1. The Plaintiffs’ claims arise from a fire incident that occurred on 03rd February 2012, at the premises of Cimbria East Africa Limited (hereinafter, "the 1st Plaintiff").
2. The 1st Plaintiff, through its insurers, M/S The Heritage Insurance Company Limited, seeks special damages under the principle of subrogation. Jorgen Nielsen (2nd Plaintiff) and Anthony Nielsen (3rd Plaintiff) were subsequently enjoined to the suit, seeking damages for personal property lost in the same fire. The Defendant, Kenya Power & Lighting Company Limited, denies liability, asserting that the fire was not caused by its negligence, and further raises defenses regarding the Plaintiffs' claims, including questions of authority to institute suit and limitation periods.
3. The 1st Plaintiff alleges that the Defendant, in breach of contract and without notice, permitted the transmission of excessive and unregulated electricity, leading to short-circuiting, arcing, and the resultant fire. The 1st Plaintiff relied on expert reports attributing the fire to faulty work on the power supply system by KPLC workers. The 1st Plaintiff's claim, totaling Kshs. 109,751,217.19, represents material damage, consequential loss, and loss adjuster's fees, settled by its insurer under subrogation.
4. The 1st Plaintiff called two witnesses in support of its case. PW1, John David Miners, a Loss Adjuster with Cunningham and Lindsey, testified that he was instructed by Heritage Insurance to investigate the fire incident at the 1st Plaintiff’s premises. In the course of his investigation, he prepared and produced several reports. His initial report, titled “Immediate Advice,” dated 07th February 2012, was marked as Exhibit PEXH1. This was followed by a preliminary report dated 22nd February 2012 PEXH. 3 and a further report dated 26th March 2012.
5. In the course of his investigation, Mr. Miners engaged a fire expert, Mr. Peter Grayson of Envirotech Limited. Mr. Grayson provided a preliminary advice report, which was produced as Exhibit PEXH2. That report indicated that the Defendant’s electrical components had been burnt and showed signs of electrical arcing and a loose contact on the incoming power supply from Kenya Power & Lighting Company (KPLC). Mr. Grayson’s inspection summary, dated 18th February 2012 and contained as item 9 in the Plaintiff's bundle of documents, confirmed that the fire had originated in a steel shipping container and had damaged several electric motors.
6. The preliminary conclusion reached in Mr. Grayson’s report was that the fire had originated in the power house as a result of electrical arcing in the incoming supply.
7. Mr. Miners also instructed Advance Forensic Services of South Africa to carry out an independent forensic investigation. The resulting report, marked as Exhibit PEXH.4, identified the point of origin of the fire as the electrical distribution cabinet, commonly referred to as the "power house," specifically at the main incoming fuses.
8. The cause of the fire, according to the findings in PEXH.4, was traced to a phase problem in the incoming three-phase power supply, notably a failure in the central fuses. The report found that workers from KPLC had bypassed the fuses using wires that were not fuse-rated. This unsafe modification led to overheating and arcing, which caused the ceramic spacer to disintegrate. The resulting temperatures were estimated to have reached up to 2400°C, which ignited the surrounding wiring. The report explicitly attributed responsibility for the fire to KPLC.
9. As regards the spread and extent of the fire damage, Mr. Miners testified that the fire spread from the electrical cabinet to the adjacent garage, vehicles, and the main workshop. As a result, extensive damage was occasioned to the workshop building, stock, tools, machinery, equipment, and several motor vehicles.
10. He testified that an initial claim in the sum of KES. 51,636,778.19 was lodged under the Industrial All Risks (IAR) policy held by the First Plaintiff. An interim payment of KES. 15,000,000 was recommended and was subsequently settled by Heritage Insurance. Mr. Miners’ final report on material damage, dated 18th June 2012 and marked as Exhibit PEXH.6, outlined a total claim of KES. 65,150,339.19. After making necessary adjustments, the material damage was computed at KES. 22,718,679.00, and Heritage Insurance settled the balance of KES. 7,718,679.
11. He further produced a report on loss of revenue or consequential loss dated 24th October 2012 as PEXH. 9. This report confirmed that there had been a business interruption between 05th February 2012 and 30th June 2012, occasioned by the fire. The final sum claimed for business interruption stood at KES. 8,857,519, out of which Heritage Insurance paid KES. 7,195,979.
12. Additionally, Mr. Miners testified that some scrap metals salvaged from the fire were sold and it realised KES. 339,080.
13. PW2, Mr. Gibson Kamau, Gibson testified in his capacity as the Legal Manager of Heritage Insurance Company Limited. He confirmed that the 1st Plaintiff was insured under Industrial All Risks Policy No. NP99A00040, which provided cover against fire and related perils, including loss or damage to property, buildings, stock, finished goods, loss of profits, and business interruption.
14. Mr. Kamau affirmed that the company had engaged the services of Cunningham & Lindsey as well as Advance Forensic Services to investigate the fire, and that both reports attributed the cause of the fire to the Defendant’s fault.
15. He further testified that the company settled the 1st Plaintiff’s claims for consequential loss, material damage, and loss adjuster’s fees, based on the findings and recommendations of the reports submitted. Consequently, the insurer filed the present suit under the doctrine of subrogation to recover the total outlay made to the First Plaintiff, which amounted to KES. 109,751,217.19.
16. The 2nd and 3rd Plaintiffs, directors of the 1st Plaintiff, were enjoined to the suit via an Amended Plaint dated 15th September 2022, seeking damages for personal property destroyed in the fire.
17. The 2nd Plaintiff, Jorgen Nielsen who testified as PW3 stated that he also serves as the Chief Executive Officer of the 1st Plaintiff at the material time. He narrated that on 03rd February 2012, while he was away, employees of the Defendant, Kenya Power & Lighting Company (KPLC), were carrying out repairs at the Plaintiff's premises. The premises had been without electricity for two days, and the generator was not functioning. Upon his return, electricity had been restored, but later that evening, he received a call alerting him that a fire had broken out in the garage and generator room. He rushed to the scene and found that the entire generator room, garage, workshop, and technical area were engulfed in flames.
18. According to PW3, the fire began at approximately 6:45 PM and took nearly six hours to contain. He noted that while the office block was spared, the garage, workshop, and technical area suffered complete destruction. He confirmed that both he and the Third Plaintiff lost personal belongings stored in the workshop. He attributed responsibility for the incident to the Defendant. PW3 also stated that the building was supplied with electricity through a three-phase connection. He recalled that KPLC employees had installed a new power pole, but he did not know the purpose of certain trees within the compound or the exact point at which the fire originated.
