[2022] KEET 855 (KLR)

Anyona v Kenya Power and Lighting Co Ltd (Appeal E008 of 2022) [2022] KEET 855 (KLR) (Civ) (28 December 2022) (Judgment)

Neutral citation: [2022] KEET 855 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Civil

Appeal E008 of 2022

D.K Mwirigi, Vice Chair, B.H Wasioya, D Jemator, F.S Ibrahim & F. M Kavita, Members

December 28, 2022

Between

Edwin Miruka Anyona

Appellant

and

Kenya Power And Lighting Co Ltd

Respondent

Judgment

1. The claim herein was brought on behalf of a minor of 9 years of age who has sued through his father. The claim was instituted through a statement of claim dated 3rd June 2022 where the Claimant avers that on August 27, 2021 at Kayole Plot No CA1505 - NAIROBI within the City of Nairobi he got struck by a live electricity wire which resulted in him being thrust from the 2nd Floor of the building and thus suffering grievous bodily harm.

2. The Claimant states that the incident took place while he was playing with other children on the balcony of the 2nd Floor of the building. As a result of the electric shock, he suffered great pain and he blames the Respondent herein for his injuries. The particulars of his claim of negligence on the Respondent was that it failed to insulate the electric wires thus exposing him to danger of electric shock, installing or erecting high voltage lines near buildings without any safety measures and exposing live wires which was dangerous to him as a minor.

3. The Claimant states that he sustained injuries which include loss of consciousness, fracture on the distal and midshaft femurs, fracture on the right femur. He also claims pain and suffering and special damages for the medical bills he incurred of Kshs 82,905/=. He prays for the special damages, general damages and cost and interest of the suit.

4. The Respondent, through its response to the claim, denies the claim against it and states that the injuries from the Claimant’s alleged accident was wholly or substantially as a result of the Claimant’s own negligence. It raised particulars of negligence on the minor and the next friend which included failure to raise alarm on discovery of high voltage lines, tampering with live wires in attempt to tap electricity, failing to exercise due care, knowingly exposing oneself to danger, failing to be on proper look out.

5. The Respondent also attributed negligence on the part of the County Government of Nairobi. It avers that the County Government contributed entirely or substantially to the negligence as it failed to warn the public on the live cables which are connected to the street lights, failing to report any trouble in time, allowing third parties to tamper with electric cables, failing to alert the Respondent to switch off the power in the area in time, failure to exercise reasonable foresight and failure to ensure that the electric cables were not dangerously exposed. Although through it stated that it would at the appropriate time institute third party proceedings against the County Government, the Respondent never did so.

6. During trial, the Claimant called one witnesses who was the father. The witness testified how his son was struck by a live electricity wire while playing at the balcony on the 2nd Floor. He stated that the boy fell from the 2nd Floor and suffered great pain and grievous injuries. He further testified that even a child leaning on the balcony barriers could reach the electric wires. On cross examination he stated that the wires were naked before he rented the premises and that the child had to be standing in order to touch the wires.

7. The Respondent did not call any witness and the medical reports were produced by consent of both parties. Parties filed their submissions.

8. The Claimant through its submissions submitted that his evidence that there had been an accident was unchallenged. He relied on the case ofAMK (suing as the mother and next friend JMK) versus Kenya Power and Lightning Company Limited {2020} eKLR to state that a statement of defence was insufficient to rebut the evidence of a plaintiff and such evidence was not rebutted unless effectively displaced in cross examination. It is his submission that the evidence he brought before this Tribunal proved his case. He also relied on the case in his submission that the Respondent is the sole supplier of electrical energy hence had the statutory duty of ensuring safe electrical installations thus had to exercise high degree of vigilance to prevent accidents.

9. In his submissions, the Claimant prayed for general damages of Kshs 3,000,000. 00. It relied on the case ofAnthony Peter Wainaina v Jumba Patrick Oganda and 3 others {2021} eKLR which the Claimant submits that the injuries were similar. He also sought for special damages for Kshs82,905

10. The Respondent in its submission submitted that the onus of proof on the allegation of negligence was on the Claimant. It relied on an number of precedents and Section 157 of the Evidence Act. The Respondent stated that the claimant had failed to prove liability on the Respondent as there was no eye witness who was called upon to support the assertions by the claimant. The Respondent stated that the father was not at the scene and the mother of the child was also not at the scene even though she was in the same house. The Respondent relied on the cases ofBwire v Wayo & Sailoki (Civil Appeal 032 of 2021 and Wycliff Nyongesa v Etyang Imonyaro & AG (2004) eKLR to submit that on the account that the Claimant did not bring an eye witness, the Claimant failed to prove liability.

