[2017] KEHC 572 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 250 OF 2009

JUDY NJURA KATHURI AND PASCALLA NYABOKE AGADE

(suing as the legal representative and administratrix of the estate

Of THOMAS VUHIRU AGADE......................................................PLAINTIFF

VERSUS

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

JUDGMENT

1. On the night of 30th April 2004, the deceased (Thomas Vuhiru Agade) an advocate of the high Court of Kenya aged 36 years and seeking for employment in the Judiciary was electrocuted along a path within the Kenya Institute of Administration (now Kenya School of Government) where he was staying with his cousin. The plaintiffs brought this suit as the widow and the mother of the deceased on behalf of themselves and on behalf of other dependants of the deceased estate. They filed the suit at the Chief Magistrate’s Court at Nairobi Milimani Commercial Courts under Civil Suit Case No.3636 of 200but later the suit was transferred to this court Vide NAIROBI HCCC MISC CIVIL APPLICATION NO.13 OF 2008 and an order of the court dated 9th June, 2008 seeking:

(a) General damages under the Law Reform Act Cap 26 Laws of Kenya and the Fatal Accident Act Cap 32 Laws of Kenya.

(b) Special damages

(c) Costs of the suit plus interests thereon.

2. The 2nd Plaintiffs testified on oath and adopted her witness statement filed in court on 17/9/2014. She stated that she was Pascalia Nyaboke Agade living in Daraja Mbili, Kisii County. She was a retired teacher. She testified that at the time of his demise, he had been invited for an interview of magistrate in Nairobi and that as he returned home, he was electrocuted and died on the sport. She stated that the deceased was born in 1968. Further, that although he was married, since the initiation of this case the widow Judy Njura disappeared with her baby boy and has never communicated with her.

3. She stated that if she gets damages, she will include Judy and her son

4. It was PW1’s testimony that Kenya Power and Lighting live wires were found to be on the ground. That it was raining at the time of the accident and that Kenya Power had been notified of the fallen wires. She testified that he was of good reputation. She denied that her son partook of alcohol. She stated that she received information of her son’s death from her daughter. She stated that the deceased Thomas Vuhiru Agade was her only son and second born who had studied law in India. At the time of his death, he had completed Kenya School of Law and had been admitted as an advocate of the High Court of Kenya

5. She asked the court to give her damages because she expected her son to take care of her. That he could have become a judge and that as she was old and sickly, she would depend on his support. The plaintiff produced exhibits which included school certificates, birth certificate, university degree and transcripts, certificate of admission to the Bar, letters of administration, photographs of the deceased when he was alive and dead, among others, as exhibits 1-29. She stated that her son was not yet employed. She identified his body in the mortuary. Her exhibits which were filed as a bundle were produced in evidence without any objection from the defense counsel Miss Kairu. They were all marked as P Ex 1-29.

6. In cross examination by Miss Kairu counsel for the defendant, the witness responded affirming the she was the 2nd plaintiff and produced her national identity card. She also maintained that the deceased was her son. She also showed the birth certificate of the deceased to the court and his date of birth was confirmed to be 5/8/1968.

7. She stated that she had kept all her late son’s certificate from primary school up to University. She further stated that the deceased was also called Ben but he never used that name much. She further stated that he was not officially married but lived with Judy and they both had a son together and that Judy had the child’s documents. She did not know whether in his obituary, it had been indicated that he had a wife.

8. She stated that he lived in Kisii and was unemployed then but that he had come to Nairobi to do an interview as a magistrate. She expected him to get a job and support her.

9. PW1 stated that she was told that the deceased delayed to arrive home because of the heavy rains not because he was drinking. She stated that he lived with his cousin at Kabete.

10. The plaintiff’s claim is based on evidence that on or about the night of 30th April, 2004 and the early morning of 1st May, 2004, the deceased was walking on a footpath linking University of Nairobi Lower Kabete Campus with the Kenya Institute of Administration where he was electrocuted. The suit was initially filed before the Chief Magistrate’s Court under Court File Reference No 3635 of 2007 but was on the 9th June, 2008 transferred to the High Court. She stated that she would look for the deceased’s wife and child and bring them home.

11. In reexamination by Miss Nyang, the plaintiff stated that the obituary for the deceased was written by the funeral committee and that she would have included the widow and child if she knew that the two had been omitted therefrom.

12. PW2 Amos Okello Omusolo testified on oath and adopted his witness statement recorded on 17/9/2014. He stated that he was an employee of Kenya School of Government as an internal security officer. He recalled that on 30/4/2009 he was on duty and that it was raining heavily. At midnight there was blackout and reaching the morning at 6. 00am he received a report that a man had been electrocuted by a live wire. He went to the scene and found that the matter had already been reported to Spring Valley Police Station. He found the deceased lying down. The Police came and took his body to the Police Station.

13. PW2 stated that the wires that killed the deceased were there as at 29th April 2009 and were reported to the KPLC vide Ref 408681 at 3pm and that even after killing the deceased, they remained there for 2 more days is when KPLC carried them away. He denied that his employer institution was to blame for the accident. He blamed the defendant for negligently failing to remove live wires from the ground. He also stated that the deceased was blameless because he was using a road which was near a residential area. He stated that although he did not know what time the deceased died, but that had the problem been rectified, the accident could not have occurred. He denied hearing that the deceased took alcohol.

14. On being cross examined by Miss Kairu counsel for the defendant, PW2 showed the court his passport for identification and that he was still an employee of Kenya School of Government (KSG). He stated that he was not present when the accident occurred but was informed of the accident by his boss who received information from residents. He stated that he could tell if the deceased was in a drunken state. He stated that he was a resident of that area and knew that the wires remained on site for four days. Further, he maintained that the deceased was found lying on the live wires.

15. On being reexamined by Miss Nyang, PW2 stated that he had come to testify in his capacity as an employee of KSG. He stated that the KSG reported the loose wires to KPLC and confirmed the death and that the wires were only removed from the scene after the deceased’s death. He maintained that he identified the deceased at the scene which was an ordinary path used by residents.

16. On being asked by the court, the witness stated that he was present when the deceased’s body was removed from the scene. On being questioned by Miss Kairu he stated that he remained at the institution after removal of the body.

