High Court affirms that claimants must prove their claims

Summary
In the case of Matthew Hippolity Lyamula trading as Glomally Investments Ltd. vs. Kenya Power and Lighting Ltd. (Civil Appeal E029 of 2021) [2024] KEHC 2217 (KLR), the High Court of Kenya (the Court) dismissed an appeal in which Matthew Hippolity Lyamula trading as Glomally Investments Ltd. (the appellant) claimed that Kenya Power and Lighting Ltd. (the respondent) was liable, arising from alleged negligence, for a fire that broke out in the appellant’s yard. The court was categorical that a person who raises an allegation must prove the said allegation and agreed with the decision of the subordinate court in dismissing the appellant’s suit. The court also touched on the features of the defence of vis major. The advocate for the successful party was Okello Kinyanjui and Company LLP.

Background
By a plaint dated the 27th of January, 2017, the appellant filed suit in the subordinate court claiming that on or about the 28th January, 2015, a short circuiting at the respondent’s overhead electricity cable near the appellant’s premises caused fire at the said premises which completely destroyed the appellant’s goods, stock in trade, equipment and assets. The appellant claimed that this loss was as a direct result of negligence and/or failure in the respondent’s duty of care and regular maintenance and inspection of their electricity cables and lines and the appellant thus held the respondent fully liable for the damage and losses suffered. The appellant assessed its loss at Kshs.6,030,607.00 comprising of adjusted loss, loss adjusters fee and investigation fees which it claimed together with interest and costs of the suit.

The respondent filed a defence denying the appellant’s claim and urging the court to dismiss the claim. It stated that it had no control in the manner in which the accident happened because as claimed by the appellant, the accident was caused by sudden heavy winds which caused the wires to come into contact with one another. It averred that the alleged injuries occasioned to the appellant were caused and substantially contributed to by the said acts which were not contemplated nor foreseeable as the respondent’s electricity cables are built on clearly marked wayleaves and which cables are periodically and regularly serviced. That the fact that the gusto of the wind interrupted their normalcy was beyond its control and contemplation. Without prejudice, the respondent stated that the accident was wholly caused or substantially contributed to by the negligence of the appellant in building and erecting its premises on wayleaves and under direct electrical lines and/or a transformer.

The subordinate court heard the case, agreed with the respondent that there was no evidence of causation and accordingly dismissed the appellant’s case. The appellant, aggrieved by the decision of the subordinate court preferred an appeal to the court.

Findings
The court, after re-evaluating the evidence agreed with the trial magistrate that none of the witnesses presented by the appellant was able to demonstrate that the fire was caused by the respondent’s negligence.

The court, citing with approval the High Court’s previous decision in Brite Print (K) Ltd & George Maina Kingori v Barclays Bank (K) Ltd [2014] eKLR held that it is trite that in order to prove negligence, a plaintiff had to prove that the defendant owed it a duty of care and that the duty was breached and that it suffered loss and damage as a result of such breach. The court, while citing previous decisions, observed that the respondent owed the appellant and every Kenyan a duty of care to secure its power lines so as not to cause damage to the public. However, the court was categorical that the appellant had not brought any evidence to prove that the respondent was actually in breach of its duty of care. In the words of the court, “the burden to prove a claim is on the person who alleges it and at no instance does it shift to the defendant.” The court also held that had the appellant surmounted its burden and proved negligence on the part of the respondent, the burden would have shifted to the respondent to prove the defence it asserted, i.e., vis major.

Citing with approval the High Court’s previous decision in Redemptor Ndunge Ndawa (Suing in his capacity as the Administrator and legal representative of the estate of Christopher Muloki Masila- Deceased v Solomon Gikaru Kariri [2020] eKLR, the court went on to elucidate that for the defence of vis major to apply the cause must be external and in particular involve natural disasters and it must be entirely unpredictable. The event must be so unusual that it concerns the exceptional nature to an elemental force and that it cannot be averted by economically feasible measures or by reasonable precautions.

Our comments
The ruling was good. It touched on the burden of proof that anyone making a claim in our courts must surmount. The court correctly placed the burden on the plaintiff to prove its claim, which we believe is in consonance with section 107 of the Evidence Act, which provides as follows:

1. Whoever desires any court to give judgment as to any legal right dependent on the existence facts which he asserts must prove that those facts exist.

2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

The court’s elucidation on the principal of vis major is also very helpful as it sets out the parameters within which such a defence can be successfully raised.

The decision can be found on the following link, i.e., https://1drv.ms/b/s!AoBLduXPOXm3heJ9VLGMDzF_55kv0g?e=FtYDTK