Nyaga v Langfield Systems Limited & another (Cause 262 of 2017) [2026] KEELRC 1382 (KLR) (22 May 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU CAUSE NO. 262 OF 2017 (Before Hon. Lady Justice Anna Ngibuini Mwaure) TIMOTHY KINYUA NYAGA…………………..……… CLAIMANT VERSUS LANGFIELD SYSTEMS LIMITED ……….…...… 1ST RESPONDENT KENYA POWER & LIGHTING COMPANY LIMITED …………………………..2ND RESPONDENT JUDGMENT Introduction 1. The Claimant commenced this suit via Statement of Claim dated 20th June 2017, seeking the following orders: a.General damages b.Special damages Kshs.22,500,000/= c. Costs of this suit and interest d.Any other cost that the court may award. Claimant’s case 2. The Claimant avers that he was employed by the 1st Respondent at the Nakuru–Lanet Power CAUSE NO. 262 OF 2017 JUDGMENT 1 | P A G E Substation, which was owned and operated by the 2nd Respondent, thereby imposing upon them a duty of care to all persons working therein. 3. On 3rd October 2014, while undertaking soil topography works at the said substation under humid and rainy conditions, the Claimant avers that he was struck by an electric current, sustaining severe bodily injuries, including second-degree burns, internal injuries, unconsciousness, and ultimately amputation of his left leg. He attributes these injuries to the Respondents’ negligence in failing to provide safe working conditions, adequate safety precautions, hazard prevention measures, and proper warnings at the site. 4. As a result, the Claimant avers that he suffered injuries, including: a. Second degree burn on face, upper limbs, chest and left leg b. Internal injuries c. Inability to pass urine d. Unconsciousness e. Severe headache f. Left leg became gangrenous and was amputated CAUSE NO. 262 OF 2017 JUDGMENT 2 | P A G E g. Superficial infections of the stamp 5. The Claimant, aged 36 years old, seeks special damages arising from the injuries sustained, he claims Kshs. 7,500,000/= for a modular prosthetic leg with a lifespan of 15 years, and anticipates replacing it twice over his expected lifetime, bringing the total future medical expenses to Kshs.15,000,000/=. 6. Further, based on his estimated monthly salary of Kshs. 95,000/= and a remaining working life of 26 years, the Claimant claims Kshs.7,500,000/= for loss of future earnings. 7. The Claimant avers that as a result of the accident, he has suffered severe physical and psychological harm, together with considerable economic loss. Despite demand, the Respondents have failed to settle the claim. 8. The Claimant therefore prays for judgment in his favour for the special damages pleaded, together with general damages, costs, and interest. 1 st Respondent’s response to the statement of claim 9. In opposition, the 1st Respondent filed a response to the statement of claim dated 18th August 2017. CAUSE NO. 262 OF 2017 JUDGMENT 3 | P A G E 10. The 1st Respondent vehemently denies that the Claimant was its employee at the material time or that he sustained injuries in the manner alleged, and invites the Claimant to strict proof thereof. 11. The 1st Respondent contends that it is a duly established entity with adequate safety systems, trained personnel, and protective devices to ensure a safe working environment. 12.The 1st Respondent denies all particulars of negligence, breach of duty, injuries, and special damages pleaded, and asserts that if any accident occurred, which is denied, it was occasioned by the Claimant’s own negligence, including failure to follow safety procedures, instructions, or to use protective equipment, and acting recklessly. In the alternative, the 1st Respondent invokes the doctrine of volenti non fit injuria, arguing that the Claimant voluntarily accepted the risks inherent in his work. 13. Further, the 1st Respondent contends that any alleged accident was caused or substantially contributed to by the negligence of the 2nd Respondent, including failure to switch off power, warn workers of prevailing weather conditions, or place warning signs. CAUSE NO. 262 OF 2017 JUDGMENT 4 | P A G E 14. In light of the foregoing, the 1st Respondent prays that the Claimant’s claim be dismissed with costs. 2 nd Respondent’s reply to the statement of claim 15.The 2nd Respondent also opposed the statement of claim dated 27th October 2017. 16. The 2nd Respondent wholly denies the allegations contained in the Statement of Claim and puts the Claimant to strict proof thereof. 17.The 2nd Respondent specifically denies that the Claimant was working at its substation on 3rd October 2017 or that he sustained injuries in the course of his duties as alleged. 18. The 2nd Respondent further denies all particulars of negligence and liability for the alleged injuries or damages. Without prejudice, it avers that if any accident did occur, which is denied, the premises were safe, adequate protective gear and instructions were provided, and the Claimant’s own negligence substantially contributed to the occurrence, including failure to wear protective gear, ignoring weather conditions, disregarding instructions, and exposing himself to danger. CAUSE NO. 262 OF 2017 JUDGMENT 5 | P A G E 19.The 2nd Respondent also contends that the alleged accident was occasioned by factors beyond its control, such as rain and humidity, and that no demand or notice of intention to sue was served, rendering the suit premature. Jurisdiction of this Honourable Court is not admitted. 