Mwagudza v Kenya Power & Lighting Company Ltd

5. At the hearing, the Plainti called three witnesses. The Defendant, despite ling a defence, called no witness and produced no documentary evidence. That fact is undisputed. 6. Both parties led written submissions which I have carefully considered together with the pleadings, oral evidence, medical documentation, documentary exhibits and authorities cited. The Plainti's Evidence 7. The Plainti testied that on 9th October 2023 at about 5.00 p.m. he was walking along the Mazeras– Kaloleni Road at Bengo Area when, without warning, he heard a strange noise and was struck by a heavy object. He lost consciousness and regained awareness later in hospital. He was subsequently informed that an electricity pole had fallen upon him. 8. PW2, Munyazi Karuku Nzai, the Plainti's wife, testied that she was close to the Plainti but had momentarily stopped to greet someone. She heard a loud thud and screams. Upon turning, she saw the Plainti lying on the ground and an electricity pole having fallen upon him. Several boda-boda riders had gathered at the scene. 9. PW3, Mkauma Chisubi Baya, a boda-boda operator, was a direct eyewitness. His evidence was that while at the boda-boda stage he saw the electricity pole begin to fall. He and his colleagues shouted warnings, but the pole fell before the Plainti could move out of the way and struck him. 10. PW2 and PW3 testied that the Plainti was assisted to Shika Adabu Hospital, where he received rst aid, and was thereafter transferred to Mariakani Sub-County Hospital, where he was admitted and underwent surgery. 11. The accident was reported to Rabai Police Station under OB No. 28/9/10/2023. The Plainti's evidence was also that the incident was reported to the Defendant's Mariakani oce on the same day. Injuries 12. The medical evidence established that the Plainti sustained: multiple fractures of the right humerus involving the upper one-third/neck and the middle one-third; right radial nerve paralysis; injury to the right brachial plexus aecting the right upper limb; and blunt injury to the chest. 13. Signicantly, the Defendant's own submissions accepted that these were the injuries established by the medical evidence. 14. The Plainti underwent surgical intervention. Metal implants were inserted during treatment and were subsequently removed. He also underwent physiotherapy and occupational therapy. 15. Dr. Ajoni Adede assessed the Plainti's permanent partial disability at 39% and described the condition of the right upper limb as a functional amputation. His clinical ndings included severe wasting and deformity of the right upper limb, radial nerve paralysis with wrist drop, stiness of the shoulder, elbow, wrist and ngers, and extensive surgical scarring. The doctor further concluded that the Plainti was unable to use the right upper limb for ordinary activities such as grooming, dressing, toileting and other personal tasks, thereby making him dependent upon others. 16. The gravity of the disability was also demonstrated during the Plainti's testimony. His counsel recorded, without contradiction, that when called upon to take the oath he was unable to raise his right hand because of the loss of function of the limb. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/837/eng@2026-08-27 2

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Issues for Determination 17. From the pleadings, evidence and submissions, the issues that arise for determination are: a. Whether the Plainti proved negligence against the Defendant on a balance of probabilities. b. Whether the doctrine of res ipsa loquitur applies. c. Whether the Plainti was contributorily negligent. d. What damages, if any, are payable. e. Who should bear costs and interest. Whether Negligence Was Proved 18. Sections 107, 108 and 109 of the Evidence Act place the legal burden upon the party asserting a fact to prove it. A Plainti alleging negligence must establish, on a balance of probabilities, a duty of care, breach of that duty, causation and damage. 19. The Defendant correctly submitted that negligence does not arise merely because an accident occurred. It relied, among others, on Kiema Mutuku v Kenya Cargo Hauling Services Ltd and Statpack Industries Ltd v James Mbithi Munyao. That principle is sound. A court does not impose strict liability merely because a defendant owns an instrumentality involved in an accident. However, negligence is not required to be proved only by direct evidence. It may equally be established by the circumstances surrounding an occurrence and the proper inferences arising therefrom. 20. The evidence before this Court establishes, on a balance of probabilities, the following facts: the Plainti was lawfully using a public road; the electricity pole fell; PW3 actually saw it begin to fall; it fell upon and injured the Plainti; there was no evidence that the Plainti touched, interfered with or otherwise caused the pole to fall; no evidence of third-party interference was produced; no evidence of extraordinary weather or an inevitable accident was produced; no inspection or maintenance record concerning the pole was produced; and the Defendant called no person to explain the collapse. 21. An electricity pole erected alongside a public road is infrastructure which poses an obvious risk of very serious injury if it is not properly erected, inspected, maintained and secured. The Defendant itself accepts in its submissions that the primary responsibility for maintenance of electricity infrastructure rests upon it. 22. The statutory duty is reinforced by the Energy Act, 2019. In particular, section 140 imposes upon a distribution licensee the obligation to build, maintain and keep its electric supply lines in a good state of repair and to operate a safe and ecient distribution system. 23. I am persuaded that an ordinary member of the public walking beside an electricity pole is precisely the kind of person whom the Defendant ought reasonably to have in contemplation when erecting and maintaining its infrastructure. There was therefore plainly a duty of care. Res Ipsa Loquitur 24. The Defendant argued that res ipsa loquitur was inapplicable because the Plainti did not establish precisely why the pole fell. The Defendant relied particularly on Nandwa v Kenya Kazi Ltd [1988] KLR 488. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/837/eng@2026-08-27 3

