Daniel Paul Onkangi, Justus Orare Onsongo, Elizabeth Gesare Okore & Wilfred Nyangau Ogoti v Kenya Power & Lighting Company Limited [2017] KEHC 9417 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COUR OF KENYA AT KISII

CIVIL SUIT NO. 23 OF 2014.

DANIEL PAUL ONKANGI.....................................................1ST PLAINTIFF

JUSTUS ORARE ONSONGO.............................................2ND PLAINTIFF

ELIZABETH GESARE OKORE...........................................3RD PLAINTIFF

WILFRED NYANGAU OGOTI..............................................4TH PLAINTIFF

VERSUS

KENYA POWER & LIGHTING COMPANY LTD...................DEFENDANT

JUDGMENT

1. In their plaint dated 27th November 2014, the plaintiffs brought an action seeking for both general and special damages against the defendant for negligence arising out of a fire outbreak in the 1st plaintiff’s commercial building situate on LR NO. Nyamira/Nyansiongo/861 (hereinafter “the suit premises”).  The 1st plaintiff was the owner of the suit premises while the 2nd, 3rd and 4th plaintiffs were his tenants who had leased the suit premises at a monthly rent of Kshs. 5000/= each. The plaintiff’s case was that on or about 30th November 2011 there was a power blackout in the entire Nyansiongo Township and that when electricity was later restored at around 10. 30 p.m., a high voltage power surge occurred that caused the power meter board installed at the 1st plaintiff’s suit premises to explode into flames that resulted in a fire which gutted down the entire building thereby occasioning not only the total loss of the 1stplaintiff’s said building but also its contents which were the property belonging to the 2nd, 3rd and 4th plaintiffs.

2. The plaintiffs attributed the fire outbreak to the negligence and/or carelessness of the part of the defendant and listed the particulars of negligence as follows:

a. Installing a defective meter board which exploded and caused fire

b. Failing to replace a defective meter board despite reports of defects

c. Failing to act instantly after receiving a report of fire.

d. Failing and/or refusing to repair and maintain the meter board on the said premises.

e. Failing to contain/reduce the high flow of electricity power or high voltage at the 1st plaintiff’s meter board in the said premises.

3. The plaintiffs also listed the particulars of loss suffered as follows:

1. 1ST PLAINTIFF

(i) Burnt down Building                          Kshs. 16,391,450. 00/=

(ii) Loss of Rent 3 years (each shop Kshs.5000/= per monthKshs. 1,620,000. 00/=

(iii) Assessment for loss costs           Kshs. 155,500. 00/=

And the 1st Plaintiff claims

2. 2ND PLAINTIFF

Burnt down fashion shop, materials and clothes, sewing machine and other business items

And the 2nd plaintiff claims                  Kshs. 2,018,340. 00/=

3RD PLAINTIFF

Burnt down bar business, beer cans, crates, beverages, sodas and etc.

And the 3rd plaintiff claims                  Kshs. 712,655. 00/=

4. 4TH PLAINTIFF

Burnt down hotel, food, cereals, utensils and etc

And the 4TH plaintiff claims                 Kshs. 100,000. 00/=

TOTAL SUM                                             Kshs. 20,997,945. 00/=

5. The plaintiffs also sought general damages for loss of business together with costs of the suit and interest thereon.

6. The 1st plaintiff’s case was that he was a regular and registered electricity consumer from the defendant company through meter board Number E24102000090-267 installed at the suit premises through which the defendant supplied electricity to his premises.

7. In its statement of defence filed on 23rd January 2015, the defendant denied that the 2nd, 3rd and 4th defendants were operating any business in the suit premises as alleged or that it was liable for the alleged loss that the plaintiffs suffered. The defendant further denied that there was any fire incident in the suit premises or that the fire was caused by an electric fault whether at the meter box or at all.

8. The defendant maintained that if at all it fitted the suit premises with electricity supply vide a meter reference Number E24102000090-267, then the said meter was at all times in good state and/or condition as at no time had the plaintiffs reported any defect on the meter box. It was the defendant’s contention that the meter box was in good condition since the time of its installation in 2005 and that if at all there was any fault that could have caused the fire then it was as a result of internal defect and/or installation of the 1st plaintiff or his agents for which the defendant could not be held responsible.

