REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E045 OF 2024
KENYA POWER & LIGHTING COMPANY LIMITED …..…………APPELLANT
VERSUS
JORAM STANLEY INYANGALA…………………………………..….RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J.A. Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No E019 of 2022 on 5 th September 2024)
JUDGMENT
INTRODUCTION
1. Notably, the suits emanating from the accident herein were a series of three (3) matters to wit, Vihiga PMCC No E018 of 2022 (Now HCCA E046 of 2024) , Vihiga PMCC No E019 of 2022 (Now HCCA E045 of 2024) , the present matter herein, and Vihiga PMCC No E020 of 2022 (Now HCCA E044 of 2024) . By consent, the parties agreed that Vihiga PMCC No E019 of 2022 would be the test suit and that the evidence of the witnesses would apply in other suits.
2. In her decision of 5 th September 2024, the Learned Trial Magistrate, Hon J.A. Agonda , found the Appellant herein to have been wholly liable for the accident that resulted in the injuries that the Respondent herein sustained. The Learned Trial Magistrate entered judgment in favour of the Respondent against the Appellant in the following terms:-
General damages Kshs 1,800,000/=
Prosthetic Kshs 500,000/=
Special damages Kshs 10,030/=
Kshs 2,310,030/=
Plus costs of the suit and interest thereon at court rates from the date of the judgment until payment in full.
3. Being aggrieved by the said decision, on 18 th September 2024, the Appellant herein filed a Memorandum of Appeal of even date. It relied on seven (7) grounds of appeal. It filed a Supplementary Record of Appeal dated 9 th May 2025 on 10 th May 2025.
4. Its Written Submissions were dated 24 th July 2025 and filed on even date while those of the Respondent were dated 20 th August 2025 and filed on 25 th August 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
7. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were as follows:-
a. Whether or not the Learned Trial Magistrate erred in finding the Appellant wholly liable for the accident;
b. Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court.
8. The court deemed it prudent to address the issues under the following distinct heads.
I. COMPETENCE OF THE APPEAL
9. The Respondent raised the issue of competency of the Appeal herein. He cited Rule 79G of the Civil Procedure Rules (sic), and the Appeal Rules 82 (1) and submitted that the Record of Appeal was filed out of the sixty (60) days after filing the Memorandum of Appeal that was filed on 19th September 2024. He asserted that the Record of Appeal was filed on 5th May 2025 without any leave being sought from the court or filing any certificate of delay for filing the Record of Appeal. HE averred that as the Record of appeal ought to have been filed on or before 18 th November 2024, the Appeal herein was incompetent. He thus urged this the court to dismiss the said Appeal.
10. Notably Section 79G of the Civil procedure Act does not provide timelines for filing a record of appeal. There was no Appeal Rule 82(1) in the Civil Procedure Act. In the event the Respondents were referring to Rule 82(1) of the Court of Appeal Rules, the same applied to procedure of filing appeals in the Court of Appeal and not in the High Court.
11. This court found and held that the Appeal herein was competent and the Respondent’s assertions on its competency were not merited.
II. LIABILITY
12. Grounds of Appeal Nos (1), (2), (3) and (4) were dealt with under this head as they were all related.
13. The Appellant blamed the Respondent and his counterparts for working in unsafe condition that was near the hanging wires. Its contention was that the victims were moving the tent and each was holding a pole when the apex of the tent came into contact with the wires causing electrocution.
14. The Appellant submitted that the Respondent herein failed to establish any of the essential elements of negligence. It acknowledged that its general duty was to maintain safe electrical infrastructure. It averred that there was no evidence whatsoever of any breach of this duty since the evidence of the Sub-Chief, Evans Mudenyo (hereinafter referred to as “PW 3”) clearly showed that he was aware of the sagging wires and the risk they posed, yet failed to take any action to prevent people from using tall structures in the area.
15. It pointed out that the Respondent herein stated that he was not the person who set up the dangerous tent arrangement, but he voluntarily chose to work under the hanging wires despite the obvious danger and that he had the opportunity to refuse to work in the dangerous conditions but chose to proceed. It asserted that as a cater, he ought to have recognised the danger of working under electrical installations and either refused to work or sought to have the dangerous conditions rectified before proceeding.
16. It cited the case of The Board of Governors St Andrew's School Turi vs Johlive Builders and Fabricators Ltd (Civil Suit E013 of 2022) [2023] KEHC 22914 (KLR) (27 September 2023) (Judgment) where the court stated that to succeed in a claim of negligence, a plaintiff had to establish that the defendant owed him a duty of care, that there was a breach of the duty of care and as a result of that breach, the plaintiff suffered damages. He also cited Donoghue vs Stevenson (1932) UKHL 100 , Halsbury's Laws of England (4th Ed at Para 662 (page 476) and the case of Mwaka vs Karua & another (Civil Case E261 of 2022) [2024] KEMC 29 (KLR) (3 September 2024) (Judgment) where the court therein emphasised that mere occurrence of an accident did not by itself establish negligence because it could have been due to an error of judgment and hence, there must be evidence of negligence.
17. It maintained that the power lines were properly installed and maintained, there was no defect in the electrical installation, the accident was caused entirely by the Respondent's own actions and the Respondent was aware of the danger but proceeded nonetheless.
18. It submitted that the evidence was beyond mere contributory negligence as the Respondent was entirely responsible for his own injuries because he chose to work in close proximity to power lines, he was aware of the presence and danger of the electrical installation, he failed to take any reasonable precautions for his safety and he failed to seek assistance or guidance from the Appellant before working near the power lines.
