[2021] KEHC 13337 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT

ELDORET

CIVIL SUIT NO. 3 OF 2018

BIOCORN PRODUCTS EPZ LIMITED......................................PLAINTIFF

-VERSUS-

KENYA POWER & LIGHTING COMPANY LIMITED...........DEFENDANT

JUDGMENT

[1]The Plaintiff herein, Biocorn Products EPZ Ltd, filed this suit on 18 February 2018 against the defendant, Kenya Power and Lighting Company Ltd claiming Kshs. 27,377,142. 60 interest thereon and costs of the suit. Its cause of action was that, due to the negligence of the defendant, an unusual power surge occurred on the 18 April 2016 at about 3. 20 p.m. or thereabouts, at its business premises situated on Plot No. 10/364 in Eldoret Town, thereby damaging its main metering panel and equipment and cut off power supply to its business premises.

[2] The plaintiff further averred that it undertook the necessary investigations and established that the power surge was caused by an overgrown tree situated next to the defendant’s main power line, which obstructed the defendant’s main power line; and that, as a result of the obstruction, there was an earth fault which, in turn, led to the tripping of the defendant’s metering panel at the plaintiff’s premises. Accordingly, the plaintiff supplied particulars of negligence of the defendant’s servants, agents and/or employees at paragraph 6 of the Plaint. The particulars of the damage suffered were likewise supplied at paragraph 7 of the Plaint along with particulars of financial loss and damage allegedly suffered by the plaintiff. Thus, the plaintiff’s claim is for compensation for the loss and damage suffered as particularized in paragraph 7 together with interest and costs.

[3] The defendant resisted the claim vide its Defence dated 17 April 2018. It denied that an unusual power surge occurred as alleged in paragraph 4 of the Plaint; or that as a result thereof, the plaintiff’s metering panel and equipment were severely damaged as contended. The defendant denied the averments that the power surge was caused by an overgrown tree situated next to the defendant’s main power line; or that there was obstruction as alleged. Thus, the defendant denied the allegations of negligence on the part of its servants, agents or employees. It further denied that it is in any way vicariously liable to the plaintiff.

[4] In the alternative, the defendant pleaded that, if ever the alleged incident occurred and damage suffered by the plaintiff as alleged, then the same was as a result of the negligence and/or omissions on the part of the plaintiff. It proceeded to plead the particulars thereof at paragraph 5 of its Defence. The defendant further denied the particulars of damage and loss set out in paragraph 7 of the Plaint and put the plaintiff to strict proof thereof. Instead it asserted, at paragraph 10 of the Defence that the plaintiff’s claim is not only exaggerated and therefore fraudulent, but was also filed with the sole intention of frustrating it.

[5] Upon close of pleadings, the suit was fixed for hearing; and for the plaintiff, evidence was called from Eng. Patrick Otieno Osawa (PW1), an employee of the plaintiff who was then heading the plaintiff’s Electrical Department. He adopted his witness statement dated 23 October 2017, wherein he stated that the plaintiff was carrying on business on the premises known as Plot Number 10/364, Furfural Street, in Eldoret Town; and that an unusual power surge was experienced at the said premises at about 3. 20 p.m. or thereabouts on 18 April 2016, which severely damaged the plaintiff’s main metering panel and equipment. He further testified that from the investigations he undertook, he established that the power surge was caused by an overgrown tree situated next to the defendant’s main power line, which had obstructed the power line, thereby causing an earth fault; hence the tripping and damage. He produced the plaintiff’s List and Bundle of Documents as Exhibit 1 herein.

[6] Michael Omido Akidiva (PW2) is, likewise, an employee of the plaintiff. He was the Plant Manager in charge of operations. He co-authored the document titled Route Cause Analysis (Document No. 5 in the Plaintiff’s Exhibit 1) and reiterated the plaintiff’s stance that the power surge was caused by an overgrown tree that was touching the defendant’s power line. It was his evidence that the offending tree was cut the following day on 19 April 2016 by the defendant’s employees and therefore that the defendant is entirely to blame for the loss and damage suffered by the plaintiff.

[7] On behalf of the defendant, Eng. Abraham Arusei (DW1) gave his evidence herein on 16 March 2021. He confirmed that he received a complaint from the plaintiff on 18 April 2016 as he was then in charge of the Emergency Unit. He stated that the first complaint was of a power outage; and that upon visiting the mini-substation near the plaintiff’s premises they found that the circuit breaker had tripped; an indication that the problem was from the customer’s end. He further stated that they traced the fault and found that the plaintiff’s transformer was shattered and explained that this implied that the fault emanated from the plaintiff’s factory. He explained that the defendant had no authority over the 200 metre line leading to the transformer or the transformer itself, as these were the plaintiff’s own private installations.

