[2022] KEHC 12712 (KLR)

Kenya Power & Lighting Company v Gichure (Suing as the Administrator of the Estate of Julius Gichure Wanjiru) (Civil Appeal E005 of 2020) [2022] KEHC 12712 (KLR) (19 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12712 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E005 of 2020

GWN Macharia, J

July 19, 2022

Between

Kenya Power & Lighting Company

Appellant

and

Simon Karumi Gichure

Respondent

Suing as the Administrator of the Estate of Julius Gichure Wanjiru

(Being an appeal from the judgment and decree in the Chief Magistrate’s Court at Naivasha CMCC No. 452 of 2018 delivered by Hon. Mutua (Mr.), RM on 17th day of November, 2020)

Judgment

The Appeal 1. The instant appeal is with respect to the judgment by Hon Mutua RM delivered on the November 17, 2020 in CMCC No 452 of 2018 whereby the trial court found in favour of the respondent as follows:a.General damages for pain and suffering: Kshs 100,000. 00b.Loss of dependency: Kshs 3,000,000. 00c.Loss of expectation of life: Kshs 150,000. 00d.Special damages: Kshs 123,250. 00Less 10% contribution Kshs 337,325. 00Net total: Kshs 3,035,925. 00

2. Additionally, the respondent was awarded costs and interests at court rates.

3. The appellant being aggrieved by the said decision of the learned trial magistrate filed its memorandum of appeal dated the November 28, 2020 to have the decision of the trial magistrate set aside, the assessment of damages be done and the costs of the appeal be awarded.

4. The memorandum of appeal sets out 11 grounds that:i.The learned magistrate erred in law and in fact by finding the appellant 90% liable contrary to the evidence adduced at the trial.ii.The learned magistrate erred in law and in fact by holding the deceased only 10% liable contrary to the evidence adduced at the trial.iii.The learned magistrate erred in law and in fact by failing to consider the collective weight of the testimonies by witnesses and evidence adduced at trial pointing to the entire and/or substantial negligence of the deceased.iv.The learned magistrate erred in law and in fact by misapprehending the facts leading to erroneous determination on both liability and quantum.v.The learned trial magistrate erred in law and in fact by failing to consider and sufficiently appreciate the appellant’s written submissions.vi.The learned magistrate erred in law and in fact by failing to be guided by the doctrine of stare decisis on the relevant and recent authorities emanating from the superior courts.vii.The learned magistrate erred in law and in fact by awarding the respondent damages under pain and suffering; loss of expectation of life without the respondent having a grant authorising him to prosecute the suit and receive damages under Law Reforms Act.viii.The learned magistrate erred in law and in fact by awarding the respondent exorbitant sums under pain and suffering; loss of expectation of life contrary to precedents and without giving sufficient reasoning for the awards.ix.The learned magistrate erred in law and in fact by failing to be guided by the doctrine ofstare decisis to use applicable basic minimum wage and multiplier approach in the instance where the income of the adult deceased was not proved.x.The learned magistrate erred in law and in fact by awarding an exorbitant global sum of Kshs 3,000,000. 00 under loss of dependency contrary to the written submissions by both parties.xi.The learned magistrate erred in law and fact by awarding an exorbitant global sum of Kshs 3,000,000. 00 under loss of dependency without giving sufficient reasoning for the said award.

5. The appellant prayed for orders that the appeal be allowed, the judgment be reversed, the suit be dismissed with costs and the costs of the appeal be awarded.

6. The appeal was canvassed by way of written submissions.

7. This being the first appeal I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified and so give due regard for that. See: Selle & Another v Associated Motor Boat Company Ltd &others [1968] EA 123 where the court stated as follows: -“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has 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.”

Background 8. The respondent initiated the claim vide a plaint dated the May 28, 2018 in which it faulted the appellant wholly for the death of his son as a result of an electrocution incident on the May 30, 2015 at Kayole Estate in Naivasha.

