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Court of AppealDismissedCivil Appeal No. 329 of 2014· [2017] KECA 474 (KLR)

Fridah Kageni Julius v Kenya Power & Lighting Company Limited [2017] KECA 474 (KLR)

Court of Appeal of Kenya
23 June 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
3,574 words in judgment
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The bottom line

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Kenya Power wrongfully disconnected electricity, but the landlord still lost her Kshs.2 million claim because she couldn't strictly prove her rental losses.

What this practically means

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Executive summary

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This was a second appeal by Fridah Kageni Julius against the judgment of Aburili, J. in the High Court, which had set aside a trial magistrate's award of Kshs.2,000,000/= to her as special damages for loss of rental income following a disconnection of electricity supply to her rental premises. The Court of Appeal, in a single judgment of the court delivered by Musinga, Gatembu Kairu and Murgor, JJ.A., unanimously dismissed the appeal and affirmed the High Court's decision. The Court held that the learned judge erred in finding that no supply contract existed: the respondent had expressly admitted the contract in its defence, and an admitted fact requires no proof; the appellant's payment of the balance and deposit was uncontroverted, and the bills in her husband's name did not sever the nexus. The Court further found, contrary to the High Court, that the respondent breached the contract by disconnecting supply for a bill later shown to have been erroneously demanded, with no evidence offered by the respondent to justify the disconnection. However, the appellant's claim failed on proof of loss: her evidence on tenants and rent was inconsistent with her pleadings, uncorroborated by the caretaker or rent records, and special damages must be pleaded and strictly proved even where the defendant adduces no evidence. The Court applied its decision in Mohammed Ali v Sagoo Radiators and Ratcliffe v Evans. Each party was ordered to bear its own costs of the appeal and the lower courts' proceedings.

Key legal issues

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01

Existence of the power supply contract

Holding

The contract existed because the respondent expressly admitted it in the defence, and admitted facts require no proof; the learned judge erred in holding otherwise

Reasoning

The plaint pleaded a contract for supply to premises 'within Kahawa North being Plot No. F6' and the defence admitted its existence. The bills in the name of the appellant's husband at Githurai Kimbo did not break the nexus, since the account name was supplied by the appellant at the respondent's request. The respondent adduced no contrary evidence on payment of the balance and deposit.

p. 5
02

Breach of the power supply contract

Holding

The respondent breached the contract by disconnecting power for sums wrongly demanded, which were later shown to have been erroneously demanded

Reasoning

The respondent disconnected supply in August 2003 for an alleged bill of about Kshs.256,889.11, but investigations required payment of only Kshs.30,441/= which the appellant paid. The respondent called no witness to justify the disconnection, and a later 'DEBIT AFTER REBILLING' of the same sum in 2008 confirmed the demand was erroneous. The appellant proved contract and breach on a balance of probabilities.

p. 5
03

Proof of loss of rental income and future rent

Holding

The appellant failed to prove special damages; the appeal on quantum of loss fails notwithstanding the finding of breach

Reasoning

The appellant's evidence was internally inconsistent with her pleadings: she said premises were empty from January 2003 to January 2005, yet disconnection was only in August 2003 and supply resumed December 2004, and some tenants left before the disconnection. She did not produce rent books or receipts, and the caretaker who could corroborate was not called. Breach without strict proof of special damage yields no award.

p. 7

Legal principles established

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  • A fact admitted in the pleadings is not a fact in issue and requires no proof
  • Special damages must be both pleaded and strictly proved, even where the defendant offers no evidence
  • A plaintiff must prove special damages to the required standard even in formal proof where the defendant adduces no evidence
  • The degree of certainty and particularity required in pleading and proving damage is regulated by the character of the acts producing the damage and the circumstances

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear their own costs of the appeal and of the lower courts' proceedings

Authorities

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Cases cited (2)

  • Mohammed Ali & Another v Sagoo Radiators Limited
    [2013] eKLR
  • Ratcliffe v Evans
    (1892) 2 QB 524
On appeal from
High Court of Kenya at Nairobi
HCCA. No. 118 of 2010
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable provisions of the Civil Procedure Act (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fridah Kageni Julius v Kenya Power & Lighting Company Limited [2017] KECA 474 (KLR)", Case Analysis (2017). Civil Appeal No. 329 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/474/eng@2017-06-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.