[8] DW1 discounted the suggestion by PW1andPW2 that the surge was attributable to an overgrown tree next to the power line and asserted that the said tree had not even touched the power line. He surmised that, had this been the case, the neigbouring installations, such as Rivatex Plant, would have been affected; which was not the case. While conceding that the tree was pruned after the incident, he denied that it was the cause of the power problem. He produced his report on the incident along with the defendant’s other documents as Defence Exhibits 1-12herein.

[9] At the close of the defence case, directions were made for the filing of written closing submissions by counsel. In his submissions dated 1 April 2021, Mr. Bundotich for the plaintiff proposed a single issue for determination, namely, whether the power surge was traceable to a fault within the plaintiff’s own internal electrical installations or was attributable to the negligence of the defendant. He urged the Court to consider and accept the evidence of PW1 and PW2, and to find that it was consistent as to the nature of the damage occasioned by the power surge. Counsel further submitted that credible evidence had been adduced by the plaintiff to demonstrate that the fault originated from the defendant’s 33kv power line due to obstruction caused by the overgrown tree that was promptly cut by the defendant’s employees.

[10] Counsel also urged the Court to note that the defendant produced a Quantum Report prepared by General Adjustors Kenya Limited, in which a proposal was made for compensation in the sum of Kshs. 1,250,930/=; and that, in the said report, the claim adjustors did not fault the plaintiff’s equipment as the source of the power surge. He therefore posed the question as to why the defendant would have wanted to make compensation to the plaintiff if indeed the fault was the plaintiff’s. He therefore urged the Court to find the plaintiff’s case proved to the requisite standard and to enter judgment in its favour as prayed in the Plaint.

[11] Mr. Kurgat, learned counsel for the defendant impugned the credentials of the plaintiff’s witnesses and pointed out that they were neither qualified as engineers nor registered with the relevant body of professionals in the engineering field. He therefore urged for the dismissal of their evidence as mere suppositions and hypothesis based on theory as opposed to the factual evidence adduced by DW1. For his part, Mr. Kurgat relied on Section 2 of the Energy Act, 2019, for the definitions of “service line” and “supply terminals” and urged the Court to find that the responsibility of the defendant ends at the terminal point; and therefore ought not to be held liable for any damage occurring thereafter.

[12] Mr. Kurgat relied on Sellars vs. Best [1954] 2 All ER 389 as applied in Jeremiah Maina Kagema vs. Kenya Power & Lighting Co. Ltd [2001] eKLR in urging the Court to dismiss this suit with costs. Counsel further submitted that, in the event the Court finds the defendant liable, then quantum should be determined on the basis of the Loss Adjustment Report in which a proposal of Kshs. 1,250,930/= was made.

[13]I have given due consideration to the evidence adduced herein in the light of the parties’ pleadings and the written submissions made herein by learned counsel. It is common ground that the plaintiff’s factory located along Furfural Road in Eldoret Town was yet to commence operations; and that it was awaiting commissioning when the explosion happened. According to the report prepared by General Adjusters Kenya Ltd, the premises and the plant were originally set up in 1978 by the Kenya Furfural Company; and that the plaintiff acquired it in 1996. The report further shows that revival works, including installation of key machinery and equipment have been ongoing since 2008 but that operations were yet to commence. As at the time of the explosion, only periodic maintenance works were ongoing at the site, awaiting commissioning of the factory.

[14] It is also common ground that there was a power mishap that occurred at about 3. 20 p.m. at the plaintiff’s premises on Plot No. 10/34 on Furlfural Road, Eldoret Town, on the 18 April 2016,which caused extensive damage to the plaintiff’s equipment. The damaged equipment were enumerated in Document No. 8 in the Plaintiff’s Bundle of Documents, marked Exhibit 1 thus:

[a] Molded Case Circuit Breaker (MCCB) (1 pc)

[b] Sockets and Lighting Distribution Board (SLDB) (1 pc)

[c]Voltage Transformer (Metering Panel) (3 pcs)

[d] ABB Variable Frequency Drive (VFD) (1 pc)

[e] Multifunctional Energy Meter (2 pcs)

[f] 33kv Surge Diverters (3 pcs)

[g]33kv fuse links complete with base (3 pcs)

[h] SF6 Circuit Breaker

[i] SF6 Circuit Breaker Canopy

[j] SF6 Circuit Breaker Annunciator

[15] The damage was confirmed by General Adjusters Kenya Ltd who visited the plaintiff’s factory to independently investigate the incident at the instance of the defendant. Thus, at page 9 of the report, it is stated that:

“…We visited the Third Party’s premises and commenced enquiries. We examined the affected equipment and identified the damaged components which bore smoke stains. As at the time of our visit, the incomer unit and the three PCC panels had already been and working although the third party advised that the functionality had not been fully revived. We interviewed the third party employees who confirmed the details of the incident as reported…”

[16] In the premises, I find as a fact that the explosion occurred as alleged and that the plaintiff’s equipment, as pleaded in paragraph 7 of the Plaint were damaged. The issues for determination then are whether the defendant is liable for the damage; and if so, the quantum. Needless to say that the burden of proof is on the plaintiff to prove the particulars of negligence set out in paragraph 6 of the Plaint. In Clerk & Lindsell On Torts, 20th Edition at Page 55 the authors proffer the persuasive opinion that:

“The burden of proving causation rests with the claimant in almost all instances. The claimant must adduce evidence that is more likely than not that the wrongful conduct of the defendant in fact resulted in the damage of which he complains.”

