Kenya Power & Lighting Company Limited v Ganjoni Towers Limited (Civil Appeal E162 of 2024) [2024] KECA 1803 (KLR) (20 December 2024) (Judgment)
Neutral citation:
[2024] KECA 1803 (KLR)
Republic of Kenya
Civil Appeal E162 of 2024
DK Musinga, KI Laibuta & GWN Macharia, JJA
December 20, 2024
Between
Kenya Power & Lighting Company Limited
Appellant
and
Ganjoni Towers Limited
Respondent
(Being appeals from the Judgment and Decree of the High Court of Kenya at Mombasa (Olga Sewe, J.) delivered on 4th August 2023 In H.C.C.C No. 35 of 2018)
Judgment
1.Kenya Power and Lighting Company Limited, the appellant in Civil Appeal No. E162 of 2024 and respondent in Civil Appeal No. E164 of 2024 and Ganjoni Towers Limited, the appellant in Civil Appeal No. E164 of 2024 and respondent in Civil Appeal No. E162 of 2024, lodged their respective appeals to this Court from the judgment and decree of the High Court of Kenya at Mombasa (Olga Sewe, J.) delivered on 4th August 2024 in Mombasa HCCC No. 35 of 2018 (the impugned judgment). Purely for good order and convenience, we will henceforth refer to Kenya Power and Lighting Company Limited as “KPLC” and Ganjoni Towers Limited as “Ganjoni Towers”.
2.In the impugned judgment, the learned Judge determined and allowed Ganjoni Towers’ claims against KPLC and made various awards in favour of Ganjoni Towers. In its plaint dated 22nd May 2018, Ganjoni Towers prayed for:a.special damages in the total sum of Kshs. 44,544,986 on account of alleged destruction of -i.its Plot No. 295/XX/MI - Kshs. 40,679,286;ii.Plot No. 294/XX/MI - Kshs. 2,662,200;iii.Plot No. 56/XXI/MI - Kshs. 34,800; andiv.Plot No. 423/XX/MI - Kshs. 1,168,700;b.general damages for negligence;c.a declaration that the plaintiff was not responsible for the fire on Mombasa/Block XXI/295;d.an order directing the plaintiff to indemnify the proprietors of Plot No. 294/XX/MI, Plot No. 56/XXI/MI and Plot No. 423/XX/MI in the total sum of Kshs. 3,865,700 as prayed in (a) (ii) to (iv) above;e.interest on Kshs. 40,679,286 in respect of its Plot No. 295/XX/MI as prayed in (a) (i) above till payment in full; andf.costs of the suit and interest thereon.
3.Ganjoni Towers’ case was that the fire resulting in destruction of its premises and of the three adjacent plots aforesaid was attributable to negligence on the part of KPLC. The particulars of negligence were that KPLC failed to: maintain and service the regulator device on the main intake switch; put precautionary measures in place to control and regulate overload and unstable currents; dispatch an emergency response team to disconnect power supply despite notice of the fire; take precautions to ensure the safety of adjacent buildings; replace and maintain power cables; and to replace and maintain a proper fuse.
4.In its statement of defence dated 7th August 2018 and amended on 14th August 2018, KPLC denied the claim and stated, inter alia: that the cause of the fire was not an electrical fault due to an overload or an unstable current, or the alleged failure of an electric regulator on the main intake switch; that they were not to blame for the fire; that the damage allegedly occasioned to the property was not as a result of their negligence; that the fire broke out within the customer’s (Ganjoni Towers) jurisdiction, and that it was caused by their reckless, dangerous, willful and intentional acts and omissions; and that the alleged fire spread rapidly because Ganjoni Towers knowingly and willfully stored highly flammable materials in the premises.
