[2022] KEET 839 (KLR)

Mutui & another v Kenya Power and Lighting Company Ltd (Tribunal Case E004 of 2022) [2022] KEET 839 (KLR) (30 November 2022) (Ruling)

Neutral citation: [2022] KEET 839 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Tribunal Case E004 of 2022

D.K Mwirigi, Vice Chair, B.H Wasioya, F. M Kavita, D Jemator & F.S Ibrahim, Members

November 30, 2022

Between

Katithi Kivukui Mutui

1st Claimant

Monica Mbithe Kioko

2nd Claimant

and

Kenya Power and Lighting Company Ltd

Respondent

Ruling

1. Justus Musembi Katithi (deceased) at the age of 39 years, was a casual labourer in Umoja 1 area. On or about the 21st of March 2021, the deceased was lawfully pushing his handcart along a street within Umoja 1 area towards Green Angels Academy Primary School. The deceased passed by an electric post owned by the respondent and was electrocuted by an exposed live electric wire hanging from the said post. He died instantly.

2. By a statement of claim dated the 4th of April 2022, the claimants (suing as the administrators of the estate of Justus Musembi Katithi) sued the respondent for negligence which resulted in the death of their kin. They are seeking general damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs of the suit, interest at court rates on general and special damages and such other relief that the Tribunal may deem fit to grant.

3. The respondent denied the allegations contained in the statement of claim and put the claimants to strict proof thereof. It claimed that the deceased was wholly to blame or substantially contributed to the said accident.

4. At the hearing, the claimant testified and called two witnesses in support of his claim. PW1 Katithi Kivukui Muthui, the father of the deceased, narrated how he received a phone call from his son’s (deceased’s) employer by the name Sam, who requested him to travel to Nairobi since his son had been involved in an accident. He further told the court he did not travel on the same day because it was late and did so the following day. That Sam who took him to the scene of the accident and showed him the KPLC post that had electrocuted his son. He noted that the defendant had not sealed the accident scene.

5. The deceased’s employer, Sam, testified as PW2. He stated that he is in the business of selling furniture and has a furniture shop in Umoja. PW2 testified that the deceased was his friend and he used to give him work to deliver furniture bought by his clients to their homes. He stated that he had worked with the deceased for over ten (10) years. PW2 went on to narrate that on the 21st of March 2021 he secured a client within Umoja 1 Estate who needed his goods ferried from PW2’s place of business to his house. He introduced the client to the deceased and the two proceeded to the client’s house. However, after about 10 minutes, the client came back in a panic and informed PW2 that his employee had died after being electrocuted. PW2 proceeded to the accident scene and found the deceased dead. PW2 testified that he saw the deceased was holding onto and leaning onto a wire mesh used as a fence. He further stated that next to the wire mesh was a power line dangling. PW2 stated that there was a pool of water that was close to the wire mesh as can be seen on page 43 of the claimant’s bundle. It is his testimony that in an effort to try and avoid the pool of water, the deceased pushed his cart towards the wire mesh and when he touched the wire mesh, he was electrocuted because the wire mesh was already charged with electricity flowing from the dangling power cable that seemed to have a high voltage. He further confirmed that officials from the respondent company visited the scene and immediately repaired the hanging power cable. PW2 testified that he contacted the deceased’s father at about 9pm and he came to visit the scene the following day. It was his testimony that from his own assessment, the deceased was making an average of Kenya Shillings one thousand (Kshs 1,000) every day.

6. One Grace Ouma, an owner of a hair salon, testified as PW3. She stated that her place of business is next to the scene of the accident. On the fateful day, PW3 narrated how she heard the sound of electricity “vibrating” and when she left her salon she found a young man next to the power cable. She immediately thereafter, she saw a man run towards the said post with a blue plastic chair which he used to try and remove the deceased from the position he was in. She confirmed that she had previously touched the wire mesh next to the power cable and a felt a mild shock which she believed was from the powerline. The hanging cable has also been an issue that affected their businesses especially when it rained. She further stated that together with her landlord, they have called the respondents severally to fix the hanging cable but they did not respond. However, after the incident at hand, Kenya Power fixed the hanging cable and to date they have not faced any incidents relating to the power cable.

