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 AppealPartially AllowedCivil Appeal No. E162 of 2024 (consolidated with Civil Appeal No. E164 of 2024)

Kenya Power & Lighting Company Limited v Ganjoni Towers Limited (Civil Appeal E162 of 2024) [2024] KECA 1803 (KLR)

Court of Appeal of Kenya
20 December 2024
7,946 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal slashed a Kshs 30 million fire-damage award to Kshs 20,000 because the building owner couldn't produce receipts proving its repair costs.

What this practically means

#

Executive summary

#
This is a consolidated first appeal against the judgment of the High Court of Kenya at Mombasa (Olga Sewe, J.) which found Kenya Power and Lighting Company Limited (KPLC) fully liable in negligence for a fire that destroyed Ganjoni Towers' premises and awarded special damages of Kshs. 30,568,350 and general damages of Kshs. 100,000. KPLC appealed against liability and quantum; Ganjoni Towers, by a separate appeal in place of a cross-appeal, sought interest on special damages from the date of filing suit. The Court of Appeal re-evaluated the evidence and found the fire was caused by an illegal tapping of a single-phase meter within the consumer's premises, breaching section 64 of the Energy Act, 2006 (Repealed). It apportioned liability at 20% against KPLC and 80% contributory negligence against Ganjoni Towers. The special damages award was set aside entirely because no receipts or vouchers proved actual expenditure and professional estimates do not amount to strict proof. General damages of Kshs. 100,000 were undisturbed in principle but reduced to Kshs. 20,000 to reflect the apportionment. Ganjoni Towers' appeal on interest failed because its plaint did not plead the date from which interest was claimed; interest was properly awarded from the date of judgment. The claim on behalf of the owners of three adjacent plots was confirmed as incompetent for lack of locus standi. The High Court judgment was set aside in part and substituted accordingly, with costs awarded 80% against Ganjoni Towers. This judgment now binds subordinate courts on the pleading and strict proof of special damages and on the liability of an electricity supplier absent proof of negligence.

Questions the Court framed

#

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

  1. 1.whether KPLC was liable in negligence to Ganjoni Towers as claimed in the suit or at all
  2. 2.if the answer in (i) is in the affirmative, whether Ganjoni Towers proved its claim for special damages to the required standard
  3. 3.whether the sums awarded to Ganjoni Towers in general damages holds and, if so, in what amount
  4. 4.whether the sums awarded in the impugned judgment should attract interest from the date of filing suit or from the date of judgment
  5. 5.what orders ought we to make in determination of this appeal, including orders on costs

Key legal issues

#
01

Whether KPLC was liable in negligence for the fire that destroyed Ganjoni Towers' premises

Holding

KPLC was found only 20% liable in negligence, with Ganjoni Towers 80% liable in contributory negligence, because the fire originated from an illegal tapping of a single-phase meter within the consumer's premises; the trial court's finding of full liability was set aside

Reasoning

The court re-evaluated the evidence of the expert witnesses, who were not in concurrence on the exact cause of the fire beyond its electrical nature. DW2's report found the meters and cut-outs intact and revealed a fresh illegal tapping of the single-phase meter, which explained the overload and unstable current. This ruled out a power surge attributable to KPLC. The fire broke out within the consumer's domain, and Ganjoni Towers breached section 64 of the Energy Act, 2006 (Repealed) by the illegal tapping. However, KPLC's meter readers could have detected the illegal tapping, attracting a measure of complacency.

p. 7
02

Whether Ganjoni Towers strictly proved its claim for special damages of Kshs. 44,544,986

Holding

No; the claim was dismissed in its entirety because no receipts, invoices or other documents proving actual expenditure were produced, and professional estimates do not amount to strict proof

Reasoning

The Director of Ganjoni Towers admitted in cross-examination that every purchase was documented, that receipts and invoices were available and could be produced, yet none were tendered. The reports of the architect and quantity surveyor were no more than professional, speculative estimates of repair costs. The court distinguished general and special damages, reaffirming that special damages must be specifically pleaded and strictly proved, and faulted the trial judge for awarding Kshs. 30,568,350 in the face of the admission.

p. 11
03

Whether the general damages award of Kshs. 100,000 should stand

Holding

The award was undisturbed in principle as an exercise of discretion but reduced to Kshs. 20,000 to reflect the 80% contributory negligence apportioned against Ganjoni Towers

Reasoning

Applying the settled principles in Butt v Khan, Mbogo v Shah and Kemfro Africa, an appellate court will not disturb a discretionary award of general damages unless it is inordinately high or low, represents an entirely erroneous estimate, or was based on wrong principles or a misapprehension of the evidence. The court found the award of Kshs. 100,000 was neither inordinately high nor low, and therefore reduced it only to account for the apportionment of liability.

p. 12
04

Whether interest on the sums awarded should run from the date of filing suit or from the date of judgment

Holding

Interest properly runs from the date of judgment because Ganjoni Towers' plaint did not plead the date from which interest was claimed, leaving the matter to the trial court's discretion

