[2021] KECA 52 (KLR)

Kenya Power & Lighting Company Limited v AMK (Suing as the mother and next friend of JMK - Minor (Civil Appeal 58 of 2020) [2021] KECA 52 (KLR) (8 October 2021) (Judgment)

Neutral citation number: [2021] KECA 52 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Civil Appeal No. 58 of 2020

RN Nambuye, W Karanja & PO Kiage, JJA

October 8, 2021

Between

Kenya Power & Lighting Company Limited

Appellant

and

AMK (Suing as the mother and next friend of JMK - Minor

Respondent

(An Appeal from the entire Judgment and Decree of the High Court of Kenya at Meru (A. Mabeya, J.) delivered on 14th April, 2020 in Civil Suit No. 28 of 2019)

Judgment

1. JMK was a 15 years old girl who on 28th August, 2017, a normal day for her, was collecting firewood for her mother, a chore which many girls her age do routinely. Unfortunately for her, the day did not end in a joyful note as she came into contact with some live electricity wires which were said to have been left lying exposed on the ground from where she was collecting the firewood. Following this encounter, she was electrocuted and she ended up with severe injuries on her arms which ended up being amputated.

2. JMK’s mother AMK (the respondent) thereafter, on behalf of her child sued Kenya Power and Lighting Company Limited (KPLC) vide a plaint dated 25th January, 2019 and amended on 24th October, 2019 seeking general damages for pain and suffering; loss of amenities; special damages of Kshs. 589,160; damages for loss of earning capacity; future medical expenses and costs.

3. Kenya Power and Lighting Company Limited (the appellant) was sued as the Company which bears the monopoly in the business of transmission, distribution and or retail of electricity in the country. It was, therefore, the company that was responsible for laying the electricity cables that caused the child’s electrocution. KPLC filed a defense in which it denied the averments in the claim and contended that the minor was wholly to blame and/or substantially contributed to the accident. After several adjournments to allow them file and serve their witness statements, the appellant decided to close its case on 3rd February, 2020 without calling any witnesses.

4. In its defence the appellant denied that the child was electrocuted by live electric wires, but averred that if the child was electrocuted, it was on account of her negligence for, inter alia, failing to notice the live wires and avoid them and willingly exposing herself to danger. The appellant pleaded the doctrine of “volenti non fit injuria” and denied liability. The appellant further denied that the child’s limbs were amputated and also disputed the special damages claimed in the amended plaint.

5. During the hearing, the child’s mother said that she blamed the appellant for installing the power wrongly; that the wires were hidden in a bush yet ordinarily they should have been hanging in the air on posts; that the daughter, while picking firewood after school got electrocuted and was rushed to hospital. Since then, the minor could not perform household chores and could not go to school as she had no hands. She produced the child’s birth certificate, letter from chief, letters from the various hospitals they visited, receipts worth Kshs. 526,160 for medical expenses and a demand notice.

6. The appellant largely had an issue with the quotation from Germany for a myoelectric prosthesis. While cross-examining the respondent, counsel for the appellant led the witness to testify that the quote of Euros 90,939. 80 was not equivalent to Kshs. 20,000,000 as proposed by the respondent and it should be between Kshs. 12 to 14 million. But the witness quickly added that the Kshs. 12 to 14 million quote was for the sale of parts only and it did not include transportation, assembling of parts and operational costs to fix the prosthesis.

7. In their respective submissions, the respondent urged that the appellant be held 100% liable having called no evidence in rebuttal. She submitted that she had proved the claim for special damages and sought Kshs. 5,000,000 for pain and suffering, Kshs. 3,000,000 for loss of earning capacity and Kshs. 24,300,000 for future medical expenses and maintenance costs.

8. The appellant submitted that it was not clear where the incident occurred and that the minor was negligent in failing to ensure her own safety and should therefore shoulder 20% of the liability. On quantum, the appellant submitted that the respondent failed to prove special damages since the receipts produced did not comply with Section 19 of the Stamp Duty Act. On general damages, the appellant proposed Kshs. 900,000 submitting that the evidence produced was unreliable.

