 22, 1962) which was a claim on
behalf of the father, mother and brother of the deceased, all members of a joint Hindu family, brought
under the Law Reform (Fatal Accident and Miscellaneous Provisions) Ordinance (Cap. 360 of
Tanganyika), the deceased having been killed in a collision between two motor cars caused by the
negligence of the respective drivers, and the claimants being his dependants under the Ordinance. Apart
from the fact that in each case the responsibility for the death of the deceased was shared by the drivers
of both vehicles concerned, the relevance of that decision to the present case is somewhat limited by the
fact that, not only were the family circumstances different, but also the dependants under that
Ordinance include a wider class than under the Fatal Accidents Act of Kenya. Therefore, although in a
letter written in the present case by the advocates for the plaintiffs to the advocates for the defendants it
is stated that the deceased was supporting both his younger brother and his two sisters, for the purpose of
the present case neither the brothers nor sisters of the deceased can be included among his dependants,
and no exception to this can be allowed by reason of the fact that, as a direct result of the death of their
brother, the remaining children of the parents will almost certainly find that the extent of their moral
obligation to provide for their parents has been enhanced.
The dependants in this case are the parents alone, and what has to be ascertained is the aggregate
amount representing the measure of individual pecuniary
Page 689 of [1968] 1 EA 685 (HCK)
loss to each of them caused by the negligence of the defendants resulting in the death of their son so that
that amount when ascertained shall be proportioned to the injury resulting from such death to the parents
respectively as the dependants for whom and for whose benefit the action has been brought: see Davies v.
Powell Duffryn Associated Collieries., Ltd, [1942] A.C. 601, at pp. 606, 612 and 618.
I shall first consider whether the dependency of each parent should be ascertained separately instead
of by estimating the total dependency and apportioning it. This matter was dealt with by the Court of
Appeal in Kampala Aerated Water Co., Ltd. v. Kassam, [1961] E.A. 291, in which the Court, applying
Davies case (supra), held (at p. 297) that, since what must eventually be ascertained is the pecuniary
loss of each individual dependant, there is nothing to prevent a court from approaching the cases of the
various dependants individually if to do so is more convenient than approaching them en bloc. Although
the sum awarded in that case has now been varied by the Privy Council on appeal (see [1965] E.A. 587
sub nom. Kassam v. Kampala Aerated Water Co., Ltd.) the view of the Court as to the principle of
approaching the case of dependants individually rather than collectively was in no way disapproved
except where it was likely to produce a manifestly unreasonable result.
In the present case the quality of the dependency of the deceaseds father was very different from that
of his mother. In the first place the burden of responsibility for maintaining the family household as it
was at the date of the death rested primarily upon the father and the degree of dependency of the latter
upon the deceased was directly related to the extent to which he depended upon the deceased as his
mainstay in the running of the business. At this time the mother would probably have felt herself
dependent upon both of them, perhaps more upon her husband than upon the son. On the other hand, the
mother is some fourteen years younger than her husband and, even disregarding the fact (of which there
was no evidence) that women are sometimes said to have a longer life-span than men, there would appear
to be a reasonable probability that she may survive her husband by a corresponding length of time.
Again, if the husband had died during the lifetime of the son her dependency would immediately have
been transferred, subject to such support as might have been available to her from her husbands estate,
to the deceased and, to a lesser extent, each of the other children. In short, the dependency upon the
deceased to which this action relates falls to be computed, in the case of the father, as from the death of
the son and continuing for the remainder of the fathers lifetime and, in the case of the mother, as from
the death of the father (assuming that she is then living) and continuing for the remainder of her lifetime.
In the particular circumstances of this case I do not feel that the possibility of her re-marriage need be
considered. The position, therefore, is, in a sense, the converse of that arising in the case of a husband
being killed, leaving a widow and children, inasmuch as, instead of commencing simultaneously, the
periods of dependency here are consecutive. For these reasons, I propose to consider the position of each
parent separately.
The situation of the father, as disclosed by the evidence, is this. His hopes of continuing in the state of
semi-retirement which he has enjoyed since some time in 1962 have, for the present, been dissipated,
though not, perhaps, with any immediate financial loss. No evidence was given as to the remuneration
being paid to the younger son who is now assisting in the business and it is unlikely that he is receiving
as much as the deceased. Furthermore, by the death of the deceased the household expenses of the father
may be assumed to have decreased. At the date of the death the father was aged about sixty-three years
with perhaps an expectancy of life of some ten years, and it was not suggested that he had any
independent source of income apart from the business. The household expenses