17. The plaintiff also called PW3 No. 234468 Chief Inspector Juliana Wanyama who testified on oath and stated that she was the Officer in charge of Crime(OIC) at the Spring Valley Police Station.PW3 produced a police abstract and an extract of the O.B No. 18 of 1st May, 2004. PW3 stated that a report of an accident through electrocution was made to the Police stated by phone by one William Kosgei and that the officers on duty proceeded to the scene and found the deceased electrocuted. The OCPD Mr. Wanzala also went to the scene and confirmed the death. The body was photographed and taken to the City Mortuary.PW3 stated that the report was of a defaulted live wire and that it had rained in the night. That the report also said that the deceased was passing through the route between Kabete Campus and KIA at around 2. am when he was electrocuted.

18. She denied receiving any report from KPLC on the incident upon which the station issued police abstract of the occurrence of the accident. She produced the Police extracts of OB No18/1/5/2004 as PEx 29 and maintained that the report says the deceased died due to electrocution. She stated that if the situation could have been remedied earlier, the accident could not have happened. She found no reason to attribute blame to the deceased.

19. In cross examination by Miss Kairu the witness stated that she was the OCS and that the report was received at 2 am but that she never went to the scene. She stated that the OB is the official document. She denied being the investigating officer as she was not at the station then. She stated that she did not know whether the path was a common path but that there are two institutions apart. She stated that the report says the deceased was passing when he came in contact with the live electric wires which had fallen.

20. In reexamination by Miss Nyang, PW3 stated that the report also says the deceased was taken to the City Mortuary and that the report further says the deceased came into contact with live wire and die. She stated that police records remain even after the officers leave the station.

21. At the close of the plaintiff’s case, the defendant KPLC called one witness DW1 Peer Njenga Kiarie who testified on oath that he was an employee of KPLC and worked a s a foreman. That he had worked for more than 30 years. He stated that he was the team leader at the time of the accident and use to lead teams and attends to temporary emergencies, repair jumpers, droppers and replace fuse carriers among other tasks.

22. DW1 testified that on 30th April 2004, at Kenya Institute of Administration, KIA now KSG, Kabete, a tree branch fell on the power line which fell on the ground and someone reported to KPLC offices call center but not to the witness directly. He stated that it had been raining heavily on the material night and that there was power failure hence the power line fell because of heavy rains. He denied that KPLC had planted the trees that fell on the power line. The witness stated that he went on site and isolated and disconnected the switch but never saw anyone electrocuted and neither did he receive any report of electrocution. He stated that they learned of the accident upon being served with summons in this case. He maintained that the power line was repaired and that nobody was electrocuted.

23. In cross examination by Miss Nyang, the witness for the defense stated that the repairs were done at 8. 00pm by only removing the fuse. He confirmed that the report was relayed to their call center and that after removal of the low voltage fuse, there was no way the line could have been live to electrocute a person. He stated that he did not have any proof that he removed the fuse. He denied that he had any work sheet to show the assignment he did on the material day.

24. On being shown the deceased’s photographs he stated that he was seeing them for the first time. He stated that the insurance department instructed the defense advocates to defend the suit. He stated that if an accident occurred then it was because of heavy rains which caused trees to fall on power lines. He could not tell who was to blame for the accident. He stated that investigations in to the incident were carried out. He stated that as KPLC they owe a duty of ensuring safety of members of the public. He stated that they did not consult KIA administration when they went to repair the faulty live but that he found a watchman at the gate.

25. He stated that the line was inside a shamba and that there was a small path but that he never took any information that anyone was electrocuted. He admitted that no restrictions were placed on the path after removing the fuse.

26. In reexamination by Miss Kairu, DW1 stated that the accident occurred on 30th April 2004 but that he only learnt of the accident in 2007. He stated that they could still have carried out investigations after 3 years but that the deceased was long gone.

27. He stated that KIA was a learning but denied being aware of any restrictions of movement in the institution. He stated that the report was of power failure so he went and removed low voltage fuse which kills the line. He stated that he saw lines on the ground, tested them using low voltage tester, left when the line was clear and that lines were repaired later. He stated that he did not know whether KPLC blamed KIA for the accident and maintained that trees were not planted by KPLC and that neither did they cause trees to fall on the lines. He stated that in removing the fuses they prevented other dangers.

28. On being questioned by the court, and on being shown the deceased’s photograph, DW1 stated that the person could not have been electrocuted if the wires he was lying on were dead. He stated that after removal of the low voltage wires, they coiled them and fixed them up. He stated that once the fuses are removed it’s impossible for the current to flow.

29. At the close of the defense case the parties’ advocates filed written submissions to canvass the issues raised in the suit. The plaintiff’s counsel filed her written submissions on 26th January, 2016 whereas the defendant’s counsels filed written submissions on 22nd February, 2016.

30. On liability, Miss Nyang submitted that the defendant was wholly liable for the accident as it never repaired and or removed the live electric wires which fell after the heavy rains and that there was evidence that the wires remained on site two days after the accident. Further, that there was no evidence that the defendant ever switched off the lines as no work sheet was exhibited. Further, that the defendant never pursued the third party proceedings against KIA whom they blamed for the accident. That despite a report made to KPLC they never took action until after the deceased was electrocuted.

31. Counsel urged the court to find the defendant 100% liable in negligence it was submitted that the plaintiff was entitled to damages under the heads: Pain and Suffering: - reliance was placed on:

(i) NBI HCCC NO.2383 OF 1991, Judgment on 12th March, 1992 Farida Hoareau Vs Patrick Arap Ruto & Another where the deceased died instantly. She was awarded Kshs.10,000. 00 for pain and Suffering;

(ii) NBI HCCC NO.2399 OF 1989, Judgment on 28th November, 1991 Eva Benta Okembo Vs Kimotho KibiraThe deceased herein died instantly. She was awarded Kshs.10,000. 00 for pain and suffering

32. It was submitted that considering the time lapse since the above cited judgments were made and the current inflation rate the sum of Kshs.100,000. 00 under this head should be awarded as adequate compensation to the plaintiffs.

33. On loss of expectation of life,reliance was placed on following authorities:

(i) NBI HCCC NO.5255 OF 1989, Judgment on 22nd October, 1993 John Njoroge Njuguna Vs Henry Kithaka Ireri where the deceased was aged 35years old,Kshs.75,000. 00 was awarded for loss of expectation of life;

(ii) NBI HCCC NO.2774 OF 1992, Judgment on 14th June, 1992 Pauline Kulola Mwadime Vs Dancun Mwandago Mwikamba where the deceased was aged 35years old,Kshs.60,000. 00 was awarded for loss of expectation of life.