9. The defendant further stated that the plaintiffs were not entitled to the claim for special and general damages pleaded and maintained that the maintenance of meter boxes was the duty and responsibility of the 1stplaintiff or his tenants.

10. According to the defendant, if any fire broke out at the 1st plaintiff’s premises, then the same was caused by the negligence on the part of the plaintiff which it particularized as follows:

a) Failure to install electric fuses and power cut-out units so as to control electric power short circuit, electric surges and explosion.

b) Failure to install electric earth wire system to defuse any electric overflow arising from lightning or any other possible means.

c) Installing substandard and poorly insulated electric system thereby making the plaintiff’s premises potentially unsafe and prone to electric fire.

d) Failing to use qualified and registered electric technicians to carry out installation in his premises.

e) Using dangerous electric connection system in his premises thus occasioning electric explosion and fire thus causing short circuit and electric fire which caused damage to common electric transformer thus rendering the entire area and other consumers to be without electricity.

f) Poor system management and failure to constantly inspect his electric internal system leading to obvious fire which could have been prevented.

g) Exposing the lives of other electric users and consumer to danger by maintaining a defective and unstable electric wiring system within the subject area.

h) Deliberately occasioning fire to enable him pursue compensation.

Failure to insure premises for fire.

j) Failure to seek the help and expertise of the Defendant or any other qualified electrician to repair and maintain his internal electric installation.

k) Poorly handling electric system thus resulting to his house catching fire.

l) Failing to install fire control and safety measures within his premises.

m) Using quack electricians to carry out connection and installation and regular maintenance with a view to cut on costs while exposing own self to compromised safety system and substandard electric wiring system.

11. It was the defendant’s case that the plaintiffs’ suit was fatally defective and did not disclose any reasonable cause of action.

12. The hearing of the case commenced on 7th June 2016 with the testimony of the 1st plaintiff (PW1). His testimony was that he is the leasehold owner of the suit premises. He produced the leasehold title as Pexhibit 1 (a) together with the certificate of official search as Pexhibit 1 (b). He stated that he had filed the suit because the houses that he had constructed on his said plot were on 30th November 2011 burnt down due to high voltage electricity power surge.

13. He explained that on the material day, there was a power blackout in the entire Nyansiongo town for the whole day and that when power was eventually restored at about 10. 30p.m there was high voltage that ignited fire which started at the meter box installed in the suit premises before spreading to the entire building thereby reducing it to ashes and that nothing was salvaged from the building after the inferno.

14. He stated that he applied for the meter box No. E24102000090-267 from the defendant which meter box was installed on 16th January 2005. He produced the meter box application form and installation receipt as Pexhibit 2a and 2b respectively. He added that the meter box was the defendant’s property and was installed by the defendant’s technicians.

15. He stated that at one time there was a fault at the meter box which he reported to the defendant who promised to send technicians to repair it and that the suit premises had 9 separate meters all stationed at the same place on the building. He produced a receipt for meter box separation for the sum of Kshs. 23,480 as Pexibit 3. He also produced electricity bills as exhibit 4a-f together with the building plan as exhibit 5. Photographs of the remnants of the suit premises were also produced as exhibit 6. He later on reported the incident to the local police who issued him with a police abstract which he produced as exhibit 7.

16. He added that the defendant was informed about the fire incident and that it sent an emergency team came to the scene who switched off power from the transformer and took photographs of the scene.

17. He stated that the defendant promised to settle his claim out of court which promise never materialised as the defendant kept on referring him to their insurers.

18. He further testified that the suit premises were rental commercial premises which he had rented to tenants who paid a collective monthly rent of Kshs. 50,000/=. He produced rent payment receipts as exhibit 9 and claimed a total sum of Kshs. 1,620,000/= for lost income from the rent for 3 years.

19. He stated that he engaged the services of a valuer who estimated the cost of rebuilding the burnt premises at Kshs. 16,394,000/= and that the valuer charged him a total of Kshs. 155,500/= for his services. He maintained that he was not responsible for the power surge that caused the fire since power was supplied by the defendant who also installed the meter and did wiring on the suit property.