Page 690 of [1968] 1 EA 685 (HCK)
of the eight persons then constituting the family was stated to be 1,200 per annum or 150 per head.
Allowing this same figure for the parents, that is, 300 per annum for both, we have the approximate cost
of maintaining them in their old age as from such time as the father is unable usefully to contribute to the
running of the business and must retire, when the deceased might have been expected to take on the
burden, assisted possibly by one or more of his brothers or sisters, until the death of the first parent, most
probably the father. That time of retirement, however, has not yet arrived and it has not been proved that
any financial loss has been suffered to date, but assuming that the father were to retire in perhaps a year
from now when he will be sixty-six years of age and that his expectation of life thereafter were to be
seven years, the loss primarily attributable to the death of the son, computed at the figure of 300 per
annum, would amount to 2,100. In my opinion this figure is not unreasonable as a basis of calculation,
to be increased or decreased by the necessary additions or deductions, although I am well aware that it is,
as any alternative figure must also be, to some extent an arbitrary result of the consideration of a number
of factors as to which there was not and could not have been any conclusive evidence, some of the factors
being in themselves imponderables dependent upon contingencies incapable of being accurately
evaluated.
In regard to possible additions to this figure, in some of the cases to be found in the reports, notably
Nance v. British Columbia Electric Railway Co., [1951] A.C. 601, consideration was given to the
contention that where a deceased had, during the years immediately before his death, effected savings out
of his income, a possibility arose that, but for his death, he would have continued to save and that the
fruits of his economy would ultimately have been reaped by his dependents, so that this factor should be
reflected in the amount of damages to be awarded under the Fatal Accidents Act. Although, in the present
case, the deceased had apparently ploughed back into the business the entire of his earnings during his
last three or four years, which thereupon presumably became portion of its working capital, I am not
satisfied that this process could have long continued without reaching the limit of the amount of capital
that the little business could absorb. Furthermore, although it was stated that the deceased had given no
indication of a desire to get married, no evidence was tendered to suggest any reason why he should not
get married and in my opinion, had this eventuality occurred, the probability is that the deceaseds
savings would have passed on his death to his wife and children, if any, rather than to his parents. I
therefore allow nothing by way of increase of damages in respect of this factor.
As to deductions, the first matter to be considered is the fact that at the date of his death the deceased
had two brothers and two sisters, all living with their parents. Although, by reason of his being the son
who was expecting to take over the business, the deceased was looked upon by his parents as being their
main support, it would be incorrect to disregard in toto the position of the other two sons, the younger of
whom, as events have now turned out, is taking the deceaseds place in the business. The relevance of
this factor is that if by some mischance the younger son were also during the lifetime of his parents to
meet with a fatal accident, giving rise to a further claim by them under the Fatal Accidents Act, it could
not be said that there was no degree of dependency by them upon him or that the award to be made in this
present action constituted a bar to the making of an award in the second action. This same possibility
could be repeated in the case of the third son with a similar result. In my opinion, therefore, the fact that
the father, at the date of the death of the deceased, had these two other sons potentially available, at least
to some extent, to step into the place of their brother cannot be overlooked in determining the degree to
which the parents were dependent upon the deceased for support and to this
Page 691 of [1968] 1 EA 685 (HCK)
extent the case is different from what it would have been had the deceased been an only son. No
authority was cited as to this matter, but, giving it the best consideration that I can, I hold that the degree
of dependency of the father upon the deceased at the date of death should on this account be reduced by
twenty-five per cent.
Although the circumstances of this case are clearly distinguishable from those dealt with by
OConnor, C.J. in his valuable but unreported decision in Hayes v. Patel (Supreme Court Civil Case No.
173 of 1956), which was upheld on appeal by the Court of Appeal for Eastern Africa (reported sub nom.
C. J. Patel v. Hayes, [1957] E.A. 748), it will be remembered that, in that case, it was held that no
account should be taken of the adventitious benefit accruing to the widow by reason of the fact that, as a
result of the death of the deceased, she had found employment in a company in which he had been the
only substantial shareholder. Similarly in the present case I do not propose at this stage to take into
account the fact that the drawings by the father out of the business may have been increased since the
death of his son consequent upon the termination of the latters salary and the return of the father to the
management of the business. This element, if and so far as it should be regarded at all, will, in my
