( Being an appeal from the judgment and decree by Hon. Christine A. Ogweno, Senior Resident Magistrate, in CMCC No. E382 of 2024 delivered on 29 th May, 2025 )
JUDGMENT.
Introduction
1. The Appellant sued the Respondent vide a plaint dated 9 th February 2024 seeking for general damages for pain and suffering, and loss of amenities, loss of earnings, loss of future earnings and special damages, plus the costs of the suit and interest. The Defendants were duly served with the pleadings and filed a defence to the claim.
2. The matter proceeded for hearing and thereafter the court entered judgment for the Plaintiff as against the Defendant in the following terms:
a. Liability 100% in favour of the Plaintiff.
b. General damages Kshs. 1,700,000.00
c. Special damages Kshs. 123,550.00
d. Loss of earnings/future earnings Declined.
3. The Plaintiff was dissatisfied with the judgment of the trial court and filed the Amended Record of Appeal dated 10 th June 2025. The Amended Memorandum of Appeal set out the grounds of appeal as follows:
a. That the Learned Trial Magistrate erred in law and in fact in failing to award the Appellant damages for loss of future earnings/Diminished Earning Capacity.
b. That the Learned Trial Magistrate’s judgment was arrived at in a cursory and perfunctory manner without properly interpreting the Appellants pleadings on the issue of Loss of Future Earnings which also referred to diminished Earning Capacity or Loss of Earning Capacity .
4. Both Counsel did file their respective submissions and directed by the court. The Appellants submissions are dated 7 th March 2026 and the Respondents submissions are dated 31 st July 2025.
5. The Respondents had raised an issue on the form of the Memorandum of Appeal as the Appellant had only named one of the Respondents in the Memorandum of Appeal. The had only named the 2 nd Respondent and not the 1 st Respondent. This was rectified with the Amended Memorandum of Appeal and Record of Appeal.
6. On the substance of the appeal, the only issue for consideration is whether the trial court properly declined to award the Appellant the damages under the head of loss of future earnings and diminished earning capacity.
7. In the trial, the Appellant had pleaded that he was an artist in drawing and painting. At the trial however he did testify that he is an electrician. Based on the discrepancy, the trial court declined to award any damages under the head for loss of earnings or diminished earning capacity. It is this finding that the Appellant has challenged before this court.
8. In arriving at the determination, the Court relied on decisions in Butler vs Butler (1984) KLR 225, SJ vs Francessco Di Nello & Another (2015) eKLR and Beatrice Anyango Okoth vs Rift Valley Railways (Kenya) Limited & Another (2018) eKLR .
9. The respective Counsel submitted at length on the various heads of loss of earnings, loss of earning capacity and diminished earning capacity. As correctly stated in the cited cases, they fall under distinct heads. Loss of earnings is a special damage that requires pleading and proof. It is based on actual loss and the claimant is obligated to provide a measure of proof before he court can award the same. The cases cited by the trail court supported the aspect of loss of future earnings/diminished earnings and not loss of income, as pleading in the present case.
10. Loss of earning capacity and diminished earning capacity falls under the head of general damages ( see Butler vs Butler ) and the decision of Chesoni J. In the Plaint, the Appellant sought the two reliefs and for the first, he pleaded Kshs. 150,000.00 as the loss he suffered for the 5 months he was off work due to the injury. It was based in the averments that he earned Kshs. 1,000.00 per day and thus the sum of Kshs. 30,000.00 per month and for 5 months the sum added up to Kshs. 150,000.00.
11. On the other hand, the Appellant sought for an award of Kshs. 5,400,000.00 for loss of future earnings as a ratio of 50% as assessed by the doctor. The court declined to award both. On the latter, the court correctly declined to award as the Appellant did state in his evidence that after he healed, he was able to resume work. In his examination in chief, the Appellant had stated, in concurrence with the pleadings that he worked as painter and earned Kshs. 1,000.00 per day. In cross examination, he stated that after the accident, he had taken up duties as an electrician. It is thus distinct that before the accident, he was a painter and after the accident, he took up work as an electrician.
12. I do not see any contradiction. There is nothing contradictory in the Appellant’s evidence as it is possible to take up a new calling after an injury where the injury makes one incapable of undertaking the previous duties. That the Appellant instead of remaining idle took upon himself to find a new vocation can not be the reason for his disadvantage. His evidence and pleadings were thus not in contradiction.
13. Having so stated, it is clear that the trial court erred in failing to consider the Appellants pleadings and evidence as given and finding the same contradictory, when it was not. The only difference was that he was unable to make the same earnings as a painter after the accident. He added that he was left handed and the amputated hand was the left hand, thus the inability to continue with the painting. It is noteworthy that the Respondent did not avail any witnesses to controvert the Appellants evidence.
14. That said, the Appellant having not provided the actual earnings of Kshs. 1,000.00 per day, the trial court should have applied the minimum wage to consider the loss of income experienced in the 5 months before he commenced work as an electrician after the accident.
15. The minimum wages for a painter at the material time were Kshs. 15,201.65. The Appellant was unable to work for 5 months. The same works to Kshs. 76,008.25. I will award the same.
16. The Appellants appeal on loss of future earnings/diminished earning capacity as correctly determined by the trial court are unsustainable and are accordingly declined.
17. Each party to bear its costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 20 th August 2026.
HCCA NO. E611 OF 2025 LIMFORD M. OMWANSA VS ALFRED KASIMU & ANOTHER JUDGMENT Pg. 3
JUDGMENT.
