Kenya Power and Lighting Company Limited v Sal-Yut Services Limited (Tribunal Case E058 of 2025) [2026] KEET 14 (KLR) (28 May 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: ENERGY AND PETROLEUM TRIBUNAL CASE NUMBER: EPA/E058/2025 KENYA POWER AND LIGHTING COMANY LIMITED VS SAL-YUT SERVICES LIMITED JUDGMENT # A. BACKGROUND 1. This Appeal was lodged by way of a Memorandum of Appeal dated 9th November 2025 following the Appellant’s dissatisfaction with the decision of the Energy and Petroleum Regulatory Authority (“EPRA”) rendered on 11th November 2025 in dispute No. EPRA/PEACP/4/64053548/2025. 1. Specifically, EPRA determined that the Appellant herein was responsible for the frequentpower surges and transformer overload that caused damage at the Respondent’s premises and, amongst other orders, directed the Appellant to pay the Respondent special damages in the sum of Kshs. 1,410,494/= and general damages in the sum of Kshs. 2,000,000/=. 2. The subject appeal is brought against the whole of the EPRA decision and lists twenty-five(25) grounds of appeal. The Appellant prayed that this Tribunal allow its appeal as set out in the Memorandum of Appeal. 3. On 9th April 2026, the Tribunal issued directions to the parties regarding the disposal ofthe appeal by way of written submissions. The record shows the Appellant had filed its written submissions dated 2nd April 2026, and the Respondent subsequently filed its Response to the Memorandum of Appeal dated 15th April 2026 and written submissions dated 16th April 2026. 4. For the avoidance of doubt and to reiterate the evidentiary basis of this Judgment, theTribunal’s analysis relied on the Appellant’s Record of Appeal (undated and accepted without objection), the Respondent’s Response to the Memorandum of Appeal dated 15th April 2026, the Appellant’s written submissions dated 2nd April 2026, the Respondent’s written submissions dated 16th April 2026. # B. THE APPELLANT’S CASE 1. The Appellant seeks to set aside EPRA’s decision on, amongst other grounds, that thedecision was plagued with procedural unfairness, bias, and the damages awarded were unsupported by evidence and arrived at in reliance on electronic evidence that was inadmissible for lack of accompaniment of a certificate of electronic record pursuant to the provisions of the Evidence Act. 2. The impugned decision, which the Appellant alleges was the result of procedurally andsubstantively flawed proceedings, was made pursuant to a dispute between the two parties that began with a client-customer relationship in 2016. The Respondent is a registered owner of the property known as Nairobi/Block 107/1129, consisting of 17 plots, including the 74 residential apartments known as Salute@Greenpark Apartments located in Umoja Zone 9, Donholm/Greenspan area, Nairobi County(“the Respondent’s premises”). 3. That on 12th February 2016, at the Respondent’s request, the Appellant connected theproperty to the electricity power grid by installing a transformer, which the Respondent contended was for their exclusive use per a quotation issued by the Appellant. 4. The Respondent contended that sometime in 2021, the Appellant connected othercustomers to the same transformer contrary to the stipulation that the transformer was for exclusive use by the Respondent’s premises. Consequently, the Respondent experienced frequent power outages, voltage surges, and power fluctuations that led to the malfunctioning of a lift, damage to wiring, and fire on the Respondent’s premises on separate occasions. Thereafter, the Respondent lodged a series of complaints with the Appellant, which were not acted upon, resulting in the dispute before EPRA. 5. On their part, the Appellant contended no wrongdoing and primarily submitted that thecauses of the power surges complained of were both external and internal factors, and that the transformer was properly set up to serve the Respondent on the one part and the additional customers on the other part. Also, the external factors contributing to the power surge, such as lightning, were beyond their control. 6. The EPRA decision inter alia held the Appellant liable for the frequent power surges andtransformer overload that caused damage at the Respondent’s premises, and awarded general and special damages. 7. This appeal contends that EPRA’s decision is flawed for the reasons that among othergrounds, EPRA:- 8. Relied on unverified electronic evidence (videos and photo evidence) without certificatesof electronic record; 9. Conducted the hearing and proceedings in a biased, irregular, and unfair manner; 10. Failed to recognize that the power surges and failures were a result of internal factors. 