19. In this regard, he placed reliance on the cases of Unga Millers Limited & Another vs John Mongoro Njogu [2016] eKLR where it was held that the claimant must have acted voluntarily in the sense that he could exercise a free choice. It argued that where an accident involving electrical installations was caused entirely by the actions of the plaintiff, with no fault attributable to the electricity provider, the doctrine of volenti non fit injuria applied.
20. It maintained that the electrical installations complied fully with the Electrical Installation Standards Rules, 2021 which created a strong presumption that it discharged its duty of care. It cited Kenya Power & Lighting Company Ltd vs Ann Wambui (Suing as the administratrix in the estate of Thomas Wahome Wambui) & another [2016] eKLR where a deceased was found to have contributed to his electrocution when he raised a staff and touched the live wires.
21. It argued that sagging wires did not mean that it was liable since the Respondent failed to state the ground clearance of the wires vis-à- vis the required clearance to show that indeed they were below the required clearance. It pointed out that the wires did not come to touch the apex of the tent themselves but it was as a result of being moved.
22. It faulted the Trial Court for having proceeded on assumption and speculation and for not having found that the Respondent was the author of his own misfortune. It was emphatic that the Respondent did not prove his case on a balance of probabilities. It faulted the Trial Court.
23. It submitted that the Respondents, therefore, failed to discharge burden of proof as was provided in Section 109 of the Evidence Act and relied on the case of Miller vs Minister of Pensions [1947] 2 All ER 372 in this regard.
24. On his part, the Respondent pointed out that Mulisha Sakwa (hereinafter referred to as “DW1”) in Vihiga PMCC No E018 of 2022 (Now HCCA No E046 of 2024) confirmed that complaints were reported through SMS or USSD code *9995# and *977#. He submitted that the Area Chief (hereinafter referred to as “PW 3”) in Vihiga PMCC NoE019 of 2022 (Now HCCA No E045 of 2025) reported about the condition of the hanging wires and bending poles to the Appellant but their complaint was not headed to. He added that it was clear from PW 3’s evidence that the Appellant was aware of the bending and/or the leaning poles which had caused the sagging of the electric poles way before the occurrence of the accident but that it failed to rectify the same until after the occurrence of the accident as DW 1 confirmed. He added that the Appellant did not file any Report after investigation of the accident.
25. He referred this court to the case of Mary Njeri Murigi Vs-Peter Macharia & Gitundu Mwaura [2016] eKLR where the court stated that apportionment of liability would only be plausible if there was some material evidence to show how the deceased would have contributed to the occurrence of the accident. The Respondent submitted that the issue of contributory negligence and the doctrine of v olenti non fit injuria were not applicable herein because if the Appellant had heeded to the various complaints lodged prior to the accident, the accident would not have occurred.
26. He was emphatic that the tent was not set near the wires or poles but rather, the sagging electric wire came into contact with the metal wire of the tent due to the wind which occasioned the wires to swing and touched the tent metal pole. He stated that this proved negligence and lack of duty of care to him and the public and hence, it was liable for the occurrence of the accident. He argued that the Appellant was, therefore, a hundred (100%) per cent liable for the accident.
27. PW 2 in Vihiga PMCC No E019 of 2022 ( now HCCA E045 of 2024) testified that they went to the scene to prepare food but he found himself in hospital after holding a table. When he was cross-examined, he stated that he did not fix the tent but that when he held the table, he lost consciousness.
28. PW2 in Vihiga PMCC No E020 of 2022 (now HCCA E044 of 2024) testified that the tent was already set and they were moving the table when he was electrocuted. He stated that the wires were sagging and were in contact with the tent. He contended that the table hit the metallic poles of the tent which caused electrocution.
29. PW3 in Vihiga PMCC E019 of 2022 (Now HCCA E045 of 2024) was the Assistant Chief. He blamed the Appellant for the incident. He testified that he was not at the scene but he was informed of the incidence. He stated that the tent was four (4) metres high and that the peak metal touched the electrical high voltage that had sagged.
30. He explained that the electricity poles were bent causing the wires to sag. He asserted that the villagers had complained about the poles and he reported the same to the Appellant before the accident and it had promised to rectify the same. It was his further evidence that after the incident, the Appellant replaced the pole and straightened the wires. He stated that it added another pole in the middle to rise the wires. On cross examination, he testified that he had seen the sagging wires before the accident. He averred that although he did not write a letter, he called *977# where complaints were registered.
31. PW 4 in Vihiga PMCC No E018 of 2022(now HCCA No E045 of 2025) testified that he was at the scene when the accident occurred. His evidence was that the two (2) poles which were bending were far from each other and the lines were sagging. He stated that they had reported the matter to the Area Chief, Nyumba Kumi and the Appellant’s office and they invited them physically and electronically.
32. On being cross-examined, he confirmed having witnessed the incident. He reiterated that he had reported the matter to the Appellant in a text message through paybill (sic). He admitted that he did not write to the Appellant. He said that he took part in setting the tents which were far away from the sagging wires. He contended that the sagging electrical wires were blown by the wind they touched the metal pole of tent.
33. DW 1’s testimony was that the victims were electrocuted while they were lifting the tent stand as a result of which the tent apex touched the high transmission power line, a fact that he reiterated when he was cross-examined. He blamed the victims for the incident.
34. He added that he visited the scene and confirmed that the wires were sagging and were in contact with metallic apex of the tent. He confirmed that a complaint could be made through SMS or USSD code * 9995# and *977#. He was not aware of the Area Chief having lodged the complaint. He said that the sagging wires were repaired and new poles put. On re- examination, he clarified that that all pole line had standard sag and that the wire line had a normal sag.
35. The evidence also revealed that the Appellant had installed high voltage electrical lines but the lines between two (2) poles were sagging, a fact that DW 1 confirmed.
