[2022] KEHC 2666 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NO. 35 OF 2019

KENYA POWER & LIGHTING CO. LTD....................................................APPELLANT

VERSUS

SMM (Suing as the next friend of SM (minor)...........................................RESPONDENT

(BEING AN APPEAL FROM THE JUDGEMENT OF HON. MARARO (SPM) NAKURU DATED 20TH FEBRUARY 2019 IN NAKURU CMCC NO. 726 OF 2017).

JUDGEMENT

1. The respondent (minor) on 17th November 2017 was looking after his grandfather’s goats at [Particulars Withheld] village when he was electrocuted and sustained the following injuries.

a) Severe electric burns on the upper limb resulting into amputation of the right upper limb at the shoulder.

b) Severe electric burns on the head.

c) Severe electric burns on the chest.

d) Severe electric burns on the gluteal region.

e) Severe electric burns on both lower limbs.

2. As a result of the said injuries the respondent filed suit at the lower court blaming the appellant for negligence and causing the said accident. After full trial the trial court found the respondent 100% liable for the accident and awarded him general damages of Kshs, 3million for pain and suffering, Kshs.2million for loss of earning capacity and Kshs. 164,700 as special damages.

3. The appellant being dissatisfied with the above has appealed against the same citing 7 grounds which can generally be summarised under the headings of liability and quantum.

4. The respondent as well cross appealed on two grounds namely on quantum and the cost of future medical treatment.

5. The court directed the parties to file written submissions which they have and the same can be summarised as hereunder.

APPELLANTS SUBMISSIONS.

6. The appellant submitted on the two grounds indicated above namely on liability and quantum.

7. Under the heading of liability, the appellant stated that although the accident took place the respondent was unable to establish that the same was caused by the respondent or its agents. That the holding by the trial court that it was 100% liable was erroneous.

8. That there were intervening factors which were not within the ability of the appellant to control and the chain of causation was broken. As the appellant’s technicians worked on the line that day they did not find any child on the scene and there had never been any report of power outages on that day.

9. It submitted that the duty of care was upon the respondent to take care of the minor in respect to his safety. That while it was the responsibility of the appellant to take care and maintain the electric infrastructure in the country it cannot be held liable for incidents that are totally out of its control.

10. The appellant relied among others on the authority of KENYA POWER & LIGHTING CO. LTD V. EMMANUEL NDEGE & ANOTHER (2019) eKLR.

11. It submitted that it was incumbent upon the respondent to establish liability against the appellant which he failed to do. It was no longer tenable to conclude that a five-year-old minor cannot be held to be liable. See LIVINGSTONE OTUNDO V. NAIMA MOHAMOUD (1990) eKLR.

12. On the question of quantum, the appellant submitted that the award by the trial court was excessive in the circumstances. That there was no evidence tendered to show that the respondent was intending to acquire myoelectric arm and in any case the same was not sustainable as it was expensive. The same again could not be used by the minor as the nerves had been damaged after the accident. On this line it submitted that there was no evidence of the costs of the said arm.

13. It was the respondent’s submission that the trial court did not take into account the expert evidence which carried more weight and thus arrived at an erroneous decision especially that of DW1 which was conducted 13 months after that done by PW1.

14. That the award was excessive considering the authorities cited and in the premises on the heading of pain and suffering an award of Kshs. 500,000 was reasonable in the circumstances.

15. The appellant disputed the award under loss of future earnings by the respondent. It relied on the case of P. I. V. ZENA ROSES LTD & ANOTHER (2015) eKLR and submitted that the respondent ought to have proved the current status of the minor, his ability and probably what he was likely to earn putting all the factors constant.

16. The appellant submitted that an award of Kshs 300,000 would suffice in the event that the court takes it into consideration.

17. The appellant as well attacked the issue of special damages on the grounds that no stamp duty was paid as provided under the Stamp Duty Act. The court should therefore disallow the same.

RESPONDENTS SUBMISSIONS.

18. The respondent as well dwelt on the twin issues namely of liability and quantum.

19. On liability he submitted that DW2 admitted in his statement that they were told that there was a breakdown at Sarova feeder and upon reaching the scene they were told that there was a lorry which had hit one of the stay wires which caused the wire to snap and felt on the barbed wire. By the time it hit the wire the respondent was struggling to escape hence the accident.

