Kenya Power & Lighting Company Limited v Pamela Awino Ogunyo [2015] KECA 761 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Whether the special damages claim was specifically pleaded and strictly proved
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.
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.
Whether the burden of proof was shifted contrary to law
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.
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.
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.Appeals dismissed
- 2.Costs of the appeals awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
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
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
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.
Issues in the judgment
#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
The respondent's name appears as 'Pamela Awino Ogunyo' in the heading but as 'Pamela Achieng Ogunyo' in the body of the judgment
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.
- Musyimi v Muasya & 2 others (Civil Case E188 of 2022) [2026] KEMC 420 (KLR)[2026] KEMC 420 (KLR)16 Jun 2026applied
- Gikari v Abubakar & 2 others (Civil Case E012 of 2023) [2026] KEMC 283 (KLR)[2026] KEMC 283 (KLR)16 Jun 2026applied
- Kimweli v Dreamline Express Limited & another (Civil Case E225 of 2021) [2026] KEMC 310 (KLR)[2026] KEMC 310 (KLR)9 Jun 2026applied
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.