[2022] KEHC 1024 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL NO. E055 OF 2021

KENYA POWER & LIGHTING COMPANY LIMITED.............................APPELLANT

VERSUS

MOHAMED DAHIR MOLOLE................................................................RESPONDENT

(Being an appeal from the Judgment and decree of the Hon. E. Ngigi, PM delivered on 23/3/2021 in Isiolo PMCC No. 13 of 2018)

JUDGMENT

1. Before the trial court was a suit grounded on the tort of negligence and praying for special damages being the various sums said to be the value of property lost to fire alleged to have been ignited out of electric fault from the appellant’s power lines. It was pleaded, by the respondent, that on or about 10/8/2017, a defective high voltage power lines that the appellant had installed on Plot No. 33 Kiwanjani area, within Isiolo Town ignited a fire at the respondent’s building on the said plot which burnt down the building together with all the property therein. It was additionally pleaded that the fire was caused by the negligence on the part of the appellant and/ or its agents, servants and employees and particulars thereof set out. In support of the plaint the respondent filed witness statements as well as documents which included two valuation reports.

2. The claim was resisted by the applicant by a further amended statement of defence which denied all the allegations in the plaint put the respondent to strict proof thereof with an alternative plea that if there ever occurred any incident of fire which burnt the respondents house and its contents then the same was the consequence of sole or substantial contributory negligence of the respondent. The particulars of such negligence were then set out to include building dangerously near an un-insulated live conductor on or near a wayleave, overloading the power supply and illegally connecting power to the burnt house. Of note however, even at this early stage, is the fact that to that defence no witness statements nor documents were filed and indeed at the trial no witness was called to prove the allegations in the defence. In law therefore, all the defendants left the court with for purposes of making a decision was mere and bare allegations without any probative value.

3. In evidence, the respondent put up his case by calling a total of five witnesses, PW1 Lawrence Kinyua Mbijiwe, a registered Quantity Surveyor, PW2, the respondent himself, Pw3, a registered valuer and PW4, a police officer to whom the fire report was made and who visited the scene and conducted investigations.

4. PW1 produced the evaluation report done on Kiwanjani Plot No.33, which had been burnt down and returned a figure of Kshs 1,191,010, being the costs of reconstructing the house. When cross examined, he stated that his report was based on the information given by the respondent and own investigations which included digging out on the foundation which revealed that the reinforcement had been damaged as to make it impossible to build a new house on the same foundation.

5. In re-examination, he stated that the evaluation was based on the current rate and that the foundation would have to be redone afresh.

6. PW2, the respondent, Mohammed Dahir Mulole,produced ownership documents in respect to plot No. Kiwanjani Zone C, to show that the same was owned by him. He applied for power connection which was done by the appellant and he produced the KPLC Account No. 29398415 and a billing statement. On the material day at 4. 00 am, they heard a loud bang and when they went out to check, they saw an electricity line on the roof. The fire started at the roof of the shop and the 3 bedroomed house with 2 sitting rooms, a shop over bedroom as well as a small kiosk were all burnt down. When the fire broke out, he called the appellant who did not respond. He did not have a fridge or any electronic appliance at the time of the fire save for a T.V. There were also no naked wires in the house and the fire started when a hanging power line on a pole close to his house came into contact with his electricity line. A valuation report was done and the worth of the items inside the house, which got burnt, was valued at Ksh.2,500,000. He lost Ksh.32,000 cash and his wife also lost money.

7. During cross examination, he stated that he built the house in 2006 and the power was connected in 2012. The appellant put his neighbour’s pole and his in the same plot, and they did not remove them even after he had complained to them in 2012. After hearing the bang, they saw the electricity line which had been cut was on fire. The wire was too low that it fell on the house burning it down. He did not call an expert to investigate the fire but he was certain it had been caused by electricity. The receipts for the household items he had in the house together with his trade licence were burnt down.

8. In re-examination, he stated that he heard a loud bang and saw the wire which had been cut on the roof. The 2 wires were cutting across near his house and when they came into contact with each other, a fire broke. He reported to the police who carried out the investigations. He reported to the appellant but they did not investigate. There were two poles inside his plot and the kitchen was detached from the main house.