7. After the close of the claimant’s case, the respondent closed its case without calling any witnesses.

Claimant’s Submission 8. The parties filed their respective submissions. The claimants urged that the respondent be held fully liable having called no evidence in rebuttal. They submitted that they had proven their case on a balance of probabilities as envisioned by law for civil matters.

9. On quantum, the claimants submitted that they be awarded general damages amounting to Kshs 4,620,000 or alternatively Kshs 5,040,000 for lost years and the special damages claimed.

10. The claimants relied on the cases of Joseph Kiptonui Koskei v Kenya Power and LightingLtd [2010] eKLR, Kenya Power and Lighting Company Ltd v Joseph Khaemba Njoria [2005] eKLR, Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the Legal Administrator of the Estate of Kevin Osore Rapando (Deceased) [2020] eKLR, Kenya Power and Lighting Company Limited v Eric Mlongo Owino (Suing as the Legal Representative of the Estate of Johnstone Owino (Deceased) [2020] eKLR,Stella Kanini Jackson & another v Kenya Power and Lighting Company Limited, Lucy Wambui Kihoro (Suing as Personal Representative of Deceased, Douglas Kinyua Wambui) v Elizabeth Njeri Obuong [2015] eKLR and Alice O Alukwe v Akamba Public Road Services Ltd & 3 others [2013] eKLR in support of their submissions.

Respondent’s Submission 11. The respondent submitted that the claimant had failed to prove the respondent’s negligence contrary to the provisions of section 107 of the Evidence Act that requires that whoever alleges that a set of facts exists, must prove those facts to enable the court to give judgment.

12. On quantum, the respondent submitted that under common law, where damages due to the estate of the deceased under the Law Reforms Act and damages due to the dependents under the Fatal Accidents Act devolve to the same persons/beneficiaries, then the law requires that one award be offset against the other. The respondents urged the tribunal to consider offsetting the possible award under the Law Reforms Actagainst the award for loss of dependency being likely higher of the two.

13. Further, the respondent submitted that the claimant’s special damages amounted to Kenya Shillings one thousand (Kshs 1000/=) and urged the tribunal to only award special damages that were proved via production of official receipts.

14. The Respondent relied on the cases ofMartin v Shamash Brother Limited [1995-1998] 1 EA 179, Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka &another [2016] eKLR, Charles Masoso Barasa &another v Chepkoech Rotich &another (2014) eKLR, Hyder Ntheya Musili &Another v China Wu Yi Limited &another [2017] eKLR, Bernard Kirui Kiptoo &another v Esther Nyambura Mwangi (Suing as the Legal Representative of the Estate of Paul Kiratu-Deceased) &another[2020] eKLR, and Independent Electoral and Boundaries Commission &another v Stephen Mutinda Mule & 3others(20140 eKLR in support of their submissions.

Issues for Determination 15. Having considered the pleadings, evidence and submissions, the tribunal asserts that the main issues for determination are:-a.Whether the respondent is liable for negligence for causing the deceased’s death.b.Whether the claimants are entitled to the reliefs sought.

Analysis and Determination Whether the respondent is liable for negligence for causing the deceased’s death. 16. The evidence on record is that on the material day, the deceased was lawfully pushing his handcart along a street within Umoja 1 area road towards Green Angels Academy when he passed by a pool of water, he tried to avoid the water and ended up next to an electric post owned by the respondent. He was electrocuted by an exposed live electric wire hanging from the said post. The deceased died instantly.

17. PW3, Grace Ouma, who owns a salon next to the scene of the accident, informed the tribunal that together with her landlord, they had contacted the respondent herein numerous times informing them of the live naked wire and asked them to repair the same but to no avail.

18. This evidence was neither denied nor controverted by the respondent who chose not to call any witnesses. It was not denied that the respondent is the entity in Kenya responsible for erecting electric supply lines, maintaining them and distributing power through the said electric supply lines in most parts of the country.