19. The 3rd Plaintiff, Anthony Nielsen, testified as PW4. He identified himself as the Project Manager of the Plaintiff company at the material time and stated that on 03rd February 2012, KPLC had been summoned to rectify a fault in the three-phase power supply, which had been down for a week. KPLC technicians replaced power line poles, and electricity was disconnected at about 3:00 PM before being restored later that day.
20. PW4 testified that he lived near the premises and was the first to arrive at the scene of the fire. Upon arrival, he found the generator room or power house engulfed in flames. He noted that neighbours attempted to help contain the fire, and various private firefighting services including G4S, Security Group, and Ultimate Security were contacted. The Security Group was the first to respond, but the fire was already too intense. Firefighters from the Nairobi City County Fire Department arrived at around 8:45 PM and battled the blaze until midnight. The incident was subsequently reported at Hardy Police Station in Karen.
21. PW4 confirmed that employees of the Defendant had been working on the electricity poles both on the day of the fire and the day before. He stated that personnel from the Plaintiff’s side had no access to the electrical distribution cabinet, which was under the exclusive control of the Defendant. He blamed the Defendant for failing to detect and avert an excessive electrical surge, which he claimed bypassed a fuse and caused the fire.
22. 2nd and 3rd Plaintiffs associated themselves fully with the 1st Plaintiff's submissions on liability and contended that their claims are not time-barred, citing a previous ruling allowing their joinder and amendment as res judicata on the limitation issue.
23. The Defendant presented three witnesses: Paul Muchoki (DW1), Daniel Nyamweya (DW2), and Livingstone Kipyegon (DW3), each providing technical insight and reports addressing the fire incident at the Plaintiffs’ premises on 03rd February 2012.
24. Paul Muchoki, an artisan with Kenya Power & Lighting Company (KPLC), adopted his statement dated 21st February 2024. He testified that on 02nd February 2012, he responded to a reported power outage at the 1st Plaintiff’s premises and discovered a partial outage due to a blown yellow phase fuse, which he stated is a protective device that disconnects power to prevent excessive voltage, not cause fires. For safety, he removed all three fuses and identified two rotten poles and tree branches interfering with conductors. He reported these issues and, after addressing them, restored full power. He denied interfering with internal wiring or the meter board, which he maintained were in good condition before and after the incident.
25. Upon cross-examination, DW1 affirmed that the 1st Plaintiff’s switchboard and the Defendant’s meter board were separate and that the Defendant was solely responsible for the fuses. He acknowledged that fuses protect against overcurrent and that fuse operation can potentially cause fires. He admitted power was supplied by the Defendant at the time of the fire, that the initial outage had been due to a broken fuse, and that short-circuiting, while rare, can lead to overheating, sparks, and fires. He denied working on the switchboard and maintained that repairs done previously did not leave unresolved short-circuiting. Although he alluded to overloading by the 1st Plaintiff, he admitted no evidence had been presented to support that claim and that the Defendant had never formally raised the issue of excess power usage with the Plaintiffs. On further cross-examination, DW1 clarified that he did temporary repairs on 02nd February and replaced rotten poles the next day. He acknowledged that the switchboard and meter board were connected and owned by the Defendant.
26. Daniel Nyamweya, a County Engineer in Network Management at KPLC, adopted his expert report dated 26th July 2024. He clarified that the meter board (Defendant's domain) includes the KPLC meter and fuses, while the switchboard (consumer's domain) houses circuit breakers and switches. He reiterated that faults such as poor earthing are consumer responsibilities and stated that KPLC staff never accessed internal installations. He confirmed the fuse had blown due to conductor interference from tree branches and was replaced on 02nd February 2012. On 03rd February 2012, maintenance continued with pole replacement, and power was confirmed stable by 3:00 PM. On 04th February 2012 a different technician isolated the supply to the affected building.
27. DW2 stated the 1st Plaintiff consumed more power (3.7 KVA) than the approved 3 KVA in February 2012, suggesting overloading and possible deterioration of internal wiring. On cross-examination, he reaffirmed the fuse at the transformer blew due to tree interference. He reiterated the Defendant’s responsibility for the fuse and the connection between the meter board and 1st Plaintiff’s switchboard. He admitted short-circuiting could cause overheating and fires and that power was supplied by the Defendant when the fire occurred. Though he cited overconsumption, DW2 conceded there was no documentary evidence to support this or proof that any warning was issued to the 1st Plaintiff. He admitted he never visited the premises and relied on reports. He was later recalled and produced an internal memo confirming the Defendant’s attendance at the premises on 02nd and 4th February 2012. He confirmed again that power supply was on and provided by the Defendant when the fire broke out.
28. Livingstone Kipyegon, a loss adjuster, produced the McLaren & Young report dated 19th April 2012. The report indicated the fire broke out at 6:50 PM, roughly three hours after KPLC had completed maintenance. It concluded that the office block was spared, but the workshop and generator room suffered severe damage. Technical findings in the report attributed the fire to overloading by the 1st Plaintiff, whose power consumption (2,376–3,133 kWh monthly) exceeded the approved 3 kW limit, allegedly causing overheating and insulation degradation in internal wiring. No evidence of arcing or short-circuiting was found in KPLC's system. DW3 also produced a report by Dr. Karanja Thiong’o dated 05th June 2012, which suggested the fire began in the generator room, possibly ignited by flammable materials like cleaning cloths or leaves near the exhaust pipe. Lab tests found no accelerants, and the fire was likely spread by the leafy surroundings.
29. On cross-examination, DW3 admitted he had not visited the premises and could not identify the fire's origin or the cause of the initial power outage. He acknowledged the limits of his ability to assist the court. He relied on secondary reports and opined that the generator’s heat could have caused the fire, disputing the suggestion that it had cooled off by 6:30 PM, given it had been off since 3:30 PM.
30. Collectively, the Defendant’s witnesses sought to absolve KPLC of blame, emphasizing proper maintenance procedures, lack of interference with internal systems, and alleged overloading by the Plaintiffs. However, they admitted key points: that the Defendant was supplying power at the material time, fuses can cause fire when they blow, short-circuiting was the reason for the earlier outage, and no evidence had been produced to support overconsumption or internal faults by the Plaintiffs.
