[2018] KEHC 5896 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 131 OF 2015

KENYA POWER & LIGHTING LTD..........................................APPEALLANT

VERSUS

STELLA MGENI ...........................................................................RESPONDENT

J U D G M E N T

1. On 4/8/2015, the Hon. Nyakweba, (Mr) RM, delivered a judgment by which he held the Appellant 100% liable and assessed damages in the global sum of Kshs.one million eight hundred thousand, (Kshs.1,800,000/=).

2. In coming to that assessment the court remarked and said:-

“On quantum of damages, the deceased was aged 14 years at the time. He died while undergoing treatment at the Coast General Hospital. I find that an award of Kshs.1. 8 million (Kshs.1,800,000/=) will be adequate compensation to the bereaved mother. This I am guided by the injuries sustained, the rate of inflation, the authorities cited; the defendant and the deceased minor by the disabled mother who is confirmed to a wheel chair and the lapse of time”.

3. From the four grounds of Appeal in the Memorandum of Appeal it is evident that the appeal is on both quantum of damages awarded as well as finding on liability. For ease of appreciating those grounds, the Appellant set out its complaint against the judgment as follows:-

i) The Learned Trial Magistrate erred in law and fact by basing his award on the injuries sustained by the deceased rather than deciding on the pleadings and the submissions presented before him.

ii) The Learned Trial Magistrate erred in law and fact by not applying the principles guiding awards under Fatal Accidents Act and Law Reforms Act and thereby awarding a baseless and unsubstantiated sum.

iii) The Learned Trial Magistrate erred in law and fact by making an award which was not within the limits of already decided cases of similar nature.

iv) The Trial Magistrate greatly misdirect himself in treating the submissions of the Appellant on liability very superficially thereby erroneously awarding at a wrong decision on liability.

4. At the hearing, Counsel for the Appellant grouped grounds 1,2 & 3 together and urged ground 4 separately.

5. For purposes of this judgment, I propose to determine the ground of Appeal touching on liability and thereafter tackle the aspect of the reasonableness and propriety of the assessment of damages.

The evidence adduced

6. The plaintiff side called two witnesses, the mother to the deceased who did not witness the incident and one Acharo Kamina Njoka who was said to have been at the scene and witnessed the incident. On its side the Appellant called one Augustus Wero, a team leader with the Appellant from emergency response.

7. The totality of the evidence of PW 2 and DW 1 is in agreement that on the material day an electric pole fell and injured one child. PW 2 Acharo Kamia Njoka said:-

“On 22/2/2011, I was outside Khalifa Morawe with Ali Omar at about 5pm. There were about 6 children playing and people repairing nets. After a while an electric pole fell, children ran but it fell on one child. The wires were hanging and sparking. They touched the child on the chest and the eyes. No tree fell”.

8. Then DW 1 on his part said:-

“On 22/2/2011, we were called to Kiembeni and told that an electric pole had fallen on a home. I went to the site and found an electric pole on a home and a tree branch also fallen. I enquired and was told that a child had been injured and taken to hospital. I had a brief out and people said the branch fell on the wire then caused the pole to fall because the pole was a bit rotten. The owner of the home wanted the pole to be removed but we were few and we needed back up”.

9. And on cross examination, the witness proceeded to say:-

“The pole was rotten. It was not yet replaced. There where rotten poles, we replaced four poles the next day. It was done by another team”.

10. From that evidence, that an electric pole fell and injured the deceased was not in contention. It was equally not contested that the pole was one to be maintained by the appellant statutorily under the Energy Act. On that duty to maintain the electric supply wire, it was evidence by the appellant evidence that the pole fell because it was “a bit rotten”.

11. Having considered the evidence adduced and in coming to his decision on liability, the trial court said:-

“I must point out that, the deceased succumbed to injuries sustained when the electric pole fell on him and its live wire electrocuted him. From the very circumstances of the case herein, the deceased minor did not in any contribute to the accident. It is the sole failure by the defendant to maintain safe electric pole that caused the pole to fall and injure the deceased. I find the defendant negligent for and hold it 100% liable for the accident loss and damage to the plaintiff”.

12. Now with that finding, is the Appellant justified to contend by ground of Appeal for that the trial court greatly misdirected self in treating the submissions of the Appellant on liability superficially and erroneously arriving at a wrong decision on liability?

13. The first point to be made clear is that cases are decided on the basis of facts and not submission. Submissions as known in law are the views of the counsel or litigant on the case present as looked in view of the law relied upon. Submissions are not evidence to form basis of a decision. While a trial court may be faulted for ignoring the law cited to it, it cannot be faulted for failing to follow the submissions. In Daniel Toroitich Arap Moi &another v Mwangi Stephen Murithi and another [204] KLR the Court of Appeal held that:

“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavoring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

14. Secondly, the responsibility of the Appellant as far as duty to maintain the electric supply lines is a matter of statutory obligation under the Energy Act. That law at Sections 51 & 52, dictate upon the Appellant, as a licensee, to maintain and keep maintained the electric supply lines and nothing in the act releases the licensee of any liability to an owner or occupier of land arising out of a defect to the electric line.

