Tile & Carpet Center Warehouse v Okello (Civil Appeal 74 of 2019) [2022] KECA 5 (KLR)

The court distinguished loss of earnings (which must be specifically pleaded and strictly proved) from loss of earning capacity, which is compensated as part of general damages once proved. Since the respondent prayed for general damages generally, the contention that the award was bad for want of specific pleading was unsustainable. The court cited William J Butler v Maura Kathleen Butler and Fairley v John Thomson Ltd for this proposition.

With disability fixed at 2%-4% at most, the trial court's award assumed complete loss of earning capacity over 15 years without evidence of the extent to which the amputation and defective grip diminished the respondent's ability to work or find similar paid work. The court held the learned judge ought to have questioned this approach. In the absence of evidence on practical use of the hand, diminished earning capacity was reasonably assessed at not more than 20% of original earning capacity, yielding Kshs.180,000/= using the trial court's multiplier of 15 years and monthly earnings of Kshs.5,000/=.

Adopting the formula in James Mukatui Mavia v M. A. Bayusuf & Sons Limited, the court applied the trial court's multiplier of 15 years and monthly earnings of Kshs.5,000/=, subjecting the earning capacity to a 20% diminution factor, producing Kshs.5,000 x 20/100 x 12 x 15 = Kshs.180,000/=. Comparable awards were distinguished on their facts: in Blowplast the disability was 25%, and in Elgeyo Saw Mills there was evidence the respondent could barely use his right hand.

Citing Kenya Breweries Ltd v Godfrey Odoyo and Stephen Muriungi & another v Republic (adopting Martin v Glywed Distributors Ltd), the court confirmed that a second appellate court must accept findings of fact of the lower courts and may not interfere unless no reasonable tribunal could have reached that conclusion on the evidence, which would render the decision bad in law.