31. The Defendant denies negligence, arguing that the power supply was not excessive or unregulated. It asserts that its jurisdiction terminates at the meter board and that installations beyond this point are the owner's responsibility. The Defendant presented expert evidence suggesting alternative causes for the fire, such as overloading by the 1st Plaintiff or ignition from a generator's exhaust pipe. The Defendant also raises preliminary issues, contending that the 1st Plaintiff lacked proper authority to institute the suit and that the 2nd and 3rd Plaintiffs' claims are statute-barred due to late joinder and lack of privity of contract. Furthermore, the Defendant disputes the quantum of damages claimed, particularly by the 2nd and 3rd Plaintiffs due to lack of specific proof, and by the 1st Plaintiff for amounts exceeding the insurer's actual payout under subrogation.
Issues for Determination
32. From the consolidated pleadings, the evidence and submissions, the following issues arise for determination by the Court:
1) Whether the 1st Plaintiff had authority to institute these proceedings
2) Whether the 2nd and 3rd Plaintiffs' claims statute-barred
3) What caused the fire at the 1st Plaintiff's and who is liable therefor
4) Are any damages awardable herein to any of the Plaintiffs? If so, how much and to which Plaintiff?
5) What orders should be made regarding costs?
1) Whether the first plaintiff had authority to institute these proceedings
33. The Defendant challenged the authority of the 1st Plaintiff to institute the suit, raising the issue belatedly during the hearing without having pleaded it in the Statement of Defence. The 2nd and 3rd Plaintiffs responded by arguing that failure to file a company resolution at the time of filing suit is not fatal. They relied on Order 4 Rule 1(4) of the Civil Procedure Rules, which provides that where a Plaintiff is a corporation, the verifying affidavit must be sworn by an officer of the company duly authorized under the seal of the company.
34. To support this position, the Plaintiffs cited the decision in Leo Investments Limited v Trident Insurance Company Limited [2014] eKLR, where Odunga J (as he then was) held that failure to file the resolution together with the Plaint does not invalidate the suit. The same position was also taken by Kimaru J. (as he then was) in Republic v Registrar General & 13 others Misc. Application No. 67 of 2005.
35. More significantly, the Court of Appeal in Spire Bank Limited v Land Registrar & 2 others [2019] eKLR interpreted the purpose of Order 4 Rule 1(4) of the Civil Procedure Rules as being to protect the corporate entity by ensuring that only an authorized officer can institute proceedings on its behalf. The Court clarified that this requirement was not intended to be used as a procedural technicality to defeat suits, especially where there is no evidence that the officer lacked authority. The appellate court emphasized that the provision was meant to prevent unauthorized litigation, not to curtail a corporation’s access to justice.
36. Guided by consistent judicial interpretation and the constitutional imperative under Article 159(2)(d) to administer justice without undue regard to procedural technicalities, the Court finds that the 1st Plaintiff’s case, though irregular in form, is saved by the need to do substantial justice.
2) Whether the 2nd and 3rd Plaintiffs' claims statute-barred
37. This issue was expressly pleaded in the Defendant’s Further Amended Statement of Defence dated 27th February 2024. The Defendant contended that the cause of action arose on 03rd February 2012, and that the joinder of the 2nd and 3rd Plaintiffs via the Amended Plaint filed on 29th March 2022 occurred more than ten years after the cause of action accrued. It was submitted that their claims were therefore time-barred under the Limitation of Actions Act, whether framed in tort or contract.
38. The Defendant relied on Jamleck Kamau v Royal Media Services Ltd [2016] eKLR, where Aburili J emphasized that once a claim is time-barred, the court lacks jurisdiction to entertain it, and that the limitation period cannot be extended in the absence of a statutory exception. Further reliance was placed on the ruling of Ringera J (as he then was) in Reuben Shiholi Ashikanga v Hofman Livigh & Another (HCCC No. 5180 of 1980), which held that the addition of a party outside the limitation period does not revive the claim by relation back.
39. In response, the 2nd and 3rd Plaintiffs argued that they were already participating in the proceedings as witnesses and that the amendment did not introduce a new cause of action, but merely particularized their individual special damages. They submitted that this was necessary for effective adjudication of the issues in controversy. They also relied on Ethics and Anti-Corruption Commission v Lydia Ngini Letinina [2020] eKLR, where the court held that an amendment to plead special damages does not necessarily constitute the introduction of a new cause of action.
40. They further contended that the issue of limitation was res judicata, having been raised and determined in the ruling of 15th September 2022, in which the court granted leave to amend the plaint. It was argued that the court, by allowing the amendment, had implicitly addressed the limitation question.
41. Upon consideration of the parties’ arguments, it is not in dispute that the cause of action arose on 03rd February 2012. The 2nd and 3rd Plaintiffs were not initially named as parties in the suit. Their inclusion as plaintiffs and the assertion of individual claims was only formalized through an amendment filed on 29th March 2022, more than ten years after the alleged incident. The Limitation of Actions Act prescribes a six-year limitation period for actions founded on tort or contract. No application was made under section 27 of the Act to extend time, and no statutory exception has been invoked.
42. The Court is alive to the principle that limitation is a matter of substantive law that goes to the jurisdiction of the court. Once a claim is time-barred, it is extinguished, and no procedural device, whether amendment or otherwise, can revive it. The Court of Appeal in Divecon Limited v Samani [1995-1998] 1 EA 48 emphatically stated that no person can bring an action outside the prescribed limitation period unless permitted by statute. This is a point of law that cannot be overridden by the court’s discretion or waived by the parties.
43. The argument that the 2nd and 3rd Plaintiffs were already involved in the proceedings as witnesses does not cure the legal defect. Witnesses are not parties, and their presence in the proceedings does not confer locus standi. It is the formal inclusion of the 2nd and 3rd Plaintiffs as parties asserting distinct claims for special damages that triggers the application of the limitation bar. The submission that the issue is res judicata is also unpersuasive. The ruling dated 15th September 2022, in granting leave to amend, did not conclusively determine whether the claims were time-barred. The leave merely permitted amendment and did not address or dispose of the limitation issue substantively. In the absence of a definitive finding on limitation in that ruling, the doctrine of res judicata does not apply.
44. Accordingly, the Court finds and holds that the claims by the 2nd and 3rd Plaintiffs, having been introduced more than ten years after the cause of action accrued, are time-barred under the Limitation of Actions Act. Their inclusion in the suit after expiry of the statutory period cannot cure the defect. No amendment or procedural step can revive a claim that is already extinguished by operation of law. Their claims are therefore incompetent and are hereby struck out.