20. On cross examination, PW1 stated that he was not at the scene when the fire broke out as his residence is about 500 meters from the suit premises.  He stated that the fire started long after the tenants on the suit premises had closed their businesses and gone home. He added that his rental houses were made of iron sheets on the walls and roof but that the foundation was concrete. When asked about this tax returns to confirm his financial status, he stated that he did not have any tax returns in court but produced 6 rent payment receipts as (Exhibit 9) while stating that the rest of the receipts got burnt in the inferno and that he had no retained any duplicate receipts of his rental earnings.

21. On re-examination he explained that the houses on the suit premises were made of wood and iron sheet walls while the doors and windows were made of steel. He maintained that the fire started at the meter board before spreading to the whole building due to high voltage for which he blamed the defendant.

22. PW2 Senior Seargent Herbert Mudibo was the police officer on duty at the time of the fire. He visited the scene of the fire on the material night and testified that he attributed the fire to electricity. He also confirmed that several shops were gutted down in the inferno including a barber shop, a bookshop and a bar. He issued police abstracts to PW1 (Pexhibit 7) and other abstracts to the 2nd, 3rd and 4th plaintiffs which he produced as Pexibits 10a-10c.

23. On cross examination he stated that he did not know if any forensic investigations were conducted following the fire incident.

24. PW3 Justus Orare Onsongo was the 2nd plaintiff herein. His testimony was that he owned a tailoring shop on the suit premises and that it was his shop that housed all the electricity meter boxes. He narrated that on the date of the fire, he had closed his business early because there was a power blackout in Nyansiongo town that lasted the whole day.

25. He stated that the 1st plaintiff was his landlord and that he lived about 150 meters from the suit premises. He was able to rush to the scene and found fire burning at the meter box area of the shop but that it quickly spread to the roof and therefore he could not enter the shop to salvage anything.

26. He further stated that his shop had goods worth 2 million shillings but was not able to recover the receipts relating to the value of the goods as they (receipts) were also burnt in the inferno. He however produced a bundle of receipts as Pexhibit 11, the list of items as Pexhibit 12 and a photocopy of his ID card as Pexhibit 13.

27. On cross examination, he stated that he made a lot of money from his tailoring business but did not pay taxes to the Kenya Revenue Authority even though he paid municipal council rates. He maintained that the Kshs. 2 million that he had claimed was in respect to the stock that was in the shop. He added that he reported the fire incident to the police who issued him with a police abstract.

28. PW4 was the 3rd plaintiff Elizabeth Gesare Okore. Her testimony was that she owned a bar known as “Umoja Bar” at the suit premises which was also burnt down in the inferno. She stated that she lived about 50 meters from the suit premises and was able to rush to the scene when she got word that fire had broken out. She saw fire burning at the meter box area but she could not enter the shop to salvage anything because the fire was huge. She stated that she lost everything in the fire but produced her business licence as exhibit 15. She also produced a bundle of receipts in support of the claim that she would buy and sell alcohol at the bar as Pexhibit 16.

29. PW5, Wilfred Nyangau Ogoti was the 4th plaintiff. His testimony was that he owned a hotel in the suit premises which also got burnt in the fire incident and that he lost all the items and food. He produced a list of the items lost as Pexhibit 18.

30. PW6, Francis Maina Wabita was the loss assessment, adjustment and risk management consultant who was hired by the 1st plaintiff to prepare a loss assessment report on the suit premises/building.

31. His testimony was that he visited the scene of the fire on 1st December 2011 and established that the fire was caused by electricity power surge going by the position of what he called “the seat of fire”. He blamed the defendant for the fire while stating that the defendant is the sole supplier of electricity. He estimated the cost of re-building the 1st plaintiff’s premises at Kshs- 16,391,450.

32. He also estimated the 2nd3rd and 4th plaintiffs’ loss at Kshs. 2,018,340, Kshs. 700,655/= and Kshs. 100,000/= respectively. He took photos which he attached to his report (exhibit 20) and stated that the 1st plaintiff paid him Kshs. 155,500/= for his work as shown in receipt marked as exhibit 19 and an additional Kshs. 50,000/= for court attendance.