36. PW 3 and PW 4 informed the Appellant about the condition of the high voltage lines but no action was taken. PW3 lodged a complaint through USSD *977 which DW1 confirmed belonged to the Appellant. PW 4 lodged a complaint through the Chief and also to the Appellant through its Paybill. DW 1, however, denied to have received the complaints.
37. Notably, the Respondents’ witnesses corroborated each other’s testimony. They did not allude to having moved the tent or holding the metallic posts of the tent. They all averred that they were holding the table. The Appellant’s counsel did not cross examine the victims on this issue of holding the poles and moving the tent. It only came up for the first time during the hearing of the Appellant’s defence.
38. Notably, “negligence” is defined in the Black’s Law Dictionary, 10 th Edition as:-
“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation….. The elements necessary to recover damages for negligence are;
(1) the existence of a duty on part of the Defendant to protect the Plaintiff from the injury complained of, and
(2) an injury to the Plaintiff from the Defendant’s failure.”
39. As stated earlier, it was common position that the high voltage wires were sagging and the poles were bending. After the accident, the Appellant rectified the sagging wires by replacing the poles and adding another pole to support the wires. It had, therefore, supplied power failed to all precautions to ensure its safety to the members of public. It owed third parties a duty of care.
40. This duty of care was restated in the case of AMK (suing as the mother and friend of JMK-Minor) vs Kenya Power & Lighting Company Limited (2020) eKLR where the court therein held that the respondent therein had a statutory duty of supervising, inspecting and maintaining its electric installations under Section 52 of the Energy Act which called for a higher degree of vigilance on its part in order to avert accidents.
41. Even so, it was clear that the Respondent and the others who were injured during the incident were aware of the dangers of the sagging lines and the danger that it posed. This was evident from the many complaints that had been made to the Appellant herein. They put themselves in danger and failed to exercise due care and attention. They could not, therefore, escape liability. Contributory negligence was based on the premise that every person owed a duty of care to himself and to others and that if such person suffered damage as a result of his negligence, he could not escape liability.
42. Taking into account all the circumstances of the case herein, it was the considered view of this court that apportionment of liability at 80%-20% against the Appellant herein was reasonable and fair in the circumstances of the case herein. As the Vihiga PMCC No E019 of 2022 (now HCCA No E045 of 2022) was the lead file, the findings on liability herein will apply mutatis mutandis in HCCA E044 of 2024 and HCCA E046 of 2025 .
43. In the premises foregoing, Grounds of Appeal Nos (1), (2), (3) and (4) were partially merited and the same be and are hereby upheld.
1. QUANTUM
44. Grounds of Appeal Nos (5), (6) and (7) were dealt with under this head as they were all related. The court dealt with the same under the separate and distinct heads.
A. GENERAL DAMAGES
45. The Appellant submitted that general damages in the sum of Kshs 2,000,000/= that was awarded by the Trial Court were inordinately excessive given the nature and extent of the injuries the Respondent sustained and his contributory negligence. It cited Power Lighting Company Ltd (sic) & Another vs Zakayo Saitoti Naingola & Another [2008] eKLR where the principles of awarding damages were considered, being that the damages were not to be inordinately too low or too high, that the damages were intended to compensate and not to enrich a party, that past cases were merely guides with each case being determined on its own facts, that inflationary trends should be taken into account . It urged the court to adopt the sum of Kshs 800,000/- that it had proposed in the Trial Court. It cited several cases where the general damages ranged from 250,000/= to Kshs 750,000/= for amputation above the knee and were for the years between 1993 and 2016.
46. On his part, the Respondent argued that the award on general damages was reasonable and fair because he had been declared seventy (70%) per cent disabled. He added that the Appellant did not file a second medical report although they examined him. He also averred that his age was also a major factor that was considered.
47. He referred this court to the case of Mumias Sugar Limited vs Francis Wanalo [2007] eKLR where it was held that there was no formula for assessing loss of earning capacity but that the court had to be apply the correct principles and take into account the relevant principles. He also set out the holdings in the cases of Eric Onyango Okumu vs SDV Transami (K) Ltd [2007] eKLR and M waura Muriuki vs Suera Flowers Ltd & Another [2014] eKLR but did not extrapolate how the same related to his case.
48. It cited Bayusuf Freighters Limited vs Patrick Mbatha Kyengo [2014] eKLR where the Court of Appeal awarded Kshs 3,409,040/= for similar injuries sustained and Nicodemus Osoro & another v Jane Gatwiri [2019] eKLR where the appellate court found an award of Kshs 2,000,000/= to have been fair.
49. He maintained that although the finding by the Trial Court on the general damages was reasonable and fair, it ought to be enhanced to Kshs 2,500,000/=.
50. PW1 Dr Rodgers Hanningtone Kuyo produced two (2) Medical Report, a receipt for the Medical Report, two (2) Discharge Summaries from Vihiga County hospital and Kakamega County Hospital and a prosthesis proposal. He examined the Respondent over one year after the accident and noted that he did not have fractures. Apart from amputation, he still had a contracture and scars. He assessed his disability was at seventy (70%) per cent, which was grievous harm with long term complications that required long term outpatient attention and which would worsen with age. He opined that the Respondent would need Kshs100,000/- to release the contracture.
51. PW2 testified that he had burns to the head, back, right hand, buttocks, thighs, leg and right foot thumb. He averred that the thumb could not fold. He stated that his left foot was amputated above the knee and he could not walk without crutches.
52. The Trial Court cited several authorities while awarding an amount of Kshs.1,800,000/= and held that based on the inflationary trends, nature of injuries and general trends of awards based on such similar injuries, the said amount was reasonable.