19. The respondent relied on its statement of defence. However, that cannot constitute evidence capable of displacing the claimant’s evidence.

20. In the case of AMK (Suing as the mother and the next friend of JMK – Minor) v Kenya Power & Lighting Company Limited [2020] eKLR the Hon Justice Mabeya stated that;“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 displaced in cross-examination. In this case, the evidence was not displaced in cross-examination. Accordingly, the evidence of the plaintiff was uncontroverted.”

21. Section 121 (1) (h) as read together with section 140 of the Energy Act imposes upon a licensed distributor a duty to protect the health and safety of its employees, consumers and other members of the public. Section 140 states that:"140. (1)It shall be the duty of a distribution licensee to—a.build, maintain, and keep in good state of repair suitable and sufficient electric supply lines for purposes of enabling supply to be given in the area of supply specified in that behalf in the licence;b.operate an efficient, safe, co-ordinated and economical distribution system;"

22. Further, section 166 (2) of the Energy Act imposes upon a licensee liability arising from any failure, poor quality or irregularity of electricity supply. It provides that:"(2)The licensee shall be liable to pay appropriate compensation to a person if due to failure, poor quality or irregularity of electricity supply, the person incurs damage to his or her property, financial loss, loss of life due to negligence or avoidable default by the licensee."

23. In the case of DA v Kenya Power & Lighting Company Limited [2021] eKLR while determining the liability of the defendant, Hon Justice Gikonyo was of the opinion that;“The defendant is aware of the extreme danger posed by high voltage electric power lines which traverse through areas which are inhabited or accessible by the public. As the installer of the electric power lines and cables thereto, the defendant has a statutory duty of supervising, inspecting and maintaining its electric installations under section 52 of the Energy Act. This calls for a high degree of vigilance on its part in order to avert accidents. They therefore bear the duty to ensure the power lines or cables do not become source of injury to the members of public.”

24. Furthermore, in the event of an accident or incident causing loss of life, the respondent has an obligation to inform the Energy and Petroleum Regulatory Authority within forty-eight hours as per the provisions of section 214 of the Energy Act which states that;"1. A person engaged in any undertaking or activity pursuant to a licence under this Act shall notify the respective licensing authority and the Authority within forty-eight hours in writing, in the form and manner prescribed by the Authority, of any accident or incident causing loss of life, personal injury, explosion, oil spill, fire or any other accident or incident causing harm or damage to property which has arisen in Kenya or within Kenya’s Exclusive Economic Zone or Outer Continental Shelf.2. The licensing authority or the Authority may direct an investigation to be carried out into any incident under subsection (1) and take such action as it deems necessary."

25. The respondent herein did not produce any evidence to show that they had complied with the requirements of section 214 of the Act despite the tribunal’s inquiry on the same. In this regard, the tribunal was not pleased with the respondent’s blatant disregard of their statutory obligations.

26. Accordingly, this tribunal is satisfied that the respondent was negligent and was to blame for the accident and that the deceased was at no fault. We find and hold the respondent fully liable for negligence.

Whether the claimants are entitled to the reliefs sought. 27. The next issue is one of quantum. The claimants sought Kshs 61,000 as special damages. It is trite law that special damages must be specifically pleaded and proved. Out of the pleaded sum, the claimants were able to prove special damages in the sum of Kshs 1,000 only. No evidence was adduced to prove the claim for an additional sum of Kshs 60,000 being the burial costs.

28. On general damages, in H West and Son Ltd v Shepherd (1964) AC 326 the House of Lords in England stated that:-“… but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional ...”

29. In regard to the issue of damages awarded under the Law Reform Act, the High Court at Kakamega in West Kenya Sugar Co Limited v Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR observed that-“The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”

30. In the present case, the deceased was electrocuted and died instantly. As pointed out, money cannot renew the physical frame of the deceased. However, the damages ought to be reasonable in the circumstances.