5.According to KPLC, the particulars of negligence attributable to Ganjoni Towers are: “knowingly and intentionally overloading the temporary single phase power supply; failing to ensure that the cables and the wiring within the premises were in good and safe condition; knowingly engaging the services of inexperienced wiring electricians and unqualified electricians; knowingly storing flammable materials within the premises; knowingly failing to report the alleged fire to the defendant’s emergency unit as required; knowingly and intentionally using high voltage machinery within the premises and overloading the single phase power supply; failing to report the start of the alleged fire to the Mombasa County Fire Brigade within the shortest possible time; failing to mitigate the spread of the alleged fire; and intentionally, willingly and knowingly causing the alleged fire.” In view of the foregoing, KPLC prayed that the suit be struck out or dismissed with costs.
6.In its judgment dated 4th August 2024, the High Court (Olga Sewe, J.) awarded Ganjoni Towers:a.general damages for negligence in the sum of Kshs.100,000/=;b.special damages in the sum of Kshs. 30,568,350/=;c.interest on [a] and [b] above at court rates from the date of judgment until payment in full; andd.costs of the suit.
7.Aggrieved by the learned Judge’s decision, KPLC moved to this Court on appeal in Civil Appeal No. 162 of 2024 on the grounds that the learned Judge erred: in misapprehending the facts and by misdirecting herself on the question as to the cause of the fire incident of 3rd April 2017; in failing to hold that the Plaintiff/Respondent, who alleged to be in possession of documentary records/receipts on expended amounts but failed to produce them in evidence as exhibits, did not specifically prove the special damages pleaded; in failing to draw adverse conclusions on the deliberate failure on the part of the Plaintiff/ Respondent to produce available documentary evidence on the actual amounts expended in support of its claim for special damages as pleaded; in basing her decision to award the sum of Kshs. 30,568,350/- on experts’ estimates, notwithstanding the Claimant/Plaintiff’s admission that there existed documentary evidence on the actual amounts expended, but which were not tendered/produced as evidence; in awarding general damages of Kshs. 100,000 to the Plaintiff/Respondent; for failing to appreciate the weight of the uncontradicted defence/Appellant’s evidence on record and the inconsistent Respondent’s/Plaintiff’s evidence; and in failing to dismiss the Plaintiff’s case on the basis of the witnesses’ contradictory evidence and admissions made in cross examination. They prayed that the appeal be allowed by setting aside the impugned judgment and decree and substitute therefor an order dismissing the case in the High Court with costs to KPLC; and that the costs of its appeal be awarded to KPLC.
8.On its part, and in place of a cross-appeal, Ganjoni Towers lodged a separate appeal, to wit, Civil Appeal No. 164 of 2024 on the grounds that the learned Judge erred in law and fact: in failing to consider that the appellant had prayed for interest on special damages to be awarded from the date of filing suit; in failing to consider that the appellant had expended the amount of special damages prayed for at the time of filing suit; in failing to consider the express testimony of the appellant’s witness praying for interest from the date of filing suit; and in failing to exercise her discretion judiciously, thus arriving at the wrong decision. They prayed that their appeal be allowed; that part of the impugned decision which decided that the interest awarded on special damages do run from the date of delivery of judgment be set aside; that, in its place, there be substituted an order that interest on special damages do run from the date of filing suit, to wit, on 22nd May 2018; and that they be awarded costs of their appeal.
9.In support of the appeal by KPLC and in opposition to the appeal by Ganjoni Towers, learned counsel for KPLC M/s. Mogaka Omwenga & Mabeya filed written submissions, a list and summary of cases, all dated 27th March 2024 followed by a further bundle of authorities and summaries dated 13th September 2024 citing a total of nine (9) judicial authorities, which we have taken into consideration. In conclusion, counsel urged us to allow KPLC’s appeal No. E162 of 2024 with costs and dismiss Ganjoni Towers’ Appeal No. E164 of 2024 with costs.