11. Failed to consider the evidence indicating that internal factors caused the losses at theRespondent’s premises. 12. Ignored the Respondent’s failure to prove their case on a balance of probability; 13. Awarded damages disproportionate to the alleged losses and unassessed by a lossadjuster. 14. Referred to dates and incidents irrelevant to the dispute. # C. THE RESPONDENT’S CASE 1. In opposition to the Appeal, the Respondent in the Response to the Memorandum ofAppeal refutes each ground of the appeal as set out in the Memorandum of Appeal. In summary, regarding jurisdiction and procedural fairness, the Respondent argues that EPRA’s decision was lawful, procedural, and within jurisdiction, guided by Section 167(e) of the Energy Act (Cap 314 Laws of Kenya). 2. Further, the Respondent counters the Appellant’s challenge to electronic evidence onmultiple grounds. First, the Respondent contend that EPRA lawfully considered both the electronic evidence and the Certificate of Electronic Evidence produced. Second, the Appellant did not object to the mode of production during trial or submissions, and is therefore estopped from raising the objection now. Third, the video footage was admitted only after leave was granted and a certificate of production filed. 3. Connected to the issue of substantive merits and corroborating evidence, theRespondent maintains that the EPRA decision was based on a thorough analysis of facts and evidence on a balance of probabilities, with the Respondent’s evidence and testimony outweighing that of the Appellant. 4. The causal chain was established through an electrical fault and damage investigationreport by a duly licensed electrical contractor (Davetech Agency Limited), supported by bills of quantities and quotations. The transformer side was identified as the clean upstream origin of the incidents, not internal appliances. 5. Overall, the Appellant failed to prove consistent maintenance and servicing of the powerlines and transformer, and being a monopoly, cannot rely on procedural technicalities to evade obligations under Article 46 of the Constitution, 2010 and the Consumer Protection Act, 2012. 6. The Respondent prays that the Appeal be dismissed with costs, that EPRA’s decision beupheld in its entirety, and the Tribunal grant such further orders as it deems fit. # D. ANALYSIS AND DETERMINATION 19. The Tribunal has carefully considered the submissions by Counsel of the respective parties together with the authorities cited in support of their respective positions. The central issues for determination are: 1. Whether the Appeal filed is valid and properly placed before the Tribunal. 2. Whether the Respondent discharged their burden and standard of proof for the award ofgeneral and specific damages. 3. Whether the EPRA decision was arrived at in a manner contrary to procedural fairness,principles of natural justice, and electronic evidence thresholds iv. Which party should bear the costs of the Appeal. **I. Whether the Appeal filed is valid and properly placed before the Tribunal.** 1. In its Response to the Memorandum of Appeal dated 15th April 2026, the Respondentraised a preliminary issue contending that the appeal is incompetent on the ground that it was purportedly lodged before the delivery of the decision by EPRA. 2. The Tribunal notes that although the Memorandum of Appeal filed by the Appellant isdated 9th November 2025, it expressly seeks to challenge the determination rendered by EPRA on 11th November 2025. It is therefore apparent that the date appearing on the Memorandum of Appeal was a mere typographical error. Can such an error defeat the appeal? We do not think so. In any event, Article 159(2)(d) of the Constitution of Kenya, 2010 enjoins courts and tribunals exercising judicial authority to administer justice without undue regard to procedural technicalities. 3. The Tribunal further finds that the typographical error is excusable and that theRespondent has neither demonstrated nor established any prejudice suffered as a result of the error. 