https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9961

RM (Minor Suing through DBO) v Kenya Power & Lighting Company Ltd (Civil Appeal E222 of 2025) [2026] KEHC 9961 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 9961 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E222 of 2025 AM Hassan, J July 8, 2026 Between RM (Minor Suing through DBO) Plaintiff and Kenya Power & Lighting Company Ltd Defendant (Being an Appeal from the Judgment of the Senior Principal Magistrate’s Court at Kisumu dated 16/10/2025 in KISUMU MCCC E212 OF 2024-Delivered by Hon L. D. Ogombe (Senior Principal Magistrate) Judgment Introduction/ Facts Of The Case 1.The Plaintiff vide an Amended Plaint dated 6th August 2024, instituted a suit against the Defendant seeking damages arising from an accident that occurred on 10th September 2023, in which the minor while putting a mobile charger in the house socket to charge his phone in their home at Kasarani Area within Obunga Estate in Kisumu County was electrocuted causing him to sustain very serious injuries, namely cut wound middle phalanx of the middle finger left hand, neuropraxia of the whole of the left side of the body, blunt injury on the chest with mild tenderness, and left leg pain and tenderness. 2.The Plaintiff prayed for judgment against the Defendant for: general damages, special damages of Kshs. 2,250/=, costs of the suit, and interest thereon at court rates. 3.The Defendant in response filed an Amended Statement of Defence dated 26th August 2024, denying the Appellant’s case. They contended that the accident was caused by faulty wiring within the premises. Similarly, the Defendant filed Third Party Notice dated 26th August 2024 enjoining the 2nd Defendant to the trial court proceedings. 4.The 2nd Defendant filed her Third-Party Statement of Defence, List of Witnesses, dated 26th November 2024 denying liability and maintaining that she was neither the owner or legal representative of the deceased owner (her son) and further stated that she had played no role in the wiring or electricity installation. 5.The suit was heard in the Magistrates’ Court, and judgment was delivered on 16th October 2025, wherein the court dismissed both the suit and the third-party proceedings and ordered that each party bear its own costs. In its determination, the court opined that although the evidential burden was on KPLC to produce inspection records and certificates of compliance, and its failure to do so weakened its case, the Plaintiff nevertheless bore the legal burden of proving that the electric shock arose from KPLC’s own supply or negligence. However, no evidence was adduced linking the accident to the meter, service line, or external apparatus, and therefore the court was not satisfied that KPLC had breached its duty of care. 6.Being dissatisfied with the judgment of the trial court, the Plaintiff lodged the present appeal vide an Amended Memorandum of Appeal dated 18th November 2025, raising the following grounds: -1.That the trial court erred in law and fact in dismissing the suit on account of the Appellant’s failure to prove the case against the Respondent when there was sufficient evidence to make her find otherwise.2.That the trial court erred in law and fact in misapprehending the law and facts placed before her and determined the suit beyond the standard of proof established in law for civil cases.3.The trial magistrate occasioned a travesty of justice by misapprehending the law and facts placed before her by the Appellant, by taking into account extraneous circumstance not before her.4.Other grounds as may be argued with leave of this Honourable Court 7.The Appeal was canvassed by way of written submissions. As this is a first appeal, this court is obligated to reconsider, re-evaluate and reanalyse the evidence adduced before the trial court and draw its own independent conclusions, while bearing in mind that it did not have the benefit of seeing or hearing the witnesses testify. This duty was succinctly set out in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 A. Submissions By Parties Appellant’s Submissions 8.The sole issue in contention by the Appellant is whether the trial court misdirected itself on the applicable civil standard of proof. The Appellant submitted that the trial court faulted her case on the basis of PW1’s testimony, which was treated as hearsay on the ground that she was not present at the scene. Nevertheless, the court acknowledged several aspects of the evidence that supported the Appellant’s case. The Appellant contended that the applicable standard of proof in civil cases is on a balance of probabilities and not beyond reasonable doubt, as stated in William Kabogo Gitau v George Thuo & 2 Others [2010] KEHC 4124 (KLR), where the court held that a party succeeds where it shows that its allegations, are more probable than not, and that proof on a balance of probabilities is achieved where a party establishes his case to a 51%, as opposed to 49% of the opposing party, thereby establishing that the pleaded facts are more likely than not to have occurred. 9.The Appellant further relied on Palace Investments Limited v Geoffrey Kariuki Mwenda & Another [2015] eKLR and Miller v Minister of Pensions [1947] 2 All ER 372, submitting that the trial court elevated the evidentiary threshold by effectively requiring direct testimony from the minor, thereby applying a standard higher than that required in civil proceedings. 