20. In effect therefore the appellant was negligent in failing to maintain the infrastructure and more importantly they arrived at the scene at 3 pm whereas the incident occurred at 1pm despite having admittedly a rapid response unit. The witness attributed this to lack of adequate manpower by the appellant.

21. The appellant, respondent went on to submit, had no evidence that indeed a lorry hit the stay wire as there was no recorded evidence by any eye witnesses despite the matter being reported at Mwariki police station.

22. The respondent cited Section 52 of the Energy Act which attributes the primary duty of taking care of electricity installations upon the appellant. At any rate the respondent minor who was only 5 years could not be attributed any negligence as was stated in the case of ELIUD MWALE LEWA & ANOTHER V. PAKA TOURS LTD & ANOTHER (2009) eKLR.

23. On quantum the respondent agreed with the trials courts finding and submitted that the injuries sustained by the respondent were indeed serious as found by both reports prepared by Dr. Malik and Dr. Kiamba. They both found the physical disability at 70% and that he almost died during the incident.

24. In his cross appeal which essentially was on the question of future medical expenses the respondent faulted the trial court for failing to appreciate that the minor would require myoelectric arm or bionic arm which would assist and enhance his life. Dr Malik in particular opined that he would require a japter arm assessed at around Kshs300,000.

25. Dr Kiamba on the other hand relied on the quotations from PCEA kikuyu hospital and Tenwek hospitals in concluding that the myoelectric arm would cost about Kshs. 2,000,000.

26. He therefore urged this court to dismiss the appeal and allow the cross appeal.

ANALYSIS AND DETERMINATION

27. The court has perused the record of appeal, the parties’ submissions as well as the cited authorities. The duty of this court at this juncture was well explained in the case of Selle v Associated Motor Boat Company Ltd [1968] EA 123 where Sir Clement De Lestang stated:

This court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.

However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

28. The two issues for determination as rightly found by the parties are the question of liability, quantum and the cross appeal by the respondent.

29. On liability, there is no doubt that indeed the accident occurred which badly injured the minor as found by the two medical doctors. They agreed that the degree of injury was at 70%. The said accident no doubt was caused by an electric fault. It is also agreed that the electric live wire felt and got entangled with a wire on the ground where unfortunately the minor was grazing his grandparents’ goats.

30. Although there was no eye witness on how the incident occurred as the respondent took off when he heard the explosion there is no doubt that that was the cause of the injuries. The appellants stated that they were informed that a certain lorry hit the stay wire which then caused the electric wires to snap. That they arrived later around 3 pm at the scene although the incident had been reported at around 1pm.

31. The issue of the lorry to say the least was hearsay as there was no eye witness and even whoever told them this line of information was not call to testify. The police at Mwariki police station seems not to have taken any action.

32. Was the respondent minor complicit in any way? From the evidence as adduced by the appellant’s witness, it appears that the minor just like any other young person was busying himself with his grandfather’s goats until the electric wire snapped and came into conduct with the wire nearby and in an attempt to safe himself he was electrocuted. As a minor I doubt whether there was much he could have done.

33. Although the appellant attempted to attribute some negligence on the grandfather this court respectfully does not buy that line of argument. For young lads to herd their parent’s animals is a daily chores and nothing strange. What is abnormal however is an electric wire 36 feet above to snap and hit a wire on the ground.

34. It is expected that the appellant will always ensure that stay wires are safe enough and in any case barring any unforeseen incident be firm on the ground. In this case they were unable to explain to the trial court what caused the snapping. The issue of the lorry hitting the stay wire remains a hearsay.

35. Gleaning from the evidence of the appellant it appears that there were some repairs which were taking place at Lanet substation on the material day. More interesting is the fact that they delayed in reaching the scene despite having what they have referred to as Rapid Response Unit.

36. In the findings of this court there was nothing negligent on the part of the respondent and neither could he have done anything to avoid the accident. The holding by the trial court attributing 100% liability upon the appellant is therefore sustained.

