[2017] KEHC 328 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CIVIL APPEAL NO. 9 OF 2008

KENYA POWER &LIGHTING

COMPANY LTD...............................................APPELLANT

-VERSUS-

ZUBEDA BAISHE ATHMAN

HUSNA MOHAMED ABDALLA

HALIMA SHARIFF ATHMAN

HAMZA SHARIFF ATHMAN

(As Administrators of the Estate ofIDRISS MOHAMED

HAJI (now deceased)..................................RESPONDENTS

(Being an appeal from the Judgment and Decree of the

Honourable C Ochara – RMMalindi deliveredon

the 27th November 2007in PMCC NO.99 of 2000)

J U D G M E N T

On 20th March 2000, the appellant's staff disconnected power at the respondent's residential house. The two parties had a power supply contract under account numbers 038466-01. The respondent filed civil suit number 99 of 2000 before the Principal Magistrate's court in Malindi and obtained orders directing the appellant to restore the power supply. The trial court subsequently awarded the respondent kshs.150,000/= as damages for the loss of power for the days the appellant disconnected the supply.

It is the decision of the trial court to award the sum of kshs.150,000/= as damages which is the subject of this appeal. There are three grounds of appeal namely;-

1. The trial court erred in law and fact in awarding kshs.150,000/= as general damages.

2. The trial court erred in law in awarding kshs.150,000/= as general damages which award is manifestly excessive.

3. The trial court failed to consider the law as regards awarding of general damages.

Mr. Kiarie Kariuki, counsel for the appellant submit that the appeal is essentially on quantum as per the Memorandum of Appeal. Counsel submit that the trial magistrate erred in awarding general damages for breach of contract. It is contended that the only damages that a court can award for breach of contract are special damages which must not only be pleaded but must be strictly proved. The evidence showed that only kshs.3,300/= was paid by the respondent prior to the reconnection of the electricity. The pleadings did not make a claim for special damages. General damages are not normally granted in a breach of contract claim. Counsel relies on the case of DHARAMSHI -V- KARSAM [1974] E.A. 41and that of KENYA POWER & LIGHTING COMPANY LTD -VS- ABEL M MOMANYI BIRUNDU, KISUMU CIVIL APPEAL NO. 30 OF 2013 (C.A.).

Mr Mouko counsel for the respondent, maintains that the findings of the trial court are well founded. Counsel submit that the appeal is defective for lack of certified copy of the decree. The appellant unlawfully disconnected the respondent's power alleging that the metre was tempered with. The tampered metre was not produced in court. The respondent was forced or blackmailed into signing a purported indemnity form to enable the appellant reconnect the power. The damages pleaded by the respondent were not for breach of contract.

Mr. Mouko relies on the book on Damages by MCGregor; sweet and Maxwel, 18th edition at paragraph 11-001 where the author states as follows;-

“It can be confidently be said that today exemplary (also referred to as punitive) awards are possible across the whole range of torts. Provided always that the is unacceptable behaviour on the part of the defendant, behaviour that displays features which merit punishment by way of malice, fraud, cruelty, insolence and the like, there is no tort where the writ of exemplary damages will not run”.

This is a first appeal and this court is expected to evaluate the evidence adduced before the trial court and make its own decision. Only two witnesses testified for the respondent. IDRIS MOHAMED HAJI (now deceased) informed the court that his power was disconnected on 20/3/2000. it was alleged that his metre had been tampered with. The power was disconnected at 4. 10pm. He went to the appellant's offices but it was late and was told to go the following day. He went back the following day but was told to pay kshs.3,300/= before the power could be re-connected. He was made to sign a liability for damage form. He paid the money on 21/3/2000 and signed the form. On the same day he wrote to the appellant protesting the way the matter was handled. He also wrote to the Electricity Regulatory Board declaring a dispute with the appellant.

It is witness's evidence that on 24/3/2000 he filed the case before the trial court. Another metre was installed on 24/3/2000. He was inconvenienced as he had electrical equipments. His children could not study. Power was restored on 24/3/2000.

NELSON GAITHO GICHU testified for the appellant. His evidence is that on 20/3/2000 he was on routine inspection. He went to the respondent's premises at around 4. 00pm. He found the metre had broken seals. He raised an Installation Inspection Report and left the document with a lady in the home. He disconnected the supply and left. The respondent was expected to pay kshs.3,300/= to meet the cost of another metre. Once the metre is tampered with, its accuracy cannot be ascertained. The respondent was not shown the tampered metre. The witness went with the metre.

