Kenya Power gets reprieve in customer compensation case

Kenya Power (KP) got a slight reprieve after the Court of Appeal directed it to pay a customer, whose house was burnt down due to a power surge, Sh2 million as general damages instead of Sh3 million the High Court had ordered.

Appellate judges Agnes Murgor, Kibaya Laibuta and George Odunga ruled that the High Court took into consideration some matters that it ought not to have taken in determining Kassim Mzee’s claim for general damages.

“Consequently, we find it necessary to set aside the “global award” of Sh3 million and substitute it with Sh2 million in general damages for the trauma, disturbance and inconvenience suffered by the respondent and his household in consequence of the fire that destroyed their home,” ruled the judges.

They added that they made the award taking judicial notice of the pain, suffering, trauma, disturbance and inconvenience the respondent suffered as the ordinary course of nature on account of the tragic fire.

The Court of Appeal, which dismissed the appeal by the electricity distributor with the exception of substituting the amount to be paid, also ruled that the High Court was correct in taking to mind the trauma, general disturbance and inconvenience for which it awarded general damages.

“We find no fault in the judge’s award of general damages on account of trauma, general disturbance and inconvenience resulting from the appellant’s negligence and breach of duty of care,” ruled the appellate court.

The Court of Appeal noted that Mr Mzee, having failed to prove a claim for special damages, disagreed with the High Court’s move to take account of the value of various household goods in determining what it termed as “a global award” in general damages.

Not pleaded

In its appeal, Kenya Power had argued that the High Court erred in law and fact by awarding general damages for trauma and general disturbance and inconvenience occasioned when they were not pleaded by the respondent.

The power utility company also argued that the High Court erred by awarding the respondent an excessive of Sh3 million.

It further argued that the High Court erred in law in failing to hold that on the evidence adduced, the respondent had failed to establish a case on a balance of probability.

On its part, Mr Mzee filed a cross-appeal where he argued that the High Court erred by finding that he had failed to prove special damages pleaded thus arriving at a wrong decision.

The respondent also argued that the High Court erred by awarding Sh3 million as general damages for the unquantifiable loss which was far below the reasonable unquantifiable loss.

Mr Mzee was suing as a legal representative of Mzee Mbaya Nzulwa (deceased) who had initially sued Kenya Power.

The deceased’s case was that he owned a house in Barsheba, Mombasa, which was connected to electricity supplied by Kenya Power and that on or about March 6, 2012, a power surge occurred at the company’s supply lines area resulting in a fire that completely burnt his house together with all household items therein.

The court heard that the power surge and the ensuing fire were a result of Kenya Power’s negligence and recklessness.

[email protected]