On the night of February 23, 2012, a fire broke out at Cerapack Products Limited in the Industrial Area along Enterprise Road.
It led to the loss of goods valued at Sh4.6 million.
Before the incident, there was a loud explosion from the area where the generator was situated and the lights were flickering.
Shortly after, a fire broke out and the brigade at the Nairobi Fire Station was contacted at about 7:20 pm.
The personnel arrived at the scene and managed to put out the fire at around 10:30 pm and after a probe, they indicated the cause of the fire was a "suspected fault in KPLC main cables".
The damage was already done and the blame was put on the firm's power supplier - Kenya Power and Lighting Company (KPLC), as its power pit was near the generator area.
It supplied the power to Cerapack using underground cables.
The next day, KPLC technicians visited the scene and began repairing the incoming powerline, completing the work on February 28, 2012.
Upon investigation, it was established that the fire damaged the generator sets, tapes, packaging material, cartons, paper cores, building wall and roof, internal electric cabling and fluorescence tubes, rewinding machine, and wall clock.
Cerapack moved to Milimani High Court; Civil Division claiming damages for the loss incurred during the fire which it maintained was caused by Kenya Power.
It said besides the Sh4.6 million loss, it had incurred other expenses after the fire including the cost and labour of repairs totaling Sh6,150,000 and the loss adjusters fee being Sh1,076,319.29.
This amounted to Sh11,826,319.20.
Cerapack's Managing Director told the court that KPLC was aware of similar past incidences in the factory whose source had been the pit area near the generator set where the cables were connected to the premises.
The factory's staff had contained the fire with fire extinguishers and KPLC technicians would repair the wires at the pit.
The court also heard that before that day in February, the factory had experienced explosions from the joint where the Kenya Power armored cables were connected.
This was on November 1, 2011, November 22, 2011, and February 8, 2012.
The same was reported to KPLC who sent technicians to fix "but they did not take sufficient action".
"After the fire, the Defendant (KPLC) sent its personnel to install new underground armored cables up to the powerhouse, and the trench was covered and cemented," the court papers say.
Another of Cerapack's witnesses, an electrical engineer and risk surveyor with an insurance company testified that after inspecting the generator on site and an underground Kenya Power cable installation he saw a fault.
The KPLC cable had been replaced with points near the generator set removed.
He concluded that the fire was caused by a loose connection of the KPLC cable joint, which was less than one meter from the generator, and that the generator had fuel.
"The building was about 3 metres from the generator and the fire spread to the building due to the fuel from the generator," the court heard.
KPLC however denied the allegations, saying Cerapack was approximately five metres away from the generator and the pit so it was not physically connected to the generator set.
The defence explained that if the fire originated at the pit as alleged, there was nothing to conduct it to the generator set and thus the fire cannot be attributed to KPLC.
"If fire originated from the generator set, it did not belong to the Defendant (KPLC) who was not involved in laying it in place," the court heard.
KPLC also said it never received any complaint reports on the previous fire incidences in 2011.
Judge Asenath Ongeri deliberated the case and found that there was no dispute that a fire broke out and the premises were supplied with power through underground cables.
However, she added, what was in dispute was that the fire was due to an electric fault attributed to the negligence of Kenya Power.
"The possibility that the generator would have caused the fire cannot be ruled out," she said.
She said there was a possibility that the fire would have been due to an electric fault but the generator contributed to the fire.
"In the circumstances, I apportion liability at 50:50 per cent as between the plaintiff (Cerapack) and the defendant (KPLC)," she ruled.
A 50:50 per cent happens when both parties in a case are equally responsible.
Judge Ongeri found that Cerapack had proved the special damages sought and taking into consideration the 50:50 liability, awarded them half the amount.
"I award special damages of Sh11.823,319 subject to 50 percent liability =Sh5,913,159.50," she said in a judgement delivered on August 24, 2023.
The judge further directed KPLC to pay the costs of the suit.
