[2023] KEHC 25187 (KLR)

Kenya Power & Lighting Co Ltd v Ochieng (Suing as the administrator of the Estate of Shadrack Omollo) (Civil Appeal E045 of 2022) [2023] KEHC 25187 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25187 (KLR)

Republic of Kenya

In the High Court at Siaya

Civil Appeal E045 of 2022

DO Ogembo, J

November 9, 2023

Between

Kenya Power & Lighting Co Ltd

Appellant

and

Monicah Atieno Ochieng (Suing as the administrator of the Estate of Shadrack Omollo)

Respondent

(Being an appeal from the Judgment and decree of Hon. S.W. Mathenge, RM, in Bondo PMCC No. 97 of 2018 delivered on 17th August 2022)

Judgment

1. The Appellant, Kenya Power and Lighting Company Limited was said by the Respondent Monicah Atieno Ochieng (suing as administrator of the estate of Shadrack Omollo) in the above case for General and special damages, costs and interest. The claim was based both on the Fatal Accidents Act and the Law Reform Act, and arose from the death of the deceased Shadrack Omollo as a result of electrocution.

2. The trial court held the Respondent absolutely liable at 100%. A sum of Kshs. 2,534,928/= was then awarded. The Respondent has appealed to this court.

3. In the Memorandum of appeal dated 15-9-2022, the appellant has raised the following grounds:a.That the learned magistrate erred in law and in fact in finding the appellant 100% liable in negligence.b.That the learned trial magistrate erred in law and in fact in failing to find that the Respondent did not discharge the burden of proof placed upon him by the law.c.That the learned trial magistrate erred in law and in fact in shifting the burden of proof to the appellant.d.That the learned trial magistrate erred in law and in fact in completely ignoring the evidence of the appellant witnesses and thereby failed to take into account what ought to have been considered.e.That the learned trial magistrate erred in law and in fact in finding that the electric wires were sagging and pulling towards each other while the preponderance of evidence showed very opposite.f.That the learned trial magistrate erred in law and in fact in misapprehending, ignoring and downplaying of the appellant’s 2 witnesses and thereby failing to consider it.g.That the learned trial magistrate erred in law and in fact in failing to find that the electrocution was caused by the deceased’s negligence as shown by the evidence.h.That the learned trial magistrate erred in law and in fact in believing the evidence of the alleged eye witness which evidence was unreliable and biased, and whose alleged witnessing was vague.i.That the learned trial magistrate erred in law and in fact in finding that the appellant did not maintain the electric lines, thus causing the sagging while there was no evidence to that effect.j.That the learned trial magistrate erred in law and in fact in taking into account unpleaded issues and basing her decision on such unpleaded issues.k.That the learned trial magistrate erred in law and in fact in failing to find and apportion a greater liability upon the deceased.

4. The appellant has pleaded that this appeal be allowed and judgment on inability against the appellant be set aside, reviewed, varied and or be interfered with. The appeal is opposed.

5. Parties canvassed this appeal by way of written submissions. The appellant has submitted that PW2 the only eye witness gave unreliable contradictory and inconsistent evidence.

6. That such evidence cannot be relied upon. The case of M’tuamka M’marambii (suing as legal representative of the estate of Peter Miriti) Vs Board of Management Miathene High School [2020]eKLR was relied on. Also the case of James Tanyera Oluoch Vs General Motors EA Ltd and Another [2020]eKLR, where the court dismissed the appellants case on the basis that the only eye witness gave contradictory and conflicting evidence making him unreliable. And that the appeal, the decision of the trial court was upheld.The appellant also relied on Easy Coach Ltd Vs Gideon Otieno Oulu and Another [2021]eKLR amongst other users.

7. It was further submitted that it is not in dispute that the decased was electrocuted buut that the issue is whether the electrocution was due to negligence of the appellant. It was submitted that the burden of proof lay on the Respondent. The case of M’irvanj Muchai vs Broadways Bakery & Another(1996)KLR was cited that where no negligence is proved, the case is to be dismissed.

8. On the defence case, it was submitted that DW1 and DW2’s evidence reveal that when they went to the scene the following day, the appellant’s (KPLC) infrastructure was intact with a sisal tree still hanging from the electric cables which they removed. That the accident was caused by the deceased’s own act of cutting down a sisal plant causing it to fall on the electric cables.