34. It was submitted that considering the time lapse since the above cited judgments were made and the current inflation rate the sum of Kshs.200,000. 00 under this head as an adequate compensation to the plaintiffs was proposed.

35. On lost years, reliance was placed on

(i) NBI HCCC NO.2774 OF 1992, Judgment on 14th June, 1992 Pauline Kulola Mwadime Vs Dancun Mwandago Mwikambawhere the deceased was aged 35years old at the time of death and married with 3children. A multiplier of 20 years was adopted against a dependency ratio of 2/3;

(ii) NBI HCCC NO.3739 OF 1992, Judgment on 10th February, 1993 Rebecca Kiambi Amondi Vs East African Road Services Limited where the deceased was aged 38years old at the time of death. A multiplier of 15 yearswas adopted against a dependency ratio of 2/3.

(iii) NBI HCCC NO.4485 OF 1989, Judgment on 3rd February, 1993 Pherice Kirimani Vs Timothy Njiru, the deceased was aged 45years old at the time of death a. A multiplier of 16 years was adopted against a dependency ratio of 2/3.

(iv) MOMBASA HCCC NO.338 OF 2010, Judgment on 24th May, 2012 Stella Kanini Jackson & Another Vs K.P & L Co. Ltd.The deceased was aged 36years old at the time of death a. A multiplier of 24 years was adopted against a dependency ratio of 2/3.

(v) NAIROBI HCCC NO.308 OF 2010, Judgment on 25th October, 2013 Elizabeth Chelagat Tanui & Another Vs Arthur Mwangi Kanyua.The deceased was aged 36years old at the time of death a. A multiplier of 18years was adopted against a dependency ratio of 2/3

(vi) NAIROBI HCCC NO.42 OF 2007, Judgment on 15th August, 2013 Richard Osoro Sindiga & another Vs Alex Thangei Mwangi.The deceased was aged 22years old at the time of death a. A multiplier of 25 years was adopted against a dependency ratio of 1/3.

(vii) KAKAMEGA HCCC NO.30B OF 2005, Judgment on 24th May, 2007 Fanuel Olege Vs James Kariuki & Another.The deceased was aged 39years old at the time of death a A multiplier of 16 years was adopted against a dependency ratio of 2/3.

36. It was submitted that the deceased had been invited for an interview as a magistrate II and that there were chances of him being considered for the job.it was opined that for the starting salary of an advocate would not be less than Kshs.200,000. 00 and that of a Chief Magistrate would be Kshs.350,000. 00 which this honorable court should adopt with a multiplier of 25 years with a dependency ratio of 2/3calculated as follows;

- Kshs.350,000. 00 X 12 X2/3x 25 = Kshs.70,000,000. 00

37. On special damages it was submitted that the plaintiff had pleaded for Kshs.89,300. 00. This court was urged to award the same.

38. The plaintiff’s counsel prayed for a total sum of Kshs.70,389,300. 00 in damages together with costs and interest.

39. The defendant in its submissions filed on 22nd February 2016 contended that the plaintiff had not established liability on the part of the defendant. It was submitted that there was no proof that PW1 was the deceased’s mother, that none of the witnesses called by the plaintiff were eye witnesses, that the plaintiffs testimony contradicted her pleadings on the earnings of the deceased.

40. That PW1 further testified that at the time of his death the deceased was married to Judy Njiru and they had one child called Thomas which allegations were unsupported. That PW1 did not produce as evidence any Marriage Certificate; neither did she produce a Birth Certificate for the said child. PW1 produced a copy of the Obituary dated 11th May, 2004 which was document No. 28 on the adopted list of documents marked as Plaintiff’s Exhibit 28. That the said Obituary did not indicate that the deceased had a wife and/or a child.

41. It was further contended that PW1 further alleged that the deceased expended all of his salary on his family, which allegation is unreasonable and baseless as PW1 testified on oath that the deceased had no source of income at the time of his demise. Further that she did not produce supporting documents of the deceased’s wife and child. That If there had been a widow and child the widow would have been a natural witness to testify how the deceased supported her.

42. That PW2 testified that he was not at the scene of the accident and could not tell what time exactly the deceased was allegedly electrocuted. That he did not have any proof of a report to the Defendant neither did he have a complaint number given to him by the Defendant after reporting as is the norm.

43. That PW3 produced a police abstract and an extract of the O.B No. 18 of 1st May, 2004. That the Police Abstract was marked as ‘Pending under Investigation’ wherein no liability was placed upon the Defendant for the accident. Furthermore, that she confirmed that the Defendant was not charged with any offence for the accident neither was the incident investigated.

44. It was therefore submitted that from the Plaintiffs’ testimony no liability was proved as against the Defendant and hence no liability should attach to the Defendant for the alleged accident.

45. On quantum, the defendant’s counsel submitted that the court should not award anything under the Fatal Accidents Act. However, that should liability be found against the defendant then the court should award as dfiloows:

46. Under Law Reform Act;Pain & suffering- Kshs. 10,000/= based on the case of Elizabeth Chelagat Tanui & another v Arthur Mwangi Kanyua [2013] eKLR where the Court awarded the Plaintiff Kshs 10,000/= for pain and suffering. The deceased died sometime after being taken to hospital. It was contended that the deceased in the suit before this Court died at the scene of the accident hence a similar award of Kshs 10,000/= for pain and suffering is reasonable in the circumstances.

47. Loss of life expectation of life-Kshs. 70, 000/=based onH.C.C.C. NO. 530 of 1997 Timothy Maluki Nzengi vs Lucas Obiero Owino & Anorwhere the Deceased was 36 years of age at the time of his death. The Court awarded Kshs. 70,000/= as a conventional amount for loss of expectation of life under the Law Reform Act.

48. On Loss to the estate it was proposed that -1/3 of annual net salary x lost years 18 years 1/3 x Kshs. 320,004x 18years Kshs. 1,920,024.

49. On special damages it was submitted that there were no receipts proving the amounts sought hence the claim should be declined. The defendant urged the court to consider and award the plaintiff only Kshs. 2,000,024/=. Several decisions were cited on this point.