9. The respondent faulted the appellant for the said accident and relied on the doctrine ofres ipsa loquitor and averred the elements of negligence on the part of the respondent and breach of duty of care as particularized in paragraph 4 of the said plaint.

10. The respondent sought judgment against the appellant for:a.General damages under the Fatal Accidents Act and the Law Reform Act.b.Special damages of Kshs 123,250. 00. c.Costs of this suit and interests.

11. The matter proceeded ex-parte in the first instance and the judgment was set aside upon an application by the appellant. Subsequently, the appellant filed its statement of defence dated the July 25, 2019 in which it denied liability for the said incident leading to the death of the deceased. It urged the court to dismiss the suit with costs.

Evidence 12. The respondent was the only witness for the plaintiff’s case. He stated that the deceased was his son. He testified that the was in the course of fixing gutters when he was electrocuted and died instantly. He confirmed having not been at the scene. It was his further testimony that the deceased was in perfect health condition prior to his death. On cross examination, he stated that the cables were close to the building but were moved higher after the accident.

13. The appellant called one witness. He stated that he was the safety health and environment engineer. He prepared a report with respect to the accident. He noted that the building was constructed after the conductors had been in place. The owner of the building had failed to maintain the minimum 1. 2 metres distance from the conductors as the distance was 0. 5 metre. He testified that the owner of the said structure had not called to request for relocation of the conductors and/or for the power to be switched off to avert any danger. It was further the testimony of DW1 that the building owner had the responsibility to communicate and notify the defendant of any need to switch of power or relocate the conductors to give room for construction. He blamed the deceased and the owner of the building.

Submissions Appellant’s submissions 14. The appellant filed its submissions dated the January 25, 2022 in which it condensed the grounds of appeal.

15. On the apportionment of liability, the appellant submitted that the respondent failed to sufficiently establish that a duty of care was breached and as a result the deceased succumbed due to the said breach.

16. The appellant submitted that the deceased was engaged to put up gutters on a building which was so close to the live conductors and it was at no point notified to switch of power supply near the area and/or relocate the conductors which the owner of the building had breached the way leave.

17. It was further submitted by the appellant that the respondent never called any eye witness to give the chronology of the events leading to the electrocution incident. The police never made the findings on how the accident occurred save that the matter was reported. The appellant’s witness testified that the cause of death was yet to be established; that is whether it was as a result of a fall from a two storey building or electrocution. That as such, the appellant could not be blamed for any breach of duty or negligence on its part.

18. The appellant further submitted that the deceased was not owed a duty of care by the appellant but by the owner of the structure he was working on. As such, no negligence ought to be attributed to the appellant.

19. In urging the court to hold liable the owner of the house under construction, the appellant relied on the authority of Phyllis N Mbaluto v Kenya Power and Lightning Co Limited [2012] eKLR where it was held:“The totality of all the foregoing is that by the time the plaintiff commenced her construction, the power line was already in place. For her to have testified to the contrary, means that she was being economic with the truth. Her testimony cannot therefore be believed.Indeed had there been buildings on the suit premises, the defendant no doubt would have ensured that the power line did not run over buildings and would have taken steps to re-route it elsewhere if there were buildings along the intended path. The fact that the plaintiff and her husband applied for approval of building plans in 1997, 2 years after the way leaves consent and after the defendant had erected the power line is proof that the suit premises were vacant as at the time power-line was installed.Further, I am certain that the plaintiff was aware of the existence of the power line when she commenced the construction. She had asked for the same to be re-routed. She was advised to meet the costs of re-routing. She refused to comply and went ahead to commence construction. Had she complied, she would have mitigated her loss and perhaps this suit would not have been necessary. The plaintiff having elected to commence the construction in the knowledge that there existed a power line and against the condition imposed on the approval of her development plan, that it was subject to re-routing of the power line, she has only herself to blame for any loss she may have incurred as a result. The defendant was ready and willing to re-route the power line as long as the plaintiff paid for the same. She refused to do so. Answering issue number 5 as framed therefore, I am satisfied that the loss suffered if at all cannot be apportioned to the defendant.”