31. Having found so, we will now address the extent of damages to award under the following heads.

a. General DamagesPain and suffering 32. The copies of both the death certificate and the postmortem report produced as evidence both indicate that the deceased died on the spot after he was electrocuted.

33. The claimant relying on the case of Francis Odhiambo Nyunja & 2 Others v Josephine Malala Owinyi (Suing as the Legal Administrator of the Estate of Kevin Osore Rapando (Deceased) [2020] eKLR proposed a sum of Kshs 100,000 under this head.

34. We rely on the case of Josephine Kiragu –vs- Vyas Hauliers Ltd(2017) eKLR where the deceased had died instantly, Njoki Mwangi, J held that an award of Kshs 10,000/= for pain and suffering was on the lower side and increased it to Kshs 30,000/=.

35. Further, in the case of Sukari Industries Limited v Clyde Machimbo Juma Homa Bay HCCA No 68 of 2015 [2016] EKLR where the deceased had died immediately after the accident and the trial court had awarded Kshs 50,000/= for pain and suffering, Majanja J held that:"(5)On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.”

36. Upon considering the pain and suffering that the deceased naturally underwent preceding his death, this Tribunal will award the sum of Kshs 50,000/ being guided by the above authority.

Loss of expectation of life 37. InMercy Muriuki & another –Vs- Samuel Mwangi Nduati & another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR 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 Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

38. In the case ofMoses Akumba & another –vs- Hellen Karisa Thoya (2017) eKLR Chitembwe J rendered that an award of Kshs 200,000/= for loss of expectation of life for a deceased who was a fisherman was not inordinately high. He stated that;“My view on the issues of loss of expectation of life is that each life is important and equal. There should be no distinction between a poor man and a rich one, no distinction between one who is working and un unemployed person. The awarded damages are for loss of expectation of life. The deceased was aged 25 years and a healthy person. He was a fisherman as per his mother’s evidence. The normal expectation is that he was going to live up to the age of 60 years. Whether he was going to get formal employment or not is not an issue. It is the aspect of that life having been cut short that is being considered.Due to the sudden death, the deceased’s life was shortened. All his expectations in this world were eroded. Having that in mind, we should then consider whether Kshs 70,000 is sufficient to compensate for that loss. We should not view the deceased as a simple fisherman whose expectation in life was limited to fishing. No one knows what tomorrow has for him.I do find that the award of Kshs 200,000 is fair and not inordinately high. The other dispute involves loss of dependency.”

39. In the cases of Patrick Kariuki Muiruri & 3 others v Attorney General [2018] eKLR Sergon J made an award of Kshs 200,000/= under this heading. In Vincent Kipkorir Tanui (Suing as the Administrator and/or Personal Representative of the Estate of Samwel Kiprotich Tanui (Deceased) –v- Mogogosiek Tea Factory Co Ltd &another [2018] eKLR an award of Kshs 200,000/= was made.

40. The claimant relying on the case of Kenya Power and Lighting Company Limited v Eric Mlongo Owino (Suing as the Legal Representative of the Estate of Johnstone Owino (Deceased) [2020] eKLR proposed an award of Kshs 100,000 as damages for loss of expectation of life. Upon consideration, we will award the conventional sum of Kshs 100,000/ under this head.

Loss of dependency 41. The deceased was 39 years old at the time of his untimely death and was supporting his parents. It was the claimant’s submission that the deceased therefore had 21 years working life remaining. The claimants proposed a multiplier of 30 and a dependency ratio of ½ while the respondent proposed a multiplier of 15 years and dependency ratio of 1/3.

42. It was the respondent’s submission that under common law, where damages due to the estate of the deceased under the Law Reforms Act and damages due to the dependents under the Fatal Accidents Act devolve to the same persons/beneficiaries, then the law requires that one award be offset against the other. The respondents urged the tribunal to consider offsetting the possible award under the Law Reforms Act against the award for loss of dependency being likely higher of the two.