4. Accordingly, the Tribunal concludes that the typographical error appearing on theMemorandum of Appeal is curable, occasioned no prejudice to the Respondent, and did not in any way subvert the ends of justice. Notably, the Appeal was lodged within the stipulated thirty (30) days from the date of the EPRA decision. This Tribunal is therefore properly seized of the Appeal pursuant to sections 23, 24, and 36(4) of the Energy Act (Cap. 314, Laws of Kenya), which confer jurisdiction upon this Tribunal to determine the present appeal. # II. Whether the Respondent discharged their burden and standard of proof for the award of damages 1. Having established the validity of the Appeal, we now turn to examine the substantiveissues raised in this Appeal, whether the Respondent discharged the requisite burden and standard of proof to justify the award of damages in the proceedings culminating in the determination rendered by EPRA. 2. It is the Appellant’s submission that the Respondent failed to prove the claim for specialdamages strictly. In particular, the Appellant argues that the production of a SWIFT transfer confirmation, without corresponding receipts, invoices, or other supporting documentary evidence, did not meet the legal threshold required for proof of special damages. 3. Concerning the award of general damages, the Appellant, while relying on the Court ofAppeal decision in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR), submitted that in claims relating to material damage, a party is obligated to demonstrate the extent of the damage suffered, the cost of restoration or repair, and to produce an assessor’s or loss adjuster’s report in support of the claim. The Appellant therefore contends that, in the absence of a damage assessment report prepared by a qualified loss assessor or loss adjuster, the Respondent failed to prove the alleged loss and damage sufficiently. 4. It is trite law that he who alleges must prove as captured under Section 107 (1) of theEvidence Act, (Cap 80 Laws of Kenya), which provides that:- “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 1. It is equally settled law that special damages must not only be strictly pleaded but alsobe strictly proved. In support of the claim for special damages, the Respondent engaged Davetech Agency Limited, who prepared an investigation report dated 14th June 2023, attaching photographs of the incident, bills of quantities relating to the damage sustained, and supporting documentation. The Respondent also produced in evidence receipts from Nairobi City County for Kshs 1500/- together with a SWIFT transfer from Family Bank for Kshs. 1,408,994/=. The foregoing evidence supported the claim for special damages in the sum of Kshs. 1,410,494/= awarded by the Authority. 2. Having reviewed the evidence placed before it, the Tribunal is satisfied that theRespondent discharged the requisite burden of proof in support of the claim for special damages. The Respondent filed a complaint detailing the grievances against the Appellant, including fire incidents in the Respondent’s premises and established a consistent pattern of power surges and damage attributed to the transformer overload, as set out in the investigation report prepared by Davetech Agency Limited. We note that this evidence was not rebutted by the Appellant. The Tribunal therefore finds that the claim for special damages was sufficiently proved on a balance of probabilities. 3. As regards the award of general damages, it is well established that the assessment ofthe quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially, having regard to the facts of the case and within the context of existing legal principles. 4. An appellate court or tribunal will ordinarily not interfere with the exercise of judicialdiscretion unless it is shown that the judge misdirected himself in some matter and as a result, arrived at a wrong decision, or that the judge was clearly wrong in the exercise of discretion. This position is well articulated in Mbogo and Another v Shah [1968] EA 93. In the present Appeal, the Appellant did not place before the Tribunal any comparable authorities or awards that would justify interference with the amount awarded in the EPRA decision. 5. The award of general damages in the sum of Kshs. 2,000,000/= was within EPRA’sdiscretion, supported by evidence of repeated incidents, fire damage, and the substantial losses suffered at the Respondent’s premises. 6. The Tribunal therefore finds that the Respondent discharged its burden of proof asregard the award of special and general damages. # III. Whether the EPRA decision was arrived at in a manner contrary to procedural fairness, principles of natural justice, and electronic evidence thresholds 1. The Appellant contends that reliance on uncertified electronic evidence constituted amaterial procedural irregularity that undermined the fairness of the proceedings, while the Respondent’s position is that the Appellant is estopped from raising the issue at this stage and, in any event, the issue was cured by way of filing of a certificate of electronic record after the hearing held by EPRA where leave to file the required certification was sought and granted. 