opinion, be adequately provided for in making the statutory reduction attributable to the receipt by the
father as his sole next-of-kin of the entire of the deceaseds property including his interest, if any, in the
business.
Similarly, I make no deduction at this stage for the possibility of the mother predeceasing the father,
in which event, had the deceased lived, any allowance made by him to his father might on that account
have been reduced. This possibility can be more suitably dealt with when determining the degree of
dependency of the mother.
Summarizing the foregoing, the position with respect to the father is that, starting with the figure
2,100, that is, Shs. 42,000/-, there will be no addition to that sum in respect of any possible savings by
the deceased but there will be a reduction by twenty-five per cent, in respect of the dependency of the
father on the remaining children. There will be no reduction from the above sum in respect of the
economy (if any) effected in the business by the employment of the youngest son in place of the deceased
or of the possibility of the mother predeceasing the father, and we are left with the figure Shs. 31,500/-.
It is well settled that where a dependant has directly benefited from the death of the deceased
allowance must be made for this benefit, and this allowance, in the present case, will include the award
of Shs. 8,000/- under the Law Reform Act. To what extent, however, should it comprise the sum of Shs.
24,500/- representing the value of the deceaseds assets at the date of death (apart from his claim under
the Law Reform Act)? No doubt the whole of that sum passed to the administrator in trust for the father
(in fact, the same person) by reason of the sons intestacy and the defendants contend that it should be
allowed in full by way of set off, but it must be remembered that immediately prior to the death the father
already had a measure of expectancy in the estate of the deceased by reason of the fact of being his father
and nearest of kin and of the sons intestacy. In Daniels v. Jones, [1961] 1 W.L.R. 1103, an allowance of
12 1/2 per cent. in the case of a widows expectancy in her husbands estate, though not disturbed, was
regarded by the Court of Appeal in England as being too low a figure. In the circumstances of the present
case and bearing in mind the relative ages of the father and the deceased I think that an allowance of five
per cent. is fair and accordingly the extent to which the father must give credit for the said sum of Shs.
24,500/-, will be reduced by that figure to Shs. 23,275/-, which I will treat as Shs. 23,000/-.
This sum of Shs. 23,000/-, together with the said sum of Shs. 8,000/-, must be set off against the sum
of Shs. 31,500/-, leaving a net sum of Shs. 500/- which
Page 692 of [1968] 1 EA 685 (HCK)
I find to be the sum payable in respect of the fathers dependency upon the deceased.
Turning now to the case of the mother, we have seen that she would probably not have required the
direct support of the deceased until the death of her husband, which I have assumed will not occur for
some ten years after the date of the accident. Calculating the annual sum required for her support on the
basis of the figures already given and making no allowance at this stage for the almost certain rise in the
cost of living over the period, would produce the sum of 150 per annum as from the death of the
husband in eight years from the present time and continuing for the remaining fourteen years of her
lifetime. It appears to me to be most unlikely that the father will be able to make any independent
provision for the mother and that, but for the death, she would have been maintained primarily by the
deceased. Accordingly, this figure of 150 will form the basis of calculation.
There are no additions to be made but certain deductions are called for. First there is the possibility of
her predeceasing her husband which, somewhat arbitrarily in the complete absence of evidence as to her
health, I would compute as being a twenty per cent. risk, requiring therefore a reduction of the sum of
150 to 120. Next there is the element of participation by the remaining children in the sharing of the
burden of maintaining the mother. I have found no exact precedent for this calculation but since that
dependency would have been unlikely to arise in any event during the lifetime of the father and since, at
the time of his death, such of the other children as are then living may possibly be in a position to lend
some support to the mother I would reduce the quantum of her dependency upon the deceased son by a
further twenty per cent. of the above figure of 120, that is, to 96 per annum over fourteen years making
1,344 or Shs. 26,880/-, which I will treat as Shs. 27,000/-, and this is the amount therefore which I find
to be the sum payable in respect of the mothers dependency upon the deceased.
Although the defendants have not suggested that a deduction should be allowed for the fact that the
enjoyment of the fruits of dependency is being considerably accelerated, I have thought it proper to give
consideration to this question particularly in regard to the case of the mother. Such a deduction was
allowed in Nances case (supra), a Canadian decision, and was allowed by the Court of Appeal for
Eastern Africa in Kassams case (supra) but was disallowed in the later case by the Privy Council on
appeal, and this decision of the Privy Council is the most recent East Africa authority upon the matter.
The opinion of the Board was expressed as follows:
The Court of Appeal have made a deduction in respect of the acceleration of the benefit of the deceaseds
estate to his children. Their Lordships view is that this is a highly speculative matter, and having regard to