[17] Whereas the plaintiff pointed an accusing finger at the defendant, the defendant denied any liability, insisting that the incident occurred after the terminal point; and therefore was entirely the plaintiff’s fault. The defendant relied on Jeremiah Maina Kagema vs. Kenya Power & Lighting Co. Ltd (supra) in which the case of Sellars vs. Best [1954] 2 All ER 389 was quoted with approval thus, with regard to the responsibility of a supplier of electric power:

“They are responsible, of course, for bringing the electricity along their own lines and for making and continuing to have, it may be, a proper connection at the terminal supply points…It seems to me too much to say that the Board are responsible for what the occupier by himself and his contractors and agents have done or omitted to do to his own chattels on his own premises…”

[18] Thus, the defendant relied on the definition of “supply terminals” as provided for in Section 2 of the Energy Act; which states that:

“Supply terminals” means the ends of the electric supply lines upon any consumer’s premises at which the supply of electrical energy is delivered from the service line of the licensee, and is situated—

(a) In any case where the supply of electrical energy is measured by a meter, at the point at which the conductor from the service line enters the meter, or, in respect of a conductor from the service line which does not pass through the meter, the point on such conductor nearest to the meter,

(b) In any other case, at the point at which the conductor from the service line enters the consumer’s main switch, or, if there is more than one main switch, that main switch on the consumer’s premises which is nearest to the source of supply; or

(c) In any case in which the supply of electrical energy is made to a public lamp, at the point of attachment to the distributing main of the electric supply line serving such public lamp.”

[19] From the plaintiff’s own investigations, the damage was attributable to a power surge; and that the surge was occasioned by an overgrown tree that caused two 33kv wires to touch; thereby overloading the plaintiff’s equipment, which were designed to handle only 33kv input. PW1 explained that had the surge emanated from the plaintiff’s side of the terminal point as was alleged by the defendant, it would not have affected the links under the control of the defendant. To this end, the plaintiff produced photographs to show, not only that the surge affected equipment and fixtures falling under the defendant’s control, but also that the offending tree had been cut.

[20] Indeed, DW1 conceded that they pruned “…the tree that was growing towards the line…” It is therefore instructive that in the report of General Adjusters Kenya Ltdrelied on by the defendant, it was acknowledged that there was vegetation growing right beneath the defendant’s power line, one of which had been cut. The report states thus:

“We visited the location of the cut tree which is situated behind the NCPB depot, approximately 200 metres from the third party’s premises. The tree is among other vegetation growing right beneath the power lines. We could not establish whether the tree had overgrown because we visited the site 5 months after the incident.”

[21]In addition to the foregoing, the report further indicates that, before the 3. 00 p.m. blast, the plaintiff experienced flickering of lights and repeated short-lived power outages throughout the day. This is significant, granted that in the plaintiff’s Bundle of Documents, there is a letter dated 22 February 2016 (Document No. 7), by which the plaintiff drew the defendant’s attention to an earlier power surge that had damaged their meter. It shows that the power surge emanated from the defendant’s side of the power line; and that when it was brought to the attention of the defendant’s employees, they acknowledged the fault and worked on it; though not satisfactorily.

[22]Then there is the evidence by the plaintiff of an earth fault, caused by leakage of current to the ground from the three phases. The report (Document No. 5 in the plaintiff’s Bundle of Documents) propounds the view that a sustained earth fault would be caused by a conducting object linking any or all the three phases to the ground; and that this, in turn would cause a sudden line increase in current in the system. These assertions were not refuted or explained away by the defendant.

[23] It is the duty of the defendant, by dint of Section 140(1)(a) of the Energy Act,to ensure its power supply lines are in a good state of repair. It provides that:

“(1) It shall be the duty of a distribution licensee to—

(a) Build, maintain, and keep in good state of repair suitable and sufficient electric supply lines for purposes of enabling supply to be given in the area of supply specified in that behalf in the license.

[24] Thus, in Kenya Power and Lighting Company Ltd vs. Joseph Khaemba Njoria [2005] eKLR, it was held that:

“There can be no question that the power company has the responsibility to ensure that the power infrastructure it has installed in the country for purposes of electrification is properly maintained to prevent accidents.”