33. On cross examination he stated that there was no building at the scene of the fire when he visited it as it had been razed down but that he got information about the building from the 1st plaintiff after which he hired an engineer to prepare for him a bill of quantities even though he did not know if the said engineers were qualified quantity surveyors. He stated that he arrived at the amount of loss suffered by the 2nd, 3rd and 4th plaintiffs based on their information that he plaintiffs had given him even though they did not furnish him with any documents of proof. He assessed the total loss for all the plaintiffs at Kshs. 19,222,445/=.

34. On re-examination, he stated that he visited the scene and that the amount on his assessment report was in conformity with what he saw on the ground.

35. On further re-examination by the court, PW6 stated that the priced bill of quantities is the cost of reconstruction of the building and confirmed that even though the 2nd, 3rd and 4th plaintiffs did not give him bank statements to assist him in the assessment, he relied on what was on the ground. He produced the photographs as Pexhibits 21a, b, c and d. This marked the close of the plaintiffs’ case.

36. In its defence the defendant presented the evidence of its employee one Kepha Kambuni Ondara (DW1) who stated that he investigated he fire incident and made a report (Dexhibit 1) wherein he reported that the fire was not caused by an electric fault because had that been the case, then it could have spread to other buildings and not just the 1st plaintiff’s premises. He denied the allegation that reports had been made to their offices concerning a defect in the meter boxes prior to the fire incident.

37. On cross examination he confirmed that the 1st plaintiff was one of their customers to whom they were the sole supplier of electricity. He confirmed that there was a power blackout on the day in question and an “on and off” power surge which their technical team had corrected.

38. He stated that their investigations revealed that the fire could have been caused by an arsonist or by tenants who could have left electric gadgets on during the blackout. He added that there was no conclusive evidence on the actual cause of the fire and confirmed that the entire building, which was leased out to tenants for commercial purposes, was completely burnt down.

39. He also confirmed that his report showed that the high voltage of electricity was experienced in the area from about 7 pm. to 9 p.m. which led to the “on and off” surge in electricity supply and stated that his conclusion was that something could have gone wrong at the meter box or at the salon where the meter box was housed. He also confirmed that the defendant was responsible for the supply of electricity and the care of the meter box.

40. On cross examination by Mr. Otieno counsel for the defendant, DW1 stated that no other customer complained of fire on the material date except the 1st plaintiff.

41. On re-examination by the court, he confirmed that high voltage in electricity supply can cause fire and destroy electric gadgets. This marked the close of the defence case after whichparties agreed to file written submissions before judgment.

Analysis and determination.

42. I have considered the pleadings filed herein, the evidence tendered during the hearing and the parties’ respective written submissions. I discern the salient issues for determination to be as follows:

1) Whether the 1st plaintiff owned the suit premises known as Nyansiongo Township/861.

2) Whether the 2nd, 3rd and 4th plaintiffs were the 1st plaintiff’s tenants in the suit premises and if so, whether they conducted their businesses therein.

3) Whether the defendant supplied/connected electricity to the 1st plaintiff’s suit premises.

4) Whether the suit premises caught fire and were burnt down on 30th November 2011 and if so if the cause of the fire was electricity.

5) Whether the plaintiffs suffered losses in the inferno.

6) Whether the defendant is liable to the plaintiffs for the said losses.

7) What orders should issue.

8) Who should shoulder the costs of the suit?

43. On the 1st, 2nd,3rdand 4th issues listed hereinabove, I find that it was not disputed that the 1st plaintiff was the registered leasehold owner of the suit premises as shown in the copy of the title deed and certificate of official search which were produced as Pexhibit 1a and 1b respectively. Similarly, it was not disputed that the said premises were for commercial purposes and were leased out to the 2nd, 3rd and 4th plaintiffs who conducted their businesses therein. Indeed, the 1st plaintiff testified that the 2nd, 3rd and 4th plaintiffs were his tenants while DW1 also confirmed that there were tenants who carried out different businesses in the premises and in fact he attributed the cause of the fire to the fault of the tenants whom, he alleged, could have left their electric gadgets on and unattended during the blackout thereby causing the fire when electricity was eventually restored.