the anticipated savings which might reasonably have been expected to have been made by the deceased if he
had lived, no deduction ought to be made on the score of accelerated benefit, as these two figures very largely
cancel out.
In the present case not only was there the possibility of the deceased having accumulated further savings
had he lived, which his obviously thrifty nature would seem to have rendered highly probable, but regard
must be had to the almost certain fall in the purchasing power of money over the period of more than
twenty years with which we are dealing, which is merely another way of saying that both the general cost
of maintaining the father and, after him, the mother, and the measure of support which it may be assumed
would have been made available by the deceased to meet the cost of their maintenance, would have
increased in terms of money. The aim in assessing damages in a case such as the present is to estimate
the loss of reasonable expectation of pecuniary
Page 693 of [1968] 1 EA 685 (HCK)
benefit, and this cannot be achieved by ignoring the fact that the rate of such benefits in the past, upon
the basis of which the damages are prima facie being assessed, would almost certainly have of necessity
been increased by the deceased, had he lived, in order to maintain the dependants in the same degree of
comfort as previously. A further aspect of the question of a deduction for acceleration may perhaps also
be borne in mind. As a matter of necessity the liability of the defendants is being computed in the form of
a capital sum on the basis of a judicial assumption as to how long each of the dependants may reasonably
be expected to live. It is not intended that the income from that sum, if invested, should be nearly
sufficient to provide for their needs and it is accepted that resort will be had to the capital year by year,
the aim being that the fund will run out simultaneously with the death of the last dependant. If the
computation of the length of their respective lives should prove to have been excessive the unexpended
balance of that capital sum will pass away from the dependants on death with no benefit to them, while if
that computation should prove to have been an underestimate they may well be left in a state of
impoverishment that it might be assumed would not have been their lot but for the death of the deceased
through the negligence of the defendants. There is no practical method of providing against this factor
(other than by the provision of a sinking fund, which would, no doubt, be a hardship on the defendants)
but its bearing may add weight (if such addition were necessary) to the view that the making of a
deduction in respect of the acceleration of benefits in a case such as the present would be a highly
speculative venture and inappropriate in the circumstances.
In certain of the reported decisions consideration was given to the incidence of taxation, including
income tax and death duties. There being no relevant evidence before me I have not directed my attention
to this matter.
During the course of the argument I enquired from counsel for the defendants as to whether in his
submission the adjustment to be made in respect of the financial benefits flowing directly from the death
of the deceased, that is, the sum of Shs. 23,000/- and Shs. 8,000/- already referred to, should take the
form of a deduction from the aggregate gross amount to be found due in respect of the losses suffered by
both parents or only from that found due in respect of the father, and I understood him to say that the
deduction should be made from the aggregate of these two amounts. Although this course appears to have
been followed in some cases I am of the opinion, having regard to the fact that the entire of the
deceaseds estate devolves beneficially upon the father as the sole next-of-kin of the deceased to the
exclusion of the mother, that in the present case the deduction in question should be borne by the fathers
share of the award alone. I have made my calculations accordingly though it does not affect the final
result.
In the result, therefore, under the provisions of the Fatal Accidents Act I award a sum of Shs. 27,500/-
(that is, Shs. 500/- and Shs. 27,000/-) to the administrator as damages suffered by the dependants of the
deceased through the negligence of the defendants. The parties agreed at the hearing that it would not be
necessary for me to direct a division of this sum under s. 4 (1) of the Act.
There will accordingly be judgment for the third plaintiff as administrator of the deceased against the
defendants jointly and severally for the sum of Shs. 27,500/- under the Fatal Accidents Act in addition to
the sum of Shs. 8,000/- payable under the Law Reform Act and the sum of Shs. 200/- for funeral
expenses. Having regard to the considerations upon which the above sum of Shs. 27,000/- has been
arrived at I consider that interest on the aggregate award of Shs. 35,700/- should run as from this date and
not from the date of filing suit.
The third plaintiff has succeeded to the extent of obtaining awards totalling Shs. 35,700/- but of this
sum Shs. 8,000/- represents damages under the Law
Page 694 of [1968] 1 EA 685 (HCK)
Reform Act and is exactly equalled by the lodgement made by the defendants in regard to that portion of
the claim. In the circumstances I direct that the third plaintiff shall have as against the defendants the
general costs of the action to be taxed on the basis of the decretal sum of Shs. 35,700/- but to be reduced
by one-fourth. The defendants shall abide their own costs. No order is made in respect of the first and
second plaintiffs whose joinder in the suit appears to have been unnecessary.
For the plaintiffs:

JJ Patel and Miss Gathani
JJ & VM Patel Nairobi
For the defendants:

P Le Pelley
Archer & Wilcock, Nairob

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1968

Division: High Court of Kenya at Nairobi

Cases referred to in judgment:

Lord Denning said ([1961 A.C. at p. 134):

For the appellant

For the respondent:

Trustees for the Port of Aden v Hathadaru and another

Division: Judicial Committee of the Privy Council

No cases referred to in judgment

Blandford, J., had reached the opposite conclusion. He said this:

For the appellant:

For the respondents:

Division: High Court of Uganda at Kampala

No cases referred to in judgment

Then on 8.8.67, we have the following notes:

For the appellant:

For the respondent:

Division: High Court of Uganda at Kampala

Cases referred to in judgment:

Lord Denning, M.R., said ([1963] 3 All E.R. at p. 1005):

For the plaintiff:

For the defendant:

Case referred to:

For the appellant:

For the respondent:

Embu Public Road Services Ltd v Riimi

Division: Court of Appeal at Nairobi

Cases referred to in judgment:

For the appellant:

For the respondent:

Saldanha and others v Bhailal & Co and others

Division: High Court of Kenya at Nairobi

Cases referred to in judgment:

(3) Ahmed Hassan Malji v. Shirinbai Jadavji, [1963] E.A. 217.

For the applicants:

For the respondents:

Khaled and others v Athanas Bros (Aden) Ltd

Division: Judicial Committee of the Privy Council

Cases referred to in judgment:

On January 9, 1963 the defendants advocates wrote to Mr. Bhatt:

On March 19, 1963 Mr. Bhatt wrote to the defendants advocates:

Their Lordships are in agreement with this view.

For the appellants:

For the respondents:

Wambua v Wathome and another

Division: High Court of Kenya at Nairobi

(ii) the said regulation is valid;

No cases referred to in judgment

For the plaintiff:

For the first defendant:

For the second defendant:

Kagenyi v Musiramo and another

Division: High Court of Uganda at Kampala

Cases referred to in judgment:

For the applicant:

For the respondent

New Wangigi Hotel v Kabungo

Division: High Court of Kenya at Nairobi

No cases referred to in judgment

For the appellant:

For the respondent:

Division: High Court of Tanzania at Dar-Es-Salaam