EW (Suing As the Next Friend and Mother to BM (A Minor) v Kenya Power and Lighting Company Limited & another [2015] KEHC 531 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  451 OF 2012

EW (suing as the next friend and mother to                    

BM (A minor)……………………....…………….PLAINTIFF   

VERSUS

KENYA POWER AND LIGHTING                                          

                              COMPANY LIMITED ……………..……………………….1^ST DEFENDANT  

                                JOSEPH WANG’ETHE …………..…..…………………...2^ND DEFENDANT   

JUDGMENT

1. The plaintiff minor (BM) sues through his mother  and next friend  EW, claiming for  special  and general damages  for the injuries   he allegedly  sustained  on or about  the 17^th day of December, 2011, when he was electrocuted  by live wire  hanging  loosely  outside their tenanted  house on a  3^rd floor balcony in Kayole  estate,  Mihango  area  within Nairobi  County  on plot A3-225.
2. It is alleged that on the material date, the plaintiff  minor  was playing with his friends  on the balcony  of the 3^rd floor building as described above when he came into contact  with high voltage  electric  power pylons/lines and as  consequence, he sustained  severe electrocution leading to  the amputation  of his right  upper limb  and  burns on the anterior abdomen.  The plaintiff blamed both the defendants jointly and severally for negligence in the manner in which the flats were built and the connection of electricity to the block of flats where he lived with his mother. 
3. The 1^st  defendant  is sued being the sole  supplier  of electricity  in Kenya  and is blamed  for installing live pylons  next to  a building without observing the security  of the residents  whereas the 2^nd defendant was  the landlord/owner  of the premises wherein the plaintiff  lived and is blamed for  constructing  the building  and balcony next  to live pylons.
4. The  plaint dated  11^th September  2012 sets out  the 1^st defendant’s negligence  as follows:

1. Failing to adhere to the proper distance of the cable installation from the residential houses.
2. Erecting  the high voltage  power  lines at  a risky distance  from the  residential  house without  due regard  to the proximity  of the balcony  and hence exposing the residents to danger.
3. Failing to ensure that the high voltage power lines which was a  danger zone  was situated  at a sufficient  distance from the  building.
4. Failing to ensure that youngsters in the neighborhood did not touch  or play with uninsulated  live, electrical  wires.
5. Failing to take   any or any adequate measures to  ensure that  the high electric  power cables  that were  installed  close to  residential houses  were  insulated .
6. Failing  to give the  plaintiff or his next  friend  and the residents  any warning  of existence of  live electric  wire passing next to  their building.
7. Failing to ensure that the high voltage power lines which was a danger zone was situated at a sufficient distance from the building.
8. Failing to take measures to prevent or adequately control the plaintiff’s exposure to the live electric cables.
9. Failing to heed to the plaintiff or next   friend complaints in reference  to the danger  posted by exposed  power lines.
10. Allowing live electric power cables to come into contract   with the balcony of house no.  A3-225 hence causing the accident.
11. Exposing the plaintiff to a risk of injury or damage of which they knew or sought to have known.

5. The following are the pleaded particulars of negligence against the 2^nd defendant.

1. Causing or permitting the claimant to be exposed to danger in which the 2^nd defendant knew or ought to have known.
2. Failing to comply with the safety regulations.
3. Failing to ensure that  the  building   was conformed  in respect  of the requirements  relating to  design and or construction of houses and  also in accordance with the architectural  plan.
4. Failing  to ensure  that the  building was inspected at suitable  intervals  so as  to ensure that health  and safety  conditions were maintained  and that  any risks  and dangers  could be  detected  and remedied  in good time.
5. Failing to restrict the use of the building and in particular house no.  A-3-225 from the plaintiff when he knew or ought to have known the  risks  and dangers  involved.
6. Failing in all circumstances to discharge the common duty of care.
7. Failing to the plaintiff’s or his next friend complaints in reference to danger posted by exposed power lines.
8. Allowing live electric power cables to come into contact with the balcony of house no.  A-3.225 hence causing the accident.

6. The plaintiff is alleged to  have  suffered injuries involving

1. Electrocution   with amputation of the right upper limb.
2. Burns on anterior abdomen.

7. The plaintiff  also claimed for  special damages  particularized  as follows:

1. Medical report   shs 3000.
2. Medical expenses shs 217,700.
3. Cost of the future   medical expenses including a series of bionic arms.

8. It was  further alleged  that the plaintiff who was aged 5 years  at the material time  enjoyed  a good health  and lived  a happy life, vigorous normal life, intelligent  and aspired to becoming a pilot  earning  about Ksh 500,000 per month as per Kenya Airways guidelines  and by reason of the aforesaid  accident  and resultant  injuries  his future  earning capacity  had drastically  diminished  and therefore claimed  for damages  for  diminished  earning  capacity.  Further, that   having lost his right hand  he was unable to attend to his  personal needs  and would require  a domestic  helper.  He also claimed for general damages for pain and suffering, costs of the suit and interest.
9. The 1^st defendant Kenya Power and Lightning Company Ltd filed defence on 23^rd October  2012, admitting the occurrence  of the accident  involving the plaintiff minor on the material  date and also  admitting that  the minor did  suffer some electric  shock on 17^th December 2011 resulting  in bodily  injuries  but denied that the accident  in question  was or at all  caused by the negligence attributed  to it or its employees  or agents. The 1^st defendant  further contended  in their  defence that the  said  accident  was wholly  attributable  to the combined negligence of  both the minor  and the 2^nd defendant who  owned  the subject  building  at Kayole  estate.  The  1^st defendant  blamed the plaintiff (minor) for

1. Touching the electricity line.
2. Failing to heed the presence and proximity of the electricity line to the building.
3. Failing to have any or any sufficient regard for his own safety.
4. Going about his activities without due care and attention.