50. The defendant nonetheless urged the court to dismiss the plaintiff’s suit with costs for want of proof of liability.

DETERMINATION

51. I have considered the parties pleadings, oral and documentary evidence adduced as well as their advocates written submissions and authorities relied on. In my humble view, the issues that flow for determination in this matter are:

i. Whether the deceased Thomas Vuhiru Agade died as a result of electrocution.

ii. Who is to blame for the death of the deceased Thomas Vuhira Agade.

iii. Whether the 1st plaintiff has locus standi in this matter.

iv. What damages if any would the court award a successful plaintiff in a matter of this nature.

v. What orders should this court make.

vi. Who should bear costs of the suit.

52. Before determining the above issues, it is important to note that I heard this matter on 10th December 2015when I was still serving in the Civil Division of the High Court. I then fixed the matter for mention on 26th January 2016 for parties to file and exchange their written submissions but by 26th January 2016 the defense had not filed and served their submissions and were granted more time until 23rd February 2016 when the matter was mentioned and although the defence counsel stated that they had filed their submissions which, nonetheless were not on the court file, the court ordered the file to be returned to the registry for the submissions to be placed on the file and in the intervening period I was deployed to the Judicial Review Division.

53. It was not until 21st July 2016 when the file was placed before Honourable Justice Joseph Sergon that he fixed a date for judgment as 7th October 2016.

54. However, the Learned Judge learnt after retreating to write the judgment, in late January 2017, that I had heard and concluded the matter and therefore it was appropriate that he places the file to me to write the judgment. Upon receipt of the file, I ordered for a mention date and directed the parties advocates to be served to appear for mention on 1st February 2017 for fixing of a judgment date which I fixed for 21st March 2017 at 2. 30 p.m. However, I was unable to write the judgment and deliver it as scheduled because albeit the parties were directed to send soft copies of written submissions, they did not and so I re-fixed the judgment for 2nd May 2017 at 2. 30 p.m.

55. On the latter date, the judgment was not ready as my presiding judge had proceeded on leave from end of March 2017 to Mid May 2017. The workload in the Division coupled with urgent work could not allow me to write the judgment expeditiously. It is therefore regrettable that the judgment in this matter was not delivered expeditiously within the shortest time possible, due to circumstances beyond the court’s control and the parties are hereby appreciated for their patience in this age old matter.

56. On the first question of whether the deceased Thomas Vuhiru Agade died due to electrocution, the plaintiff PW1 testified on oath and stated that the deceased had been invited for an interview of magistrates and on his way home, he was electrocuted and died on the spot. That the Kenya Power lines were on the ground and were live wires. She stated that the wires had fallen the previous day after much rain and that she learnt that Kenya Power had been notified. She denied that her son used to drink alcohol. She also stated that she was notified by her daughter that her son was dead. The witness produced police abstract from the police and photographs showing how her son was found dead lying on the electric power wires.

57. PW1 stated that she was informed that the deceased had delayed returning to his cousin’s house in Kabete because of the heavy rains and died on his way back. The plaintiff also called PW2 who testified that he worked at the Kenya School of Government at Kabete as an Internal Security officer and on the material date of 30th April 2004 he was on duty. That it was raining heavily and at midnight there was a blackout.

58. In the morning on 1/5/2004 at 6. 00a.m., he got a report that a man had been electrocuted by a live wire. He proceeded to the scene and found that the matter had been reported to the Spring Valley Police Station. He found the deceased Thomas Agade and the police at the scene and the police carried the deceased’s body to the police station.

59. PW2 stated that on 29th April 2004, the same cables that killed Thomas were still lying on the ground and that a report vide Ref. No. 408681 of 29th April 2004 at 3. 00 pm was made to the Kenya Power and Lighting Company. The witness stated that even after killing the deceased, the cables still remained at the scene. He blamed Kenya Power for failing to remove live wires from the ground which was a road passing near a residential area. The witness stated in cross examination that he was not present when the deceased was electrocuted. He stated that he was notified about the accident by his boss who received information from the residents. He maintained that the deceased was found lying dead on a live wire.

60. PW3 No. 234468 Inspector Juliana Wanyama, Officer in charge of crime at Spring Valley Police Station produced OB report for 1st May 2004 made through a phone call by William Kosgei in charge of Security within Kenya Institute of Administration Kabete. That upon receipt of the report, the officer on duty proceeded to the scene and found an electrocuted person identified as Thomas Agade. That the officers visited the scene and confirmed the death and that the OCPD Mr Wanzala also visited the scene, had the body photographed and taken to the morgue.

61. PW3 stated that the Kenya Institute of Administration made the report to the police station and that the police issued a police abstract of occurrence of the said electrocution. PW3 produced the OB extract No. 18/1/5/2004 which states that the deceased died due to electrocution and that the report was made at 2. 00a.m.

62. DW1 Peter Njenga Kiarie, an employee of Kenya Power and Lighting Company as a foreman testified that he was the team leader at the time of the accident and used to lead teams and attend to temporary emergencies, repairing of jumpers, droppers, replace fuses carriers among others. He testified that on 30th April 2004, within Kenya Institute of Administration at Kabete, a dry branch of a tree fell on the power line which fell on the ground and that someone reported to the Kenya Power and Lighting Company office call-centre as a power failure report. He stated that on the material night it was raining heavily but that there were no faulty lines report made by Kenya Institute of Administration Kabete to Kenya Power and Lighting Company.

63. That he went to the site and isolated/switched off the power line but never saw anybody electrocuted at the scene. He denied ever receiving any report of electrocution and stated that he learnt of the accident when they were served with summons in this case. He maintained that the power line was repaired and that nobody was electrocuted.

64. In cross examination, DW1 stated that the repairs to the power line were done at 8. 00pm in the evening by removing the fuse. He admitted that information was relayed to their call-centre and that after removal of the low voltage fuse, there was no way the line would be live to electrocute a person. He could however not explain how the deceased died if the line was dead.

65. On being questioned further by Ms. Susan Nyang counsel for the plaintiff, DW1 stated that he did not have a worksheet to show that he went to repair the damaged electric power live on that day. He also stated that if an accident occurred then it was caused by heavy rains that caused the trees to fall on the power lines. He also stated that the incident was investigated but he did not have a copy of the such investigations report. He stated that they (Kenya Power and Lighting Company) did not consult Kenya Institute of Administration when he went to repair the power line.

66. DW1 further stated that he tested the wires using low voltage tester and left when the lines were clear and stated that the wires were repaired later.

