Sino Hydro Corporation Limited v Kassim Wekhobi Toloi & 1 other
The bottom line
#Kenya's Court of Appeal upheld an employer's 80% liability for a crane driver's electrocution, confirming employers must guarantee worksite safety.
What this practically means
#Executive summary
#Key legal issues
#The proper scope of a second appeal
A second appeal is confined to matters of law; the Court resists delving into matters of fact unless the two courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
Relying on Kenya Breweries Limited v Godfrey Odoyo, the Court restated the settled principle governing second appeals. Its task was to examine whether the first appellate judge misdirected himself on points of law, not to re-evaluate the factual evidence de novo. Finding that the judge thoroughly reviewed the evidence, made independent findings, and applied correct principles on both liability and quantum, the Court held there was no basis for intervention.
Liability of KPLC for live overhead power cables at the accident site
The High Court correctly absolved KPLC of liability because no evidence was led that KPLC was aware of the works at the site or that it was asked to switch off power, and overhead cables lawfully traverse the country.
The learned judge found the trial magistrate's finding against KPLC was based on no evidence at all. Overhead power cables are lawfully erected nationwide; there was no evidence KPLC knew the plaintiff was at the site removing garbage, and no evidence the employer contacted KPLC to switch off power. The responsibility for site safety lay squarely with the employer, who supervised the operation. The Court found no legal error in that reasoning.
Apportionment of 80:20 liability between SHCL and Kassim
The learned judge correctly upheld the 80:20 apportionment, since Kassim admitted he had negligently caused the crane to touch the power lines, while SHCL's Mr. Young supervised the operation and should have contacted KPLC.
Kassim admitted he knew the crane could reach the power lines, that the wires were 10-12 metres high, and that the crane was not faulty. His co-worker (DW1) confirmed the wires were on normal poles and had not fallen. However, the operation was supervised by SHCL's Mr. Young, who should have contacted KPLC, and SHCL failed to provide a safe working environment. The apportionment balanced the employer's supervisory failures against the employee's contributory negligence.
Quantum of damages for pain, suffering and loss of amenities
The award of general damages of Kshs.5,000,000/= was upheld: SHCL gave no reason why the learned judge was wrong in affirming it, and no ground of appeal lay against the prosthesis and future medical expenses awards.
Applying Butt v Khan and Catholic Diocese of Kisumu v Sophia Achieng Tete, an appellate court interferes with quantum only where wrong principles were applied, irrelevant factors taken into account, or the figure is an entirely erroneous estimate. Kassim had pleaded and proved double amputation of both legs below the knee, electric burns, and 90% permanent disability. The Court found no misapprehension of evidence or extraneous considerations by the first appellate court.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law; the Court will not delve into findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
- An appellate court will not interfere with a trial court's finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or the judge demonstrably acted on wrong principles
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in a material respect
- An employer bears the responsibility to ensure the worksite is safe before sending an employee to carry out works, even where live power cables lawfully traverse the area
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Costs of the appeal are awarded to the respondents
- On appeal from
- High Court of Kenya at Kisumu
- Civil Appeal No. 40 of 2017 and Civil Appeal No. 41B of 2017
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the appellate framework in the Constitution and the Appellate Jurisdiction Act (provisions not specifically cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sino Hydro Corporation Limited v Kassim Wekhobi Toloi & 1 other", Case Analysis (2025). Not stated in the judgment (second appeal from Kisumu HCCC Civil Appeal Nos. 40 of 2017 and 41B of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1636/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.