Electricity distributor Kenya Power has been ordered to pay more than Sh50 million as compensation to the proprietors of a hotel which was razed down by a fire caused by a power line.
Justice Stephen Githinji, sitting at the High Court in Malindi, ordered the company to pay Sh40 million as compensation for loss and damages and 93,600 euros (Sh.13.3 million) being an award for loss of business to Mr Francis Kenga and his wife Ivan Renne.
The judge on August 1 issued a declaration that Kenya Power breached its statutory duties under the provisions of the Energy Act causing loss and damage to Mr Kenga and Ms Renne thus it was under duty to compensate them.
Justice Githinji ruled that the evidence on record established beyond a shadow of doubt that the fire was caused by Kenya Power’s power line.
The court also ruled that there was no reliable evidence by Kenya Power that the plaintiffs’ premises were on the wayleave.
This, it noted, was the reason why Kenya Power’s own witnesses admitted that it would not have supplied electricity to the couple’s premises if they had not complied with the company's regulations in respect of proximity to way leave.
“I find that the plaintiffs have proved the defendant’s negligence due to the defendant’s failure to maintain their power conductor’s safety, causing their crushing and production of sparks that fell on makuti leading to the fire outbreak,” ruled Justice Githinji.
Justice Githinji further ruled that as it had already been established that the power lines were near the plaintiffs’ premises thus the proximity between the action complained against and the damage suffered.
“The defendant bore a duty of care to the plaintiffs which was breached,” ruled Justice Githinji adding that Kenya Power was wholly liable for the fire outbreak that led to the loss and damage.
He further ruled that the plaintiffs’ claim for negligence is founded on Kenya Power’s failure to maintain a safe system and neglecting to repair power lines.
“The defendant being the monopolistic supplier of electricity in the country has a duty to ensure that supply is well maintained and in safe condition,” said Justice Githinji.
The court also noted that Kenya Power’s witnesses’ admitted that the company’s personnel would visit the premises monthly for meter readings thus if there had been a breach of the wayleave the couple would have been informed.
The judge ruled that Kenya Power is the sole distributor and supplier of electric power in the country thus it was strictly liable.
“It is my conclusive finding that strict liability attaches to the defendant and it bears a statutory duty to compensate the plaintiff in this case,” ruled Justice Githinji.
Through their case documents, the plaintiffs told the court that they were the proprietors of an estate on land at Casuarina area in Malindi where they developed a hotel operating under the name of Kenga Giama Resort.
The court heard that the hotel consisted of 11 rooms, reception, restaurant, staff houses, gazebo, entrance shed, sign board shade, swimming pool and garden which were furnished with furniture, fittings, paintings and other decorations.
The plaintiffs told the court that at the time of the fire they had leased the hotel to Mr Nicola Mosca at the rate of 1,800 euros per month.
The plaintiffs averred that the defendant was their electricity supplier and that it was implied it would supply electrical power to it through a safe environment and remedy any defects that may be noted in the supply system without undue delay.
They argued that in breach of the terms of the contract, the defendant retained defective installations, and failed to adequately maintain the power grid thereby causing a dangerous situation that precipitated the fire on the premises and destroyed their property causing loss and damage.
The court heard that on April 4, 2018, Kenya Power’s personnel were notified of low-hanging wires dangerously close to the plaintiffs’ property.
The plaintiffs argued that Kenya Power’s personnel visited the premises, and inspected their installations but failed to put separators or any other insulation between the loosely hanging cables.
The court also heard that on April 16, 2018, at around 1.00pm a fire broke out on their power transmission system and spread to the plaintiffs’ property.
In its statement of defence, Kenya Power denied the plaintiffs’ claim and stated that it was a requirement or implied term of the power supply contract that the customer’s developments are not to encroach onto the power line wayleave areas.
Kenya Power admitted that there was a fire outbreak but denied any breach of contract as alleged and went on to deny that it retained defective installations and failed to maintain the power grid as alleged.
The court has however suspended the execution of the judgment for 30 days following an application by Kenya Power.