11. On the account of apportioning negligence, the Respondent submitted that the minor had to stand on the balcony in order to touch the wire. It also submitted that the Claimant never made any complaint to the respondent in the period of four years that he had rented the premises. They also submitted that the complainant knew the dangers of the electric wires and allowed the minor to play close to the naked wires. It submitted that the accident could not have occurred if the minor had been supervised by the parents. It relied on the case of Kenya Power and Lighting Company versus Nathan Karanja Gachoka and another[2016] eKLR.

12. In concluding its submissions, the Respondent prayed that the Tribunal find the Claimant wholly liable for the accident. It also submitted that if the Tribunal finds otherwise, liability should be apportioned 50:50.

Analysis and Determination 13. The Tribunal has carefully considered the pleadings, evidence and the written submissions by counsels of the respective parties and the authorities relied upon. The main issue for determination of this suit is whether the Respondent herein was negligent which as a result led to the injuries sustained by the minor herein. Based on this issue and the other issues raised in the pleadings, the issues before this Tribunal are:I.Whether the Respondent was negligentII.What is the quantum of damages if any.

I. Whether the Respondent was negligent 14. The concept of negligence has been established for long under common law. There are thousands of precedents that have defined the requirements for the tort of negligence. These are establishment of the duty of care, breach of that duty of care by the respondent, that a claimant suffered injuries as a result of the breach of duty and that the injury suffered was reasonably foreseeable. These four elements are determinants of negligence as laid down in numerous decisions including the famous case of Donoghue v Stevenson [1932] UKHL which set the neighbor principle and the case of Caparo Industries PLC v Dickman[1990] 1 ALL ER 568

15. The Claimant herein avers that the Respondent herein, as the sole supplier of electrical energy and the owner of the electric supply lines, had a duty of care towards the minor. As a state corporation in charge of electricity distribution, it had a duty to ensure that the electric wires were insulated where appropriate and ensure that high voltage lines were not near buildings without safety measures. The medical report by Dr. Cyprianus Okere stated that the minor sustained a fracture in the right distal femur, midshaft femur and right femur. The doctor classified the injuries as grievous.

16. The claim in this suit is that the minor sustained an electric shock as a result of the power lines that were close to the balcony in the Claimant’s 2nd Floor rented premises. It is clear that when it comes to power lines, the duty of care lies with the supplier or the owner of the electric supply lines, which in this case is Kenya Power and Lighting Company. In the case ofJoseph Kiptonui v KPLC[2010] eKLR it was held that the respondent herein had a duty of care to all Kenyans wherever it happens to have electric supply lines. Furthermore, Section 100 of the Energy Act, 2019 recognizes that licensees can be liable under tort or contract.

17. Having established that the Respondent has a duty of care, the next issue is whether the duty of care was breached by the Respondent. The Respondent herein has submitted two issues to refute breach of duty of care. One is that the power lines were far away and the minor was responsible for his own injuries as he stood on the balcony and touched the wires. It also submitted that the parents did not supervise or take care of the minor to prevent him from touching the electric wires. It also submitted that there was no eye witness account to show that indeed the minor was struck by electric shock.

18. Although there was no single eye witness, the events show that the minor herein suffered from electric shock. In the case of EWO (suing as the next friend if a minor COW) v Chairman Board of Governors[2018], it was held that a case cannot collapse merely on the basis that there were no witnesses. The court could determine the case based on the circumstantial evidence or the evidence adduced.

19. The medical report which made part of the record of this case by consent of both parties, show that the minor herein was injured by electric shock while playing at the balcony. The evidence by the Claimant also showed that it was very possible for the minor to reach and touch the electric wires. The Respondent did not bring any evidence to refute the Claimant’s position that the electric wires were naked and that they were close to the balcony at a distance that a 9-year-old minor could reach.

20. Based on the facts presented, it is clear that an electric power line was close to the balcony and at a distance that a minor could reach and touch. From the facts presented, the injuries that were sustained by the minor started by him touching the naked electric wires. This showed that the electric power line was not at a safe distance considering that this balcony was just on the second floor of the building. It is foreseeable that such naked power lines posed great danger to the residence.

21. The claimant also testified that after the accident the Respondent replaced the naked electric wires with insulated ones. The Claimant testified before the Tribunal that the naked power lines were later replaced by the Respondent with insulated ones. Therefore, the Respondent herein was at a position to foresee the effects of having naked power lines so close to the residence.