The appeal is grounded on the damages awarded to the respondent. There are two main issues namely

1. No damages could have been awarded.

2. The amount awarded is excessive

It is contended that this was a contract of indemnity. The respondent ought to have specified his damages in the pleadings. No specific amount of damages was pleaded. The trial court could not have awarded the sum of kshs.150,000/= as general damages.

In the case of DHARAMISHI -VS- KARSAN (Supra), The Court of Appeal for East Africa held that general damages are not allowable in addition to the quantified damages. In that case the plaintiff sought damages for breach of contract. The plaintiff was contracted to construct a building at a cost of kshs.92,500/=. He was evicted from the site before completion. He had by then been paid kshs.75,205. 60 He filed suit claiming the balance of kshs.17,294. 40, kshs.1,500/= being damages for breach of contract, kshs.,3500/= being damages for for detention of his working tools and kshs.9,550/= being the value of the detained tools. The court of appeal removed the award of kshs.1,500/= being damages for breach of contract.

The case of Kenya Power and Co. Ltd V Abel M. Momanyi Birundu has been cited. In that case, the court of appeal reversed an award of kshs.200,000/= which I awarded the respondent due to disconnection of his power. The Court of Appeal held that the amount was not specifically pleaded and could not therefore be awarded.

In his plaint dated 23/3/2000 the plaintiff sought for an order of Injunction, General and punitive damages plus costs. There was no claim for special damages. Mr. Kiarie maintains that the appeal is mainly on the award of the damages. The evidence establish that the disconnection of the power was wrongful. The respondent had not tampered with the metre. He had paid all his bills. He was willing to have the metre subjected to proper check so that it could be established if the metre was tampered with or that he was being under charged. There is no contention that the trial court erred in faulting the appellant for the disconnection.

The contract to supply power between the parties cannot be held to be a contract of indemnity. This is purely a contract to supply power. The appellant being a monopoly is expected to supply power to its customers. In the event of breach of the contract then the customer is entitled to claim damages for the breach. In this case, the respondent could have claimed specific damages like cost of alternative power used like a generator or candles during the time he was out of power. Apart from special damages, my view is that the customer is entitled to general damages for the inconvenience caused due to the illegal disconnection. The respondent's children could not study. He told the court that he could not use his electrical appliances. If there were items in a fridge they could no longer be retained as there was no power. He could not conduct his prayers at night as per his evidence. It is clear that the disconnection was done hurriedly and the respondent was called upon to pay ksh.3,300/= before the power could be reconnected.

In the Daramshi case (supra), the Court of Appeal held that damages for the loss of working tools could be awarded especially if it could be shown that the tools could be used for hire. The claim could not be restricted to the unpaid balance of the construction costs.

Most Insurance contracts are indemnity agreements except life policies. A contract to supply power is purely one to supply electricity to the customer. There is no indemnity involved. If the power is unlawfully disconnected then the power supplier is open to a claim for damages. Who pays for the discomfort caused to the customer due to the disconnection. Living in darkness for the period power is disconnected. Living without the electricity appliances such as television, fridge, radio or cooker. Lack of such appliances causes discomfort in life where one was already using them. How can the customer be restituted to the original position. The only way that can be done is through award of general damages.

Given the evidence on record, I do find that the respondent was entitled to an award of damages. The plaint pleaded for general and exemplary damages. The trial court correctly awarded general damages. The respondent's claim could not be limited to a refund of kshs.3,300/=. He was entitled to general damages. This is in line with the maxim that where there is an injury there is a remedy.

The next issue is whether the damages awarded is excessive. The respondent lost power from 20/3/2000 to 24/3/2000. This is a period of four days. If we pro-rate the damages awarded for a period of 30 days, a sum of kshs.1,125,000/= could be awarded. The sum of shs.150,000/= translates to kshs.37,500/= per day. I do find that the award is quite excessive. Had the respondent used a generator for the four days he lost power, he couldn't have spent kshs.150,000/=. If there was a generator, the other losses like non-utilization of the electrical appliances could not have resulted. I am satisfied that the award is excessive. I do set aside the award of kshs.150,000/= and replace it with kshs.50,000/=.

In the end, the appeal is allowed. The damages awarded is set aside and replaced with an award of kshs.50,000/=. The dispute has taken long to settle. The respondent shall have the costs and interest awarded by the trial court. The parties shall meet their own costs of the appeal.

Dated and signed at Marsabit this day of 2017.

SAID CHITEMBWE

JUDGE

Dated, signed and delivered at Malindi this 11th day of July, 2017

WELDON KORIR

JUDGE