Introduction.
1. In its decision of 3rd March 2025, the Trial Court, entered judgment in favour of the Respondent against the Appellant and made a declaration that the Appellant breached its statutory duty under the Energy Act which caused loss and damage to the Respondent. It entered judgment in the following terms: -
General damages Kshs 800,000/=
Compensation for repairs Kshs 3,060,000/=
Loss of income Kshs 3,000,000/=
Total Kshs 6,860,000/=
Plus, costs of the suit and interest on (b) and (c) (sic) at court rates.
2. Being aggrieved by the said decision, on 26th March 2025, the Appellant herein filed a Memorandum of Appeal dated on even date. It relied on nine (9) grounds of appeal.
3. Its written submissions were dated and filed on 7th November 2025 while those of the Respondent were dated 11th February 2026. The Judgment herein is based on the said written submissions which parties relied upon in their entirety.
Analysis of the Dispute
4. 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. This was 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.
5. Having looked at the Grounds of Appeal and the respective parties’ written submissions, it appeared to this court that the issues that had been placed before it for determination were as follows: -
a. Whether or not the Appellant breached its statutory duty towards the Respondent;
b. Whether or not the Learned Trial Magistrate erred admitting documents marked ‘without prejudice’; and
c. Whether or not the Learned Trial Magistrate erred awarding damages.
Whether or not the Appellant breached its statutory duty towards the Respondent;
6. The Appellant submitted that there was no privity of contract between it and the Respondent since the Respondent failed to produce any electricity supply contract, electricity bill, or other documents identifying him as an account holder with the Appellant respecting electricity supply to the subject premises. Further, the Respondent testified that the subject farm, Ngarunga farm, belonged to his deceased father and it was neither alleged nor proved that the Respondent was an administrator of the deceased's estate. It was emphatic that no legal nexus was established granting the Respondent locus to sue for and on behalf of the deceased, if there existed a contract between the deceased and the Appellant. It therefore faulted the Trial Court for presuming existence of a contractual relationship between the parties.
7. It further submitted that the property description, Ngarunga farm was incomplete as land registration number was not indicated. It asserted that the Respondent failed to establish ownership of the allegedly damaged appliances since no receipts or other documents evidencing ownership were produced therefore, it was unjust to award the Respondent damages for items whose ownership was not ascertained.
8. It argued that the allegation that the subject incident was caused by the Appellant allowing current which was higher than that specified resulting in a flash fire was not proved since there was no expert evidence especially an electrical engineer and it invoked Section 48(1) of the Evidence Act. It asserted that there was no eye witness to testify on causation and it faulted the report produced by Tuliflocks Limited and Agro-Associates Consultants Limited which it contended that it comprised unlearned musings of laymen, inadmissible as expert opinion. It was therefore, emphatic that, there being no eye witness or expert evidence on causation, the allegations of negligence and breach of statutory duty pleaded remained unproved.
9. It also faulted the Trial Court for stating that the fact that the damage was caused by a power surge was undisputed whereas in its amended statement of defence, it demonstrated otherwise. There was also no evidence proving that the fire incident was caused by a power surge.
10. On his part, the Respondent did not submit on this issue. He only submitted that in view of the consent recorded on 12th June 2025 before Hon. Linus P Kassan (J), grounds a, b, c, and d (sic) were rendered moot.
11. The record showed that vide an amended plaint dated 27th July 2018, the Respondent filed a claim against the Appellant seeking for general damages and special damages of Kshs 7,860,000/= and interest and costs of the suit. He averred that there was a contractual agreement between him and the Appellant for supply of electricity and it was the duty of the Appellant to take precaution to ensure current supplied did not damage his property. He averred that on 16th December 2010, the Appellant, in breach of those terms allowed current which was higher than the specified one resulting to a flash fire which destroyed his irrigation pump and pump house. He averred that he suffered loss and damage and listed the particulars of negligence on part of the Appellant and particulars of special damages.
12. The Appellant filed amended statement of defence dated 19th December 2018 whereby it stated that it owed a duty of care to its customers but such customers were to equally co-operate with the Appellant and ensure connection from the meter board to the premises were in good working condition. It admitted that the Respondent’s premise was connected with electricity from its grid but denied causing the incident, being negligent or breaching the contractual obligation and blamed the proprietor of Ngarunga farm and listed the particulars of negligence on part of the Respondent. It also averred that the incident was inevitable and was beyond its control. It admitted that though some appliances were damaged, it denied that the said appliances belonged to the Appellant and denied the particulars of special damages.