20.In the circumstances, the 2nd Respondent prays that the Claimant’s claim be dismissed with costs. Claimant’s evidence in court 21.CW1, Dr. Abdalla Mwaura, a retired medical doctor, examined the Claimant on 9th March 2017 and prepared a medical report dated 21st March 2017 for which he charged Kshs.2,000/=, supported by a receipt. He sought to produce the report and receipt as exhibits. He also charged Kshs.10,000 for court attendance. The report indicated that the Claimant had sustained severe injuries, including an above-knee amputation on the left leg and extensive burns, with permanent disability assessed at 60%. 22. In cross-examination, CW1 confirmed that the examination was conducted over four years earlier and had not been repeated. He reiterated that the Claimant would require an artificial leg costing CAUSE NO. 262 OF 2017 JUDGMENT 6 | P A G E about KShs.250,000/= and cosmetic surgery estimated at Kshs.200,000/= or more. 23.In re-examination, CW1 restated his observations of the amputation and confirmed the estimated costs of the artificial leg at Kshs.250,000/= and cosmetic surgery at Kshs.200,000/= 24. CW2, Philip Wafula, an orthopaedic technologist specializing in artificial limbs, testified that he prepared and signed a quotation in 2017 for an artificial leg at Kshs. 7,500,000/=, accompanied by a letter. He explained that the leg’s lifespan is 10– 15 years, with components imported from Germany. He noted that the quotation represented the lowest estimate, though prices have since changed, and the Claimant may require two or three replacements in his lifetime. The quotation was produced as exhibits 3(a) and 3(b). 25. Upon cross-examination by the 1st Respondent’s counsel, CW2 stated that he holds a diploma in Orthopaedics technology but had not filed it in court. He confirmed that Friars International (K), his registered company, manufactures orthopaedic products, with mechanical artificial limbs forming about 70% of his work. He added that his products are sold through the National Council for Persons CAUSE NO. 262 OF 2017 JUDGMENT 7 | P A G E with Disabilities, with mechanical legs priced between Kshs.250,000 and Kshs.1,000,000, depending on functionality. He had previously made six “C-legs” but had not filed supporting evidence or quotations from Ottobock, the German supplier. 26. Upon cross-examination by 2nd Respondent’s counsel, CW2 stated that he did not present his certificate of registration or business licence in court. He testified that his company exclusively manufactures artificial limbs and that he personally assesses patients to determine their needs. Upon assessing the Claimant, who had failed with a mechanical leg, he relied on verbal history and a medical report from Kijabe Mission Hospital. He explained that the quotation of Kshs.7,500,000/= included both the artificial limb valued at about Kshs.5,000,000/= and post-warranty service. He admitted he had no supplier’s quotation and reiterated that the prosthesis has a lifespan of 10 to 15 years, depending on the case. 27. CW3, Johnson Kamande, adopted his written statement dated 31st March 2017, together with the list of documents dated as his evidence in chief. 28.Upon cross-examination by the 1st Respondent’s counsel, CW3 stated that on 1st October 2014, he CAUSE NO. 262 OF 2017 JUDGMENT 8 | P A G E accompanied the Claimant to conduct levelling work at an operational power station. He was not employed by either Respondent but had been called to assist. He stated that he was positioned about four to five meters from the Claimant, who was using an aluminium levelling staff approximately five meters long, extended to about two meters. The power lines were situated about 2.5 to 3 meters above. He confirmed that the Claimant did not touch the lines but suddenly froze while standing on the ground. 29.CW3 further stated that he did not know how the current reached the Claimant, as he himself did not touch the wires. He explained that he holds a diploma in civil engineering and surveying, but has no training from the Respondents on handling electricity or power lines. He observed that there were no warning signs at the site and only guards manning the gates. On seeing the Claimant frozen, he kicked him to the ground. He confirmed that the Claimant had protective gear, including a helmet. CW3 concluded that the accident was attributable to the 2nd Respondent, the owner of the power station, for failing to provide safety guidance. CAUSE NO. 262 OF 2017 JUDGMENT 9 | P A G E 30. Upon cross-examination by the 2nd Respondent’s counsel, CW3 denied the statement attributed to him by the 2nd Respondent, asserting that it