67. In their submissions, the defence maintained that they were never made aware of electrocution as they insulated the power lined after receiving a report of the fall of electric power lines following heavy rains that caused trees to fall on the said power lines.

68. On the part of the plaintiff, it was submitted that the defence witness no. 1 could not provide a work sheet showing that he had gone to the site after the report was made and insulated the live electric power lines.

69. It was further submitted that DW1 failed to dispute the cause of death as being electrocution. It was submitted that the defence was merely denying.

70. The plaintiff produced the extract of the police investigation diary as Pex 29 showing that on 1st May 2004 at 11. 25 a.m. a report (call) was received by Spring Valley Police station by Mr William Koskei that a default power line had caused the death of an unknown person and at 1. 44 a.m. the scene was visited by PC Ngumbau and PC Mungania.

71. The investigation diary further shows that at 2. 10 pm, on 1st may 2004, the police returned to the station and recorded what they had found at the scene namely, that the deceased had died as a result of electrocution and later his body was escorted to the City Mortuary in the company of his cousin Hassanali Omido. The death certificate produced in evidence by the plaintiff being No. B771581 shows that on 30th April 2004, the deceased Thomas Vuhiru Agade aged 36 years had died at Kabete in Nairobi due to electrocution.

72. The police abstract exhibit no. 21 shows that on 1st May 2004 a report of electrocution of Tom Agade was reported vide OB NO. 18/1/5/2004 to the Spring Valley Police station.

73. There are also 8 photographs produced as PEx 22 showing the deceased lying on fallen electric power lines and photograph No. 8 shows the body being taken away from the scene. There is no contrary evidence that the deceased may have died due to other causes other than the stated cause being electrocution as stated in the death certificate and burial permit which are public documents.

74. There was no evidence to show that the defendant, upon receiving a report of a power failure as alleged by DW1 and the fall of the electric power cables, DW1 ever went to the scene to disable the live cables and therefore considering that the death certificate is a public document and as no contrary evidence has been adduced to show that the deceased could have died of other causes other than electrocution; considering that he was found lying on the very electric cables which had fallen on pedestrians path, I find that the deceased’s life was cut short due to electrocution. This was confirmed by the police who received the report, visited the scene and took away the deceased’s body.

75. In addition, the register of death No. 26 serial No. 1541 initialed PP 1293/04 Form A2 dated 3rd May 2004 produced in evidence shows that a post mortem was conducted on the deceased’s body by Dr Jane Wasike MBch; BM ( a pathology on 3rd May 2004 showed that the deceased’s immediate cause of death was due to (A) electrocution as his immediate cause of death.

76. There is no contrary evidence from the medical practitioner’s post mortem results shown on the said document No. 2 produced in evidence. The said Dr Jane Wasike is listed on the certificate as the informant. Further, PEX 29 police investigation diary OB 10 of 3rd May 2004 at 9. 59 a.m and OB 12 of 3rd May 2004 at 11. 56 a.m. show that PC Ngumbau attended the deceased’s post mortem at the City Mortuary vide PP No. 1293/04 which information tallies with the report on PEX 2 register of death by Dr Jane Wasike the pathologist.

77. The police investigation diary produced as PEx 29 shows OB No. 14 of 1/5/2004 at 11. 25 am a report made by Mr. William Koskei who reported of a defaulted wire(electric) which caused death of one name unknown but lives within the vicinity of Kenya Institute of Administration compound. The person was reported dead. At 11. 45 am, PC Ngumbau and PC Mungania proceeded to the scene vide GKA 287 driven by PC (D) Nganga report that the incident took place at about 2. 00a.m.

78. Accordingly, there is sufficient proof on a balance of probabilities that the deceased Thomas Vuhiru Agade died as a result of electrocution. In the end, I find and hold that the plaintiff has proved that the deceased died as a result of electrocution.

79. The second question to be answered is who was to blame for the accident?According to the plaintiff, the defendant was liable for the death of the deceased because the defendant failed to insulate the offending electricity cables to avoid electrocution; failed to leave a warning of the danger posed by the naked electric cables; failed to have due regard to the safety of third parties who may come into contact with the naked cables and for failing to give warning that there was a live wire cable within the vicinity. The plaintiff and her witnesses did not witness the accident take place. The witnesses found when the deceased had already died, lying on an electric cable as per the photos produced in evidence and so they blame the defendant for failure to insulate/disable live electric cables even after receiving a report of the accident .

80. DW1 stated that a report of fallen electric cables reached their office at about 8. 00am. on 30th April 2004 and he went with his teams to the scene and disconnected the power. However, there is absolutely no evidence to show that the defendant upon receiving a report at 8. 00am went to the scene and disconnected the fallen live power line. In the path where the deceased lay it is not denied, is a public path used by pedestrians. The photographs produced show that the power lines lay precariously across the foot path and the deceased is seen lying right on the said power line.

81. PW2 was clear that even after making a report to Kenya Power and Lighting Company, the electric power lines lay on the site for 4 days after it had killed the deceased.

82. The duty and mandate to install and manage electric power lines is placed on the defendant Kenya Power and Lighting Company by the Electric Power Act, Cap 314 and the Rules made there under. Kenya Power and Lighting Company is the only entity in Kenya which is licensed to install, supervise, inspect and maintain electric installations. Where a report is made of damage to electric power lines, it is the duty of the defendant to take immediate emergency action to ensure that the fallen or damaged power lines are removed from the harms way, disable and a place a conspicuous warning of danger at the scene to warn persons using the area to beware of the danger and risks.

83. In this case, although the defendant’s witness claimed that upon receipt of a report of power failure and power lines falling they went to the scene at around 8pm and cleared/ disabled the line and that they did not receive any report of electrocution, this court did not believe the defendant’s witness. As correctly submitted by the plaintiff’s counsel, it is expected that some work schedule is provided as evidence of disabling of the power line. The witness testified very casually without caring about the dangers involved in coming into contact with live electric wires. His demeanor did not impress the court and neither did his evidence displace the evidence adduced by the Kenya Institute of Administration (KIA) staff that the live wire lay at the scene for close to 4 days after killing the deceased.

84. Electric wires are a naked danger to human life. It was the statutory mandate and duty of the defendant to inspect, upon being notified, or remove the fallen installations if it took its work seriously.