9. After considering the material placed before the court, the learned Judge framed the issues for determination as follows;a.whether the appellant was liable for the injuries sustained by the minor;b.Whether the minor contributed to the occurrence of the accident, and if so to what extent;c.Whether the respondent was entitled to the damages sought.

10. The learned Judge held on the first and second issues, that the evidence of the respondent was neither denied nor challenged as the appellant chose not to call any evidence to rebut the respondent’s evidence. That the evidence was not even displaced during cross-examination. It was not denied that the appellant was the sole entity that erected electric poles, maintained them and distributed power through the cables mounted on the power lines. He thus held that the appellant was 100% liable.

11. On the third issue he held that the allegation of receipts not being up to the standard of the Stamp Duty Act did not hold as the three receipts produced bore revenue stamps thus special damages were well proved. He awarded Kshs. 4,000,000 as general damages and Kshs. 17,500,000 as future medical expenses on the basis that the cases cited by the appellant were made 20 years ago; the degree of injury was assessed as grievous harm with 100% disability and as for the case law relied on, parties therein had minor injuries, that the court noted that the respondent’s state of mind had been affected and she would need counseling.

12. The court thus made the following award in favour of the respondent:-a.General damages …………………Kshs. 4,000,000b.Special damages ………………….Kshs. 556,160c.Loss of earning capacity…………Kshs. 1,000,000d.Future medical expenses ……….Kshs. 16,500,000Total ……Kshs. 22,056,160

13. That is the award that the appellant is challenging in this appeal. They challenge it vide a memorandum of appeal dated 30th April, 2020 in which four grounds were raised as follows:-That the learned Judge erred by;i.awarding a claim of future medical expenses in the sum of Kshs. 16,500,00/- whereas it was neither pleaded nor proved;ii.Awarding the claim of Kshs. 4,000,000/- as general damages which award was inordinately high and an erroneous estimate of the damages payable for similar injuries;iii.Awarding the claim of Kshs. 1,000,000/= as loss of earning capacity whereas no evidence was led to during trial on the respondent’s academic performance;iv.Proceeding on wrong principles when assessing damages and failed to apply precedent and tenets of law applicable;

14. The respondent also filed a cross-appeal dated 23rd June, 2020 seeking that the judgment be set aside with regard to future medical expenses, the appeal be dismissed and the Court be pleased to re-assess, re-evaluate and review future medical expenses as awarded. The grounds relied on are that;a.The Learned judge failed to use the prothestist’s report when computing future medical expenses and thus arrived at a manifestly low award;b.The Learned judge erred when he applied a multiplier of 15 years when computing maintenance expenses for the intended prosthesis thus giving a wrongful award;c.The Learned judge failed to consider the submissions and authorities filed by the respondent as regards future medical expenses;

15. The appellant filed submissions and a list of authorities. The appellant faults the trial Judge for awarding a colossal sum of Kshs. 17,500,000 for future medical expenses without proper legal basis. According to the appellant PW3 who testified as the expert witness relied on and adduced two contradictory medical reports done by one John Muchoki from Centre for Orthopaedics Prosthetics & Orthotics Services; that the witness was at pains in explaining why the first prosthesis report required a high annual maintenance cost of Kshs. 300,000 while the second prosthesis report required a low annual maintenance cost of Kshs. 100,000; that the justifications by PW3 vis a vis the proposed figures was very illogical thus his evidence was conflicting, contradictory and very unreliable; that John Muchoki who made the two contradicting reports was never called as witness yet he was the only person who could have assisted the court resolve the apparent contradictions in his reports.