was fabricated. He maintained that the Claimant did not touch any live wire and that the signature appearing on the statement was not his, noting differences in the lettering. He emphasized that he had not signed the document and had not filed any statement written in his own hand. 31. CW3 stated that he had previously visited the substation on several occasions but had not interacted with employees of the 2nd Respondent. He stated that no documents were issued before entry, no safety briefing was conducted, and there were no warning signs at the site. He emphasized that he would not have entered any barricaded or marked danger area. He confirmed that on 3rd October 2014, he reported at 8 a.m., worked until 5 p.m., and was not aware of any permit to work co-signed by the 2nd Respondent, noting that the Claimant was the one in contact with them while he was merely the Claimant’s employee. He added that other workers were present at the site. 32. He further stated that on the material day, they reported at 4 p.m. and operated from a site office CAUSE NO. 262 OF 2017 JUDGMENT 10 | P A G E within the station, using an aluminium staff for survey work. He did not know what triggered the Claimant’s electrocution, but opined that if humidity was the cause, the 2nd Respondent ought to have warned them and stopped the work. 33. In re-examination, CW3 clarified that on the material date, they commenced work at 8 a.m, as was customary, and entry into the station was facilitated by guards and staff of the 2nd Respondent. He reiterated his opinion that humid conditions contributed to the accident and maintained that he observed the Claimant frozen without touching any cable. 34. CW4, the Claimant, adopted his witness statement dated 19th June 2017 and his list of documents dated 20th June 2017 as his evidence in chief, except exhibits 1 to 7 and 8 and 9, which were already produced. 35.CW4 testified that the accident gravely affected his life, as his leg was amputated, leaving him without employment and unable to climb buildings. He stated that he has endured severe physical and psychological pain, undergone four surgical operations, and even lost the ability to have children. He emphasized that his family has suffered CAUSE NO. 262 OF 2017 JUDGMENT 11 | P A G E greatly as a result of his condition and prayed for damages as set out in his claim. He further clarified that he did not enter the substation without authority, having reported to the site manager and been allowed entry by security personnel. 36. Upon cross-examination by the 1st Respondent’s counsel, CW4 testified that he was engaged to carry out survey work at the Lanet power substation owned and operated by the 2nd Respondent, and that the work was for the benefit of the 2nd Respondent. He stated that he had the authority to undertake the assignment and was accompanied by others. He explained that he was using an aluminium staff while his colleague operated the camera. He noted that there were hanging cables at the site, which they adjusted the staff to avoid, and although they did not touch the cables, there may have been leakage or malfunction. He confirmed that no staff of the 2nd Respondent were present to supervise. He stated that he was contracted for one month at Kshs.60,000/= plus operational expenses, and that the WIBA form reflected this sum. He added that he was compensated through several cheques amounting to Kshs.4,167,000/=, and blamed the 2nd Respondent for the accident due to lack of maintenance and safety oversight at the site. CAUSE NO. 262 OF 2017 JUDGMENT 12 | P A G E 37. Upon cross-examination by counsel for the 2nd Respondent, CW4 stated that on site one Mr. Wachira directed where holes were to be dug. He confirmed that he was cautioned only not to touch the cables and was provided with certain protective gear, namely gumboots, reflective jackets, and a helmet, but no gloves or specialized boots. He reiterated that he did not touch the cables and opined that the accident may have resulted from leakage. He sought compensation for future earnings at Kshs.95,000/= but admitted he had not produced payslips. He testified that he had reported the matter to the Directorate of Occupational Health and Safety, which referred him to the 1st Respondent, whom he held responsible for sending him to execute the work, while also attributing liability to the 2nd Respondent as the site owner. He acknowledged that there was no evidence before court of the alleged call with Mr. Wachira on the material day. 38.In re-examination, CW4 stated that his salary was Kshs. 60,000/= with an additional allowance of Kshs.20,000/= for personal expenses, and clarified that he was not responsible for paying workers. He reiterated that he had permission from Mr. Wachira CAUSE NO. 262 OF 2017 JUDGMENT 13 | P A G E to access the substation, which was secured by two manned gates. He further stated that the levelling staff was adjusted to two meters and confirmed that he did not touch any of the cables. 