15. Additionally under the fifth schedule to the Act, there is provided the ‘form of license or permit’ which at clause 8 and 17 expressly make a licensee liable in both tort and contract and mandates it to carry out its operations to protect the health and safety of members of the public as may be affected by such operations.

16. Those provisions underline the fact that electric power has its inherent danger and pose harm if not carefully handled. In this matter, it being common ground that the electric poles were rotten, it follows that the Appellant failed in its duty to keep the lines in good state of repair and maintenance and it’s due to that failure that the pole carrying the wire fell and occasioned to the deceased the bodily injuries. For that reason, I find no reason to fault the trial court on his finding on liability.

17. In Kenya Power and Lighting Company Ltd vs Joseph Khaemba Njoria [2015] eKLR, the court held in similar Circumstances and said:-

“There can be no question that the power company (KPLC) has the responsibility to ensure that the power infrastructure it has installed in the country for purposes of electrification is properly maintained to prevent accidents”.

18. In this matter, I hold and find that a well maintained electric line does not just fall and injure even if fallen upon by a tree or a branch as alleged and never proved by the Appellant. The ground of appeal on liability fails and is therefore dismissed.

Was the assessment and award of damages reasonable?

19. The law on assessment of damages is that it invokes judicial discretion, is a difficult task[1] and an appellate court would not lightly interfere therewith unless it be shown that the trial court in coming to its assessment considered irrelevant issues or failed to consider relevant issues and thereby arrived at an assessment that was wholly and evidently to high and excessive or overly law as to amount to a complete erroneous estimate of damages[2].

20. Using such established principles and applying same to this appeal, I have noted that the trial court awarded the sum of Kshs.1,800,000/= to the bereaved mother rather than the estate. In coming to that sum the court disclosed having been guided by the injuries sustained, rate of inflation and the authorities cited. The lapse of time and the disabled mother’s condition of being confined to a wheel chair were equally taken into account. The conditions of the mother to the deceased was an irrelevant matter before the court. It was also not borne out by evidence that the deceased died while undergoing treatment in hospital. Those two facts alone are enough to interfere with the court’s decision.

21 The evidence availed by the plaintiff’s side was to the effect that having been injured the deceased was taken and admitted in hospital at Coast General Hospital between 22/2/2011 and 2/3/2011. The suit was filed on 16/8/2011 and the deceased died on 22/8/2011 during the pendency of the suit. The death necessitated the amendment plaint.

21. According to the death certificate, the cause of death was revealed as ‘intracranial brain abscess pressure’. That is a condition that connote infection of the brain caused by various pathogens.

22. There was scarce evidence adduced by the plaintiff to relate that disclosed cause of death and the accident of 22/2/2011. Therefore the plaintiff did not discharge his onus if it was her case that the death was a direct result of the accident without any interviewing factors.

23. It would have been important to call a medical expert or just some evidence to relate the death and the injury but that was not done. For that reason, I am unable to relate the cause of death and the accident and therefore I would rather consider that the deceased’s estate was entitled to some damages for injuries occasioned by the accident which were never contested but conceded.

24. Based on the medical document at pages 13, 14, 16 and 19, show that the deceased suffered multiple fracture of the ethmoid, nasal and maxillary bones leading to acute contusional hemorrhage on bi-frontal lobes with brain edema.

25. For those injuries he was hospitalized between 22/2/2011 and 2/3/2011. I consider the injuries to have been grave, extensive and traumatic if the duration of confinement in hospital is anything to go by.

26. Being a first appellate court with duty and mandate to re-appraise and re-examine the entire evidence and expected to proceed by way of retrial, and taking into account that the victim died some six(6) months thereafter, I do consider that the approach the trial court gave in assessing damages was erroneous and is subject to being upset. It was erroneous because that court proceeded as though the death had been linked to the accident. It had not been. It also took into account the physical conditions of the mother in assessing damages which I hold to have been an irrelevant matter.

27. Having concluded that the assessment of damages was erroneous I now set that award aside and award to the plaintiff the sum of Kshs.800,000/= being general damages for pains and suffering for the injuries suffered and pain endured by the deceased between the date of injury and the date of death. Such award shall attract interest at court rates from the date of judgment by the trial court till payment in full.

28. On costs, even though the Appellant has succeeded in having the damages reduced, it did not succeed on the limb on liability. Accordingly, I consider that no one side has fully succeeded or lost and I order that each party bears own costs.

Dated and delivered at Mombasa this 25th day of May 2018.

P.J.O. OTIENO

JUDGE

[1] Peter M. Kariuki v Attorney General [2014] eKLR

[2].Bashir Ahmed Butt –Vs- Uwais Ahmed Khan (1982 – 88) Kar 5