https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1662

Oisebe v Kenya Power and Lighting Company Ltd (Civil Appeal E166 of 2021) [2026] KECA 1662 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1662 (KLR) Republic of Kenya In the Court of Appeal at Kisii Civil Appeal E166 of 2021 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Nelson O Oisebe Appellant and Kenya Power and Lighting Company Limited Respondent (Being an appeal from the Judgment and Decree of the High Court of Kenya at Kisii (Ougo, J) dated 6th October 2020 in HCCA No. 17 of 2019) Judgment 1.This appeal arises from the judgment and decree of the High Court of Kenya at Kisii, (Ougo, J) dated and delivered on 6th October 2020, allowing the respondent’s appeal against the judgment of the principal Magistrate’s court at Kisii in CMCC No. 77 of 2003. 2.By a plaint dated 27th January 2003 and amended on 13th January 2010, Nelson O. Oisebe (the appellant) sued Kenya Power and Lighting Company Limited (the respondent) for breach of contract for the supply of electricity to the appellant’s premises. The appellant’s case against the respondent was that by contract entered into between 1984 and 1986 the respondent agreed to supply electric power to the appellant’s business premises at Itibo and Nyambunwa centres. According to the appellant, it was an implied term of the contract that the respondent would install and maintain a meter in a proper working condition. In 1987, The appellant discovered that the meter was defective and lodged a complaint with the respondent. The respondent demanded payment of Kshs. 20 so that it could install a check meter and the appellant paid on 4th June 1987 but the check meter was not installed until March 1996 and while it recorded 000000 readings, the defective meter’s reading was 247,912 units. 3.The respondent removed both the check meter and the defective meter without informing the appellant when the check meter was reading 139,278 units and the defective meter was reading 438,250 units. The appellant claimed to have suffered loss arising from the respondent's failure to properly test and promptly rectify the defect. The respondent disconnected electric power supply to the appellant's premises interrupting his business operations that occasioned loss estimated at Kshs. 2,000 per day. Although electricity supply was restored in February 2003, the respondent again wrongfully disconnected the supply on 10th October 2006 the respondent continued to send electricity bills for the period between October 2006 and April 2007 amounting to Kshs. 64,602 in addition to other bills relating to strange accounts. Even though the appellant paid the electricity bills for the premises, the respondent put Kshs. 184,000 in a suspense account instead of crediting the account. The appellant sought an order for true and accurate account for electricity supplied; a declaration that the electric power disconnection was unlawful; an order directing the respondent to comply with the law by facilitating reference of the dispute; mandatory injunction directing the respondent to restore electric power supply; overpayment of 625 units between march 1986 and March 2002; damages for breach of contract, loss of business and profit and special damages. 4.The respondent filed a statement of defence, amended on 10th February 2006; denying the appellant’s allegations, maintained that the disconnection of electricity was lawful and counterclaimed for Kshs.12,705.81 arrears in respect of account 561171-01 as at December 2002, and kshs. 159,456.56 as at 5th January 2005. The total amount in the counter claim was Kshs.172,162.37for unpaid electricity bills. 5.The trial court heard the case and in its judgment dated and delivered on 23rd January 2019, found in favour of the appellant; held that the respondent was under obligation to render a true and correct account for electricity consumed at the appellant’s premises; that the disconnection of electricity supply to the appellant's premises was unlawful and a breach of contract and ordered the respondent to comply with the law and restore electricity supply to the appellant's premises; issued an injunction restraining the respondent from interfering with electricity supply except in accordance with the law; directed the respondent to reimburse the appellant the overpayment equivalent to 625 units between March 1986 and March 2002 at current rates and awarded the appellant damages of Kshs.4,000,000 for breach of contract, loss of business and profits. The counterclaim was dismissed. 6.Dissatisfied, the respondent filed an appeal before the first appellate court challenging the trial court’s decision and faulted the trial court in: awarding general damages for breach of contract not supported by evidence and without giving reasons for the inordinately high award; basing its findings on irrelevant matter; failing to appreciate or take into account its defence, counterclaim and submissions; allowing a case that was not proved as required by law; failing to follow the applicable principle and authorities; failing to attribute full liability to the appellant despite the facts raised in the counter-claim. The respondent prayed that the judgment and decree of the trial court be set aside; the appellant’s suit in the trial court be dismissed with costs and its counter-claim before the trial court be allowed with costs. 7.The appellant filed a cross appeal dated 8th April 2020, on 11th May 2020 contending that: the order that the respondent do comply with the law and the contract by facilitating reference of the dispute to the board was spent; that the damages of Kshs.4,000,000 awarded for breach of contract, loss of business and profits were inordinately low and that the final judgment and decree of the trial court was incomplete. 