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

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:   MARAGA, AZANGALALA & KANTAI, JJ. A)

CIVIL  APPEAL NO.  313   OF 2012

consolidated with

CIVIL APPEAL  NO.  315 OF 2012

BETWEEN

KENYA POWER & LIGHTING COMPANY LIMITED....................APPELLANT

AND

PAMELA AWINO OGUNYO....................................................... RESPONDENT

(Appeal from a Judgment and Decree of the High Court of Kenya atKisii  (R. L. Korir,  J)  dated 21st May,  2005

in

KISII  HCCA  No.  168  OF 2009

**********************************

JUDGEMENT OF THE COURT

The respondent, Pamela Achieng  Ogunyo, filed suit against the  appellant, Kenya Power & Lighting  Company Limited at  the Senior Principal Magistrates Court, Migori, as a result of a sugar cane crop that had been destroyed  by fire.  A similar suit was  instituted by the respondents' co-wife, Diana Achieng Ogunyo,  against the appellant on the same  cause of action.  It was agreed  in that court that evidence taken in the one  suit would apply to the other and  the same position was adopted  in the two resultant appeals that  were filed at the High Court of Kenya, Kisii.

When this appeal came up for hearing before us we ordered the same to be consolidated with Civil Appeal  No. 315 of 2012 and both appeals  were heard in this appeal.

What is the genesis of the issues that led to the said suits filed in the Migori court  and the resultant appeals?

It was alleged in the respective plaints that the respondents (Pamela and Diana) were sugar cane farmers contracted by South Nyanza Sugar Company Limited (Sony)  and that on 29th May, 2008 electric cables on the Gogo-Kisii power line owned by the appellant fell on the respondents' sugar cane crop causing fire which burnt the sugar cane crop that was  then ready awaiting harvesting and that, as a result, the  respondents had suffered damage.  Particulars of damages were given in the respective plaints as follows:

“PARTICULARS OF DAMAGES

1Ha  of plant crop = 150 tons yield

0. 2Ha crop destroyed = 30 tones

Cost of 1 ton of sugar cane = 2,500. 00

Thus damage and loss suffered = 30 X 2,500. 00 = 75,000. 00”

The appellant filed respective statements of defence where it denied owning the power line at all and in any event attributed negligence to the respondents who according to the appellant, had planted the said crop  on a way – leave  contrary to provisions of law. The suits were heard by the learned Resident Magistrate (Kibet Sambu) who, in the judgment delivered  on 7th September, 2009 allowed the claims entering judgment for the respondents accordingly.   The appellant being dissatisfied with those findings filed High Court Civil Appeal Nos. 167 and 168 of 2009 at the High Court of Kenya, Kisii but those appeals  were dismissed on 21st September,  2012 by R. Lagat – Korir, J, who found them not to have merit. Those orders provoked these appeals which we are reminded 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 or, in the first appeal, that the High Court failed in its  duty of analysing and re-evaluating the  evidence to reach its own conclusions on the same.  See for example Maina v Mugiria [1983] KLR 79 where this court considering that issue of jurisdiction held that on a second appeal only matters of law may be taken.

The grounds raised in the Memorandum of Appeal are similar. The complaint in the first ground is that the learned judge erred in failing to hold that what was before  the court was a special damage claim which required specific pleading and proof. The second ground states that the High Court erred in failing to correct an error in the trial magistrates court while in the third ground the High Court on first appeal is faulted for allegedly not stating by what amount special  damages should have been  reduced. It is also stated that the court erred in shifting  the burden of proof. The issue raised in the fourth ground is not dissimilar to the third  ground and in the last ground the learned judge is said to have erred in awarding the  respondents costs when there  were alleged concerns on the  manner the trial magistrates judgement   was rendered.

To our mind the grounds of  appeal that raise legal issues  calling for our consideration  are whether the claim before the trial court was a special damage claim and whether the same was pleaded and proved  as required in law.   The other would  be whether the standard of  proof was shifted contrary to law where the position is that the burden of proof is on the party  making the allegation.

Mr. O. M. Otieno, the learned counsel for the appellant consolidated all  grounds of appeal and took  them together.   Counsel submitted that  the claim was in the nature of a special damage claim which in  his view had neither been specifically  pleaded nor strictly proved. According to counsel the cumulative claim (in both suits before the trial court) of Kshs. 150,000/= was subject to  deductions of farming inputs  by Sony and the respondent  could not be awarded the whole claim. In any event, wondered counsel, how could the learned  judge in the first appeal blame  the appellant for not providing  guidance on what was due to Sony – when it was the  respondent who should have provided such proof.  Counsel blamed the High Court  which  to him did not re-evaluate  the evidence to reach its  own conclusions and for all these the appeals should  succeed.

