[2023] KEHC 27554 (KLR)

Gisimba General Enterprises Limited v Neptune Paradise Beach Resort & Spa (Civil Suit 98 of 2016) [2023] KEHC 27554 (KLR) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 27554 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 98 of 2016

F Wangari, J

October 27, 2023

Between

Gisimba General Enterprises Limited

Plaintiff

and

Neptune Paradise Beach Resort & Spa

Defendant

Judgment

1. The Plaintiff via a Plaint dated 19/9/2016 brought a suit against the Defendant seeking general damages, Kshs. 30,000,000/= being cost of refurbishment and loss of business arising from a fire incidence that broke out at the Defendant’s premises and which spread and razed down 2 villas belonging to the Plaintiff. The Plaintiff stated that it suffered great loss which is attributed to the negligence of the Defendant. It also prayed for costs of the suit.

2. While the Defendant in the Statement of Defence dated 4/10/2016 admitted that there was a fire breakout within their premises, it was denied that the fire spread to the Plaintiff’s premises as a result of negligence on its part. The Defendant pleaded that efforts to put out the fire was thwarted by the winds, which also caused the fire to spread to the Plaintiff’s premises.

3. Further, the Defendant denied that it was its responsibility to put out the fire, but that of County Government of Kwale. It stated that it was to seek leave to have the County Government enjoined as a party. It also pleaded that it was also the responsibility of the Plaintiff to insure its premises to cater for such risks and loss. Court’s leave was to be sought to have the Plaintiff disclose the nature of insurance cover taken for the premises.

4. The Plaintiff called 2 witnesses. Clavet Sindayinga (PW1), one of the directors of the Plaintiff’s company gave evidence that they were operating a hotel business which was running 3 furnished villas. On the material date, he received a call from the caretaker that the Defendant’s premises was on fire. He rushed to the scene and confirmed the same. The fire also spread to the Plaintiff’s premises destroying 2 villas.

5. He blamed the Defendant for failing to contain the fire. He caused a valuation report be made and the cost of rebuilding the villas was found to be Kshs. 30,000,000/=. He also lost business for about one year. He prayed that the Defendant do pay for the losses incurred. On cross examination, he stated that they did not rebuild the villas but refurbished them at a cost of Kshs. 14,813,724/=, though not pleaded. He produced a bundle of documents in support of the above.

6. Edwin Mutwiri (PW 2), a valuer by profession produced the valuation report as an exhibit. He gave the value of reconstructing the 2 villas at a cost of Kshs. 15,000,000/= each giving a total of Kshs. 30,000,000/=. On cross examination, he said he was not aware if the villas were refurbished and he did not consider the same in his report. The plaintiff’s case was closed.

7. Prof. Joseph Karanja Thiong’o (DW 1), a consultant on fire and material losses and an expert in corrosion science and engineering visited the scene of the fire. He established that the fire was as a result of a malfunctioned air compressor of the AC in one of the rooms. Due to the combustible materials, the makuti roofing and the oxygen from the sea breeze, the fire was uncontrollable and it spread to the neighbouring properties. He produced the Forensic Fire Report as an exhibit.

8. Both the Plaintiff and the Defendant agreed to have the witness statement by one Jackson Kifoto and which was filed on 5/9/2017 be adopted as part of the defence evidence. In his statement, he said he was the Defendant’s hotel Manager. On the material date at around 5pm, he was called and informed of fire in one of the villas. With the help of the workers, they tried to put out the fire. They also called the Kwale County Fire Brigade but by the time they were arriving, the fire had already spread and could not be put out. He denied that there was negligence on their part but blamed the spread of the fire courtesy of strong winds experienced that day.

Analysis and Determination 9. Both parties filed their rival submissions, and the authorities relied on which I have duly considered. The Plaintiff submitted that the Defendant had a duty of care towards it. Failure to prevent the fire from spreading was negligent on their part. As a result, the Plaintiff suffered loss of business and costs for refurbishing the 2 villas that were burnt down.

10. On the other hand, the Defendant denied being negligent. Further, the Plaintiff failed to proof that the Defendant was negligent. On Special Damages, the Plaintiff failed to plead the costs of repairs as per the evidence adduced in court. Further, the Plaintiff failed to proof the Kshs. 30,000,000/= as costs of reconstruction of the villas.

