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ELRCPartially AllowedCivil Appeal No. 40 of 2017 (consolidated with Civil Appeal No. 41B of 2017)· [2019] KEELRC 2454 (KLR)

Kenya Power & Lighting Company Limited v Kassim Wekhoba Toloi & another [2019] KEELRC 2454 (KLR)

Employment and Labour Relations Court
24 January 2019
2,353 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a consolidated first appeal (Civil Appeals No. 40 of 2017 by Sino Hydro Corporation Limited and No. 41B of 2017 by Kenya Power and Lighting Company Limited) against the judgment of Hon. Ng'ang'ar (CM) in Kisumu CMCC No. 331 of 2016, which held both respondents jointly and severally 80% liable for electrocution injuries suffered by the plaintiff, a crane driver injured when his crane touched live overhead power cables while clearing a trench at a bridge construction site at Nyamasaria. The magistrate awarded a global sum of Kshs. 12,151,328. The court, applying Selle v Associated Motor Boat Company and Jabane v Olenja, re-evaluated the evidence and found the magistrate's holding against Kenya Power rested on no evidence: the cables lawfully carried electricity, there was no proof the company knew of the works, and no one had asked it to switch off power; site safety was the employer's responsibility under the supervision of its own supervisor, Mr. Young. Kenya Power's appeal therefore succeeded fully and all damages and costs against it were set aside. The employer's 80% liability and the plaintiff's 20% contributory negligence were upheld. On quantum, applying Kemfro Africa v A.M.M. Lubia, the court declined to disturb the multiplier of 20 for loss of future earnings or the Kshs. 5 Million general damages award, but set aside Kshs. 1,728,000 awarded for domestic help for want of proof. Sino Hydro's appeal was dismissed save for that head, with costs of both appeals and the trial awarded to the plaintiff and the 2nd Respondent/Appellant.

Key legal issues

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01

Liability of Kenya Power and Lighting Company for injuries caused by overhead power cables at a construction site

Holding

The trial magistrate erred in finding KPLC liable; no evidence established the company's knowledge of the works, negligence, or failure to warn that was pleaded or proved.

Reasoning

The magistrate's finding rested on an assumption that the power company owed a duty to warn the public at the site. Overhead power cables lawfully supply electricity countrywide; there was no evidence KPLC knew the plaintiff was working there or that the employer had asked for power to be switched off. Supervision at the site was by the employer's supervisor, so responsibility for safety lay squarely with the employer.

p. 2
02

Vicarious liability of Sino Hydro as employer

Holding

The 80% liability properly lay with the employer, which provided poor working conditions, no training and no protective gear, and whose supervisor wrongly advised the plaintiff that the line was dead.

Reasoning

The plaintiff was acting on his employer's instructions under the direct supervision of Mr. Young. He had not been trained on working near live wires and had no protective gear. This analysis of the plaintiff's unrebutted testimony supported the magistrate's finding; there was no basis to share that liability with KPLC.

p. 2
03

Contributory negligence of the plaintiff

Holding

The 20% apportionment to the plaintiff was correct based on his own admission that he negligently caused the crane to touch the power lines.

Reasoning

Although wrongly advised by his supervisor that the marked line was not live, the plaintiff knew it was his duty to keep the crane clear of the power lines and was controlling the crane when it touched the wire. His admission justified the 20% contributory negligence.

p. 3
04

Award for costs of domestic help

Holding

The award of Kshs. 1,728,000 for domestic help was set aside for want of proof, as no evidence was led on the need for or cost of such help.

Reasoning

A party claiming a special head of damages must plead and prove it. The record showed no evidence at all supporting the claim of Kshs. 8,000 per month for 20 years for domestic help, so the award could not stand.

p. 3
05

Multiplier of 20 for loss of future earnings and general damages

Holding

The multiplier and the general damages award of Kshs. 5 Million were sound and could not be faulted, being supported by comparable authorities and the 90% permanent disability.

Reasoning

The trial court considered competing proposals (23 and 15 years) and comparable authorities before settling on 20 years for a 37-year-old earning Kshs. 25,000 monthly. Applying the Kemfro Africa principles, the court found no irrelevant factor, omission, or inordinately high estimate warranting interference.

p. 3

Legal principles established

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  • On a first appeal, the court reconsiders and re-evaluates the evidence and draws its own conclusions while making due allowance for not having seen or heard the witnesses
  • An appellate court will not lightly disturb a trial court's findings of fact unless based on no evidence or on a wrong principle
  • An appellate court may only disturb quantum where the trial judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate
  • An employer bears responsibility for site safety, including warnings and safe working conditions for its employees

Court orders

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  1. 1.Appeal No. 41B of 2017 by Kenya Power and Lighting Company Limited succeeds fully; the award of damages and costs against the company is set aside
  2. 2.Appeal No. 40 of 2017 by Sino Hydro Corporation Limited is dismissed except that the award of Kshs. 1,728,000 in respect of costs of domestic help is wholly set aside
  3. 3.The Appellant in Appeal No. 40 of 2017 to pay the costs of the Appeal and the proceedings in the court below to the Plaintiff and the 2nd Respondent/Appellant
On appeal from
Chief Magistrate's Court, Kisumu
Kisumu CMCC No. 331 of 2016
Jurisdiction invoked
First appeal from the magistrates' court to the Employment and Labour Relations Court, a court of equal status with the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Power & Lighting Company Limited v Kassim Wekhoba Toloi & another [2019] KEELRC 2454 (KLR)", Case Analysis (2019). Civil Appeal No. 40 of 2017 (consolidated with Civil Appeal No. 41B of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2454/eng@2019-01-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.