Mr. R. Abisai, the learned counsel for the respondent countered   the appellants' submissions by pointing out that there was a specific pleading in the plaint and proof was provided by the oral and documentary evidence of an Agricultural Officer  who visited the relevant farms and assessed the value of the damaged crop and wrote a report which  he duly  produced in court as part of the evidence. That, to counsel, satisfied the principle of specific pleading and strict proof on a  claim for special damages which he readily conceded the claims  were.  On inputs due to Sony it was counsels' submission that the respondent had a contractual duty to pay Sony what was  due to it and that was not  dependent on the success or  otherwise of the suit against  the appellant. Counsel further  submitted that the appellant had a duty to prove that the sugar crop had been planted on a wayleave contrary to  law which to counsel had  not been done through any evidence by the appellant.

On whether there was specific pleading and strict proof as required in law we have already set out in this judgement the  pleading which gave particulars of damage in specific details stating production of sugar cane crop per hectare; the acreage of crop damaged; the cost of a tonne of sugar cane crop and finally  the loss suffered being Kshs. 75,000/= of damaged crop for each  of the two respondents in the suits before the trial court.  The respondent called an expert witness who was the Divisional Agribusiness & Development Officer, Awendo Division,  who testified that she had  visited the relevant farms and assessed the damaged crop reaching a conclusion that each  claimant had suffered loss of Kshs.  75,000/=  for the damaged cane.  She produced  that report in court as part  of the evidence and confirmed  that it was through her training and expertise that she  was able to reach those conclusions. She also confirmed that the damaged  crop had been carted away and could not have been harvested  to be of any good to Sony.   The trial magistrate found that the  respondent's crop had indeed been  damaged by fire and that the appellant had not rebutted this evidence at all.   The High Court, on first appeal, held as much.

On our part, and having considered the pleadings, evidence and the material that was placed before the trial court, we agree that the two courts below were entitled to hold, as they did,  that the claim which was a  special damage claim was specifically pleaded and strictly proved as  was required in law.  At no  time was the burden shifted  as alleged by the appellant at all.  And the complaint that  the respondents were being  overcompensated had no basis  in law at all.   As properly  held by the first appellate court the appellant had not provided any guidance on  the amount to be deducted  and payable to Sony which it claimed to be the case and, in any event, the relationship between the respondents and  Sony was a contractual one and payments due to the latter were not at all dependent  on the suits that were before the trial court.

We note, in any event, that the appellant made various allegations in its statement of defence against the respondents.   These included,  inter alia, that the appellant was not the supplier of electricity in the stated region where fire damage took place; that the damaged crop was illegally planted in an area reserved for the appellant  as a way-leave for its power lines and electric cables and that the respondents had failed to leave adequate  space between the crops and electric  poles so as to prevent the possibility of the crop being burnt in the  event that a fire broke out.

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 .  In Janet Kaphiphe Ouma & Another  v Marie Stopes International Kenya (Kisumu) HCCC No.  68 of 2007 Ali-Aroni, J citing Edward Muriga through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 had this to say of the said provisions of the Evidence Act:

“In this matter; apart from filing its  statement of defence the defendant did not adduce any evidence in support of assertions made  therein. The evidence of the 1st Plaintiff and that of the witness remain  uncontroverted and the statement  in the defence therefore remains  mere allegations.  Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”

A similar issue arose in Margaret Njeri Muiruri (Being the Administratrix of the  Estate of the late Joseph Muiruri Gachoka (deceased)) v Bank of Baroda (Kenya) Limited [2014] e KLRwhere  this court found as follows:

“The trial court held that the appellant, because she is the one who  claimed that the bank acted without the minister's approval, was the one to adduce evidence to prove this assertion.With respect, this is not the correct position.   It is generally true he who asserts  must prove.  That much is contained in Section 108 of the Evidence Act.

However, Section 112 of the Evidence Act further provides that:

“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the  burden of proving or disproving that fact is upon him.”

And in Munyu Maina v Hiram Gathiha Maina [2013] e KLRit was held of Section 112 of the said Act:

“Under Section 112 of the Evidence Act, when any fact  is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that  fact is upon him.”

The respondents were able to show through evidence that the cables that damaged their crop were owned by the appellant.   The appellants' own witness stated in evidence that:

“..I cannot confirm that the power lines shown for certain belong to Kenya Power  & Lighting Co. Ltd.   The lines are same with those Private enterprises like Sony Sugar who have their own lines...”

The witness was therefore not categorically stating  that the  cables which he confirmed  witnessing on a visit to the farms as having damaged  the crop were not owned or  managed by the appellant.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.

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.

Dated and delivered at Kisumu this 23rd  day of April, 2015.

D. K. MARAGA

………………..……

JUDGE OF APPEAL

F. AZANGALALA

………………………

JUDGE OF APPEAL

S. ole KANTAI

……..……………..

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

DEPUTY REGISTRAR