1 st Respondent’s evidence in court 39. RW1, Andrew Ayres, the 1st Respondent Managing Director, adopted his witness statement dated 4th October 2021 together with the list of documents dated even date marked as exhibits 1 to 4 as his evidence in chief. 40.RW1 stated that the contract that the Claimant produced showed his salary was Kshs.60,000/= for one month. He said that they paid WIBA compensation amounting to a sum of Kshs.4,176,000/= 41.In cross-examination, RW1 stated that he did not have a workmen’s compensation form, only his statement. He could not confirm whether the Claimant was paid Kshs.60,000/= or Kshs.95,000/=. He attributed responsibility for the accident to the 2nd Respondent, stating that they were contracted to perform the service but had not provided proper training or disclosed the level of danger. He CAUSE NO. 262 OF 2017 JUDGMENT 14 | P A G E confirmed that they visited the site after the accident and noted the presence of high-voltage wires, though not at uniform height. He added that his company is no longer operational in Kenya, though it remains registered. 42. Upon re-examination by counsel for the 2nd Respondent, RW1 stated that under the contract, they were required to provide basic tools such as sticks, shovels, spades, and buckets, but no other specialized equipment. He confirmed that his company supplied protective gear and made workmen’s compensation payments, which he emphasized were obligatory and did not amount to admission of liability. He added that although Jackson Kamande was present on site, he did not know him, and he held the 2nd Respondent responsible for leaving them unsupervised despite lacking expertise. 43.Upon re-examination by counsel for the 1st Respondent, RW1 reiterated that the power station was owned by the 2nd Respondent, that the workers were engaged in sampling and survey work without electrical training, and that they were only provided with survey gear, not electrical protective equipment. He maintained that the Claimant was CAUSE NO. 262 OF 2017 JUDGMENT 15 | P A G E compensated under WIBA, but liability was not admitted. 2 nd Respondent’s evidence in court 44. RW3, Benson Maina Nderitu, adopted his written statement dated 6th October 2014 as his evidence in chief. 45. RW3 testified that he investigated the accident at the 2nd Respondent’s Lanet substation and found the day to have been dry, with no humidity or rain, noting that wet conditions would have been recorded and are unsafe for work near live wires. He stated that the 2nd Respondent was not liable as the injured was unsupervised, the work having been subcontracted from Tinji Engineering. He added that the substation was barricaded and danger warnings were in place. 46. In cross-examination, RW3 admitted he was not present during the accident, being stationed in Nyeri, though he visited the site thereafter. He described the substation as about 25 acres, fenced, and requiring written permission for access. He maintained that the Claimant was unsupervised and in the premises illegally, though entry was allowed by a supervisor. He did not record statements from other persons present. He CAUSE NO. 262 OF 2017 JUDGMENT 16 | P A G E reiterated that working in a live substation during rain is dangerous. 47.Upon cross-examination by counsel for the 1st Respondent, RW3 stated that he did not know CW3 and received his statement from another source. He clarified that he was a safety engineer, not a supervisor, and that Mr. Wachira was the site supervisor. He confirmed he was not present when the accident occurred, that the workers were unsupervised, and that the cable was approximately nine feet above the ground. 48. RW4, Jackson George Lidhahuli, adopted his written statement 6th October 2025 as his evidence in chief. 49.RW4 testified that he succeeded Joseph Maina Wachira, who had retired, as Engineer in charge of the Lanet substation. He stated that the substation observes safety measures before any work is undertaken, that the Claimant was not an employee of the 2nd Respondent but engaged through a contractor, and that protective gear is ordinarily provided by contractors. He maintained that the Claimant was offered a safe working environment. 50.In cross-examination by counsel for the Claimant, RW4 stated that he had never met the Claimant and CAUSE NO. 262 OF 2017 JUDGMENT 17 | P A G E that Mr. Wachira was unwilling to testify. He confirmed from records that the Claimant was injured, but could not personally attest to the severity. He was unaware of any arrangement by Mr. Wachira to admit the Claimant into the station on the material day, but emphasized that the site was secured and manned. 51.In cross-examination by counsel for the 1st Respondent, RW4 acknowledged knowing Mr. Benson Maina Nderitu as the investigator and was unaware of any contradiction between their testimonies. He confirmed that the Claimant was injured and was legally within the premises. 