10.On their part, learned counsel for Ganjoni Towers M/s. J. M. Makau & Company, filed their written submissions, a list of authorities and case digest, all dated 25th April 2024 in support of their clients’ appeal and in reply to the submissions made by counsel for KPLC. Learned counsel cited twelve (12) judicial authorities, which we have taken to mind. They urged us to allow Ganjoni Towers’ appeal No. E164 with costs as prayed and dismiss KPLC’s appeal No. E162 with costs.
11.The two appeals were consolidated and, as first appeals, this Court’s mandate applies in equal measure to both as enunciated in Ng’ati Farmers’ Co-Operative Society Ltd v Ledidi & 15 Others [2009] KLR 331 thus:
12.This mandate was reiterated by this Court in the case of Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212 thus:
13.In discharge of our mandate, we take to mind the timeless caution by the predecessor to this Court in the celebrated case of Peters v Sunday Post Ltd [1958] EA 424 where the Court observed that:
14.In our considered view, the issues that fall for determination in this appeal are:(i)whether KPLC was liable in negligence to Ganjoni Towers as claimed in the suit or at all;(ii)if the answer in (i) is in the affirmative, whether Ganjoni Towers proved its claim for special damages to the required standard;(iii)whether the sums awarded to Ganjoni Towers in general damages holds and, if so, in what amount;(iv)whether the sums awarded in the impugned judgment should attract interest from the date of filing suit or from the date of judgment; and (v) what orders ought we to make in determination of this appeal, including orders on costs.
15.On the 1st issue as to whether KPLC was liable to Ganjoni Towers in negligence as alleged or at all, counsel for Ganjoni Towers submitted, inter alia, that:
16.To buttress their submissions, counsel cited the cases of Parvin Singh Dhalay v Republic [1997] eKLR for the proposition that
17.In reply, learned counsel for KPLC contended that:
18.Counsel relied on the afore-cited case of M’Iruanji Muchai v Broadways Bakery & Another, (supra), submitting that the evidence on record was so contradictory that no logical conclusion as to the cause of the fire could be established. According to counsel, no single particular of negligence was proved against KPLC.
19.On the decisive issue of liability, the learned Judge found KPLC fully liable in negligence and observed that:
20.The evidence on record suggests that the parties were substantially in agreement on the cause of the fire that led to the damage complained of. PW2, Elvis Onyango of M/s. Yakub & Associates, an Electrical and Electronic Engineer, who supervised the works at Ganjoni Towers, testified that:
21.On his part, PW3, J. N. Muraya of Utmost Engineering Consultants, was of the view that:
22.In his report dated 7th April 2017, PW5 – Harrison Rai Kengo, Former Deputy Chief Fire Officer, Mombasa, concluded that the fire was caused by “failure of an electrical regulator device on the main in- take switch caused by excess power supply from power surge.” According to PW5, “class C fire is fire caused from electrical faults …. I could also see that the fire had green flames. The ordinary fire would have red flames. The smell is also different from the other kinds of fire. All the signs of class C fire were visible …. It is true that at the site of Ganjoni Towers there were petroleum products…. They were also empty bags of cement and timber that caught fire and contributed to the overall damage.”
23.From the testimonies of PW2, PW3 and PW5, who testified in support of Ganjoni Towers’ claims, the witnesses were not in concurrence on what the exact cause of the fire was attributable to. The only points of convergence were that the fire was electrical in nature. According to PW2, the electrical fire was attributable to “… an electrical fault due to overload and unstable current passing through the 16mm2 cable”; that the integrity of that cable was questionable; and that appropriate tests should be carried out to confirm its quality for service. He recommended termination of electrical supply via that cable and installation of new fuses in the meter board.
24.On his part, PW5 was of the opinion that the fire was caused by “failure of an electrical regulator device on the main in-take switch caused by excess power supply from power surge”. He observed that
25.According to PW3, appropriate measures of intervention were required to arrest carbonation, corrosion and deterioration of the concrete and steel elements due to the effect of heat, smoke and extinguishing water. It is noteworthy that the witness did not express any opinion on the actual cause of the electrical fire.
