1. In the subordinate court Alice Nyauca Waithera filed Kilungu PMCC E066/2020 vide a plaint dated 5/11/2020 against the appellants and the 2nd and 3rd respondents in this appeal – as 1st to 4th defendants.
2. It was her claim that the 1st and 2nd defendants were at all material times the registered or beneficial owners or drivers of motor vehicle registration No. KBC 258C/ZC 8751, and the 3rd and 4th defendants were the registered or beneficial owners or drivers of motor vehicle registration No. KCK 298C.
3. That on 13/11/2017, she was lawfully travelling in motor vehicle registration No. KCK 298C along Mombasa-Nairobi Highway driven by the 4th defendant as the 3rd and 4th defendant’s agent – when a collision occurred between the said motor vehicle and motor vehicle registration No. KBC 258C/ZC 8751 driven by the 2nd defendant.
4. It was her case that the collision was as a result of the negligence of the 2nd and 4th defendants – particulars of which were set out in the plaint.
5. Consequently the plaintiff sustained injuries suffering pain, damages and loss of amenities. The injuries pleaded were:-
- Fracture of the left tibia fibular open and comminuted with resultant 15% permanent disability.
6. She also pleaded special damages to wit:
i. Treatment and transportation expenses at Kshs.730,586
ii. Motor vehicle search Kshs.1650
iii. Postage Kshs.100
iv. Medical legal report Kshs.3000
7. In addition, the plaintiff pleaded that she was earning Kshs. 30,000/= per month from her business from a retail shop in Makueni area and as a result of the accident had suffered loss of income.
8. She also pleaded for future medical expenses at Kshs. 200,000/=.
9. She sought judgment against the defendant jointly and severally for:
i. General damages, Special Damages, Loss of earning capacity/lost earnings, future medical expenses.
ii. Costs of the suit
iii. Interest on (i), (ii) at court rates.
iv. Any other relief the court would deem fit to grant.
10. Together with the plaint she filed a list of 21 documents – these included treatment records from Machakos, Kenyatta National, North Kinangop Catholic and AIC Kijabe Hospitals, Medical legal reports, P3 form and police abstract, bundle of receipts, copy of records for the accident motor vehicles, statutory notices and business permit.
11. She also filed her witness statement.
12. The 3rd and 4th defendant did not file any defence and an interlocutory judgment was entered on 14/4/2021.
13. The 1st and 2nd defendants filed defence dated 30/12/2020.
14. They denied liability, the particulars of negligence and put the plaintiff to strict proof thereof.
15. Without prejudice to the denial of liability – they consented that the accident was as a result of the negligence of the plaintiff and the driver of the motor vehicle registration No. KCK 298C – where particulars were set out.
16. They contended that they would be seeking indemnity or contribution from the owner and the driver of motor vehicle registration No. KCK 298C.
17. On 1/7/2021 – the 1st and 2nd defendants entered into a consent with the plaintiff as follows:-
Liability at 80:20 in favour of the plaintiff: each party’s documents admitted by consent; each party to file written submissions. In addition, the defendants to attach a medical report to their submissions and the police officers payment of Kshs.5000/= be taken into consideration.
18. The consent was adopted as an order of the court.
19. Upon considering the record and the submissions the learned trial magistrate delivered her judgment on 25/9/2021 awarding the following:
General Damages Kshs. 800,000
Loss of earning capacity Kshs. 3,600,000
Future medicals – Nil
Special Damages Kshs. 835,673
All to be subjected to the ratio of 80:20 as agreed by parties.
20. Aggrieved, the appellants filed this appeal vide Memorandum of Appeal filed on 7/10/2021.
21. The grounds for the appeal are that the trial magistrate was in error in that: - She misdirected herself on the law, principles, facts on the assessment of loss of earning capacity when arriving at an award that was inordinately high, erroneous in the circumstances; arriving at a decision that was unsupported by the evidence and dismissing the degree of permanent incapacity in the computation of loss of earning capacity, taking into account irrelevant factors leading to erroneous decision. The appellants seek that the appeal be allowed and the lower court decision on loss of hearing capacity to be set aside; that the award on loss of earning capacity or loss of earning be revised to commensurate levels as per the evidence on record and that the appellants be awarded cost of the appeal.