Reasoning

Parties are bound by their pleadings, as established in Raila Amolo Odinga v IEBC, IEBC v Mutinda Mule, David Sironga Ole Tukai and Gandy v Caspar Air Charters. Ganjoni Towers' prayer for interest read only 'interest on (b) above till payment in full', without specifying a start date. In the absence of an express pleading, the award of interest from the date of judgment was a proper exercise of the trial court's discretion, and Civil Appeal No. E164 of 2024 failed in its entirety.

p. 14
05

Whether Ganjoni Towers could claim on behalf of the owners of three adjacent plots

Holding

No; the trial court's dismissal of that claim was faultless because Ganjoni Towers lacked locus standi, being neither the registered owner nor authorised to sue on behalf of the registered owners

Reasoning

The claim for the three adjacent plots was premised on a demand letter received from the owner of one plot and threats to sue from the others. The court endorsed the trial judge's finding that in the absence of authority to sue on behalf of the registered owners, the suit in that regard was incompetent for lack of locus standi. No fault was found in the dismissal of that limb of the claim.

p. 9

Legal principles established

#
  • Special damages must not only be specifically pleaded but also strictly proved, and professional estimates cannot constitute strict proof where the claimant has failed to produce available documentary evidence of actual expenditure
  • A party is bound by its pleadings, and in the absence of an express prayer specifying the date from which interest is claimed, the court awards interest at its discretion, typically from the date of judgment
  • The mere fact that KPLC supplies electricity does not of itself render it liable for every electrical fire; negligence must be proved, and KPLC's duty of care ends at the meter at the tail-end of its power supply line, beyond which the consumer takes full responsibility
  • On a first appeal from the High Court, the Court of Appeal is entitled to reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses

Court orders

#
  1. 1.The judgment and decree of the High Court of Kenya at Mombasa (Olga Sewe, J.) delivered on 4th August 2023 be set aside and substituted with a declaration that KPLC was liable in negligence to the extent of 20%, while Ganjoni Towers was liable in contributory negligence at 80%
  2. 2.An order dismissing Ganjoni Towers' claim for special damages in its entirety
  3. 3.An award of the net sum of Kshs. 20,000/= to Ganjoni Towers Limited on account of general damages, taking account of the 80% liability attributable to Ganjoni Towers
  4. 4.An order that Ganjoni Towers Limited do bear 80% of the costs of the suit in the trial court
  5. 5.The Judgment of Olga Sewe, J. on the date interest accrues (date of judgment, 4th August 2023) be upheld
  6. 6.Ganjoni Towers Limited do bear the costs of Civil Appeal No. E164 of 2024 and 80% of the costs in Civil Appeal No. E162 of 2024

The bench

#

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

majority
majority
On appeal from
High Court of Kenya at Mombasa
Mombasa HCCC No. 35 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (appeals from the High Court; the judgment does not cite a specific provision)
Consolidated with
Civil Appeal No. E164 of 2024

Relief refused

#

Ganjoni Towers' claim for special damages of Kshs. 30,568,350/- as awarded by the High Court

Special damages were not strictly proved; no receipts or vouchers were produced in evidence to prove actual expenditure, only speculative professional estimates

p. 12

Ganjoni Towers' appeal (Civil Appeal No. E164 of 2024) seeking interest on special damages from the date of filing suit

The prayer in the plaint did not specify any date from which interest should accrue, leaving the matter to the trial court's discretion, which was properly exercised

p. 13

Ganjoni Towers' claim on behalf of the proprietors of the adjacent plots (Plots 294/XX/MI, 56/XXI/MI and 423/XX/MI)

Ganjoni Towers is not the registered owner of those properties and had no authority to sue on behalf of the registered owners; the suit in that regard was incompetent for lack of locus standi

p. 9

Costs

Ganjoni Towers Limited to bear the costs of Civil Appeal No. E164 of 2024 and 80% of the costs in Civil Appeal No. E162 of 2024, and to bear 80% of the costs of the suit in the trial court

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.

Ganjoni Towers Limited do bear the costs of Civil Appeal No. E164 of 2024 and 80% of the costs in Civil Appeal No. E162 of 2024.
p. 15Final orders on costs of the appeals
a declaration that Kenya Power & Lighting Company Limited was liable to Ganjoni Towers Limited in negligence to the extent of 20%, while Ganjoni Towers Limited was liable in contributory negligence at 80%.
p. 14Final orders on apportionment of liability
an order dismissing Ganjoni Towers' claim for special damages in its entirety;
p. 14Final orders dismissing the special damages claim
Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act.
p. 11Standard of proof for special damages
The very fact that KPLC supplies electricity does not, of itself, make them liable for every electrical fire that breaks out without proof of negligence on their part
p. 9No liability of the electricity supplier without proof of negligence
In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings
p. 13Parties bound by their pleadings
An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate.
p. 12Appellate approach to discretionary awards of general damages

Issues in the judgment

#
minor

The judgment states the impugned judgment was delivered on 4th August 2024 in the opening paragraphs, but the final orders and the interest discussion refer to delivery on 4th August 2023

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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 Ganjoni Towers Limited (Civil Appeal E162 of 2024) [2024] KECA 1803 (KLR)", Case Analysis (2024). Civil Appeal No. E162 of 2024 (consolidated with Civil Appeal No. E164 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1803/eng@2024-12-20

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