Introduction
1. The Appellant sued the Respondent vide a plaint dated 9 th February 2024 seeking for general damages for pain and suffering, and loss of amenities, loss of earnings, loss of future earnings and special damages, plus the costs of the suit and interest. The Defendants were duly served with the pleadings and filed a defence to the claim.
2. The matter proceeded for hearing and thereafter the court entered judgment for the Plaintiff as against the Defendant in the following terms:
a. Liability 100% in favour of the Plaintiff.
b. General damages Kshs. 1,700,000.00
c. Special damages Kshs. 123,550.00
d. Loss of earnings/future earnings Declined.
3. The Plaintiff was dissatisfied with the judgment of the trial court and filed the Amended Record of Appeal dated 10 th June 2025. The Amended Memorandum of Appeal set out the grounds of appeal as follows:
a. That the Learned Trial Magistrate erred in law and in fact in failing to award the Appellant damages for loss of future earnings/Diminished Earning Capacity.
b. That the Learned Trial Magistrate’s judgment was arrived at in a cursory and perfunctory manner without properly interpreting the Appellants pleadings on the issue of Loss of Future Earnings which also referred to diminished Earning Capacity or Loss of Earning Capacity .
4. Both Counsel did file their respective submissions and directed by the court. The Appellants submissions are dated 7 th March 2026 and the Respondents submissions are dated 31 st July 2025.
5. The Respondents had raised an issue on the form of the Memorandum of Appeal as the Appellant had only named one of the Respondents in the Memorandum of Appeal. The had only named the 2 nd Respondent and not the 1 st Respondent. This was rectified with the Amended Memorandum of Appeal and Record of Appeal.
6. On the substance of the appeal, the only issue for consideration is whether the trial court properly declined to award the Appellant the damages under the head of loss of future earnings and diminished earning capacity.
7. In the trial, the Appellant had pleaded that he was an artist in drawing and painting. At the trial however he did testify that he is an electrician. Based on the discrepancy, the trial court declined to award any damages under the head for loss of earnings or diminished earning capacity. It is this finding that the Appellant has challenged before this court.
8. In arriving at the determination, the Court relied on decisions in Butler vs Butler (1984) KLR 225, SJ vs Francessco Di Nello & Another (2015) eKLR and Beatrice Anyango Okoth vs Rift Valley Railways (Kenya) Limited & Another (2018) eKLR .
9. The respective Counsel submitted at length on the various heads of loss of earnings, loss of earning capacity and diminished earning capacity. As correctly stated in the cited cases, they fall under distinct heads. Loss of earnings is a special damage that requires pleading and proof. It is based on actual loss and the claimant is obligated to provide a measure of proof before he court can award the same. The cases cited by the trail court supported the aspect of loss of future earnings/diminished earnings and not loss of income, as pleading in the present case.
10. Loss of earning capacity and diminished earning capacity falls under the head of general damages ( see Butler vs Butler ) and the decision of Chesoni J. In the Plaint, the Appellant sought the two reliefs and for the first, he pleaded Kshs. 150,000.00 as the loss he suffered for the 5 months he was off work due to the injury. It was based in the averments that he earned Kshs. 1,000.00 per day and thus the sum of Kshs. 30,000.00 per month and for 5 months the sum added up to Kshs. 150,000.00.
11. On the other hand, the Appellant sought for an award of Kshs. 5,400,000.00 for loss of future earnings as a ratio of 50% as assessed by the doctor. The court declined to award both. On the latter, the court correctly declined to award as the Appellant did state in his evidence that after he healed, he was able to resume work. In his examination in chief, the Appellant had stated, in concurrence with the pleadings that he worked as painter and earned Kshs. 1,000.00 per day. In cross examination, he stated that after the accident, he had taken up duties as an electrician. It is thus distinct that before the accident, he was a painter and after the accident, he took up work as an electrician.
12. I do not see any contradiction. There is nothing contradictory in the Appellant’s evidence as it is possible to take up a new calling after an injury where the injury makes one incapable of undertaking the previous duties. That the Appellant instead of remaining idle took upon himself to find a new vocation can not be the reason for his disadvantage. His evidence and pleadings were thus not in contradiction.
13. Having so stated, it is clear that the trial court erred in failing to consider the Appellants pleadings and evidence as given and finding the same contradictory, when it was not. The only difference was that he was unable to make the same earnings as a painter after the accident. He added that he was left handed and the amputated hand was the left hand, thus the inability to continue with the painting. It is noteworthy that the Respondent did not avail any witnesses to controvert the Appellants evidence.
14. That said, the Appellant having not provided the actual earnings of Kshs. 1,000.00 per day, the trial court should have applied the minimum wage to consider the loss of income experienced in the 5 months before he commenced work as an electrician after the accident.
15. The minimum wages for a painter at the material time were Kshs. 15,201.65. The Appellant was unable to work for 5 months. The same works to Kshs. 76,008.25. I will award the same.
16. The Appellants appeal on loss of future earnings/diminished earning capacity as correctly determined by the trial court are unsustainable and are accordingly declined.
17. Each party to bear its costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 20 th August 2026.
HCCA NO. E611 OF 2025 LIMFORD M. OMWANSA VS ALFRED KASIMU & ANOTHER JUDGMENT Pg. 3