Seasons Restaurants & Hotels Limited v Kenya Power & Lightning Co. Ltd (Civil Appeal 118 of 2018) [2023] KECA 1379 (KLR)
The bottom line
#The Court of Appeal confirmed Kenya Power liable for a hotel fire, but the hotel won nothing because it couldn't prove its losses with receipts.
What this practically means
#Executive summary
#Key legal issues
#Liability for the fire that destroyed the appellant's hotel rooms and conference hall
The respondent was liable in negligence; the appellant proved on a balance of probability that the fire came from the respondent's transformer, and the cross appeal on liability failed.
PW1 testified he saw fire coming from the transformer spreading to the appellant's property. DW1, the respondent's technical officer, confirmed the fire, switched off the transformer and found it in good condition, but failed to produce his investigation report. On the totality of that evidence the court was satisfied the fire originated from the respondent's transformer, attracting liability for the resulting damage.
Whether the special damages for reinstatement of the burnt buildings were strictly proved
The special damages of Kshs. 14,178,840 were not proved; the valuation report's figure was an estimate, and the appellant should have produced receipts or bills of quantities since the buildings had been rebuilt.
The valuer based his figure on depreciated replacement cost, estimating 70% construction work to reinstate the buildings. As the damaged buildings had been rebuilt to their pre-fire status, the appellant was in a position to plead and strictly prove the actual costs with receipts or bills of quantities, but produced none. An estimate does not qualify as strictly proved special damages.
Whether the damages for loose assets, landscaping and loss of income were strictly proved
The claims for loose assets (Kshs. 3,681,000), landscaping (Kshs. 300,000) and lost income (Kshs. 1,175,000 per month) were not strictly proved.
The valuer did not produce the inventory and receipts on which his loose-assets figure was based. The landscaping claim was a bare estimate. The loss-of-income claim had no documentary support. Lists and schedules without supporting documents remain mere lists of no evidential value, as the learned judge had found.
The burden of proof and the res ipsa loquitur doctrine
The burden to prove a claim lies on the person who alleges it and never shifts to the defendant; res ipsa loquitur does not reverse the burden of proof.
Relying on section 107 of the Evidence Act and Halsbury's Laws of England, the court affirmed that the claimant bears the burden on a balance of probabilities. The maxim furnishes evidence of negligence on which a court may find for the claimant, but a defendant who provides a plausible explanation consistent with absence of negligence displaces its effect, and the maxim does not reverse the burden of proof.
Legal principles established
#- Special damages must be specifically pleaded and strictly proved with as much particularity as circumstances permit; a valuation report that is an estimate, unsupported by receipts or bills of quantities, does not satisfy this standard.
- The burden of proving a claim rests on the person who alleges it and never shifts to the defendant in a civil case.
- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses.
- The res ipsa loquitur maxim does not reverse the burden of proof; where a defendant provides a plausible explanation, the court must still decide whether the inference of negligence has been sufficiently rebutted.
Court orders
#- 1.The appeal is dismissed
- 2.The cross appeal is dismissed
- 3.Each party shall bear its own costs
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (not expressly statutorily cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seasons Restaurants & Hotels Limited v Kenya Power & Lightning Co. Ltd (Civil Appeal 118 of 2018) [2023] KECA 1379 (KLR)", Case Analysis (2023). Civil Appeal No 118 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1379/eng@2023-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.