10. The 2^nd defendant  was blamed  for:

1. Erecting a residential building too close near an electricity line.
2. Erecting a building without approved drawings of the same by City Council of Nairobi.
3. Erecting a building on a road reserve.
4. Erecting an illegal structure.
5. Letting out the illegal structure.
6. Exposing the tenants to the risk of being electrified or at the worst electrocuted.
7. Failing to have any or any sufficient regard to the safety of his tenants.

11. The 1^st  defendant  denied  particulars  of diminished  earning  capacity, future  medical  expenses  or prospects.
12. The plaintiff filed  a reply to the  1^st defendant’s  defence  on                   30^th October 2012 reiterating  the contents of the plaint  as pleaded and  denying  all particulars  of negligence attributed  to the minor.
13. The 2^nd defendant filed defence denying all the particulars of negligence attributed to him by the plaintiff.  He also denied particulars of injuries sustained by the plaintiff   and stated that he was not responsible for any special damages occasioned either.  He also  denied all  the particulars  of negligence attributed to   him by  the 1^st defendant  and averred  that he  was not responsible  for the installation and existence  of the  aforesaid  power lines as that  that was a residential area  and therefore  it  was  the 1^st defendant  liable for  installation  and supply  of power lines.
14. The plaintiff’s next friend  EW testified  as PW1 and stated  that  the minor was  her second born child (son) who  was now  ( at the time of  hearing) aged 9 years and that she  signed  authority to the advocate  to file  suit in her name  on behalf  of the minor  on 10^th March 2015.  She adopted her witness statement dated 11th September 2012 as her evidence   in chief. PW1 stated that on 17^th December 2011, her son was playing at the balcony of their rented house No.  A3-225,3^rd  floor  situated  in Kayole  estate  Mihango area when he  touched   high electric  power voltage lines which were  erected so close  to the balcony.  As a result, her son was electrocuted.  She immediately rushed him to Kenyatta National Hospital where his right arm was amputated at the elbow.  She also reported to the police.  He was hospitalized for 2 months.  She produced a P3 form issued by the police as P exhibit 1 and discharge summary from Kenyatta National Hospital as P exhibit 2.  She stated that she paid Kshs 212,050 as hospital bills and produced a bundle of receipts as exhibit. The plaintiff testified that at the time of accident, her son was in Pre unit.  She also produced his school progress reports from Brilliant Great Care Academy.  She testified that the minor also sustained burns  on his  stomach and thighs and grafting  of skin had to be done.  She produced Demand Notice to the two defendants issued by her advocate.  She stated that her son had become permanently impaired and had to be assisted to do everything.  That he wanted to become a pilot but having lost his right arm, he had lost that opportunity.  She blamed the Landlord and the Kenya Power and Lighting Company since that was not the first time such an accident had occurred.  She further testified that the accident was investigated by Kenya Power and Lighting Company who made a report that the wires had high voltage so they should be removed.  She prayed for compensation for her son because his life had been changed.  She also asked for costs of the suit and interest.
15. In cross examination by Miss Githma  for the 1^st  defendant, the plaintiff’s  next friend stated that electric  lines  were very near the balcony about 2 feet  away.  That she had lived in that house since 2007 and only vacated in 2014.  Further, that that was the 2^nd accident after another child was electrocuted.  She also stated that the owner of the house (flat) built it where it ought not to have been.  She stated that the child cannot write well.  That she arrived at the scene and found when the child had already been taken to hospital by neighbors.
16. In re-examination by Mr Wanjohi  the plaintiff stated that she did not  know  whether  the house had been  constructed  at the right  place and  that the  incident  was reported to Kenya Power and Lighting Company who investigated  it but  had done nothing to remedy  the situation.  Questioned by the court, the plaintiff stated that the child had now learnt how to use his left hand and that he was now in class 4.
17. Dr Moses Kinuthia testified as PW2.  That he had a Bachelors Degree in Medicine from University of Nairobi.  He was also a medical practitioner.  He examined the plaintiff minor Brandon Maina on 16^th June 2012 and prepared a medical report.  That the history was provided by his mother to the effect that the child was playing when he was electrocuted in Kayole.  He found an amputated right hand at the elbow with burnt wounds on the abdomen and thighs.  The minor had been hospitalized for 2 months.  He was left with a stump on the right elbow, scar 10cm x 4cm on the lower abdomen.  The doctor also saw the P3 form and discharge summary from Kenyatta National Hospital.  The P3 showed the injury was classified as grievous harm.  He further stated that such injury changes one’s life completely and subjected the child to psychological trauma and loss of self esteem.  The child would require a bionic arm at a cost of shs 5,000,000.  He assessed total permanent incapacity at 70%.  He produced a medical report   and receipt for shs 3000/- as exhibits while also stating that his court attendance fee was shs 10,000 which he had been paid. In the Doctor’s opinion, the child’s career  choices  had been limited  due to loss of his right  hand and that since  he had  been  right handed, his brain had to relearn to used the left  hand which  would take time because the hand  plays a  role in memory, reading  and writing.  Further, the witness testified  that most careers  require  2 arms  without which  the child  cannot make  choices  even if  it was  in athletics  since he is disabled  for life.  He  estimated  that the bionic  arm  has a life  span  of 5-10 years  costing  2-3 million  and that  in his life  time the minor will require  3 of  them at a total of shs 5 million.
18. In cross  examination by Miss  Githua, the witness  stated  that the child had  suffered a  permanent  incapacity of 70% which assessment  was based on  the 2^nd schedule  of Cap 246 Laws of Kenya  and that  he will live  as a person  with disability.  He stated that a bionic arm was  different  from an artificial  arm as  it can be  controlled  like a robot   unlike  the artificial arm which is  like a stick  and cosmetic  and cannot  be used  to do anything.