[25] Thus, taking into account the entirety of the evidence adduced herein, I am satisfied that the plaintiff has proved its case on a balance of probabilities and demonstrated that the unusual surge that damaged its equipment on 18 April 2016 was attributable to the negligence of the defendant, in that it failed:

[a] to cut trees near the power line;

[b] to undertake regular maintenance of its power lines to prevent power surge;

[c] to install protective equipment to the power line to prevent damage to the plaintiff’s equipment in the event of a power surge;

[26] In the case of Rosemary Vassaux vs. Kenya Power & Lighting Co. Ltd [2014] eKLR, in which the plaintiff’s house got burnt down after power cables clashed and sparked a fire, the Court held the defendant liable. The Court relied on the case of Lily White vs. University College London Hospitals Nhs Trust [2005] EWCA CIV 1466 in which it was held that:

“…where an unexplained accident occurs from a thing under the control of the Defendant and medical or other expert evidence shows that such accidents would not happen if proper care were used, there is strong evidence of negligence”.

[27]It is therefore my resultant finding that, in the circumstances of this case, the defendant is indeed liable to the plaintiff in negligence for the damage it suffered on18 April 2016.

[28]On quantum, the plaintiff claimed a sum of Kshs. 27,377,142. 60 by way of special damages. The particulars thereof were supplied thus, at paragraph 7 of the Plaint:

No. Description Cost (Kshs.)

1. Design, supply, installation, testing and commissioning of the complete PCC panel 22,350,055. 00

2. Moulded Case Circuit Breaker, 250 amps, 3 poles, 415 Doc, Siemens 48,000. 00

3. Sockets and Lighting Distribution Board (SLDB) 24 way 80,000. 00

4. ABB Variable Frequency Drive (VPD)-Model ACS550-01-072A-4 733,930. 00

5. Multifunctional Energy Model, SENSTRON PAC 3100-2 pieces 69,000. 00

6. Voltage Transfer 33KV, 110 VAC Stepdown Metering Panel, 2 pieces 140,000. 00

7. SF 6 Circuit Breaker Annunciator 180,000. 00

8. Value Added Tax 3,776,157. 60

Total 27,377,142. 60

[29] It is a fundamental principle that claims in the nature of special damage must not only be specifically pleaded, but also strictly proved (see Hahn vs. Singh [1985] eKLR). It is noteworthy that, in respect of Item 1 above, in its initial report (Document No. 6 in the plaintiff’s Bundle of Documents) the plaintiff sought, not the Design, supply, installation, testing and commissioning of the complete PCC panel, but component parts of the Metering Panel. Thus, PW1 conceded in cross-examination that:

“Item 1 on the second document is in respect of design, supply, installation, testing and commissioning of the power. We did not call for a complete overhaul of the PCC. The document at page 8 lists the damaged equipment. It does not include an overhaul of the PCC. I confirm that the system was repaired and is functional. Some equipment were replaced.”

[30]Moreover, in the Final Quantum Report prepared by General Adjusters Kenya Ltd, it was stated thus:

“During our visit, we also assessed the equipment and noted the nature of damage which involved mainly the circuit boards and other crucial power elements. The Transformer was completely damaged. From our observation, we do not think that the PCC panels sustained extensive damage to warrant replacement of the entire system; replacement of the damaged components could suffice to restore full functionality of the system…”

[31]I would accordingly agree with the defendant that item 1 is not justified and therefore not payable. Likewise, the plaintiff did not refute the proposition by the defendant that VAT, if any, is recoverable from tax authorities. The rest of the items claimed for by the plaintiff at paragraph 7 of the Plaint were conceded to by the defendant as hereunder:

No. Description Cost (Kshs.)

1. Moulded Case Circuit Breaker, 250 amps, 3 poles, 415 Doc, Siemens 48,000. 00

2. Sockets and Lighting Distribution Board (SLDB) 24 way 80,000. 00

3. ABB Variable Frequency Drive (VFD)-Model ACS550-01-072A-4 733,930. 00

4. Multifunctional Energy Model, SENSTRON PAC 3100-2 pieces 69,000. 00

5. Voltage Transfer 33KV, 110 VAC Stepdown Metering Panel, 2 pieces 140,000. 00

6. SF 6 Circuit Breaker Annunciator 180,000. 00

Total 1,250,930. 00

[32]It is in the light of the foregoing that I would assess the quantum payable to the plaintiff at Kshs. 1,250,930/= only. Accordingly, judgment is hereby entered in the plaintiff’s favour against the defendant on liability as well as quantum, in the sum of Kshs. 1,250,930/=, together with interest thereon from the date of filing this suit till date of payment. The plaintiff will also have costs of the suit.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 22NDDAY OF JUNE 2021

OLGA SEWE

JUDGE