https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8532

Okioga & another (Suing as Personal Representatives of the Estate of Derrick Onkeo Anari (Deceased)) v Kenya Power & Lightning Company Ltd (Civil Appeal E113 of 2025) [2026] KEHC 8532 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8532 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E113 of 2025 AM Okutoyi, J June 11, 2026 Between David Anari Okioga 1st Appellant Everlyn Monyangi Mauti 2nd Appellant Suing as Personal Representatives of the Estate of Derrick Onkeo Anari (Deceased) and Kenya Power & Lightning Company Ltd Respondent (Being an appeal from the judgment delivered on the 15th of July 2025 by the Honourable I.K. Rono- Resident Magistrate in MCCC 218 of 2023) Judgment Background of the appeal 1.This appeal emanates from a suit filed at the Chief Magistrates court at Ogembo where the appellant/plaintiff alleges that on 13th of June 2022, their son was fatally electrocuted due to the respondent’s/defendant’s negligence in failing on its statutory duty of servicing and maintenance of electricity power lines. The respondent denied liability for the accident. 2.At the trial court, the appellant; PWI adopted his statement dated 28th March 2023 as evidence in chief blaming the respondent for the accident that led to the death of his son and sought compensation. The respondent produced one witness DW1 Engineer Mangera Moronge who adopted his statement as well and confirmed that he visited the site immediately after the accident occurred and filed a report which he produced as evidence. He blamed the deceased and the people he was working with stating that the tree posed no danger and it was the act of cutting it, and falling on the line that caused the accident. 3.The learned trial Magistrate at the trial court delivered a judgement on 30th January 2024 attributing 100% liability to the deceased and dismissing the appellant’s suit. The trial court Magistrate further held that had liability been proved then it would have awarded quantum as follows: Pain and suffering kshs. 20,000/=, Loss of expectation of Life, Kshs. 100,000/=, Loss of dependency kshs. 1,500,000/= and special damages of Kshs. 160,000/=. 4.Aggrieved with the decision of the trial court Magistrate, the appellant filed this instant appeal on the following summarized grounds: That the learned trial Magistrate erred in law and fact by failing to find the respondent not liable for the deceased’s death despite the statutory doctrine of care; failure to properly evaluate the appellant’s evidence and precedents and applying the wrong principle in quantum. 5.The appellant therefore prayed for the appeal to be allowed and the judgment of the trial reviewed/set aside its entirety. Appellant’s Submissions 6.The appellant supported his appeal with written submissions dated 11th February 20026 where he attributing 100% liability on the respondent. The appellant submitted that the respondent breached a statutory duty under Section 52 of the Energy Act, 2019, which imposes a non-delegable duty on the respondent to maintain electricity infrastructure and to prevent danger to the public. 7.The appellant further submitted that the trial court misapplied the balance of probability standard without fully applying the evidence on record including that of the respondent’s report that confirmed overhanging branches that had made contact with the power line thereby triggering a chain reaction that caused the accident. 8.The appellant also faulted the trial court’s adoption of the global sum approach instead of the multiplicand/ multiplier method to award damages despite clear evidence of the deceased’s vocational training and earning potential. Respondent’s Submissions 9.The respondent on their side, through their written submissions dated 23rd February 2026, opposed the appeal and argued that the trial court rightly apportioned 100% liability to the appellant using the evidence adduced in court. 10.The respondent urged the court to find that the evidence of DWI who arrived at the scene immediately and carried out investigations to be more credible that for PW1 who arrived much later and whose testimony was not corroborated. The respondent highlighted DW1’s report that explained the causation of the accident as a fault of the appellant and that the trees undisturbed posed no danger. 11.The respondent further submitted that the statutory duty under Section 52 of the Energy Act does not create absolute liability and that the deceased was reckless. 