https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10943

Mwaniki & another v Kenya Power & Lighting Co. Ltd (Civil Appeal E046 of 2025) [2026] KEHC 10943 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10943 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E046 of 2025 S Mbungi, J July 17, 2026 Between Jane Wanjiku Mwaniki 1st Appellant Erastus Munene Thumbi 2nd Appellant and Kenya Power & Lighting Co. Ltd Respondent (Being an appeal from the Judgment and Decree of Hon. T.E. Marienga, Senior Resident Magistrate, delivered on 28th March, 2025 in Kenol CMCC No. 211 of 2024) Judgment Introduction 1.This is an appeal against the judgment of the Senior Resident Magistrate’s Court at Kenol (Hon. T.E. Marienga) delivered on 28th March, 2025. The Appellants, being dissatisfied with the said judgment, filed a Memorandum of Appeal dated 24th April, 2025, raising nine (9) grounds of appeal. The appeal was canvassed by way of written submissions, which both parties filed. 2.The Appellants were the Plaintiffs in the lower court, suing as the legal representatives of the Estate of Linus Muchira Thumbi (hereinafter "the Deceased"). They filed suit against the Respondent, Kenya Power & Lighting Co. Ltd., claiming damages for the wrongful death of the Deceased, who was electrocuted on 7th February, 2021, at Kings Clay Bricks Factory in Kenol. 3.The trial court after hearing the matter apportioned liability at 50:50, awarded Kshs. 50,000 for pain and suffering, Kshs. 100,000 for loss of expectation of life, Kshs. 1,297,584 for loss of dependency, and dismissed the claim for funeral expenses, reducing the total award by 50% due to contributory negligence. 4.The Appellants, aggrieved by this decision, have appealed on grounds touching on liability, the quantum of damages, the assessment of the multiplicand and multiplier, and the failure to award funeral expenses. The Respondent has cross-appealed on the quantum, arguing that the awards were inordinately high. Background 5.The brief facts of the case are as follows. On 7th February, 2021, the Deceased, while at Kings Clay Bricks Factory in Kenol, climbed onto a parked lorry. While on top of the lorry, he came into contact with an 11KV high-voltage power line and was electrocuted, dying on the spot. 6.The Appellants alleged that the accident was caused by the Respondent's negligence in failing to maintain its power lines, which were poorly raised from the ground (approximately 15 feet) and were dangerously sagging, thus creating a hazardous environment. 7.The Respondent denied liability, arguing that the accident was solely caused by the deceased's own negligence, as he voluntarily climbed onto the lorry and, seeing the clearly visible power lines, negligently held onto them, leading to his electrocution. 8.The trial court, after analyzing the evidence, found that both parties were to blame, apportioning liability equally. The Appeal 9.The appellants raised nine (9) grounds of appeal in their Memorandum of Appeal dated 24th April, 2025, which may be summarized as follows:I.The learned magistrate erred in law and in fact in apportioning liability between the parties at 50:50.II.The learned magistrate erred in fact and in law in failing to find the respondent 100% liable despite the weight of evidence.III.The learned magistrate erred in law and in fact by failing to find the appellant 100% liable despite the fact that the respondent never testified nor produced any evidence to rebut the appellant's evidence.IV.The learned magistrate erred in awarding general damages under the Fatal Accidents Act and Law Reform Act.V.The magistrate used an incorrect multiplicand (income figure) in assessing loss of dependency.VI.The learned magistrate erred in adopting a multiplier of 20 years instead of 24 years.VII.The trial court erred in its assessment of general damages under the Law Reform Act and Fatal Accidents Act, resulting in an inordinately low figure.VIII.The trial court erred in failing to award any amount for funeral expenses.IX.The magistrate failed to apply the principle that comparable cases should attract comparable awards. Respondent’s Submissions 10.The respondent submits that the deceased was the author of his own misfortune, relying on PW.1's own testimony that the deceased climbed onto the lorry voluntarily, that the power lines were clearly visible, and that had he not climbed up he would not have been electrocuted. The post mortem confirmed burns on the palms and fingers, establishing he held the wires. The respondent's SHE report identified both poor sag and the deceased's ignorance as root causes. 