19. The 1^st defendant called one witness Mr Thomas Moriango Omwenga who testified as DW1.  He stated that he was an employee of Kenya Power and Lighting Company the 1^st defendant as a safety officer.  His work  entailed  ensuring  safety  of workers  and to investigate  accidents  involving their  power lines  and to recommend  preventive measures. DW1 stated that he investigated the accident subject matter of this suit and filed a report.  He produced the original report as D exhibit 2.  He testified that  Kenya Power and Lighting Company  received a report involving  severe electric  shock in Kayole Mihango area  involving a child on 17^th December  2011  on plot A3-223  Kayole  and confirmed that  the minor herein was the  casualty. DW1 with an emergency team visited  the scene  of accident  the following day and  spoke  to the mother and father of  the child  and also interviewed 7  people at  the scene.  The neighbor who witnessed the accident gave him the history and after investigations they found that the building was constructed close to the power line.  That the child was playing when he touched live wire from an extended balcony.  That the child had a small wire which other children he was playing with instructed him to strike the live wire with.  DW1 further testified that the power line serves the area and below   it was a low voltage line of 11KV which was the main supply line.  He stated that all Kenya Power and Lighting Company lines are constructed on the way leaves.  He further  stated that  from the base  of the building  to the way leave  was 0.7 meters  and  that the  building infringed  on  the way leaves by 4 feet  and 6 inches  since the  standard  distance from any fixed  part of a building to the power line  for safety purposes  is 2.7 meters. In this case, DW1 stated that  the distance  was only 2 feet  3 inches  which is  0.7 meters  from  the power line  to the balcony’s  extended  metals.  He stated that several other buildings in the area were encroaching on the power line.  He blamed the owner of the building for infringing into the way leave. 
20. On  being cross examined  by Mr Wanjohi, DW1 stated that  indeed  an accident  occurred  involving  the plaintiff  and the Kenya Power and Lighting Company power lines and  that the plaintiff did sustain serious  electric shock and burns.  He also stated that he was aware that a similar incident had occurred but it was not reported to the Kenya Power and Lighting Company.  He confirmed that the building in question was connected to power but he could not tell when connection was done.  Further, that when connecting power, it was expected that the safety of residents was taken into account but admitted that in some instances there are lapses and safety is never a factor in power connection. The 1^st defendant’s witness also conceded that in the circumstances of that area, it was not safe to connect the building to power where it was too close to   the power line.  Further, that before installation, they sought for way leaves permission from the City Council but he did not have any evidence that such permission was obtained for this case.  He also stated that he could not confirm if infringement notices were issued to the landlord.  He maintained  that it was  the landlord   to blame for  the accident since he constructed  his  building  into the way leaves, albeit  he had  no evidence that any action  was taken against  him.
21. In re-examination by Mr Mege advocate for the 1^st defendant, DW1 stated that  the approved  electrical contractors  ensure safe  installation of power in the building before issuing  certificate of completion  of electrical installations and  before Kenya Power and Lighting Company  connects  the power.  He also stated that a line cannot be laid on a road reserve before a way leave permission is obtained.
22. On being questioned, by the  court, the witness stated that there were high voltage  lines  on the upper  side and the low voltage  lines were lower/below  and that   it was the high voltage  lines which caused  the accident.  He also confirmed that the photograph on page 10 of the 1^st defendant’s bundle of documents showed the site/scene where the accident occurred. 
23. The 2^nd defendant  despite  being served  with  hearing notices  did not  attend  court to present  his side of  the defence.  Parties agreed and produced the medical report by Dr George K.  Musebe stated 19th August 2013 by consent as an exhibit   for the 1^st defendant.
24. At the close of the parties’ respective cases, the court was of the view that in order to appreciate the evidence as presented, it was necessary to visit the scene.  I also directed that all parties including the 2^nd defendant be served with notice of visitation and that DW1 to be present, with their advocates. On 11^th June 2015  at noon, the court visited  the scene  of accident and  except  the 2^nd defendant who failed to appear despite being  served  with notice, all other parties  and their  advocates  were present.
25. The 1st defendant’s witness DW1 and PW1 directed the court to the site in Kayole, where we found buildings constructed very close to one another and access roads are very narrow.  The area is business cum residential with high density population.  The court was led into the building unto the balcony where the plaintiff lived, accessing it through a narrow steep stair case.  As the court stood at the balcony, it could observe the site as described by DW1, on 3rd floor.  The plaintiff showed the court  the offensive  power lines and the DW1  confirmed, adding  that  the lines still had  the burnt marks  which he  showed to the court  and the court was able  to compare the scene 9,10,11,12,13 and sketch at page  14  of the  defence exhibit 1.  The court saw 3 loosely hanging  high  voltage  electric lines which were  not insulated, passing along the  road reserve and next to  the building , about 0.7 meters  from the balcony, which was  a scaring  arms  length, considering  that the tenants  freely hung their  wet clothes nearby and as  the wind  blew, the court could  see some clothes touching the live wires.  There were also metals  welded  outside  the balcony extending  into the road reserve  and close to the live  power lines  which the tenants  used to fix ropes  lines  for hanging their clothes. The transformer was at the far right of the building on the same side of the road as the house where the plaintiff lived.  DW1 informed the court that it was possible to insulate the live wires but that   they would melt due to high voltage.  At the material time, the court however noted that the metals shown at page 10 of the D ex 1 protruding into the road reserve were now slightly shorter and the DW1 confirmed that they had been shortened.
26. All the parties’ advocates filed   written submissions.  The 1^st  defendant  filed on   20^th July 2015,  the plaintiff  filed on 29^th July 2015 whereas the 2^nd defendant filed on 14^th August  2015.
27. I have carefully considered the pleadings on record, the evidence  tendered  in court  both oral and  documentary evidence  as well  as the court’s own independent  visit  to the scene  of accident  and observations made thereto .  I have also carefully read through all the submissions filed by the parties’ advocates as supported by statutory as well as case law. Albeit the parties framed several issues   for determination, in my view, those issues can be summarized into four.  These are:

1. Who was to blame for the   accident involving the minor plaintiff?
2. What damages are payable to the minor plaintiff to compensate him for the injuries that he sustained.
3. What orders should this court make?
4. Who should bear costs of this case?

28. On the issue  of who was  to blame for  the material accident, the plaintiff’s evidence  was that she found her  son taken to Kenyatta National Hospital following an  electrocution  while he was playing on the balcony and she was only notified  by her neighbors  who  had already taken him to Kenyatta National Hospital.  DW1 also testified  that  the 1^st defendant  emergency  team  received a report of  an electrocution in the area and him as the safety  officer visited the scene with his fellow emergency team members  where upon  they confirmed   that indeed the  accident had occurred involving  the plaintiff minor  who was admitted at Kenyatta  National Hospital.  DW1 investigated the accident, interviewed several witnesses including the plaintiff’s parents and neighbors.  He learnt that the child was playing  with other children  from the balcony  when  other children told him  to touch  the live power lines with a metal and that is when he  was electrocuted, losing  his right hand.  He took photographs  of the scene, drew sketches  and made recommendations  which included:

1. That the  way leave  officer  immediately do issue  the landlords  in the area with  way leave  infringement  letters since  the building had  encroached  into the way leaves .
2. That the landlord is held responsible for his actions and that the public be sensitized on the dangers of breaching power line clearances on the continuous basis.

