Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 313 of 2012

Kenya Power & Lighting Company Limited v Pamela Awino Ogunyo [2015] KECA 761 (KLR)

Court of Appeal of Kenya
23 April 2015
2,125 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a claimant who pleads special damages precisely and proves them with expert evidence wins, and companies must back up their defence allegations with actual evidence.

What this practically means

#

Executive summary

#
This second appeal to the Court of Appeal at Kisumu, consolidated with Civil Appeal No. 315 of 2012, arose from suits by sugar cane farmers whose crop was burnt when electric cables on the Gogo-Kisii power line fell on their farms on 29th May 2008. The respondents pleaded special damages of Kshs 75,000 each and obtained judgment in the Magistrates Court at Migori; the High Court at Kisii dismissed the appellant's first appeals. The Court of Appeal, comprising Maraga, Azangalala and Kantai, JJ A, in a single judgment of the court, framed two legal issues: whether the special damage claim was specifically pleaded and strictly proved, and whether the burden of proof was impermissibly shifted. The court held that the claim was pleaded with detailed particulars and proved by the expert evidence of a Divisional Agribusiness & Development Officer whose report was produced in court, and that both lower courts were entitled to so find. On burden of proof, the court applied Sections 107-109 and 112 of the Evidence Act: a party asserting facts must prove them, and a fact especially within a party's knowledge - here ownership of the power line - must be proved or disproved by that party. The appellant adduced no evidence of the way-leave it alleged, and its own witness could not confirm ownership of the lines. The court also held that deductions allegedly due to Sony Sugar depended on the respondents' separate contractual relationship, not on the suits. The appeals were dismissed with costs to the respondents.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claim before the trial court was a special damage claim and whether it was specifically pleaded and strictly proved as required in law
  2. 2.Whether the burden/standard of proof was shifted contrary to law, the position being that the burden lies on the party making the allegation

Key legal issues

#
01

Whether the special damages claim was specifically pleaded and strictly proved

Holding

The claim was specifically pleaded with detailed particulars of damage and strictly proved through the expert report and oral evidence of an Agricultural Officer; both courts below were entitled to so hold.

Reasoning

The plaint particularised yield per hectare, acreage destroyed, cost per tonne and the total loss of Kshs 75,000 for each claimant. A Divisional Agribusiness & Development Officer visited the farms, assessed the damaged crop and produced her report, confirming the loss through her training and expertise. The trial magistrate found the crop was destroyed by fire and that the appellant had not rebutted that evidence, and the High Court on first appeal concurred. The Court of Appeal found no basis to disturb those concurrent findings on a second appeal limited to law.

p. 3
02

Whether the burden of proof was shifted contrary to law

Holding

The burden was not shifted; the appellant, having alleged in its defence that it did not supply electricity in the area and that the crop was planted on a way-leave, bore the legal and evidential burden of proving those assertions and failed to discharge it.

Reasoning

Sections 107–109 of the Evidence Act place the burden of proof on the party making an assertion, and Section 112 places the burden of proving or disproving a fact especially within a party's knowledge on that party. Ownership of the power line was a fact within the appellant's knowledge; its own witness could not confirm ownership, yet it adduced no evidence of a way-leave. Allegations in a defence unsupported by evidence remain mere allegations, and deductions allegedly due to Sony were a matter of the respondents' separate contractual relationship.

p. 4

Legal principles established

#
  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless shown to be based on no evidence or perverse.
  • A party who asserts that certain facts exist bears the legal burden of proving those assertions under Sections 107–109 of the Evidence Act.
  • Where a fact is especially within the knowledge of a party, that party bears the burden of proving or disproving it under Section 112 of the Evidence Act.
  • A special damages claim must be specifically pleaded and strictly proved.

Court orders

#
  1. 1.Appeals dismissed
  2. 2.Costs of the appeals awarded to the respondents

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
Kisii HCCA No. 168 of 2009 (with HCCA No. 167 of 2009)
Jurisdiction invoked
Second appeal to the Court of Appeal on matters of law only (Maina v Mugiria [1983] KLR 79 cited on the scope of that jurisdiction)
Consolidated with
Civil Appeal No. 315 of 2012

Relief refused

#

Appellant's challenge to special damages pleading/proof and alleged shifting of the burden of proof

The claim was specifically pleaded with particulars and strictly proved by expert evidence; the burden was never shifted to the appellant

p. 3

Costs

The appeals were dismissed with costs to the respondents.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

can only raise issues of law but not questions of fact which the two courts below have tried and analysed on first appeal unless it can be shown that findings thereof were on no evidence or were such that a reasonable tribunal properly exercising its mind could not reach
p. 2Scope of a second appeal - matters of law only
A party who asserts or alleges that certain facts exist has a legal burden to prove those claims – Sections 107 – 109 of the Evidence Act which place a legal burden of proof or what may be called evidential burden of proof on the party making the assertion
p. 3Burden of proof on the party alleging
This was a fact within the knowledge of the appellant and it therefore was under an obligation to discharge the evidential burden of proof but it did not.
p. 4Section 112 Evidence Act - facts especially within a party's knowledge
Upon our own consideration of the legal issues raised we are of the respectful opinion that the appeals have no merit and we accordingly dismiss them with costs to the respondents.
p. 4Disposition - dismissal with costs

Issues in the judgment

#
minor

Internal inconsistency in the date of the High Court judgment: the heading states it was dated 21st May 2005 while the body says the first appellate appeals were dismissed on 21st September 2012

minor

The respondent's name appears as 'Pamela Awino Ogunyo' in the heading but as 'Pamela Achieng Ogunyo' in the body of the judgment

minor

The cause of action (fire on 29th May 2008) post-dates the judgment date shown in the heading (21st May 2005), confirming the heading date is erroneous

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kenya Power & Lighting Company Limited v Pamela Awino Ogunyo [2015] KECA 761 (KLR)", Case Analysis (2015). Civil Appeal No. 313 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/761/eng@2015-04-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.