[2014] KEHC 1602 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 139 OF 2013

KENYA POWER & LIGHTING COMPANY LTD…………APPELLANT

VERSUS

DAVID OPONDO OMUTELEMA……………………….RESPONDENT

(Being an appeal from the judgment and decree of Hon. Ole Keiwa, Principle Magistrate, delivered on 30th November, 2012 in Milimani CMCC No. 5819 of 2011)

JUDGMENT

The respondent filed a suit in Milimani CMCC No. 5819 of 2011 against the appellant seeking general damages for breach of contract, negligence and defamation. The respondent obtained judgment against the appellant where he was awarded a sum of KShs. 100,000/= as general damages.

The appellant and the respondent felt aggrieved by the said judgment and filed an appeal and cross-appeal respectively. The appeal is on the following grounds:

The honourable court erred in law and in fact in awarding KShs. 100,000/= in general damages.

The honourable court erred in law and in fact when it awarded the sum of KShs. 100,000/= in general damages which sum was manifestly excessive.

The honourable court erred in law and in fact in awarding damages when the same was not supported by any evidence.

The honourable court misdirected itself and considered extraneous and irrelevant factors.

The honourable court erred in law and in fact by failing to conclude that the plaintiff/respondent was not defamed in any way by the words ‘Mulika Mwizi’ or as alleged.

The honourable court erred in law and in fact by failing to consider that the plaintiff was unable to prove loss suffered as a result of alleged defamation or even on account of disconnection.

The honourable court erred in law and in fact by failing to consider the appellant’s submissions.

The honourable court failed to appreciate the appellant’s weighty evidence in totality.

And the cross-appeal is based on the following grounds:

That the learned principal magistrate grossly erred in failing to appreciate that the cross- appellant’s claim was based on three causes of action viz. breach of contract, libel and negligence.

That the learned principal magistrate grossly erred in awarding the cross-appellant the sum of KShs. 100,000/= as a global sum for all these three causes of action.

That the learned principal magistrate grossly erred in failing to determine the award due to the cross-appellant for all these three causes of action.

That the learned principal magistrate erred in awarding such low sum of KShs. 100,000/= as general damages for all these three causes of action.

That the award of the sum of KShs. 100,000/= to the cross-appellant as general damages is so inordinately low that as to a wholly erroneous estimate of the general damages for the suffering endured by the cross appellant.

In his suit, the respondent claimed that he had a contract with the appellant for power supply for meter number 2255133-01 and installation of additional seven (7) electricity meters in his premises. Meter number 2255133-01 fell in arrears of KShs. 10,000/= which when he went to clear, the appellant’s agent negligently credited the said money on an account which was not the respondent’s. His power supply was subsequently disconnected and only re-connected four days after he lodged a complaint with the appellant. He claimed that at the time of disconnection, the appellant’s agents were in a Toyota Hilux Pick-Up registration Number KAY 463V bearing the banner ‘Mulika Mwizi’.He alleged that since the vehicle which bore the said banner was used at the time of disconnection, the words meant and were understood to mean that he was capable of stealing the appellant’s electricity and their equipment. That his personal and business reputation was consequently seriously damaged and he suffered distress and embarrassment as the disconnection of electricity under the Mulika Mwizischeme was meant to disparage him in the right thinking members of the society generally. He further alleged that as a result of the disconnection his diabetes medicine that was stored under refrigeration went bad.

PW2, Rose Makokha, the respondent’s wife testified that foodstuff and the respondent’s diabetes medicine went bad and her chicken died as a result of the disconnection. She also stated that the disconnection was done in the presence of the employee.

PW3, Hesbon Ndahuka in his testimony confirmed that disconnection was done by the appellant’s agents who were in the vehicle branded Mulika Mwizi.

DW1, Flora Imbwaka testified that all appellant’s vehicles bear the brand Mulika Mwiziwhich is an advertisement for members of the public to contact the appellant whenever they discover theft of the appellant’s equipment or tapping of electricity. She denied that the brand targeted the respondent. She however admitted to crediting the respondent’s money to the wrong account.

The appellant in its submission faulted the trial court’s judgment and contended that the claim for defamation was not proved. Attempting to define defamation, the appellant relied in the case of Ochieng & Others v. Standard Limited (2004) eKLR where the court quoted Lord Wensley’s definition for defamation in Pamiter v. Compland (1840) 6 Maw 105,108 thus:

“ a publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule.”

The appellant further relied on John Ward v. Standard Limited (2006) e KLR where the ingredients of defamation were outlined as follows:

The statement must be defamatory

The statement must refer to the plaintiff

The statement must be published by the defendant

The statement must be false

It was also the appellant’s contention that the respondent failed to prove that he suffered loss as a result of the disconnection and the alleged defamation. To canvass this point, the appellant relied on the case of Esha Chizi Lugogo v. Pact Kenya (2013) e KLR.

The respondent on the other hand argued that the appellant was liable for crediting the wrong account and subsequently disconnecting his electricity supply using the Mulika Mwizi squad. On the issue of quantum, the respondent argued that the trial magistrate only found on negligence and defamation and left out the issue breach of contract. The respondent relying on the case of Butler v. Butler (1984) KLR 225 urged that the award of KShs. 100,000/= was too little for the three causes of action he claimed.

I have considered the rival submissions together with the authorities cited. The following issues arose for the determination of this court:

Whether there existed a contract between the appellant and the respondent.

If (a) is answered in the affirmative, whether the said contract was breached.

Whether the claim of defamation was proved.

If (c) is answered in the affirmative, what is the quantum of damages the respondent is entitled to.

It is trite law that the appellate court will not ordinarily interfere with the findings of the trial court on damages merely because it is of the view that had it tried it, it would have awarded higher or lower damages. To so interefere, I must be persuaded that the trial court acted on wrong principles of law or that the award was so high or,so low as to make it an entirely erroneous estimate of the damages which the respondent is entitled to.

Chitty on Contracts, 2004 Edition, describe privity of contract as follows:

“the common law doctrine of privity of contract means that a contract cannot (as a general rule), confer rights or impose obligations arising under it on any person except the parties to it”

It follows therefore that unless a person is privy, or is a party to a contract, he is barred from enforcing it in court. The respondent’s exhibits show that the meter number is in his wife’s name. The contract is between his wife and the appellant. In the circumstances, I find and hold that there was no privity of contract between the appellant and the respondent and subsequently no breach.

On the issue of defamation, I am fortified by the wordings in Winfied&Jolowicz on Torts, 16th Edition;2002, at page 404 where it states:

“Defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him”

Considering my earlier finding on privity of contract,and the sentiments in the case of John Ward (supra), I find that the banner used by the appellant was not meant to target the respondent. He was not the owner of the meter and therefore could not have been defamed. He also failed to prove any loss if at all.

Accordingly I set aside the trial court’s judgment and allow this appeal and dismiss the cross appeal. Each party to bear its own costs in this appeal.

Dated, Signed and delivered in open court this 7th day of November, 2014.

J.K.SERGON

JUDGE

In the presence of:

N/A for the Appellant

Ombete for the Respondent