9. On the other hand, the Respondent submitted that the trial court addressed itself to all the relevant facts and considered the evidence presented before it extensively and that there was no misapprehension of any facts or evidence as alleged by the appellant.

10. This court is sitting on this matter as a first appellate court. The jurisdiction of this court is well settled. In Simon Taveta Vs Mercy Mutitu Njeru[2014]eKLR, the Court of Appeal held;“As this is a first appeal, it is our duty to analyse, re-assess the evidence on record and reach our own conclusions in this matter.”The court relied on Selle Vs Associated Motor Boat Co. (1968)EA 123.

11. The court therefore has a duty to reconsider the evidence before the trial court and re-evaluate the same so as to come up with its own determination.

12. The record of proceedings of the lower court shall show that PW1, Monica Atieno Ochieng gave evidence that on 28-2-2018, her husband the late Shadrack Ochieng had gone to cut trees in the shamba near an electricity pole and he died due to electrocution. This witness did not witness the incident. And PW2 Meshack Odhiambo Onono, gave evidence that on the material date on 28/2/2018, he had been outside his home about 20 steps from where his late brother Shadrack. His testimony was that the appellant did not do their job causing the death of Shadrack. That he blames the appellant because the cables were sagging almost 10 metres.

13. He confirmed that he was the only eye witness present at the scene. That deceased was cutting sisal in his compound and the power lines were inside the deceased’s shamba. That the wires were not up as they usually are but were sagging and the tree had fallen on the wire before the deceased started cutting. That the tree had touched the wire. There had also been sparks as the wires touched each other. That the KPLC personnel came and found the tree still hanging on the wire.

14. For the defence case, DW1 was Enyesi Chepkorir an employee of the appellant based at Bondo. Her evidence was that they do monthly maintenance and same had been done a month before this incident. She denied known of any overgrowth along the wires. She otherwise confirmed that when she went to the scene, there were warning signs. She denied that the sisal was on the wires.This basically was the evidence before the lower court.

15. This appeal is on liability only as between the deceased and the appellant. There is no dispute on the fact that the deceased died out of electrocution. There is also no dispute that the deceased died when the sisal tree on his shamba that he was cutting landed on the electric wire and in the process electrocuting him. And from the evidence of DW1, it is the duty of KPLC (the appellant), to do maintenance of the electric lines. In fact in the evidence of DW1, such maintenance is done monthly.

16. So the issue is who was to blame for this unfortunate incident. To determine this issue, this court considers the fact that it is the duty of the appellant to maintain its lines. The lines pass through private land and in this particular case in the land of the deceased. It was therefore the duty of the appellant to ensure that such lines are safely maintained and highly held so as to be out of reach of anyone on the ground. The fact that a sisal tree could fall on the electricity line could therefore only mean one thing. That the appellant had failed in its duty to maintain the electricity line making the line sag low. Too low. Low enough for a falling sisal tree to land on the same, and thereby leading to electrocution of the deceased as he tried to cut the tree. The deceased did not touch any KPLC pole or wire. He cut a tree in his own shamba.

17. It is therefore the failure to maintain the electricity line and wire that shows and proves the negligence of the appellant. There is even an unchallenged evidence of PW2 that the 2 wires were low and close to each other and had been emitting sparks. If this is so, it proves beyond doubt that the appellant had totally failed to maintain the lines.

18. The appellant (defence) called 1 witness. Whereas DW1 maintained that the lines had been maintained regularly (in fact in the last month), this witness failed to explain how a sisal tree would fall on a well maintained electric wire. The falling of the sisal tree on the wire can only mean that the line was not maintained and the wire had sagged too low. And thus giving evidence to the case of the Plaintiff (Respondent herein). I therefore find no merit at all in the defence of the appellant and I dismiss the same.

19. It is for these reasons that I invariably reach the same determination as that of the trial court that the appellant was negligent and wholly liable for this incident leading to the death of the deceased. I accordingly therefore find the appellant 100% liable in this matter.

20. The consequence of this is that this appeal of the appellant dated 15-9-2022 totally lacks in any merit. I dismiss the same.

21. Costs of this appeal are award to the Respondent.It is so ordered.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF NOVEMBER, 2023. D.O. OGEMBOJUDGE9. 11. 2023Court:Judgment read out in Open court. Both Appellants and Respondents absent.D.O. OGEMBOJUDGE9. 11. 2023