11. From the evidence adduced and the submissions filed, the issues for determination are;a.Whether the Defendant was negligent in the start and spread of the fire to the Plaintiff’s premises;b.Whether Special Damages were proved by the Plaintiff;c.Who bears the costs of the suit?

12. On the first issue, there is no doubt that negligence is a tort. For one to prove negligence, there are four requirements and/or elements. These were well enunciated in the case of Caparo Industries PLC v Dickman [1990] 1 ALL ER 568 and Chun Pui v Lee Chuen Tal {1988} RTR 298 which highlighted the determinants of negligence as follows: -“The requirements of the tort of negligence are, as Mr. Batts submitted, fourfold, that is, the existence of a duty of care, a breach of the duty, a causal connection between the breach and the damage and foreseeability of the particular type of damage caused.”

13. From the evidence on record, after the fire started, the Defendant attempted to put out the fire but it was out of their control. The fire was not started by the negligent acts of the Defendant as it was caused by a multifunctioning air compressor. There is no evidence to show that the Defendant was aware of the malfunction but failed to take action.

14. Further, the Plaintiff failed to proof that the spread of the fire to its premises was a as result of the negligent act of the Defendant. It was the Defendant’s evidence that both its employees and the Kwale County failed to put out the fire due to the strong winds from the ocean.

15. Even though the Defendant in its statement of defence had stated that it would seek leave to enjoin the County Government of Kwale, this was not done. Nevertheless, the failure to have the party enjoined was not detrimental to the Defendant. I do find that the Plaintiffs have failed to proof negligence on the part of the Defendant.

16. On whether Special damages were pleaded and proved, the Plaintiff pleaded Kshs. 30,000,000/= as costs of refurbishment for the 2 villas that were destroyed. In its evidence, the Plaintiff witness (PW 1) gave evidence that the above quote was for rebuilding the 2 villas as per the valuation report produced as an exhibit. He however admitted that the villas were not reconstructed but repaired at a cost of Kshs. 14,813,724/=.

17. As held in the case of Hahn v Singh, Civil Appeal No. 42 of 1983 [185] KLR 716, the Court of Appeal held as follows;“Special damages must not only be specifically claimed (pleaded) but also strictly proved ……for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the act themselves.”

18. Even though the Plaintiff pleaded Kshs. 30,000,000/= as special damages, the same was not proved. Further, the actual cost of repair of Kshs. 14,813,724/= was not pleaded. I therefore decline to award the claim.

19. The Plaintiff has failed to proof negligence and special damages as per the required standards of the law. However, it cannot be denied that the fire that started from the Defendant’s premises spread to the Plaintiff’s premises thus causing damages. The Defendant in the statement of defence had stated that it would seek for disclosure from the Plaintiff on the nature of the insurance cover taken for the premises. I have perused through the court file and I note this was not done. It cannot therefore be assumed that the insurance company compensated the Plaintiff for the loss.

20. The Plaintiff was a going concern and it is a fact that it was earning some income for the proprietors. The Plaintiff produced statements showing the earnings on daily basis. However, they are not audited accounts but that does not negate the fact that losses were made. It is also a fact that the Plaintiff incurred expenses in refurbishing the burnt down villas and loss of business. I exercise the discretion of the court and grant a global award Kshs. 10,000,000/=.

21. I make this award notwithstanding my findings on negligence for the reason that the fire that destroyed the Plaintiff’s villas emanated from the Defendant’s end. Even though the Defendant’s conduct cannot be said to be negligent, still, it was the fire from its premises that razed the Plaintiff’s villas.

22. On the issue of costs, a careful reading of Section 27 indicates that it is trite law that they follow the cause or event as described by Sir Dinshah Fardunji Mulla in his book The Code of Civil Procedure, 18th Edition, 2011 reprint 2012 at 540. It is that costs must follow the event unless the court, for some good reasons, orders otherwise. Under the circumstances, costs are awarded to the Plaintiff.

23. Following the foregone discourse, the upshot is that the following orders do hereby issue: -a.Judgement is hereby entered in favour of the Plaintiff as against the Defendant for a global sum of Kshs. 10,000,000/=;b.Costs to the Plaintiff.It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 27TH DAY OF OCTOBER, 2023. F. WANGARIJUDGEIn the presence of;Ms. Jeptepkeny advocate h/b for Mr. Ondabu advocate for the PlaintiffMs. Osewe advocate h/b for Wafula advocate for the DefendantBarille, Court Assistant