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Court of AppealDismissedCivil Appeal No. 15 of 2016 (consolidated with Civil Appeal No. 56 of 2017)· [2019] KECA 105 (KLR)

Joseph Wang’ethe v Ew [2019] KECA 105 (KLR)

Court of Appeal of Kenya
6 December 2019
HOHannah OkwenguFSF. SichaleSKS. ole Kantai
4,704 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed Kenya Power and a landlord must jointly pay a boy electrocuted by dangerous power lines near his home.

What this practically means

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Executive summary

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This consolidated first appeal concerned a five-year-old boy, BM, who was electrocuted in December 2011 while on the balcony of a third-floor flat, suffering amputation of his right upper limb and burns. His mother sued Kenya Power and Lighting Company Limited and the landlord, Joseph Wang'ethe. The High Court (Aburili, J.) found both defendants negligent, apportioned liability at 70% against Kenya Power and 30% against the landlord, held them jointly and severally liable, and awarded total damages of Kshs. 9,349,660, comprising general damages for pain and suffering, loss of earning capacity, Kshs. 5 million for a bionic arm, and special damages. Both defendants appealed. Kenya Power argued it should bear lesser liability, that the landlord was more culpable, that the damages were excessive and speculative, and that future medical expenses were not properly pleaded. The landlord argued that only Kenya Power owed a duty of care, that the mother and minor were negligent, and that he was condemned unheard. The Court of Appeal, in a single judgment of the court, dismissed both appeals. It held that the minor, being of tender years, could not be contributorily negligent, that no negligence was attributable to the mother, and that both appellants were negligent: the landlord for allowing his building to infringe the wayleave, and Kenya Power for failing to act on that infringement and ensure the cables posed no danger. Applying the principles in Charlesworth and Percy on Negligence, the Court found the appellants jointly and severally liable since the same evidence supported the claim against each, with apportionment governing only contribution between them. The Court found no basis to disturb the damages and awarded the respondent costs of the appeals.

Key legal issues

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01

Contributory negligence of a minor of tender years and of the respondent mother

Holding

A five-year-old could not be blamed for the accident as he could not comprehend the danger of touching a live electric cable, and no negligence was attributed to the respondent since none was pleaded or proved against her.

Reasoning

The trial Judge properly directed herself by considering the minor's age and circumstances. The accident occurred while the child was playing naturally with other children. The 1st appellant did not allege negligence against the respondent in its defence, and no evidence was adduced to blame her. Judicial notice was taken of the 1st appellant's monopoly over electricity installation and maintenance.

p. 5
02

Joint and several liability of independent tortfeasors

Holding

The appellants were jointly and severally liable because the minor suffered a single injury from the wrongful acts of both, supported by the same evidence, analogous to two negligent drivers in a collision.

Reasoning

Relying on the principles in Charlesworth and Percy on Negligence, wrongdoers are joint tortfeasors where the same evidence would support an action against each individually. Apportionment between the appellants (70% vs 30%) addressed contribution between them but did not affect the respondent's right to recover from either or both.

p. 5
03

Apportionment of liability at 70% against the 1st appellant and 30% against the 2nd appellant

Holding

The apportionment could not be faulted; the 1st appellant bore the higher responsibility of supplying and maintaining high voltage cables and ensuring they posed no danger.

Reasoning

The evidence, including the 1st appellant's own investigation report and the trial Judge's visit to the locus in quo, established that the building infringed on the wayleave. The 2nd appellant, who offered no evidence, allowed his building to infringe; the 1st appellant failed to act on that infringement. Given the 1st appellant's higher responsibility, the 70/30 apportionment was justified.

p. 5
04

Assessment of damages for pain and suffering, loss of earning capacity, and future medical expenses

Holding

The Court found no justification to interfere with the trial court's assessment and dismissed the appeals against quantum in their entirety.

Reasoning

The respondent established the claim for future medical expenses on the bionic arm through Dr. Kinuthia's evidence, and the appellants produced no evidence to disprove the Kshs. 5 million cost. The claim for loss of earning capacity was supported by medical assessment of 70% permanent incapacity and school progress reports showing academic promise.

p. 5

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • A child of tender years cannot be found contributorily negligent unless it is proved the child knew or ought to have known that the act or omission was wrong.
  • Where the same evidence supports the cause of action against each of two wrongdoers whose acts caused a single injury, they are joint tortfeasors liable jointly and severally, notwithstanding apportionment as between themselves.
  • Apportionment of liability is a finding of fact which an appellate court will only disturb if it is not based on any evidence, is based on misapprehension of the evidence, or the judge acted on wrong principles.

Court orders

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  1. 1.Both appeals dismissed in their entirety
  2. 2.Respondent to have costs of the appeals

Authorities

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Legislation

  • Electric Power Act, Cap 314 Laws of Kenyasection 63
  • Constitution of KenyaArticle 50(1)

Cases cited (13)

  • Kenya Ports Authorities vs. Kuston (Kenya) Limited
    [2009] 2EA 212
  • Butt vs. Khan
    [1981] KLR 349
  • BB (A Minor suing through his next friend and father GON) v Ragae Kamau Kanja
    [2019] eKLR
  • Sofia Yusuf Kanyare v Ali Abdi Sabre & Anor.
    [2008] eKLR
  • Butler v Butler
    [1984] KLR 225
  • Hassan vs. Nathan Mwangi Kamau Transporters
    [1986] KLR 457
  • Cecilia W. Mwangi & Anor v Ruth W. Wangui
    Civil Appeal No. 251 of 1996
  • Hellen Njenga v Wachira Murage & Another
    [2015] eKLR
  • Dubai Electronics vs Total K. Limited & Others
    HCCC Nrb CC 870/98
  • Mwaura Muiruri –vs- Suera Flowers Limited & Another
    [2014] eKLR
  • Mumias Sugar Company Limited –vs- Francis Wanalo
    [2007] eKLR
  • Ndoro Kaka Kakondo –vs- Salt Manufacturers (K) Limited
    [2016] eKLR
  • Tracom Limited & Another –vs- Hassan Mohammed Adan
    [2009] eKLR
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 451 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under Article 164(1A)(3) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Joseph Wang’ethe v Ew [2019] KECA 105 (KLR)", Case Analysis (2019). Civil Appeal No. 15 of 2016 (consolidated with Civil Appeal No. 56 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/105/eng@2019-12-06

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