52.Parties canvassed the claim by way of written submissions. Claimant’s submissions 53. The Claimant submitted that he was lawfully within the 2nd Respondent’s power station with express and implied permission to work, and both Respondents are liable for the injuries sustained. He relied on the principle of strict liability in the cases of Ryland v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330 and Gichuhi v Kenya Power & Lighting CAUSE NO. 262 OF 2017 JUDGMENT 18 | P A G E Company Ltd (2025) KEHC 11765 (KLR), arguing that the 2nd Respondent, as custodian of electricity, failed to prevent its escape through an “electric power arc” caused by humidity. The Respondent’s defence attributing the accident to the Claimant’s negligence was speculative, unsupported by credible evidence, and tainted by hearsay and forged documents. The 2nd Respondent failed to switch off power, barricade the hazardous area, provide protective gear, or adequately supervise workers, despite admitting the risks of working in humid conditions. In these circumstances, the Claimant urges the Court to hold the 2nd Respondent fully liable at 100%. 54.The Claimant submitted that the Respondents’ objection on jurisdiction was raised by way of Preliminary Objection dated 14th January 2019 and duly canvassed through written submissions, whereupon the Court dismissed the objection. The Claimant submits that jurisdiction is properly vested in this Honourable Court by virtue of section 17 of the Work Injury Benefits Act, which expressly provides that where an occupational accident is caused by a third party other than the employer, the employee may claim compensation under the Act and also institute proceedings for damages JUDGMENT CAUSE NO. 262 OF 2017 19 | P A G E against such third party. Accordingly, this Honourable court is clothed with jurisdiction to hear and determine the present matter. 55. The Claimant submitted that he seeks special damages as follows: Kshs.22,500,000/= for future prosthetic replacements over his expected lifespan, Kshs.29,640,000/= for loss of future earnings based on his monthly salary of Kshs.95,000/= for 26 years, and Kshs.200,000/= for facial surgery to remove keloids. He acknowledges receipt of Kshs.4,000,000/= under workmen’s compensation, which should be deducted from the award. In support, he relied on Jeffrey L. Brown (suing on his own behalf and as administrator of the Estate of Sharon Mary Brown & MCB) v Castle Forest Lodge Limited & 2 others [2018] KEHC 6080 (KLR), where substantial damages were awarded for loss of future income, and in Akamba Public Road Transport case, affirming that special damages may be proved by evidence even if not specifically pleaded. The Claimant therefore prays for judgment in his favour for the damages sought in the sum of Kshs.52,340,000/=. 1 st Respondent’s submissions CAUSE NO. 262 OF 2017 JUDGMENT 20 | P A G E 56. The 1st Respondent submitted that under section 107(1) of the Evidence Act, Cap 80, the burden of proof lies with the Claimant. Under sections 13 and 14 of the Occupational Safety and Health Act, 2007, the Claimant bore a duty of care for his own safety. The 1st Respondent argued that the evidence shows that while the Claimant was supplied with survey equipment and protective gear, KPLC failed to provide electrical protective equipment, training, or supervision, thereby breaching its statutory and common law duty of care. 57. The 1st Respondent relied on sections 3, 4, and 6 of the Occupiers Liability Act, Cap 34, and section 52 of the Energy Act, which impose liability on occupiers for injuries arising from unsafe premises. Authorities cited include DA v Kenya Power & Lighting Company Limited [2021] KEHC 8911 (KLR), Jubilee Insurance Co. Ltd v Margaret Mukuhi (HCCA No. 575 of 2002), and Sanya Hassan & another v Soma Properties Ltd [2004] KEHC 2610 (KLR), all affirming the occupier’s duty of care. 58. On contributory negligence, the 1st Respondent relied on the cases of Francis Kitsao Muzungu v Hayer Bishan Singh & Sons Ltd CAUSE NO. 262 OF 2017 JUDGMENT 21 | P A G E [2014] KEHC 5200 (KLR), Statpack Industries v James Mbithi Munyao [2005] KEHC 2043 (KLR), Mumias Sugar Limited v Samson Muyinda HCCA No. 58 of 2000 Kakamega (unreported), South Nyanza Sugar Co v Daniel Okindo Kibari [2010] KEHC 927 (KLR), and Wilson Nyanyu Musigisi V Sasini Tea & Coffee Ltd [2006] KEHC 2808 (KLR), which collectively held that injury per se is insufficient to establish liability and that employees must prove causation. Without prejudice, the 1st Respondent proposes general damages of **Kshs.1,000,000/= for pain and suffering, citing comparative awards in Jane Otieno v Mombasa Liners Limited & another [2005] KEHC 1496 (KLR), Dominic Mbithi v Agnes Mwinzi & another [2019] KEHC 1401 (KLR), Laban Buyole Mamboleo v Rift Valley Textiles [1998] KEHC 109 (KLR), and Akamba Public Road Services v Abdikadir Adan Galgalo [2016] KEHC 2339 (KLR), which emphasize that damages must remain within precedent and economic realities. Special damages must be specifically pleaded and strictly proved, and though the Claimant has pleaded Kshs.22,500,000/=, only what is proved can be awarded. CAUSE NO. 262 OF 2017 JUDGMENT 22 | P A G E 59. The Respondent therefore prays that the suit against it be dismissed with costs and that the 2nd Respondent be found 100% liable for the accident and any damages payable. 