10.The Appellant further submitted that the trial court rejected his reliance on the doctrine of res ipsa loquitur and Section 52 of the Energy Act, and approached the matter in a manner that imposed a stricter burden of proof than the civil standard, despite the nature of the alleged electrical injury 11.The Appellant argued that the trial court’s finding that the minor’s injuries were consistent with those caused by an electric shock established a prima facie case. It was therefore submitted that, upon establishment of a prima facie case, the evidential burden shifted to the Respondents to produce maintenance logs, inspection records, or other evidence demonstrating that the electricity supply was safe and that reasonable precautions were taken to prevent harm to users. 12.In support of this position, reliance was placed on Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 and Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR, where it was held that once a prima facie case is established, the evidential burden shifts to the defendant. The Appellant therefore submitted that the Respondent was required to rebut the Appellant’s evidence, which it failed to do. Further reliance was placed on Odhiambo & Another (Suing as the Administrators of the Estate of Denis Obiero Odhiambo) v Akello & Another (Civil Appeal E016 of 2022) [2022] KEHC 16954 (KLR 13.On the doctrine of res ipsa loquitur, reliance was placed on Esther Nduta Mwangi & Another v Hussein Dairy Transporters Limited, Machakos HCCC No. 46 of 2027, where the court held that once the doctrine is pleaded, the burden shifts to the defendant to disprove the particulars of negligence attributed to it. Similarly, in Public Trustee v City Council of Nairobi [1965] EA 758, it was held that the maxim applies where the cause of the accident is unknown but the circumstances give rise to a clear inference of negligence, and the defendant is liable if it fails to produce evidence to counter that inference. 14.Further reliance was placed on Kenya Power Limited v Francis Ndungu Gitau (Legal Representative of the Estate of JNN) [2019] KEHC 11751 (KLR), where the court held that, although negligence had been pleaded against the deceased and the guardian, no evidence was adduced to rebut the plaintiff’s case, and in the absence of any other explanation, the doctrine of res ipsa loquitur applied. 15.The Appellant’s second issue was whether the respondent discharged their statutory duty of care under the Energy Act. The Appellant submitted that the Respondents, particularly KPLC, failed to discharge their statutory duty of care under the Energy Act, 2019. It was argued that KPLC bore the responsibility of ensuring that the electrical installation was inspected, verified, and certified as compliant before connecting the premises to the electricity supply. However, KPLC failed to produce inspection records, maintenance records, compliance certificates, or expert evidence demonstrating that it had fulfilled those statutory obligations. 16.The Appellant further contended that, despite supplying electricity to the premises through an official prepaid meter, KPLC did not prove that it had conducted the requisite inspections and approvals. Reliance was placed on AMK (suing as the mother and Next Friend of IMK, Minor) v Kenya Power & Lighting Company Limited [2020] eKLR for the proposition that KPLC bears a heightened duty of care owing to the dangerous nature of electricity. Consequently, the Appellant maintained that KPLC's failure to demonstrate compliance with its statutory obligations established negligence and liability for the damage occasioned. 17.The Appellant’s third issue was whether causation and liability properly attached to both respondents. The Appellant contended that both causation and liability were properly established against the Respondents in respect of the electrocution incident, which is alleged to have occurred inside the house due to a faulty external electricity supply. 18.The Appellant submitted that the absence of electrical certification and verification records, coupled with the lack of expert rebuttal evidence, left the Appellant’s prima facie case unchallenged. The Appellant argued that in civil claims, liability attaches where it is shown on a balance of probabilities that a party’s act or omission caused the injury, which threshold was met in the present case. Reliance was placed on medical and evidential documentation, including an expert medical report confirming electrical burns on the left-hand middle phalanx and neuropraxia affecting the left side of the body, findings said to be consistent with electrocution injuries. The P3 form and hospital records further corroborate a history of electrocution, thereby linking the injuries to the incident complained of. 19.The Appellant further relied on Odhiambo & Another v Akello & Another (Civil Appeal E016 of 2022), submitting that once a causal connection between a hazardous thing and injury is established, the burden shifts to the party in control of that danger to demonstrate that reasonable precautions were taken. It is argued that the Respondents failed to discharge this burden, thereby rendering both liable, including under principles akin to strict liability for hazardous conditions. 