[2022] KEHC 14149 (KLR)

PCL (Suing as legal representative and administrator of the Estate of AL - Deceased) v Kenya Power & Lighting Co Ltd (Civil Appeal 20 of 2019) [2022] KEHC 14149 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14149 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 20 of 2019

SN Riechi, J

October 7, 2022

Between

PCL

Appellant

Suing as legal representative and administrator of the Estate of AL - Deceased

and

Kenya Power & Lighting Co Ltd

Respondent

(Being an appeal from the Judgement and Decree of Hon. C.A.S. Mutai, SPM in Bungoma CMCC No. 477/2015 delivered on 18/1/2019)

Judgment

1. The plaintiff (appellant herein) sued the respondent in the subordinate court over an incident which led to the death of the plaintiff’s child then aged 10 years after he was electrocuted by a live electric pole supporter. He attributed the occurrence of the accident to the respondent’s negligence which have been itemized.

2. The respondent entered appearance and thereafter filed its statement of defence denying the claim and itemized the particulars of negligence attributable to the said minor.

3. PW-1, PC stated that his son was electrocuted to death in the company of other children playing near an electric pole within the Centre. That the minor was a pupil at S. Primary School.

4. PW-2 Cosmas Fwamba stated that he witnessed the accident take place at Kimaeti Shopping Centre in an open field. It had rained previously. Suddenly people shouted the minor was being electrocuted. He took a stick and pushed the minor off the wire. The poles had been erected three days earlier.

5. Saulwa Mulisha testified as DW-1. His evidence was that he visited the site after the accident and found that there was an illegal connection thereon. The person who had connected the wires illegally had been charged.

6. By a judgement of that court, the learned trial magistrate apportioned liability at the ratio of 30:70 in favour of the appellant against the respondent, awarded the sum of Kshs 35,000/-, Kshs 600,000/- and Kshs 60,000/- in damages for pain and suffering, loss of expectation of life and special damages respectively. The appellant dissatisfied appeals to this honourable court on the following grounds;1. The learned trial magistrate erred in law and fact by holding the appellant 30% liable when there was no evidence of contributory negligence.2. The learned trial magistrate erred in law and fact by not holding the respondent 100%liable.

7. The appeal was disposed of by way of written submissions. Both parties complied. It is submitted by the appellant on the issue of liability that the deceased was playing with other children at Kimaeti Shopping Centre while looking after cattle when she touched a live electric pole supporter where he was electrocuted to death. At the time of such electrocution, the deceased was only 10 years and oblivious of the dangers posed by such supporters and could not therefore have contributed to the incident.

8. Counsel submits that the electric pole had been erected only 3 days earlier without warning signs. Counsel cites the authority in Kenya Power vs Fredrick Muhavi Amusinda (2012)eKLR in support.

9. On its part, the respondent submits that the accident occurred due to an illegal connection of power by one Jim Barasa who was charged with the offence of illegal connection and the respondent could not be blamed.

10. That the respondent discharged its obligation diligently had it not been the unforeseen vandalism by the said Jim and could not therefore be blamed for the incident.

11. The duty of the court in a first appeal is as was stated in the case of Peters V Sunday Post Limited (1958) EA 424 where Sir Kenneth O’Connor stated as follows:It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. I take as a guide to the exercise of this jurisdiction the following extracts from the opinion of their Lordships in the House of Lords in Watt v Thomas (1), [1947] A.C. 484.

12. With the above in mind and after reviewing the evidence tendered in the subordinate court, the submissions herein and the law applicable, the issue in this appeal turns on liability.

13. The circumstances under which the court on appeal can interfere with a trial court’s finding of fact was stated in Mwangi V. Wambugu (1984) KLR 453, where the court held as follows:-A court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding and an appellate court is not bound to accept the trial Judge’s finding of fact if it appears either that he has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.

14. It is not in dispute that the deceased was only a minor aged 10 years at the time of the accident. The learned trial magistrate apportioned contributory negligence at 30%. The minor was playing with her mates in the filed before she was electrocuted. The respondent blamed a third party named Jim for the illegal connection which led to the accident. The said Jim is said to have been charged in court with the offence of illegal connection.

15. As a matter of fact, this court is called upon to find whether from the evidence available, the minor contributed to the occurrence of the accident and finally to her death. Generally, minors are not to be held contributorily negligent unless the facts presented show that the minor knew or ought to have known the dangers associated with the omission and or commission of the act. This was the observation in Bashir Ahmed Butt vs. Uwais Ahmed Khan (1981) KLR 349 where the Court of Appeal held:

16. It would need a great deal of persuasion before imputing contributory negligence to the child aged 8 years having regard to her tender age. Even if she did step off into the car it would not be right to count as negligence on her part such a momentary act of inattention or carelessness…A young child cannot be guilty of contributory negligence although an older child might be, depending on the circumstances. The test should be whether the child was of such age as to be expected to take precautions for his or her own safety and a finding of contributory negligence should only be made if blame could be attached to the child....

17. The facts in this matter aptly show that the minor was not aware that the supporter had current the same having been fixed 3 days earlier by an incompetent individual who was not made a party to the suit.

18. In sum total, the evidence on record points that in as much as the minor was not entirely at fault, the respondent cannot as well be blamed entirely for the accident. Fault could have been apportioned between the respondent and the third party who was not enjoined to these proceedings by the appellant even when he was made aware of the same by the respondent.

19. I therefore find no merit in this appeal which is hereby dismissed and each party shall bear its own costs of the appeal.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S.N. RIECHIJUDGE