3) What caused the fire at the 1st Plaintiff's and who is liable therefor
45. This issue lies at the heart of the dispute, with parties presenting expert reports, witness testimony, and legal submissions on the origin of the fire and who is to blame.
46. The Plaintiffs attributed the fire to a phase problem in the three-phase power supply, particularly at the main incoming fuses, based on a report by Advanced Forensic Services. It was alleged that Kenya Power and Lighting Company (KPLC) workers had improperly bridged fuses using unsuitable wires, which caused overheating, arcing, and ultimately, ignition.
47. The report was adopted by PW1, a loss adjuster, whose role was challenged on grounds that he was not the author and lacked scientific expertise. Nevertheless, the Plaintiffs argued that engaging a forensic expert was sufficient to discharge the burden of proof. They cited Gitobu Imanyara & 2 Others v Attorney General & Another [2017] eKLR.
48. The 1st and 2nd witnesses for the Defendant, confirmed that KPLC was solely responsible for the fuses and that it had restored power a few hours before the fire. The 2nd and 3rd Plaintiffs emphasized KPLC’s statutory duty of care under the Energy Act. They relied on several authorities, including Mwagafwa v KPLC (Civil Appeal E052 of 2022), where it was held that KPLC bears the burden of rebutting liability in such cases; Jeremiah Maina Kangema v KPLC [2001] eKLR; Seasons Restaurants & Hotels Ltd v KPLC [2017] eKLR; and KPLC v Kinyanjui & Another (Civil Appeal 113 & 120 of 2020).
49. The Plaintiffs invoked res ipsa loquitur, arguing that fires do not ordinarily arise in electricity installations under the exclusive control of KPLC without negligence. They cited Msuri Muhhiddin v Nabro [1964] E.A. 202 in support of this doctrine.
50. The Defendant challenged the admissibility of the Plaintiffs’ expert reports and attributed the fire to an overheated generator exhaust pipe in a room with combustible materials. Their expert, Eng. Matundura, asserted that KPLC’s responsibility ends at the meter board and that the fire occurred beyond this point.
51. The Defendant argued that any arcing or overheating must have been the Plaintiff’s own fault due to overloading, though no supporting documents were produced. It further contended that Defendant’s team did not interact with the meter board or switchboard and only carried out maintenance unrelated to the fire’s origin.
52. Despite the Defendant’s attempts to distance itself from liability, key admissions from DW1 and DW2 undermined its case. They acknowledged that KPLC owns the fuses and the wire leading to the switchboard, placing the critical area of concern within KPLC’s jurisdiction. They also conceded that short-circuiting can cause fires and that power had been restored by KPLC shortly before the incident.
53. The alternative theory of fire originating from a generator was weakened by the admission that the generator was off at the material time, and by the fact that DW3, who authored the supporting report, never visited the premises.
54. The Court is persuaded by the Plaintiff’s expert findings, supported by Defendant witness admissions, that the fire originated at a point under KPLC’s control. Applying res ipsa loquitur, and considering the unexplained occurrence of fire following KPLC's restoration of power, the Court finds that the Defendant failed to rebut the presumption of negligence.
55. The Court therefore holds that the fire was caused by the negligence of Kenya Power and Lighting Company Limited, the Defendant herein.
4) Whether damages are awardable, and if so, to whom and in what amount
56. The 1st Plaintiff, Cimbria East Africa Limited, sought compensation totalling KES. 109,751,217.19, comprising material damage of KES. 74,355,924.19, consequential loss of KES. 34,474,733, and loss adjusters’ fees amounting to KES. 1,045,676, less a salvage deduction of KES. 125,116. The claim was supported by a bundle of documentary evidence, including insurance policies, payment vouchers, invoices, loss adjusters’ reports and photographs of the fire damage.
57. PW1 and PW2, both officers of the 1st Plaintiff and its insurer respectively, confirmed that the insurer, Heritage Insurance Company Ltd, paid a total of KES. 29,914,658. This included KES. 22,718,679 for material damage and KES. 7,195,979 for consequential loss. These figures were not disputed in evidence and were supported by the loss adjusters’ final report dated 23rd November 2012 and corresponding payment vouchers.
58. The Defendant did not dispute the occurrence of the fire or the principle of insurance subrogation. Its primary contention was that the claim could not exceed the amounts actually paid by the insurer to the insured. It submitted that the First Plaintiff’s entitlement was strictly limited to KES. 29,914,658, being the total amount paid under the insurance contract. It relied on the Court of Appeal decision in Africa Merchant Assurance Company Ltd v Kenya Power & Lighting Company Ltd [2018] eKLR, where it was held that the right of subrogation entitles the insurer to be placed in the shoes of the insured to the extent of the amounts paid, and not beyond. Similarly, reliance was placed on Tausi Assurance Co. Ltd v Vegpro Ltd [2023] eKLR, which restated that a subrogated claim can only be pursued to recover sums actually paid under the policy.
59. The 1st Plaintiff did not dispute the accuracy of the amounts paid by the insurer. It did not provide evidence of any residual uninsured loss, nor did it plead or prove that the balance of the claim (being the difference between the KES. 109 million claimed and the KES. 29.9 million paid) remained its own loss. In the absence of such evidence, the Court must treat the claim as one brought by the insurer in the name of the insured pursuant to the doctrine of subrogation.
60. The Court therefore finds that the recoverable sum is limited to the amounts paid by the insurer to the 1st Plaintiff. This principle of indemnity is well-settled. In British India General Insurance Co. Ltd v Kapur AIR 1973 Del 111, the court held that subrogation confers no right to claim more than what the insurer has paid. The insured cannot, by lending its name to the insurer, claim a sum exceeding the indemnity already received.
61. Similarly, in Kenya Orient Insurance Ltd v Nairobi Bottlers Ltd [2016] eKLR, the Court of Appeal reaffirmed that “the right of subrogation does not allow an insurer to sue in the name of the insured for more than the sum it has paid out.”
62. In the present case, the insurer’s payment of KES. 29,914,658 represents the total indemnity under the policy. Accordingly, the Court finds that damages are awardable to the extent of KES. 29,914,658 only.
63. As regards the 2nd and 3rd Plaintiffs, the Court has already found that their claims are time-barred and have been struck out. They are therefore not entitled to any award of damages.