20.As to control and management, the Appellant submitted that the 2nd Respondent admitted to managing the premises and collecting rent, thereby assuming responsibility for safety within the property, as noted by the trial court record. Reliance was placed on Diamond Homes Limited v Shapi (Civil Appeal No. 118 of 2021) for the proposition that a duty of care in leased premises arises not only from ownership but also from actual management, occupation, and control. Accordingly, the Appellant argued that liability attaches to the 2nd Respondent despite attempts to characterize its role as that of a mere caretaker, as responsibility for safe electrical installations flows from its control over the premises. 21.On the issue of whether the trial court assessment of general damages at Kshs. 500,000/= was manifestly low, if liability had been established, the Appellant contended that the trial courts assessment of Kshs. 500,000/= in general damages would have been manifestly low and would fail to adequately compensate the minor for the injuries suffered. It was submitted that the Appellant, a minor, sustained severe electrocution injuries including electrical burns, neuropraxia, blunt chest injury, and partial disability, all of which have long-term and continuing consequences. 22.The Appellant relied on the decision in Gichuhi v Kenya Power & Lighting Company Limited (Civil Appeal E033 of 2022) [2025] KEHC 11765 (KLR), where the court awarded Kshs. 1,500,000/= for comparable injuries arising from electrocution. On that basis, it was argued that the trial court’s award was inordinately low and that a comparable award of Kshs. 1,500,000/= would be reasonable in the circumstances of the present case. 23.The Appellant last issue was who should bear the cost of the appeal. The Appellant submitted that, pursuant to Section 27 of the Civil Procedure Act, costs should follow the event. Accordingly, since the appeal was likely to succeed, the Appellant prayed that the costs of the appeal be awarded to the Appellant and the minor. 24.The Appellant urged the appellate court to find the Respondents 100% liable jointly and severally for the electrocution incident, set quantum at 1,500,000/= and abide by the trial’s court finding on special damages. Respondent’s Submissions 1st Respondent submissions 25.The 1st Respondent framed the first issue for determination as whether the trial court erred in finding that the Appellant failed to prove his case as against the Respondent. The 1st Respondent submitted that the Trial Court properly evaluated the evidence and correctly found that the Appellant failed to discharge the burden of proof to the required standard. 26.They submitted that, it is trite that, a first appellate court is duty bound to re-evaluate the entire evidence afresh and draw its own independent conclusions, as held in Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123 and Abok James Odera T/A A.J Odera & Associates v John Patrick Machira [2013] eKLR. Even under such re-evaluation, the Appellant’s case remained unproven. 27.They argued that, the Appellant failed to present any direct or credible evidence linking the alleged electric fault to negligence or breach of statutory duty on the part of the 1st Respondent under the Energy Act 2019. No eyewitness testimony was called despite the Appellant conceding that he did not witness the incident, and the failure to call the minor victim, who was capable of testifying was unexplained. The testimony of the mother (PW1), who was not present at the scene, was properly treated as hearsay. 28.Further, they argued that the Appellant did not produce any evidence that the fault originated from the 1st Respondent’s infrastructure, such as the power pole or external supply lines. On the contrary, during cross-examination, it was admitted that the accident occurred inside the house while the minor plugging in a charger, pointing to internal wiring issues. 29.They submitted that the Appellant also failed to adduce any expert or corroborating evidence such as inspection reports or compliance certificates to establish that the external supply system was defective. As consistently held in Statpack Industries v James Mbithi Munyao and M’Irungu Muchai v Broadway Bakery & Another [1996] eKLR, negligence must be strictly proved, and injury alone is insufficient to infer liability. 30.The 1st Respondent submitted that Sections 52, 140(1)(b), and 166(2) of the Energy Act 2019 are inapplicable in the absence of proof that the accident was caused by defects in external electricity infrastructure. As affirmed in Mbatha Muithya & Another v KPLC [2020] eKLR, liability under the Act arises only where damage is shown to emanate from the supply system, not internal household wiring, which remains the responsibility of the occupier under Sections 148 and 151 of the Act. 31.They argued that, the doctrine of res ipsa loquitur was inapplicable, as the 1st Respondent adduced evidence demonstrating that the cause of the accident was likely defective internal wiring, thereby displacing any presumption of negligence. The Appellant’s attempt to rely on allegations of a defect at the electricity pole was not supported by any evidence and remained unproven. Under Sections 107 and 109 of the Evidence Act, the burden of proof lay squarely on the Appellant, a burden which was not discharged. 32.Further, they submitted that, the trial court properly appreciated the evidence, including the investigation report (Dexh-1) and pictorial exhibits, which demonstrated that the accident occurred within the Appellant’s premises and was attributable to internal electrical installation. This position was further supported by the principle in Lucia Atieno Malasre v KPLC [2019] eKLR, where it was established that KPLC is not liable for acts or omissions occurring within a consumer’s premises or caused by third-party installations. 