Nathan Nyambu Maghanga v Benard M Wanjala & another [2016] KECA 461 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can claim lost earnings after an injury even if your court papers don't use the exact phrase 'loss of earnings'.
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 High Court erred in holding that the claim for loss of earnings and loss of future earnings was not pleaded
- 2.Whether, the claim having been pleaded and proved, the Court should assess and award damages for loss of earnings and loss of future earnings
- 3.The quantum of damages for lost earnings and loss of future earning capacity
Key legal issues
#Whether the claim for loss of earnings was sufficiently pleaded in paragraph 8 of the plaint
It was. The averments that the appellant lost his employment and income on account of the accident disclosed the substance of the claim even without the exact words 'loss of earnings'.
Paragraph 8 of the plaint averred that the appellant was employed as a winder earning a stated monthly income which he had lost after being retired on medical grounds owing to the injuries, and that he claimed cumulative lost earnings. The High Court overlooked this pleading. Although the technical words were absent, the substance of the plea was plain and, coupled with the evidence, provided a sufficient basis for assessment and award of damages.
Whether the courts below erred in failing to award damages for loss of earnings and loss of future earnings
Both lower courts erred; the Court assessed and awarded the damages itself, being a second appeal on a matter of law.
The trial court rejected the claims for lack of evidence while the High Court found the evidence sufficient but held the claim unpleaded. The Court found there was evidence: the payslip (exhibit 6) showed net monthly earnings of Kshs. 7,243.00, and the medical evidence established permanent incapacity. Finding the claims pleaded and proved, the Court exercised its power to assess the damages itself rather than remit the matter.
Assessment of loss of future earnings using the multiplier approach
The Court applied the multiplier method, awarding the equivalent of eight years' net monthly salary, discounted for contingencies and accelerated payment.
Adopting the approach in James Mukatui Mavia and Lord Denning's dictum in Fairley, the Court took the appellant's net monthly salary of Kshs. 7,243.00, his age of 39 years against a retirement age of 55, and imponderable factors that could have prevented him working to retirement. It awarded eight years' earnings: 7,243 x 12 x 8, totalling Kshs. 695,328.00, before the 10% liability reduction.
Legal principles established
#- A claim for loss of earnings is in the nature of a claim for special damages that must be pleaded and proved; however, the exact words 'loss of earnings' need not be deployed if the pleading discloses the substance of the claim.
- Where the substance of a claim for lost earnings is pleaded, the absence of the exact words 'loss of earnings' or 'loss of earning capacity' does not negate the plea.
- Loss of future earnings is awarded only for real assessable loss proved by evidence, assessed using the multiplier approach discounted for contingencies and accelerated payment.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the High Court set aside to the extent that it dismissed the appellant's claim for loss of earnings and loss of future earnings
- 3.Substituted award of Kshs. 808,318.80 for loss of earnings and loss of future earnings (after 10% reduction on liability)
- 4.Interest on that amount at court rates from 17th November 2010 until payment in full
- 5.Appellant to have costs of the appeal and of the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Civil Appeal No. 240 of 2010
- Jurisdiction invoked
- Section 72(1)(a) of the Civil Procedure Act (second appeal on grounds that the decision is contrary to law)
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 common ground, and it is an established principle that a claim for loss of earnings is in the nature of a claim for special damages that must be pleaded and proved.
That does not, however, negate the substance of the plea.
In the circumstances we hold that the lower courts erred in failing to assess and award damages for loss of earnings and loss of future earnings. We shall now do so.
We accordingly allow the appeal. We set aside the judgment of the High Court to the extent that it dismissed the appellant’s claim for loss of earnings and for loss of future earnings and substitute therewith an order awarding the appellant Kshs. 808,318.80.
The appellant shall have the costs of this appeal and of the High Court.
Issues in the judgment
#The judgment describes the trial court's judgment as delivered on 17th November 2010, while the opening paragraph states suit was determined in the Magistrates' Court without a date; the two trial-court judgment dates mentioned (17th May 2008 accident date and 17th November 2010 judgment) are internally consistent, but the High Court judgment is dated 27th November 2012 yet the memorandum of appeal in the High Court is not dated in the judgment - a minor internal gap only.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nathan Nyambu Maghanga v Benard M Wanjala & another [2016] KECA 461 (KLR)", Case Analysis (2016). Civil Appeal No. 110 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/461/eng@2016-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.