5) Costs
64. Under Section 27(1) of the Civil Procedure Act (Cap. 21), the general rule is that costs follow the event, unless the court directs otherwise for good reason. It provides:
“Subject to such conditio
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2. The 1st Plaintiff, through its insurers, M/S The Heritage Insurance Company Limited, seeks special damages under the principle of subrogation. Jorgen Nielsen (2nd Plaintiff) and Anthony Nielsen (3rd Plaintiff) were subsequently enjoined to the suit, seeking damages for personal property lost in the same fire. The Defendant, Kenya Power & Lighting Company Limited, denies liability, asserting that the fire was not caused by its negligence, and further raises defenses regarding the Plaintiffs' claims, including questions of authority to institute suit and limitation periods.
3. The 1st Plaintiff alleges that the Defendant, in breach of contract and without notice, permitted the transmission of excessive and unregulated electricity, leading to short-circuiting, arcing, and the resultant fire. The 1st Plaintiff relied on expert reports attributing the fire to faulty work on the power supply system by KPLC workers. The 1st Plaintiff's claim, totaling Kshs. 109,751,217.19, represents material damage, consequential loss, and loss adjuster's fees, settled by its insurer under subrogation.
4. The 1st Plaintiff called two witnesses in support of its case. PW1, John David Miners, a Loss Adjuster with Cunningham and Lindsey, testified that he was instructed by Heritage Insurance to investigate the fire incident at the 1st Plaintiff’s premises. In the course of his investigation, he prepared and produced several reports. His initial report, titled “Immediate Advice,” dated 07th February 2012, was marked as Exhibit PEXH1. This was followed by a preliminary report dated 22nd February 2012 PEXH. 3 and a further report dated 26th March 2012.
5. In the course of his investigation, Mr. Miners engaged a fire expert, Mr. Peter Grayson of Envirotech Limited. Mr. Grayson provided a preliminary advice report, which was produced as Exhibit PEXH2. That report indicated that the Defendant’s electrical components had been burnt and showed signs of electrical arcing and a loose contact on the incoming power supply from Kenya Power & Lighting Company (KPLC). Mr. Grayson’s inspection summary, dated 18th February 2012 and contained as item 9 in the Plaintiff's bundle of documents, confirmed that the fire had originated in a steel shipping container and had damaged several electric motors.
6. The preliminary conclusion reached in Mr. Grayson’s report was that the fire had originated in the power house as a result of electrical arcing in the incoming supply.
7. Mr. Miners also instructed Advance Forensic Services of South Africa to carry out an independent forensic investigation. The resulting report, marked as Exhibit PEXH.4, identified the point of origin of the fire as the electrical distribution cabinet, commonly referred to as the "power house," specifically at the main incoming fuses.
8. The cause of the fire, according to the findings in PEXH.4, was traced to a phase problem in the incoming three-phase power supply, notably a failure in the central fuses. The report found that workers from KPLC had bypassed the fuses using wires that were not fuse-rated. This unsafe modification led to overheating and arcing, which caused the ceramic spacer to disintegrate. The resulting temperatures were estimated to have reached up to 2400°C, which ignited the surrounding wiring. The report explicitly attributed responsibility for the fire to KPLC.
9. As regards the spread and extent of the fire damage, Mr. Miners testified that the fire spread from the electrical cabinet to the adjacent garage, vehicles, and the main workshop. As a result, extensive damage was occasioned to the workshop building, stock, tools, machinery, equipment, and several motor vehicles.
10. He testified that an initial claim in the sum of KES. 51,636,778.19 was lodged under the Industrial All Risks (IAR) policy held by the First Plaintiff. An interim payment of KES. 15,000,000 was recommended and was subsequently settled by Heritage Insurance. Mr. Miners’ final report on material damage, dated 18th June 2012 and marked as Exhibit PEXH.6, outlined a total claim of KES. 65,150,339.19. After making necessary adjustments, the material damage was computed at KES. 22,718,679.00, and Heritage Insurance settled the balance of KES. 7,718,679.
11. He further produced a report on loss of revenue or consequential loss dated 24th October 2012 as PEXH. 9. This report confirmed that there had been a business interruption between 05th February 2012 and 30th June 2012, occasioned by the fire. The final sum claimed for business interruption stood at KES. 8,857,519, out of which Heritage Insurance paid KES. 7,195,979.
12. Additionally, Mr. Miners testified that some scrap metals salvaged from the fire were sold and it realised KES. 339,080.
13. PW2, Mr. Gibson Kamau, Gibson testified in his capacity as the Legal Manager of Heritage Insurance Company Limited. He confirmed that the 1st Plaintiff was insured under Industrial All Risks Policy No. NP99A00040, which provided cover against fire and related perils, including loss or damage to property, buildings, stock, finished goods, loss of profits, and business interruption.
14. Mr. Kamau affirmed that the company had engaged the services of Cunningham & Lindsey as well as Advance Forensic Services to investigate the fire, and that both reports attributed the cause of the fire to the Defendant’s fault.
15. He further testified that the company settled the 1st Plaintiff’s claims for consequential loss, material damage, and loss adjuster’s fees, based on the findings and recommendations of the reports submitted. Consequently, the insurer filed the present suit under the doctrine of subrogation to recover the total outlay made to the First Plaintiff, which amounted to KES. 109,751,217.19.
16. The 2nd and 3rd Plaintiffs, directors of the 1st Plaintiff, were enjoined to the suit via an Amended Plaint dated 15th September 2022, seeking damages for personal property destroyed in the fire.
17. The 2nd Plaintiff, Jorgen Nielsen who testified as PW3 stated that he also serves as the Chief Executive Officer of the 1st Plaintiff at the material time. He narrated that on 03rd February 2012, while he was away, employees of the Defendant, Kenya Power & Lighting Company (KPLC), were carrying out repairs at the Plaintiff's premises. The premises had been without electricity for two days, and the generator was not functioning. Upon his return, electricity had been restored, but later that evening, he received a call alerting him that a fire had broken out in the garage and generator room. He rushed to the scene and found that the entire generator room, garage, workshop, and technical area were engulfed in flames.
18. According to PW3, the fire began at approximately 6:45 PM and took nearly six hours to contain. He noted that while the office block was spared, the garage, workshop, and technical area suffered complete destruction. He confirmed that both he and the Third Plaintiff lost personal belongings stored in the workshop. He attributed responsibility for the incident to the Defendant. PW3 also stated that the building was supplied with electricity through a three-phase connection. He recalled that KPLC employees had installed a new power pole, but he did not know the purpose of certain trees within the compound or the exact point at which the fire originated.