12.On quantum, the respondent agreed with the trial court proposed award on the pain and suffering award of as well as loss of expectation but differed on the loss of dependency and special damages. Analysis and Determination 13.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 14.I have carefully analyzed the appeal and trial record in its entirety as well as the evidence adduced and submissions by both parties. There is no contention that an electrocution incident did occur on 13th of June 2022. However, the issue of both the liability and quantum are contested in this appeal. 15.The main issues for the determination of this court, therefore, are twofold;a.Whether the respondent breached a duty of care to the deceased; andb.What is a just and fair quantum to be awarded in the circumstances? Whether the respondent breached a duty of care to the deceased 16.The appellant though his witness PW1 David Anari Okiaga, the deceased’s father testified that upon receiving a call, he rushed to the scene and found his son had died, and a branch next to his body. He affirmed that both the police and officers from the respondent had visited the scene. 17.In his testimony, he relied on information from the police occurrence book where the respondent was blamed for the incident. A post mortem was also conducted on the appellant’s son and the cause of death was confirmed to be electrocution. 18.The respondent’s evidence was through its witness DW1 Mang’era Moronge, the regional safety engineer, who testified that on the 13th of June 2022 at around 0900hrs, he received a call from the chief of Ibeno location that a fatal electrocution had occurred. He testified that together with the emergency response team immediately proceeded to the scene and made he observations that the deceased was felling trees when the sixth one fell on the 33kv overhead line. 19.DW1 testified that the respondent was not liable for any loss in this incident as the tree was not within the wayleave trace and that the trunk was 5 meters from the centerline of the powerline. 20.Unfortunately, both witnesses did not witness the incident and the testimonies as to how it occurred is hearsay. No other witnesses were called to corroborate their testimonies. However, the respondent’s witness DW1 was part of the investigating team immediately after the incident and his evidence carries more weight. An investigation report conducted by the respondent dated 27th June 2022 was adduced as evidence. 21.Be that as it may, there is no contention that the deceased was felling a tree when it fell on the 33kv line causing the fatal electrocution. This has been corroborated by the police abstract as well as the post mortem reports. The question that this court then must determine is did the respondent breach a duty of care or was the incident caused by the negligence of the deceased. 22.Section 107 (1) of the Evidence Act places the legal burden upon the party who asserts a fact by providing that;i.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.ii.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 23.Hence once the appellant claims that the deceased died as a result of contact with the electrical infrastructure, an evidentiary burden shifted to the respondent to explain how a member of the public came into fatal contact with its power line. 24.Under Section 112 of the Evidence Act, where a fact especially is within the knowledge of a party, the burden of proving that fact lies upon that party. 25.The respondent DW1 states that the tree was within the permitted trace being 5 meters from the centerline of the power line. It is his evidence that the trees as they were, posed no risk and it is only the interference through the felling that caused the incident. 26.It is trite that electricity is an inherently dangerous commodity. The respondent is the national distributor of electrical energy and is charged with the statutory duty of maintaining its transmission and distribution. 27.From the evidence adduced in court by both parties, the tree that caused the fatality was close to the power line. There is no evidence that was adduced by the respondent that there were regular inspections and maintenance schedules on safety compliance in the area. 28.The respondents as an electricity distributor are expected to anticipate foreseeable risks including the possibility that persons may fell and harvest trees and engage in other agricultural activities beneath and under power lines. I agree with the case cited by the appellant of DA v. Kenya Power & Lighting Company Ltd. (2021) KEHC 8911 where the courts held 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 with cables thereto, the defendant has the statutory duty of supervising, inspecting and maintaining its electric installations under Section 52 of the Energy Act. This calls for a higher degree of vigilance on its part to avert accidents.” 