44. It was equally not disputed that the defendant supplied electricity to the suit premises. DW1 confirmed that the 1st plaintiff was one of their customers through meter reference no. E24102000090-267. DW1 also confirmed that the defendant was the 1st plaintiff’s sole supplier of electricity and was responsible for maintaining for the meter box.

45. It was equally not disputed that the suit premises caught fire on the material date, being 30th November 2011, and that as a result of the said fire, the entire building and its contents were razed down.

46. My view is that the main issues in contention in this suit are the last 4 issues listed hereinabove and I will now embark on dealing with each one of them in detail.

47. It goes without saying that if the 1st plaintiff’s entire building and its contents were gutted down, then the owner of the building and his tenants suffered losses as a result of the fire. The critical issues arising from the above is the extent of the losses, the cause of the fire and who was responsible for it.

48. On the issue of the cause of the fire, the plaintiffs testified that it started from the meter box following what they described as a high voltage surge in the electricity supply to the area on the material day. The evidence of PW1, PW3, PW4 and PW5 was there was a power blackout in the entire Nyansiongo Town for the whole day on 30th July 2011 followed by a power surge that occurred after electricity was restored later that same day. This claim by the plaintiffs was not disputed by the defendants’ sole witness DW1 who confirmed that indeed there was a power blackout that day and he also confirmed the power surge claim. DW1 had the following to say on the power supply on the material day:

“High voltage was experienced from 7 p.m. to around 9 p.m. There was an on and off surge in the area but it was corrected. My report concludes that something could have gone wrong with the meter box or at the salon where the gadgets could have been left on.”

49. From the above testimony of DW1, it is clear to me that the plaintiffs’ claim or theory that the power surge was responsible for the fire was plausible and not far-fetched. Indeed the plaintiffs claimed that the fire started at the meter box before spreading to the entire building and I therefore find that the testimony of DW1 corroborates the plaintiffs’ evidence on electricity as the most probable cause of the fire as opposed to the defendant’s contention that the fire was caused by an arsonist or by electric gadgets that were not switched off. No evidence was adduced before this court to show that the fire was caused by an arsonist. I further find that it was most unlikely that an electric gadget that had not been turned off could have been the cause of the fire because not only was it not established by the defendant if such electric gadget actually existed, but it was also undisputed evidence that there was a power blackout in the entire town the whole of that day and therefore the possibility of an electric gadget having been left on could not arise.

50. It is my finding that it was proved, on a balance of probabilities, that the power surge or fault in electricity supply caused the fire in the 1st plaintiff’s building. It is trite law that proof in civil cases is on a balance of probabilities and in this case, I find that the plaintiffs discharged their burden of proof on the cause of fire. I further find that the circumstances of this case were such that the defendant’s argument that the plaintiffs should have called an expert witness to testify on cause of the fire was not well founded as such a witness would only have been necessary if the case was to be proved beyond reasonable doubt which is not the standard of proof envisaged in this case. I further find that the defendant’s theory/claim that the fire was caused by acts of arson or electric gadgets that were not turned off, collapses when juxtaposed with cogent evidence of high voltage power surge as the actual cause of the inferno.

51. Flowing from my finding on the cause of the fire is my further finding that the defendant was responsible for it because it was not in dispute that he was the sole supplier of the meter box and electricity to the 1stplaintiff’s premises.

52. The plaintiffs claimed special and general damages arising out of the said fire incident. It is however trite law that damages flowing from tort are generally awarded in a lump sum following a once and for all assessment of the losses. In the case of Broome v Cassell & Co [1972] AC 1027, 1070damages was defined as the pecuniary compensation obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at one time, unconditionally and in sterling.

53. The appropriate measure of damages was defined in Livingstone v Rawyards Coal Co (1880) 5 App Cas.25 at 39 per Lord Blackburn, thus;

“that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is not getting his compensation or reparation”.