20. The appellant submitted that the awards for pain and suffering and loss of expectation of life under the Law Reforms Act ought not to have been awarded as the respondent only produced a grant ad litem authorising him to institute proceedings but not to collect proceeds of the same.

21. In so far as the foregoing argument is concerned, the appellant invited the court to the authority of Stanley Muiru Njuguna & another v SK [2019] eKLR where it was held:“18. However, it is noteworthy that there is no dispute that the respondent filed and prosecuted this suit on the strength of a limited grant of letters of administration ad litem issued to her by the High Court on February 6, 2013. It is not disputed that the grant authorized the respondent to file this suit. But that is as far as that limited grant of letters of administration ad litem can go. That grant does not contain authority or power to prosecute a filed suit. It did not contain the power to collect or receive proceeds of the suit should plaintiffs be successful. Those should have been included in the limited grant.19. Consequently, the argument by the trial court that it was not the intention of the legislature or court issuing the grant to have parties file suits in court to have them sleep in the registry with no intention of prosecution does not convince me bearing in mind that the High Court issues what the applicant has asked for. What is issued to her is what she is entitled to in law because it is what she asked for. There was nothing preventing the respondent from applying for rectification of the limited grant if respondent wanted powers beyond the power to file suit. This is not a matter of form. It is a matter of substance which goes to the core of the type of authority given in the limited grant.20. Though the respondent prosecuted this suit therefore, she did it without legal power to do so and she lacks legal power to collect or receive proceeds from prosecution of this suit in the event of success – under the Law Reform Act.21. In the circumstances the claim of the plaintiffs under the Law Reform Act fails.”

22. The appellant submitted that in the event the honourable court was inclined to award damages under the Law Reforms Act, then the Kshs 10,000. 00 and Kshs100,000. 00 would suffice for pain & suffering and loss of expectation of life respectively.

23. The third limb of the appellant’s submissions was on the use of a global sum as opposed to an award based on a multiplier as submitted by both the appellant and the respondent at the trial stage. Further, the appellant challenged the said decision on grounds that no sufficient reasons were given as to the use of the global award.

24. The appellant proposed the use of a multiplier of 20 years with the minimum wage of Kshs 5,844. 00 as per The Regulation of Wages (General) (Amendment) Order, 2015 and a dependency ratio of 1/3.

Respondent’s submissions 25. The respondent on the other hand filed his submissions dated the March 30, 2022 in opposition to the appeal.

26. The respondent submitted that he had discharged his duty to prove on a balance of probability that the appellant owed a duty to every member of the public and that duty had been breached. The respondent submitted that it was undisputed from the evidence on record that the deceased suffered an electrocution. The same was confirmed by the appellant’s report as well as the death certificate of the deceased.

27. It was further the submission of the respondent that the appellant ought to have enjoined the owner of the building if at all they considered him/them to have been responsible for the accident in one way or the other. The appellant having failed to do so could not point a finger of blame towards that direction.

28. On the issue of the global award, the respondent submitted that the trial magistrate had the discretion to apply any formula and not ought to be faulted for reasonably exercising the discretionary powers.

29. The respondent urged that the appeal be dismissed with costs.

Analysis And Determination 30. I have carefully appraised myself with the submissions by both parties and I have re-evaluated the evidence on record and find that the following issues are up for determination:i.Whether the appellant proved its case on a balance of probabilities.ii.Whether the appellant was liable to pay damages to the respondent.iii.What is the quantum of damages payable?

31. On discharge of the burden of proof, the provisions of sections 107,109 and 112 of the Evidence Act were extensively dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another[2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under section 107 (1) of the Evidence Act, cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in sections 109 and 112 of the Act.”