13. The matter proceeded for hearing. The Respondent testified as PW1 and he told the Trial Court that he was a coffee farmer and that he inherited the farm from his father. He stated that there was a power surge and the pole that connected power to the irrigation farm house and components of the irrigation pump were completely burnt. He testified that he reported to the Appellant and it referred him to its insurance who gave him an award of Kshs 250,000/= which he declined since he had spent Kshs 3,060,800/= in repairing the system. He produced his documentary evidence as Pexhibit1 to Pexhibit17.
14. On cross examination, he told the court that he was a consumer of Kenya power. He did not have a contract and the contract was with his late father and he did not have bill for consumption as for payment of any money. He stated that the land was registered under his name but on 16th December 2010, the land was under his father’s name. He testified that he did not avail any document to show that the land was his and that at the time of the incident, he was the administrator but did not avail the letter of administration. He further stated that he did not have a fire expert report but the Appellant affirmed it.
15. He further testified that he engaged Tuliflocks who were land valuers and he got quotation from an electrical engineer. Tuliflocks report was done on 3rd December 2014 while the incident occurred in 2011. He instructed Agro associates around the time he reported to the Appellant.
16. On re-examination, he testified that his late father was not mentioned in the letter by APA insurance which instructed him to go ahead with the repairs. He also stated that he became the administrator of the estate in 1993.
17. Sylvester Kiendi (hereinafter referred to as PW2) stated that he was an agronomist and he was a consultant for Ngurunga farm from the year 2010 to 2014. His evidence was based on loss of production which will be considered on its own.
18. He testified on cross examination that he was not an expert in matters of electricity and did not know what caused the damage. He also stated that he ascertained that it was a power surge. He testified on re-examination that he got information about the power surge from the client.
19. David Chege Kariuki (hereinafter referred to as PW3) informed the court that he was a licensed and a registered valuer and was instructed to do a valuation on the damages caused by a power surge at Ngurunga farm which he finalized on 3rd December 2014. He testified that he visited the farm and inspected the pump and power station, took a survey of the land to assess the losses incurred as a result of the power surge, the costing of the power items which he analyzed and came up with a value.
20. On cross examination, he testified that he was a land valuer qualified to give value of damaged power surge and had no expertise on power or electrical field and he could not thus give the value of electrical damage. He stated that he was not a fire expert. He said that he confirmed that damages were there and he was given information that they were as a result of a power surge. He did not include the land number nor the owner and a copy of the title. His report did not indicate when the power surge occurred and page 3 of his report contained the electrical parts. He claimed that he was not able to rule out another cause of the incident and that he engaged an electrician to arrive at a value.
21. He told the court on re-examination that he was trained to inspect property and get information on the buildings and come up with a value hence he was fully qualified. He stated that the electrician would have given the quotes for the equipment but not the value.
22. On the issue of locus raised by the Appellant, I am inclined to agree with the Respondent and looking at the totality of the case, the Appellant owed the Respondent duty of care being the sole electricity supplier in Kenya.
23. In any event there is a consent dated 28th May 2025 whereby Kshs.3,000,000 which was initially deposited in Court was released to Advocates for the Respondent’s in part payment of the Judgement/decretal sum. In this Court’s view the, in the interest of justice and by conduct of the parties, this case should be considered on merits hence the issue of locus is overruled.
Whether or not the learned trial Magistrate erred admitting documents marked ‘Without Prejudice’.
24. The Appellant submitted that the Respondent attached letters/correspondences which were either marked "without prejudice" or clearly indicated (like that of 9th August 2011) as written "on a without prejudice basis" which were admitted by the Trial Court despite Appellant’s objection.
25. It asserted that documents made on "without prejudice basis" were inadmissible in evidence and he quoted the book "Cross on Evidence" (6th Edition, Page 408) and the case of Msa HCCA No. 105 OF 2014 Khunaif Trading Company Ltd vs Equity Bank Limited & Anor [2015] eKLR, whereby the court discussed in length the implications of without prejudice document and found that such documents were inadmissible. He pointed out that the letters were written in the course of attempting to settle the dispute out of court and especially the letter of 23rd August 2012 which attached a discharge voucher containing proposed settlement terms.
26. It emphasized that the trial Court infringed the law and public policy by admitting those documents into evidence despite its objection since they seemingly influenced the court’s decision, going by the incorrect holding that the alleged cause of fire was undisputed.
27. The record showed that when the Respondent was testifying, Mr Mege, counsel for the Appellant objected to the production of letters dated 20th April 2011, 9th August 2011, 28th December 2011 and 23rd August 2012 on account that they were all marked without prejudice hence they were inadmissible by virtue of section 23 of the Evidence Act and he urged the court to expunged them. Counsel for the Respondent objected to the Appellant’s counsel oral application by stating that the letters were written to the Respondent in his name and the rule of no prejudice could not apply. Mr. Mege responded by stating that it was unfair to allow the witness state the contents of documents marked without prejudice.
28. After hearing the parties, the Trial Court overruled the objection and held on page 23 of the record as follows:
“The basis of marking documents without prejudice is to encourage parties to settle their dispute without resorting to litigation, hence should negotiations fail, the other party is not inhibited in relying on their documents.in any event Section 23 of the Evidence Act is explicit that “Nothing shall be taken to exempt any advocate from giving evidence of any matter which he prays, be compelled to give evidence…….’
29. The Respondent did not submit on this issue.
30. On this issue I am inclined to agree with the Appellant that the Trial Court indeed erred in allowing the Respondent produce the dispute documents. The Court did not demonstrate any special circumstances to allow the production of the documents. I rely on [2024] KECA 625 (KLR) where the Court of Appeal discussed the issue as follows:
“The contents of a communication made "without prejudice" were only admissible in certain exceptional circumstances, including when there had been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement had been reached, and to the fact that such communications had been made was also admissible to show that negotiations have taken place, but not its contents, which were otherwise not admissible”
Whether or not the learned trial Magistrate erred awarding damages.
a. Costs of repair
31. The Appellant submitted that Ksh.3,060,800/= claimed and awarded as costs of repair of irrigation pump and costs of repair of electrical motor starter were not adequately proved. It was emphatic that the Respondent ought to have procured and produced a report from an expert like an electrical engineer or other expert identifying allegedly damaged electrical appliances, detailing whether or not they were repairable, providing repair / replacement costs and linking such damage to the alleged incident. It maintained that the report by Tuliflocks Limited did not meet the threshold of expert evidence with respect to both causation and costs of allegedly damaged electrical parts and appliances since its author was a valuer and did not possess any expertise on the matters in question and admitted as much on cross examination.
32. It pointed out that the global valuation of Kshs 5,000,000/= in the said report was unascertainable and exceeded the pleaded amount and was irreconcilable with the Kshs 1,960,577/= given in Karnjer Tech Enterprises Ltd quotation dated 14th September 2011. Further, PW3 admitted that the list in the report of damaged parts was premised on information procured from unidentified expert whose report was not produced hence it was hearsay.
33. It also faulted the Trial Court reliance on the receipts and invoices from Sanvee Electric Services which it stated that they were dated in the year 2015, more than 5 years after the subject incident. It was emphatic that without an expert report, no nexus could be established between the items listed therein and the incident.
34. On his part, the Respondent submitted that the Appellant chose to record a consent dated 12th June 2025 and could not therefore again be heard to make arguments that seemed to reopen questions which were settled with the consent. He stated that the Appellant could not be heard challenging the report by PW3 without another expert report from a competent expert witness.
35. Notably, the Respondent testified before the Trial Court that he spent Kshs 3,060,800/= in repairing the system which he repaired in the year 2015. He stated that he had an invoice for 27th April 2015 for Kshs 997,000/= and a receipt for Kshs 1,593,000/=. On cross examination, he testified that in the original plaint, cost of repair was Kshs 1,960,577/= but the figure changed to over Kshs 3,000,000/= in 2017. He stated that he did not have an expert report explaining the changes. He testified on re-examination that the pricing of items had changed in the year 2017.
36. The Trial Court in the judgement cited section 52 of the Energy Act which provided for compensation for any loss or damage occasioned by reason of execution of its duties. The Trial Court was satisfied that the Respondent availed receipts and was able to prove Kshs.3,060,000. Having looked at the record I am satisfied that indeed the Respondent was able to prove the expenses but only limited to Kshs.3.060,000.
37. I therefore affirm the award of the Trial Court of Kshs.3.060,000. Having been satisfied by the evidence in page 60 to 64 of the Record of appeal.
b. Loss of harvest
38. Appellant argued that loss of harvest was also not proved since the report by Agro-Associates Consultants Limited did not reflect the loss amount or neither did it show how it was arrived at. It was emphatic that the Respondent was obliged to strictly prove the claim through books of accounts and tax returns showing net income for periods both preceding and after the incident. It asserted that the award of Ksh.3,000,000/= was plucked from the air since it was unsupported by the evidence.
39. In rejoinder, the Respondent argued that the repairs were completed on 27th April 2015 and, therefore, from 16th December 2010 to 27th April 2015, a period of over 5 years, the irrigation pump was not in a working condition which meant that there was no irrigation of the coffee plantation. He pointed out that the irrigation process was to irrigate the coffee plantation for increased yields. He submitted that the evidence by the Respondent went unchallenged and that the report by PW2 was also not challenged in evidence since no contrary report was presented by the Appellant to suggest that the findings by PW2 were erroneous. He was emphatic that the trial court was therefore under a legal obligation to assess damages and loss solely by relying on PW2’s report.
40. Notably, the Respondent testified that they went for years without irrigation hence, the harvest went down leading to loss of income. He blamed the Appellant and stated that it interfered with the irrigation system due to a power surge. He testified on cross examination the loss of harvest was Kshs 4,600,000/= and the tonnage was calculated at market rate.
41. PW2 told the Trial Court that when he was instructed to carry out an analysis on the effect of non-irrigation on production, he looked at the year 2009 to 2013 production and noted there was no irrigation in the year 2009. In the year 2010, he advised the client to consider irrigation and production jumped from 35 tonnes to 70 tonnes. He stated that there was no irrigation in the year 2012 since the motor was damaged and production was 44 tonnes and in 2013, production was 35 tonnes. He pointed out that irrigation played a vital role in production and there was need for irrigation. He told the court that the loss in 2012 was 40% which was attributed to non-irrigation in 2011 and a further 15% loss was expected. In terms of money, it was about Kshs 4,800,000/=. He stated that the irrigation equipment doubled the previous production.
42. On cross examination, he testified that though he mentioned the tonnage for 2009, 2010 and 2011, the same was not attached. That he had instructions to consult for the farm which was in writing but he had not availed it and he did not avail his testimonials. He testified on re-examination that the report was based on gathered data from the area for the last ten (10) years and from the millers where the coffee was being sold.
43. Looking at the record of appeal and the above analysis, I am of the considered view that the Trial Court ought not to have awarded any award under this head. The Respondent was not able to prove this head. I therefore set aside that award.
c. General damages
44. The Appellant also contested the award of general damages on account that they were not awardable in breach of contract claims and it placed reliance on Sundowner Lodge Limited vs Kenya Tourist Development Corporation 2023 KECA 1131 (KLR), among other cases where the courts stated that general damages were not awardable for breach of contract except in exceptional circumstances which had to be justified. It was emphatic that there were no exceptional circumstances that were established and proved justifying award of general damages as claimed. It also pointed out that since the Respondent sought substantial pecuniary damages under two heads, there was no other pecuniary loss the general damages award was intended to cover.
45. It also faulted the Trial Court reliance on the case of Kenya Power & Lighting Co Ltd vs- Kassim Mzee Mbaya to justify the award of general damages. It asserted that that decision was distinguishable since special damages were not proved in that case but the court found that the claimant had suffered unquantifiable loss and damage and the claimant thereon had pleaded, identified, and proved specific unquantified loss. It pointed out that there was no unquantified loss in the instant case since Respondent’s alleged loss was fully quantified and claimed as special damages. It was emphatic that award under this head amounted to unjust enrichment.
46. The Respondent on the other hand argued that the Trial Court acted within the law in awarding and assessing the award of general damages. It also pointed out that an award of damages was at the discretion of the Trial Court and the Appellant failed to demonstrate how the Trial Court's decision was made in error.
47. Having looked at the Judgment of the Trial Court am inclined to agree with the Appellant’s that there were no exceptional circumstances proven in this case hence I set aside the award of general damages of Kshs.800,000.
Final Orders.
48. The award of Kshs.800,000 general damages is set aside.
49. The compensation for repairs of Kshs.3.060,000 is affirmed
50. The award of loss of income of Kshs.3,000,000 is set aside.
51. Each party will bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 5th day of August 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mege Learned Counsel for the Appellant.
No appearance for the Respondent
Michael – Court Assistant.
1. In its decision of 3rd March 2025, the Trial Court, entered judgment in favour of the Respondent against the Appellant and made a declaration that the Appellant breached its statutory duty under the Energy Act which caused loss and damage to the Respondent. It entered judgment in the following terms: -
General damages Kshs 800,000/=
Compensation for repairs Kshs 3,060,000/=
Loss of income Kshs 3,000,000/=
Total Kshs 6,860,000/=
Plus, costs of the suit and interest on (b) and (c) (sic) at court rates.
2. Being aggrieved by the said decision, on 26th March 2025, the Appellant herein filed a Memorandum of Appeal dated on even date. It relied on nine (9) grounds of appeal.
3. Its written submissions were dated and filed on 7th November 2025 while those of the Respondent were dated 11th February 2026. The Judgment herein is based on the said written submissions which parties relied upon in their entirety.
Analysis of the Dispute
4. 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. This was 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.
5. Having looked at the Grounds of Appeal and the respective parties’ written submissions, it appeared to this court that the issues that had been placed before it for determination were as follows: -
a. Whether or not the Appellant breached its statutory duty towards the Respondent;
b. Whether or not the Learned Trial Magistrate erred admitting documents marked ‘without prejudice’; and
c. Whether or not the Learned Trial Magistrate erred awarding damages.
Whether or not the Appellant breached its statutory duty towards the Respondent;
6. The Appellant submitted that there was no privity of contract between it and the Respondent since the Respondent failed to produce any electricity supply contract, electricity bill, or other documents identifying him as an account holder with the Appellant respecting electricity supply to the subject premises. Further, the Respondent testified that the subject farm, Ngarunga farm, belonged to his deceased father and it was neither alleged nor proved that the Respondent was an administrator of the deceased's estate. It was emphatic that no legal nexus was established granting the Respondent locus to sue for and on behalf of the deceased, if there existed a contract between the deceased and the Appellant. It therefore faulted the Trial Court for presuming existence of a contractual relationship between the parties.
7. It further submitted that the property description, Ngarunga farm was incomplete as land registration number was not indicated. It asserted that the Respondent failed to establish ownership of the allegedly damaged appliances since no receipts or other documents evidencing ownership were produced therefore, it was unjust to award the Respondent damages for items whose ownership was not ascertained.
8. It argued that the allegation that the subject incident was caused by the Appellant allowing current which was higher than that specified resulting in a flash fire was not proved since there was no expert evidence especially an electrical engineer and it invoked Section 48(1) of the Evidence Act. It asserted that there was no eye witness to testify on causation and it faulted the report produced by Tuliflocks Limited and Agro-Associates Consultants Limited which it contended that it comprised unlearned musings of laymen, inadmissible as expert opinion. It was therefore, emphatic that, there being no eye witness or expert evidence on causation, the allegations of negligence and breach of statutory duty pleaded remained unproved.
9. It also faulted the Trial Court for stating that the fact that the damage was caused by a power surge was undisputed whereas in its amended statement of defence, it demonstrated otherwise. There was also no evidence proving that the fire incident was caused by a power surge.
10. On his part, the Respondent did not submit on this issue. He only submitted that in view of the consent recorded on 12th June 2025 before Hon. Linus P Kassan (J), grounds a, b, c, and d (sic) were rendered moot.
11. The record showed that vide an amended plaint dated 27th July 2018, the Respondent filed a claim against the Appellant seeking for general damages and special damages of Kshs 7,860,000/= and interest and costs of the suit. He averred that there was a contractual agreement between him and the Appellant for supply of electricity and it was the duty of the Appellant to take precaution to ensure current supplied did not damage his property. He averred that on 16th December 2010, the Appellant, in breach of those terms allowed current which was higher than the specified one resulting to a flash fire which destroyed his irrigation pump and pump house. He averred that he suffered loss and damage and listed the particulars of negligence on part of the Appellant and particulars of special damages.
12. The Appellant filed amended statement of defence dated 19th December 2018 whereby it stated that it owed a duty of care to its customers but such customers were to equally co-operate with the Appellant and ensure connection from the meter board to the premises were in good working condition. It admitted that the Respondent’s premise was connected with electricity from its grid but denied causing the incident, being negligent or breaching the contractual obligation and blamed the proprietor of Ngarunga farm and listed the particulars of negligence on part of the Respondent. It also averred that the incident was inevitable and was beyond its control. It admitted that though some appliances were damaged, it denied that the said appliances belonged to the Appellant and denied the particulars of special damages.
13. The matter proceeded for hearing. The Respondent testified as PW1 and he told the Trial Court that he was a coffee farmer and that he inherited the farm from his father. He stated that there was a power surge and the pole that connected power to the irrigation farm house and components of the irrigation pump were completely burnt. He testified that he reported to the Appellant and it referred him to its insurance who gave him an award of Kshs 250,000/= which he declined since he had spent Kshs 3,060,800/= in repairing the system. He produced his documentary evidence as Pexhibit1 to Pexhibit17.
14. On cross examination, he told the court that he was a consumer of Kenya power. He did not have a contract and the contract was with his late father and he did not have bill for consumption as for payment of any money. He stated that the land was registered under his name but on 16th December 2010, the land was under his father’s name. He testified that he did not avail any document to show that the land was his and that at the time of the incident, he was the administrator but did not avail the letter of administration. He further stated that he did not have a fire expert report but the Appellant affirmed it.
15. He further testified that he engaged Tuliflocks who were land valuers and he got quotation from an electrical engineer. Tuliflocks report was done on 3rd December 2014 while the incident occurred in 2011. He instructed Agro associates around the time he reported to the Appellant.
16. On re-examination, he testified that his late father was not mentioned in the letter by APA insurance which instructed him to go ahead with the repairs. He also stated that he became the administrator of the estate in 1993.
17. Sylvester Kiendi (hereinafter referred to as PW2) stated that he was an agronomist and he was a consultant for Ngurunga farm from the year 2010 to 2014. His evidence was based on loss of production which will be considered on its own.
18. He testified on cross examination that he was not an expert in matters of electricity and did not know what caused the damage. He also stated that he ascertained that it was a power surge. He testified on re-examination that he got information about the power surge from the client.
19. David Chege Kariuki (hereinafter referred to as PW3) informed the court that he was a licensed and a registered valuer and was instructed to do a valuation on the damages caused by a power surge at Ngurunga farm which he finalized on 3rd December 2014. He testified that he visited the farm and inspected the pump and power station, took a survey of the land to assess the losses incurred as a result of the power surge, the costing of the power items which he analyzed and came up with a value.
20. On cross examination, he testified that he was a land valuer qualified to give value of damaged power surge and had no expertise on power or electrical field and he could not thus give the value of electrical damage. He stated that he was not a fire expert. He said that he confirmed that damages were there and he was given information that they were as a result of a power surge. He did not include the land number nor the owner and a copy of the title. His report did not indicate when the power surge occurred and page 3 of his report contained the electrical parts. He claimed that he was not able to rule out another cause of the incident and that he engaged an electrician to arrive at a value.
21. He told the court on re-examination that he was trained to inspect property and get information on the buildings and come up with a value hence he was fully qualified. He stated that the electrician would have given the quotes for the equipment but not the value.
22. On the issue of locus raised by the Appellant, I am inclined to agree with the Respondent and looking at the totality of the case, the Appellant owed the Respondent duty of care being the sole electricity supplier in Kenya.
23. In any event there is a consent dated 28th May 2025 whereby Kshs.3,000,000 which was initially deposited in Court was released to Advocates for the Respondent’s in part payment of the Judgement/decretal sum. In this Court’s view the, in the interest of justice and by conduct of the parties, this case should be considered on merits hence the issue of locus is overruled.
Whether or not the learned trial Magistrate erred admitting documents marked ‘Without Prejudice’.
24. The Appellant submitted that the Respondent attached letters/correspondences which were either marked "without prejudice" or clearly indicated (like that of 9th August 2011) as written "on a without prejudice basis" which were admitted by the Trial Court despite Appellant’s objection.
25. It asserted that documents made on "without prejudice basis" were inadmissible in evidence and he quoted the book "Cross on Evidence" (6th Edition, Page 408) and the case of Msa HCCA No. 105 OF 2014 Khunaif Trading Company Ltd vs Equity Bank Limited & Anor [2015] eKLR, whereby the court discussed in length the implications of without prejudice document and found that such documents were inadmissible. He pointed out that the letters were written in the course of attempting to settle the dispute out of court and especially the letter of 23rd August 2012 which attached a discharge voucher containing proposed settlement terms.
26. It emphasized that the trial Court infringed the law and public policy by admitting those documents into evidence despite its objection since they seemingly influenced the court’s decision, going by the incorrect holding that the alleged cause of fire was undisputed.
27. The record showed that when the Respondent was testifying, Mr Mege, counsel for the Appellant objected to the production of letters dated 20th April 2011, 9th August 2011, 28th December 2011 and 23rd August 2012 on account that they were all marked without prejudice hence they were inadmissible by virtue of section 23 of the Evidence Act and he urged the court to expunged them. Counsel for the Respondent objected to the Appellant’s counsel oral application by stating that the letters were written to the Respondent in his name and the rule of no prejudice could not apply. Mr. Mege responded by stating that it was unfair to allow the witness state the contents of documents marked without prejudice.
28. After hearing the parties, the Trial Court overruled the objection and held on page 23 of the record as follows:
“The basis of marking documents without prejudice is to encourage parties to settle their dispute without resorting to litigation, hence should negotiations fail, the other party is not inhibited in relying on their documents.in any event Section 23 of the Evidence Act is explicit that “Nothing shall be taken to exempt any advocate from giving evidence of any matter which he prays, be compelled to give evidence…….’
29. The Respondent did not submit on this issue.
30. On this issue I am inclined to agree with the Appellant that the Trial Court indeed erred in allowing the Respondent produce the dispute documents. The Court did not demonstrate any special circumstances to allow the production of the documents. I rely on [2024] KECA 625 (KLR) where the Court of Appeal discussed the issue as follows:
“The contents of a communication made "without prejudice" were only admissible in certain exceptional circumstances, including when there had been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement had been reached, and to the fact that such communications had been made was also admissible to show that negotiations have taken place, but not its contents, which were otherwise not admissible”
Whether or not the learned trial Magistrate erred awarding damages.
a. Costs of repair
31. The Appellant submitted that Ksh.3,060,800/= claimed and awarded as costs of repair of irrigation pump and costs of repair of electrical motor starter were not adequately proved. It was emphatic that the Respondent ought to have procured and produced a report from an expert like an electrical engineer or other expert identifying allegedly damaged electrical appliances, detailing whether or not they were repairable, providing repair / replacement costs and linking such damage to the alleged incident. It maintained that the report by Tuliflocks Limited did not meet the threshold of expert evidence with respect to both causation and costs of allegedly damaged electrical parts and appliances since its author was a valuer and did not possess any expertise on the matters in question and admitted as much on cross examination.
32. It pointed out that the global valuation of Kshs 5,000,000/= in the said report was unascertainable and exceeded the pleaded amount and was irreconcilable with the Kshs 1,960,577/= given in Karnjer Tech Enterprises Ltd quotation dated 14th September 2011. Further, PW3 admitted that the list in the report of damaged parts was premised on information procured from unidentified expert whose report was not produced hence it was hearsay.
33. It also faulted the Trial Court reliance on the receipts and invoices from Sanvee Electric Services which it stated that they were dated in the year 2015, more than 5 years after the subject incident. It was emphatic that without an expert report, no nexus could be established between the items listed therein and the incident.
34. On his part, the Respondent submitted that the Appellant chose to record a consent dated 12th June 2025 and could not therefore again be heard to make arguments that seemed to reopen questions which were settled with the consent. He stated that the Appellant could not be heard challenging the report by PW3 without another expert report from a competent expert witness.
35. Notably, the Respondent testified before the Trial Court that he spent Kshs 3,060,800/= in repairing the system which he repaired in the year 2015. He stated that he had an invoice for 27th April 2015 for Kshs 997,000/= and a receipt for Kshs 1,593,000/=. On cross examination, he testified that in the original plaint, cost of repair was Kshs 1,960,577/= but the figure changed to over Kshs 3,000,000/= in 2017. He stated that he did not have an expert report explaining the changes. He testified on re-examination that the pricing of items had changed in the year 2017.
36. The Trial Court in the judgement cited section 52 of the Energy Act which provided for compensation for any loss or damage occasioned by reason of execution of its duties. The Trial Court was satisfied that the Respondent availed receipts and was able to prove Kshs.3,060,000. Having looked at the record I am satisfied that indeed the Respondent was able to prove the expenses but only limited to Kshs.3.060,000.
37. I therefore affirm the award of the Trial Court of Kshs.3.060,000. Having been satisfied by the evidence in page 60 to 64 of the Record of appeal.
b. Loss of harvest
38. Appellant argued that loss of harvest was also not proved since the report by Agro-Associates Consultants Limited did not reflect the loss amount or neither did it show how it was arrived at. It was emphatic that the Respondent was obliged to strictly prove the claim through books of accounts and tax returns showing net income for periods both preceding and after the incident. It asserted that the award of Ksh.3,000,000/= was plucked from the air since it was unsupported by the evidence.
39. In rejoinder, the Respondent argued that the repairs were completed on 27th April 2015 and, therefore, from 16th December 2010 to 27th April 2015, a period of over 5 years, the irrigation pump was not in a working condition which meant that there was no irrigation of the coffee plantation. He pointed out that the irrigation process was to irrigate the coffee plantation for increased yields. He submitted that the evidence by the Respondent went unchallenged and that the report by PW2 was also not challenged in evidence since no contrary report was presented by the Appellant to suggest that the findings by PW2 were erroneous. He was emphatic that the trial court was therefore under a legal obligation to assess damages and loss solely by relying on PW2’s report.
40. Notably, the Respondent testified that they went for years without irrigation hence, the harvest went down leading to loss of income. He blamed the Appellant and stated that it interfered with the irrigation system due to a power surge. He testified on cross examination the loss of harvest was Kshs 4,600,000/= and the tonnage was calculated at market rate.
41. PW2 told the Trial Court that when he was instructed to carry out an analysis on the effect of non-irrigation on production, he looked at the year 2009 to 2013 production and noted there was no irrigation in the year 2009. In the year 2010, he advised the client to consider irrigation and production jumped from 35 tonnes to 70 tonnes. He stated that there was no irrigation in the year 2012 since the motor was damaged and production was 44 tonnes and in 2013, production was 35 tonnes. He pointed out that irrigation played a vital role in production and there was need for irrigation. He told the court that the loss in 2012 was 40% which was attributed to non-irrigation in 2011 and a further 15% loss was expected. In terms of money, it was about Kshs 4,800,000/=. He stated that the irrigation equipment doubled the previous production.
42. On cross examination, he testified that though he mentioned the tonnage for 2009, 2010 and 2011, the same was not attached. That he had instructions to consult for the farm which was in writing but he had not availed it and he did not avail his testimonials. He testified on re-examination that the report was based on gathered data from the area for the last ten (10) years and from the millers where the coffee was being sold.
43. Looking at the record of appeal and the above analysis, I am of the considered view that the Trial Court ought not to have awarded any award under this head. The Respondent was not able to prove this head. I therefore set aside that award.
c. General damages
44. The Appellant also contested the award of general damages on account that they were not awardable in breach of contract claims and it placed reliance on Sundowner Lodge Limited vs Kenya Tourist Development Corporation 2023 KECA 1131 (KLR), among other cases where the courts stated that general damages were not awardable for breach of contract except in exceptional circumstances which had to be justified. It was emphatic that there were no exceptional circumstances that were established and proved justifying award of general damages as claimed. It also pointed out that since the Respondent sought substantial pecuniary damages under two heads, there was no other pecuniary loss the general damages award was intended to cover.
45. It also faulted the Trial Court reliance on the case of Kenya Power & Lighting Co Ltd vs- Kassim Mzee Mbaya to justify the award of general damages. It asserted that that decision was distinguishable since special damages were not proved in that case but the court found that the claimant had suffered unquantifiable loss and damage and the claimant thereon had pleaded, identified, and proved specific unquantified loss. It pointed out that there was no unquantified loss in the instant case since Respondent’s alleged loss was fully quantified and claimed as special damages. It was emphatic that award under this head amounted to unjust enrichment.
46. The Respondent on the other hand argued that the Trial Court acted within the law in awarding and assessing the award of general damages. It also pointed out that an award of damages was at the discretion of the Trial Court and the Appellant failed to demonstrate how the Trial Court's decision was made in error.
47. Having looked at the Judgment of the Trial Court am inclined to agree with the Appellant’s that there were no exceptional circumstances proven in this case hence I set aside the award of general damages of Kshs.800,000.
Final Orders.
48. The award of Kshs.800,000 general damages is set aside.
49. The compensation for repairs of Kshs.3.060,000 is affirmed
50. The award of loss of income of Kshs.3,000,000 is set aside.
51. Each party will bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 5th day of August 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mege Learned Counsel for the Appellant.
No appearance for the Respondent
Michael – Court Assistant.