2. The Tribunal has carefully considered the Appellant’s argument that the electronicevidence relied upon by EPRA was not accompanied by a certificate under Section 106B of the Evidence Act (Cap 80 Laws of Kenya) and, in doing so, reviewed both the typed proceedings and the EPRA decision. The typed proceedings in the Appellant’s record of Appeal seem to be incomplete, and therefore cannot confirm whether leave to file a certificate of electronic record was sought and granted to the Respondent in the proceedings before EPRA. 3. Specifically, the Tribunal notes that there is no reference anywhere in the 11-page EPRAdecision on whether leave to file a certificate of electronic record was granted or whether one was filed, even though video and photo evidence were relied on in arriving at the decision. The Respondent has not produced any separate document evidencing leave to file the certificate of electronic evidence, or whether it was granted and whether they were filed. In these circumstances, the Tribunal is unable to confirm as a matter of fact that the procedural requirements of Section 106B of the Evidence Act (Cap 80 Laws of Kenya) were met. 4. While the Tribunal acknowledges the importance of procedural regularity in thereception of evidence, it also notes that the purpose of Section 106B is to ensure the authenticity and reliability of electronic records. 5. Where, as here, the contents of the electronic evidence are independently corroboratedby witness testimony and other documentary evidence, the absence of a certificate does not render the evidence inadmissible or the proceedings fundamentally flawed. 6. The Appellant failed to demonstrate that the lack of a certificate resulted in anyprejudice or that the corroborating evidence was itself unreliable. The Tribunal has examined the totality of evidence reviewed by EPRA and the video and photo evidence, which the Appellant contends was uncertified, is corroborated by the following:a) Davetech Agency Limited technical investigation report. 7. The Safety, Health & Environment (SHE) incident forms. 8. Various extensive correspondence between the parties concerning the incidents. 9. The Appellant’s admission during EPRA proceedings regarding load imbalance on therelevant transformer. 10. Bill of quantities and quotations for damages. 11. The Appellant had the opportunity to challenge the corroborating evidence in its writtenresponse to the complaint, during cross-examination of the Appellant’s witness, by providing contradicting testimony through its own witness. The failure to successfully challenge this evidence cannot in our view be cured by alleging a technical defect. 12. Also, the Tribunal has considered the Respondent’s argument that the failure to includea certificate of electronic evidence is not fatal and curable as was the holding in Mombo v Nyoike (Environment & Land Case 53 of 2020) [2022] KEELC 2382 (KLR) (30 June 2022) (Ruling). While the Tribunal cannot confirm that the defect was in fact cured in this case, the Tribunal accepts the broader principle that the absence of a certificate of electronic evidence does not automatically render the evidence or proceedings fundamentally flawed. 13. Similarly, the High Court in Mable Muruli v Wycliffe Oparanya & 3 others [2013] eKLRheld that the absence of a certificate is a mere procedural technicality that ought not to obstruct the course of justice, a position reinforced by Article 159(2)(d) of the Constitution. Specifically, J. Chitembwe held: “The essence of justice is that a party should be able to approach the court and present his or her case. Such presentation should be supported by his or her oral evidence, electronic and documentary evidence. On the other side the defendants or respondents should also be accorded an opportunity to produce their evidence. By the end of the of the day each party should be able to go back home satisfied that they have presented their case to the court and the court was able to take their evidence. This is in line with the provisions of Article 50 which gives the right to every person to have any dispute resolved by the application of the law in a fair and public hearing before a court. Shutting out the electronic evidence will make the petitioner go back home while nursing the notion that the court did not take her evidence. In Presidential Election Petition No. 5 of 2013 Nairobi the court was able to view electronic evidence and such issues as the authenticity of the evidence did not arise.” 