33.In conclusion, the 1st Respondent submitted that the Appellant wholly failed to prove negligence or breach of statutory duty against them and that the trial court had correctly applied the law and properly dismissed the claim. 34.The 1st Respondent’s last issue was whether the trial court erred in law in finding that the Appellant was not entitled to the reliefs sought. They submitted that the trial court correctly found that the Appellant was not entitled to the reliefs sought, having failed to prove negligence or breach of statutory duty against the Respondents. They argued that reliefs can only be granted upon proof of a claim and, since the Appellant failed to establish liability, the dismissal of the suit was justified. 35.The 1st Respondent further contended that although the trial court, in obiter dictum, indicated that it would have awarded Kshs. 500,000/= as general damages had liability been established, the issue of quantum was not properly before the appellate court. According to the Respondent, the Appellant's Memorandum of Appeal challenged only the findings on liability, but the Appellant's submissions improperly shifted focus to the assessment of damages. It was submitted that parties are bound by their pleadings and that the Appellant could not pursue an appeal on quantum without having specifically pleaded the issue or obtained leave to amend the appeal. 36.In the alternative, the 1st Respondent maintained that the Appellant had failed to demonstrate any error in principle on the part of the trial magistrate in assessing damages. The proposed award of Kshs. 500,000/= was said to be reasonable, and the trial court was entitled to disregard the authorities relied upon by the Appellant for an award of Kshs. 1,500,000/= as they were not comparable to the injuries sustained by the minor. 37.Consequently, the 1st Respondent urged the appellate court to uphold the trial court's findings and dismiss the appeal for lack of merit. The 1st Respondent further prayed for the costs of both the appeal and the lower court proceedings, submitting that costs should follow the event pursuant to Section 27 of the Civil Procedure Act. 2nd Respondent Submissions 38.The 2nd Respondents first issue of determination was framed as whether the trial court erred in finding that the appellant had not established his case on a balance of probability as required by the law. The 2nd Respondent submitted that the trial court correctly found that the Appellant failed to discharge the burden of proof on a balance of probabilities. 39.She submitted that there was a complete absence of direct and credible evidence explaining how the alleged electrocution occurred. The minor mother who testified on behalf of the minor (PW1) was not present at the time of the incident, and although she alleged that neighbours witnessed the occurrence, none of those neighbours were called to testify. Further, the minor, who was 14 years old at the time of the incident as indicated in the medical report on page 34 of the record of appeal, was also not called to testify, and no explanation was offered for this omission. The 2nd Respondent contended that, in the absence of such direct evidence, the Appellant’s case rested on hearsay evidence which did not fall within any recognised exception under the Evidence Act, and which could not be relied upon to prove liability. 40.The 2nd Respondent further relied on the pleadings contained in paragraph 3 of the plaint, wherein it was alleged that the minor was electrocuted while inserting a mobile phone charger into a socket at their home in Kasarani, Obunga Estate, Kisumu County. However, it was submitted that these allegations were not supported by any admissible evidence adduced at trial. Consequently, the 2nd Respondent supported the trial court’s finding that the Appellant had failed to prove, on a balance of probabilities, how the incident occurred, and that the dismissal of the suit was therefore proper in both law and fact. 41.Further, the 2nd Respondent submitted on the issue of whether the trial court erred in law and fact in misapprehending the law and facts placed before her and determined the suit beyond the standard of proof established in law for civil cases. The 2nd Respondent submitted that, the trial court neither erred in law nor in fact, and properly applied the established principles governing the burden and standard of proof in civil cases. She argued that the court did not impose any higher threshold than the required standard of proof on a balance of probabilities. 42.Relying on Sections 107(1) and 108 of the Evidence Act (Cap 80), the 2nd Respondent contended that the legal burden of proof rests upon the party who asserts a fact and would fail if no evidence were produced. It is therefore submitted that the Appellant was required to prove, on a balance probabilities, the factual basis of the claim. 