11.They cite Constance Pili Stephen v Abdalla Omar [2016] eKLR on negligence requiring proof, and Maina v Pkemoi [2025] KEHC 3967 and Kenya Red Cross v Lomukereng [2025] KEMC 145 for equal apportionment where blame is unclear. On the multiplier, they cite Mwanzia v Ngalali Mutua [2007] eKLR and Moses Mairua Muchiri v Cyrus Maina Macharia [2016] eKLR for abandoning the multiplier where the multiplicand is unascertainable, urging a global award of Kshs.1,000,000/=. On funeral expenses, they rely on Hahn v. Singh [1985] KLR 716 for strict proof of special damages, noting no receipts were produced and the Kshs.300,000/= catering claim is excessive. They seek costs as the successful party. Appellant’s Submissions 12.The appellants submit that the trial court erred in apportioning liability at 50:50 when the evidence established the respondent's sole responsibility. PW.1 Stanley Mwangi testified that the deceased climbed onto the lorry to arrange bricks, heard electric sparks, and found the deceased electrocuted, confirming the power lines were dangerously low-sagging. PW.2 PC Andrew Manyara confirmed that the 11kV lines were poorly raised at 15 feet, contrary to standards, and that the respondent's own report dated 1st April 2021 admitted this poor sag caused the accident. 13.The respondent called no witnesses and produced no rebuttal evidence. They cite Kenya Power v Joseph Khaemba Njorio [2005] eKLR and Joseph Kiptonui Koskei v KPL [2010] eKLR on the respondent's duty of care, and North End Trading v City Council of Nairobi [2019] eKLR on uncontroverted evidence. On quantum, they argue pain and suffering should be Kshs.20,000/= (Beatrice Nyanchama Obuya v Hussein Dairy [2010] eKLR), loss of expectation of life Kshs.70,000/= (Satwindner Singh Bhogal v. Satwinder Kaur Benawra), and the multiplier should be 24 not 20 years (Sidi Kazungu Gohu v Fatuma Abdi Mohamed [2021] eKLR). They also seek funeral expenses of Kshs.418,000/= (Mohamed v Kazungu [2024] KEHC 8649), and costs of the appeal. Analysis and Determination 14.It is trite law that on a first appeal, this Court has a duty to re-evaluate, reassess, and re-analyze the entire record of evidence, including testimonies and exhibits, and arrive at its own independent conclusions. While exercising this mandate, the Court must respect the trial court's advantage of seeing and hearing the witnesses, but it is not bound by findings of fact if they are inconsistent with the evidence on record. 15.In the seminal case of Peters v Sunday Post Limited [1958] , the Court of Appeal for Eastern Africa stated:” This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions." 16.This principle was more recently restated by this Court in Abdul v Mokua (Civil Appeal E077 of 2023) [2025] KEHC 4105 (eKLR), where it was held:” This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand." 17.I have considered the grounds of appeal, the evidence adduced in the lower court, and the rival submissions of parties. I find the main issues for determination to be ;i.Whether the trial magistrate erred in apportioning liability at 50:50.ii.Whether the trial magistrate erred in the assessment of quantum of damages, specifically:a.The assessment of the multiplicand.b.The selection of the multiplier.c.The award for loss of dependency.d.The award for pain and suffering and loss of expectation of life.e.The failure to award funeral expenses. Whether the trial magistrate erred in apportioning liability at 50:50. 18.The Appellants' primary contention is that the trial magistrate erred in apportioning liability at 50:50, arguing that the evidence adduced by the Appellants was uncontroverted and proved that the Respondent was 100% liable. They submitted that the Respondent failed to call any witnesses or adduce evidence to rebut the Appellants' case, and therefore, the evidence of the Appellants should have been believed in its entirety. 19.This argument is not persuasive. The applicable law as to the burden of proof is found in Sections 107, 108 and 109 of the Evidence Act, Cap 80 Laws of Kenya. Section 107(1) provides that "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." It is a well-established principle of law that the burden of proof lies on the party who alleges, and this burden does not shift, even in the absence of rebuttal evidence. The mere fact that the Respondent did not call a witness does not automatically mean the Appellants have proven their case to the required standard on a balance of probabilities. The trial court is still obligated to critically analyze the evidence presented to determine if it meets the threshold. 