Ruai Family Hospital Limited v Kenya Power & Lighting Company Limited (Claim E4169 of 2024) [2025] SCC 66 (KLR)

putting the Claimant to the position they were before the damage to the said x-ray machine. Consequently, the Claimant filed this claim under the principle of subrogation for the Claimant’s insurer to recover Kshs. 179,077/= from the Respondent. The Respondent entered appearance and filed a Response to the Statement of Claim dated 04th January 2024 (sic) denying the particulars of negligence attributed to them by the Claimant. The Respondent pleaded that there was no unstable power supply on the material day, and that there was no system lapse that was noted by the Respondent. They further pleaded that if at all the damage to the Claimant’s x-ray machine occurred, the same was caused by the Claimant’s negligence, carelessness, and/or recklessness, whose internal backup systems caused the damage to the x-ray machine. This claim proceeded to viva voce hearing when the parties herein adduced evidence summarized below. Claimant’s Case CW1 Moses Muriuki a loss assessor at Cunningman Lindsey produced the report dated 04th October 2022 as an exhibit. He testified that the damage to the Claimant’s x-ray machine was as a result of unstable power supply from the main grid.

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In cross-examination, he conceded that he was not an expert in matters electricity. He added that his instructions were limited to adjusting the claim. CW2 Charity Njuguna a Legal Officer at Mayfair Insurance Company Limited adopted her witness statement dated 04 th April 2025 as her evidence in chief. She produced some of the documents listed in the Claimant’s list of documents herein to evidence that the Claimant’s insurer spent Kshs. 179,077/= towards making good the Claimant’s loss. CW3 Paul Odhiambo Okoth is the Claimant’s head of finance. He recalled that he was the Claimant’s operations manager at the time of the incident. He adopted his witness statement dated 19th August 2024 as his evidence in chief. His testimony was that on 22nd January 2021 while the Claimant’s x-ray machine experienced a sudden breakdown while being used by its operator. The Claimant’s internal electrical technician reportedly established that the machine’s breakdown had been caused by unstable power supply. In cross-examination, he stated that the main grid used by the x-ray machine was also being used by other users. He added that the x-ray machine was the only machine that was damaged at the Claimant’s premises on the date of the incident. CW4 Titus Muga a biomedical engineer at Lifetech Limited investigated the circumstances leading to the damage of the Claimant’s x-ray machine. His investigations revealed that the incident had been caused by a power outage

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as the power supply was fluctuating above 276 volts above the x-ray machine’s power tolerance capacity of 250 volts. He also stated that an Automatic Voltage Switch (AVS) stabilizes power to over and under 240 volts, and that an AVS can be damaged during power outage if it is faulty. In cross-examination, he could not tell if the main grid that supplied electricity to the Claimant’s x-ray machine also supplied electricity to other tenants. He further stated that he did not establish if the other machines within the Claimant’s premises had been damaged as a result of the incident. He conceded that he did not take photos at the scene to show the alleged overvoltage supply of electricity. He added that he did not see the Claimant’s distribution engineer’s report. Respondent’s Case RW1 Martin Mwangi Muchoki is a loss adjuster at Proximate Adjusters. He produced his report dated 24th February 2025 as an exhibit. His investigations revealed that apart from the x-ray machine, other machines at the Claimant’s premises were not damaged on the date of the incident. He further stated that the other tenants were not affected by the incident, and that he x-ray machine’s AVS was not damaged as a result of

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the incident. He thus formed an opinion that the Respondent could not be blamed for the incident. In cross-examination, he testified that he holds a higher diploma in electrical engineering. He added that it was only possible for an AVS not to be damaged and for a machine to be damaged if that machine was faulty. ANALYSIS & DETERMINATION This court has duly considered all the pleadings, evidence, written submissions, as well as authorities relied upon by the parties herein. This claim is based on the principle of subrogation. Muhochi J in Eastern Produce Kenya Ltd v Rongai Workshop & Transporters Ltd (Civil Appeal 125 of 2018) [2023] KEHC 24810 (KLR) (7 November 2023) (Judgment) rendered himself thus on what the principle of subrogation means:“The principle of the doctrine of insurance was well defined in Kenya Power & Lighting Company Limited v Julius Wambale & Another (2019) eKLR where Githua J held; ‘‘The parameters within which the principle of subrogation applies are now well settled. The doctrine applies where there is a contract of insurance and following crystallization of the risk insured, the insurer had compensated its insured for financial loss occasioned thereby usually by a third party. Under this doctrine, the insurer is in law entitled to step into the shoes of the insured and enjoy all the rights, privileges and remedies accruing to the insured including