53. It was well settled in law that an appellate court would not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko [ 2004] eKLR .
54. It must be understood that money can never really compensate a person who had sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person had sustained. It was merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who had suffered an injury.
55. However, this assessment was not without limits. A court had to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court therefore had to be guided by precedents.
56. Indeed, in the case of Kigaraari vs Aya (1982-88) 1 KAR 768 , it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford. This was because high awards would lead to higher insurance premiums which would in turn affect the members of the public.
57. This court also had due regard to the case of Lim vs Camden HA [1980] AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused.
58. Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognise that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable.
59. Towards this end, an appellate court ought not to interfere with the discretion of a trial court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended as was held in the case of Margaret T. Nyaga vs Victoria Wambua Kioko (Supra).
60. The authorities the Appellant had cited were old and not comparable to recent cases. While remaining faithful to the doctrine of stare decisis and taking the inflationary trends into consideration, it was the considered view of this court that although the award of Kshs.1,800,000/= for general damages that was awarded by the Trial Court was not unreasonable, it was not clear why the Trial Court awarded a lower sum for similar injuries. This court was, therefore, persuaded that it should enhance the general damages to Kshs 2,000,000/=. In arriving at the said conclusion, this court had due regard to the following cases.
1. Dolphine Freighters Ltd vs Shingoli [2025] KEHC 5216 (KLR)
The appellate court upheld an award of Kshs 2,000,000/= where the victim injuries included a fractured leg, amputation above the knee, and a seventy (70%) per cent permanent disability.
2. Philip Kiprono vs Isaya Aura Odeke [2019] KEHC 10170 (KLR)
The appellate court upheld the sum of Kshs 2,500,000/= that was awarded by the trial court where the victim leg was amputated and permanent incapacity was assessed at sixty (60%) to seventy (70%) per cent.
3. Jennifer Mathenge vs Patrick Muriuki Maina (2020) KEHC 4987 (KLR) The appellate court upheld an award of Kshs1,600,000/= for general damages for amputation of a leg resulting to seventy (70%) per cent permanent disability.
61. This court was not, therefore, persuaded to disturb the award of general damages.
B. PROSTHETIC
62. The Appellant submitted that the award of Kshs 500,000/= for the prosthetic leg lacked evidential foundation since the Respondent failed to provide evidence. It faulted the Trial Court for holding that it had not proposed any sum for the prosthesis because in its Written Submissions, it had proposed a sum of Kshs 400,000/=. It urged this court to adopt the said sum.
63. The Respondent asked this court to enhance the sum of Kshs1,000,000/= that was awarded for the prosthetic leg to the actual quoted amount which was required for him to acquire an electric prosthetic for above knee prosthesis. He urged this court to disturb the amount awarded for electric prosthetic and that the same be replaced with a sum of Kshs 4,010,893.98.
64. Save for submitting that a sum of Kshs 400,000/= was adequate, the Appellant did not also provide any expert documentary evidence to support its assertion . The quotation from Ottobock put the cost of the prostheses to Kshs 4,010,893.98. When he was cross examined, PW 1 put the cost of prosthesis averagely at Kshs 500,000/=. The recording of his evidence was not clear as in his cross-examination, he stated as follows:-
“I have approximated Kshs 700,000/=. That is computerised one but it ranges from Kshs.50,000/= to Kshs.1,000,000/= to average would cost Kshs 500,000/= It is replaceable. It has so many complications (sic).”
65. Be that as it may, it appears that the Trial Court understood what his evidence was. It found the sum of Kshs 1,000,000/= for the prosthesis leg to have been excessive and hence awarded, the Respondent a sum of Kshs 500,000/=.
66. Save for submitting that a sum of Kshs 400,000/= was adequate, the Appellant did not provide any expert documentary evidence to support its assertion. In the premises foregoing, this court came to the firm conclusion that a sum of Kshs 500,000/= was adequate compensation under this head.
C. LOSS OF EARNINGS
67. The Appellant referred this court to the case of Mumias Sugar Limited vs Francis Wanalo [2007] eKLR where it was held that there was no formula for assessing loss of earning capacity but that the court had to be apply the correct principles and take into account the relevant principles. He also set out the holdings in the cases of Eric Onyango Okumu vs SDV Transami (K) Ltd [2007] eKLR and M waura Muriuki vs Suera Flowers Ltd & Another [2014] eKLR but did not extrapolate how the same related to his case.
68. The Respondent did not submit on this issue. This was understandable as the Trial Court did not award damages for loss of earnings. As the Respondent did not cross-appeal, this court did not find any value in analysing his submissions under this head.
D. SPECIAL DAMAGES
69. The Appellant submitted that the receipts the Respondent produced did not meet the required standard for proving special damages, particularly regarding ETR compliance requirements and hence, no award for special damages should be made.
70. On his part, the Respondent argued that he proved the special damages and hence, the trial court was correct in its finding. He produced a receipt from Vihiga County Referral Hospital for a sum of Kshs10,075/= and a receipt for the Medical Report in the sum of Kshs 3,000/=.
71. The Appellant did not explain how the receipts did not meet ETR compliance requirements. The Trial court awarded him Kshs 10,075/= but omitted the sum of Kshs 3,000/= when awarding him special damages. In the absence of any justification, the Trial Court erred in law and fact in having failed to award the Respondent the sum of Kshs 3,000/=.
E. INTEREST
72. Although was not a ground of appeal, this court noted that the Trial Court awarded interest on special damages from the date of judgment. It was the considered view of this court that the Respondent had been kept away from the special damages from the inception of the institution of the suit. He was thus entitled to interest on special damages from the date of filing suit.