37. On quantum the appellant submitted that the same was excessive in the circumstances. The injuries sustained by the minor were extremely serious including loss of an arm, ear among other serious electric burns. There was even a danger of contracting cancer as clearly found by the doctors.

38. In my view and taking into consideration the above injuries, the pain that he underwent and being in hospital for about 5 months, the award of Kshs. 3,000,000 by the trial court was reasonable in the circumstances.

39. As regards loss of future earnings, the minor was said to have been five years at the time of the accident. There was no evidence save that of tending his grandfather’s goats of any activity by the minor. There were no school records at all. Of course being of such tender age one cannot with some probability be able to ascertain what the minor would or would likely be in the future. The respondent did not tender any iota of evidence on this line in an attempt to persuade the trial court.

40. The court in P. I. V. ZENA ROSES LTD & ANOTHER (2015) eKLR explained itself as hereunder.

41. “In my view, it is true to say that the future of a minor is unknown as opposed to that of an adult who is engaged in an occupation that earns him or her a living. It can also be contrasted with that of a middle aged person who may be in college or in whose life there is indication of what kind of livelihood he would engage himself/herself in when he grew up. For the case of minors, it is my view that tabulation for damages for loss of future earnings and lost years can be gauged depending on what evidence is brought before the court. For instance, a good case can be argued where evidence is shown that the minor is in school, well performing and that it is hoped, based on his or her performance, would engage himself or herself in this or that occupation. That is why evidence before a trial court must not be led in a casual manner thinking that the court would make an assumption of what earnings the minor may get in future or what he would become once he grew up. It is not sufficient to just state that the minor was either in kindergarten, primary or secondary school. A good case would be argued when evidence is brought to show or persuade the court that despite the fact that the minor was in the tender years of school, it was hoped that he would have a good future when he grew up. In the present case unfortunately, no iota of evidence was tendered to demonstrate what the performance of the deceased was both in school and in life. The plaintiff did not also lead evidence stating what he expected the future of the deceased to be.”

42. I think the same position obtains herein. I’m not persuaded that there is any evidence tendered on this line as such. However, it is most probable that even for argument sake he would work hard and earn his bread despite the challenges posed by the disability. The sum awarded by the trial court was however on the higher side. The appellant has proposed an award of Kshs.3,00000 and relied on the case of BENUEL BOSIRE V. LYDIA KEMUNTO MOKORA (2019) eKLR.

43. A multiplier approach cannot apply in this case for the reasons given above. A global sum would suffice. In my view therefore a sum of Kshs. 1,000,000 would be appropriate in the circumstances.

44. In respect to future medical treatment, there were two issues namely whether the minor would need myoelectric arm or japter arm. Dr. Malik opine that myoelectric arm apart from being costly to maintain would not suffice because the amputation was at the shoulder which affected the nerves and therefore it would not be prudent to acquire one. He however found that the jepter one was appropriate.

45. There was no evidence of the costs of the above two sets of artificial arm tendered. Although pleaded there was nothing from both PCEA Kikuyu and Tenwek hospitals tendered. It was incumbent upon the respondent to demonstrate that despite as opined by Dr. Malik that myoelectric arm may not work because the nerves had been severed it was nevertheless necessary that it be availed. On the other hand, the same would apply for the jepter arm. There was nothing difficult to obtain quotations from the said hospitals or any other sources so as to persuade the court.

46. The trial court was therefore right in not awarding the same as it was not proved. Prayer three of the cross appeal therefore fails.

47. On the issue of special damages this court agrees with the respondent that the same was proved. There is evidence that the provisions of the Stamp Duty Act were complied with and at any rate the appellant did not appeal on this ground.

48. The appeal is therefore allowed as hereunder.

a) General damages for pain and suffering of Kshs. 3,000,000 is sustained.

b) Loss of future earnings of Kshs. 2,000,000 is hereby reduced to Kshs. 1,000,000.

c) Costs of future medical treatment disallowed.

d) Special damages sustained at Kshs. 164,700.

Total .....................................4,164,700.

e) The total sum above shall attract interest at courts rates from the date of the trials court’s judgement till payment in full.

f) Each party shall meet its own costs on this appeal.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 3RD DAY OF FEBRUARY 2022.

H K CHEMITEI

JUDGE