19. The 3rd Plaintiff, Anthony Nielsen, testified as PW4. He identified himself as the Project Manager of the Plaintiff company at the material time and stated that on 03rd February 2012, KPLC had been summoned to rectify a fault in the three-phase power supply, which had been down for a week. KPLC technicians replaced power line poles, and electricity was disconnected at about 3:00 PM before being restored later that day.
20. PW4 testified that he lived near the premises and was the first to arrive at the scene of the fire. Upon arrival, he found the generator room or power house engulfed in flames. He noted that neighbours attempted to help contain the fire, and various private firefighting services including G4S, Security Group, and Ultimate Security were contacted. The Security Group was the first to respond, but the fire was already too intense. Firefighters from the Nairobi City County Fire Department arrived at around 8:45 PM and battled the blaze until midnight. The incident was subsequently reported at Hardy Police Station in Karen.
21. PW4 confirmed that employees of the Defendant had been working on the electricity poles both on the day of the fire and the day before. He stated that personnel from the Plaintiff’s side had no access to the electrical distribution cabinet, which was under the exclusive control of the Defendant. He blamed the Defendant for failing to detect and avert an excessive electrical surge, which he claimed bypassed a fuse and caused the fire.
22. 2nd and 3rd Plaintiffs associated themselves fully with the 1st Plaintiff's submissions on liability and contended that their claims are not time-barred, citing a previous ruling allowing their joinder and amendment as res judicata on the limitation issue.
23. The Defendant presented three witnesses: Paul Muchoki (DW1), Daniel Nyamweya (DW2), and Livingstone Kipyegon (DW3), each providing technical insight and reports addressing the fire incident at the Plaintiffs’ premises on 03rd February 2012.
24. Paul Muchoki, an artisan with Kenya Power & Lighting Company (KPLC), adopted his statement dated 21st February 2024. He testified that on 02nd February 2012, he responded to a reported power outage at the 1st Plaintiff’s premises and discovered a partial outage due to a blown yellow phase fuse, which he stated is a protective device that disconnects power to prevent excessive voltage, not cause fires. For safety, he removed all three fuses and identified two rotten poles and tree branches interfering with conductors. He reported these issues and, after addressing them, restored full power. He denied interfering with internal wiring or the meter board, which he maintained were in good condition before and after the incident.
25. Upon cross-examination, DW1 affirmed that the 1st Plaintiff’s switchboard and the Defendant’s meter board were separate and that the Defendant was solely responsible for the fuses. He acknowledged that fuses protect against overcurrent and that fuse operation can potentially cause fires. He admitted power was supplied by the Defendant at the time of the fire, that the initial outage had been due to a broken fuse, and that short-circuiting, while rare, can lead to overheating, sparks, and fires. He denied working on the switchboard and maintained that repairs done previously did not leave unresolved short-circuiting. Although he alluded to overloading by the 1st Plaintiff, he admitted no evidence had been presented to support that claim and that the Defendant had never formally raised the issue of excess power usage with the Plaintiffs. On further cross-examination, DW1 clarified that he did temporary repairs on 02nd February and replaced rotten poles the next day. He acknowledged that the switchboard and meter board were connected and owned by the Defendant.
26. Daniel Nyamweya, a County Engineer in Network Management at KPLC, adopted his expert report dated 26th July 2024. He clarified that the meter board (Defendant's domain) includes the KPLC meter and fuses, while the switchboard (consumer's domain) houses circuit breakers and switches. He reiterated that faults such as poor earthing are consumer responsibilities and stated that KPLC staff never accessed internal installations. He confirmed the fuse had blown due to conductor interference from tree branches and was replaced on 02nd February 2012. On 03rd February 2012, maintenance continued with pole replacement, and power was confirmed stable by 3:00 PM. On 04th February 2012 a different technician isolated the supply to the affected building.
27. DW2 stated the 1st Plaintiff consumed more power (3.7 KVA) than the approved 3 KVA in February 2012, suggesting overloading and possible deterioration of internal wiring. On cross-examination, he reaffirmed the fuse at the transformer blew due to tree interference. He reiterated the Defendant’s responsibility for the fuse and the connection between the meter board and 1st Plaintiff’s switchboard. He admitted short-circuiting could cause overheating and fires and that power was supplied by the Defendant when the fire occurred. Though he cited overconsumption, DW2 conceded there was no documentary evidence to support this or proof that any warning was issued to the 1st Plaintiff. He admitted he never visited the premises and relied on reports. He was later recalled and produced an internal memo confirming the Defendant’s attendance at the premises on 02nd and 4th February 2012. He confirmed again that power supply was on and provided by the Defendant when the fire broke out.
28. Livingstone Kipyegon, a loss adjuster, produced the McLaren & Young report dated 19th April 2012. The report indicated the fire broke out at 6:50 PM, roughly three hours after KPLC had completed maintenance. It concluded that the office block was spared, but the workshop and generator room suffered severe damage. Technical findings in the report attributed the fire to overloading by the 1st Plaintiff, whose power consumption (2,376–3,133 kWh monthly) exceeded the approved 3 kW limit, allegedly causing overheating and insulation degradation in internal wiring. No evidence of arcing or short-circuiting was found in KPLC's system. DW3 also produced a report by Dr. Karanja Thiong’o dated 05th June 2012, which suggested the fire began in the generator room, possibly ignited by flammable materials like cleaning cloths or leaves near the exhaust pipe. Lab tests found no accelerants, and the fire was likely spread by the leafy surroundings.
29. On cross-examination, DW3 admitted he had not visited the premises and could not identify the fire's origin or the cause of the initial power outage. He acknowledged the limits of his ability to assist the court. He relied on secondary reports and opined that the generator’s heat could have caused the fire, disputing the suggestion that it had cooled off by 6:30 PM, given it had been off since 3:30 PM.
30. Collectively, the Defendant’s witnesses sought to absolve KPLC of blame, emphasizing proper maintenance procedures, lack of interference with internal systems, and alleged overloading by the Plaintiffs. However, they admitted key points: that the Defendant was supplying power at the material time, fuses can cause fire when they blow, short-circuiting was the reason for the earlier outage, and no evidence had been produced to support overconsumption or internal faults by the Plaintiffs.