DISPOSITION
73. For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 18 th September 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Lea
[...truncated]
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E045 OF 2024
KENYA POWER & LIGHTING COMPANY LIMITED …..…………APPELLANT
VERSUS
JORAM STANLEY INYANGALA…………………………………..….RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J.A. Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No E019 of 2022 on 5 th September 2024)
JUDGMENT
INTRODUCTION
1. Notably, the suits emanating from the accident herein were a series of three (3) matters to wit, Vihiga PMCC No E018 of 2022 (Now HCCA E046 of 2024) , Vihiga PMCC No E019 of 2022 (Now HCCA E045 of 2024) , the present matter herein, and Vihiga PMCC No E020 of 2022 (Now HCCA E044 of 2024) . By consent, the parties agreed that Vihiga PMCC No E019 of 2022 would be the test suit and that the evidence of the witnesses would apply in other suits.
2. In her decision of 5 th September 2024, the Learned Trial Magistrate, Hon J.A. Agonda , found the Appellant herein to have been wholly liable for the accident that resulted in the injuries that the Respondent herein sustained. The Learned Trial Magistrate entered judgment in favour of the Respondent against the Appellant in the following terms:-
General damages Kshs 1,800,000/=
Prosthetic Kshs 500,000/=
Special damages Kshs 10,030/=
Kshs 2,310,030/=
Plus costs of the suit and interest thereon at court rates from the date of the judgment until payment in full.
3. Being aggrieved by the said decision, on 18 th September 2024, the Appellant herein filed a Memorandum of Appeal of even date. It relied on seven (7) grounds of appeal. It filed a Supplementary Record of Appeal dated 9 th May 2025 on 10 th May 2025.
4. Its Written Submissions were dated 24 th July 2025 and filed on even date while those of the Respondent were dated 20 th August 2025 and filed on 25 th August 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
7. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were as follows:-
a. Whether or not the Learned Trial Magistrate erred in finding the Appellant wholly liable for the accident;
b. Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court.
8. The court deemed it prudent to address the issues under the following distinct heads.
I. COMPETENCE OF THE APPEAL
9. The Respondent raised the issue of competency of the Appeal herein. He cited Rule 79G of the Civil Procedure Rules (sic), and the Appeal Rules 82 (1) and submitted that the Record of Appeal was filed out of the sixty (60) days after filing the Memorandum of Appeal that was filed on 19th September 2024. He asserted that the Record of Appeal was filed on 5th May 2025 without any leave being sought from the court or filing any certificate of delay for filing the Record of Appeal. HE averred that as the Record of appeal ought to have been filed on or before 18 th November 2024, the Appeal herein was incompetent. He thus urged this the court to dismiss the said Appeal.
10. Notably Section 79G of the Civil procedure Act does not provide timelines for filing a record of appeal. There was no Appeal Rule 82(1) in the Civil Procedure Act. In the event the Respondents were referring to Rule 82(1) of the Court of Appeal Rules, the same applied to procedure of filing appeals in the Court of Appeal and not in the High Court.
11. This court found and held that the Appeal herein was competent and the Respondent’s assertions on its competency were not merited.
II. LIABILITY
12. Grounds of Appeal Nos (1), (2), (3) and (4) were dealt with under this head as they were all related.
13. The Appellant blamed the Respondent and his counterparts for working in unsafe condition that was near the hanging wires. Its contention was that the victims were moving the tent and each was holding a pole when the apex of the tent came into contact with the wires causing electrocution.
14. The Appellant submitted that the Respondent herein failed to establish any of the essential elements of negligence. It acknowledged that its general duty was to maintain safe electrical infrastructure. It averred that there was no evidence whatsoever of any breach of this duty since the evidence of the Sub-Chief, Evans Mudenyo (hereinafter referred to as “PW 3”) clearly showed that he was aware of the sagging wires and the risk they posed, yet failed to take any action to prevent people from using tall structures in the area.
15. It pointed out that the Respondent herein stated that he was not the person who set up the dangerous tent arrangement, but he voluntarily chose to work under the hanging wires despite the obvious danger and that he had the opportunity to refuse to work in the dangerous conditions but chose to proceed. It asserted that as a cater, he ought to have recognised the danger of working under electrical installations and either refused to work or sought to have the dangerous conditions rectified before proceeding.
16. It cited the case of The Board of Governors St Andrew's School Turi vs Johlive Builders and Fabricators Ltd (Civil Suit E013 of 2022) [2023] KEHC 22914 (KLR) (27 September 2023) (Judgment) where the court stated that to succeed in a claim of negligence, a plaintiff had to establish that the defendant owed him a duty of care, that there was a breach of the duty of care and as a result of that breach, the plaintiff suffered damages. He also cited Donoghue vs Stevenson (1932) UKHL 100 , Halsbury's Laws of England (4th Ed at Para 662 (page 476) and the case of Mwaka vs Karua & another (Civil Case E261 of 2022) [2024] KEMC 29 (KLR) (3 September 2024) (Judgment) where the court therein emphasised that mere occurrence of an accident did not by itself establish negligence because it could have been due to an error of judgment and hence, there must be evidence of negligence.
17. It maintained that the power lines were properly installed and maintained, there was no defect in the electrical installation, the accident was caused entirely by the Respondent's own actions and the Respondent was aware of the danger but proceeded nonetheless.
18. It submitted that the evidence was beyond mere contributory negligence as the Respondent was entirely responsible for his own injuries because he chose to work in close proximity to power lines, he was aware of the presence and danger of the electrical installation, he failed to take any reasonable precautions for his safety and he failed to seek assistance or guidance from the Appellant before working near the power lines.