2 nd Respondent’s submissions 60. The 2nd Respondent submitted that the claim against it is misconceived, as there exists no employer–employee relationship between the Claimant and itself; the 1st Respondent has employed the Claimant. The 2nd Respondent argued that jurisdiction under section 12 of the Employment and Labour Relations Court Act is limited to employment disputes, and the instant claim, being tortious in nature, ought to have been filed in the High Court. Reliance is placed on Christine Adot Lopeyio v Wycliffe Mwathi Pere [2013] KEELRC 244 (KLR), which distinguished contracts of service from contracts for service, and Salomon v Salomon & Co. Ltd [1897] AC 22, affirming the separate legal personality of companies. The 2nd Respondent further relied on the case of Mwalimu Kalimu Gamumu & 35 others v Coastline Safaris Limited & 2 others [2013] KEELRC 779 (KLR), restating the test of CAUSE NO. 262 OF 2017 JUDGMENT 23 | P A G E control as a determinant of employment relationship. 61. On liability, 2nd the Respondent argues that the Claimant was an employee of the 1st Respondent, an independent contractor, and not under the control of KPLC. Reliance is placed on the case of Shayona Timber Ltd v Ochieng [2025] KEELRC 844, where the case cited the cases of Kenya Pipeline Co. Ltd v Ndegwa & Another [2023] KECA 226, and the South African case of Stein v Rising Tide Productions (2002) 23 ILJ 2017, which distinguished employees from independent contractors. 62.On occupiers’ liability, the Respondent acknowledges section 3 of the Occupiers Liability Act, Cap 34, but submitted that it exercised reasonable care by providing safety training, requiring protective gear, and enforcing permit sheets. Reliance is further placed on Salim Mecha Nyandoro v Nyangena Hospital Ltd [2019] KEHC 10190 (KLR) and Soma Properties Ltd v Haym NRB CA Civil Appeal No. 74 of 2005 [2015] eKLR, which held that occupiers escape liability where reasonable systems are in place. The Respondent invokes section 3(5) of the CAUSE NO. 262 OF 2017 JUDGMENT 24 | P A G E Occupiers Liability Act and the doctrine of volenti non fit injuria, citing the case of Salim Mecha Nyandoro v Nyangena Hospital Ltd [2019] KEHC 10190 (KLR), to argue that the Claimant voluntarily assumed the risk by working after hours, unsupervised, and outside designated areas. 63.On quantum, the Respondent relied on Lalji v Toka [1981] KECA 46 (KLR), where the Court of Appeal cited the case of Bonham-Carter v Hyde Park Hotel Ltd [1948] 64 TLR 177 that damages must be strictly proved. For general damages, it proposes Kshs.2,000,000/=, guided by Abdi Werdi Abdulahi v James Royo Mungatia & another [2019] KEHC 2791 (KLR), where the court awarded Kshs. 3,500,000/= for amputation and multiple injuries. In James Joseph Rughendo v Kenya Power and Lighting Co. Ltd. [2011] KEHC 1217 (KLR), the court awarded Kshs. 3,000,000/= for 70% permanent disability from electrocution, and CK v KPLC [2021] KEHC 9462 (KLR), where the court awarded Kshs.3,000,000/= for amputation and burns. 64. On loss of future earnings, 2nd Respondent placed reliance on James Joseph Rughendo v Kenya CAUSE NO. 262 OF 2017 JUDGMENT 25 | P A G E Power and Lighting Co. Ltd. [2011] KEHC 1217 (KLR), John Kipkemboi & Another v Morris Kedolo [2019] KEHC 8736 (KLR), Fairley v John Thomson Ltd [1973] 2 Lloyd’s Law Reports 40, Douglas Kalafa Ombeva v David Ngama [2013] KECA 538 (KLR), and Cecilia W. Mwangi & another v Ruth W. Mwangi [1997] KECA 62 (KLR), all affirming that loss of earnings is a special damage claim requiring strict proof. 65. On future medical expenses, reliance is placed on Tracom Limited & another v Hassan Mohamed Adan [2009] KECA 48 (KLR) and Kenya Bus Services Ltd v Gituma (2004) 1 EA 91, which held that future medical costs must be pleaded and proved. 66. The Respondent therefore prays that the claim against it be dismissed for want of jurisdiction and liability, or in the alternative, that damages be strictly limited to what is proved. Claimant’s reply to Respondents’ submissions CAUSE NO. 262 OF 2017 JUDGMENT 26 | P A G E 67. The Claimant, in reply to the Respondents’ submissions, submitted that the 2nd Respondent’s counsel improperly introduced new evidence through submissions, including assertions that the Claimant worked after 5 p.m. and had received safety training, which were never proved by witnesses and amount to “evidence from the bar.” The Claimant maintains that the 2nd Respondent, as occupier of the Lanet Power Station, owed him a duty of care which was breached. 