85. In Kenya Power and Lighting Company v Joseph Khaemba Njoria [2005] e KLR GBN Kariuki J ( as he then was ) held that the power company has the responsibility to ensure that the power infrastructure it has installed in the country for the purposes of electrification is properly maintained to prevent accidents. In Joseph Kiptonui Koskei vs KPL Co. Ltd [2010] e KLR , Asike Makhandia J ( as he then was) held that the defendant Kenya Power Lighting Company owed the plaintiff and every Kenyan a duty of care where it happen to have power lines and further that electric power is a dangerous commodity and if not properly secured can be a danger to society.

86. Under Section 52 of the Energy Act it is clearly stipulated that :

“ The provisions of this Act shall not relieve a licensee of the liability to make compensation to the owner or occupier of any land or the agents, workmen or servants of the owner or occupier of any land which is the subject of the provisions of this Act, for damage or loss caused by the exercise or use of any power or authority confirmed by this Act or by any irregularity, trespass or other wrongful proceeding in the execution of this Act, or by the loss or damage or breaking of any electric supply line, or by reason of any defect in any electric supply line.”

87. From the above statutory provision, there can be no question that the KPLC has a statutory duty and responsibility to ensure that the power infrastructure it has installed in the country for purposes of electrification is not only properly maintained to prevent accidents but also that they take remedial measures where there is likelihood of risk to prevent any potential injury or damage. (See KPLC Ltd V Joseph Khaemba Njoria (supra).

88. I am therefore persuaded on the evidence adduced by the plaintiff’s witnesses and the authorities above that the deceased died due to the negligence of the defendant. I hold the defendant 100% liable in negligence and for failure to perform its statutory duty of supervising, inspecting and maintaining its electric installations. There is proof of the necessary causation and the link between the defendant’s negligence and the fatal injury to the deceased. In Statpack Industries vs James Mbithi Munyao [2005] e KLRit was stated that an accident can be caused by many factors and a link must therefore be established.

89. The danger of the deceased or any other user of that particular path being electrocuted by fallen live power lines was foreseeable. This is not the type of case where the court is faced with two probabilities. The only probability available is that the deceased was walking along the path after heavy rains and met his death when he stepped on live electric wires which had fallen on the pathway. This death took place in the night. If, as the defendant’s witness stated, that they received a report of a fallen electric power line and immediately proceeded to disable it at 8. 00a.m is true, then, in my humble view, there is, indeed no way the deceased could have died as a result of electrocution as was in this case. The defendants have not suggested that the deceased died of any other cause other than electrocution. They have evaded the whole incident by maintaining that they were never notified of any electrocution and that on being notified of the fallen electric wires, that same night, they disabled the lines. The defendant does not even state when its emergency staff went to remove the fallen lines from the ground , or to restore them to their normal state.

90. Walking along a deserted path which is not lit late in the wee hours of the night is not prohibited and therefore no offence was committed by the deceases. There is no evidence of an alternative path that the deceased could have used to escape death. The photographs produced show that the path was a foot path and there is no evidence that it was a closed path or that the deceased was trespassing on an unauthorized foot path or road when he met his death.

91. This court does not find any scintilla of evidence to show that the deceased could have contributed to his own demise, considering the evidence adduced by the plaintiff’s witnesses and circumstances leading to his demise, which evidence was clear and unchallenged.

92. Moreso, albeit the defendant alleges contributory negligence on the part of the deceased in excess of 80%, it gave evidence saying no such accident occurred. The defendant did not state in evidence as to how the deceased could have contributed to his own demise. It only maintained in evidence that there was no report of electrocution. Furthermore, the defendant’s allegation of the deceased’s own negligence is contained in the submissions. Submissions are not and cannot take the place of evidence. They remain submissions. See Daniel Toroitich Arap Moi & another v Mwangi Stephen Muriithi &another [2014]eKLR. If the defendant only learnt of the alleged accident three years after the incident when they were served with summons to enter appearance, it behoves them to turn around, even without carrying out any investigation and producing results of such investigations, to allege that the deceased was responsible for the accident because he was walking at night in a dark place without caring for his own safety.

93. Furthermore, the defendant in its written defence filed on 8th June 2006 alleged that the negligence attributed to it which was denied, was caused solely or contributed to by the negligence of the Kenya Institute of Administration. They did not attribute negligence on the deceased. In the evidence of DW1 and the submissions by the defense, there was no mention of how Kenya Institute of Administration could have contributed to the accident in question that led to the deceased’s electrocution. And if that were the case, the said Kenya Institute of Administration’s staff were witnesses for the plaintiff. KIA was never enjoined to these proceedings as a third party for apportionment of liability.

94. For that reason, I find no evidence of contributory negligence on the part of Kenya Institute of Administration. I find that the defendant was solely to blame for the accident leading to the deceased’s demise.

95. In CMC Aviation Ltd, v Cruis Air Ltd (1) [1978]KLR 103 it was held that:

“Pleadings contain the averment of the claim concerned until they are proved or disproved, or there is admission of them or any of them by the parties. They are not evidence and no decision could be founded upon them. Proof is the foundation of evidence.”

96. In other words, it was not enough for the defendant to aver or assert in its pleadings that Kenya Institute of Administration was to blame for the accident. Averments are matters of truth of which is submitted for investigations until their truth has been established or otherwise they remain unproven. Averments in a plaint do not satisfy the definition of evidence under Section 3 of the Evidence Act. Since those averments as to the negligence of the Kenya Institute of Administration were not admitted, which admission could have become evidence and as evidence is normally given on oath or by affirmation, averments depend on evidence for proof of their contents. See Cassells English Dictionary page 394.

97. On the third issue of whether the 1st plaintiff has locus standi in this matter, the defendant claims that the 1st plaintiff has no locus standi in this matter and that she only claimed that she was the deceased’s mother yet offered to documentary evidence in support thereof.

98. The 1st plaintiff indeed testified that she was the deceased’s mother. She also produced a grant of letters of administration and a myriad of documents including deceased’s academic documents showing his qualifications and she vividly described what he was doing at the time. That he had come to Nairobi to do an interview with the Judicial Service Commission for the post of District Magistrate II professional on 8th September 2004 at 9. 00a.m. There was no contrary evidence to that testimony and documentary evidence produced without any objection. She also produced in evidence his passport No. A 175168 and visas to study in India.