19. In this regard, he placed reliance on the cases of Unga Millers Limited & Another vs John Mongoro Njogu [2016] eKLR where it was held that the claimant must have acted voluntarily in the sense that he could exercise a free choice. It argued that where an accident involving electrical installations was caused entirely by the actions of the plaintiff, with no fault attributable to the electricity provider, the doctrine of volenti non fit injuria applied.
20. It maintained that the electrical installations complied fully with the Electrical Installation Standards Rules, 2021 which created a strong presumption that it discharged its duty of care. It cited Kenya Power & Lighting Company Ltd vs Ann Wambui (Suing as the administratrix in the estate of Thomas Wahome Wambui) & another [2016] eKLR where a deceased was found to have contributed to his electrocution when he raised a staff and touched the live wires.
21. It argued that sagging wires did not mean that it was liable since the Respondent failed to state the ground clearance of the wires vis-à- vis the required clearance to show that indeed they were below the required clearance. It pointed out that the wires did not come to touch the apex of the tent themselves but it was as a result of being moved.
22. It faulted the Trial Court for having proceeded on assumption and speculation and for not having found that the Respondent was the author of his own misfortune. It was emphatic that the Respondent did not prove his case on a balance of probabilities. It faulted the Trial Court.
23. It submitted that the Respondents, therefore, failed to discharge burden of proof as was provided in Section 109 of the Evidence Act and relied on the case of Miller vs Minister of Pensions [1947] 2 All ER 372 in this regard.
24. On his part, the Respondent pointed out that Mulisha Sakwa (hereinafter referred to as “DW1”) in Vihiga PMCC No E018 of 2022 (Now HCCA No E046 of 2024) confirmed that complaints were reported through SMS or USSD code *9995# and *977#. He submitted that the Area Chief (hereinafter referred to as “PW 3”) in Vihiga PMCC NoE019 of 2022 (Now HCCA No E045 of 2025) reported about the condition of the hanging wires and bending poles to the Appellant but their complaint was not headed to. He added that it was clear from PW 3’s evidence that the Appellant was aware of the bending and/or the leaning poles which had caused the sagging of the electric poles way before the occurrence of the accident but that it failed to rectify the same until after the occurrence of the accident as DW 1 confirmed. He added that the Appellant did not file any Report after investigation of the accident.
25. He referred this court to the case of Mary Njeri Murigi Vs-Peter Macharia & Gitundu Mwaura [2016] eKLR where the court stated that apportionment of liability would only be plausible if there was some material evidence to show how the deceased would have contributed to the occurrence of the accident. The Respondent submitted that the issue of contributory negligence and the doctrine of v olenti non fit injuria were not applicable herein because if the Appellant had heeded to the various complaints lodged prior to the accident, the accident would not have occurred.
26. He was emphatic that the tent was not set near the wires or poles but rather, the sagging electric wire came into contact with the metal wire of the tent due to the wind which occasioned the wires to swing and touched the tent metal pole. He stated that this proved negligence and lack of duty of care to him and the public and hence, it was liable for the occurrence of the accident. He argued that the Appellant was, therefore, a hundred (100%) per cent liable for the accident.
27. PW 2 in Vihiga PMCC No E019 of 2022 ( now HCCA E045 of 2024) testified that they went to the scene to prepare food but he found himself in hospital after holding a table. When he was cross-examined, he stated that he did not fix the tent but that when he held the table, he lost consciousness.
28. PW2 in Vihiga PMCC No E020 of 2022 (now HCCA E044 of 2024) testified that the tent was already set and they were moving the table when he was electrocuted. He stated that the wires were sagging and were in contact with the tent. He contended that the table hit the metallic poles of the tent which caused electrocution.
29. PW3 in Vihiga PMCC E019 of 2022 (Now HCCA E045 of 2024) was the Assistant Chief. He blamed the Appellant for the incident. He testified that he was not at the scene but he was informed of the incidence. He stated that the tent was four (4) metres high and that the peak metal touched the electrical high voltage that had sagged.
30. He explained that the electricity poles were bent causing the wires to sag. He asserted that the villagers had complained about the poles and he reported the same to the Appellant before the accident and it had promised to rectify the same. It was his further evidence that after the incident, the Appellant replaced the pole and straightened the wires. He stated that it added another pole in the middle to rise the wires. On cross examination, he testified that he had seen the sagging wires before the accident. He averred that although he did not write a letter, he called *977# where complaints were registered.
31. PW 4 in Vihiga PMCC No E018 of 2022(now HCCA No E045 of 2025) testified that he was at the scene when the accident occurred. His evidence was that the two (2) poles which were bending were far from each other and the lines were sagging. He stated that they had reported the matter to the Area Chief, Nyumba Kumi and the Appellant’s office and they invited them physically and electronically.
32. On being cross-examined, he confirmed having witnessed the incident. He reiterated that he had reported the matter to the Appellant in a text message through paybill (sic). He admitted that he did not write to the Appellant. He said that he took part in setting the tents which were far away from the sagging wires. He contended that the sagging electrical wires were blown by the wind they touched the metal pole of tent.
33. DW 1’s testimony was that the victims were electrocuted while they were lifting the tent stand as a result of which the tent apex touched the high transmission power line, a fact that he reiterated when he was cross-examined. He blamed the victims for the incident.
34. He added that he visited the scene and confirmed that the wires were sagging and were in contact with metallic apex of the tent. He confirmed that a complaint could be made through SMS or USSD code * 9995# and *977#. He was not aware of the Area Chief having lodged the complaint. He said that the sagging wires were repaired and new poles put. On re- examination, he clarified that that all pole line had standard sag and that the wire line had a normal sag.
35. The evidence also revealed that the Appellant had installed high voltage electrical lines but the lines between two (2) poles were sagging, a fact that DW 1 confirmed.