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the right to seek indemnity from a third party. The action must however be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance.’’ A reading of the authority above shows that for a Claimant to succeed in a claim under the doctrine of subrogation to succeed, the Claimant must prove on a balance of probabilities that after his insured property was damaged in an accident, his insurer made good his loss, and that the accident that caused the damage to the insured property was caused by a third party’s negligence who ought to indemnify the Claimant’s insurer. There is no contest that the Claimant’s x-ray was damaged on the date of the incident. The evidence on record also shows that the Claimant’s x-ray machine was at the date of the incident herein an insurance policy number 01/01/023/00196/2019. It is common ground that the Claimant’s insurer expended Kshs. 179,077/= towards putting the Claimant in the position they were in before the damage to the Claimant’s x-ray machine. The parties’ herein sole point of departure is on who was to blame for the damage to the Claimant’s x-ray machine on the date of the incident. The foregoing inclines this court to draw the irresistible conclusion that the only issue that commends to this court for determination is liability; who was

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to blame for the damage to the Claimant’s x-ray machine on the date of the incident. Liability From the onset, this court restates the often-quoted phrase: “he who alleges must prove”. This is the “burden of proof,” which is codified in Section 107 of the Evidence Act as follows: “107(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” The Court of Appeal in Timsales Limited v Stanley Njihia Macharia [2016] eKLR, stated as follows on the burden of proof: “As for the alleged lack of evidence on “causation”, in South Nyanza Sugar Co. Ltd Vs. Wilson Ongumo Nyakwemba [2008] eKLR D. Musinga J. (as he then was) approved the holding in Statpack Industries Limited Vs. James Mbithi Munyao HCCA No. 152 of 2003 (UR) for the holding that:“It is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someone's negligence and his injury. The plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence.”

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Section 166 of the Energy Acts, on the other hand, sets out the circumstances under which the Respondent must compensate a consumer for damage arising from supply or oversupply of electricity in the following terms: 166. (1) Subject to any agreement which may be entered into between a licensee and a consumer as provided for under this Act, whenever the licensee defaults in supplying electrical energy to any consumer, the licensee shall be liable in respect of each default to a penalty as prescribed by regulations. (2) The licensee shall be liable to pay appropriate compensation to a person if due to failure, poor quality or irregularity of electricity supply, the person incurs damage to his or her property, financial loss, loss of life due to negligence or avoidable default by the licensee. (3) For the avoidance of doubt, the licensee shall not be liable to pay compensation under subsection (2) if the failure, poor quality or irregularity of electricity supply was caused by third party interference to the licensee's electricity supply lines or inevitable accident or force majeure was so slight as not to materially affect the quality or value of the supply. A reading of section 166 of the Energy Act reproduced above leaves no doubt in the mind of this court that the Respondent can only compensate a

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consumer for damage if the damage is caused by the Respondent’s negligence or avoidable default. The common thread running through the authorities above is that the Claimant bore the duty of proving the pleaded particulars of negligence that he attributed to the Respondent. It is only after the Claimant establishes a prima facie case of negligence against the Respondent that the evidential burden shifts to the Respondent to displace the Claimant’s prima facie case of negligence against them. This court will now proceed to determine whether the Claimant proved the particulars of negligence he attributed to the Respondent. The Claimant blamed the damage to their X-ray machine on the alleged oversupply of power/power surge from the Respondent’s power grid. The Claimant relied on CW1 – CW4’s oral testimony, the report dated 04 th October 2022 from Cunningham Lindsey, and the X-ray machine’s Field Service Report dated 22nd January 2022 from Lifetech Echo Limited to prove on a balance of probabilities that the damage to their X-ray machine was caused by the Respondent’s negligence. The Respondent, on the other hand, relied on RW1’s oral testimony and expert report to prove on a balance of probabilities that the incident was caused by the Claimant’s negligence.

