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Court of AppealPartially AllowedCivil Appeal No. 177 of 2008

S J v Francesco Di Nello & another [2015] KECA 606 (KLR)

Court of Appeal
19 June 2015
HOH. M. OkwenguPhilomena Mbete MwiluP. M. MwiluJOJ. Otieno-Odek
3,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that paralysis victims can claim lost earning capacity as general damages, boosting this award by Kshs 2.2 million.

What this practically means

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Executive summary

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This was a first appeal against the High Court's award of damages to the appellant, who at age 15 was rendered 100% paraplegic in a self-involving road accident on 16th April 1994 while a passenger in a vehicle driven by the 2nd respondent. The High Court awarded Kshs.1.5 million in general damages for pain, suffering and loss of amenities with special damages and interest, but declined claims for loss of future earnings and/or lost years, loss of earning capacity and future medical expenses. The Court of Appeal, comprising Okwengu, Mwilu and Otieno-Odek, JJ.A, in a single judgment of the court, allowed the appeal in part. It reiterated that on a first appeal the court conducts a retrial while making due allowance for not having seen the witnesses. It held that loss of future earnings and loss of earning capacity are distinctively different heads: the former must be specifically pleaded and strictly proved as special damage, while the latter is compensated as general damages once proved on a balance of probability. The trial judge had confused the two heads, and in light of the neurosurgeon's evidence of permanent 100% invalidity, the court entered judgment of Kshs.1.5 million for loss of earning capacity, without interest. The court also found the award for pain, suffering and loss of amenities to be a wholly erroneous estimate by comparison with comparable paraplegia awards, and enhanced it to Kshs.2.2 million, with interest at court rates on the difference of Kshs.700,000/= from the date of the High Court judgment. The claim for future medical expenses failed for want of strict proof, being special damages, and ground 1 on loss of future earnings was abandoned by counsel. The appellant received the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claim for loss of earning capacity was pleaded and proved, and whether it must be specifically pleaded and strictly proved like loss of future earnings
  2. 2.Whether the trial judge erred in failing to award damages under the head of loss of earning capacity
  3. 3.Whether the award of general damages for pain, suffering and loss of amenities of Kshs.1.5 million was adequate and warranted enhancement
  4. 4.Whether the trial judge erred in declining to provide for future medical expenses

Key legal issues

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01

Distinction between loss of future earnings and loss of earning capacity

Holding

The two heads are distinctively different; loss of earning capacity is compensated in general damages once proved on a balance of probability, and need not be strictly proved like a special damage

Reasoning

Relying on Fairley v John Thomson and Cecilia Mwangi, the court held the trial judge confused the two heads. Loss of income is a real assessable loss requiring specific pleading and strict proof, whereas diminution in earning capacity is part of general damages proved on a balance of probability. The trial judge's dismissal of the earning capacity claim for want of industry evidence rested on that confusion and was an error of law.

p. 4
02

Whether the appellant proved loss of earning capacity

Holding

The medical evidence of 100% paraplegia established a 100% loss of earning capacity; the trial judge's contrary finding was erroneous and the court substituted an award of Kshs.1.5 million

Reasoning

The consultant neurosurgeon's report established permanent paraplegia with 100% invalidity from T10 downwards, with no evidence of meaningful use of the remaining upper torso. That evidence proved diminution in earning capacity on a balance of probability. Doing the best it could on the evidence, the court assessed general damages for loss of earning capacity at Kshs.1.5 million.

p. 5
03

Adequacy of general damages for pain, suffering and loss of amenities

Holding

The award of Kshs.1.5 million was an erroneous estimate; enhanced to Kshs.2.2 million by comparison with comparable paraplegia awards

Reasoning

Applying the principle that awards must be reasonable, moderate and comparable, and guided by Geoffrey Mutuba (Kshs.2m for paraplegia) and James Nyamboga Masogo (Kshs.1.7m confirmed), the court found the trial judge did not properly assess general damages and interfered, awarding Kshs.2.2 million, with interest on the difference only.

04

Future medical expenses

Holding

Claim failed for want of strict proof; a party cannot throw material at the court without discharging the onus of proof

Reasoning

Apart from a pleading of projected expenses over five years, no evidence was led or proof given to support the amounts sought. Being special damages, strict proof was required. The trial court's finding that nothing was said on the point at the hearing was correct, and ground 3 accordingly failed.

p. 7

Legal principles established

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  • Loss of future earnings and loss of earning capacity are distinct heads of damage: the former must be specifically pleaded and strictly proved, the latter is compensated in general damages once proved on a balance of probability
  • On a first appeal, the court conducts a retrial, re-evaluating the evidence while making allowance for not having seen or heard the witnesses, and does not lightly disturb findings of fact or the exercise of discretion
  • An appellate court may interfere with an assessment of general damages where an irrelevant factor was taken into account, a relevant one ignored, or the amount is so inordinately low or high as to be a wholly erroneous estimate
  • Damages must be within limits set by decided cases and within what the Kenyan economy can afford

Court orders

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  1. 1.Judgment entered for the appellant for pain, suffering and loss of amenities in damages to the tune of 2.2 million, with the sum of Kshs.700,000/= attracting interest at court rates from the date of the High Court judgment until payment in full
  2. 2.Judgment entered for the appellant in the sum of Kshs.1.5 million in respect of damages for loss of earning capacity, with no interest on that sum
  3. 3.The appellant shall have the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HO
majority
Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority
JO
majority
On appeal from
High Court at Nairobi
Civil Case No. 681 of 1997
Jurisdiction invoked
First appeal to the Court of Appeal under the Appellate Jurisdiction Act (appeal as of right from the High Court)

Relief refused

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Future medical expenses (ground 3 of appeal)

The claim is a special damage which must be strictly proved; no evidence was led beyond the pleading of projected expenses

p. 7

Loss of future earnings (ground 1, abandoned)

Ground 1 was abandoned by counsel for the appellant at the hearing

p. 2

Costs

The appellant shall have the costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.
p. 4Distinction between loss of earnings and loss of earning capacity
Loss of earning is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of "loss of earning capacity" can be classified as proved on a balance of probability.
p. 4Pleading and proof requirements for the two heads
Judgment be and is hereby entered for the appellant in the sum of Kshs.1.5 million in respect of damages for loss of earning capacity. There shall be no interest on this sum.
p. 7Final orders - loss of earning capacity
Judgment be and is hereby entered for the appellant for pain, suffering and loss of amenities in damages to the tune of 2.2 million, with the sum of Kshs.700,000/= attracting interest at court rates from the date of the High Court judgment until payment in full.
p. 7Final orders - enhanced general damages and interest
The appellant shall have the costs of the appeal.
p. 7Final orders - costs

Issues in the judgment

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minor

The judgment's paragraphs are numbered non-sequentially (paragraph 20 is absent; the judgment jumps from 19 to 21)

minor

Paragraph 2 describes the appellant's claim as filed by his next friend and father as a minor, yet the proceedings and appeal span over a decade without recording a change of capacity

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "S J v Francesco Di Nello & another [2015] KECA 606 (KLR)", Case Analysis (2015). Civil Appeal No. 177 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/606/eng@2015-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.