36. PW 3 and PW 4 informed the Appellant about the condition of the high voltage lines but no action was taken. PW3 lodged a complaint through USSD *977 which DW1 confirmed belonged to the Appellant. PW 4 lodged a complaint through the Chief and also to the Appellant through its Paybill. DW 1, however, denied to have received the complaints.
37. Notably, the Respondents’ witnesses corroborated each other’s testimony. They did not allude to having moved the tent or holding the metallic posts of the tent. They all averred that they were holding the table. The Appellant’s counsel did not cross examine the victims on this issue of holding the poles and moving the tent. It only came up for the first time during the hearing of the Appellant’s defence.
38. Notably, “negligence” is defined in the Black’s Law Dictionary, 10 th Edition as:-
“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation….. The elements necessary to recover damages for negligence are;
(1) the existence of a duty on part of the Defendant to protect the Plaintiff from the injury complained of, and
(2) an injury to the Plaintiff from the Defendant’s failure.”
39. As stated earlier, it was common position that the high voltage wires were sagging and the poles were bending. After the accident, the Appellant rectified the sagging wires by replacing the poles and adding another pole to support the wires. It had, therefore, supplied power failed to all precautions to ensure its safety to the members of public. It owed third parties a duty of care.
40. This duty of care was restated in the case of AMK (suing as the mother and friend of JMK-Minor) vs Kenya Power & Lighting Company Limited (2020) eKLR where the court therein held that the respondent therein had a statutory duty of supervising, inspecting and maintaining its electric installations under Section 52 of the Energy Act which called for a higher degree of vigilance on its part in order to avert accidents.
41. Even so, it was clear that the Respondent and the others who were injured during the incident were aware of the dangers of the sagging lines and the danger that it posed. This was evident from the many complaints that had been made to the Appellant herein. They put themselves in danger and failed to exercise due care and attention. They could not, therefore, escape liability. Contributory negligence was based on the premise that every person owed a duty of care to himself and to others and that if such person suffered damage as a result of his negligence, he could not escape liability.
42. Taking into account all the circumstances of the case herein, it was the considered view of this court that apportionment of liability at 80%-20% against the Appellant herein was reasonable and fair in the circumstances of the case herein. As the Vihiga PMCC No E019 of 2022 (now HCCA No E045 of 2022) was the lead file, the findings on liability herein will apply mutatis mutandis in HCCA E044 of 2024 and HCCA E046 of 2025 .
43. In the premises foregoing, Grounds of Appeal Nos (1), (2), (3) and (4) were partially merited and the same be and are hereby upheld.
1. QUANTUM
44. Grounds of Appeal Nos (5), (6) and (7) were dealt with under this head as they were all related. The court dealt with the same under the separate and distinct heads.
A. GENERAL DAMAGES
45. The Appellant submitted that general damages in the sum of Kshs 2,000,000/= that was awarded by the Trial Court were inordinately excessive given the nature and extent of the injuries the Respondent sustained and his contributory negligence. It cited Power Lighting Company Ltd (sic) & Another vs Zakayo Saitoti Naingola & Another [2008] eKLR where the principles of awarding damages were considered, being that the damages were not to be inordinately too low or too high, that the damages were intended to compensate and not to enrich a party, that past cases were merely guides with each case being determined on its own facts, that inflationary trends should be taken into account . It urged the court to adopt the sum of Kshs 800,000/- that it had proposed in the Trial Court. It cited several cases where the general damages ranged from 250,000/= to Kshs 750,000/= for amputation above the knee and were for the years between 1993 and 2016.
46. On his part, the Respondent argued that the award on general damages was reasonable and fair because he had been declared seventy (70%) per cent disabled. He added that the Appellant did not file a second medical report although they examined him. He also averred that his age was also a major factor that was considered.
47. He referred this court to the case of Mumias Sugar Limited vs Francis Wanalo [2007] eKLR where it was held that there was no formula for assessing loss of earning capacity but that the court had to be apply the correct principles and take into account the relevant principles. He also set out the holdings in the cases of Eric Onyango Okumu vs SDV Transami (K) Ltd [2007] eKLR and M waura Muriuki vs Suera Flowers Ltd & Another [2014] eKLR but did not extrapolate how the same related to his case.
48. It cited Bayusuf Freighters Limited vs Patrick Mbatha Kyengo [2014] eKLR where the Court of Appeal awarded Kshs 3,409,040/= for similar injuries sustained and Nicodemus Osoro & another v Jane Gatwiri [2019] eKLR where the appellate court found an award of Kshs 2,000,000/= to have been fair.
49. He maintained that although the finding by the Trial Court on the general damages was reasonable and fair, it ought to be enhanced to Kshs 2,500,000/=.
50. PW1 Dr Rodgers Hanningtone Kuyo produced two (2) Medical Report, a receipt for the Medical Report, two (2) Discharge Summaries from Vihiga County hospital and Kakamega County Hospital and a prosthesis proposal. He examined the Respondent over one year after the accident and noted that he did not have fractures. Apart from amputation, he still had a contracture and scars. He assessed his disability was at seventy (70%) per cent, which was grievous harm with long term complications that required long term outpatient attention and which would worsen with age. He opined that the Respondent would need Kshs100,000/- to release the contracture.
51. PW2 testified that he had burns to the head, back, right hand, buttocks, thighs, leg and right foot thumb. He averred that the thumb could not fold. He stated that his left foot was amputated above the knee and he could not walk without crutches.
52. The Trial Court cited several authorities while awarding an amount of Kshs.1,800,000/= and held that based on the inflationary trends, nature of injuries and general trends of awards based on such similar injuries, the said amount was reasonable.