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It is given that the oral testimony led by CW1 – CW3, who conceded that they lacked the expertise to speak to matters of electricity, cannot be used to determine liability in this matter. This leaves this court with the expert reports by CW4 and RW1 on the circumstances under which the incident in question happened to determine liability in this matter. The two experts took divergent positions on who was to blame for the incident herein. CW4 blamed the Respondent for the incident, while RW1 blamed the Claimant for the incident. The divergent positions taken by the said experts is not strange if one takes into consideration Lord Wolf’s words in his Access to Civil Justice Report, he said this:"Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they are in practice hired guns. There is a new breed of litigation hangers-on, whose main expertise is to craft reports which will conceal anything that might be to the disadvantage of their clients." This court is well aware that it is not obligated to take an expert’s report hook, line, and sinker. A court’s guidance on how to consider expert reports was laid down by Mativo J (as he then was) in Stephen Kinini Wang'ondu v The Ark Limited [2016] eKLR as follows: “Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as

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it deserves; no more, no less. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence… Four consequences flow from this. Firstly, expert evidence does not “trump all other evidence”. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with mathematical precision. Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence. Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.

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Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones. A further criterion for assessing an expert’s evidence focuses on the quality of the expert’s reasoning. A court should examine each expert’s testimony in terms of its rationality and internal consistency in relation to all the evidence presented. In Routestone Ltd. v. Minories Finance Ltd. and Another Jacob J. observed that what really mattered in most cases was the reasons given for an expert’s opinion, noting that a wellconstructed expert report containing opinion evidence sets out both the opinion and the reasons for it. The judge pithily commented “[i]f the reasons stand up the opinion does, if not, not.” Where there is a conflict between experts on a fundamental point, it is the court’s task to justify its preference for one over the other by an analysis of the underlying material and of their reasoning. It is my view its correct to state that a court may find that an expert’s opinion is based on illogical or even irrational reasoning and reject it. A judge may give little weight to an expert’s testimony where he finds the expert’s reasoning speculative or manifestly illogical. Where a court finds that the evidence of an expert witness is so internally contradictory as to be unreliable, the court may reject that evidence and make its decision on the remainder of the evidence. The expert’s process

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of reasoning must therefore be clearly identified so as to enable a court to choose which of competing hypotheses is the more probable.” Guided by the authority above, it follows that in the face of the conflicting expert reports on record, this court has to determine which of the two expert reports on record is believable. CW4’s report and testimony were based on the ground that the X-ray machine’s operator at the time of the incident stated that the said X-ray machine broke down as a result of a power surge, and that the Claimant’s internal electrician blamed the incident on an unstable power supply. Interestingly, the Claimant did not call the said X-ray machine’s operator, and their alleged internal electrician, to adduce evidence on what they knew about the incident. Those are key witnesses whom the Claimant ought to have called to testify before this court. Where a party fails to call a key witness, this court is permitted to make an adverse inference against such a party. This court finds support from Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR, where the court stated as follows: “ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.’ Where a party has custody or is in control of evidence

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that that party fails or refuses to tender or produce, the court is entitled to make an adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” Whereas CW4 testified that the incident was caused by oversupply of power by the Respondent since the power supply on the date of the incident was reportedly fluctuating above 276 volts beyond the x-ray machine’s power tolerance of 240 volts, he did not adduce any evidence before this court to prove on a balance of probabilities the alleged power supply fluctuations on the date of the incident. He could also not tell if the main grid supplying electricity to the X-ray machine was supplying electricity to other tenants. He added that he did not check if the other machines at the Claimant’s premises were damaged as a result of the incident. His further testimony was that he did not have the insured distribution engineer’s report, and that he did not see an incident report by the Claimant to the Respondent. The failure by CW4 to establish whether other machines at the Claimant’s premises were damage as a result of the alleged power outage, and his failure to establish whether the other tenants served by the main grid supplying electricity to the Claimant’s X-ray machine were affected by the