29.No evidence was adduced to demonstrate that the respondent’s duty of constant and regular inspections to mitigate such incidents was undertaken in this particular area where the incident occurred. 30.A perusal of Section 52 of the Energy Act, Cap. 314 imposes a duty of care to the respondents to ensure maintenance and securing of electrical infrastructures and installations. This has been reiterated in several cases including Kenya Power & Lightning Co. Ltd. V. Umaz Ali Swaleh (2017) eKLR and Nthuci v. Kenya Power and Lightning Company Limited (2024). 31.Consequently, I find that the Respondent owed a duty of care and in the prevailing circumstances it was breached. Contributory Negligence 32.The respondent in their defence as well as opposition to the appeal has attributed liability to the deceased who disturbed the trees and consequently the powerline. 33.DW1 in his testimony indicated that the procedure of felling trees is that the owners ought to notify the respondents so that the power can be switched off. I agree with the respondents that the deceased ought to have known the danger of electricity before felling a tree that was that close to the power line. 34.The doctrine of contributory negligence recognizes that more than one party may be responsible for the accident. In the case of Grace Kanini Muthini ­vs­ KBS and Another Nyeri H.C. Miscl Appl. No. 270 of 2000 the courts noted that they were faced with two competing probabilities as to how the accident occurred with each party blaming the other and stated that;“­­ ----- I can only decide the case on a balance of probability if there is evidence to enable me say that it was more probable than that of the second defendant wholly or partly contributed to the accident.” 35.The evidence in this case points to concurrent negligence by both the deceased as well as the respondent. 36.The deceased was expected to exercise reasonable care for his safety. Equally the respondent was expected to ensure that members of the public were not exposed to lethal danger of its infrastructure. 37.In the case of Kanyungu Njogu v Daniel Kimani Maingi (2000) e KLR, the courts observed that:“when a court is faced with two probabilities, it can only decide the case on a balance of probability if there is evidence to show that probability was more probable than the other” 38.With this context, the evidence adduced by both parties and on a balance of probability, this court therefore apportions liability at the ratio of 50:50. What is a just and fair quantum to be awarded? 39.Having established the claim on liability, the next determination is what quantum is fair and just in the prevailing circumstances. 40.As an appellate court, I can only interfere with an award of damages where the trial court acted on a wrong principle of law, misapprehended the evidence or where the award is so inordinately high or low as to represent an erroneous estimate of the damage suffered. 41.These principles were espoused in the case of Butt v Khan 1982 -1988 1 KAR where the court pronounced itself as follows:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” Pain and Suffering 42.Under the Law Reform Act, the estate is entitled to damages for pain and suffering and loss of expectation of life. For pain and suffering the appellant proposed Kshs. 100,000/= on the basis that the deceased survived for hours before death. The respondent agreed with trial court Magistrate proposal of Kshs. 20,000/=. based on the fact that the deceased died on the spot. 43.I have perused the trial record and I find no evidence that the deceased survived several hours after the incident. Indeed, it is DW1’s testimony that upon arrival at the scene at 1000hrs- 1-2 hours, after the incident, the deceased was already dead. 44.In the cited cases of Hyder Nthenya Musili & Another v China wu Yi Limited (2017) and Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (suing as the Administrator of the Estate of the Late Mwangi (2019) the courts held that very nominal damages will be awarded if the death followed immediately after the accident. I am therefore not persuaded to interfere with the trial courts proposed award of Kshs 20,000/= for pain and suffering. Loss of expectation of life 45.For the loss of expectation of life, the trial court magistrate proposed a conventional amount of Kshs. 100,000 guided by the case of Hyder Nthenya Musili & Another v China wu Yi Limited (2017). This was supported by the respondent who at the trial court cited the cases of Joseph Nzisa v. Michael Mutuhi Githiga (2017) KEHC 1214 and Mercy Muriuki v Samuel Mwangi Nduati & Another. The appellant proposed Kshs. 250,000/= basing his argument on the age and citing the case of Patrick Kariuki Muiruri & 3 others v. Attorney General (2018) and the case of West Kenya Sugar Co. Ltd. V. Philip Sumba Julaya (suing as the Administrator and personal representative of the estate of James Julaya Sumba (2019) eKLR where the courts in both cases awarded Kshs. 200,000/=. 