99. The limited grant of letters of administration Ad Litem issued to the plaintiff s vide HCC P&A No. 76 of 2009 by Honourable Joyce Aluoch J ( as she then was ) on 10th April 2007 is clear that the plaintiff had the necessary locus to institute these proceedings for and on behalf of the estate of the deceased Thomas Vuhiru Agade. at paragraph 11 of the plaint, the plaintiff also pleaded that they had obtained limited grant of letters of administration Ad Litem vide succession cause No. 76/2007 at Nairobi before filing suit.

100. Furthermore, document 28 produced by the plaintiff which is an obituary of Tuesday May 11 2004 describes the deceased as son of Pascalia Agade and the late Joshua Agade. Death is a serious matter and one would not merely claim that they have lost a beloved one when they have not. I had the opportunity to hear, see and observe the 1st plaintiff in court as she emotionally testified even breaking down whenever questions were put to her by her counsel. PW1 who was a retired teacher also produced in evidence and identified to court the deceased’s birth certificate and her national identity card, his passport among other documents to show that she was his mother.

101. In my humble view, the plaintiff demonstrated on a balance of probabilities, that she had the necessary locus standi to bring this action on her own behalf and on behalf of the deceased’s estate as required by law.

102. Having established that the cause of the deceased’s demise was electrocution; that the defendant was solely to blame for the accident for its failure to disable and or remove the fallen live electric power lines despite admitting that it was notified of the exposure; that the plaintiff herein had the locus standi to institute these proceedings, the next issue for determination is what damages if any is the plaintiff entitled to.

103. First and foremost, it is important to point out that there are 2 plaintiffs Pascalia Nyaboke Agade and Judy Njura Kathuri. Both plaintiffs jointly obtained a limited grant for purposes of instituting this suit.

104. According to PW1, she enjoined Judy Njura Kathuri to this suit as the widow to her late son Thomas Vuhiru Agade and that he had sired with Judy a baby boy issue but that she vanished and her whereabouts are unknown.

105. I have examined all the documents produced in evidence I am unable to find the nexus or relationship between the 1st plaintiff and the deceased Thomas Vuhiru Agade. In addition, although under paragraph 7 on the names of the beneficiaries, the 1st plaintiff and her son Thomas Vuhiru Motachwa aged 3 years are named as defendants. The 1st plaintiff also swore the verifying affidavit accompanying the plaint and that is all about her and her minor son.

106. In other words, a part from the pleadings, verifying affidavit and limited grant, the 1st plaintiff has never appeared in court to testify or to lay bare her claims to the deceased’s estate as a widow or dependants.

107. My conclusion is that there is no evidence that the deceased was married to Judy Njura Kathuri or that he sired a son with her or that the two were his dependants at the time of his demise.

108. I shall therefore proceed to determine what damages the plaintiff Pascalia Nyaboke Agade would be entitled to in the circumstances of this case.

109. In the plaint dated 27th April 2007 the plaintiff Pascalia Nyaboke Agade and another prayed for special damages, general damages under the Law Reform Act Cap 26 Laws of Kenya and Fatal Accidents Act Cap 32 Laws of Kenya. That plaint was never amended to specify what special damages the plaintiffs were urging the court to grant them.in addition, no receipts were produced to prove the said special damages.

110. The law is clear that special damages must not only be specifically pleaded but they must be strictly proved on a balance of probabilities.

111. In this case, other than simply praying for special damages and stating that “ to be adduced at the time of trial of the suit herein,” no particulars of special damages were provided, not even in the testimony by the 2nd plaintiff. However, in the submissions dated 26th January 2016, the plaintiff’s counsel at page 6 urges the court to grant her client special damages of kshs 89,300. 00 as pleaded.

112. Whereas it cannot be doubted that the plaintiff must have expended money towards the funeral of her only son who died in Nairobi and she had to mobilize relatives and friends to assist her transport the body to Kisii for interment, it is however unfortunate that no particulars of special damages were pleaded and or proven or even mentioned in her testimony.

113. It is for that reason that I find that the special damages were neither specifically pleaded nor strictly proven. Iam fortified by the case of James Thiongo Githiri v Nduati Njuguna Ngugi [2012] e KLR where thecourt held:

“ Special damages are those damages which a plaintiff is entitled to claim, but which without a special claim the law does not assume to follow from the wrongful act, as opposed to general damages which the law presumes to be the direct and natural or probable consequence of the act complained of….special damages on the other hand, are such as the law will not presume from the nature of the act….They must therefore be claimed specifically and proved strictly. The term “ special damages” demotes the actual pecuniary loss arising out of the special circumstances of the case, and it to be supper added to the general damages implied by the law as following if the plaintiff has been caused pain, suffering or wounds/injuries of any description. A claim for special damage must be specifically pleaded by the plaintiff setting out each particular item and the amount claimed in respect of it. Such damage not being presumed by the law, the plaintiff must expressly prove his special damage, and if he fails, either to plead or to prove it, he is not entitled to recover.”

114. Accordingly, as the plaintiff neither pleaded nor proved special damages, this court awards him nothing. Her claim for special damages is dismissed.

115. On the claims under the statutes Law Reform Act and Fatal Accidents Act and commencing with the damages under the Law Reform , these are normally claimed and awarded for the benefit of the estate of the deceased while damages under the Fatal Accidents Act Cap 31 are awarded for the benefit of the deceased’s dependants named in the plaint.

116. In this case, the plaintiff testified that the deceased was her son. He was unemployed. He died at the age of 36 years. He had successfully studied law in India, completed Kenya School of Law and admitted as an advocate of the High Court of Kenya. The plaintiff produced an exhibit showing that at the material time, he had applied for and had been scheduled to do an interview for magistrate. His income was not therefore known at the time.

117. Under the Fatal Accidents Act, only a spouse, children and parents are entitled to claim upon proof of dependency as stipulated in Section 4(1) of the Act. However, the deceased, according to the evidence adduced, wanted to become a magistrate and according to PW1, he would have risen to the rank of judge. The correct mode of assessing claims and damages under these two statutes is as stipulated in KEMFRO Africa Ltd T/A Meru Express Service, & Gathogo Kanini vs A.M. Lubia & Olive Lubia [1982-1988], KAR 727 that the net benefit inherited by the dependant under the Law Reform Act must be taken into account in respect of damages awarded under the Fatal Accidents Act because the loss suffered under the Fatal Accidents Act must be offset by the gain from the estate of the deceased, under the Law Reform Act.