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incident, casts doubts on CW4’s report and testimony on who was to blame for the incident. Had CW4 pursued that angle of investigation, he could have established whether the alleged power surge was a result of an internal electrical fault at the Claimant’s premises or an external electrical fault caused by the Respondent. It is also worth noting that CW4 is a biomedical engineer. A biomedical engineer is an expert in medical equipment. He is not an expert strictly speaking in electricity matters. Matters of electricity can only be convincingly spoken to by an electrical engineer. The foregoing casts doubt on the credibility of CW4’s testimony and expert report on the circumstances leading to damage to the Claimant’s X-ray machine. RW4’s testimony and expert report on record, on the other hand, shows that RW4 found out from other tenants at Savannah Business Centre, which also houses the Claimant’s facility, whether their property was damaged as a result of the incident. The Respondent also went further to find out if other machines within the Claimant’s premises were damaged on the date of the incident. This court also notes that RW4 is an electrical engineer, and that his expert report herein was supported by another report from Proximate Adjusters

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Limited dated 24th February 2025 prepared by one Aron Kiplangat, who is also an electrical engineer. This court also notes that CW3 admitted that, other than the X-ray machine, no other machine was damaged at the Claimant’s premises on the date of the incident. He also admitted that the AVS connected to the said X-ray machine was not damaged on the date of the incident. The fact that the AVS connected to the Claimant’s X-ray machine was not damaged on the date of the incident, the fact that only the X-ray machine was damaged at the Claimant’s premises on the date of the incident, and the fact that the other tenants who use power from the main grid that supplied electricity to the Claimant’s X-ray machine were not affected by the incident, lends credence to RW1’s evidence that the incident herein was as a result of an internal electrical fault at the Claimant’s premises. The facts of this case are almost similar to the facts in Jeremiah Maina Kagema vs Kenya Power & Lighting Co Ltd [2001] eKLR, in which Visram J (as he then was), held as follows: Notably, only the appellants’ house was burnt by the fire. Therefore, considering the appellants’ witnesses’ testimony on one hand, while bearing in mind that they did not call an expert witness and comparing the same with the respondent’s witness who is an Engineer, this Court’s finding is that the respondent’s testimony as to what caused

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the fire is more credible and more assuring, since he has the requisite expertise needed in this case. Mwangi Njoki J in Nzoka & another (Suing as the Administrators and Beneficiaries of the Estate of the late EN) v Kenya Power and Lighting Company Limited (Civil Appeal 40 of 2021) [2021] KEHC 12532 (KLR) rendered herself thus on an almost similar matter: It is not lost to this Court that the appellants attempted to attribute the fire to the alleged frequent power surges and blackouts prior to the incident. However, DW1 testified that there were three meter numbers’ cables dropping through the ceiling in the appellants’ house. The appellants failed to explain why the two other consumers who owned the other meter numbers, whose electric supply was also from the respondent were not affected by the alleged electric fault. The nature of this case required the appellants as of necessity to engage the services of a fire expert and/or an Electrical Engineer to investigate the cause of the fire. They failed to do so thereby weakening their case tremendously. In light of the foregoing, this Court is satisfied that on a balance of probabilities, the respondent’s assertion that the fire was not as a result of an electric fault arising from the supply of electricity by the respondent to the suit property to be true. Consequently, the

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respondent cannot be held liable and the appellants are not entitled to compensation. The analysis above when read together with the authorities above, leaves no doubt in the mind of this court to make a finding that the Claimant failed to prove on a balance of probabilities that the incident herein was caused by the Respondent’s negligence. Had the Claimant proved on a balance of probabilities that the Respondent was negligent in this matter, this would have entered judgment in the sum of Kshs. 179,077/= against the Respondent since the same had been proved to the required standards. DETERMINATION The upshot of the foregoing is that the Claimant’s claim is dismissed with costs of Kshs. 40,000/= to the Respondent. Judgment accordingly. File closed. Read, signed, and delivered in open Court at Bungoma this 30 th day of October 2025 T.O. OMONO ADJUDICATOR In the presence

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Ms. Vuchocho h/b for Ms. Anyango for the Respondent C/A: Albert

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