Nicholas Wambua Makovu v Kajal Enterprises Limited [2019] KEELRC 534 (KLR)
The bottom line
#A Kenyan appeal court ruled that loss of earning capacity is covered under general damages, but increased the injured worker's special damages award by Kshs. 2,000.
What this practically means
#Executive summary
#Key legal issues
#Distinction between loss of earnings and loss of earning capacity
The two heads are distinct; loss of earnings is special damages while loss of earning capacity falls under general damages and cannot be redressed together with loss of earnings
Loss of earnings refers to income lost due to injury and recovery time and must be specifically pleaded and proved, as the Appellant did, earning him Kshs. 193,500. Loss of earning capacity is compensated within general damages. The Trial Court erred in intertwining the two, but the error was not adverse since the Appellant received both heads of compensation as pleaded.
Whether a separate award for loss of earning capacity was warranted
No; the Appellant pleaded only one set of general damages which already included loss of earning capacity
The Plaint pleaded general damages for pain, suffering and loss of earning capacity, and the Trial Court awarded Kshs. 600,000 under that prayer. Since only one set of general damages was pleaded, the Appellant could not claim loss of earning capacity as a separate award over and above the general damages already granted.
Special damages award discrepancy
The Trial Court erred in awarding Kshs. 20,780 in special damages when the Appellant pleaded Kshs. 22,780 and proved Kshs. 25,780
The Trial Court's own judgment found that the Appellant proved Kshs. 25,780, exceeding the pleaded sum of Kshs. 22,780. The judgment gave no explanation for excluding the sum of Kshs. 2,000 (medical report) from the award. Ground 3 therefore succeeded and special damages were raised to Kshs. 22,780.
Legal principles established
#- Loss of earning capacity is compensated as general damages, while loss of earnings is treated as special damages which must be specifically pleaded and proved
Court orders
#- 1.Ground 3 of the Memorandum of Appeal is allowed, with special damages allowed at Kshs. 22,780, instead of Kshs. 20,780 granted by the Trial Court
- 2.No order on the costs
- On appeal from
- Trial Court (Magistrates' Court)
- Not stated
- Jurisdiction invoked
- Appeal transferred on jurisdictional grounds to the Employment and Labour Relations Court, Mombasa
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Wambua Makovu v Kajal Enterprises Limited [2019] KEELRC 534 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/534/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.