Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR)

The Court examined each of the six heads of loss: damaged equipment, fuel costs, diminished productivity, condemned fish exports, stabilizers and loss of business. For each, it found the evidence absent, tenuous or attributable to other causes such as rats damaging wires or damage in transit. Statements of accounts produced without more do not constitute proof; the colossal sums claimed demanded strict proof with credible documentary and oral evidence.

The appellant conceded the general rule and relied on a Nigerian authority to invoke exceptions. The Court held that writing letters and receiving promises of investigation, with a blame game between the parties, does not amount to oppressive or vindictive conduct; the appellant bore the burden of leading evidence to bring its case within the exceptions and failed to do so.

Rule 29(1) of the Electric Power Rules contemplates faults, fittings and leakages in the supply line warranting notice of discontinuance, not overloading or under-loading. However, the respondent's correspondence admitted under-voltage complaints and promised remedial action, and its eventual installation of a 1000 KVA transformer was an admission of wrongdoing. The liability finding was therefore sustained on the contract, not on the statute.

Costs follow the event but are discretionary. The trial court found liability but awarded no damages, yet still gave the appellant costs without explaining its reasoning. In the absence of reasons the appellate court cannot tell whether the discretion was exercised judicially and must intervene. Given partial success on both sides, the just order was that each party bear its own costs.