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25. The authority, however, does not assist the Defendant as far as it contends that an inference can never arise absent direct proof of the mechanical or structural defect. The Court of Appeal explained that although the formal legal burden remains upon a plainti, where proved facts raise a prima facie inference of negligence, the defendant bears an evidential obligation to give an adequate explanation capable of displacing that inference. That principle is particularly apposite here. 26. Electricity poles properly installed and maintained do not ordinarily fall onto pedestrians using public roads without some explanation. The precise maintenance history, inspection regime, structural condition and internal records concerning this pole were matters peculiarly within the knowledge and custody of the Defendant. 27. The Plainti was an ordinary pedestrian. It would place an unreasonable evidential burden upon him to require that, after being rendered unconscious by the Defendant's pole, he somehow procure engineering inspections and internal maintenance documentation concerning infrastructure owned and controlled by Kenya Power. What the Plainti was capable of proving, he proved: that the pole fell while he was lawfully walking on the road, that it struck him, and that no external explanation was apparent. PW3 actually witnessed the collapse. 28. Once those facts were established, a prima facie inference arose calling for an explanation from the Defendant. The Defendant gave none. No engineer testied. No maintenance ocer testied. No inspection records were produced. No evidence concerning the age, condition or maintenance of the pole was produced. No evidence of vandalism, third-party interference, adverse weather, impact by a motor vehicle or other extraneous cause was oered. The Defendant elected to close its case without calling any evidence. 29. The Plainti's case does not therefore succeed simply because the Defendant called no evidence. Rather, the Plainti rst presented coherent, corroborated evidence sucient to raise a prima facie inference of negligence. The Defendant's failure to give an explanation left that inference unrebutted. I consequently nd that the doctrine of res ipsa loquitur is applicable and supports the Plainti's pleaded negligence. Contradiction as to Whether the Pole Was Previously Leaning 30. The Defendant argued that neither PW1, PW2 nor PW3 had noticed any previous defect in the pole. That argument does not assist it. If the defect was latent and invisible to members of the public, the Plainti cannot be faulted for failing to detect it. Conversely, if the pole was visibly damaged, leaning or deteriorated for a sucient period before its collapse, that would raise an even stronger question as to why the Defendant's inspection and maintenance system had failed to detect and rectify it. The Plainti expressly denied during cross-examination that the pole was leaning or displayed signs that it was about to fall. The Defendant produced no contrary evidence. Accordingly, whichever way one approaches the matter, the evidential position does not establish negligence on the part of the Plainti. Contributory Negligence 31. The Defendant pleaded that the Plainti failed to keep a proper lookout, walked near an allegedly unstable pole, failed to heed warning signs and failed to report the pole. Those were positive allegations of fact. They required proof. None was forthcoming. There was no evidence of any warning sign. There was no photograph showing any warning sign. There was no evidence identifying where the alleged signs had been erected. No witness testied that the Plainti disregarded a warning. No witness testied that the pole was visibly leaning. There was no evidence that the Plainti had previously observed any defect. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/837/eng@2026-08-27 4

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32. In its submissions, the Defendant relied on the Plainti's familiarity with the road and the fact that he had not previously reported the pole. But there can be no negligence in failing to report a danger one had no reason to know existed. 33. A pedestrian is entitled, within reasonable limits, to assume that public utility infrastructure erected alongside an ordinary road has been installed and maintained safely. Further, PW3 testied that upon seeing the pole begin to fall, he and others shouted a warning, but it fell before the Plainti could get out of its path. That evidence is inconsistent with the suggestion that the Plainti had a meaningful opportunity to avoid the accident. 34. Contributory negligence must be established by evidence, not merely pleaded. The authorities relied upon by the Plainti, including Mashru v Odhiambo, Abdul v Mokua and Kengere v Aisha Motor Dealers Ltd & 2 Others, correctly state that position. I nd that the Defendant has failed to prove any contributory negligence. I therefore hold the Defendant 100% liable for the accident. Quantum General Damages 35. The principle is that comparable injuries should, so far as reasonably practicable, attract comparable awards, while recognising that no two claimants and no two injuries are identical. I have considered both parties' authorities carefully. 36. The Defendant relied upon Nyang'au v Mekenye & 2 Others and Kago & another v Karoki & another, in which awards of approximately KSh 700,000 were made for humerus fractures. In my view, those authorities are of limited comparative value because this Plainti's injury is not simply a healed fracture of the humerus. The fracture is accompanied by radial nerve paralysis, brachial plexus injury, gross wasting, stiness of several joints, wrist drop and complete functional loss of the right upper limb. 37. The Defendant also relied upon Beatrice Khamede v Erick Wanunu & another, involving a scapular fracture and brachial plexus injury, where disability was assessed at diering gures between approximately 20% and 35%. 38. More relevant is Lasalo v Waruingi [2025] KEHC 12636 (KLR). The claimant suered paralysis of the right upper limb, brachial plexus injury and a right femur fracture, with 50% disability of the upper limb and 10% disability of the lower limb. The High Court eventually substituted the general damages award with KSh 1,500,000. However, the Plainti herein has an additional feature of considerable signicance: Dr. Adede characterised the right arm as having undergone a functional amputation. The entire limb, from shoulder to ngers, is eectively unusable. 39. The Plainti relies upon Macharia & another v Ndichu [2023] KEHC 1337 (KLR), where a claimant with brachial plexus injury and below-elbow amputation received an award of KSh 2,000,000. The Plainti also relied upon Simba Platinum Limited v Nicholas Auma Wandera [2021] eKLR, where an award of KSh 2,500,000 was upheld following amputation of an arm at shoulder level. 40. Although this Plainti has not undergone a surgical amputation, compensation must be guided by function and practical disability as well as anatomy. His shoulder is sti and deformed. His elbow is xed. He suers wrist drop and nger stiness. He cannot raise or eectively use the limb. The practical loss is therefore profound. 41. Further relevant factors are that: the aected limb is his right and dominant limb; he depended upon manual labour as a farmer and coconut harvester; he underwent lengthy treatment and surgery; his https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/837/eng@2026-08-27 5

