[2017] KEHC 2938 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCA NO. 65 OF 2016

KENYA POWER & LIGHTING CO. LTD..................................................................................APPELLANT

VERSUS

JAMES ONUNGA OTIENO & HENRY OTIENO ONGARO(SUING AS LEGAL REPRESENTATIVE

OFTHE ESTATE OF ALPHONCE O. ONUNGA – DECEASED) ......................1ST RESPONDENT

JOSEPH ONYANGO OCHIENG..................................................................................2ND RESPONDENT

[Being an appeal from the Judgment and Decree of Hon. B. Kasavuli (Senior Resident Magistrate)in Winam PMCC No. 52 of 2013 delivered on the 29th July 2016]

JUDGMENT

The appellant filed this appeal based on the grounds in the Memorandum of appeal filed herein on 29th August 2016.

The 1st Respondent had sued the appellant for special and general damages following electrocution of his son at Obunga here in Kisumu. It was the 1st Respondent's case that his son was electrocuted by an electric wire that had been illegally connected to a barbed wire fence from the 2nd Respondent's meter box. He had sued the 2nd Respondent as the 2nd Defendant in the case.

The 2nd Respondent then a defendant with the appellant vehemently denied that he owned the fence at which the electrocution took place. He testified that his fence was made of bricks and wondered why he was sued. He however conceded that the deceased's home was about 200 meters from his and confirmed that the cause of death was electrocution and that there was a barbed wire fence at the scene of the electrocution.

The appellant through its supervisor Manager Maintenance Section admitted that an electrocution occurred at the place and day alleged. He however denied the appellant was liable stating that it was not responsible for the connection of the electricity to the barbed wire fence. He contended that it was an illegal connection for which the appellant could not be held responsible. He could not however remember the last time the appellant had done a routine maintenance at Obunga but explained that routine maintenance involved clearing trees, replacing overheads and rotten poles and replacing cables. He was categorical that the appellant's business ended at the meter but did not extend into a consumer's house. It was also his evidence that when he visited the scene it appeared that electricity was being tapped. He did not however see any wires and could not ascertain the exact place the electrocution had occurred. The victim had already been taken to hospital.

After considering the evidence and the summing up by the Advocates for the parties the Trial Magistrate found the appellant wholly liable and awarded the 1st Respondent Special & general damages amounting to Kshs.655,891/=.

The appeal was canvassed through written submission.

As the first appellate court I have reconsidered the evidence before the trial court while bearing in mind that I did not have the benefit of observing the demeanour of the witnesses. I have also considered the submissions of the Advocates for the parties and the authorities cited.

The appellant is a corporate body which

“owns and operates most of the electricity transmission and distribution system in the country……..

The company's key mandate is to plan for sufficient electricity generation and transmission capacity to meet demand; buildingand maintaining the power distribution and transmission networkand retailing of electricity to its customers” …… (lifted from the

Kenya Power website www.kplc.co.ke)

Part of the Company's Quality Policy is transmitting and distributing high quality electricity that is safe. There is evidence in this case that the appellant was responsible for transmitting and distributing electricity to Obunga. The deceased in this case died while he was trying to go through a fence to which electricity had been connected. The court heard that it was connected from a meter belonging to one of the appellant's consumers. Being the body responsible for maintenance of the network the appellant owed a duty of care not only to its consumers but to the public at large. It was after all the supervisor's (Nicholas Okumbe) testimony that the consumer was solely responsible for the installation inside the premises and the company from the meter outwards. It was not expected of the deceased to find out if there was an illegal electricity connection before crossing the fence and even if he did there is nothing he could have done save to wait upon the appellant to rectify it. It was however expected of the appellant to do routine inspection and maintenance of its network so as to ensure it was safe. Nicholas Okumbe stated that that he did not know when they last did routine maintenance at Obunga. If this is not an admission of negligence this court does not know what is. Nicholas Okumbe stated that the company causes people to be charged when they tap electricity illegally yet wanted this court to believe that the company can turn a blind eye to illegal connections. In my view it is the responsibility of the appellant as much as it is of other law enforcement agencies to ensure that there are no such connections as would hurt the public and more so children. That is what transmitting and distributing high quality electricity that is safe entails. The appellant owes a duty of care to the public to do so. In Kenya Power & Lighting Co. Ltd. V. Irene Chemutai [2015]eKLR Ong'udi J stated, and I agree :

“35. The appellant did not show that it was not the one that had supplied electricity to the neighbouring plot to PW2. Since its the one that had supplied the electricity it had the duty to ensure that the said power is properly maintained and the electrified fences are properly kept with posters warning members of the public on the dangers of getting in touch with the fence.

36. There was no evidence to show that such safety measures were undertaken. Since there is no iota of evidence pointing at contributory negligence by the plaintiff and/or deceased I concur with the finding of the Learned Trial Magistrate that the applicant was wholly liable.”

Such was also the finding of GBM Kariuki J, as he then was, in Kenya Power & Lighting Co. Ltd. V. Joseph Khaemba Njoria [2005]eKLR.

The appellant in this case has not demonstrated that either the 1st Respondent or his deceased son contributed to this unfortunate incident. Like the trial magistrate I am also not persuaded that there is evidence on a balance of probabilities to prove that the 2nd Respondent owned that illegal installation. I therefore find the appellant wholly liable.

As for the damages awarded I am not persuaded that there was any error of principle in assessing the same and none has been pointed out to me in the appellant's submissions. The award is therefore upheld and this appeal is dismissed with costs to the Respondents. It is so ordered.

Signed, dated and delivered at Kisumu this 12th day of October 2017

E. N. MAINA

JUDGE

In the presence of:-

Mr. Bagada for the Appellant (Holding Brief for firm of Menezes & Co. Advocates

Mr. Omondi T for the 1st Respondent

Mr. Nyanga for 2nd Respondent

Serah Sidera – Court Assistant