29. DW1 could however not tell whether the above recommendations were acted upon. DW1 also conceded that there were lapses on safety during power connection exercise and that safety is never a factor in power connection.  He also  confirmed that  indeed  the plaintiff  was electrocuted by the 1^st  defendant’s high voltage  power lines hanging  close to the  balcony and that he did  sustain the pleaded injuries as a result  of the said electrocution  but in his view, it was the  2^nd defendant landlord who was to blame since he  constructed  a building  too close to  the power lines ( into the way leave).
30. The 2^nd defendant on the other  hand avoided the court all  together and apart from filing his defence and his advocate  making a few appearances but not on hearing dates  despite  being notified , neither  him nor his advocate participated in the  hearing, not even when the court notified him of  its intention to  visit the scene of accident did he avail  himself  or his representative  and only  reappeared by filing  submissions on 14^th August  2015 contending  that he could not  be held liable  since  the wires were  2 meters  away from his  house  and not even  an adult  can reach those lines  unless he has something  in his hands  and purposely stretches it  to touch the  aforesaid  high voltage  lines with  an object  in his hands.  He  also relied on his denials  in his statement of  defence  and  maintained  that the 1^st defendant  is  liable for  installation and supply of the power lines. It therefore follow that the 2^nd defendant5 had no evidence to offer. Parties must tender evidence in support of the allegations or contentions. This is a principle of law espoused in the Court of Appeal decision in the case of JOHN WAINAINA KAGWE VS HUSSEIN DAIRY LTD- MOMBASA CIVIL APPEAL NO 215 OF 2010,  per Githinji, Makhandia&Murgor JJA. I add that neither can submissions on points of fact support a party’s case where no evidence is adduced to prove that fact which is alleged. Further, submissions by counsel for the defendant from the bar however strong on matters of fact have never been a means of the parties tendering their evidence in court. Submissions are only meant to clarify issues and not for purposes of giving evidence. Furthermore, counsel’s role in proceedings has never been that of witness giving evidence on behalf of their clients unless they are called upon as witnesses in which event they would then relinquish their role as advocates for the party and step into the witness box to be cross examined, or unless they are parties to a particular dispute. This being a fresh case for trial and not an appeal or an application, it follows that the submissions on factual matters raised by the plaintiff and contested in the statements of defence filed by the 2^nd defendant without calling evidence is no defence or at all. See also my decision in HCC 140 OF 2008 Gideon Onchwati V Kenya Oil Co Ltd and Nation Media Group Ltd [2015] eKLR.
31.  
32. The 1^st defendant on the other  had submitted that liability  has to be determined  between the  1^st and 2^nd defendant and that since the  plaintiff  was a minor aged 5 years  old, it is difficult  to argue contributory  negligence  against him.  The 1^st defendant  maintained  that the 2^nd  defendant  who never tendered  any evidence in their  defence  should bear  all the blame for the  accident since  he constructed  his building  into the  road reserve  and encroached  on the 1^st  defendant’s way leave  granted.  That the  2^nd defendant’s building was too close to the electric power  lines especially the protruding  metal  pieces onto the balcony as shown in the photographs produced together with the  investigation report  and the court’s own observation  on visiting the scene.  The 1^st defendant further submitted that it was not possible to insulate the power lines because of the high voltage that would melt off any insulation.  It was urged that the court should find the 1st defendant innocent and blame the 2^nd defendant liable at 100%.
33.  The  plaintiff on the other  hand submitted  that Section  52 of the Energy Act, 2006  makes it incumbent  for the owner  of  an electric  line to be  liable  and to  compensate  any person who suffers  any  damage  or injury  caused by any defect  and that from the  evidence  on record;

1. The accident was caused by  power lines owned  by the 1^st  defendant and not due to the installation  and or connection of  power to the  2^nd defendant’s  premises;
2. DW1 admitted that a similar  accident had occurred  in 2008  but until 17^th December 2011, no safety  measures had been taken by the 1^st defendant i.e. to serve  the 2^nd  defendant  with a notice of  infringement and that even after the material accident to the minor, no legal action was taken against the  2^nd defendant and to minimize risks.
3. DW1 did not produce the way-leaves granted before installing electricity in the area.
4. The visit to the  scene revealed  that albeit the 1^st defendant  blamed  the 2^nd defendant  for the manner  in which he put  up his  building, there  were no measures  the 1^st defendant  put  in place to prevent or minimize  the risk or injury including using underground  cables  and or  insulating such wires.

34. The plaintiff relied on the case of  Kenya Power and Lighting Company v Joseph Khaemba  Njoria [2005] e KLR  where GBN Kariuki J  ( as he then  was ) held  that the power company  has the responsibility  to ensure that the power infrastructure  it has installed  in the country  for the purposes  of electrification is properly maintained  to prevent  accidents.  Reliance was also placed on Joseph Kiptonui  Koskei vs KPL Co. Ltd [2010] e KLR where  Honourable Asike Makhandia J ( as he  then was) held that  the defendant Kenya Power  Lighting Company  owed  the plaintiff and every Kenyan  a duty of care  where  it happen to have power lines and further  that electric  power  is  a dangerous  commodity and  if not properly secured can be  a danger to society. The plaintiff  also submitted that no liability  can attach  to him being  5 years  at the material time  of accident, relying  on the decision  in Eliud  Mwale  Lewa & Another V Paka Tours  Ltd & Another [2009] e KLR  where it  was held  that  a child of  5 years cannot  be found to have reached  the age  of reason and cannot be  blame worthy in a case.  The plaintiff concluded that albeit the 2^nd defendant owed the  plaintiff a duty of  care, his  duty cannot  be of the same  degree  as that of the 1^st  defendant, since the  1^st defendants  were professionals and the sole  company licensed   by the authorities   to install  and distribute  power hence, both  defendants  were liable  jointly  and severally but the plaintiff did not  submit  any proposals  on the proportions of contributory negligence.
35. From the above exposition, it is not  disputed  that an accident did  occur as described by the plaintiff  and DW1, involving  the plaintiff minor  and that he sustained serious injuries  as a  consequence  thereof, as pleaded and proved in court. It is  also not in dispute  that  the plaintiff minor  aged  5 years  at the material  time could not have  contributed  to the  accident as  he had not reached the age of  reason and cannot be blame worthy in a case, and neither   was there evidence that the plaintiff minor  had the right  sense  to know  the danger  posed by the  power lines  as conceded by the 1^st defendant  despite pleading  in their  defence that the plaintiff was negligent.  It is  therefore  for this court to  determine  who between the  1^st and 2^nd defendants  was to blame  and in what  proportions  if at all.
36. As correctly submitted  by the  plaintiff’s counsel, the primary  duty of care with  regard to  all electric  power installations  is on the 1^st defendant  supplier  of all electric  energy  in Kenya.  And  indeed, Section  52 of  the Energy Act is clear that :

