Appeal court saves Kenya power firm from paying Sh2m award

The Court of Appeal has saved Kenya Power from paying a customer Sh2 million for disconnecting electricity over arrears of Sh613.

Fridah Kageni, a landlady, sued the power supply company in the Magistrates Court after her tenants started moving out of her houses in Kahawa North because they had been in darkness for days.

She testified that there were 45 rooms at the rental premises and all the tenants moved out after the power cut. Ms Kageni told the court that she lost Sh1.3 million as a result.

In a letter dated September 11, 2003, Kenya Power (then called Kenya Power and Lighting Company) demanded Sh256,889 being the alleged outstanding bill. But Kageni told the court she had paid everything.

Cross examination

In her evidence during cross examination, she stated that KPLC had earlier written to her asking her to pay a balance of Sh613. She told the court that investigations revealed that the disconnection was erroneous and power supply was reconnected a year later, in December 2004.

The lower court found that she had a case against KPLC and gave Sh2 million as an award for loss of rental income. But the company appealed before High Court judge Roslyn Aburili who overturned the decision.

The judge noted that Kageni had not called the caretaker to corroborate her evidence that tenants had left owing to the power cut. She also said there was no written contract between the two so she could not peg any claim on electricity bills sent by the company.

The judge found that the landlady did not deserve pay for the loss as "she was a woman of means". Having lost in the High Court, the landlady filed an appeal before Court of Appeal judges Gatembu Kairu, Agnes Murgor and Daniel Musinga, asking them to restore the judgement by the Magistrate's Court.

The three judges faulted Ms Aburili's ruling, noting that she had erred regarding the contract as the bills were proof of its existence.

"In all the bills that were produced it was clear the deposit of Sh2,500 for each account had been paid... we are satisfied that there was a contract for supply of electric power between the appellant and the respondent to the suit premises," they said.

The judges however agreed with the High Court that Kageni had not proved that her tenants left because of the power cut. They noted that she kept shifting the dates on which she claimed they left, even after the power was re-connected.