[2022] KEHC 14702 (KLR)

Kenya Power & Lighting Company Limited v Mutembei (Civil Appeal E033 of 2022) [2022] KEHC 14702 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14702 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E033 of 2022

TW Cherere, J

November 3, 2022

Between

Kenya Power & Lighting Company Limited

Appellant

and

Stephen Mutembei

Respondent

(Being an Appeal from the Judgment and Decree in Maua CMCC E008 OF 2021 by Hon. T.Gesora (CM) on 17th February, 2022)

Judgment

1. By a plaint amended on June 29, 2020, Stephen Mutembei (Respondent) sued Kenya Power & Lighting Company Limited (Appellant) in the lower court claiming damages for injuries he allegedly suffered on February 19, 2020 when he was electrocuted allegedly due to the negligence of the Appellant. Respondent specifically sought the following reliefs:1. General damages for pain, suffering and loss of amenities2. Special damages3. Future medical expenses4. Costs of the suit and interest

2. Defendant/Appellant filed by its statement of Defence dated February 26, 2021 denied and pleaded the common law doctrine Volenti non fit injuria.

3. After the hearing, the trial court found Appellant liable at 100% and awarded the Respondent an all-inclusive sum of KES. 20,000,000/-.

The Appeal 4. The Appellant being dissatisfied with the lower court’s decision preferred this appeal and set out 5 grounds which are mainly liability and quantum. This appeal was argued on the basis of written submissions which both parties dutifully filed.

Analysis and Determination 5. This being the first appellate court, its duty is to reevaluate the evidence and come up with its own conclusions but also bear in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. See Peters v. Sunday Post Limited (1958) EA at Pg. 424).

6. In determining this appeal, I shall consider each of the 5 grounds of appeal as follows.

1. Liability 7. Plaintiff testified that on or about February 19, 2020, he was riding a motor cycle along Meru-Maua Road and on reaching Gikurune area, an electric cable fell and electrocuted him causing him serious burns. Defendants witness stated that the scene of the accident was visited and it was confirmed that an electric pole with high voltage electricity conductors was lying across the road. The witness blamed the fall on heavy rains and vandalism which facts were not pleaded.

8. I have considered the evidence on record. It is not disputed that Appellant is the sole installer, distributor and supplier of electric energy in Kenya. Appellant has a statutory duty of supervising, inspecting and maintaining its electric installations and this calls for a high degree of vigilance on its part in order to avert accidents.

9. The evidence on record, I find that the trial magistrate rightly found that Appellant exposed Respondent to danger by failing to maintain its installations. The finding that Appellant was 100% liable for the accident is upheld.

Quantum 10. Quantum is a matter of judicial discretion which can only be interfered with if the court is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. (See MbogovShah (1968) EA 93 and Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor, No. 2 [1987] KLR 30).

11. At the hearing, the Respondent prayed for a total of KES. 28, 300,000/- quantified as KES. 5 million general damages, KES. 2 million lost earnings and KES. 20,300,000/- for future medical expenses. Appellant on the other hand offered KES. 3,300,000/- which include KES. 1,700,000/- general damages, KES. 920,000/- future medical expenses, KES. 700,000- for lost earnings and KES. 10,000/- special damages. Both parties cited various authorities in support of their propositions.

12. As stated at paragraph 1 of this judgment, Respondent’s claim was specified as follows;1. General damages for pain, suffering and loss of amenities2. Special damages3. Future medical expenses4. Costs of the suit and interest 13. Respondent having sought specific relief, it was expected of the trial magistrate to specifically state which of the relief had been proved and how much had been awarded under each heading.

14. Under section 3 of the Administrative Action Act No. 4 of 2015 any person performing a judicial function under the constitution or written law pursuant to section 4 (2) is under a legal duty to give written reasons for any decision reached in the course of a judicial process.

15. It is therefore trite that court provide reasons for judgments/rulings or decisions as a duty to the public and to explain why the parties won or lost. In our context giving reasons in any judgement or ruling by judicial officers is both a constitutional and legal duty. (See K. Mberia & Partners Advocates v Property Reality Limited [2018] eKLR).

16. The rationale for giving reasons in a judgement or ruling or decision was espoused in the persuasive authority in the case of SoulemezisversusDudley (Holdings) PTY Limited, 1987 10 NS WLR 247, 279 where MC Hugh JA held as follows:“The giving of reasons for a judicial decision serves three purposes:First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the Judge’s decision. As Lord Macmillan has pointed, the main purpose of a reasoned judgement is not only to do but seem to do justice. Secondly, the giving of reasons furthers judicial accountability. A requirement that Judges give reasons for the decisions, grounds of decision that can be debated, attacked and defended – serves a vital function in construing the Judiciary’s exercise of power. Thirdly, under the common law system of adjudication, courts not only resolve disputes, they formulate rules for application in future cases.”

17. In the case of CommonwealthversusPharmacy guild of Australia 1989 91 ALR 65; 68, the court held that:“The provision of reasons is an important aspect of the tribunal’s overall task. Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal’s conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the tribunal’s reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration. There is yet a further purpose to be served in the giving of reasons. An obligation to give reasons imposes upon the decision-maker an intellectual discipline. The tribunal is required to state publicly what its reasoning process is. This is a sound administrative safeguard tending to ensure that a tribunal such as this properly discharges the important statutory function which it has.”

18. In the final paragraph of the judgment, the trial magistrate stated as follows:“I enter judgment for the plaintiff against the defendant in the sum of KES. 20,000,000/-. The sum is inclusive of costs.”

19. It is apparent that the learned trial magistrate fell into error when he failed to provide reasons for the award of KES. 20,000,000/- as an all-inclusive sum.

20. For the reasons given on the foregoing analysis, I make the following orders:1. The appeal on liability fails2. The appeal on quantum succeeds3. This file shall be transmitted to Hon. T. Gesora (CM) at Maua Chief Magistrate’s Court for the purpose of specifically quantifying the Respondent’s award4. The orders of stay of execution granted on May 18, 2022 shall apply to the sum that will be quantified under Order No. 2 above pending further orders of the court5. Mention on December 14, 2022 for directions

DATED AT MERU THIS 03RD DAY OF NOVEMBER, 2022. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant - Mr. Kimaita for Wambugu & Muriuki & Co. AdvocatesFor Respondent - Ms. Asuma for Mutembei & Kimathi & Co. Advocates