31. The Defendant denies negligence, arguing that the power supply was not excessive or unregulated. It asserts that its jurisdiction terminates at the meter board and that installations beyond this point are the owner's responsibility. The Defendant presented expert evidence suggesting alternative causes for the fire, such as overloading by the 1st Plaintiff or ignition from a generator's exhaust pipe. The Defendant also raises preliminary issues, contending that the 1st Plaintiff lacked proper authority to institute the suit and that the 2nd and 3rd Plaintiffs' claims are statute-barred due to late joinder and lack of privity of contract. Furthermore, the Defendant disputes the quantum of damages claimed, particularly by the 2nd and 3rd Plaintiffs due to lack of specific proof, and by the 1st Plaintiff for amounts exceeding the insurer's actual payout under subrogation.
Issues for Determination
32. From the consolidated pleadings, the evidence and submissions, the following issues arise for determination by the Court:
1) Whether the 1st Plaintiff had authority to institute these proceedings
2) Whether the 2nd and 3rd Plaintiffs' claims statute-barred
3) What caused the fire at the 1st Plaintiff's and who is liable therefor
4) Are any damages awardable herein to any of the Plaintiffs? If so, how much and to which Plaintiff?
5) What orders should be made regarding costs?
1) Whether the first plaintiff had authority to institute these proceedings
33. The Defendant challenged the authority of the 1st Plaintiff to institute the suit, raising the issue belatedly during the hearing without having pleaded it in the Statement of Defence. The 2nd and 3rd Plaintiffs responded by arguing that failure to file a company resolution at the time of filing suit is not fatal. They relied on Order 4 Rule 1(4) of the Civil Procedure Rules, which provides that where a Plaintiff is a corporation, the verifying affidavit must be sworn by an officer of the company duly authorized under the seal of the company.
34. To support this position, the Plaintiffs cited the decision in Leo Investments Limited v Trident Insurance Company Limited [2014] eKLR, where Odunga J (as he then was) held that failure to file the resolution together with the Plaint does not invalidate the suit. The same position was also taken by Kimaru J. (as he then was) in Republic v Registrar General & 13 others Misc. Application No. 67 of 2005.
35. More significantly, the Court of Appeal in Spire Bank Limited v Land Registrar & 2 others [2019] eKLR interpreted the purpose of Order 4 Rule 1(4) of the Civil Procedure Rules as being to protect the corporate entity by ensuring that only an authorized officer can institute proceedings on its behalf. The Court clarified that this requirement was not intended to be used as a procedural technicality to defeat suits, especially where there is no evidence that the officer lacked authority. The appellate court emphasized that the provision was meant to prevent unauthorized litigation, not to curtail a corporation’s access to justice.
36. Guided by consistent judicial interpretation and the constitutional imperative under Article 159(2)(d) to administer justice without undue regard to procedural technicalities, the Court finds that the 1st Plaintiff’s case, though irregular in form, is saved by the need to do substantial justice.
2) Whether the 2nd and 3rd Plaintiffs' claims statute-barred
37. This issue was expressly pleaded in the Defendant’s Further Amended Statement of Defence dated 27th February 2024. The Defendant contended that the cause of action arose on 03rd February 2012, and that the joinder of the 2nd and 3rd Plaintiffs via the Amended Plaint filed on 29th March 2022 occurred more than ten years after the cause of action accrued. It was submitted that their claims were therefore time-barred under the Limitation of Actions Act, whether framed in tort or contract.
38. The Defendant relied on Jamleck Kamau v Royal Media Services Ltd [2016] eKLR, where Aburili J emphasized that once a claim is time-barred, the court lacks jurisdiction to entertain it, and that the limitation period cannot be extended in the absence of a statutory exception. Further reliance was placed on the ruling of Ringera J (as he then was) in Reuben Shiholi Ashikanga v Hofman Livigh & Another (HCCC No. 5180 of 1980), which held that the addition of a party outside the limitation period does not revive the claim by relation back.
39. In response, the 2nd and 3rd Plaintiffs argued that they were already participating in the proceedings as witnesses and that the amendment did not introduce a new cause of action, but merely particularized their individual special damages. They submitted that this was necessary for effective adjudication of the issues in controversy. They also relied on Ethics and Anti-Corruption Commission v Lydia Ngini Letinina [2020] eKLR, where the court held that an amendment to plead special damages does not necessarily constitute the introduction of a new cause of action.
40. They further contended that the issue of limitation was res judicata, having been raised and determined in the ruling of 15th September 2022, in which the court granted leave to amend the plaint. It was argued that the court, by allowing the amendment, had implicitly addressed the limitation question.
41. Upon consideration of the parties’ arguments, it is not in dispute that the cause of action arose on 03rd February 2012. The 2nd and 3rd Plaintiffs were not initially named as parties in the suit. Their inclusion as plaintiffs and the assertion of individual claims was only formalized through an amendment filed on 29th March 2022, more than ten years after the alleged incident. The Limitation of Actions Act prescribes a six-year limitation period for actions founded on tort or contract. No application was made under section 27 of the Act to extend time, and no statutory exception has been invoked.
42. The Court is alive to the principle that limitation is a matter of substantive law that goes to the jurisdiction of the court. Once a claim is time-barred, it is extinguished, and no procedural device, whether amendment or otherwise, can revive it. The Court of Appeal in Divecon Limited v Samani [1995-1998] 1 EA 48 emphatically stated that no person can bring an action outside the prescribed limitation period unless permitted by statute. This is a point of law that cannot be overridden by the court’s discretion or waived by the parties.
43. The argument that the 2nd and 3rd Plaintiffs were already involved in the proceedings as witnesses does not cure the legal defect. Witnesses are not parties, and their presence in the proceedings does not confer locus standi. It is the formal inclusion of the 2nd and 3rd Plaintiffs as parties asserting distinct claims for special damages that triggers the application of the limitation bar. The submission that the issue is res judicata is also unpersuasive. The ruling dated 15th September 2022, in granting leave to amend, did not conclusively determine whether the claims were time-barred. The leave merely permitted amendment and did not address or dispose of the limitation issue substantively. In the absence of a definitive finding on limitation in that ruling, the doctrine of res judicata does not apply.
44. Accordingly, the Court finds and holds that the claims by the 2nd and 3rd Plaintiffs, having been introduced more than ten years after the cause of action accrued, are time-barred under the Limitation of Actions Act. Their inclusion in the suit after expiry of the statutory period cannot cure the defect. No amendment or procedural step can revive a claim that is already extinguished by operation of law. Their claims are therefore incompetent and are hereby struck out.