53. It was well settled in law that an appellate court would not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko [ 2004] eKLR .
54. It must be understood that money can never really compensate a person who had sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person had sustained. It was merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who had suffered an injury.
55. However, this assessment was not without limits. A court had to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court therefore had to be guided by precedents.
56. Indeed, in the case of Kigaraari vs Aya (1982-88) 1 KAR 768 , it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford. This was because high awards would lead to higher insurance premiums which would in turn affect the members of the public.
57. This court also had due regard to the case of Lim vs Camden HA [1980] AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused.
58. Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognise that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable.
59. Towards this end, an appellate court ought not to interfere with the discretion of a trial court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended as was held in the case of Margaret T. Nyaga vs Victoria Wambua Kioko (Supra).
60. The authorities the Appellant had cited were old and not comparable to recent cases. While remaining faithful to the doctrine of stare decisis and taking the inflationary trends into consideration, it was the considered view of this court that although the award of Kshs.1,800,000/= for general damages that was awarded by the Trial Court was not unreasonable, it was not clear why the Trial Court awarded a lower sum for similar injuries. This court was, therefore, persuaded that it should enhance the general damages to Kshs 2,000,000/=. In arriving at the said conclusion, this court had due regard to the following cases.
1. Dolphine Freighters Ltd vs Shingoli [2025] KEHC 5216 (KLR)
The appellate court upheld an award of Kshs 2,000,000/= where the victim injuries included a fractured leg, amputation above the knee, and a seventy (70%) per cent permanent disability.
2. Philip Kiprono vs Isaya Aura Odeke [2019] KEHC 10170 (KLR)
The appellate court upheld the sum of Kshs 2,500,000/= that was awarded by the trial court where the victim leg was amputated and permanent incapacity was assessed at sixty (60%) to seventy (70%) per cent.
3. Jennifer Mathenge vs Patrick Muriuki Maina (2020) KEHC 4987 (KLR) The appellate court upheld an award of Kshs1,600,000/= for general damages for amputation of a leg resulting to seventy (70%) per cent permanent disability.
61. This court was not, therefore, persuaded to disturb the award of general damages.
B. PROSTHETIC
62. The Appellant submitted that the award of Kshs 500,000/= for the prosthetic leg lacked evidential foundation since the Respondent failed to provide evidence. It faulted the Trial Court for holding that it had not proposed any sum for the prosthesis because in its Written Submissions, it had proposed a sum of Kshs 400,000/=. It urged this court to adopt the said sum.
63. The Respondent asked this court to enhance the sum of Kshs1,000,000/= that was awarded for the prosthetic leg to the actual quoted amount which was required for him to acquire an electric prosthetic for above knee prosthesis. He urged this court to disturb the amount awarded for electric prosthetic and that the same be replaced with a sum of Kshs 4,010,893.98.
64. Save for submitting that a sum of Kshs 400,000/= was adequate, the Appellant did not also provide any expert documentary evidence to support its assertion . The quotation from Ottobock put the cost of the prostheses to Kshs 4,010,893.98. When he was cross examined, PW 1 put the cost of prosthesis averagely at Kshs 500,000/=. The recording of his evidence was not clear as in his cross-examination, he stated as follows:-
“I have approximated Kshs 700,000/=. That is computerised one but it ranges from Kshs.50,000/= to Kshs.1,000,000/= to average would cost Kshs 500,000/= It is replaceable. It has so many complications (sic).”
65. Be that as it may, it appears that the Trial Court understood what his evidence was. It found the sum of Kshs 1,000,000/= for the prosthesis leg to have been excessive and hence awarded, the Respondent a sum of Kshs 500,000/=.
66. Save for submitting that a sum of Kshs 400,000/= was adequate, the Appellant did not provide any expert documentary evidence to support its assertion. In the premises foregoing, this court came to the firm conclusion that a sum of Kshs 500,000/= was adequate compensation under this head.
C. LOSS OF EARNINGS
67. The Appellant referred this court to the case of Mumias Sugar Limited vs Francis Wanalo [2007] eKLR where it was held that there was no formula for assessing loss of earning capacity but that the court had to be apply the correct principles and take into account the relevant principles. He also set out the holdings in the cases of Eric Onyango Okumu vs SDV Transami (K) Ltd [2007] eKLR and M waura Muriuki vs Suera Flowers Ltd & Another [2014] eKLR but did not extrapolate how the same related to his case.
68. The Respondent did not submit on this issue. This was understandable as the Trial Court did not award damages for loss of earnings. As the Respondent did not cross-appeal, this court did not find any value in analysing his submissions under this head.
D. SPECIAL DAMAGES
69. The Appellant submitted that the receipts the Respondent produced did not meet the required standard for proving special damages, particularly regarding ETR compliance requirements and hence, no award for special damages should be made.
70. On his part, the Respondent argued that he proved the special damages and hence, the trial court was correct in its finding. He produced a receipt from Vihiga County Referral Hospital for a sum of Kshs10,075/= and a receipt for the Medical Report in the sum of Kshs 3,000/=.
71. The Appellant did not explain how the receipts did not meet ETR compliance requirements. The Trial court awarded him Kshs 10,075/= but omitted the sum of Kshs 3,000/= when awarding him special damages. In the absence of any justification, the Trial Court erred in law and fact in having failed to award the Respondent the sum of Kshs 3,000/=.
E. INTEREST
72. Although was not a ground of appeal, this court noted that the Trial Court awarded interest on special damages from the date of judgment. It was the considered view of this court that the Respondent had been kept away from the special damages from the inception of the institution of the suit. He was thus entitled to interest on special damages from the date of filing suit.
DISPOSITION
73. For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 18 th September 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Lea
[...truncated]