16. The appellant further submits that the respondent was allowed to adduce a quotation in the form of a treatment proposal purported to have been obtained from an institution known as Ottobock in Germany which was irregularly and un-procedurally produced in evidence as it did not have any probative value; that PW3 was bound to explain the nature of the quotation from Ottobock; that the quotation provided for the total cost plus sales tax of all the three different types of prosthesis arms as EUR 90. 939. 80 and the court did not elaborate in its judgment, how it arrived at an award of Kshs. 16,000,000 for future medical expenses; that the court failed to appreciate that an award for future medical expenses is in the nature of special damages which must be specifically pleaded and strictly proved.

17. On ground 2 and 4, the appellant submit that the learned Judge misdirected himself by applying wrong principles in arriving at an award of Kshs. 4,000,000 as general damages which amount was inordinately high, excessive, and erroneous in the circumstances of the case and that an award of Kshs. 2,000,000 would have sufficed.

18. On ground 3 on the loss of earning capacity, it is the appellant’s submission that the court erred in awarding Kshs. 1,000,000 as the respondent did not tender any evidence in the form of a school report card to prove that the minor was a brilliant girl performing well in school; that the grievant being a minor aged 17 years old, the damages in respect to loss of earning capacity can only be awarded under the global sum approach and that Kshs. 300,000 would have been sufficient for loss of earning capacity.

19. As regards the cross–appeal, the appellant submits that the respondent’s cross appeal falls short of the established cardinal rule that future medical expenses ‘are in the nature of special damages that must be specifically pleaded and strictly proved’ in order to be awarded; that the figure of Kshs.20,000,000 (Twenty Million Shillings) together with the annual maintenance costs of Kshs.100,000 (One Hundred Thousand Shillings) as stated in the report, were neither pleaded in the amended plaint nor strictly proved in evidence during the hearing and that the respondent failed to satisfy the requirement the future medical expenses must be specifically pleaded and strictly proved in evidence.

20. In response, the respondent filed submissions and a list of authorities. On future medical expenses, she submits that it was impractical to state the amount/figure that was needed for future medical expenses in the plaint since the multiplicand to be applied (i.e. the number of years during which the maintenance costs will be required) was at the discretion of the court.For instance, the learned Judge in this case applied a multiplier of 15 years; that in paragraph 7 of the plaint the respondent pleaded/stated that the minor requires additional and medical care which includes “… to be fitted with functional prosthesis (artificial limbs)”. This according to the respondent was sufficient specificity to pleaded for future medical expenses.

21. On pain and suffering, she submits that the sum of Kshs. 4 million awarded by the court is actually on the lower side but the respondent accepts the same as the minor lost both hands, suffering, burns on her legs, spent 8 months in hospital and is entirely reliant on a helper as she is 100% disabled. On loss of earning capacity, she similarly submits that the amount of Kshs. 1,000,000 awarded under this head was on the lower side but she nonetheless accepts it.

22. On her cross – appeal, she submits that the doctor stated that when the cost of the prosthesis referred to on the report dated 20th September, 2019 is considered together with transport, operation and assembling costs, the total cost would be Ksh. 20 million as stated in the said report thus the Judge erred by granting a lesser amount of Kshs.16 million as future medical expenses, which amount is far less than the amount required for the said procedure as quoted by the prosthetist and therefore prays that this court re-evaluates, reassesses and/or enhances the said amount to Ksh. 20 million.

23. On the maintenance of the said prosthesis, the respondent submits that the learned Judge erred in using a Multiplier of 15 years as he did not consider the fact that said multiplier was inordinately low taking into account the fact that the minor was aged (6 years)(sic) ; that the Judge ought to have considered the number of years that the said minor would live while using the said prosthetic hands and still requiring annual maintenance costs thereof; that the court should have applied 43 years as proposed by the respondent and she prays that the said number of years be applied.

24. We have rechecked the record and noted that the age of the minor cited by counsel for the respondent here as 6 years is erroneous as the evidence before the court coupled with the child’s birth certificate shows that she was born on 5th August, 2004. She was therefore 15 years of age when the incident happened. It would appear therefore that the submission that the trial court should have applied a multiplier of 43 years instead of the 15 years applied by the court is based on the wrong premise.

