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Court of AppealPartially AllowedCivil Appeal No 24 of 2005

Douglas Kalafa Ombeva v David Ngama [2013] KECA 538 (KLR)

Court of Appeal of Kenya
14 June 2013
JMJ. W. MweraMohamed Abdulahi WarsameM. WarsameSKS. Gatembu Kairu
1,942 words in judgment
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The bottom line

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Kenya's Court of Appeal doubled an accident victim's damages, ruling that lost future earning capacity counts even when actual lost salary isn't proved.

What this practically means

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Executive summary

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This appeal from the High Court at Nairobi (Ang'awa J) arose from a road traffic accident of 6th December 1995 in which the appellant, a motorcycle rider, was injured and his right arm amputated above the elbow. Liability was consented at 25% against the appellant and 75% against the respondent, special damages were agreed at Kshs. 64,412.00, and the trial court awarded Kshs. 300,000.00 general damages for pain, suffering and loss of amenities but dismissed the claim for loss of earnings for want of proof of a salary. The appellant advanced two grounds: entitlement to damages for loss of earnings despite unproven salary, and inadequacy of the general damages award. On the first ground, the Court of Appeal, applying Karani vs. Nchedu and Cecilia W. Mwangi, held that loss of earnings is special damage that must be specifically pleaded and strictly proved; finding no evidence of employment at Bons Company, the ground failed. The court nevertheless distinguished loss of earnings from loss of earning capacity, the latter being recoverable as general damages on a balance of probabilities, citing Fairley v John Thompson Ltd, Butler v Butler and Mumias Sugar Company v Francis Wanalo. On quantum, applying the Tracom principles, the court found the trial judge had failed to consider the appellant's youth, 70% disability, amputation and loss of employment, rendering the award inordinately low. The appeal was allowed in part: the general damages award was set aside and enhanced to Kshs. 500,000.00, subject to liability as agreed, and the appellant received the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant was entitled to damages under the head of 'loss of earning' notwithstanding lack of proof of a salary
  2. 2.Whether the award of general damages of Kshs. 300,000.00 for pain, suffering and loss of amenities was so low as to justify appellate interference

Key legal issues

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01

Whether loss of earnings was recoverable without proof of salary

Holding

Ground fails; loss of earnings is special damage requiring plea and proof, and the appellant gave no evidence of employment at Bons Company.

Reasoning

The court, citing Karani vs. Nchedu and Cecilia W. Mwangi, held that loss of earnings is a special damage claim that must be specifically pleaded and strictly proved. Although the figure was pleaded, there was no evidence to support the claimed salary, and the court will not act in a vacuum or whimsically where no evidence of special damages exists. The trial judge applied correct principles.

p. 3
02

Distinction between loss of earnings and loss of earning capacity

Holding

Loss of earning capacity is compensable as general damages, proved on a balance of probabilities, and the trial court erred in ignoring it.

Reasoning

Drawing on Fairley v John Thompson Ltd, Butler v Butler, Cecilia Mwangi and Mumias Sugar, the court distinguished real assessable loss of earnings (special damages) from diminution in earning capacity (general damages). The appellant, a 24-year-old who lost his right arm and his job, had a real claim under the latter head which the trial judge failed to evaluate.

p. 4
03

Whether the award of Kshs. 300,000.00 in general damages should be disturbed

Holding

The award was inordinately low and the appeal on quantum succeeded; damages enhanced to Kshs. 500,000.00 subject to apportionment.

Reasoning

Applying Tracom Limited v Hassan Mohamed Adan, the court held it may interfere where the trial judge failed to consider relevant matters. The trial judge did not fully evaluate the appellant's youth, 70% disability, amputation of the right arm, loss of employment and inability to secure paid work, making the award inordinately low.

p. 4

Legal principles established

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  • A claim for loss of earnings is a special damage that must be specifically pleaded and strictly proved.
  • Loss of earning capacity is a head of general damages which need only be proved on a balance of probabilities.
  • An appellate court will interfere with a trial judge's assessment of damages only on established grounds of error or manifestly improper award.

Court orders

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  1. 1.Appeal allowed on the ground of inadequacy of general damages; ground on loss of earnings dismissed
  2. 2.Order of the trial court on general damages set aside
  3. 3.General damages enhanced to Kshs. 500,000.00, subject to liability as agreed in the superior court
  4. 4.Appellant awarded costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
SK
majority
On appeal from
High Court of Kenya at Nairobi
High Court Civil Case No. 754 of 1998
Jurisdiction invoked
First appellate/appellate jurisdiction under the Court of Appeal's statutory powers over appeals from the High Court in civil matters

Relief refused

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Damages for loss of earnings

Loss of earnings is special damage which must be pleaded and strictly proved; no evidence supported the claimed salary at Bons Company

p. 3

Costs

The appellant shall also have the costs of this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Loss of earnings 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 general damages but these have also to be proved on a balance of probability.
p. 3Distinction between loss of earnings and loss of earning capacity
We would therefore allow the appeal, set aside the order of the trial court, and enhance the sum of general damages to Kshs. 500,000.00, subject to liability as agreed in the superior court. The appellant shall also have the costs of this appeal.
p. 4Final orders and disposition
It is important to realize that there is a difference between an award for loss of earning as distinct from compensation for loss of future earning capacity.
p. 2Loss of earnings vs loss of earning capacity (Fairley v John Thompson Ltd, per Lord Denning)
There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.
p. 4Assessment of loss of earning capacity (Mumias Sugar Company Limited v Francis Wanalo)

Issues in the judgment

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minor

Discrepancy in the pleaded salary figure: paragraph 7 of the plaint claims Kshs. 3,913.00 (elsewhere 3,913.60) while the judgment records the appellant testifying to Kshs. 3,670.00 per month.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Douglas Kalafa Ombeva v David Ngama [2013] KECA 538 (KLR)", Case Analysis (2013). Civil Appeal No 24 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/538/eng@2013-06-14

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