1. More recently, the Environment and Land Court in Kahira v Varam & 2 Others(Environment and Land Case Civil Suit 139 of 2019) [2023] KEELC 16287 (KLR) (21 February 2023) (Ruling) held that the failure to file a certificate of electronic evidence is not fatal, as Section 78A of the Evidence Act (Cap 80 Laws of Kenya) allows electronic messages and digital materials to be admitted without strict certification provided conditions of reliability and integrity are met. In arriving at this conclusion, the Kahira case relied on Ntarangwi M’Ikiara v Jackson Munyua Mutuera [2018] eKLR, which cited the case of Evangeline Nyegera (suing as the legal representative of Felix M’Ikiugu alias M’Ikiugu Jeremiah M’Raibuni (deceased) vs Godwin Gachagua Githui, where the Court of Appeal Civil Appeal No 28 of 2016 held that: “The test for admission of evidence is relevancy. There is need for fair determination of the dispute in the suit which may not be possible if a party is denied the opportunity to adduce relevant evidence. We hold the view that the appellant should not be barred from adducing secondary evidence through copies of the original documents. It is imperative that the nature of the documents, their number and relevance is shown. The other party will have an opportunity to cross examine on veracity and legitimacy if it be necessary” 1. Article 159(2)(d) of the Constitution of Kenya, 2010 mandates that justice beadministered without undue regard to procedural technicalities. In the same vein, it is the Tribunal’s understanding that the purpose of Section 106B of the Evidence Act, Cap 80 Laws of Kenya, is to ensure authenticity, credibility and reliability of evidence and not to act as a technical bar. 2. The Appellant did not demonstrate that the video and photo evidence used in the EPRAproceedings were tampered with, inaccurate, a misrepresentation of facts, or unreliable in any way. As already observed here, the Appellant had every opportunity to cross-examine the Respondent’s witness on all the evidence presented before EPRA and to challenge the other corroborating evidence, including the Davetech report. 3. Having failed to disprove the Respondent’s case on its merits, the Appellant cannot nowinvoke a procedural challenge to overturn the EPRA decision, especially as this Appeal fails to show that the uncertified electronic evidence was the sole or determinative basis for EPRA’s determination. 4. Altogether, the Tribunal is unable to make a finding that the principles of natural justiceand fairness were breached in the proceedings leading to the EPRA decision as alleged by the Appellant. As far as the Tribunal can gather from the record, parties were afforded equality of arms at every turn, with the opportunity to make their case, adduce evidence, and cross-examine. The Appellant has not specifically identified what “numerous affidavits” “additional documents” and “material” were filed by the Respondent after the closure of pleadings. The Appellant’s evidential burden on this issue remained undischarged. # IV. Costs 1. Finally, on the issue of which party ought to bear the costs of the Appeal, the Tribunalnotes that it is trite law that costs ordinarily follow the event, but courts retain discretion. Notably, guided by the holding in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sup. Ct. Petition No. 4 of 2012; [2014] eKLR, the award of costs must be guided by fairness and public interest, and is compensatory and not punitive. 2. We note that while the Appellant has failed to substantiate their grounds of appeal,particularly as to the issue of awarded costs being unsupported by properly submitted evidence and the issues of fairness of the proceedings, this Tribunal exercises its discretion in making no order as to costs. # E. DISPOSITION 50. In light of the above, the Tribunal finds no merit in this Appeal. The decision of the Energy and Petroleum Authority issued on 11th November 2025 is upheld in its entirety, with no order as to costs. Dated and delivered at Nairobi this 28th day of May, 2026. ………………………………… Mrs. Doris Kinya Mwirigi Vice Chair person ………………………………. Eng. Buge Hatibu Wasioya Member ………………………………. Mr. Feisal Shariff Ibrahim Member SIGNED BY/FOR: | | | --- | | **★ THE JUDICIARY OF KENYA ★** **HON. DORIS KINYA MWIRIGI** **BUGE HATIBU WASIOYA FEISAL SHARIFF IBRAHIM** ENERGY AND PETROLEUM TRIBUNAL ENERGY AND PETROLEUM TRIBUNAL Date: 2026-05-29 11:27:57 |