32. In Evans Nyakwana v Cleophas Bwana Ongaro (2015) eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(i) of the Evidence Act, chapter 80 Laws of Kenya. Furthermore the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”

33. The question then is, what amounts to proof on a balance of probabilities? In William Kabogo Gitau v George Thuo & 2 Others[2010] 1 KLR 526 the court stated that:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

34. The parties are in agreement that there was an electrocution incident and as a result the deceased succumbed. The only dispute revolves around who is to blame for the said incident as the chronology of events has not been given by an eye witness.

35. The court acknowledges that the appellant has a duty to the public as provided for under section 52 of the Energy Act that:“The provisions of the Act shall not relieve a licensee of the liability to make compensation to the owner or occupier of any land or the agents, workmen or servants of the owner or occupier of any land which is the subject of the provisions of this Act, for damage or loss caused by the exercise or use of any power or authority conferred by this Act or by any irregularity, trespass or other wrongful proceeding in the execution of this Act, or by the loss or damage or breaking of any electric supply line, or by reason of any defect in any electric supply line.”

36. The foregoing position has been deliberated on in a plethora of cases. In Kenya Power and Lighting Company Ltd v Joseph Khaemba Njoria [2015] eKLR, the court held that there can be no question that the appellant (KPLC) has the responsibility to ensure that the power infrastructure it has installed in the country for purposes of electrification is properly maintained to prevent accidents.

37. As to how the accident occurred, there has been no first hand account of the same. There has been no evidence to the indication that the appellant was notified to relocate the conductors by the owner of the building. Further, no evidence has been presented as to the conductors being faulty. The appellant has a higher responsibility to ensure the power lines and poles were well maintained. The continuous inspection of the power lines and poles especially in residential areas is key to ensuring the members of the public are cushioned against the dangers that come with live conductors.

38. The appellant confirmed that there had been similar incidences of electrocution which were as a result of people coming into contact with live wires during construction activities. However, there was no indication as to what steps were taken to avert subsequent incidences such as the instant one. The foregoing is a clear indication of negligence on the part of the appellant.

39. The court adds that the deceased on the other bore the duty to be careful. He was an adult and reasonably knew the dangers associated with getting close to live conductors. It was evident during trial that the building the deceased was working on had breached the way leave provisions. The deceased ought to have been more careful as he was well aware of the dangers the said conductors posed.

40. It would be unfair to hold the deceased wholly liable for the accident for the reason that he ought to have been knowledgeable of the potential danger by the live conductors. There was an electrical flashover near where the deceased was working and the same would have caught him by surprise regardless of the degree of caution he exercised.

41. In the circumstance, I find that both the deceased and the appellant contributed to the accident. There being no concrete testimony as to the events leading to the electrocution of the deceased and the court finding both parties to have been at fault, liability ought to have been apportioned equally. In doings so, I take a similar position as was posited in the case of Hussein Omar Farah v Lento Agencies [2006] eKLR (Nairobi Civil Appeal No 34 of 2005), where the Court of Appeal, held as follows:“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame… The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”

42. The foregoing was reiterated in Eliud Papoi Papa v Jigneshkumar Rameshbai Patel & another[2017] eKLR (High Court of Kenya at Naivasha Civil Case No 23 of 2015) where the court stated as follows:“Thus, the court is confronted with conflicting and irreconcilable evidence regarding how the collision occurred and which driver is to blame. It is true that under section 107 of the Evidence Act the plaintiff was obligated to prove his allegations of negligence against the defendants. However, the existence of conflicting versions on the collision does not necessarily mean that nobody was liable; a collision involving two vehicles almost always involves fault on the part of one or both drivers….The plaintiff’s and defendant’s account of the accident was equally doubtful. Of the collision however there is no dispute. In the circumstances, and based on the decision of the Court of Appeal in Hussein Omar Farah and Anne Wambui Ndiritu, I must find that the deceased and DW1 contributed equally in causing the collision and both must shoulder liability at 50:50. ”

43. The owner(s) of the building was not made a party to the proceedings and as such the court will not delve into his/their contribution towards the accident.