20.The Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Murithi & Another [2014] eKLR held: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof of proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” 21.Further, the court in Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR stated: “I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.” 22.I find the trial magistrate's findings on liability to be sound and well-supported by the evidence on record. The evidence of PW-1, the eye witness, and the post-mortem report confirmed that the Deceased died of electrocution after coming into contact with power lines. The uncontroverted evidence from the Respondent's own investigation report, which was produced by consent, indicated that the root cause of the accident was the "poor sag of the conductors" and the "ignorance on dangers posed by electricity as a hazard on part of the victim." This report is a crucial piece of evidence that the trial court was entitled to rely upon. 23.The evidence before the trial court, which I have independently evaluated, establishes the following facts:a)The respondent's 11kV high voltage power lines were hanging at approximately 15 feet from the ground at the scene of the accident;b)This height was below the required statutory standards for such installations;c)The lines were dangerously sagging;d)The deceased climbed on top of the lorry on his own volition;e)The deceased came into contact with the power lines and was electrocuted;f)The cause of death was electrocution, as confirmed by post mortem;g)The post mortem revealed 3rd and 4th degree burns on both the right and left hands, mainly on the palms and fingers extending to the wrist region, confirming that the deceased held onto the electric wires; 24.The respondent's duty is to install, supervise, inspect, and maintain electrical installations. As stated in Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR: “All electrical installations are the mandate of the Kenya Power and Lighting Company Limited who has a duty to ensure that the electrical installations are done by its qualified staff and in the manner specified in the Electric Power Act Cap 314 and the Rules thereunder. Kenya Power and Lighting Company is the only entity mandated to install, supervise, inspect and maintain electric installations." 25.The Respondent, as the owner and operator of the power lines, has a high duty of care, as established in Joseph Kiptonui Koskei v KPL Co. Ltd [2010] eKLR, where it was held that electricity is a dangerous commodity and the company must ensure proper maintenance. The sagging lines were a clear breach of this duty. 26.However, the Deceased also had a duty to take reasonable care for his own safety. By climbing onto a lorry located under visibly sagging high-voltage lines and then touching them, he failed to exercise this duty. The trial court correctly applied the principle of contributory negligence. In the case of Maina v Pkemoji (Civil Appeal E002 of 2023) [2025] KEHC 3967 (KLR), the court held that where the court is not clear who is to blame or where both parties are to blame, the court can apportion liability equally. 27.The Deceased's actions were a significant and direct cause of the accident. Had he not climbed the lorry, he would not have been electrocuted. Conversely, had the Respondent maintained the lines to a proper standard, the accident might not have occurred. In these circumstances, a 50:50 apportionment is not only reasonable but also fair. The ground of appeal on liability fails. Whether the trial magistrate erred in the assessment of quantum of damages 28.The Appellants challenge the quantum of damages awarded by the trial court. The Respondent, in its submissions, has also argued that the awards were inordinately high and should be reduced. An appellate court will only interfere with an award of damages if it is shown that the trial court proceeded on a wrong principle of law, or that the award is so inordinately high or low as to represent an entirely erroneous estimate. (See Kemfro Africa Ltd t/a Meru Express Services v A.M. Lubia & Another [1982-88] 1 KAR 727).a)Loss of Dependency (Multiplicand & Multiplier) 29.The Appellants submitted that the trial court erred by adopting a multiplicand of Kshs. 8,109.90 (the minimum wage for a casual labourer) instead of Kshs. 40,000, which they alleged the Deceased earned from his butchery business. They also argued that the multiplier of 20 years should have been 24 years. 30.I have carefully analyzed the evidence on this point. The Appellants failed to prove the Deceased's earnings. The evidence relied upon, the delivery notes from Muchaina Supplies, were from the year 2018, three years before the death, and not for 2021. Further, PW-3 confirmed that she did not provide the court with a business permit, a health certificate, bank statements, M-Pesa statements, or the Deceased's sales book. The only documentary evidence on the Deceased's occupation was the Death Certificate, which listed his occupation as a "casual labourer." 