43.The 2nd Respondent further relied on Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions and Miller v Minister of Pensions [1947] 2 All ER 372, where it was stated that, in civil cases the standard is whether the court considers the case “more probable than not,” and that if the probabilities are evenly balanced, the party bearing the burden must fail. Applying the principles to the case, the 2nd Respondent submitted that although the Appellant alleged that a minor was electrocuted while charging a phone, the minor was not called to testify as to the circumstances of the incident. She therefore contended that the Appellant failed to discharge the burden of proof required under the Evidence Act and common law. 44.Accordingly, the 2nd Respondent maintains that the trial court correctly found that the Appellant had not proved the claim on a balance of probabilities, and that the dismissal of the suit was proper in law and fact. 45.The 2nd Respondents final issue for determination was whether the trial magistrate occasioned a travesty of justice by misapprehending the law and facts placed before her by the Appellant, by taking into account extraneous circumstances not before her. The 2nd Respondent submitted that, the allegation was unfounded. She argued that the judgment demonstrated a proper and reasoned analysis of both the evidence and applicable law, with no indication that the court took into account matters outside the record. 46.On liability, the 2nd Respondent maintained that the trial court correctly found that no claim had been established against her. She testified that she was not the owner of the premises in question, and this position was supported by documentary evidence including a burial permit, a land agreement, and Municipal Council records, all of which confirmed that the premises belonged to her deceased son, John Omondi Onyiego. She further submitted that she was not the legal administrator of the deceased’s estate, and there was no evidence showing that she was responsible for the electrical wiring or installation at the premises. 47.In the circumstances, I have considered the submissions of both the Appellant and the Respondents and I therefore wish to have the following as issues for determination; B. Issues For Determinationa.Whether the Appellant proved, on a balance of probabilities, that the electrocution was caused by the negligence and/or breach of statutory duty of the Respondents.b.Whether the trial court erred in its evaluation of the evidence and application of the law in dismissing the suit and the third-party proceedings.c.Whether the Appellant is entitled to the reliefs sought, and who should bear the costs of the suit and this appeal. C. Analysis And Determination Whether the Appellant proved, on a balance of probabilities, that the electrocution was caused by negligence and/or breach of statutory duty of the Respondents 48.The burden of proof in civil proceedings is governed by Sections 107, 108 and 109 of the Evidence Act. The legal burden rests upon the party who asserts the existence of a fact and remains with that party throughout the proceedings.In Nandwa v Kenya Kazi Ltd [1988] eKLR, the court emphasized that the burden of proof lies upon the person who would fail if no evidence at all were tendered by either side. 49.In the present appeal, the Appellant alleged that the minor sustained electrocution injuries while inserting a mobile phone charger into a socket within the house where he resided. It was therefore incumbent upon the Appellant to establish, on a balance of probabilities, not only that the injuries were caused by electrocution, but also that the electrocution resulted from negligence or breach of statutory duty attributable to either of the Respondents. 50.Upon re-evaluating the evidence on record, I note that the medical evidence, including the treatment records, P3 Form and medical report, established that the minor sustained injuries consistent with electric shock.However, proof of injury alone was not sufficient to establish liability. The Appellant was further required to demonstrate the source of the electrical fault and connect that fault to an act or omission on the part of the Respondents. 51.The evidence tendered before the trial court did not establish how the alleged electrocution occurred. PW1 candidly admitted that she was not present when the incident occurred. Although it was suggested that neighbours witnessed the occurrence, none of them were called to testify. Equally, no explanation was offered as to why the minor, who was capable of giving an account of the incident, was not called as a witness. 52.Further, no expert evidence, electrical inspection report, or technical assessment was produced to demonstrate that the accident originated from the 1st Respondent's electricity supply system, meter, service line, transformer, or any other external installation under its control. The evidence merely established that the incident occurred inside the house while the minor was plugging a charger into a socket. 53.In negligence claims involving technical matters such as electrical installations, the court cannot impose liability on the basis of speculation. As was observed by the Court of Appeal in Kiema Mutuku v Kenya Cargo Handling Services Ltd [1991] 2 KAR 258, there is no liability without fault and a plaintiff must prove some negligent act or omission on the part of the defendant. 54.I am therefore unable to agree with the Appellant's contention that liability automatically arose merely because the injuries were consistent with electrocution. While the injuries were proved, the evidence fell short of establishing that the electrocution was occasioned by any negligent act, omission, or statutory breach attributable to either Respondents. 55.Regarding the 2nd Respondent, the evidence did not establish that she owned the premises, undertook the electrical installation, or exercised legal control over the electrical infrastructure complained of. The documentary evidence produced before the trial court supported her position that the premises belonged to her deceased son. No evidence was tendered linking her directly to the alleged defect. 