54. Macgregor on Damages para 1-021 18th Edition states:

“The object of an award of damages is to give the claimant compensation for the damage, loss or injury he has suffered. The heads or elements of damage recognized as such by the law are divisible into two main groups: pecuniary and non-pecuniary loss. The former comprises all financial and material loss incurred, such as loss of business profits or expenses of medical treatment. The latter comprises all losses which do not represent an inroad upon a person’s financial or material assets such as physical pain or injury to feelings. The former being a money loss, is capable of being arithmetically calculated in money, even though the calculation must sometimes be a rough one where there are difficulties of proof. The latter however is not so calculable. Money is not awarded as a replacement for other money, but as a substitute for that which is generally more important than money: it is the best that a court can do”

55. In the instant case, the plaintiffs made a specific claim for the value of the items lost in the fire including, in the case of the 1st plaintiff, the total cost of reconstruction of his building. Under the above circumstances, a separate claim for general damages would be untenable.

56. It is also trite law that special damages must not only be pleaded but must be specifically proved. See Maritim & Another V Anjere (1990-1994) EA 312. It is therefore important, at this juncture, to determine whether the plaintiffs specifically proved the special damages claimed.

57. The 1st plaintiff claimed the sum of Kshs. 16,391,450 being the estimated cost of reconstruction of his building. The 1st plaintiff’s claim and indeed, all the other plaintiffs’ claims were anchored on the evidence of PW6, Francis Maina Wabita, a loss assessment, adjustment and risk management consultant who prepared and presented a loss assessment report in court as Pexhibit 20. In respect to the 1stplaintiff’s claim of Kshs. 16,391,450 for the cost of reconstruction of the suit building, PW6 stated that he hired an engineer going by the name Mokubo Building and Engineering Works Ltd to prepare for him a priced bill of quantities that estimated the cost of reconstruction at Kshs. 16,391,450. On cross examination, PW6 stated as follows:

“In my work experience, a quantity surveyor draws bills of quantities. I do not know if Mokubo Builders and engineers are qualified quantity surveyors.... I am not a quantity surveyor.”

58. From the above testimony of PW6, it is crystal clear that the assessment report on estimated cost of reconstructing the 1st plaintiffs building was prepared by a person whose qualification as a quantity surveyor was not known. The said Mokubo Builders and Engineers who prepared the estimates were not called as witnesses in the case. PW6 admitted that he lacked the expertise of a quantity surveyor that would have enabled him to vouch for the estimates contained in his said assessment report.

59. A perusal of Pexhibit 20 at page 20 shows three receipts issued by M/s Mukubo Builders and engineering works dated 2nd June 2006, 18th December 2006 and 24th February 2006 in the sums of 5,900,000/=, 5,000,000 and 5,491,450/=respectively all amounting to Kshs. 16,391,450 which is the alleged estimated cost of reconstruction. The purpose of the said receipts all issued in 2006, was not made clear to this court considering that the fire incident took place in November 2011 and that at the time of the hearing of this case, no reconstruction work had been carried out by the 1st plaintiff so as to necessitate the issuance of the said receipts. In any event the purpose for which the said receipts were issued has not been indicated.

60. From the above foregoing, I am not satisfied that the expert evidence provided by PW6 was helpful in determining the extent of the 1st plaintiff’s loss going by his own admission that he was not a quantity surveyor and further, his own admission that he did not know if the engineers he contracted to carry out the priced bill of quantities were qualified quantity surveyors.

61. In the case of Mutonyi Vs. Republic Cr. Appeal No. 92 of 1981, evidence of an expert was described in the following terms:

“expert evidence is evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the concussions he has reached on the basis of his knowledge, form facts reported to him or discovered by him by tests, measurements and the like.”

62. In the instant case, I find that no expert evidence was provided by the 1st plaintiff, on the estimated cost of reconstruction of the suit premises going by the admission of PW6 that he was not a quantity surveyor.