26.In his report dated 29th August 2017, DW1 – Kigo Kariuki, a Risk Consultant with Safety Surveyor Limited, observed that “… the supply to the building was intact as the meters and cut outs were found intact” … and that “the cause of the fire still remains unknown”. According to him, “… the fire started from the middle of the basement floor and spread ….”, but that he was unable to establish the cause. The same view was expressed by DW2 – Ezra Chweya Oyunge, KPLC’s Electrical Engineer who, in his report dated 10th April 2017, stated that “the cause of the fire still remains unknown”. Be that as it may, DW2 found that “apart from the indicated interference of the supply cable to the single phase the supply to the building was intact as the meters and cut outs were found to be intact”.
27.What DW2 next states in his report is informative. Referring to photographic evidence, he states that “the top photograph is of the single-phase meter …. There was an illegal tapping at this point. There are two small wires which are connected and cut. The cutting was fresh…. It shows it was an illegal tapping of both live and neutral lines”. To our mind, the “illegal tapping” from a “single-phase” meter would explain what PW2 viewed as the “electrical fault due to overload and unstable current” to which the electrical fire was evidently attributable.
28.The question that arises from this conclusive finding is whether it was KPLC or Ganjoni Towers who were responsible for the “illegal tapping” and “overload and unstable current” in light of DW2’s finding that “… the supply to the building was intact as the meters and cut outs were found to be intact,” which, in our considered view, ruled out the possibility of a power surge for which KPLC would ordinarily have been responsible. However, this was not the case. As contended by KPLC, the fire broke out within the Ganjoni Towers domain (on the side of the consumer), and that “… it was caused by their reckless, dangerous, willful and intentional acts and omissions …”; and that the alleged fire spread rapidly because Ganjoni Towers knowingly and willfully stored highly flammable materials in the premises.
29.In view of the foregoing, and on a balance of probabilities, we find nothing to suggest that KPLC was negligent as claimed or that the electrical fire in issue was attributable to them as claimed. To the contrary, Ganjoni acted in breach of statute law and, accordingly, was the author of its own misfortune. It failed to take reasonable care for their own safety, which caused or contributed to the damage complained of, and which was reasonably foreseeable. As was observed by the Court of Appeal of England and Wales in Lily White v University College London Hospitals NHS Trust (2005) EWCA CIV 1466, “such accidents would not happen if proper care were used”. Put differently, they assumed the risk of damage by the illegal tapping aforesaid. The High Court in AAA Growers Ltd v Ann Wambui (Suing as the Administratrix in the Estate of Thomas Wahome Wambui) & another [2016] eKLR explained the doctrine of volenti non fit injuria when it correctly held as follows:
30.To our mind, the burden of taking precautions to avoid the eventuality of a fire resulting from illegal tapping and power overload in contravention of section 64 of the Energy Act, 2006 (Repealed) lay squarely on Ganjoni Towers. Moreover, they knew or ought to have known that such damage was likely to occur if reasonable care was not taken, not to mention the likely seriousness of the damage. We form this view mindful of the fact that, gaging from the profile of its witnesses, Ganjoni Towers was ably resourced with architects and electrical engineers whose professional knowhow was at their disposal for timely engagement to avert such a devastating inferno by ensuring strict compliance with section 64 of the 2006 Act, which reads in part:64.Unauthorised, fraudulent or improper supply or use of electrical energy(1)A person who—… …c.lays, erects or installs, or permits to be laid, erected or installed, any conductor or apparatus and connects it, or permits it to be connected, with any electric supply line through which electrical energy is supplied by a licensee, without the consent of the licensee; ord.disconnects, or permits to be disconnected, any conductor or apparatus from any electric supply line belonging to a licensee, without the consent of the licensee; ore.makes or permits to be made any alteration in his permanent installation without the previous approval of the licensee; orf.in any case where the quantity of the supply of electrical energy is not ascertained by meter, uses any apparatus or device other than what he has contracted to pay for or uses such apparatus or device at any other time than the time specified and for which he has contracted to pay; org.uses the electrical energy supplied to him for other purposes other than the purposes for which it is supplied for; orh.supplies any other person with any part of the electrical energy supplied to him by the licensee or the permit holder, without the consent of the licensee or the permit holder, commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings, or to a maximum term of imprisonment of one year, or to both.… ….(3)The existence of artificial or unlawful means for making—a.connection or disconnection as is referred to in paragraphs (c), (d) and (f) of subsection (1); orb.making such alteration as is referred to in paragraph (e) of subsection (1); or (c) facilitating such use or supply as referred to in paragraphs (g) and (h) of subsection (1), shall, where the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, be prima facie evidence that such connection or disconnection, alteration, improper use or supply, as the case may be, has been fraudulently, knowingly and willfully caused or permitted by the consumer.
31.The only other question that requires scrutiny is whether KPLC was entirely blameless as asserted in its defence, or whether there was anything that could have been done to prevent the incident. With regard to their response to the fire, PW1 testified that they arrived one hour later while PW5 stated that KPLC arrived twenty (20) minutes later and disconnected power supply to contain the fire, which was raging on account of the highly flammable materials stowed in the basement of the premises.
32.On the other hand, DW2, a KPLC’s Electrical Engineer, stated:
33.We are not told how far the KPLC emergency team had to travel to reach the premises or the location at which the electrical power supply was to be disconnected. PW1 states that they took more than an hour while PW5’s contradictory evidence suggests that the emergency team arrived about 20 minutes later. DW2’ evidence that they were able to disconnect power supply within 5 minutes goes further to suggest that the response was within a reasonable time, and that KPLC cannot be said to have acted negligently in this regard. But what else could they have done?
34.While the record as put to us does not disclose how long the “illegal tapping” that resulted in “overload” was in place before the fire broke out, we fail to see how such tapping from a single-phase meter on such a building could have gone undetected by KPLC, whose officers took meter readings from time to time. We form this view conscious of the fact that such readings were not necessarily taken by electrical engineers who could have easily detected the illegal tapping. In any event, KPLC’s duty of care ended with the installation of the meter at the tail-end of its power supply line, and beyond which the consumer took full responsibility as contemplated under the Act. The very fact that KPLC supplies electricity does not, of itself, make them liable for every electrical fire that breaks out without proof of negligence on their part (see Jeremiah Maina Kagema v Kenya Power & Lighting Co. Ltd [2001] eKLR, citing with approval the case of Sellars v Best [1954] 2 All ER 389).
35.In our considered view, Ganjoni Towers did not prove a causal link between KPLC’s alleged negligence and their injury. As a general rule, “… the Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone’s negligence. An injury per se is not sufficient to hold someone liable” (see Statpack Industries v James Mbithi Munyao [2005] eKLR). As was held by The House of Lords in Haley v London Electricity Board (1965) AC 778, “[n]egligence requires that fault be proved against the defendant. Proof cannot be implied by the fact that an accident occurred.”
36.However, the circumstances of this case and the statutory duties of KPLC are suggestive of a measure of complacency on the part of KPLC for which it was, to some degree, blameworthy on account of failure on the part of its officers to detect the “illegal tapping” when taking meter readings. Consequently, we hereby assess and find that KPLC was 20% negligent, set aside the impugned judgment in this regard and substitute therefor a finding on liability against KPLC in negligence at 20%.
37.As to whether KPLC was liable to Ganjoni Towers in respect of the adjoining properties belonging to third parties, we think not. Indeed, we find nothing to fault the learned Judge for dismissing Ganjoni Towers’ claim on their behalf. As correctly observed by the learned Judge:
38.Turning to the 2nd issue as to whether Ganjoni Towers proved its claim in special damages, learned counsel for Ganjoni Towers contends that the sums claimed were justified.
39.On their part, counsel for KPLC submitted that the amounts claimed in special damages were unmerited as they were not strictly proved.
40.The basis on which the trial court awarded Ganjoni Towers special damages in the sum of Kshs. 30,568,350/= was, first, its finding on liability in negligence against KPLC; and, secondly, on its finding that the amount awarded was founded on estimates, and that it represented “… an accurate picture of the plaintiff's loss.” In this regard, the learned Judge had this to say:
41.Our re-examination of the evidence on record raised pertinent questions that beg answers as to whether the special damages pleaded by Ganjoni Towers and awarded by the trial court in the sum of Kshs. 30,568,350/= was strictly proved on the required standard. We take note of the learned Judge’s finding that “… the plaintiff produced no receipts or vouchers to prove actual expenditure incurred on repairs”.
42.We hasten to observe that the evidence in that regard speaks for itself. For instance, when testifying as PW1 on cross-examination at the hearing on 26th October 2021, four-and-a-half years after the fire, Sammy Kamuio Mukuri, a Director of Ganjoni Towers, stated as follows:
43.Despite express admission by Kamuio that “… every purchase made by the Company is documented”; that they had the documents and “… can avail the same if need be”; that “the receipts and invoices are available and can be produced, if given time …,” the trial court awarded Ganjoni Towers special damages in the face of the admission. Kamuio’s statement in conclusion of his testimony lends clarity to the state of the affairs with regard to the requirement to strictly prove special damages specifically pleaded in such a claim as Ganjoni Towers’. As stated by Kamuio, “other than the reports by the architect and the quantity surveyor [they had] not produced any document or receipt to prove expenditures on the repairs after the fire incident ….”
44.While the parties may not have been in contention on the respective reports of their architects and quantity surveyors on the proposed works and estimated costs of repair, such reports amounted to no more than professional, albeit speculative estimates of such repairs. To our mind, such reports cannot be construed as strict proof of such costs, the proof of which lay in Ganjoni Towers’ power to produce in evidence, but which they neglected to do to the detriment of their claim for special damages.
45.Drawing a clear distinction between general and special damages, whose rules as to pleading and proof vary, this Court had this to say in Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1992] KLR 177:
46.Pronouncing itself on the general rule that has stood the test of time with regard to pleadings and the standard of proof of special damages, this Court in Hahn v Singh [1985] KLR 716 and 721 where the Learned Judges of Appeal - Kneller, Nyarangi, JJA & Chesoni Ag. JA. held thus at P. 717:
47.In the same vein, the High Court of Kenya at Chuka in Ombeti & another v Muthuure [2024] KEHC 3377 (KLR) correctly observed:
48.The record as put to us is clear that Ganjoni Towers did not present in evidence any documents or receipts in proof of the actual expenses (if any) incurred in repair and restoration of the property in respect of which special damages were claimed and awarded. In the absence of “strict” proof thereof, we hold, with all due respect, that the learned Judge was at fault in awarding Ganjoni Towers the sum of Kshs. 30,568,350/= on account of special damages.
49.Turning to the 3rd issue as to whether the sum of Kshs. 100,000 awarded to Ganjoni Towers on account of general damages was merited, we hasten to observe that it was and that, subject to our finding on the apportionment of liability between KPLC and Ganjoni Towers, we find nothing to disturb the learned Judge’ discretionary award which, to our mind, was neither inordinately high or low to represent an erroneous estimate.
50.We reach this conclusion on the authority of Butt v Khan (1977) 1 KAR where this Court addressed itself to the discretionary nature of awards of general damages and the Court’s approach in determination of appeals from such awards, thereby holding as follows:
51.In the same vein, this Court in Mbogo & Another v Shah [1968] EA 93, this Court (Sir Newbold, P.) stated at p.96 thus:
52.In Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
53.Having considered the impugned judgment, the rival submissions and the cited authorities, we find no fault in the learned Judge’s decision to award Ganjoni Towers a sum of Kshs. 100,000 in general damages, save that it be reduced to Kshs. 20,000 on account of our finding that Ganjoni Towers was 80% liable for the cause of fire leading to the damage complained of, and that liability in negligence may be apportioned at 20% against KPLC.
54.Turning to the contentious 4th issue raised by Ganjoni Towers in Civil Appeal No. 164 of 2024 as to whether interest on the sums awarded should accrue from the date of filing suit or from the date of judgment, we hasten to observe that it all depends on the specific prayer in its pleadings by which it is invariably bound. In this regard, clause (e) of Ganjoni Towers’ prayers in its plaint dated 22nd May 2018 reads: “interest on (b) above till payment in full”. It is indubitable that this prayer does not specify any date from which Ganjoni Towers wished to be awarded interest. In the absence of express pleading in that regard, the effect was to leave it to the trial court’s discretion, which we find no reason to disturb.
55.Section 2 of the Civil Procedure Act, 2010 defines “pleading” thus:
56.On the essence of pleadings, the Supreme Court of Kenya in Raila Amolo Odinga & Another v IEBC & 2 Others [2017] eKLR found and held as follows:
57.In the same vein, this Court in Independent Electoral and Boundaries Commission & Ano. v Stephen Mutinda Mule & 3 others [2014] eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings:
58.This Court underscored the principle that parties are bound by their pleadings in David Sironga Ole Tukai v Francis Arap Muge & 2 Others [2014] eKLR and expressed itself thus:
59.This proposition was also expressed by the former Court of Appeal for Eastern Africa in Gandy v Caspar Air Charters Ltd [1956] 23 EACA, 139 in the following words:
60.We pause for a moment to point out that our elucidation of this principle notwithstanding the outcome of the two appeals is nonetheless called for to lend clarity to our findings and set the law straight on the pleading and prayer by Ganjoni Towers with regard to interest and the date from which it applies on the sums awarded.
61.Taking to mind the fact that Ganjoni Towers did not specify in its prayer for interest the date from which such interest should accrue, we find no fault in the learned Judge’s decision to award interest from the date of judgment. In the circumstances, Civil Appeal No. E164 of 2024 fails and is hereby dismissed in its entirety.
62.Having carefully considered the record in the two consolidated appeals, the respective grounds on which they were anchored, the rival submissions of learned counsel, the cited authorities and the law, we find that KPLC’s Civil Appeal No. E162 of 2024 substantially succeeds, albeit in part, while Ganjoni Towers’ Civil Appeal No. E164 of 2024 fails in its entirety. Consequently, we hereby order and direct that:a.With respect to liability for negligence, the quantum of general and special damages as well as costs of the suit, the Judgment and Decree of the High Court of Kenya at Mombasa (Olga Sewe, J.) delivered on 4th August 2023 be and is hereby set aside and substituted therefor with the following:i.a declaration that Kenya Power & Lighting Company Limited was liable to Ganjoni Towers Limited in negligence to the extent of 20%, while Ganjoni Towers Limited was liable in contributory negligence at 80%.ii.an order dismissing Ganjoni Towers’ claim for special damages in its entirety;iii.an award of the net sum of Kshs. 20,000/= to Ganjoni Towers Limited on account of general damages, taking account of our finding on the degree of liability attributable to Ganjoni Towers in negligence at 80%; andiv.an order that Ganjoni Towers Limited do bear 80% of the costs of the suit in the trial court;b.with regard to the date on which interest accrues on the sums hereby allowed, to wit the date of the impugned judgment, namely on 4th August 2023, the Judgment of Olga Sewe, J. be and is hereby upheld;c.Ganjoni Towers Limited do bear the costs of Civil Appeal No. E164 of 2024 and 80% of the costs in Civil Appeal No. E162 of 2024.Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024.D. K. MUSINGA, (P)....................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb...................................JUDGE OF APPEALG. W. NGENYE-MACHARIA...........................................JUDGE OF APPEALI certify that this is a True copy of the originalSigned DEPUTY REGISTRAR