Mutui & another v Kenya Power and Lighting Company Ltd (Tribunal Case E004 of 2022) [2022] KEET 839 (KLR) (30 November 2022) (Ruling)
Neutral citation:
[2022] KEET 839 (KLR)
Republic of Kenya
Tribunal Case E004 of 2022
D.K Mwirigi, Vice Chair, B.H Wasioya, F. M Kavita, D Jemator & F.S Ibrahim, Members
November 30, 2022
Between
Katithi Kivukui Mutui
1st Claimant
Monica Mbithe Kioko
2nd Claimant
and
Kenya Power and Lighting Company Ltd
Respondent
Ruling
1.Justus Musembi Katithi (deceased) at the age of 39 years, was a casual labourer in Umoja 1 area. On or about the 21st of March 2021, the deceased was lawfully pushing his handcart along a street within Umoja 1 area towards Green Angels Academy Primary School. The deceased passed by an electric post owned by the respondent and was electrocuted by an exposed live electric wire hanging from the said post. He died instantly.
2.By a statement of claim dated the 4th of April 2022, the claimants (suing as the administrators of the estate of Justus Musembi Katithi) sued the respondent for negligence which resulted in the death of their kin. They are seeking general damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs of the suit, interest at court rates on general and special damages and such other relief that the Tribunal may deem fit to grant.
3.The respondent denied the allegations contained in the statement of claim and put the claimants to strict proof thereof. It claimed that the deceased was wholly to blame or substantially contributed to the said accident.
4.At the hearing, the claimant testified and called two witnesses in support of his claim. PW1 Katithi Kivukui Muthui, the father of the deceased, narrated how he received a phone call from his son’s (deceased’s) employer by the name Sam, who requested him to travel to Nairobi since his son had been involved in an accident. He further told the court he did not travel on the same day because it was late and did so the following day. That Sam who took him to the scene of the accident and showed him the KPLC post that had electrocuted his son. He noted that the defendant had not sealed the accident scene.
5.The deceased’s employer, Sam, testified as PW2. He stated that he is in the business of selling furniture and has a furniture shop in Umoja. PW2 testified that the deceased was his friend and he used to give him work to deliver furniture bought by his clients to their homes. He stated that he had worked with the deceased for over ten (10) years. PW2 went on to narrate that on the 21st of March 2021 he secured a client within Umoja 1 Estate who needed his goods ferried from PW2’s place of business to his house. He introduced the client to the deceased and the two proceeded to the client’s house. However, after about 10 minutes, the client came back in a panic and informed PW2 that his employee had died after being electrocuted. PW2 proceeded to the accident scene and found the deceased dead. PW2 testified that he saw the deceased was holding onto and leaning onto a wire mesh used as a fence. He further stated that next to the wire mesh was a power line dangling. PW2 stated that there was a pool of water that was close to the wire mesh as can be seen on page 43 of the claimant’s bundle. It is his testimony that in an effort to try and avoid the pool of water, the deceased pushed his cart towards the wire mesh and when he touched the wire mesh, he was electrocuted because the wire mesh was already charged with electricity flowing from the dangling power cable that seemed to have a high voltage. He further confirmed that officials from the respondent company visited the scene and immediately repaired the hanging power cable. PW2 testified that he contacted the deceased’s father at about 9pm and he came to visit the scene the following day. It was his testimony that from his own assessment, the deceased was making an average of Kenya Shillings one thousand (Kshs 1,000) every day.
6.One Grace Ouma, an owner of a hair salon, testified as PW3. She stated that her place of business is next to the scene of the accident. On the fateful day, PW3 narrated how she heard the sound of electricity “vibrating” and when she left her salon she found a young man next to the power cable. She immediately thereafter, she saw a man run towards the said post with a blue plastic chair which he used to try and remove the deceased from the position he was in. She confirmed that she had previously touched the wire mesh next to the power cable and a felt a mild shock which she believed was from the powerline. The hanging cable has also been an issue that affected their businesses especially when it rained. She further stated that together with her landlord, they have called the respondents severally to fix the hanging cable but they did not respond. However, after the incident at hand, Kenya Power fixed the hanging cable and to date they have not faced any incidents relating to the power cable.
7.After the close of the claimant’s case, the respondent closed its case without calling any witnesses.
Claimant’s Submission
8.The parties filed their respective submissions. The claimants urged that the respondent be held fully liable having called no evidence in rebuttal. They submitted that they had proven their case on a balance of probabilities as envisioned by law for civil matters.
9.On quantum, the claimants submitted that they be awarded general damages amounting to Kshs 4,620,000 or alternatively Kshs 5,040,000 for lost years and the special damages claimed.
10.The claimants relied on the cases of Joseph Kiptonui Koskei v Kenya Power and Lighting Ltd [2010] eKLR, Kenya Power and Lighting Company Ltd v Joseph Khaemba Njoria [2005] eKLR, Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the Legal Administrator of the Estate of Kevin Osore Rapando (Deceased) [2020] eKLR, Kenya Power and Lighting Company Limited v Eric Mlongo Owino (Suing as the Legal Representative of the Estate of Johnstone Owino (Deceased) [2020] eKLR, Stella Kanini Jackson & another v Kenya Power and Lighting Company Limited, Lucy Wambui Kihoro (Suing as Personal Representative of Deceased, Douglas Kinyua Wambui) v Elizabeth Njeri Obuong [2015] eKLR and Alice O Alukwe v Akamba Public Road Services Ltd & 3 others [2013] eKLR in support of their submissions.
Respondent’s Submission
11.The respondent submitted that the claimant had failed to prove the respondent’s negligence contrary to the provisions of section 107 of the Evidence Act that requires that whoever alleges that a set of facts exists, must prove those facts to enable the court to give judgment.
12.On quantum, the respondent submitted that under common law, where damages due to the estate of the deceased under the Law Reforms Act and damages due to the dependents under the Fatal Accidents Act devolve to the same persons/beneficiaries, then the law requires that one award be offset against the other. The respondents urged the tribunal to consider offsetting the possible award under the Law Reforms Act against the award for loss of dependency being likely higher of the two.
13.Further, the respondent submitted that the claimant’s special damages amounted to Kenya Shillings one thousand (Kshs 1000/=) and urged the tribunal to only award special damages that were proved via production of official receipts.
14.The Respondent relied on the cases of Martin v Shamash Brother Limited [1995-1998] 1 EA 179, Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR, Charles Masoso Barasa & another v Chepkoech Rotich & another (2014) eKLR, Hyder Ntheya Musili &Another v China Wu Yi Limited & another [2017] eKLR, Bernard Kirui Kiptoo & another v Esther Nyambura Mwangi (Suing as the Legal Representative of the Estate of Paul Kiratu-Deceased) & another [2020] eKLR, and Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others (20140 eKLR in support of their submissions.
Issues for Determination
15.Having considered the pleadings, evidence and submissions, the tribunal asserts that the main issues for determination are:-a.Whether the respondent is liable for negligence for causing the deceased’s death.b.Whether the claimants are entitled to the reliefs sought.
Analysis and Determination
Whether the respondent is liable for negligence for causing the deceased’s death.
16.The evidence on record is that on the material day, the deceased was lawfully pushing his handcart along a street within Umoja 1 area road towards Green Angels Academy when he passed by a pool of water, he tried to avoid the water and ended up next to an electric post owned by the respondent. He was electrocuted by an exposed live electric wire hanging from the said post. The deceased died instantly.
17.PW3, Grace Ouma, who owns a salon next to the scene of the accident, informed the tribunal that together with her landlord, they had contacted the respondent herein numerous times informing them of the live naked wire and asked them to repair the same but to no avail.
18.This evidence was neither denied nor controverted by the respondent who chose not to call any witnesses. It was not denied that the respondent is the entity in Kenya responsible for erecting electric supply lines, maintaining them and distributing power through the said electric supply lines in most parts of the country.
19.The respondent relied on its statement of defence. However, that cannot constitute evidence capable of displacing the claimant’s evidence.
20.In the case of AMK (Suing as the mother and the next friend of JMK – Minor) v Kenya Power & Lighting Company Limited [2020] eKLR the Hon Justice Mabeya stated that;
21.Section 121 (1) (h) as read together with section 140 of the Energy Act imposes upon a licensed distributor a duty to protect the health and safety of its employees, consumers and other members of the public. Section 140 states that:
22.Further, section 166 (2) of the Energy Act imposes upon a licensee liability arising from any failure, poor quality or irregularity of electricity supply. It provides that:
23.In the case of DA v Kenya Power & Lighting Company Limited [2021] eKLR while determining the liability of the defendant, Hon Justice Gikonyo was of the opinion that;
24.Furthermore, in the event of an accident or incident causing loss of life, the respondent has an obligation to inform the Energy and Petroleum Regulatory Authority within forty-eight hours as per the provisions of section 214 of the Energy Act which states that;
25.The respondent herein did not produce any evidence to show that they had complied with the requirements of section 214 of the Act despite the tribunal’s inquiry on the same. In this regard, the tribunal was not pleased with the respondent’s blatant disregard of their statutory obligations.
26.Accordingly, this tribunal is satisfied that the respondent was negligent and was to blame for the accident and that the deceased was at no fault. We find and hold the respondent fully liable for negligence.
Whether the claimants are entitled to the reliefs sought.
27.The next issue is one of quantum. The claimants sought Kshs 61,000 as special damages. It is trite law that special damages must be specifically pleaded and proved. Out of the pleaded sum, the claimants were able to prove special damages in the sum of Kshs 1,000 only. No evidence was adduced to prove the claim for an additional sum of Kshs 60,000 being the burial costs.
28.On general damages, in H West and Son Ltd v Shepherd (1964) AC 326 the House of Lords in England stated that:-
29.In regard to the issue of damages awarded under the Law Reform Act, the High Court at Kakamega in West Kenya Sugar Co Limited v Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR observed that-
30.In the present case, the deceased was electrocuted and died instantly. As pointed out, money cannot renew the physical frame of the deceased. However, the damages ought to be reasonable in the circumstances.
31.Having found so, we will now address the extent of damages to award under the following heads.
a. General DamagesPain and suffering
32.The copies of both the death certificate and the postmortem report produced as evidence both indicate that the deceased died on the spot after he was electrocuted.
33.The claimant relying on the case of Francis Odhiambo Nyunja & 2 Others v Josephine Malala Owinyi (Suing as the Legal Administrator of the Estate of Kevin Osore Rapando (Deceased) [2020] eKLR proposed a sum of Kshs 100,000 under this head.
34.We rely on the case of Josephine Kiragu –vs- Vyas Hauliers Ltd (2017) eKLR where the deceased had died instantly, Njoki Mwangi, J held that an award of Kshs 10,000/= for pain and suffering was on the lower side and increased it to Kshs 30,000/=.
35.Further, in the case of Sukari Industries Limited v Clyde Machimbo Juma Homa Bay HCCA No 68 of 2015 [2016] EKLR where the deceased had died immediately after the accident and the trial court had awarded Kshs 50,000/= for pain and suffering, Majanja J held that:
36.Upon considering the pain and suffering that the deceased naturally underwent preceding his death, this Tribunal will award the sum of Kshs 50,000/ being guided by the above authority.
Loss of expectation of life
37.In Mercy Muriuki & another –Vs- Samuel Mwangi Nduati & another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR the court observed that:-
38.In the case of Moses Akumba & another –vs- Hellen Karisa Thoya (2017) eKLR Chitembwe J rendered that an award of Kshs 200,000/= for loss of expectation of life for a deceased who was a fisherman was not inordinately high. He stated that;
39.In the cases of Patrick Kariuki Muiruri & 3 others v Attorney General [2018] eKLR Sergon J made an award of Kshs 200,000/= under this heading. In Vincent Kipkorir Tanui (Suing as the Administrator and/or Personal Representative of the Estate of Samwel Kiprotich Tanui (Deceased) –v- Mogogosiek Tea Factory Co Ltd & another [2018] eKLR an award of Kshs 200,000/= was made.
40.The claimant relying on the case of Kenya Power and Lighting Company Limited v Eric Mlongo Owino (Suing as the Legal Representative of the Estate of Johnstone Owino (Deceased) [2020] eKLR proposed an award of Kshs 100,000 as damages for loss of expectation of life. Upon consideration, we will award the conventional sum of Kshs 100,000/ under this head.
Loss of dependency
41.The deceased was 39 years old at the time of his untimely death and was supporting his parents. It was the claimant’s submission that the deceased therefore had 21 years working life remaining. The claimants proposed a multiplier of 30 and a dependency ratio of ½ while the respondent proposed a multiplier of 15 years and dependency ratio of 1/3.
42.It was the respondent’s submission that under common law, where damages due to the estate of the deceased under the Law Reforms Act and damages due to the dependents under the Fatal Accidents Act devolve to the same persons/beneficiaries, then the law requires that one award be offset against the other. The respondents urged the tribunal to consider offsetting the possible award under the Law Reforms Act against the award for loss of dependency being likely higher of the two.
43.The question of double compensation under the two Acts was explained by the Court of Appeal in Hellen Waruguru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) vs Kiarie Shoe Stores Limited [2015] eKLR where it was held as follows:-
44.In light of the foregoing, it is clear that what is required of the court is not to deduct one award from the other but to take into account the possibility of double compensation. This Tribunal is not persuaded that the claimant should not be awarded damages under loss of expectation of life, we also see no rationale as to why damages for loss of expectation of life should be deducted from the award under loss of dependency.
45.We rely on the case of Moses Akumba & another –vs- Hellen Karisa Thoya (2017) eKLR Chitembwe J rendered as follows:
46.In the instant case the deceased had only two dependents aged 60 and 62. Relying on the above decision by Justice Chitembwe, we do find that a multiplier of 20 will be sufficient in this case. This will extend the dependency of the claimants’ to over 80 years. In regard to the wages of the deceased, the claimant submitted that the deceased earned a monthly wage of about Kshs 26,000 which amount was not controverted by the respondent. We will therefore adopt the amount proposed by the claimant as the deceased’s wage and a dependency ratio of 1/3.
47.Considering the above findings, we therefore award for loss of dependency as follows;26,000 x 20 x 12 x 1/3 = 2,080,000
48.Accordingly, we hereby enter judgment in favour of the claimant and against the respondent as follows:Liability 100%a.Special damages Kshs 1,000/=b.General damagesi.Pain and suffering Kshs 50,000/=ii.Loss of expectation of life Kshs 100,000/=iii.Loss of dependency Kshs 2,080,000/= Total Kshs 2,231,000/=
49.Costs follow the event. The plaintiff shall have costs of the suit and interest on special damages at court rates from the date of filing the suit and interest on general damages at court rates from the date of judgment until payment in full.
DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF NOVEMBER 2022. IN THE PRESENCE OF:……………………… Ms. Doris Kinya Mwirigi Vice Chairperson……………………… Eng. Buge Hatibu Wasioya Member……………………… Eng. Fidelis Muli Kavita Member……………………… Ms. Dorothy Jemator Member……………………… Mr. Feisal Shariff Ibrahim MemberSIGNED BY: DORIS KINYA MWIRIGI