44. The appellant contested the award by way of a global sum. I am of the considered view that the choice of method to award damages is a discretionary power of the court based on the circumstances and merits of the case. The question thus arises as to whether the learned magistrate was well guided by applying the global award as opposed to the multiplicand, multiplier and dependency formula.

45. This position has been addressed extensively. The court relies on binding decisions in Mary Khayesi Awalo & Another v Mwilu Mulungi & Another [1999] eKLR cited in Albert Odawa v Gichimu Gichenji [2007] Eklr as regards to multiplier application:“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do.”

46. Further, in Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR the court was dealing with a similar issue and it stated:“[23]In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.[24].The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”

47. In the present case, the earnings of the deceased could not be proved. No proof was adduced as to his expertise thus the inability to establish what he did to earn a living. The decision to award a global sum in the circumstances cannot be faulted as the learned magistrate in exercising his discretion acted within the prescribed guidelines.

48. The appellant contends that the award of Kshs 3,000,000. 00 was exorbitant and/or inordinately high in the circumstances and urges the honourable court to revise the same. The principles of interfering with an award have well been spelt out in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A m Lubia and Olive Lubia [1985] it was held that:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

49. The Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR addressing the same issue held that –“…it is firmly established that this court will be disinclined to disturb the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this court in Butt v Khan [1981] KLR 349 when it held as per Law, J A that:‘An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

50. I have taken the initiative to consider the global awards made by the court in similar circumstance as hereunder:i.In the case of Isaac Muriira M’mwanie & another v Misheck Mutuma M’kuchina[2021] eKLR the deceased was aged 24 years as at the time of his death. A global award of Kshs 2,500,000. 00 was made.ii.In the case of Muli & another v Nzioka & another (suing as the administrators of the estate of the late Michael Makau Nzioka) (Civil Appeal 98 of 2019) [2022] KEHC 224 (KLR) (17 March 2022) (judgment), the Court of Appeal made a global award in the sum of Kshs.1,500,000. 00 for a 17-year old deceased.

51. In view of the foregoing, I find that an award of Kshs 3,000,000. 00 was excessive in the circumstances and substitute the same with an award of Kshs 2,300,000. 00

52. On the head of loss of expectation of life, the appellant proposed Kshs 100,000. 00 while the respondent proposed Kshs 150,000. 00. I find an award of Kshs 100,000. 00 reasonable in the circumstances. See: Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR where the court observed that:-“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs100,000/- while pain and suffering the awards range from Kshs10,000/- with higher damages being awarded if the pain and suffering was prolonged before death.”

53. Under the Law Reform Act, damages are awarded for pain and suffering depending on the amount of pain the deceased endured before he died. The longer and hence more pain the higher the damages. In this case the death was instantaneous and so Kshs 10,000/= would have sufficed as per Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (supra).

54. In view of the foregoing, the award for pain and suffering is revised to Kshs 10,000. 00 from 100,000. 00 while the award under loss of expectation of life remains undisturbed.

Disposition 55. In conclusion, I find that the appeal succeeds and the decision of the learned trial court is set aside. The final assessment of damages is awarded as follows:a.Deceased was 50% liable.b.Pain and suffering Kshs 10,000. 00c.Loss of expectation of life Kshs 100,000. 00d.Loss of dependency Kshs 2,300,000. 00e.Special damages Kshs 123,250. 00Sub-total Kshs 2,533,250. 00Less 50% contribution Kshs 1,266,625. 00Net total Kshs 1,266,625. 00

56. The appeal having partially succeeded, each party shall bear its own costs of the appeal. The respondent will however have full costs of the trial court.

57. It is hereby so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF JULY, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:1. ………………………………… for the Appellant.2. ………………………………… for the Respondent.