25. At the plenary hearing of the appeal, learned counsel Mr. Nelson Gichuki and Mr. Ngunjiri appeared for the appellant and the respondent respectively. They highlighted their submissions which we have summarized above.

26. We have re-assessed and re-evaluated the evidence and submissions as summarized above, as expected of us under Rule 29 (1)(a) of the Rules of this Court. See also the celebrated decision of the predecessor of this Court in Selle & Another v Associated Motor Boat Co. Ltd & Others[1968] EA 123. A reading of the memorandum of appeal and the Cross–Appeal and the submissions reveals that the appellant’s main complaint is in respect of the award of Kshs. 16,500,00 awarded in respect of future medical expenses; the award of Kshs. 4,000,000 awarded for loss of future earnings and the award of Kshs. 1,000,000 for pain and suffering. There is no appeal on the issue of liability as determined at 100% against the appellant.

27. On the issue of future medical expenses, this Court in Tracom Limited & another v Hasssan Mohamed Adan [2009] eKLR, held;“The award for future medical expenses is challenged on two fronts. First, that it was not specifically pleaded and strictly proved. Second, that the multiplier of 25 years was inflated. We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated:-‘And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal right should be pleaded.’We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require.” (Emphasis supplied)

28. As has been held above, inasmuch as future medical expenses are in the realm of special damages, it may not be practical for the parties to be able to fully ascertain the exact amount that will be required in the future, it therefore suffices to give an estimate as the respondents did during their testimony.

29. The appellant made heavy weather of the argument that PW3 who testified as the expert witness relied on two contradictory medical reports made by one John Muchoki from Centre for Orthopaedics Prosthetics & Orthotics Services who did not come to testify. We note that the said reports along with the other documents were served on the appellant’s counsel on 28th January, 2019. There was no objection to their production, nor was there any application made for the maker of the reports to be called for cross-examination on the contents of the reports. If the appellant wanted the maker of the document present to produce the document, they had ample time to raise that concern, but they chose not to.

30. In granting the award, the learned Judge noted:-“The defence relied on its statement of defence. However, that cannot constitute evidence capable of displacing the plaintiff’s evidence. Where a party fails to call evidence in support of its pleading (be it a plaint or defence), the evidence of the opposing party is to be believed as having not been rebutted, unless effectively and displaced in cross-examination. In this case, the evidence was not displaced in cross-examination. Accordingly, the evidence of the plaintiff was uncontroverted. See EdwardMariga v. Nathaniel David Schulter & Another[1997] eKLR. In the present case, I found the medical evidence logical and compelling.”

31. Also, the appellants chose not to testify and did not present before the Court evidence to debunk the figures in the quotation from the Ottobock in Germany. They did not file any document to disprove the claim that the figures proposed excluded transportation and shipping costs. They did not call a witness who would have rebutted the contents of the said report, nor did the appellant provide the trial court with an alternative document to compare with the documents whose contents they are now challenging.

32. On the challenge to the award on future medical expenses which the appellant says had not been specifically pleaded and proved, this does not turn on much as the respondent had in their plaint stated that the minor requires additional and medical care. In our view, the functional prosthesis (artificial limbs) and their maintenance costs are covered under that prayer and as held in Tracom Limited & another v Hasssan Mohamed Adan (supra) it was not mandatory for the respondent to delve into detail of the future expenses at that stage thus that ground of appeal fails.

33. The appellant submitted that the award of Kshs. 4,000,000 for loss of future earnings was inordinately high and that an amount of Kshs. 2,000,000 would have sufficed. Before we make any determination as to whether to interfere with the awards on damages, we need to reiterate that the amount of damages to be awarded is purely at the discretion of the Court. In awarding damages, the court considers the peculiar circumstances surrounding each case, subject to some guidelines enunciated in many running down cases. This being an appeal on exercise of discretion, we must also apply the principles that guide this Court when it is called upon to interfere with the trial court Judge’s discretion.