46.Taking into consideration the above cited authorities that provide a conventional range of between Kshs. 100,000/= to Kshs. 250,000/= and age of the deceased at the time of death, I am persuaded to award under this heading of loss of expectation of life Kshs. 200,000/=. Loss of Dependency 47.Under the Fatal Accident’s Act, the dependents are entitled to damages for loss of dependency. The appellant submits that the trial court magistrate erred in applying a global sum approach instead of the multiplicand/multiplier method despite clear evidence of the deceased vocation training and earning potential. The respondent on the other hand agreed with the trial magistrate who based the adoption of the global sum approach. 48.From the trial record, the appellant was 19 years pursuing a vocational training as a welder. No documentary evidence was adduced to indicate that he was in gainful employment where his earnings can be ascertained. 49.Courts have repeatedly held that where income cannot be established with precision, a global award is often the most appropriate method of assessment. I therefore do not fault the learned trial Magistrate for adopting this method. 50.As to the suitable award several factors are put into consideration. In this case the deceased was a young man with potential of productive years capable of supporting his family. 51.The respondents cited the case the Hashi Hauliers & Another v. Jkk (suing as the Administrator to the Estate of JK (2020) KEHC 990 where an award of Kshs. 1,000,000/= was awarded for lost years. 52.The Learned Trial Magistrate guided by the cases of Charles McKenzie Wambua v. Nthoki Munyao & Prudence Munyao (suing as the personal representatives of the Estate of Lilian Katumbi Nthoki (Deceased) (2020) eKLR where the courts upheld an award of Kshs. 1,320,000/= for loss of dependency of a minor aged 17 years old and Francis Odhiambo Nyunja & 2 others v. Josephine Malala Owinyi (Suing as the legal administrators of the estate of Kevin Osore Rapando (Deceased) (2020) where a global award of Kshs. 1,500,000/= was awarded to a 17 years old. 53.In Gachie vs. Muiruri & 2 Others [2025] eKLR, the trial court’s award of a global sum of Kshs 2,500,000 was reduced to Kshs. 2,000,000 on appeal. In this case, the deceased was aged 24 years, had parents as dependents and his income was not proved. 54.In Kirimi & another (Suing as the Administrators and Legal Representatives of the Estate of Agnes Ntinyari Murungi - Deceased) vs. Kithinji & another [2023] KEHC 17732 (KLR) the Court awarded Kshs 2,000,000 as a global sum for a 32-year-old with unproven income. 55.Taking into account the deceased’s age, his vocational training and prospects in life as well as inflationary trends, then I consider a global award of Kshs. 2,000,000/= to be fair compensation for loss of dependency. Special Damages 56.For special damages, they must not only be pleaded but must also be strictly proved. From the trial record, the appellant pleaded for a total of Kshs. 190,150. The respondent disputed the inclusion of Kshs. 35,000/= both at the trial and appeal proceedings on the grounds that they form part of the legal fees which this court is in agreement. The undisputed amount therefore minus Kshs. 35,0000 leaves a balance of Kshs. 155,150/=. which this court now awards as special damages. Disposition 57.Consequently, this court make the following orders;a.That the appeal on liability partially succeedsb.Liability is apportioned at the ratio of 50:50 equally between the appellant and the respondentc.General Damagesi.Pain and suffering: Kshs. 20,000/=ii.Loss and Expectation of life Kshs. 200,000/=iii.Loss of Dependency -Kshs. 2,000,000/=d.Special damages -Kshs 155,150/=Total: Kshs 2,375,150/= to be apportioned as per the equal liability ratio of 50:50:e.Each party shall bear their own costs of this appealIt is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 11th DAY OF JUNE 2026A.M. OKUTOYIJUDGEIn the presence of:Mr. Kerika for the Appellant.Ms. Njagi for the Respondent.Ruth Mokeira-Court Assistant.