43. The question of double compensation under the two Acts was explained by the Court of Appeal in Hellen Waruguru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) vs Kiarie Shoe Stores Limited [2015] eKLR where it was held as follows:-“This court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependents under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. The Law Reform Act (cap 26) section 2(5) provides that the rights conferred by or for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependents of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. The words “to be taken into account” and “to be deducted” are two different things. The words in section 4(2) of the Fatal Accidents Act are “taken into account”. The section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss”

44. In light of the foregoing, it is clear that what is required of the court is not to deduct one award from the other but to take into account the possibility of double compensation. This Tribunal is not persuaded that the claimant should not be awarded damages under loss of expectation of life, we also see no rationale as to why damages for loss of expectation of life should be deducted from the award under loss of dependency.

45. We rely on the case of Moses Akumba & another –vs- Hellen Karisa Thoya (2017) eKLR Chitembwe J rendered as follows:“The trial court invoked the provisions of section 4 (1) of the Fatal Accident Act and was well guided on the applicable legal principles. The trial court found that the deceased had only two dependents – the parents. A multiplier of 30 years was adopted in my view that multiplier is a bit high. The award is for the benefit of those two parents who were aged 52 and 53 years respectively. What this means is that the two parents would have lived upto the age of 80 years and beyond. The concern for the award is not how long the deceased would have lived but the extent and length of the dependency.I do find that a multiplier of 20years would be sufficient. This would have extended the dependency to over 70 years.The trial court adopted a sum of Kshs 20,000 as the deceased’s salary each month. PW1 testified that the deceased was a fisherman earning between Kshs 1000 -1,500 daily. It is obvious that the allegation court not be backed by any record or documentation. The deceased was working informally. According to his mother, he had a fishing boat and the proceeds were from selling fish. Counsel for the appellant is of the view that the court should adopt the minimum wage of Kshs 4,577. 220. It is clear to me that the deceased was active in life. There is no legal principal that any unemployed person should be considered to have been earning the minimum wage. Someone running a retail shop, kiosk or an eatery could be earning more than the minimum wage. The court simply has to consider whether a fisherman can earn Kshs 5,000 each week in his fishing business. This is a possibility as it translates to about Kshs 800 each day. I do find that the estimate of Kshs. 20,000 by the trial court is not exorbitant. The trial court adopted 1/3 dependancy ration which I find to be just. This is what the appellant is proposing.On this head of award, workout is as follows:20,000 x 20 x 12x 1/3 = 1,600,000. ”

46. In the instant case the deceased had only two dependents aged 60 and 62. Relying on the above decision by Justice Chitembwe, we do find that a multiplier of 20 will be sufficient in this case. This will extend the dependency of the claimants’ to over 80 years. In regard to the wages of the deceased, the claimant submitted that the deceased earned a monthly wage of about Kshs 26,000 which amount was not controverted by the respondent. We will therefore adopt the amount proposed by the claimant as the deceased’s wage and a dependency ratio of 1/3.

47. Considering the above findings, we therefore award for loss of dependency as follows;26,000 x 20 x 12 x 1/3 = 2,080,000

48. Accordingly, we hereby enter judgment in favour of the claimant and against the respondent as follows:Liability 100%a.Special damages Kshs 1,000/=b.General damagesi.Pain and suffering Kshs 50,000/=ii.Loss of expectation of life Kshs 100,000/=iii.Loss of dependency Kshs 2,080,000/= Total Kshs 2,231,000/=

49. Costs follow the event. The plaintiff shall have costs of the suit and interest on special damages at court rates from the date of filing the suit and interest on general damages at court rates from the date of judgment until payment in full.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF NOVEMBER 2022. IN THE PRESENCE OF:……………………… Ms. Doris Kinya Mwirigi Vice Chairperson……………………… Eng. Buge Hatibu Wasioya Member……………………… Eng. Fidelis Muli Kavita Member……………………… Ms. Dorothy Jemator Member……………………… Mr. Feisal Shariff Ibrahim MemberSIGNED BY: DORIS KINYA MWIRIGI