John Wambugu Ndung’u & Dolphin Coaches Limited v David Kagotho Iribe [2016] KECA 498 (KLR)

Court of Appeal

16 June 2016

PWP.N. Waki RNR.N. Nambuye PKP.O. Kiage

2,215 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that accident victims in informal jobs can prove their income through testimony, not just documents, when claiming lost future earnings.

What this practically means

Executive summary

This was a first appeal confined to quantum. The respondent, a driver, was injured when his broken-down Canter was struck by a bus belonging to the second appellant and driven by the first appellant on the Nakuru-Nairobi highway; his right leg was amputated. The High Court (Koome, J.) found the appellants wholly liable and awarded general damages of Ksh 1,300,000, loss of future earnings of Ksh 1,440,000 and special damages of Ksh 133,155. On appeal, counsel for the appellants challenged only quantum, contending that the monthly income of Ksh 12,000 used as the multiplicand was not proved by documents, that loss of future earnings was not pleaded and was duplicated by the general damages award, and that the awards were excessive. The respondent defended the trial judge's approach, relying on oral testimony of himself and his employer. The Court of Appeal, sitting as a first appellate court, applied Selle v Associated Motor Boat Co and endorsed the principle from Jacob Ayiga Maruja that earnings need not be proved exclusively by documents, particularly for informally employed persons. It held the respondent proved his earnings on a balance of probabilities, that the Mumias Sugar distinction between loss of future earnings and loss of earning capacity was properly applied so there was no duplication, and that the awards were not an erroneous estimate under Butt v Khan. The appeal was dismissed with costs in both courts awarded to the respondent.

Key legal issues

Mode of proving earnings for the multiplicand in loss of future earnings

Holding

Oral evidence of the claimant and his employer, believed by the trial court, suffices as strict proof on a balance of probabilities; demanding pay slips and bank statements of a driver in informal employment would be unrealistic.

Reasoning

The Court adopted the reasoning in Jacob Ayiga Maruja that insisting on documents would do injustice to many Kenyans who keep no records. The respondent testified to his licence and monthly pay of Ksh 12,000, and his employer confirmed the same; the evidence was uncontroverted as the appellants called no witness. The trial judge believed this evidence, and on a first appeal the Court had no basis to displace that finding.

p. 4

Whether loss of future earnings was duplicated by the general damages award

Holding

Loss of future earnings, computed from actual proved earnings, is a distinct compensable head; loss of future earning capacity is the element folded into general damages, so there was no duplication.

Reasoning

The Court endorsed the distinction drawn in the Mumias Sugar case, based on Moeliker v Reynolle, between loss of future earnings and loss of earning capacity. Since actual earnings of Ksh 12,000 were proved, the award of Ksh 1,440,000 for future earnings was proper and did not overlap with general damages, which addressed loss of amenities and earning capacity. The awards were not inordinately high.

p. 4

Appellate interference with quantum

Holding

The awards were neither inordinately high nor low and were not made on wrong principles; the appellate court will not substitute its own view merely because it might have assessed differently.

Reasoning

Relying on Butt v Khan and H. West & Son Ltd v Shephard, the Court reiterated that assessment of damages involves imponderables and depends on the facts of each case; an award is disturbed only where it represents an entirely erroneous estimate or the judge misapprehended the evidence materially. Neither was shown here, and counsel for the appellants in any event accepted the general damages award as within range.

p. 4

Legal principles established

Earnings and profession may be proved by oral evidence; documentary evidence is not the only mode of proof, especially for persons in informal employment
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence
Loss of future earnings, where actual earnings are proved, is a distinct head of damages from loss of future earning capacity, which is subsumed in general damages

Court orders

1.The appeal stands dismissed
2.Costs before both courts awarded to the respondent

Authorities

Cases cited (7)

Selle v Associated Motor Boat Co
[1968] E.A. 123
George Kirianki Laichena v Michael Mutwiri
Civil Appeal No. 162 of 2011
H. West & Son Ltd v Shephard
[1964] AC 326
Butt v Khan
[1981] KLR 349
Jacob Ayiga Maruja & Another v Simeon Obayo
(2005) eKLR
Mumias Sugar Company Limited v Francis Wanalo
[2007] eKLR
Moeliker v Reynolle & Co Ltd
[1977] 1 WLR 132

On appeal from: High Court of Kenya at Nakuru; Nakuru H.C.C.C No 15 of 2006
Jurisdiction invoked: First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (constitutional and statutory provisions not expressly cited in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "John Wambugu Ndung’u & Dolphin Coaches Limited v David Kagotho Iribe [2016] KECA 498 (KLR)", Case Analysis (2016). Civil Appeal No 51 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/498/eng@2016-06-16

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