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disability is permanent; he requires assistance with ordinary personal activities; and he was already an elderly man at the time of injury, such that adaptation to such severe disability is particularly burdensome. The Plainti invited the Court to award KSh 4,000,000, divided into KSh 2,500,000 for pain and suering and KSh 1,500,000 for loss of amenities. The Defendant proposed a global award of KSh 1,000,000. 42. I agree with the Defendant to this extent: pain, suering and loss of amenities are conventionally capable of being reected in a global award so as to avoid duplication. However, KSh 1,000,000 would in my assessment substantially understate the gravity and permanence of the Plainti's injuries. Conversely, an award of KSh 4,000,000 would be above the proper comparative range having regard to the authorities cited. 43. Taking into account the authorities, the passage of time, ination, the permanent functional loss of the dominant upper limb and the Plainti's loss of independence, I consider KSh 2,500,000 a fair and reasonable global award for pain, suering and loss of amenities. Future Medical Expenses 44. The Plainti sought future medical expenses, principally continued physiotherapy and the expense of a caregiver. Future medical expenses are a special claim in the sense that they must be specically pleaded and proved, notwithstanding that they are awarded as part of damages. 45. The requirement was stated in Tracom Limited & Another v Hassan Mohamed Adan [2009] eKLR. The Plainti testied that he had undergone physiotherapy and had discontinued it because of lack of funds. There is undoubtedly evidence that he continues to live with permanent disability. What is absent, however, is reliable evidence quantifying the future treatment required. No physiotherapy programme with frequency and duration was presented. No medical quotation was produced. No monthly or annual caregiver cost was proved. No medical evidence gave the probable future expense of the proposed treatment or care. 46. Indeed, the Defendant relied on the Plainti's cross-examination that the implants had already been removed, that he had not undergone further surgery, had not subsequently been readmitted and had not been advised that additional surgery was required. There is therefore an evidential basis for recognising continuing disability, but not for assessing future medical expense in a legally reliable monetary amount. The Court cannot invent a gure. The claim for future medical expenses is accordingly disallowed for want of sucient proof. Special Damages 47. The Plainti pleaded special damages of KSh 62,346, comprising: a. Medical report – KSh 2,000; b. Medical expenses – KSh 42,346; c. Transport expenses – KSh 18,000. 48. Special damages must be specically pleaded and strictly proved. During cross-examination, according to the Defendant's submissions, the Plainti acknowledged that the medical receipts produced amounted to approximately KSh 12,600, and that he had no receipts supporting the KSh 18,000 transport claim. 49. Although transport expenses in an appropriate case may be proved by credible evidence despite the practical diculty of obtaining receipts for every journey, the claim here was specically quantied as https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/837/eng@2026-08-27 6

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KSh 600 per trip for thirty trips. No sucient evidence was placed before the Court establishing each of those journeys or the aggregate KSh 18,000 to the required degree. I therefore decline the transport claim. The medical report cost of KSh 2,000 was pleaded and proved. I further allow the medical expenses supported by receipts in the sum of KSh 12,600. Special damages are therefore awarded at: KSh 2,000 + KSh 12,600 = KSh 14,600. Final Orders 50. In the result, judgment is entered for the Plainti against the Defendant as follows: a. Liability- 100% against the Defendant b. General damages for pain, suering and loss of amenities- KSh 2,500,000 c. Special damages KSh 14,600 d. Future medical expenses Nil Total KSh 2,514,600 e. The Plainti shall have costs of the suit. Interest on general damages shall accrue at court rates from the date of this judgment until payment in full. f. Interest on special damages shall accrue at court rates from the date of ling suit until payment in full. It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026. ............................................ EMILY M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/837/eng@2026-08-27 7

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