68. On damages, the Claimant emphasizes that each case must be determined on its own merits, noting that he was a young father whose career was cut short by the accident, and therefore entitled to compensation reflective of his circumstances. He disputes the Respondents’ reliance on the manual prosthetic leg cost of Kshs.250,000/=, arguing that PW2, Philip Wafula, demonstrated the use of advanced C-Leg prosthetics, which improve mobility and are more costly, and that the Respondents failed to adduce evidence to contradict this. 69. He further submits that the authorities cited by the Respondents are distinguishable, as they do not reflect his income or personal situation, and CAUSE NO. 262 OF 2017 JUDGMENT 27 | P A G E reiterates that the damages sought in his submissions are reasonable and justified. Analysis and determination 70. The court has considered the pleadings together with the rival submissions by all the counsels on record; The issues for determination are whether: - (1) The Claimant was an employee of the 1st and 2nd Respondents. (2) Were the Respondents’ negligence the cause of accident that caused his severe injuries. (3) Is the Claimant entitled to damages. 71.Sections 107, 108, 109 and 112 of the Evidence Act provides that whoever alleges must prove. 72.In Imanyara & 2 Others v Attorney General [2016] KECA 557 (KLR) the Court of Appeal stated as follows: “The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.” 73.This Honourable Court(ELRC) established under Article 162 of the Constitution and vested with jurisdiction by Section 12 of the Employment and CAUSE NO. 262 OF 2017 JUDGMENT 28 | P A G E Labour Relations Court Act, is mandated to determine employment disputes and grant remedies therein. 74. In this present case, the Claimant was an employee of the 1st Respondent, which had been subcontracted by the 2nd Respondent to undertake work at its Lanet substation. While engaged in the said work, the Claimant was electrocuted, sustaining severe injuries, including burns and the amputation of his leg. He attributes liability to the Respondents. The 1st Respondent contends that the Claimant was duly compensated under WIBA in the sum of Kshs.4,176,000/=, while the 2nd Respondent maintains that the Claimant was not its employee, liability resting with the contractor. 75. The Court affirms its jurisdiction cited earlier on as set out in Section 12 of the Employment and Labour Relations Court Act. The 2nd Respondent did not have an employer and employee relationship with the Claimant. Kenya Power and Lighting had sub-contracted the 1st Respondent to do some work in their Lanet Sub-station. The 1st Respondents is the one who had given the Claimant some work to sample their soil. And hence the incident at the premises of the 2nd Respondent. CAUSE NO. 262 OF 2017 JUDGMENT 29 | P A G E 76. As for the 1st Respondent he had employed the Claimant for a short period from 30th September 2014. The 1st Respondent reported the accident to the Director of Occupational Safety and Health Services and the said Director gave an assessment of Kshs.4,176,000/= in favour of the Claimant. The same was as per the demand letter dated 11th November 2014. The Claimant admitted he received the payment under work injury benefits claim. 77. Having said so, the court notes that Section 16 of the Work Injury Benefits Act states as follows: - “No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational accident or disease resulting in the disablement or death of such employee against such employee’s employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death.” 78. This puts the case in an awkward position and especially considering the Director already assessed the injuries and gave his award way back in 2015. The 1st Respondent paid for the award. CAUSE NO. 262 OF 2017 JUDGMENT 30 | P A G E 79. The Claimant in his submission also invoked Section 17 of the Work Injury Benefits Act to justify enjoining Kenya Power and Lighting to this case. The Section also states clearly that such compensation is in accordance with Work Injury Benefits Act but also states that the Claimant may also institute action for damages in court against a third party. 80.The said Section 17 actually provides that in awarding such damages, the court will consider compensation paid in accordance to the Act. Section 17 of the Work Injury Benefit Act provides as follows: - If an occupational accident or disease in respect of which compensation is payable, was caused in circumstances resulting in another person other than the employer concerned (in this section referred to as the ‘third party’) being liable for damages in respect of such accident or disease— (a) the employee may claim compensation in accordance with this Act and may also institute action for damages in a court against the third party; and (b) the employer or insurer by whom compensation in respect of that CAUSE NO. 262 OF 2017 JUDGMENT 31 | P A G E accident or disease is payable may institute action in a court against the third party for the recovery of compensation that the employer or insurer, as the case may be, is obliged to pay under this Act. In awarding damages in an action referred to in subsection (1)(a) the court shall have regard to the compensation paid in accordance with this Act. In an action referred to in subsection (1) (b), the amount recoverable may not exceed the amount of damages, if any, which in the opinion of the court would have been awarded to the employee but for the provisions of this Act. For the purposes of this section, compensation includes the cost of medical aid already incurred and any amount paid or payable in accordance with the provision of section 15 and, in the case of an allowance, the capitalized value of the allowance, irrespective of whether a lump sum is at any time paid in lieu of the whole or a portion of such allowance.” 