63. The 1st plaintiff also claimed loss of rents for 3 years and I note that even though the loss of rent was specifically proved through the production of receipts which were marked as Pexhibit 9, I will award the1stplaintiff rent due to him for only 1 year taking into account the fact that he ought to have taken urgent measures to reconstruct his building in order to mitigate his loss on rents due within a reasonable time.The rule on mitigation of losses states that there is no recovery for loss which the claimant ought to have avoided. The rationale for the rule is that the extent of the damage resulting from a wrongful act, whether tort or breach of contract, can often be considered lessened by well-advised action on the part of the person wronged. In such circumstances the law requires him to take all reasonable steps to mitigate the loss consequent on the defendant’s wrong, and refuses to allow him damages in respect of any part of the loss which is due to his neglect to take such steps. Under this rule, persons against whom wrongs have been committed are not entitled to sit back and suffer loss which could be avoided by reasonable efforts or to continue an activity unreasonable so as to increase the loss. To this end see the speech of Viscount Haldane L.C. in the leading case of British Westinghouse Co v Underground Ry [1921] Ac 673 at 689;

“The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a claimant the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”

64. In the instant case, it is apparent that the 1stplaintiff literally sat on his laurels and did not take any steps towards mitigating his loss by reconstructing his building after the fire incident and under those circumstances, this court is of the view that an award Kshs. 540,000/= for one year’s loss of rent would be reasonable compensation. It worthy to note that as at the time this case was being heard in 2016, 5 years after the fire incident, the 1st plaintiff had not taken any steps towards reconstructing his building.

65. The 2nd, 3rd and 4th plaintiffs stated that all their business records were destroyed in the fire and that the loss they incurred were tabulated from their memory of the items they had in their respective businesses.

66. It was not in dispute that the 2nd, 3rd and 4th plaintiffs conducted various businesses in the suit premises. PW4 produced his business licence as Pexhibit 15. The police issued the plaintiffs with police abstracts in respect to the loss their businesses incurred following the fire outbreak. Having found that each of the plaintiffs suffered losses as a result of the fire, the issue that needs to be determined by this court is the extent of the loss suffered by each plaintiff.

67. The 2nd, 3rd and 4th plaintiffs claimed Kshs. 2,018,340, 700,655 and 100,000 respectively being the value of stock, goods and furniture in their respectively businesses. PW6 testified that he was able to tabulate each of the plaintiff’s loss based on the information given to him by the plaintiffs who did not furnish him with any bank statements, income tax returns, invoices or municipal council rates payment receipts. Needless to say, I have already noted in this judgment the plaintiffs claimed that most of their documents were destroyed in the fire.

68. My humble view is that the tabulation and assessment report of PW6 notwithstanding; it is not possible for this court to determine with certainty the actual loss suffered by the plaintiffs in view of the fact that the assessment report was based purely on estimates not backed by any tangible or cogent documentary evidence in its support. I am however satisfied that the 1st plaintiff’s claim for the sum of Kshs. 155,500/= for the cost of the assessment report was specifically proved and I hereby allow the claim.

69. Having found that each of the plaintiffs’ claims was not specifically proved to the satisfaction of this court for lack of tangible documentary proof, the issue that then arises is whether the plaintiffs still have a remedy before this court. The common practice in our courts has been to award victim’s damages even in circumstances, such as the instant case, where quantification is difficult.

70. In the case of Wambua vs. Patel & Another (1980) KLR 336 cited with approval in Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko C.A No. 203/2001 it was held:

“We appreciate the expectation of Mr. Inandar that account books, Income tax returns or audited accounts would have put the claim beyond doubt if it was specifically pleaded as special damages or even as general damages. But there are dicta in decided cases that a victim does not lose his remedy in damages merely because the quantification is difficult.”

71. Taking a cue from the dictum in the above cited case and bearing in mind the circumstances of this case, I hereby enter judgment for the plaintiffs against the defendant as follows:

1st plaintiff:

a) Burnt down building                 Kshs. 2,000,000/=

b) Loss of rent for 1 year             Kshs. 540,000/=

c) Assessment for loss                Kshs.     155,500/=

Total                                                   Kshs.       2,695,500/=

2nd plaintiff:

Burnt down fashion shop Kshs. 400,000/=

3rd plaintiff:

Burnt down bar                              Kshs. 200,000/=

4th plaintiff:

Burnt down hotel                          Kshs.     40,000/=

Grand total                                     Kshs. 3,335,500/=.

72. The plaintiffs are also awarded the costs of this suit and interest thereon.

Dated, signed and delivered in open court this 3rd day of October, 2017

HON. W. A. OKWANY

JUDGE

In the presence of:

Mr. Babu  for the Plaintiffs

Mr. Otieno for Defendant

Omwoyo: court clerk