22. It is clear from the Memorandum of Appeal that this appeal is against the award on loss of earning or earning capacity made by the trial magistrate. I take that the awards on special damage, general damage are unchallenged.
23. On this, appellants submit three issues for determination:-
i. Whether the respondent specifically pleaded and strictly proved the claim of loss of earning capacity and lost earnings.
ii. Whether the court erred in assessing loss of earning and capacity at Kshs.3,600,000/=
iii. Who should bear the costs of the appeal.
24. I have carefully considered the rival submissions.
25. The learned trial magistrate found as a fact that both sides were agreed that the plaintiff deserved damages for loss of earning capacity.
26. The plaintiff’s position was that she earned the sum of Kshs. 30,000/= per month from her shop and produced a receipt to show that she ran a shop. The trial court found as a fact that there was no evidence to prove that amount but proceeded to assess the income at Kshs.20,000 per month and following Kimatu Mbuvi t/a Kimatumbuvi vs Augustine Munyao Kioko [2016] e KLR and Jacob Ayiga Maruja and Another vs- Simeon Obayo Civil Appeal No. 167 of 2002 and Mwaura Muiruri vs Suera Flowers Limited & Another [2014] e KLR the learned trial court proceeded to find that the plaintiffs income was Kshs.20,000 per month, a multiplier of 15 years and arrived at Kshs 3,600,000/=.
27. The appellants argue that the plaintiff pleaded the sum of Kshs. 30,000/= but did not produce any evidence to support that allegation.
28. The evidence placed before me is a receipt issued by County Government of Makueni Miscellaneous receipt dated 14/6/2017. It states that it is issued to Alice Nyaucha Waithaka, Sultan Hamud, plot 212 – the amount is Kshs. 4,900/= for “R/shop malimali cons Application Renewal”.
29. This was the only evidence the plaintiff produced to support the claim that she ran a retail shop and earned Kshs. 30,000/= per month. She did not attach any other evidence to support either the purchase of goods for sale, the sales of any goods or evidence at all that she made that sum of money per month.
30. The plaintiff pleaded for loss of earning capacity or loss of earnings.
31. It was submitted that after the accident she was admitted in hospital for long periods of time – at Kenyatta National Hospital 13/11/2017 – 7/12/2017, at North Kinangop hospital from 10/4/2018 to 18/4/2018, at AIC Kijabe hospital on 1/10/2019 to 10/4/2020, 14/7/2020 – 16/7/2020 etc. and underwent five operations due to complications of the fracture and the report by the Dr. Mwaura indicated that healing would take about 1 ½ years from 18/9/2020 with disability of 15%. This, it is submitted is proof that during all this time, she did not earn a living as she was debilitated by complications of the injury and even after the same had healed she would still suffer a 15% permanent disability.
32. It is argued by the counsel for the respondent relying on Hamo Transporters Company Ltd and Another vs- Dorcus Wangui Kiriro [2019] e KLR that the award sought was not in the form of special damages – but in the form of general damages.
33. In addition, that failure to produce evidence of earnings would not be reason to deny the plaintiff an award under this head – see Kimatu Mbuvi above and Nelson Rintari –vs- CMC Group Ltd [2015] e KLR for the proposition that a strict requirement for records and awards would do injustice to the plaintiff when many Kenyans in jua kali who do not keep what would be strictly books of account – and would fly in the face of Article 159(2) (d) of the Constitution about justice without technicalities.