22. The Respondent attributed negligence wholly and substantially on the minor for standing on the balcony and touching the electric wires. CW1 in his testimony stated that the minor could reach the electric wires if he was leaning on the bars on the end of the balcony. He testified that the wires were about 1 metre from the balcony.

23. The minor herein was of nine years of age, in Bottorff v. South Construction Company,184 Ind. 221, 110 N.E. 977 (1915), although the holding was based on proximate cause, the Indiana Supreme Court stated:“It has been laid down by law writers and the courts that the time of infancy is divided into three distinct periods, during each of which different presumptions prevail; the first period is that up to the age of seven years, during which the infant is conclusively presumed to be incapable of understanding the nature of crime and can in no way be held responsible therefor; the second is that between the ages of seven and fourteen years. An infant between these ages is presumed to be incapable of committing crimes, but the presumption may be rebutted by proof that the infant possessed sufficient discretion to be aware of the nature of the act. The third period is after the age of fourteen years when the infant is presumed to be capable of committing a crime and can be held the same as an adult. It seems that the greater weight of authority is to the effect that the same rule applies in negligence cases. (Emphasis added).

24. In the case of Bashir Ahmed Butt v Uwais Ahmed Khan (1982 – 88) IKAR 1 (1981) KLR 349 the Court of Appeal held that:“It would need a great deal of persuasion before imputing contributory negligence to the child aged 8 years having regard to her tender age. Even if she did step off into the car it would not be right to count as negligence on her part such a momentary act of inattention or carelessness…A young child cannot be guilty of contributory negligence although an older child might be, depending on the circumstances. The test should be whether the child was of such age as to be expected to take precautions for his or her own safety and a finding of contributory negligence should only be made if blame could be attached to the child....

25. The Kenyan courts have pronounced themselves on several occasions on the issue of contributory negligence of a child where courts have stated that a child of tender years cannot be guilty of contributory negligence unless there is a clear proof that he or she had the capacity to know the consequences of his or her acts or omissions. In the case of Rahima Tayab & Others v Anna Mary Kinanu(1983) KLR 114, it was held :“The practise of the court ought to be normally a person under the age of ten years cannot be guilty of contributory negligence, and thereafter, in so far as a young person is concerned, only upon clear proof that at the time of the doing of the act or making the omission he had the capacity to know that he ought not to do the act or make the omission…”

26. The same was held in the case of Patrick Muli versus EM [2021] where Justice GV Odunga, in a case involving motor vehicle accident, stated that the law when it comes to accidents involving children of tender years seem to place strict liability of the drivers and shifts the burden unto the drivers to show that the child is of such age as to be expected to take precautions for his or her own safety. The case herein concerns a minor of 9 years, it is not expected that such a child will take such precautions or understand the effects of his actions. Therefore, this Tribunal cannot apportion contributory negligence on the minor. Uninsulated electric supply lines ought not to be so close to reach especially for a minor of a tender age of nine years.

27. It is our humble view that the Claimant, on a balance of probability, has proved negligence on the part of the Respondent. It is also our conclusion that contributory negligence cannot be attributed to the minor as he was of a tender age and it would not be expected that a minor of such age could take such precautions.

28. With regards to the Respondent’s averments that the County Government of Nairobi contributed entirely or substantially to the negligence, we find that no third-party proceedings were ever instituted against the County Government. Therefore, this Tribunal cannot make any determination on those averments.

II. What is the quantum of damages? 29. The Claimant submitted that it should be awarded Kshs 3,000,000 as general damages relying on the case of Anthony Peter Wainaina v Jumba Patrick Oganda & 3 Others[2021] eKLR. However, we find that the injuries sustained in this suit are far less compared to the case they are relying on. The Respondent relied on a number of cases including the case of Kenyatta University v Isaac Karumba [2014] eKLR to argue that general damages of Kshs 500,000 will suffice.

30. Having assessed the injuries, we find them similar to the injuries in the cases of Perstony Limited versus Charles Kariuki[2022] EKLR and of George Raini v Jared Ogwoka Ondari and award Kshs 900,000 as general damages.

31. Therefore, we find the Respondent herein liable and award this judgment for the Claimant against the Respondent in the following terms:a.General damages for pain and suffering - Kshs 900,000/=b.Special damages of Kshs 82,905/=c.Cost and interest of the suit

DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF DECEMBER 2022. In the Presence of:…………………………Ms. Doris Kinya MwirigiVice Chairperson…………………………Eng. Buge Hatibu WasioyaMember…………………………Ms. Dorothy JematorMember…………………………Mr. Feisal Shariff IbrahimMember…………………………Eng. Fidelis Muli KavitaMemberSIGNED BY: DORIS KINYA MWIRIGI