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Court of AppealAllowedCivil Appeal No. 110 of 2013

Nathan Nyambu Maghanga v Benard M Wanjala & another [2016] KECA 461 (KLR)

Court of Appeal of Kenya
14 June 2016
2,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you can claim lost earnings after an injury even if your court papers don't use the exact phrase 'loss of earnings'.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Eldoret (Maraga, Musinga & Gatembu, JJ.A) against the High Court's dismissal of the appellant's claim for lost earnings and loss of future earnings arising from a 2008 road traffic accident in which he suffered a cervical spine injury resulting in paralysis of both lower limbs. The trial magistrate had declined to award damages under those heads for want of evidence, awarding only general damages of Kshs. 1,400,000.00 and special damages of Kshs. 44,797.00, reduced by 10% per a consent order on liability. The High Court found there was in fact evidence supporting the claims but dismissed the appeal because the damages were specific damages that must be specifically pleaded and specifically proved, and the plaint did not use the words 'loss of earnings'. The Court of Appeal, invoking Section 72(1)(a) of the Civil Procedure Act, held both lower courts erred. Although the technical words were absent, paragraph 8 of the plaint disclosed the substance of the claim for cumulative lost earnings, and the plea coupled with the evidence (a payslip showing net monthly earnings of Kshs. 7,243.00 and medical evidence of permanent incapacity) provided a sufficient basis for assessment. The Court awarded lost earnings for 28 months out of work (Kshs. 202,804.00) and loss of future earnings equivalent to eight years' salary (Kshs. 695,328.00), reduced by 10% to Kshs. 808,318.80, with interest from 17th November 2010. The appeal was allowed and the appellant received the costs of the appeal and of the High Court.

Questions the Court framed

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

  1. 1.Whether the High Court erred in holding that the claim for loss of earnings and loss of future earnings was not pleaded
  2. 2.Whether, the claim having been pleaded and proved, the Court should assess and award damages for loss of earnings and loss of future earnings
  3. 3.The quantum of damages for lost earnings and loss of future earning capacity

Key legal issues

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01

Whether the claim for loss of earnings was sufficiently pleaded in paragraph 8 of the plaint

Holding

It was. The averments that the appellant lost his employment and income on account of the accident disclosed the substance of the claim even without the exact words 'loss of earnings'.

Reasoning

Paragraph 8 of the plaint averred that the appellant was employed as a winder earning a stated monthly income which he had lost after being retired on medical grounds owing to the injuries, and that he claimed cumulative lost earnings. The High Court overlooked this pleading. Although the technical words were absent, the substance of the plea was plain and, coupled with the evidence, provided a sufficient basis for assessment and award of damages.

p. 3
02

Whether the courts below erred in failing to award damages for loss of earnings and loss of future earnings

Holding

Both lower courts erred; the Court assessed and awarded the damages itself, being a second appeal on a matter of law.

Reasoning

The trial court rejected the claims for lack of evidence while the High Court found the evidence sufficient but held the claim unpleaded. The Court found there was evidence: the payslip (exhibit 6) showed net monthly earnings of Kshs. 7,243.00, and the medical evidence established permanent incapacity. Finding the claims pleaded and proved, the Court exercised its power to assess the damages itself rather than remit the matter.

p. 3
03

Assessment of loss of future earnings using the multiplier approach

Holding

The Court applied the multiplier method, awarding the equivalent of eight years' net monthly salary, discounted for contingencies and accelerated payment.

Reasoning

Adopting the approach in James Mukatui Mavia and Lord Denning's dictum in Fairley, the Court took the appellant's net monthly salary of Kshs. 7,243.00, his age of 39 years against a retirement age of 55, and imponderable factors that could have prevented him working to retirement. It awarded eight years' earnings: 7,243 x 12 x 8, totalling Kshs. 695,328.00, before the 10% liability reduction.

p. 4

Legal principles established

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  • A claim for loss of earnings is in the nature of a claim for special damages that must be pleaded and proved; however, the exact words 'loss of earnings' need not be deployed if the pleading discloses the substance of the claim.
  • Where the substance of a claim for lost earnings is pleaded, the absence of the exact words 'loss of earnings' or 'loss of earning capacity' does not negate the plea.
  • Loss of future earnings is awarded only for real assessable loss proved by evidence, assessed using the multiplier approach discounted for contingencies and accelerated payment.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court set aside to the extent that it dismissed the appellant's claim for loss of earnings and loss of future earnings
  3. 3.Substituted award of Kshs. 808,318.80 for loss of earnings and loss of future earnings (after 10% reduction on liability)
  4. 4.Interest on that amount at court rates from 17th November 2010 until payment in full
  5. 5.Appellant to have costs of the appeal and of the High Court

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Eldoret
Civil Appeal No. 240 of 2010
Jurisdiction invoked
Section 72(1)(a) of the Civil Procedure Act (second appeal on grounds that the decision is contrary to law)

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.

It is common ground, and it is an established principle that a claim for loss of earnings is in the nature of a claim for special damages that must be pleaded and proved.
p. 3Loss of earnings as special damages
That does not, however, negate the substance of the plea.
p. 3Substance over form in pleading loss of earnings
In the circumstances we hold that the lower courts erred in failing to assess and award damages for loss of earnings and loss of future earnings. We shall now do so.
p. 3Court's power to assess damages on second appeal
We accordingly allow the appeal. We set aside the judgment of the High Court to the extent that it dismissed the appellant’s claim for loss of earnings and for loss of future earnings and substitute therewith an order awarding the appellant Kshs. 808,318.80.
p. 4Final orders - disposition
The appellant shall have the costs of this appeal and of the High Court.
p. 4Costs order

Issues in the judgment

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minor

The judgment describes the trial court's judgment as delivered on 17th November 2010, while the opening paragraph states suit was determined in the Magistrates' Court without a date; the two trial-court judgment dates mentioned (17th May 2008 accident date and 17th November 2010 judgment) are internally consistent, but the High Court judgment is dated 27th November 2012 yet the memorandum of appeal in the High Court is not dated in the judgment - a minor internal gap only.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nathan Nyambu Maghanga v Benard M Wanjala & another [2016] KECA 461 (KLR)", Case Analysis (2016). Civil Appeal No. 110 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/461/eng@2016-06-14

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