118. Under the Law Reform Act, the law gives the framework for claiming in respect of:

i. Pain and suffering

ii. Loss of expectation of life.

119. Under the Fatal Accidents Act, the essential elements applied in assessing damages are

i. The multiplicand

ii. The multiplier

iii. The determination of earnings.

120. On Pain and suffering,this is an amount, as correctly submitted by the defence counsel, based on the period the deceased took to die from the time of occurrence of the accident, and is amount directly proportional to the period of death after the accident. In the instant case, the deceased, from the evidence adduced, died instantly due to electrocution.

121. In Elizabeth Chelagat Tanui & Another vs Arthur Mwangi Kanyua [2013] e KLRthe court awarded the plaintiff kshs 10,000 for pain and suffering where the deceased died sometime after being taken to hospital. I would therefore in this case award the plaintiff kshs 10,000/- damages for pain and suffering, being reasonable compensation.

122. On the claim for loss of expectation of life, it is not in dispute that the deceased who was an advocate of the High Court of Kenya and aged 36 years only at the time of his painful demise had expectation of living a healthy full life. I would in the circumstances based on the plaintiffs and defendant’s counsels case law cited namely Nairobi HCC 2774/92. Pauline Kulola Mwadime V Dancun Mwandago Mwikamba; and HCC 530/1997 Timothy Maluki Nzengi vs Lucas Obiero Owino & Another, award the plaintiff a sum of kshs 150,000 damages for loss of expectation of life.

123. On the claim for lost years, it is usually awarded to the estate of a deceased person for the loss of income it would have benefited if the deceased was alive.

124. The plaintiff claimed that the deceased was earning shs 480,000 annually which is shs 40,000 per month but in her documentary evidence she produced a Curriculum Vitae showing the deceased working as a legal advisor at Jorimo Insurance Brokers Ltd.

125. In cross examination the plaintiff stated that the deceased was unemployed. Indeed, parties are bound by their pleadings which limit the issues that the court will determine at the trial. ( see IEBC & Another V Stephen Mutinda Mule & 3 Others [2014] e KLR. There is evidence that the deceased was an advocate of the High Court of Kenya and had been scheduled for an interview as an magistrate. The plaintiff claimed for that he would be earning about kshs 200,000 and rise to Chief Magistrate earning 350,000. She urged the court to award kshs 350,000 x12 x 2/3 x 25= 70,000,000.

126. On the other hand the defendant submitted relying on the case of Simeon Kiplimo Murey & 3 Others vs Kenya Bus Management Services Ltd & 4 Others [2014]where the court held that:

“on the issue of income, the trial magistrate correctly pointed out that the plaintiff was bound by the pleadings which showed that the deceased’s salary was kshs 20,000 although the proved salary was kshs 40,000/-. Although the statutory deductions were not disclosed, the court could readily ascertain these from the relevant law. I would estimate that statutory deductions such as income tax, NSSF and NHIF would amount to about one third of the gross salary leaving a net income of about kshs 26,000 less a reasonable sum the deceased would spend on himself. The appellant in the pleadings and submissions accepted that the amount pleaded and proved is kshs 20,000 and the same should have been awarded as the net income, I therefore find and hold that the multiplicand is kshs 20,000. ”

127. In this case, the defendant’s counsel submitted that “it is reasonable to assume that a newly admitted advocate would eventually get employed and it is our considered opinion that the gross income of kshs 40,000 pleaded by the plaintiff is reasonable.”

“ We invite the court in the circumstances to adopt a reasonable figure of kshs 26,667 as the net salary. The statutory deductions were not disclosed and we urge the Honourable court to be guided by the relevant law while making statutory deductions which should be less a third of the gross salary….”

128. I have perused the plaint dated 27th April 2007, indeed, the plaintiff pleaded that the deceased earned kshs 480,000 annually. The evidence showed that he worked for the insurance brokerage but no pay slip or letter of employment was exhibited. It therefore behoves the plaintiff to adduce evidence contrary to her pleadings and submit that the deceased would be earning not less than kshs 200,000 and as a Chief Magistrate which is the highest rank in the magistracy, and that he would earn kshs 350,000, using a multiplier of 25 years and a dependency ratio of 2/3.

129. I would in the circumstances accept the figure of shs 40,000/-monthly salary proposed by the defendant and as pleaded by the plaintiff.

130. Nonetheless, I disagree with the defendant’s multiplier and multiplicand on the manner of calculating lost years.

131. In this case, the deceased was aged 36 years. He would work until 60 years as an employee of the insurance company as pleaded. There was no guarantee that he would get the job of a magistrate. Although there are probabilities that he would have risen to be a judge, but all that was not pleaded. In the premises, I would adopt the deceased’s earning to be kshs 40,000 per month on average. There was no evidence of deductions and, neither was there evidence that this was gross or net salary. Bearing in mind that the deceased would not have earned a constant salary of kshs 40,000/-, I would take kshs 40,000/- to be net salary after all deductions. I would also adopt a multiplier of 24 years as there was no evidence that he was of ill health which would have affected his working life.

132. On the multiplicand, the deceased would have married and diverted most of his earnings on himself and his family. For that reason, and as there is no rule of the thumb that dependancy ratio must be 2/3 of a deceased’s earning, I would adopt a multiplicand of 1/3 for his mother the plaintiff herein.

133. The totals would be shs 40,000 x 12 x 25 x 1/3= 4,000,000 which I hereby award to the 2nd plaintiff as the 1st plaintiff vanished and never testified to indicate her relationship with the deceased and neither was any evidence of children adduced.

134. In the end, I enter judgment for the 2nd plaintiff Pascalia Nyaboke Agade against the defendant Kenya Power and Lighting Company on liability at 100%.

i. Special damages nil;

ii. general damages: under the Law Reform Act

(i) Pain and suffering = shs 10,000/-

(ii) Loss of expectation of life = shs 150,000/-

Total Shs 160,000/-

iv. Under Fatal Accidents Act shs 4,000,000

v. Total shs 4,000,000 less damages under Law Reform Act kshs 160,000/-

Total damages awarded Kshs 3,840,000/=

135. I further award the 2nd plaintiff costs of this suit together with interest at court rates from date of judgment until payment in full.

Dated, signed and delivered in open court at Nairobi this 6th day of November, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Mungai H/b for Miss Nyang for the Plaintiffs

N/A for the Defendant

CA: George