8.The first appellate court heard the appeal through written submissions and in its judgment delivered on 6th October 2020, the first appellate court held that the disconnection of electricity to the appellant’s premises was lawful; the appellant was not entitled to the award of damages for breach of contract loss of business and profit; that the appellant did not prove the amount of money paid into the suspense account or special damages and dismissed the appellant’s claim for compensation. The cross appeal was struck out for being an afterthought. In the end, the first appellate court allowed the appeal, set aside the trial court’s judgement in terms of orders (b)(c) (d) (e) (f) and (g); directed that the bill of Kshs.134,741 be shared equally between the appellant and respondent and struck out the cross appeal for having been filed out of time with each party ordered to bear their own costs. 9.The appellant was aggrieved and has now filed this second appeal and raised several grounds of appeal, which can be summarized as follows, that the first appellate court erred in: making contradictory findings; striking out the cross Appeal rather than determining it on merit; holding that he was in default of paying electricity bills; failing to hold that the respondent raised inflated and unconscionable electricity bills; holding that special damages were not strictly proved; allowing the respondent's counterclaim on 50:50 ratio and holding that the disconnection of electricity was lawful. The appellant prayed that the appeal be allowed; the judgment and decree of the first appellate court be set aside and the respondent’s appeal before the first appellate court be dismissed with costs. 10.When the appeal was called out for plenary hearing, Mr. Gichana, learned counsel appeared for the appellant while the respondent was represented by Mr. Ruto learned counsel teaming up with Mr. Ombai. Both counsel relied on their written submissions with brief oral highlights. 11.Mr. Gichana submitted that the appellant’s evidence on the discrepancies relating to the check meter was not rebutted or controverted and the first appellate court fell into error when it held that the issue relating to the meter discrepancy and the appellant’s claim for overpayment of 625 units per month for the period between March 1986 and March 2002 had been adequately addressed and resolved. According to counsel, sections 83, 85(2) and 87 of the repealed Electric Power Act restricted either party from interfering with or dealing with electricity meter without notice or written consent and therefore the respondent acted contrary to the statutory provisions when it removed both the defective meter and the check meter rendering its actions negligent, malicious, unreasonable and procedurally improper. 12.Counsel asserted that the disconnection of electric power supply without notice was wrongful, unlawful and unprocedural and therefore the first appellate court erred in directing the appellant to pay Kshs.134,741 l demanded by the respondent, notwithstanding that the amount had been arrived at without notice to, or consent from, the appellant as provided in law; that respondent did not explain how the sum of Kshs.64,602 allegedly charged during the period when electricity supply had already been disconnected was arrived at and that the respondent did not establish breach of contract on the part of the appellant. The first appellate court erred in interfering with the findings of fact reached by the trial court. Counsel relied on the case of Peters v Sunday Post Ltd. [1958] EA 428, for the proposition that it is a strong thing for an appellate court to differ from findings of fact made by a trial court which had the advantage of seeing and hearing witnesses. 13.On the issue of damages and although Mr. Gichana acknowledged the legal position established in Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] eKLR, that as a general principle, general damages are not recoverable for breach of contract, he maintained that there were exceptions to the rule, especially where the conduct of a defendant is oppressive, high-handed, outrageous, insolent or vindictive and cited the case of Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 for that submission. 14.Mr. Gichana postulated that the respondent’s conduct in the circumstances of this case fell within the exceptions and justified an award of exemplary and aggravated damages and therefore the award of Kshs. 4,000,000 for breach of contract, loss of business and profit was proper, and relied on the cases of Fridah Kageni Julius v Kenya Power and Lighting Company Limited [2017] eKLR and Michell Cotts (K) Ltd v Musa Freighters [2011] eKLR, in urging the Court to allow the appeal, set aside the judgment and decree of the first appellate court and reinstate the judgment and decree of the trial court. 15.In opposition, Mr. Ruto submitted, relying on the cases of Mbogo and Another v Shah [1968] EA 93 and Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] KECA 894 (KLR), that the jurisdiction of this Court in a second appeal is confined to matters of law only and it ought not to interfere with the exercise of judicial discretion unless it is demonstrated that the courts below considered irrelevant matters, failed to consider relevant ones, or reached a decision that is plainly perverse. Mr. Ruto’s contention is that the appellant’s grievances in this appeal revolve around matters of fact rather than law which cannot be the basis of a second appeal; that the appellant did not demonstrate that the first appellate court’s findings were unsupported by evidence; were based on a misapprehension of evidence or that the court applied wrong principles. 