34. Addressing the issue on interfering with the trial court’s discretion, this Court in Civil Appeal Number 192 of 2006, Tracom Limited & another v Hasssan Mohamed Adan(supra) pronounced itself as hereunder:-“In law, sitting on appeal, we are duty bound to be slow in interfering with the assessment made by the trial Judge as in doing so the trial Judge is exercising discretionary powers. We can, however, interfere only where the trial Judge either considered matters that he ought not to have considered or did not consider what he should have considered or misapprehended certain aspects of the case, or on looking at the award in itself the award is either too low or too high that it must have reflected improper award – see the case of Henry H. Ilanga vs. M. Manyoka [1961] EA 705 at page 713. ”

35. Having reconsidered the evidence on record, we are not persuaded that we should interfere with the learned Judge’s discretion. Having not seen the child as she testified, we must defer to the learned Judge’s observation on the extent of the child’s disability. The learned Judge upon observing the child stated as follows:-“I saw the minor testify in court. She seemed to have been terribly devastated by the incident. She told the Court that she was a beautiful girl before the accident but with the amputation, she no longer was. That is her state of mind and it has affected her and will require continued counselling. I saw the minor testify. She was full of life and upbeat that she may yet again have a chance of going back to school and study on Dr. Muchoki’s assurance. She could do absolutely nothing by herself. It is the mother who had to remove her clothing for the Court to sees the injuries sustained. She stated that she cannot bathe, eat, cloth or go to toilet without the help of her mother. Surely, she must live her life at whatever cost! Her normal life needs to be restored……”

36. Considering the foregoing we are not persuaded that the learned Judge considered any extraneous material or failed to consider relevant material in arriving at his decision. We may also add that given the child’s condition after the injuries, there cannot be an issue of unjust enrichment or over compensation. No amount of money could ever restore the child to her previous condition. No sufficient reason has been given to warrant interference with that award and therefore that ground fails.

37. Ultimately therefore, we find the appeal devoid of merit and dismiss it accordingly.

38. As far as the cross–appeal is concerned, the respondent (cross-appellant) claims that the court failed to use the prothestist’s report when computing future medical expenses and thus arrived at a manifestly low award. It is clear from the testimony of both PW1 and PW3 that figures were proposed for future medical expenses. More particularly, the expert witness proposed Kshs. 20,000,000 and an annual maintenance fee of Kshs.100,000. From paragraph 44 of the judgment the court held,“In this regard, I accept the quotation produced as PExh.13 since there was no other quotation in respect of which the Court could compare. Since the cost of purchase is Euros 90,940 together with transportation, assembling and operationalization, I award Kshs. 16,000,000/= for future medical expenses.”

39. The respondent also claims that the learned Judge erred when he applied a multiplier of 15 years when computing maintenance expenses for the intended prosthesis thus giving an insufficient award. As stated earlier, the assessment of the quantum of damages is discretionary. The learned Judge did give reasons of going with the multiplier of 15 years. He held at paragraph 45,“The plaintiff proposed 43 years due to the age of the minor. I will grant a period of 15 years due to accelerated payment thereby allowing investment of the monies.”We find no fault with the learned Judge’s finding. The multiplier of 43 years was not justified either in the trial court or before us. We also point out that the amount given in the reports were just a guide to the court and the learned Judge was not bound to accept the amounts given in the said reports to the last digit. We are satisfied that given the circumstances of the matter and all the material placed before the learned Judge, he arrived at a fair and just decision and we have no reason to interfere with the same.

40. Ultimately, we find the appeal and cross appeal devoid of merit and dismiss both. As no party has succeeded we order that each party bears its own costs of the appeal and cross appeal.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF OCTOBER, 2021. R. N. NAMBUYE...................................JUDGE OF APPEALW. KARANJA....................................JUDGE OF APPEALP. O. KIAGE.....................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR