REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E167 OF 2024
KENYA POWER & LIGHTINING CO. LTD…………………APPELLANT
VERSUS
MERCY NANJALA WAMBAYA & ANOTHER (Suing as the
Personal Representative of the estate of
CYCLASS SIMIYU (DSCD) ……………………………....…RESPONDENT
(Being an appeal from the Judgement and Decree of the Resident Magistrate’s Court in Sirisia PMCC No. E156 of 2023 delivered by Hon. John O. Manasses (RM) on 7th November 2024.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Principal’s Magistrate’s Court in Sirisia Civil Case No. E156 of 2023 delivered by Hon. John O. Manasses (RM) on 7th November 2024 on both liability and quantum of damages. In the said case, the Respondents had sued the Appellant seeking recovery of general and special damages arising from the electrocution of the deceased on 21st July 2023, due to the negligence of the Appellant.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Plaint dated 8th September 2023, the Respondents averred that on or about 21st July 2023, the deceased was lawfully cultivating his farm when he was electrocuted by an uninsulated sagging electric cables which were resting on a tree and as a result he succumbed.
5. The Appellant in its Statement of Defence dated 15th November 2023, denied the occurrence of the accident, liability and alternatively attributed the accident to the Respondents negligence wholly or substantially.
D. EVIDENCE
6. PW1, Oriba Nekesa Kuto, adopted her recorded statement dated 8th September 2023 and list of documents dated 8th September 2023, as Exhibits as her evidence in chief and told the Court that she was the 2nd Respondent and mother to the deceased herein. According to her, she witnessed the incident as the deceased was at the far with his father tilling the land when he was electrocuted. She told the Court that she found the deceased at the verge of his death and that the deceased was not cutting tree branches. She told the Court that the deceased was 21 years at the point of his demise and was survived by 3 children and a wife. She told the Court that the deceased was a farmer and businessman by profession with an approximated income of Kshs. 30,000/= per month.
7. PW2 was Wycliffe Simiyu Matete who testified that the deceased herein was his son and adopted his recorded statement dated 8th September 2023, as Exhibits as her evidence in chief. According to him, he witnesses the electrocution of the deceased herein as they were at the farm together and as he was headed towards a tree located 10 meters away to rest, he suddenly heard the deceased shout for help and when he rushed to him and toughed him, he also got electrocuted. He told the Court that the deceased died at the hospital while receiving medical care.
8. PW3 was P.C Geoffrey Too who testified that he was before the Court to avail the Police Abstract dated 21st July 2023, with regards to the electrocution of the deceased herein. According to him, he was the investigating officer in this matter and he visited the scene on the date of the incident. He availed the Police Abstract dated 21st July 2023 before the trial Court as PEXH 5.
9. DW1 was Henry Njuguna Mbugua who testified that he was an insurance claims assessor for uptown loss assessors (K) ltd and that he was before the Court to render his evidence with regards to the incident that occurred on 21st July 2023, involving the deceased herein. According to him, he visited the scene on 12th December 2023, and established that the deceased did die as a result of electrocution. He told the Court that he established that the deceased was on top of a tree, cutting tree branches that fell on a face power line close to the subject tree and as a result the electric currents passed through the said cut branch resulting to the deceased person’s electrocution. He claimed that he got the information form the locals and the police report lodged by PW2. He concluded that the incident occurred as a result of ignorance on the part of the deceased. He confirmed that he authored his report 5 months after the incident and since he never witnessed the incident could not give account on the same. He availed the report dated 17th January 2024, before the trial Court as DEXH 1.
E. THE APPEAL
10. The Appellant seeks to overturn the judgment on both liability and quantum as per the preferred grounds of appeal.
11. The Appellant prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate holding. Subsequently, that the costs of the appeal be awarded to the Appellants.
12. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
F. ANALYSIS AND DETERMINATION
13. On the issue of liability, the accident herein happened on 21st July 2023. It was the case of the Appellant herein that the Respondent was liable for the electrocution. For a duty of care to arise herein, and thus a claim for negligence, the Respondents must show his relationship with the Appellant and flowing from that relationship, a duty of care to have flowed from it. Negligence is defined in the Black’s Law Dictionary, 10th Edition as:
1.“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 Respondent to protect the Appellant from the injury complained of, and (2) an injury to the Appellant from the defendant’s failure.”
14. Negligence is a specific tort that comes from the common law jurisprudence. In a claim of negligence, the Respondents herein ought to have established that the Appellant owed them a duty of care, that there was a breach of the duty of care and as a result of that breach, the Respondents suffered damages. The principles involved in a claim of negligence were established in the case of Donoghue Vs Stevenson (1932) UKHL 100, where it was held: -
“The law takes no cognisance of, carelessness in the abstract. It concerns itself with carelessness only where there is duty of care and where failure in that duty has caused damage. In such circumstances, carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. . . the cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage in breach of that duty.”
15. It is common position that the live wire caused the electrocution. PW2 who was with the deceased at the farm, clarly testified that the deceased was resting under a tree after toiling the farm and he abruptly heard screams of him seeking help as he was dying only for him to rush to his side, touch him and get electrocuted also. The Police Abstract availed as PEXH 5 did not give any further details beyond the fact statements “CYCLASS SIMIYU MATETE WHO WAS ELECTROCUTED AT KAPTENAI VILLAGE”. DW1 in his defence alleged that the deceased was cutting the branches that had overlapped onto the electric cables and in the process got electrocuted and noted that he got his information from locals and the PEXH5, Police Abstract. This Court cannot accept this information as the truth as it is very clear that there was no such information available in the PEXH 5 to guide his report which he availed as DEXH 1 and also, he failed to availed any evidentiary proof to dispute allegations by PW2 who witnessed the incident and how it exactly occurred.
16. The Appellant being the monopolistic supplier of electricity in the country has a duty to ensure that the supply is well maintained and in safe condition. This duty was expounded in the case of Kenya Power and Lighting Company Limited Vs James Muli Kyalo and Another (2020) eKLR. The Court while discussing Kenya Power and Lighting Company’s duties stated:-
“The Appellant’s responsibility, as far as the duty to maintain electric supply lines is concerned, is a matter of statutory obligation under the Energy Act, 2006. Section 51 required the Appellant as licensee, or any person authorized by it, from time to time as it becomes necessary, to enter land on which electric supply lines are laid, for the purpose of inspecting or repairing lines, or removing lines where such electric supply lines are no longer required.”
17. The same position is reflected in Section 176(1) of the Energy Act, 2019 (Revised 2022), which provides as follows:
After energy infrastructure has been laid in accordance with this Act, the licensee or any person authorized by the licensee may, from time to time as it becomes necessary, enter the land on which the energy infrastructure is laid with such assistance as may be necessary, for the purpose of operating, inspecting or repairing the infrastructure, or removing such infrastructure in case where the infrastructure is no longer required.
18. The evidence of the Respondent’s witness was of no effect whatsoever and should have been disregarded.
19. The Respondent pleaded that they lost their son as a result of the negligence of the Appellant. The duty of the trial Court was to determine who between the parties was to blame. No evidence was led that the Respondent vandalized the electric supply. The Appellant, supplied power, which to their knowledge is a dangerous thing but took no precaution to ensure its safety and maintain its safety. The deceased a young man was duly tilling his land trying to ensure he provides food for his young family, on feeling tired he decided to rest under the tree on his father’s land and rejuvenate his strength only to meet his death. Trimming tree branches near power lines should be handled by people with the technical know-how of the risks involved and the precautions required. On visiting their facebook page the message is clear that “Uko na power ya ku-avoid disaster. Dial *977# to prevent accidents, outages, or potential harm.” This means that the Respondents also had the duty to ensure that if there were overgrown branches on electric cables they were expected to lodge a report with the Appellant and not attempt to prune the same themselves.
20. Where the Respondents proved their case to the required standard, it was the duty of the Appellant to prove contributory negligence which in my view they failed. In the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 the Court held that; -
“In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence.”
21. It is clear that the that if there were overgrown branches on electric cables and the Respondents they were expected to lodge a report with the Appellant and this was their only mistake, the failure to notify the Appellants of the same. This Court will not condone the narrative that the deceased attempted to prune the same overgrown branches himself as DEXH1 insinuates as the there was no evidence tendered or led relating to the contribution of the deceased to the electrocution to that extent. In the circumstances, I find that the Respondent was liable at 10% for the accident as the trial Court held. I uphold the judgment on liability.
With regards to quantum, the assessment of damages is an exercise of judicial discretion base on the evidence presented before the court and as a rule an appellate court will be reluctant in interfering with such exercise of judicial discretion by a trial court unless the appellate court is satisfied that the trial’s court decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion as was held by the Court of Appeal in Mbogo and Another vs. Shah [1968] EA 93
22. As regards the award of damages under the head of pain and suffering and loss of expectation of life, this court places reliance on the case of Hyder Nthenya Musili & Another -vs- China Wu Yi Limited & Another [2017] eKLR, where the Court stated as follows:
“…. As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is KES. 100,000/= while for pain and suffering the awards range from KES. 10,000/= to KES. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death…”
23. In Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR, the Court, Justice W. Musyoka stated as both; -
“13. In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the trial court awarded Ksh. 50,000.00 for pain and suffering, the appellate court captured the spirit of the law on the issue when it stated:
“[5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Ksh 10,000 to Ksh 100,000 over the last 20 years hence I cannot say that that the sum of Ksh 50,000 awarded under this head is unreasonable.”
24. The deceased herein die instantaneously. The trial Court awarded damages of Ksh 100,000/= for pain and suffering. I do find that this award is excessive and I will interfere with it and reduce it to Ksh 50,000.
25. Under the heading of loss of expectation of life, the trial Court held that the deceased died at the age of 21 years and made an award of Kshs. 300,000/=. I find that this award was on the higher side and I will reduce it to a sum of Ksh 200,000
26. The next issue for determination is damages under loss of dependency. Loss of dependency is a question of fact. In the present case, the deceased was a farmer and businessman, but no evidence was availed to ascertain his earnings on a monthly basis. Loss of dependency is a question of fact to be proved by evidence. The deceased was survived by wife and three children. It is my finding that in the absence of tangible proof of earnings, the trial court should have adopted a global sum approach in assessing damages for loss of dependency instead of the multiplier method. I am guided by the decision in Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the personal representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR, where the Court held as follows: “It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”
27. It is clear, therefore, that the choice of whether to adopt a multiplier or global approach is an issue of discretion of the lower Court, to be determined on a case-by-case basis. There is no fixed and definitive method that must be applied. I will consider the awards made in the following similar past awards: In Stanwel Holdings Limited & Another vs Racheal Haluku Emanuel & Another [2020] eKLR the Court reduced an award of Kshs.2,000,000.00/= for loss of dependency (a global sum) to Kshs.1,000,000/= for the estate of a 23-year-old deceased. In Ainu Shamsi Hauliers Limited vs Moses Sakwa & Another (Suing as the administrators of the estate of the Ben Siguda Okach (Deceased) [2021] eKLR, the Court on Appeal upheld an award of Kshs.2,000,000/= for loss of dependency where the deceased was 40 years old and had left behind a wife and two young children.
28. Having regard to the decisions in the above cited cases, I find that a global sum of Kshs.3,000,000/= would have been appropriate and adequate compensation for the Respondents for loss of dependency since the deceased died at a young age and was survived by a widow and 3 children. The respondents did not cross appeal wherefore the award made by the trial court using the multiplier method will suffice.
29. On special damages, according to the Appellant the Respondents pleaded and proved Kshs. 268,000/= and the Appellant’s in their submissions argue that trial Court erred in awarding Kshs. 271,840/=. It is evident that with regards special damages is that the Court can only award what has been specifically pleaded and proved. In its Plaint dated 8th September 2023, the Respondent pleaded Kshs. 268,000/= and the Appellant submits that that was the amount that was proved and that the said award is subject to 10% contributory negligence. This Court is inclined to concur with the Appellant and proceeds to set aside the award of Ksh 271,840 and award the Respondents Kshs. 268,000/= for special damages.
G. CONCLUSION
30. On the balance this appeal is partially allowed and the general and special damages payable to the respondents are computed as hereunder :-
a. Pain and suffering-------------------------Kshs. 50,000/=
b. Loss of expectation of life----------------Kshs. 200,000/=
c. Loss of dependency-----------------------Kshs.2,530,000/=
d. Special Damages-------------------------- Ksh 268,000
Total sum awarded-----------------------Kshs.3,048,320/=
e. Less 10% contributory negligence----Kshs. 304,832/=
Net figure awarded-----------------------Kshs.2,743,488/=
f. Plus, costs and interest
31. Each party to bear its own costs in this appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 13th day of February 2026.
Mwanaisha.S. Shariff
Judge
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E167 OF 2024
KENYA POWER & LIGHTINING CO. LTD…………………APPELLANT
VERSUS
MERCY NANJALA WAMBAYA & ANOTHER (Suing as the
Personal Representative of the estate of
CYCLASS SIMIYU (DSCD) ……………………………....…RESPONDENT
(Being an appeal from the Judgement and Decree of the Resident Magistrate’s Court in Sirisia PMCC No. E156 of 2023 delivered by Hon. John O. Manasses (RM) on 7th November 2024.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Principal’s Magistrate’s Court in Sirisia Civil Case No. E156 of 2023 delivered by Hon. John O. Manasses (RM) on 7th November 2024 on both liability and quantum of damages. In the said case, the Respondents had sued the Appellant seeking recovery of general and special damages arising from the electrocution of the deceased on 21st July 2023, due to the negligence of the Appellant.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Plaint dated 8th September 2023, the Respondents averred that on or about 21st July 2023, the deceased was lawfully cultivating his farm when he was electrocuted by an uninsulated sagging electric cables which were resting on a tree and as a result he succumbed.
5. The Appellant in its Statement of Defence dated 15th November 2023, denied the occurrence of the accident, liability and alternatively attributed the accident to the Respondents negligence wholly or substantially.
D. EVIDENCE
6. PW1, Oriba Nekesa Kuto, adopted her recorded statement dated 8th September 2023 and list of documents dated 8th September 2023, as Exhibits as her evidence in chief and told the Court that she was the 2nd Respondent and mother to the deceased herein. According to her, she witnessed the incident as the deceased was at the far with his father tilling the land when he was electrocuted. She told the Court that she found the deceased at the verge of his death and that the deceased was not cutting tree branches. She told the Court that the deceased was 21 years at the point of his demise and was survived by 3 children and a wife. She told the Court that the deceased was a farmer and businessman by profession with an approximated income of Kshs. 30,000/= per month.
7. PW2 was Wycliffe Simiyu Matete who testified that the deceased herein was his son and adopted his recorded statement dated 8th September 2023, as Exhibits as her evidence in chief. According to him, he witnesses the electrocution of the deceased herein as they were at the farm together and as he was headed towards a tree located 10 meters away to rest, he suddenly heard the deceased shout for help and when he rushed to him and toughed him, he also got electrocuted. He told the Court that the deceased died at the hospital while receiving medical care.
8. PW3 was P.C Geoffrey Too who testified that he was before the Court to avail the Police Abstract dated 21st July 2023, with regards to the electrocution of the deceased herein. According to him, he was the investigating officer in this matter and he visited the scene on the date of the incident. He availed the Police Abstract dated 21st July 2023 before the trial Court as PEXH 5.
9. DW1 was Henry Njuguna Mbugua who testified that he was an insurance claims assessor for uptown loss assessors (K) ltd and that he was before the Court to render his evidence with regards to the incident that occurred on 21st July 2023, involving the deceased herein. According to him, he visited the scene on 12th December 2023, and established that the deceased did die as a result of electrocution. He told the Court that he established that the deceased was on top of a tree, cutting tree branches that fell on a face power line close to the subject tree and as a result the electric currents passed through the said cut branch resulting to the deceased person’s electrocution. He claimed that he got the information form the locals and the police report lodged by PW2. He concluded that the incident occurred as a result of ignorance on the part of the deceased. He confirmed that he authored his report 5 months after the incident and since he never witnessed the incident could not give account on the same. He availed the report dated 17th January 2024, before the trial Court as DEXH 1.
E. THE APPEAL
10. The Appellant seeks to overturn the judgment on both liability and quantum as per the preferred grounds of appeal.
11. The Appellant prayed that this Court do set aside the holding of the subordinate Court and substitute the same with an appropriate holding. Subsequently, that the costs of the appeal be awarded to the Appellants.
12. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Both parties complied with the Court directives.
F. ANALYSIS AND DETERMINATION
13. On the issue of liability, the accident herein happened on 21st July 2023. It was the case of the Appellant herein that the Respondent was liable for the electrocution. For a duty of care to arise herein, and thus a claim for negligence, the Respondents must show his relationship with the Appellant and flowing from that relationship, a duty of care to have flowed from it. Negligence is defined in the Black’s Law Dictionary, 10th Edition as:
1.“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 Respondent to protect the Appellant from the injury complained of, and (2) an injury to the Appellant from the defendant’s failure.”
14. Negligence is a specific tort that comes from the common law jurisprudence. In a claim of negligence, the Respondents herein ought to have established that the Appellant owed them a duty of care, that there was a breach of the duty of care and as a result of that breach, the Respondents suffered damages. The principles involved in a claim of negligence were established in the case of Donoghue Vs Stevenson (1932) UKHL 100, where it was held: -
“The law takes no cognisance of, carelessness in the abstract. It concerns itself with carelessness only where there is duty of care and where failure in that duty has caused damage. In such circumstances, carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. . . the cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage in breach of that duty.”
15. It is common position that the live wire caused the electrocution. PW2 who was with the deceased at the farm, clarly testified that the deceased was resting under a tree after toiling the farm and he abruptly heard screams of him seeking help as he was dying only for him to rush to his side, touch him and get electrocuted also. The Police Abstract availed as PEXH 5 did not give any further details beyond the fact statements “CYCLASS SIMIYU MATETE WHO WAS ELECTROCUTED AT KAPTENAI VILLAGE”. DW1 in his defence alleged that the deceased was cutting the branches that had overlapped onto the electric cables and in the process got electrocuted and noted that he got his information from locals and the PEXH5, Police Abstract. This Court cannot accept this information as the truth as it is very clear that there was no such information available in the PEXH 5 to guide his report which he availed as DEXH 1 and also, he failed to availed any evidentiary proof to dispute allegations by PW2 who witnessed the incident and how it exactly occurred.
16. The Appellant being the monopolistic supplier of electricity in the country has a duty to ensure that the supply is well maintained and in safe condition. This duty was expounded in the case of Kenya Power and Lighting Company Limited Vs James Muli Kyalo and Another (2020) eKLR. The Court while discussing Kenya Power and Lighting Company’s duties stated:-
“The Appellant’s responsibility, as far as the duty to maintain electric supply lines is concerned, is a matter of statutory obligation under the Energy Act, 2006. Section 51 required the Appellant as licensee, or any person authorized by it, from time to time as it becomes necessary, to enter land on which electric supply lines are laid, for the purpose of inspecting or repairing lines, or removing lines where such electric supply lines are no longer required.”
17. The same position is reflected in Section 176(1) of the Energy Act, 2019 (Revised 2022), which provides as follows:
After energy infrastructure has been laid in accordance with this Act, the licensee or any person authorized by the licensee may, from time to time as it becomes necessary, enter the land on which the energy infrastructure is laid with such assistance as may be necessary, for the purpose of operating, inspecting or repairing the infrastructure, or removing such infrastructure in case where the infrastructure is no longer required.
18. The evidence of the Respondent’s witness was of no effect whatsoever and should have been disregarded.
19. The Respondent pleaded that they lost their son as a result of the negligence of the Appellant. The duty of the trial Court was to determine who between the parties was to blame. No evidence was led that the Respondent vandalized the electric supply. The Appellant, supplied power, which to their knowledge is a dangerous thing but took no precaution to ensure its safety and maintain its safety. The deceased a young man was duly tilling his land trying to ensure he provides food for his young family, on feeling tired he decided to rest under the tree on his father’s land and rejuvenate his strength only to meet his death. Trimming tree branches near power lines should be handled by people with the technical know-how of the risks involved and the precautions required. On visiting their facebook page the message is clear that “Uko na power ya ku-avoid disaster. Dial *977# to prevent accidents, outages, or potential harm.” This means that the Respondents also had the duty to ensure that if there were overgrown branches on electric cables they were expected to lodge a report with the Appellant and not attempt to prune the same themselves.
20. Where the Respondents proved their case to the required standard, it was the duty of the Appellant to prove contributory negligence which in my view they failed. In the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 the Court held that; -
“In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence.”
21. It is clear that the that if there were overgrown branches on electric cables and the Respondents they were expected to lodge a report with the Appellant and this was their only mistake, the failure to notify the Appellants of the same. This Court will not condone the narrative that the deceased attempted to prune the same overgrown branches himself as DEXH1 insinuates as the there was no evidence tendered or led relating to the contribution of the deceased to the electrocution to that extent. In the circumstances, I find that the Respondent was liable at 10% for the accident as the trial Court held. I uphold the judgment on liability.
With regards to quantum, the assessment of damages is an exercise of judicial discretion base on the evidence presented before the court and as a rule an appellate court will be reluctant in interfering with such exercise of judicial discretion by a trial court unless the appellate court is satisfied that the trial’s court decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion as was held by the Court of Appeal in Mbogo and Another vs. Shah [1968] EA 93
22. As regards the award of damages under the head of pain and suffering and loss of expectation of life, this court places reliance on the case of Hyder Nthenya Musili & Another -vs- China Wu Yi Limited & Another [2017] eKLR, where the Court stated as follows:
“…. As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is KES. 100,000/= while for pain and suffering the awards range from KES. 10,000/= to KES. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death…”
23. In Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR, the Court, Justice W. Musyoka stated as both; -
“13. In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the trial court awarded Ksh. 50,000.00 for pain and suffering, the appellate court captured the spirit of the law on the issue when it stated:
“[5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Ksh 10,000 to Ksh 100,000 over the last 20 years hence I cannot say that that the sum of Ksh 50,000 awarded under this head is unreasonable.”
24. The deceased herein die instantaneously. The trial Court awarded damages of Ksh 100,000/= for pain and suffering. I do find that this award is excessive and I will interfere with it and reduce it to Ksh 50,000.
25. Under the heading of loss of expectation of life, the trial Court held that the deceased died at the age of 21 years and made an award of Kshs. 300,000/=. I find that this award was on the higher side and I will reduce it to a sum of Ksh 200,000
26. The next issue for determination is damages under loss of dependency. Loss of dependency is a question of fact. In the present case, the deceased was a farmer and businessman, but no evidence was availed to ascertain his earnings on a monthly basis. Loss of dependency is a question of fact to be proved by evidence. The deceased was survived by wife and three children. It is my finding that in the absence of tangible proof of earnings, the trial court should have adopted a global sum approach in assessing damages for loss of dependency instead of the multiplier method. I am guided by the decision in Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the personal representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR, where the Court held as follows: “It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”
27. It is clear, therefore, that the choice of whether to adopt a multiplier or global approach is an issue of discretion of the lower Court, to be determined on a case-by-case basis. There is no fixed and definitive method that must be applied. I will consider the awards made in the following similar past awards: In Stanwel Holdings Limited & Another vs Racheal Haluku Emanuel & Another [2020] eKLR the Court reduced an award of Kshs.2,000,000.00/= for loss of dependency (a global sum) to Kshs.1,000,000/= for the estate of a 23-year-old deceased. In Ainu Shamsi Hauliers Limited vs Moses Sakwa & Another (Suing as the administrators of the estate of the Ben Siguda Okach (Deceased) [2021] eKLR, the Court on Appeal upheld an award of Kshs.2,000,000/= for loss of dependency where the deceased was 40 years old and had left behind a wife and two young children.
28. Having regard to the decisions in the above cited cases, I find that a global sum of Kshs.3,000,000/= would have been appropriate and adequate compensation for the Respondents for loss of dependency since the deceased died at a young age and was survived by a widow and 3 children. The respondents did not cross appeal wherefore the award made by the trial court using the multiplier method will suffice.
29. On special damages, according to the Appellant the Respondents pleaded and proved Kshs. 268,000/= and the Appellant’s in their submissions argue that trial Court erred in awarding Kshs. 271,840/=. It is evident that with regards special damages is that the Court can only award what has been specifically pleaded and proved. In its Plaint dated 8th September 2023, the Respondent pleaded Kshs. 268,000/= and the Appellant submits that that was the amount that was proved and that the said award is subject to 10% contributory negligence. This Court is inclined to concur with the Appellant and proceeds to set aside the award of Ksh 271,840 and award the Respondents Kshs. 268,000/= for special damages.
G. CONCLUSION
30. On the balance this appeal is partially allowed and the general and special damages payable to the respondents are computed as hereunder :-
a. Pain and suffering-------------------------Kshs. 50,000/=
b. Loss of expectation of life----------------Kshs. 200,000/=
c. Loss of dependency-----------------------Kshs.2,530,000/=
d. Special Damages-------------------------- Ksh 268,000
Total sum awarded-----------------------Kshs.3,048,320/=
e. Less 10% contributory negligence----Kshs. 304,832/=
Net figure awarded-----------------------Kshs.2,743,488/=
f. Plus, costs and interest
31. Each party to bear its own costs in this appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 13th day of February 2026.
Mwanaisha.S. Shariff
Judge