16.Counsel maintained that the appellant did not establish that the respondent acted negligently, maliciously or with intention to deceive and therefore, there is no reason for interfering with the decision of the first appellate court. 17.With regard to special damages, he submitted that special damages must not only be specifically pleaded, they must be strictly proved and relied on the case of Hahn v Singh [1985] KECA 129(KLR) for the proposition that the appellant did not strictly prove the alleged special damages thus, the first appellate court properly found that the claim was not proved to the required standards. 18.On the counter claim, counsel asserted that the first appellate court properly allowed the counterclaim on a 50:50 basis, recognizing that while the respondent was obliged to render a proper account of electricity consumption, the appellant equally had the duty to pay for the electricity consumed. Counsel maintained that the other grounds of appeal were on issues relating to evidence and the standard of proof, which this Court should not revisit in a second appeal; that the first appellate court correctly applied the standard of proof in civil matters and found that the disconnection of electric power supply was lawful since the appellant did not produce receipts to show that he paid for the electricity consumed and cited the case of Kirugi & Another v Kabiya & 3 Others [1983] KECA 38(KLR), for the proposition that the burden remains on a plaintiff to prove his case on a balance of probabilities even where it is not defended. 19.Regarding the cross-appeal, counsel asserted that the cross appeal was filed more than one year after the appeal, without leave or application for extension of time and it was therefore, properly struck out, and cited the case of Kenya Bus-Rapid T/A Kenya Bus Services Management Co. Limited v Patrick Irungu Gichure [2018] eKLR for the submission that the delay was contrary to the prescribed timelines for filing appeals. 20.On the award of damages, counsel submitted that the appellant did not prove the alleged overpayment of electricity bills to entitle him to reimbursement; he did not prove loss of business or profits and the first appellate court properly found that the trial court erred in awarding general damages of Kshs. 4,000,000 for breach of contract. Counsel cited the cases of Joseph Ungadi Kedera v Ebby Kang/Sha Kavai (Personal Representative of Ephraim Kavai (Deceased)), CA No. (KSM) 239 of 1997, cited in Kenya Power and Lighting Company Limited v Fridah Kageni Julius [2014] eKLR, for the proposition that general damages are generally not recoverable for breach of contract because contractual losses are ordinarily quantifiable and must be specifically proved. It was the view of counsel, that the first appellate court correctly set aside the award of damages and urged this Court to dismiss the appeal with costs. 21.In a second appeal, the jurisdiction of this court is limited to matters of law only and must resist the temptation of delving into matters of facts. This duty was succinctly expressed in Kenya Breweries Limited v Godfrey Odoyo [2010] KECA 498(KLR) as follows:“This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” 22.We have considered the record, the grounds in support of the appeal, the rival submissions by counsel, and the law. The issues that arise for determination are whether the appellant was entitled to general damages for breach of contract, loss of business and profit; whether special damages were proved; whether the first appellate court erred in ordering that the amount of Kshs.134,741 in the counter claim to be shared on 50:50 basis and whether the first appellate court correctly struck out the cross appeal. 23.The first issue is whether the appellant was entitled to damages for breach of contract. The appellant’s claim against the respondent arose from the respondent’s decision to disconnect electric power supply to the appellant’s premises which the appellant contended was unlawful and in breach of contract. According to the appellant the meter installed in the premises was faulty an issue he raised with the respondent but the respondent failed to resolve it immediately and continued to send bills for alleged electricity consumption in respect of the account with the faulty meter. The disconnection was not only a breach of contract but also caused him loss of business and profit. The respondent maintained that the disconnection of the electric power supply was due to non-payment of electricity bills and was lawful. The trial court agreed with the appellant that the respondent breached the contract and awarded him damages of Kshs. 4,000,000 for breach of contract, loss of business and profit. 24.The first appellate court set aside the award of damages on the basis that the appellant had not proved breach of contract, and stated as follows:“In this case the respondent did not adduce any evidence to show that the appellant’s actions/behavior were oppressive, insolent or vindictive behavior nor was there a claim for exemplary or aggravated damages. On the contrary it was proved that the respondent had not been forthright. There was no evidence of receipt tendered by the respondent as proof of payment” 25.The first appellate court referred to the principles established in Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited (supra) that as a general principle, courts do not award damages for breach of contract, save in exceptional circumstances such as where the conduct of the respondent is shown to be oppressive, high handed, outrageous, insolent or vindictive which the appellant did not establish and was not therefore entitled to the damages awarded for breach of contract, loss of business and profit. 