34. The court was urged not to disturb the award.
35. The appellants position was supported by –
a) Mumias Sugar Co. Ltd vs Francis Wanalo [2007] e KLR for the proposition that loss of earning capacity can be assessed as general damages for the party who was employed at the time of the road traffic accident for the risk that the disability would expose him to loss of the job /or chances of getting a job should he lose his job; and for the unemployed / for the risk of not getting a job/suitable employment in future. “There is no formula for assessing loss of earning capacity.” The award however must be arrived at through the application of the correct principles, taking into account the relevant factors of the case in determining the actual or approximate financial loss incurred by the plaintiff due to the disability.
b) SJ vs Francisco Di Nello & Another [2015] e KLR for the difference between loss of future earnings and loss of earning capacity. That “Loss of Income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. In the other hand, loss of earning capacity is compensated by an award in general damages once proved”.
c) Alpharama Limited vs Joseph Kariuki Cebron [2017] e KLR- which sets out the traditional approach of calculating a claim for loss of earning capacity – through assessing a lump sum, the multiplicand – then the number of years between the date of the settlement and date when loss stops – the multiplier
36. Ezekiel Morara Nyatogo vs Mini Bakeries Limited [2018] e KLR for the proposition that the plaintiff must demonstrate that she should not be able to earn a living or perform the job she was performing before the accident. The application submits –
“such a claim should then be evaluated by the court based on the nature of the injury vis a vis the type of work done by the person, his age, how long the injuries might last, the degree of the incapacity and such other factors. In short the court must show how it has arrived at the amount, it not just coming up with a random figure”.
37. In this case the trial court assessed the income of the plaintiff at Kshs. 20,000/= per month but did not have a basis for the same. Other than the plea that the plaintiff ran a retail shop there was no indication or facts to point the court as to how much the plaintiff could have made per month – and the assessment of an income at 20,000/= appeared to be a random figure.
38. It was submitted by the appellant on two heads with respect to this issue loss of earning capacity and diminished earning capacity – urging the court to adopt the minimum wage of a storekeeper in 2018 at Kshs. 19,112/05 as per the Regulation of Wages (General Amendment) Order 2018 and a multiplier of 11 years – as in Irene Kagandi and Mary Wanda Kaganda vs W. Tiltrey Muthaiga Ltd and Another.
39. The defendant submitted for a sum of Kshs. 378,418/59 – made up as follows: - 19,112/05 x 12x11x15% (the 15% being the degree of disability).
40. With respect to loss of earnings it was submitted that this would be a special damages claim – specifically pleaded and strictly proved – see Cecilia W. Mwangi & Another vs-Ruth W. Mwangi [1997] e KLR, and Kalafa Ombeva vs- David Ngama [2013].
41. The plaintiff submitted the plaintiff would have retired at 60, was 45 years at the time of the accident and would have earned 30,000 per month; = 30,000x12x15=5,400,000.
42. On assessing the damages awardable I find guidance in Ezekiel Morara Nyatogo: - the injury was to the left leg. How would the 15% disability assessed affect the manner in which the plaintiff performed her job as a shopkeeper? I would say that this was not demonstrated – the Doctor’s opinion did not include any incapacity to earn a living but incapacity of the left lower limb. Evidently within the 1½ years it was expected at least from the Doctor’s own assessment that the plaintiff would be in a position to resume her life to some degree of normalcy. My view would be that loss of earning capacity would not persist to the time of retirement.
43. I note that the minimum wage suggested by the defendants and the figure arrived at by the learned trial magistrate are not that different.
44. The plaintiff sustained injury on 13/11/2017 and in 2020 – the Doctor was of the view that she needed another 1 ½ years to heal – making it five years without earning. Taking into account the degree of incapacity, the period of time the incapacity might last, and the nature of the injury, I would use the trial court’s assessment and assess the loss of earning as –
20,000 x7x12 = 1,680,000.
45. The appeal succeeds – the judgment of the subordinate court is set aside and substituted with the following:
Liability 80:20
General damages 800,000
Special damages 835,673
Loss of earnings 1,680,000
Plus costs and interests from the date of the judgment below. The appellant will have ½ the costs of the appeal.
Dated, signed and delivered via CTS on 27th August 2024.
Mumbua T Matheka
Judge