9. PW3 Nicholas Nganga Mbugua, a valuer, produced the valuation report together with the receipt as exhibits.

10. During cross examination, he stated that there were two new permanent houses on the plot. There were debris in the house which he could not tell were related to the remnants of which house items. He did a cumulative depreciated value and he did not indicate in the report each and every value of the items, as they were burned. He was told the value of the liquid cash by the respondent and he relied on the inventory supplied by PW2 and the site visit. In re-examination, the witness stated that he could not tell if a freezer could burn into ashes.

11. PW4 PC Daniel Miruli based at Isiolo police station, was at station when the respondent came to report the fire incident. He interviewed him and when he visited the scene in the company of Micah Ngeno, they found that the said house was razed down and nothing was salvaged therefrom. He then drew the sketch of the scene in the presence of the appellant’s officer namely Geoffrey Otieno and took photographs with the assistance of crime scene personnel namely Micah Koriri. According to the investigation, the fire was caused by an electric pole that was dangerously constructed with one meter away from the respondent’s house and Geoffrey Otieno, an employ of the appellant also admitted that the same was constructed by an agent of the appellant 2 years before the incident. When the respondent reported the matter to the appellant, he was told to pay Kshs 50,000 for the pole to be removed, which he did not have. The appellant did not consult the respondent on their installation of the post.

12. During cross examination, he stated that he did not obtain any plans from the county government.

13. In re-examination, he stated that there were 2 posts in the plot, and one of them was 1½ meters from the entire house. There was some distance from the post to the shop, which was adjacent to the road. The fire began between 4-5am and he visited the scene at around 8. 00 am.

14. After the conclusion of the trial, the trial court found that the respondent had proved his case, apportioned liability at 100% against the appellant, and awarded special damages totalling to Kshs 2,231,010 being Kshs 1,191,010 for value of the building, Kshs 1,000,000 all-inclusive for loose assets and cash, Kshs 40,000 for valuer’s fees, costs and interest of the suit.

15. Aggrieved by the said decision, the appellant filed its Memorandum of Appeal setting out four (4) grounds of appeal. It faulted the trial court for awarding damages for the value of the building in the sum of Ksh.1,191,010 and Ksh.1,000,000 for loose assets when the same were neither pleaded nor proved. It faulted the trial court for awarding Kshs 40,000 for valuer’s fees while the valuer categorically denied in his evidence being paid by the respondent and for making awards for damages which were wholly against the applicable law and the weight of the evidence before the court.

Submissions

16. Upon the directions by the court, the parties filed their submissions in respect to the appeal on 22/10/2021 and 8/11/2021 respectively. The appellant submitted that the purpose of award of damages was to return the affected party to as nearly as possible to the position he was in before the incident. It submitted that the respondent ought to have been compensated the pre-accident value of the house and not the cost of building a new house. It faulted the respondent for failing to ascertain the value of the burnt house or the actual cost of the reconstructed house, and thus the claim ought to have failed. It relied on David Bagine v Martin Bundi(1997)eKLR where the Court of Appeal in setting aside awards for costs of repairs and loss of user held that, it was not enough for a party to throw a figure at the court and say, “this is what I have lost, I ask you to give me these damages.” It submitted that it was one thing to prove that one had been wronged by another yet a completely different thing to prove the quantum of the loss. It urged the court to set aside the assessment of the value of loose assets and cash as the same had not been strictly proved. It faulted the trial court for awarding valuer’s fees of Ksh.40,000 when the same was not sought or proved. It beseeched the court to allow the appeal, set aside the trial court’s judgement on quantum, and dismiss the case for want of proof.

17. The appellant submitted that since restitution and negligence aimed at restoring him to the position he was before the occurrence of the incident, restitution would have been achieved by building him a house similar or comparable to the burnt down house at the prevailing market rates. That position was restated by the Court of Appeal in Kenya Industrial Estates Limited v Lee Enterprises Limited (2009)eKLR and Kenya Tourist Development Corporation v Sundowner Lodge Limited (2018)eKLR. He submitted that the evidence tendered by the 2 experts was sufficient proof of the nature and extent of damages and thus proof of loss. He relied on Mutonyi v R(1982)eKLR, on the definition of expert evidence. He faulted the appellant for failing to call its own expert witnesses to rebut the evidence on record and relied on Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya(2010)eKLR, where the Court of Appeal held that the assessor’s report was sufficient proof of damages and the failure to produce receipts for any repairs done was not fatal to the respondent’s claim. He submitted that a victim of a wrongdoing does not lose his remedy in damages merely because the quantification is difficult, as was held in Patrick Wambugu Gitahi t/a Wambugu Garage v Kenya Power & Lighting Company Ltd. He urged the court to find that the awards of Kshs1,191,010 for the costs of rebuilding the house and Kshs1,000,000 for the loose assets were well grounded and should not be disturbed. He submitted that the valuer’s fees of Ksh.40,000 had been proved by the testimony of the valuer and production of a receipt.