26.In Kenya Tourist Development Corporation v Sundowner Lodge Limited, [2018] eKLR, the respondent in that case filed a claim before the High Court premised on breach of contract and was awarded general damages for the breach of contract. On appeal, this Court set aside the award of general damages, restating the settled legal position that damages are not recoverable in cases of breach of contract. 27.The reason why courts do not normally award general damages for a breach of contract is because the law aims at strictly compensating quantifiable financial losses arising from breach of contract rather than punishing the party at fault by awarding general damages and therefore the court would expect a party claiming breach of contract to seek special damages rather than general damages. Courts will only depart from the general rule under exceptional circumstances where the loss cannot be reasonably quantified at the time of filing the suit. We are satisfied that the first appellate court properly set aside the award of damages for breach of contract, loss of business and profit as this claim fell in the category of special damages. 28.On the second issue, whether the appellant was entitled to special damages, the appellant claimed an average overpayment of 625 units per month at Kshs 10 each month between March 1986 and March 2002 and further that he used to earn on average daily income of Kshs. 2000 from the business and therefore he had suffered that loss due to the disconnection of electric power supply to his premises. The first appellate court revaluated the evidence on the record before the trial court regarding the discrepancy between the meter readings and noted that the appellant did not provide proof that the discrepancy between the check meter and faulty meter (295333) was 45,060 units; that he did not prove that the meter was faulty from 1987 and that there was no evidence that installation of a check meter necessarily meant that the meter he had reported was defective. 29.The appellant had also claimed that the respondent had billed him Kshs. 64,602.10 between 10th October 2006 and April 2007 notwithstanding the fact that the respondent had disconnected electric power supply during that period. The first appellate court found that the respondent should not have billed the appellant for consumption of electric power for the months his power supply had been disconnected. However, the first appellate court stated that there was no evidence from the appellant’s documents to show that he paid Kshs 64,602.10 and dismissed the claim for Kshs 64,602.10 as special damages. 30.The first appellate court found that the disconnection of electricity was lawful since section 64 of the repealed Electric Power Act permitted the respondent to refuse to supply electricity energy to any local authority, company, person, body or to person whose payments for the supply of electrical energy are in arrears. The first appellate court was satisfied that the appellant did not provide credible evidence that he paid for the outstanding bills and therefore concluded that the respondent was right in disconnecting electric power supply to the appellant’s premises. 31.We agree with the first appellate court that having found that the disconnection of electric power supply to the respondent’s premises was lawful, there would be no basis for allowing the appellant’s claim for breach of contract, loss of business and profit. The claim for loss of business and profit due to disconnection of electric power was in the nature of special damages which the appellant was required to strictly plead and prove. 32.As this Court held in Hahn v Singh (supra), special damages must not only be claimed specifically, they must also be proved strictly for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves. 33.This position was also articulated by this Court in Fridah Kageni Julius v Kenya Power & Lighting Company Limited [2017] KECA 474 (KLR), where the appellant had claimed that tenants moved out of the premised due to disconnection of electricity power by the respondent. The Court stated that the appellant did not prove the loss plus the claim for future rent in that the appellant did not produce the rent book or a receipt book showing payments of rent in respect of the suit premises and therefore the she did not discharge the burden of proof on the special damages. (see also Mohammed Ali & another v Sagoo Radiators Limited [2013] KECA 163 (KLR)). 34.In the present appeal, although the appellant stated that he was losing an average of Kshs. 2000 daily in business, he did not prove this loss and as the first appellate court correctly observed, the respondent did not also adduce evidence on the amount he paid to the alleged ‘suspense account’, to justify the claim for compensation of the amount he claimed as overpayment. We are satisfied that the first appellate court properly dismissed the claim for special damages. 