[2018] KEHC 5027 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CIVIL APPEAL NO. 24 OF 2016

KENYA POWER & LIGHTING CO. LIMITED.........APPELLANT

VERSUS

SHERIFF MOLANA HABIB....................................RESPONDENT

(Being an Appeal against the judgement of the Honourable S.R. Wewa, PM delivered in CMCC No. 48 of 2013 on 28th June, 2016)

JUDGEMENT

1. Kenya Power & Lighting Co. Limited, the Appellant, was the defendant in Malindi Chief Magistrate’s Court Civil Case No. 48 of 2013 where it had been sued by Shariff Molana Habib, the Respondent, who sought orders as follows:

“a. A permanent injunction by the Honourable Court does issue restraining the Defendant/Respondent by themselves, employees and/or argents from disrupting, disconnecting, interfering and or restricting in whatever manner whatsoever with the electricity supply to the premises erected on the Plaintiff’s parcel Number PORTION NUMBER 2621 MALINDI.

b. Proper rendering account of the said electricity account number.

c. A permanent injunction against the Defendants restraining them not to interfere with the Plaintiff’s electricity supply.

d. Costs of the suit and interest thereon at court rates.”

2. The basis of the Respondent’s claim as communicated in the plaint dated 25th March, 2013 was that the Respondent was the owner of the land known as Portion No. 2621 Malindi whereupon he had erected rental premises. According to the Respondent, the Appellant supplied electricity to his premises and billed him regularly and his tenants paid the bills. The Respondent’s case was that when the last tenant vacated the premises the Appellant never tendered any electricity bill to be paid by the Respondent. The Respondent consequently asked for the bill and was given an overinflated bill of Kshs.343,933. 72. The Respondent averred that the figure was unjustified as he had paid Kshs. 70,586. 40 to offset any previous balances and a further advance amount of Kshs. 19,413. 60. It was further the Respondent’s averment that the said account had been dormant as the meter had not been read or was not working. It was also the Respondent’s contention that there were dubious entries in the bill.

3. The Respondent’s further averment was that the Appellant had threatened to disconnect electricity and he would suffer irreparable damage and loss if the Appellant was not stopped. He thus sought the orders already stated.

4. An order maintaining the status quo was issued on 26th March, 2013. After hearing the matter, the trial court delivered judgement on 28th June, 2016 and entered judgement in favour of the Respondent in terms of prayers (a), (b) and (d) of the plaint.

5. Through the Memorandum of Appeal filed on 22nd July, 2016 the Appellant appeals the said judgement on the grounds that:

“1. THAT the learned Magistrate erred in granting a permanent injunction against the Appellant prohibiting interference with the Respondent’s electricity supply.

2. THAT the learned Magistrate erred in disregarding the Appellant’s defence, physical evidence and the evidence of its expert witness.

3. THAT the learned Magistrate misdirected herself in disregarding the Appellant’s evidence of the Respondent’s inequitable conduct in regard to his claim

4. THAT the trial court erred in entering judgement for the Respondent despite no physical evidence of his claim.

5. THAT the learned Magistrate erred in awarding the Respondent costs.”

6. By consent of the advocates for the parties the appeal was disposed of by way of written submissions.

7. A perusal of the submissions by the advocates for the parties revolve around the question as to whether the Respondent met the requirements for the grant of injunctive relief.

8. It is apparent from the pleadings that the Respondent was seeking a permanent injunction against disconnection of his electricity by the Appellant. A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.

9. A permanent injunction is different from a temporary/interim injunction since a temporary injunction is only meant to be in force for a specified time or until the issuance of further orders from the court. Interim injunctions are normally meant to protect the subject matter of the suit as the court hears the parties.

10. Generally, an injunction is sought in addition to other remedies. It is often difficult to seek an injunctive relief as a stand-alone remedy. In most cases it accompanies declaratory orders.

11. In Nguruman Limited v Jan Bonde Nielsen & 2 others, CA No. 77 of 2012; [2014] eKLR,the Court of Appeal reiterated the conditions to be met by a litigant who seeks injunctive relief as follows:

“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;

a. establish his case only at a prima facielevel,

b. demonstrate irreparable injury if a temporary injunction is not granted, and

c. ally any doubts as to (b) by showing that the balance of convenience is in his favour.

These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.”

12. Ali Sheriff testified in support of the Respondent’s case. He adopted the statement he had filed in court. In the statement filed in court under the name of Ali Maulana, the averment is that the witness was the son of the Respondent who had six apartments on Portion No. 262 at Shella in Malindi. His averment was that each apartment had its own meter and his father had consistently paid the monthly electricity bills. After a tenant vacated one of the apartments his father asked for the electricity bill and he was given an inflated bill of Kshs. 343,933. 72 which with addition of VAT debit and debit re-billing took the bill close to Kshs. 450,000. The witness deposed that he went and lodged a complaint with the Appellant’s office at Malindi but was told to first pay the bill before the problem could be looked into. His father did not pay the bill and that is when the Appellant disconnected electricity in the entire block including the other five apartments whose meters had no problem and bills had properly been paid. They instructed an advocate who wrote a demand notice to the Appellant but there was no response. Upon the issuance of a court order the Appellant reconnected electricity to the other five apartments and took away the meter for the apartment with the disputed bill. The witness concluded his recorded statement thus:

“All we need from this court is to have the Defendants properly bill the apartment and correct its mistake and as a result have the meter reinstalled in that apartment for it to be rented out.

