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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 534 (KLR)

Nicholas Wambua Makovu v Kajal Enterprises Limited [2019] KEELRC 534 (KLR)

Employment and Labour Relations Court
25 October 2019
738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Mombasa, transferred from the High Court on jurisdictional grounds, against a Trial Court judgment of 8th February 2011 in a work injury claim. Liability was settled by consent at 75% against the Respondent employer. The Trial Court awarded general damages of Kshs. 600,000, loss of earnings of Kshs. 193,500 (43 months), and special damages of Kshs. 20,780, with costs and interest. The Appellant raised three grounds: failure to award loss of earning capacity; the Trial Court's intertwining of lost earnings and loss of earning capacity; and under-award of special damages (Kshs. 20,780 awarded against Kshs. 22,780 pleaded and proved). The Court restated the distinction between the two heads: loss of earnings is special damages, specifically pleadeable and provable, while loss of earning capacity falls under general damages, relying on Henry Moriasi Osiemo v. Quid J. Mohammed & Another and Ndoro Kaka Kakondo v Salt Manufacturers [K] Limited. It agreed the Trial Court erred in intertwining the two heads, but held the error did not prejudice the Appellant, who received both remedies as pleaded; the plea for a separate loss-of-earning-capacity award therefore failed. However, Ground 3 succeeded: the Appellant pleaded Kshs. 22,780 and proved Kshs. 25,780, yet was awarded only Kshs. 20,780 with no explanation for the exclusion of Kshs. 2,000. The Court allowed the appeal in part on Ground 3, raising special damages to Kshs. 22,780, and made no order on costs.

Key legal issues

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01

Distinction between loss of earnings and loss of earning capacity

Holding

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

Reasoning

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.

p. 2
02

Whether a separate award for loss of earning capacity was warranted

Holding

No; the Appellant pleaded only one set of general damages which already included loss of earning capacity

Reasoning

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.

p. 2
03

Special damages award discrepancy

Holding

The Trial Court erred in awarding Kshs. 20,780 in special damages when the Appellant pleaded Kshs. 22,780 and proved Kshs. 25,780

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.No order on the costs

Authorities

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Cases cited (2)

  • Henry Moriasi Osiemo v. Quid J. Mohammed & Another
    Mombasa HCCA No. 436 of 1995
  • Ndoro Kaka Kakondo v Salt Manufacturers [K] Limited
    Civil Appeal No. 4 of 2014
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

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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, "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.