81.The court has agonised over this matter quite a bit. It is clear the Claimant was injured very critically at the premises of the 2nd Respondent while performing some assignment for the 1st Respondent. The 1st Respondent in their viva voce evidence in court and CAUSE NO. 262 OF 2017 JUDGMENT 32 | P A G E in their pleadings state that they had provided adequately for safety systems and protective devices to ensure safe working environment. They vehemently deny any negligence on their part and blame the Claimant himself. They invoke the doctrine of volenti non fit injuria that the claimant voluntarily accepted the risks inherent to his work. 82.They also claim the 2nd Respondent contributed to the accident by failing to switch off power and to warn workers of prevailing weather conditions and placing warning signs. 83. The 2nd Respondent contends the accident was caused by factors beyond its control such as rain and humidity. 84.The Claimant in his evidence testified that the accident gravely affected his life as his leg was amputated and cannot work anymore nor sire children (though no evidence on this last claim was tendered. 85. The court as earlier admitted has critically and painfully considered the case. Guided by Section 17 of the Work Benefits Act the court concedes that the 1st Respondent had a duty to protect his workers from injuries during the performance of CAUSE NO. 262 OF 2017 JUDGMENT 33 | P A G E their duty. In the celebrated case of JOHN RYLANDS -VS- THOMAS FLETCHER (1868) LR 13 HILL 330 court held that anyone who gather anything in their land which escapes and injures anybody is liable without necessarily any proof of negligence. The 2nd Respondent was the custodian of electricity/energy which escaped and seriously injured the Claimant. 86.In the case of DA -VS- Kenya Power and Lighting Company Ltd (2021) KEHC 8911 all affirms the occupier’s duty of care. 87. In Donoghue -vs- Stevenson (1932) Ac 562(HL) which established the law of negligence. This is an old English case where May Donoghue drank ginger beer in a café and found a decomposed snail. She became ill and sued the manufacturer David Stevenson. This Established the Famous “Neighbour Principle” Stated by Lord Atkin. 88. The court holds that both the 1st Respondent being the employer of the Claimant and the “third party.” being the 2nd Respondent were culpable of negligence which caused very severe injures to the Claimant which has had no doubt and will continue CAUSE NO. 262 OF 2017 JUDGMENT 34 | P A G E to have a negative impact on the Claimant for the rest of his life. 89.In view of the foregoing, the court finds the Claimant has proved a case that the accident he suffered in the premises of the 2nd Respondent and while working for the 1st Respondent was as a result of their joint negligence. Judgment is therefore entered in his favour. 90. The general damages awarded to him will be supported by the case of Mbaru & Another -vs- Swaka 2024 KEHC 2210 (KLR) where the Respondent was awarded Kshs.2,500,000/= for knee amputation due to the Defendant’s negligence. In the case of Charles Kiplangat Koech -vs- Ng’etich(2021) KEHC 4609 KLR the Respondent’s leg was amputated after a motor cycle accident. He was awarded Kshs.1,800,000/= in 2021. 91. The court considering the further injuries apart from the amputated leg which include burns of second degree, internal injuries and inability to pass urine and convulsions as per the report of Dr. A.K. Mwaura dated 10th March 2017 and considering the factor of inflation will award him Kshs.6,000,000/= as general damages. CAUSE NO. 262 OF 2017 JUDGMENT 35 | P A G E The final awards are as follows: - (1) General damages ..........................Kshs.6,000,00 0/= (2) Costs to buy artificial leg and surgery on his face...................Kshs.1,000,000/= (3) Costs of the suit and interest at 14% per annum from date of this Judgment until payment in full. (4) The said amount totalling Kshs.7,000,000/= will be less Kshs.4.176,000/= already paid leaving balance of Kshs.2,824,000/=. The said will be paid by both the 1st and 2nd Respondents jointly and will be paid 50/50 by both Respondents. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 22nd Day of May, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of CAUSE NO. 262 OF 2017 JUDGMENT 36 | P A G E 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE CAUSE NO. 262 OF 2017 JUDGMENT 37 | P A G E