Analysis and determination

18. This being a first appeal, the court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. Here the appeal is purely on the award and quantum of damages assessed by the trial court. The issue for determination must then be whether the awarded sums of special damages were specifically pleaded and strictly proved.

19. An appraisal of the record and the evidence of the four witnesses show that there remained no dispute that there was fire that gutted down the respondent’s house causing loss and damage. I say there is no dispute of the fire and destruction because the appellant having pleaded contributory negligence in the alternative to denial of any such occurrence, in its defense, it did not call any evidence to support the pleadings. To that extent, the said defense remains unsubstantiated with the respondent’s evidence being the only available evidence on record.

20. Even though presented as four grounds of appeal, the challenge can be summed into one to the effect that the awarded special damages were never pleaded and proved in accordance with the law as the evidence led did not meet the standards of proof.

21. Contrary to appellant’s tacit contention that special damages must be strictly proved and strict proof mean proof by documents, I do find that in the absence of receipts or such other documents, for any valid reason, any other cogent evidence suffices in proof of special damages. Special damages may be proved by means other than the production of receipts and documents in that the court can still consider and rely on any other cogent evidence adduced whether oral or documentary to decide whether special damages though pleaded were proved. In Garissa Maize Millers Ltd v Attorney General & 3 Others, [2016] eKLR,the court stated that; -

“Proof of special damages does not necessarily need to be on documents, but there has to be cogent evidence to establish that the loss quantified in terms of money has been established, and that the loss was visited upon the plaintiff by the defendant.”

22. Similarly inMitchell Cotts (K) Ltd v Musa Freighters(2011) eKLR, the court expressed itself thus:

“…. In the light of the above and in the circumstances we cannot fault the superior court which accepted the only evidence which was tendered to the court on the issue, the appellant having failed to give any evidence on the value of the tyres it had conceded it could not deliver to the respondent when called upon to do so. In this country civil cases are decided on the basis of a balance of probabilities. In the circumstances, the respondent had obviously put something on their side of the scales whereas the appellant had failed to do so resulting in the balance tilting in favour of the respondent on the critical issue of the value of the uncollected tyres. The court did its best and cannot be faulted. In addition, the loss was specially pleaded in paragraph 4 of the plaint. In view of the admission by the respondent, the critical issues for consideration were whether the special damages were pleaded and if so whether they were proved. In our view, the respondent has proved both issues and for this reason, our inclination is not to disturb the judgment of the superior court.”

23. In my analysis of the evidence on record, I find that the loss of the house and the costs of its rebuilding was specifically pleaded at paragraph 5 of the Amended plaint dated 7. 8.2018 and the cost of rebuilding availed by the professional evidence of PW1. I find and hold that the trial court fell into no error of principle or appreciation of the evidence and law applicable in awarding Kshs 1,191,010 for the value of the building. I find that determination to have been sound and I do uphold it

How about the award of an all-inclusive sum of Kshs1,000,000 for loose assets?

24. PW3 produced a valuation report in this regard, while PW2 was categorical that he lived in the house with his entire family including a mother, that he had a shop operated by his wife adjacent to the house and that all the receipts for the household goods had been destroyed in the fire caused by the appellant’s negligence. That evidence equally stood uncontroverted just as the evidence that the fire incident indeed took place and caused the damage.

25. This award is challenged by the appellant on the basis that the same was neither specifically pleaded nor strictly proved. My reappraisal of the record and evidence is that there was a specific pleading and claim for loss of ‘loose assets and liquid cash’. The document by Pw3 contended to a valuation report was indeed produced without protest as an expert opinion. I do find that evidence to have been cogent and the reasons given by the trial court to be plausible, logical and in consonance with the law the court cited in its judgment. The record does not answer to the description of a situation that a party throws figures at the court. It suffices to answer to proof on preponderance. With such evidence, what then should the court have done in the circumstances to come up with an appropriate measure of damages?

26. The appropriate measure of damages was defined inLivingstone v Rawyards Coal Co (1880) 5 App Cas.25 at 39 per Lord Blackburn, thus;

“that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is not getting his compensation or reparation.”