“ The  provisions of this Act shall not  relieve  a licensee of the liability to make  compensation to the owner  or occupier of any  land or the agents, workmen or  servants  of the owner or occupier  of any land which  is the subject of the provisions  of this  Act, for damage  or loss caused  by the exercise or use of any power  or authority  confirmed by  this Act  or by any irregularity, trespass  or other  wrongful proceeding in the execution of this Act, or by the loss or damage  or breaking  of any electric  supply  line, or by reason of any defect in any electric  supply line.”

37. From the above  statutory provision, there can be no question that the  power company has a responsibility  to ensure that  the power infrastructure   it has installed  in the country for purposes  of electrification is  not only properly maintained  to prevent   accidents  but also that  they take  remedial measures where  there is  likeli hood of  risk to  prevent  any potential injury or damage.  (See KPLC Ltd V Joseph  Khaemba Njoria (supra).
38. From the  evidence  of DW1, and the investigation report produced as E exhibit 2; it is  clear that the  philosophy  of the 1^st defendant  is    “ All accidents  are preventable”  The question is was the material accident foreseeable  and therefore  was it preventable and if so by who?
39. The DW1 testified that after investigations, they blamed the 2^nd defendant for constructing his building on the way leave.  The court’s visit  to the scene  indeed  revealed that the  2^nd defendant’s  building especially  the balcony  and the protruding  metals  were extending  into the road  reserve such that  the 3 high voltage  electric lines  were at  an  arm’s length.  The metals however appeared to have been shortened a little after the accident otherwise the electric wires were at the same place they were as at the time of the material accident.  The DW1  stated that  they were to issue   the 2^nd  defendant with  a way leave  infringement  letters  and to sensitize the public   on the dangers of  breaching the power line clearances. However, there   was no evidence  that from the time of accident  on 17^th December 2011 up to date  of hearing of this suit in June  2015, the 1^st defendant  had  issued any way leave infringement  notice to the 2^nd  defendant and  or demanded compliance  or taken  any legal steps against the 2^nd defendant.  In addition, the DW1 did admit that sometimes safety was never a factor during power installations.  Third, is that  DW1  admitted that there  were alternative means of  displaying  power lines  including installing underground  cables  which  was more secure  especially  in the densely populated  area like Kayole.  He also  conceded  that the  1^st defendant could also  insulate  the live wires  albeit it was costly  and that they  would melt  due to high voltage.  From that piece of evidence, no doubt, the 1^st defendant owed a higher duty of care to the occupiers of House No.  A3-225 and all  other residents in the vicinity   wherein the plaintiff resided to ensure that  high voltage  live wires  were not  precariously  displayed  next to  the buildings.
40. Since there is electricity supply  to all the  buildings on site as  observed by the court, the 1^st  defendant  must be regularly inspecting  the lines or  reading the  supply  meters  for billing purposes.  They therefore  must have been aware of  the potential  risks  posed to occupiers  of those buildings  by the high voltage  naked lines hanging  very close  to the balconies, and ought  to have taken remedial measures to mitigate  the risk, loss and damage that was foreseeable.  The 1^st defendant  breached  that duty of care  and there  was no indication  during the  hearing that  there was such future  intention to  minimize the risk of more people  being electrocuted  since  wet clothes   hung close to the  said naked live wires from the occupiers’ balconies, very precariously.  It is for  those reasons that I find  the 1^st  respondent  liable for the accident, injury  and loss  and damage  occasioned  to or suffered  by the plaintiff minor.  On the other hand, the court  finds  that from the evidence  on record  as adduced  by DW1and the court’s own observation upon visiting  the site of  the  accident, the 2^nd defendant  was partially to  blame for the accident.  The  balcony from where  the court  stood  to observe the scene  of  accident  and where the minor  plaintiff stood  when he  was electrocuted  is at an arm’s length to the  precarious  live high voltage  3  electric wires.  The balcony protrudes into the road reserve and therefore in the way leave of the 1^st defendant.  Albeit it  was submitted that there  was  no evidence  of way leave  by the 1^st defendant, this court finds that  the 1^st defendant could  not have  installed those power lines  without way leave.  In my view, where  the electric power  lines of  high voltage  pass near  a building, there  ought not  to be such a  balcony  facing the  high voltage  lines.  The balcony should be at the rear side of the building to reduce or minimize the risk of people being electrocuted.  It is for  those reasons  that I find the 2^nd defendant landlord  owner of the premises from which the child stood at the  balcony and  was electrocuted  to blame  to the extent  of 30%  and the 1^st defendant  liable to the extent  of 70%.
41. On the quantum payable, the plaintiff pleaded and testified that he sustained  injuries  involving:

1. Amputation of the right  upper limbs   and
2. Burns on anterior abdomen.

42. The above  injuries  were as  per the  medical report  of Dr Moses Kinuthia  who also  found that  indeed the  minor sustained  amputation  of the  right  upper arm  and skin grafting  was  done to cover  the burnt injuries  on the abdomen  leaving scars.  He was left with a 10 cm stump from the shoulder and 10 x 4cm scar on the right anterior abdomen.  He was  left with  psychological trauma  which is  for a life time, low self esteem and will  require  a bionic arm to alleviate the loss of use  of the arm which  has a near  natural arm, estimated at shs 5,000,000.  His total permanent incapacity was assessed at 70% -seventy per cent. The plaintiff was admitted in hospital for 2 months where various modes of treatment were administered.  He no doubt suffered pain.  The  plaintiff’s  counsel proposed  a figure of shs 2,000,000 general damages for pain  and suffering  to compensate  the pain and suffering, relying on the case  of Sofia Yusuf Kanyare V Ali Abdi  Sabre & Another [2008] e KLR where  the plaintiff sustained  loss of  ten teeth, soft  tissue  injuries  and amputation of the right upper arm.  He was awarded Ksh 1,750,000 general damages for pain and suffering.
43. The 1^st defendant  proposed  a sum of  300,000 under pain and suffering, relying  on Kisumu CA 46/2001  Messay Jaggery Ltd V Maurice  Ochieng  Maengo where the respondent  who sustained  amputation  of his left  hand and  arm at  the level above the  elbow  joint was  awarded  shs 200,000 as general damages for pain, suffering and loss of amenities  which sum was approved  by the Court of Appeal on 17^th July 2004.  It  also relied  on Nairobi CA 24/2005  Douglas  Kafala  Ombeva V David  Ngama where  the appellant  sustained  fracture  of right femur resulting  in his right  arm being  amputed.  The trial court awarded him shs 300,000 which the Court of Appeal enhanced to shs 500,000 on account that the trial court appear not to have taken into account loss of earning capacity.  The  1^st defendant  also relied  on Nakuru HCC 99/2005 Peter Waka Tungani V Mathai Timber  & Hardware Suppliers Ltd where the  plaintiff sustained  an injury to the right hand resulting  in amputation  thereof at shoulder  level.  He was awarded shs 300,000 general damages for pain and suffering and loss of amenities on 17^th November 2006.
44. The 2^nd defendant  on the other hand  never  made any proposals on quantum and simply  urged the court to find  that the 2^nd  defendant  was not  negligent.  The plaintiff’s injuries were also confirmed by Dr George Museve whose medical report was produced in evidence by consent.  The court did view the minor who was in court throughout the proceedings. 
45. Taking  into account  the authorities  cited by  the plaintiff’s  advocate  and those cited  by the 1^st defendant, and considering  that those  authorities  were made  9-15 years ago; and conscious  of the fact that  general damages  are not intended  to enrich  an injured plaintiff but to put him back to the position he  was before the injury, and considering inflation, I would   award the plaintiff Kshs 1,500,000 general damages  for pain and suffering  and loss of amenities. The plaintiff also pleaded damages for diminished earning capacity relying on the case of Butler vs Butler [1984] e KLR 225.  Relying on the case of  Daniel Kuna  Nganga V Nairobi City Council [2013] e KLR, Nancy Oseko V BOG Maasai  Girls  High School HCC 171B of 2009 where a multiplier  of 20 years  for a 23 year old girl was used  and Agatha Wanjiru Njuguna V Mary Wanjuki Ikiki & 3 Others [2006] e KLR where the court used a multiplier  of 25 years for a form 3  student, the plaintiff   prayed for  loss of  diminished  earning using  the earnings of shs 10,954 x 30 years  x 12  x 1/3 = 1,314,480 .
46. The 1^st defendant submitted  that there  was no evidence of  what the plaintiff would be earning  or that  he will be  prevented from being the best  he can be  in any academic and professional  discipline.  It relied on Peter Waka  case and submitted that  the claim  was too remote but nonetheless relied  on Mumias Sugar Company Ltd V Francis Wanala, citing Douglas Kafala  Ombera  and proposed  shs 100,000 taking into  cognizance  of the fact that  the arm  loss  had limited  the plaintiff options particularly with regard  to physically  involving  careers  like sports.
47. On this aspect of diminished earning capacity, the plaintiff’s mother pleaded   and testified that he was a bright child as shown by his school academic report forms produced.  That he wanted to become a pilot when he grows up but that that dream has been dampened by the loss of the right hand. In Cecilia W. Mwangi V Ruth  W. Mwangi, Nyeri CA 251/96, the  Court of Appeal held that  damages  for diminished  earning  capacity can be classified as  general damages  but these  have also to be  proved  on the balance  of probability.  It follows that the court can award loss of or diminished  earning capacity where it  is proved on a balance of  probabilities.  I am  guided under this head by the  decision in Butler V Butler [1984]  KRL 225  where  it  was held  that:

1. “ A persons’ loss of  earning capacity  occurs  where as  a result of injury, his chances   in the future  of any work in the labour market  or work, as well as paid as  before  the accident  are lessened by his injury.
2. Loss of earning capacity is a different head of damages from actual loss of future earnings.  The difference is that compensation for loss  of future  earning is awarded  for real assessable  loss proved  by evidence  whereas  compensation for diminution  of earning  capacity  is awarded  as a part of  general damages .
3. Damages  under the heads  of loss  of earning  capacity and loss  of future  earnings, which in English  were formerly included  as an unspecified part of the award  of damages  for pain, suffering  and loss of  amenity, are how qualified  separately and no interest  is recoverable  on them.
4. Loss of earning capacity can be a claim on its own, as where the claimant has not worked before the accident giving rise to the incapacity, or a claim in addition to another, as where the claimant was in employment then and/or at the date of the trial.
5. Loss  of earning capacity or earning  power may and should be  included  as an item  within the general  damages  but where  it is not so  included, it is  not proper to award it  under its own heading.
6. The factors  to be taken into account  in considering  damages under the  head  of loss of earning  capacity  will vary  with the  circumstances of the case, and they include  such factors  as the age and  qualification of the claimant, his remaining  length of working  life; his disabilities  and previous services  if any.”

48. Applying the above principles to this case, the plaintiff at the time of accident   was only 5 years of age.  He was at the time of hearing of this case 9 years, a very active and healthy boy, other than the disability of loss of his right hand and the scars on his thigh and abdomen caused by the burns which the court was shown.  From the school progress report forms submitted to court, the  plaintiff  is no doubt  a bright  person  who can live  and achieve his  dreams save  that he cannot be a pilot, athlete or perform any duties  that require both hands.  He should have been able to fully work at least from age 25 to 60 years if not longer.  But due allowance must be given for the uncertainties of life.  I will therefore award him a multiplier of 20 years.  As to his earnings, since the minor cannot be expected to be earning any income until he attains about 25 years, this court adopts the minimum wage of 10,954 proposed by the plaintiff’s advocate.
49. Accordingly, I award damages in the sum of 2,628,960 for loss of earning capacity calculated as follows: 10,954 x 12 x 20= 2,628,960. The plaintiff’s advocate used a dependency ratio of 1/3 which is not applicable in cases of persons   who are alive. The plaintiff also pleaded for damages for future medical expenses in the sum of kshs 5,000,000 being the cost of a bionic arm.  According  to Dr Moses  Kinuthia, the plaintiff  will need  such arm replaced  at least three times in his life time  and that the bionic  arm would  be functional unlike prosthetic  arm.  Dr Kinuthia did not avail any evidence of the exact cost now and in future taking into account inflationary trends.  This court expected the manufacturers  or dealers  price list  since it is  expected that the  arm  that the minor  would use now  as a minor would be different  from the arm that he would  use as an adult.  It is however clear from the Doctor’s medical report ad testimony that the plaintiff will require a bionic arm to function.  In the premise and in the absence of any evidence to the contrary, I award the plaintiff Kshs 5,000,000 to cover the cost of three bionic arms in his lifetime.
50. The plaintiff also pleaded and produced receipts to prove special damages in the sum of kshs 220,700.  I award him this figure I reject   the figure of shs 10,000/- being Dr.  Kinuthia’s court attendance costs though proved, it was not pleaded and in any event, this was a cost of the suit being a witness expense and not a special damage.
51. Accordingly, I enter judgment  for the plaintiff against the  defendants  jointly and severally  as follows:

1. Liability:

1. As against the 1^st defendant 70%.
2. As against the 2nd defendant 30%.

2. General damages for pain and suffering Kshs  1,500,000
3. Damages for diminished/loss of earning capacity Kshs 2,628,960
4. Costs of  future medical  expenses to wit, bionic arms Kshs 5,000.000
5. Special damages  Kshs 220,700

Total   Kshs   9,349,660

1. Costs of the suit
6. Interest on general damages at court rates from date of this judgment until payment in full.
7. Interest on special damages (e) at court rates from date of filing suit until payment in full.

52. I  further order that damages awarded  for pain and suffering,  diminished  earning  capacity  and cost  of future  medical expenses  shall be  deposited  in a joint Bank account operated by the minor’s mother EW and the Deputy Registrar of the High Court and only interest  thereof shall be utilized  by the next friend  towards the upkeep until he attains  the age of 18 years  or  the case of the cost of future medical expenses until a bionic arm is found for purchase.

Dated, signed and delivered in open court at Nairobi this 30^TH day of November, 2015.

R.E. ABURILI

JUDGE

30.11.2015

Coram R.E. ABURILI J

C.A. Adline

Ms Chepngetich  holding brief for Ngunjiri for plaintiff.

Ms Onkoba  holding  brief for  Mr Mege for 1^st  defendant

N/A for 2^nd defendant

COURT- Judgment read and delivered in open court as scheduled.

Judgment to be typed.

R.E. ABURILI

JUDGE

Miss Onkoba - I pray for stay.

Miss Chepngetich - I do not object.

Court - there shall be stay of for 30 days.

             R.E. ABURILI

JUDGE

30/11/2015