31.The court in Mwanzia v Ngalali Mutua Kenya Bus Ltd (cited in Albert Odawa v Gichumu Githenji Nku Heca No.15 of 2003 [2007] eKLR) held that the multiplier approach can be abandoned where the facts do not facilitate its application. The court stated: “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.” 32.The trial court was faced with a situation where the income was not proven. It was therefore prudent to adopt a more conservative approach. The court in Moses Mairua Muchiri v Cyrus Maina Macharia [2016] eKLR held that where it is not possible to ascertain the multiplicand accurately, courts can make a global award or use the minimum wage as a guide. 33.In the absence of proof of the Deceased's income from the alleged butchery business, and in light of the death certificate's indication that he was a casual labourer, I find that the trial magistrate was justified in using the minimum wage as the multiplicand. The Regulation of Wages (General) (Amendment) Order, 2022, which set the minimum wage for a casual labourer in areas outside Nairobi, Mavoko, Ruiru, and Limuru at Kshs. 8,109.90, was a reasonable guide. 34.Regarding the multiplier, I find the trial court's use of 20 years to be fair. The Deceased was 34 years old. In the case of Sidi Kazungu Gohu & another v Fatuma ..., and numerous other authorities, courts have used multipliers that reflect the uncertainties of life, the retirement age, and other contingencies. A multiplier of 20 years is within a reasonable range and was not an erroneous estimate. 35.The trial court's calculation of Kshs. 1,297,584 is thus upheld.b)Pain and Suffering & Loss of Expectation of Life 36.The Appellants argued that the general damages awarded under the Law Reform Act for pain and suffering (Kshs. 50,000) and loss of expectation of life (Kshs. 100,000) were inordinately low. The Respondent, however, argued that the awards for pain and suffering and for loss of expectation of life were excessive. 37.I find that the award for pain and suffering was reasonable. The Deceased suffered severe burns and died instantly. An award of Kshs. 50,000 is a conventional figure and not inordinately high. 38.For loss of expectation of life, the Deceased was 34 years. An award of Kshs. 100,000 is also within the conventional range and the award is not inordinately high. The authorities cited by the Respondent, where lower sums were awarded, do not establish that the trial court's decision was erroneous; they merely show that different judges may have made different assessments. The awards are not so high as to be a wholly erroneous estimate. These grounds of appeal fail.c)Funeral Expenses 39.The Appellants argue that the trial court erred by failing to award funeral expenses pleaded at Kshs. 418,000. The Respondent contends that only Kshs. 77,500 was strictly proved. 40.It is trite law that special damages must be both specifically pleaded and strictly proved. As stated in Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716: “Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act.” 41.The Appellants' failure to produce receipts 42.for the bulk of the claimed funeral expenses (catering, coffin, flowers, cross, P.A. system, funeral programs, etc.) means these items were not strictly proved. The trial court was therefore correct in disallowing the unsubstantiated claim. 43.While I am sympathetic to the Appellants' difficulties, I cannot depart from the law. I am guided by the recent decision in Kiarie v Mwaura (Civil Appeal E058 of 2022) [2024] KEHC 5979 (KLR), where the court reiterated the principle that special damages must be strictly proved, and that failure to do so means the claim must be dismissed. The trial court's finding on this issue was therefore correct. This ground of appeal fails.d.Final Orders 44.Having considered the Memorandum of Appeal, the Record of Appeal, and the parties' submissions, I find that the Appellants have not established that the trial court erred in its findings on liability or the assessment of quantum. The judgment of Hon. T.E. Marienga delivered on 28th March, 2025, is well-reasoned, consistent with the evidence and the law, and is hereby upheld. 45.Consequently, this appeal is dismissed in its entirety with costs to the Respondent. 46.Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 17TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Velma/ZildaMr. Kamindo for the Respondent present.Appellant and Advocate absent.