56.Consequently, this court finds that the Appellant failed to discharge the burden of proving, on a balance of probabilities, that the electrocution was caused by the negligence and/or breach of statutory duty of either Respondents. Whether the trial court erred in its evaluation of the evidence and application of the law in dismissing the suit and the third party 57.As a first appellate court, this court is obligated to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This principle was reaffirmed in Peters v Sunday Post Ltd [1958] EA 424. 58.The Appellant contended that the trial court applied a higher standard of proof than that required in civil cases and improperly rejected the evidence tendered on behalf of the minor. I have carefully examined the impugned judgment and I find no basis for that contention. 59.The learned trial magistrate correctly appreciated that the applicable standard was proof on a balance of probabilities. The court did not require proof beyond reasonable doubt. Rather, it found that the evidence presented was insufficient to establish the source of the electrical fault or connect the accident to the Respondents. 60.Significantly, the trial court acknowledged that the 1st Respondent's failure to produce inspection records and certificates of compliance weakened its defence. However, the court correctly appreciated the distinction between the legal burden and the evidential burden. The weakness of a defendant's case cannot relieve a plaintiff of the obligation to establish a prima facie case. 61.In my view, the learned magistrate properly directed herself on this principle. Before any evidential burden could shift, the Appellant was required to establish facts from which negligence or breach of statutory duty could reasonably be inferred. That threshold was not met because the source and cause of the alleged electrocution remained unproved. 62.I equally find no merit in the allegation that the trial court considered extraneous matters. The judgment demonstrates a careful analysis of the pleadings, testimony, documentary exhibits and applicable legal principles. The findings reached were grounded on the evidence that was before the court and not on matters outside the record. 63.With regard to the dismissal of the third-party proceedings, the trial court found that no liability had been established against the principal Defendant. In those circumstances, and in the absence of proof connecting the 2nd Respondent to the alleged occurrence, the dismissal of the third-party proceedings cannot be faulted. 64.Accordingly, I find that the learned trial magistrate properly evaluated the evidence and correctly applied the law in dismissing both the suit and the third-party proceedings. Whether the Appellant is entitled to the reliefs sought 65.Having found that the Appellant failed to establish negligence or breach of statutory duty against the Respondents, it follows that the claim for damages cannot succeed. Liability is the foundation upon which an award of damages rests. In the absence of liability, there exists no basis upon which the reliefs sought by the Appellant can be granted. 66.The Appellant also challenged the trial court's observation that, had liability been established, general damages would have been assessed at Kshs. 500,000/=. However, having upheld the trial court's finding on liability, the issue of quantum becomes largely academic and does not arise for determination. 67.In any event, the appeal as framed in the Memorandum of Appeal principally challenges the trial court's findings on liability. Since liability has not been established, there is no basis for this court to interfere with the trial court's observations regarding damages. Who should bear the costs of the suit and this appeal 68.On costs, Section 27 of the Civil Procedure Act grants the court discretion to determine by whom and to what extent costs shall be paid, although the general principle is that costs follow the event. 69.The trial court directed each party to bear its own costs. While that order was within the trial court's discretion, the present appeal has been unsuccessful. The Respondents have been required to defend the judgment of the lower court and have successfully done so. 70.In the circumstances, and there being no sufficient reason to depart from the general rule, I find that the costs of this appeal should follow the event and be borne by the Appellant. D. Disposition 71.Having carefully considered the pleadings, the record of appeal, and the rival submissions by counsels, together with the applicable law and authorities, this court now proceeds to render its determination on the issues arising for resolution in this appeal as follows;a.The Appeal is hereby dismissed in its entirety.b.The Judgment and Decree of the Senior Principal Magistrate's Court in Kisumu MCCC No. E212 of 2024 delivered on 16th October 2025 by Hon. L. D. Ogombe (SPM) are hereby upheld.c.The order of the trial court dismissing the suit and the third-party proceedings, with each party bearing its own costs in the lower court, is hereby affirmed.d.The Appellant shall bear the costs of this Appeal.e.Interest on the costs of the Appeal shall accrue at court rates from the date of taxation until payment in full. It is so ordered. SIGNED BY/FOR:TH E JUDICIAR Y O F KENY A HON. JUSTICE ABDI M. HASSANKISUMU HIGH COURTHIGH COURT CIVIL DATE: 2026-07-08 13:00:14