13. Upon cross-examination, the witness stated that he could not say what was wrong with the bill apart from the fact that it could not make sense because it was exorbitant. The witness also stated that he had not brought the disputed bill to court.

14. DW1 Geoffrey Situngu testified on behalf of the Appellant. He adopted his statement of 27th November, 2013. In that statement, DW1 told the court that he was a senior technician in charge of customer services based in Malindi. His evidence was that in May, 2012 he debited the Respondent’s meter number 60052352 and realized that there was an abnormality. He noted that the meter on site was not the one reflected in their Integrated Customer Service (ICS) system. The meter was wrongly captured as No. 60034908. He normalized the system. At that time the Respondent had consumed 25999 units worth Kshs. 363,347. 32. He disconnected the power.

15. The Respondent approached the Appellant for reconnection of power and on 21st November, 2012 the Respondent paid Kshs. 50,000 for the disputed meter. The power supply was reconnected after the Respondent promised to enter into an agreement with the Appellant on how to pay the outstanding amount in installments. The Respondent however never turned up to record the agreement.

16. DW1 further stated that on 28th February, 2013 they disconnected the Respondent’s power and he visited the office and paid Kshs. 40,000 promising to pay the balance but had never done so. The witness attached various documents in support of his evidence.

17. This is a first appeal. The duty of a first appellate court was captured by the Court of Appeal in John Teleyio Ole Sawoyo v David Omwenga Maobe [2013] eKLR thus:

“This being a first appeal we have the duty to reconsider both matters of fact and of law. On facts, we are duty bound to analyse the evidence afresh, re-evaluate it and arrive at our own independent conclusion but must bear in mind that the trial court had the advantage of hearing the witnesses testify and seeing their demeanour and should make allowance for the same.”

18. Still on the duty of the first appellate Court, Hancox JA (as he then was), stated inEphantus Mwangi & another -v- Duncan Mwangi Wambugu [1982-88] 1KAR 278 at page 292,as follows:

“A Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the finding he did.”

19. The Court went ahead and stated that:

“The Court of Appeal would hesitate before reversing the decision of a trial Judge on his findings of fact and would only do so if (a) it appeared that he failed to take account of particular circumstances or probabilities material to an estimate of the evidence or (b) that the impression based on demeanour of material witnesses was inconsistent with evidence in the case generally.”

20. Urging this court to allow the appeal, counsel for the Appellant submitted that in order for a permanent injunction to issue, the applicant must exhibit a case with a very strong probability of success which the Respondent failed to do in this case. The decisions in the cases of Robai Kadili Agufa & another v Kenya Power & Lighting Co. Ltd [2015] eKLR and Morris v Redland Bricks Ltd [1970] AC 652are cited in support of the said assertion. According to the Appellant, the evidence adduced by the Respondent fell short of the standard for the grant of a mandatory injunction.

21. The Appellant pointed out that the Respondent had in his written submissions abandoned prayers (a) and (c) on the grounds that the same had been overtaken by events but the trial magistrate had nevertheless gone ahead to erroneously grant a mandatory injunction based on those prayers.

22. It was the Appellant’s submission that the trial magistrate disregarded its defence thereby reaching the wrong decision. In fact the Appellant faulted the trial court for delivering a judgement which failed to comply with the requirements of Order 21 rules 3 and 4 of the Civil Procedure Rules, 2010 as to the contents of a judgement. Further, that the trial magistrate never adverted to its evidence at all. According to the Appellant, it had availed expert evidence but that evidence was never considered by the trial court.

23. The Appellant asserted that judgement was entered in favour of the Respondent without any evidence to support such a decision.

24. Finally, the Appellant urged this court to find that the award of costs to the Respondent was erroneous.

25. The Respondent’s position was that he met all the conditions for the grant of a permanent injunction. Counsel for the Respondent submitted that the Appellant’s witness did not explain how the Respondent was being billed for two accounts without the knowledge or intervention of the Appellant.

26. The claim that was before the court was essentially about excessive billing. DW1 explained that the bill ballooned because the Respondent’s consumption was not captured in their system between 2008 and 2012. This evidence connects with the Respondent’s averment in paragraph 10 of the plaint that the “said account has been dormant since meter has never been read and/or been working…”. The Respondent was thus all along aware that there was a meter with problems but never took action.

27. The Respondent challenged the excessiveness of the bill but did not place any evidence before the court to demonstrate why he thought the bill was excessive. This was a bill for consumption of electricity spanning a period of over four years and the Respondent ought to have placed evidence, even in form of the bills for the other apartments, to show that the bill was indeed exaggerated.

28. On its part, the Appellant produced evidence that the Respondent had applied for supply of electricity to the premises. The meter number is the one in respect of which the bill was generated. The plot number is indicated as 2621 Shella. The contract number/account number is given as 446383/2. The Respondent did not dispute this information.

29. With the evidence that was placed before the court by the Appellant, the only remedy that could be visited upon the Respondent’s case was a dismissal. The Appellant could not be prohibited from collecting its debt. The rights of a debtor cannot be said to be breached when a creditor demands his dues.

30. In the case at hand the Respondent did not establish a prima facie case or demonstrate likelihood of irreparable damage to warrant the grant of injunctive orders. In essence, the Respondent did not establish any right that required protection by the court. In the circumstances, the appeal succeeds and the judgement of the trial court is reversed and replaced with an order dismissing the Respondent’s suit. The Appellant will have costs of this appeal and costs at the trial court.

Dated, signed and delivered at Malindi this 26th day of July, 2018.

W. KORIR,

JUDGE OF THE HIGH COURT