Kibet v Alunda (Civil Appeal 115 of 2019) [2024] KECA 64 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that loss of earning capacity is general damages, not special damages that must be strictly pleaded and proved.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the award in respect of the respondent's plea for 'loss of future earning capacity' was for a special loss or a general loss
- 2.Whether the court erred in affirming the exercise of discretion by the trial court in assessing awardable damages
- 3.Who bears the costs of this appeal
Key legal issues
#Distinction between loss of future earnings and loss of earning capacity
Loss of earnings is a special damage claim that must be specifically pleaded and strictly proved; loss of earning capacity is part of general damages proved on a balance of probability. Adding the word 'future' does not alter the character of the claim.
The court, following James Mukatui Mavia v M A Bayusuf & Sons Limited and the authorities therein (Fairley v John Thompson Ltd; Moeliker v Reyrolle & Co Ltd; Butler v Butler), held that compensation for loss of earning capacity is awarded as part of general damages for a diminished chance of future employment, while compensation for loss of future earnings is awarded for real assessable loss proved by evidence. The respondent's plaint pleaded loss of earning capacity, not loss of earnings, so the High Court erred in treating it as special damages.
Whether the first appellate court erred in affirming the trial court's exercise of discretion
No. Even though the multiplicand/multiplier method was more suitable for special damages, the resulting award was neither excessively high nor low, so the discretion was not disturbed.
The court restated the Kemfro Africa principles limiting appellate interference with quantum: the trial judge must have taken into account an irrelevant factor, omitted a relevant one, or the award must be so inordinately low or high as to be a wholly erroneous estimate. Evidence showed permanent disability affecting the respondent's work; the multiplicand of Kshs.7,000 and multiplier of 17 years for a 38-year-old was not unreasonable. The invitation to interfere was declined.
Legal principles established
#- Loss of earning capacity is a head of general damages, whereas loss of earnings is a special damage claim that must be specifically pleaded and strictly proved; the insertion of the word 'future' does not convert one into the other.
- An appellate court may interfere with a trial court's award of general damages only on the established limited grounds of irrelevant or omitted relevant factors, or an inordinately low or high award amounting to a wholly erroneous estimate.
Court orders
#- 1.Appeal dismissed
- 2.Declaration that the first appellate court erred in finding that the claim for 'loss of future earning capacity' was a claim for special damages
- 3.Each party to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- HCCA No. 82 of 2015
- Jurisdiction invoked
- Section 79D as read with section 72(1) of the Civil Procedure Act, Cap 21 (second appeal limited to matters of law)
Relief refused
#Appellant's prayer to set aside the award for loss of future earning capacity
The claim was for loss of earning capacity, a general damages head, and the trial court's exercise of discretion was not shown to be erroneous
Costs
Each party shall bear their own costs of the appeal
Quotable passages
#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 therefore our finding that the inclusion of the word "future" by the respondent when pleading for "loss of earning capacity" was irrelevant and did not mutate the plea to that of "loss of future earnings".
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.
For the reasons stated in this judgment, we find this appeal to be without merit and dismiss it with an order that each party shall bear their own costs of the appeal.
In conclusion, we find this appeal to be without merit and dismiss it save to state that the first appellate court erred in finding that the claim for "loss of future earning capacity" was a claim for special damages.
Issues in the judgment
#The court states that the High Court erred in finding the claim to be one for special damages, yet it declines to disturb the award that was premised on that misclassification and cites that very error as a reason for denying costs - a tension in the disposition
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndiema v Kababa t/a Channia Classic (Civil Case 10 of 2018) [2025] KEMC 262 (KLR)[2025] KEMC 262 (KLR)9 Oct 2025applied
- Muiruri v Mwilu & another (Civil Case E046 of 2022) [2025] KEMC 59 (KLR)[2025] KEMC 59 (KLR)24 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kibet v Alunda (Civil Appeal 115 of 2019) [2024] KECA 64 (KLR)", Case Analysis (2024). Second Appeal from Eldoret HCCA No. 82 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/64/eng@2024-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.