3) What caused the fire at the 1st Plaintiff's and who is liable therefor
45. This issue lies at the heart of the dispute, with parties presenting expert reports, witness testimony, and legal submissions on the origin of the fire and who is to blame.
46. The Plaintiffs attributed the fire to a phase problem in the three-phase power supply, particularly at the main incoming fuses, based on a report by Advanced Forensic Services. It was alleged that Kenya Power and Lighting Company (KPLC) workers had improperly bridged fuses using unsuitable wires, which caused overheating, arcing, and ultimately, ignition.
47. The report was adopted by PW1, a loss adjuster, whose role was challenged on grounds that he was not the author and lacked scientific expertise. Nevertheless, the Plaintiffs argued that engaging a forensic expert was sufficient to discharge the burden of proof. They cited Gitobu Imanyara & 2 Others v Attorney General & Another [2017] eKLR.
48. The 1st and 2nd witnesses for the Defendant, confirmed that KPLC was solely responsible for the fuses and that it had restored power a few hours before the fire. The 2nd and 3rd Plaintiffs emphasized KPLC’s statutory duty of care under the Energy Act. They relied on several authorities, including Mwagafwa v KPLC (Civil Appeal E052 of 2022), where it was held that KPLC bears the burden of rebutting liability in such cases; Jeremiah Maina Kangema v KPLC [2001] eKLR; Seasons Restaurants & Hotels Ltd v KPLC [2017] eKLR; and KPLC v Kinyanjui & Another (Civil Appeal 113 & 120 of 2020).
49. The Plaintiffs invoked res ipsa loquitur, arguing that fires do not ordinarily arise in electricity installations under the exclusive control of KPLC without negligence. They cited Msuri Muhhiddin v Nabro [1964] E.A. 202 in support of this doctrine.
50. The Defendant challenged the admissibility of the Plaintiffs’ expert reports and attributed the fire to an overheated generator exhaust pipe in a room with combustible materials. Their expert, Eng. Matundura, asserted that KPLC’s responsibility ends at the meter board and that the fire occurred beyond this point.
51. The Defendant argued that any arcing or overheating must have been the Plaintiff’s own fault due to overloading, though no supporting documents were produced. It further contended that Defendant’s team did not interact with the meter board or switchboard and only carried out maintenance unrelated to the fire’s origin.
52. Despite the Defendant’s attempts to distance itself from liability, key admissions from DW1 and DW2 undermined its case. They acknowledged that KPLC owns the fuses and the wire leading to the switchboard, placing the critical area of concern within KPLC’s jurisdiction. They also conceded that short-circuiting can cause fires and that power had been restored by KPLC shortly before the incident.
53. The alternative theory of fire originating from a generator was weakened by the admission that the generator was off at the material time, and by the fact that DW3, who authored the supporting report, never visited the premises.
54. The Court is persuaded by the Plaintiff’s expert findings, supported by Defendant witness admissions, that the fire originated at a point under KPLC’s control. Applying res ipsa loquitur, and considering the unexplained occurrence of fire following KPLC's restoration of power, the Court finds that the Defendant failed to rebut the presumption of negligence.
55. The Court therefore holds that the fire was caused by the negligence of Kenya Power and Lighting Company Limited, the Defendant herein.
4) Whether damages are awardable, and if so, to whom and in what amount
56. The 1st Plaintiff, Cimbria East Africa Limited, sought compensation totalling KES. 109,751,217.19, comprising material damage of KES. 74,355,924.19, consequential loss of KES. 34,474,733, and loss adjusters’ fees amounting to KES. 1,045,676, less a salvage deduction of KES. 125,116. The claim was supported by a bundle of documentary evidence, including insurance policies, payment vouchers, invoices, loss adjusters’ reports and photographs of the fire damage.
57. PW1 and PW2, both officers of the 1st Plaintiff and its insurer respectively, confirmed that the insurer, Heritage Insurance Company Ltd, paid a total of KES. 29,914,658. This included KES. 22,718,679 for material damage and KES. 7,195,979 for consequential loss. These figures were not disputed in evidence and were supported by the loss adjusters’ final report dated 23rd November 2012 and corresponding payment vouchers.
58. The Defendant did not dispute the occurrence of the fire or the principle of insurance subrogation. Its primary contention was that the claim could not exceed the amounts actually paid by the insurer to the insured. It submitted that the First Plaintiff’s entitlement was strictly limited to KES. 29,914,658, being the total amount paid under the insurance contract. It relied on the Court of Appeal decision in Africa Merchant Assurance Company Ltd v Kenya Power & Lighting Company Ltd [2018] eKLR, where it was held that the right of subrogation entitles the insurer to be placed in the shoes of the insured to the extent of the amounts paid, and not beyond. Similarly, reliance was placed on Tausi Assurance Co. Ltd v Vegpro Ltd [2023] eKLR, which restated that a subrogated claim can only be pursued to recover sums actually paid under the policy.
59. The 1st Plaintiff did not dispute the accuracy of the amounts paid by the insurer. It did not provide evidence of any residual uninsured loss, nor did it plead or prove that the balance of the claim (being the difference between the KES. 109 million claimed and the KES. 29.9 million paid) remained its own loss. In the absence of such evidence, the Court must treat the claim as one brought by the insurer in the name of the insured pursuant to the doctrine of subrogation.
60. The Court therefore finds that the recoverable sum is limited to the amounts paid by the insurer to the 1st Plaintiff. This principle of indemnity is well-settled. In British India General Insurance Co. Ltd v Kapur AIR 1973 Del 111, the court held that subrogation confers no right to claim more than what the insurer has paid. The insured cannot, by lending its name to the insurer, claim a sum exceeding the indemnity already received.
61. Similarly, in Kenya Orient Insurance Ltd v Nairobi Bottlers Ltd [2016] eKLR, the Court of Appeal reaffirmed that “the right of subrogation does not allow an insurer to sue in the name of the insured for more than the sum it has paid out.”
62. In the present case, the insurer’s payment of KES. 29,914,658 represents the total indemnity under the policy. Accordingly, the Court finds that damages are awardable to the extent of KES. 29,914,658 only.
63. As regards the 2nd and 3rd Plaintiffs, the Court has already found that their claims are time-barred and have been struck out. They are therefore not entitled to any award of damages.
5) Costs
64. Under Section 27(1) of the Civil Procedure Act (Cap. 21), the general rule is that costs follow the event, unless the court directs otherwise for good reason. It provides:
“Subject to such conditio
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