35.The appellant again argued that the first appellate court wrongly allowed the respondent’s counter claim and erred in ordering that it be shared on 50:50 basis. The appellant had claimed that the meter (number 295333) was faulty and informed the respondent about it. The respondent informed the appellant that it would investigate the complaint and asked the appellant to pay Kshs. 20 for purposes of installing a check meter to determine the issue of power fluctuations and the appellant complied. The respondent later informed the appellant that the voltage fluctuations had been contained and eliminated which the first appellate court considered to have been an acknowledgement by the respondent that the meter was indeed faulty, the issue had been addressed and the meter removed because it was not accurately measuring consumption and was replaced with a new meter which, according to the respondent, had provided the basis for determining the appellant’s normal average monthly electricity consumption. The appellant’s account was to be debited with the cost of 13674 units lost due to the faulty meter. 36.The first appellate court observed that although the respondent admitted that the meter had been faulty from June of 2001, the respondent informed the appellant on 28th January 2003 that he (the appellant) should pay Kshs. 134,471.94 for the cost of those 13674 units that had not been charged from June 2001 to April 2002. The first appellate court noted that the meter became faulty in June of 2001, raising the issue of who was to pay for the 13,674 units lost between June 2001 and April 2002. 37.Upon reevaluating the evidence on record, the first appellate court observed that it had taken the respondent about 9 months to discover the defect and 10 months to communicate to the respondent about it. The court further observed that a check meter should have been removed after 7 days but in this case, it was removed after 6 years on realization that the meter was faulty. In the view of the first appellate court, the respondent had a duty to inform the appellant of his correct electricity bills free from errors while the appellant had an obligation to pay for the electric power consumed, but the appellant had not shown that he made such payments. However, since both parties were at fault, the first appellate court ordered that amount of Kshs. 134,741 in the counter claim be shared between the appellant and respondent on a 50:50 ratio. 38.In this appeal, each party had an obligation: the respondent’s obligation was to supply electric power to the appellant’s premises while the appellant’s duty was to pay for the electric power consumption. The first appellate court having found each party to be at fault, we find no reason to interfere with the first appellate court’s order that the amount be shared equally between the two parties as this was a fair and equitable way of balancing the fault in that dispute. 39.Regarding the cross appeal, the appellant argued that the first appellate court fell into error in striking out his cross appeal instead of determining it on merit, while the respondent maintained that the cross appeal was filed out of time, more than one year after the filing of the appeal and without leave or application for extension of time thus, it was properly struck out. 40.The appeal before the first appellate court was filed on 12th February 1018 while the cross appeal was filed on 11th May 2020, more than one year later and after directions had been issue on how the appeal was be disposed of and for that reason, the first appellate court held that cross appeal was an afterthought and struck it out. 41.It is indeed, true that the Civil Procedure Act and the Rules made thereunder do not provide for the filing of a cross- appeal and the timelines for doing so. This is in contrast to the Court of Appeal Rules which require that a notice of cross appeal be filed within thirty days upon service of the memorandum of appeal or not less than thirty days before the hearing of the appeal. 42.Under section 79G of the Act, a party who desires to file an appeal may do so within 30 days, but the High Court retains power to extend time for filing of an appeal upon sufficient reason(s) being given. In the present case, the appellant filed the cross appeal after one year following the filing of the appeal, without leave or seeking extension of time to file the cross appeal. 43.In Shah Hemraj Bharmal & Bros vs. Santosh Kumari w/o J.N. Bhola [1961] EA 679, the Court of Appeal for Eastern Africa held that it is incumbent upon a party who desires to lodge a cross-appeal to make an application or file it within a reasonable time and if a party delays in filing an application for extension of time and there is no question or mistake on the legal adviser, but inordinate delay and no sufficient reason has been shown, the application must be refused. 44.In the appellant’s case, the cross appeal was not only filed one year after the appeal had been filed but also without leave of the court or an application for extension of time to file the cross appeal out of time. The appellant did not satisfy the first appellate court why the cross appeal was filed late and without seeking leave of the court or applying for extension of time to file the cross appeal. A cross appeal is just like an appeal only that it is filed after the appeal has been filed. In the absence of timelines under the Civil Procedure Act and the Rules made thereunder, the party intending to file a cross appeal must do so within 30 days after being served with the record of appeal or so soon thereafter or seek leave of the court to file the cross appeal. A party who fails to do so, risks his or its cross appeal being struck out for having been filed out of time. 45.We therefore agree with the first appellate court that the cross appeal was incompetent and it was properly struck out. 46.Upon considering the whole appeal, we find that it is bereft of merit and is hereby dismissed with costs. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY,2026.ASIKE-MAKHANDIA………………………JUDGE OF APPEALE. C. MWITA………………………JUDGE OF APPEALB. ONGAYA………………………JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.