27. The court now poses the question how could the respondent be restituted when what he had lost could not been ascertained having been burnt?

28. A reading of the record show that the trial court grappled with that issue when it stated that, “this being a claim for special damages, the plaintiff is expected to avail evidence in prove of the said claim. However, the circumstance of the said incident need be appreciated. It is on record from the plaintiff evidence that all his households shop stock and document were destroyed and nothing was salvaged from the said house. In the circumstance should the court proceed to dismiss the plaintiff’s claim for loose assets and cash on the basis that no receipts or specific individual valuation for each item was provided for? The court opines that it would be plainly unfair to dismiss the plaintiff’s case on this two items. I say so because it is not in dispute that prior to the said fire incident the plaintiff used to reside in this house and as expected it had furniture, kitchen ware, electronics and other diverse households. Further he operated a shop attached to the house and which undoubtedly had stock. Accordingly, their value must be attached to the plaintiff households and an award made irrespective on the absence of cogent evidence as to their existence.”

29. I see that the trial court was cognizant of the applicable law and principle on award of damages and did exercise its judicial authority and discretion in a most circumspect and appreciative matter. It was fully aware that some damage had been done to the respondent and loss suffered. It was not chartering some foreign legal waters but a path well-trodden by other courts.

30. In Patrick Wambugu Gitahi T/A Wambugu Garage v Kenya Power & Lighting Co. Ltd [2010] EKLR, the court when faced with similar circumstances did render itself thus :-

“The sum effect of what I have stated is that there is no doubt that an electric fault on the defendant’s electricity pole caused the fire that gutted the plaintiff’s business. I believe it cannot also be denied that as a result of the fire, the plaintiff’s goods and those of his clients were destroyed, some beyond economic repair while others were only partially damaged. It is also acknowledged that the plaintiff’s business records were destroyed in the fire and in so far as his loss is concerned, he has had to fall back to his memory. The question therefore is; in the circumstances stated above, is the plaintiff without remedy for lack of documentary proof of his claim? To borrow the phrase used in Kenya Bus Services Ltd. v Mayende (1991) 2 KAR 232, the plaintiff has merely “thrown” the figures at the court. The courts in Kenya have been considerate in claims based on documentary evidence which are either non-existence, misplaced or, I may add, destroyed.”

31. In Kenya Power & Lighting Company v Umaz Ali Swaleh (2017) eKLR,the Court held that:-

“…… under Section 52 of the Energy Act, a licensee, in this case the Appellant is obligated to make compensation for any loss or damage occasioned by reason of execution of its duties and mandate under the Act or by reason of any defect in any electrical supply line. I read and understand this provision to put some strict liability upon the Appellant as a licensee for purposes of supplying and maintain electric power supply lines. There was sufficient evidence that an electric wire snapped and fell to the ground and thereby pausing the fatal danger ultimately visited upon the deceased. Knowing the danger that a defective electric cable or line pose to any human being and property, there is a duty of care owed to Kenyans by the Appellant to maintain and keep secured all electric transmission lines and infrastructure so that accidents are avoided. In Joseph Kiptonui vs. KPLC, Hon. Asike Makhandia, as he then was, held and said: “….. Kenya Power & Lighting Co. owed to the plaintiff and every Kenyan a duty of care where it happens to have power lines. Further electric power is a dangerous commodity and if not properly secured can be a danger to society.”

32. Taking a cue from the dictum in the afore-cited cases, and the arguments and reasons advanced in the judgment I find that the award of an all inclusive sum of Kshs1,000,000 for loose assets and liquid cash was not only justified but also the only way to afford justice between the parties.

33. On the award for valuer’s fees, while PW1 denied any payment by the respondent, PW3 stated that he charged for the valuation and he went further to produce a receipt from N-Light Consultants Ltd as Pexh.6 in the sum of Kshs 40,000, being payment of valuation of loose assets. That cost and evidence of payment of professional fees was never challenged by any evidence, not even a suggestion was made to PW3 that he was never paid. I therefore find that the trial court was fully justified to make the award and the same is upheld.

34. In the premises, the appeal is dismissed with costs.

DATED SIGNED AND DELIVERED AT MERU THIS 16TH DAY OF MARCH 2022

PATRICK J.O OTIENO

JUDGE

IN PRESENCE OF

MR. MWARANIA FOR APPELLANT

MISS KIEMA FOR RESPONDENT

PATRICK J.O OTIENO

JUDGE