Accident victims lose plea against Chinese contractor

The High Court in Nairobi. [Photo: FILE]

NAIROBI, KENYA: Synohydro Company was one of the foreign firms involved in the construction of the Nairobi-Thika superhighway. Sometime last year, the company was sued at the High Court in Nairobi in connection with a road accident in which a girl and her father were injured.

The company was sued by the girl and her father who demanded Sh30 million in special and general damages for alleged negligence leading to the accident.

The two claim that one of the two motor vehicles involved in the accident was owned by Synohydro and was negligently driven or controlled by their servant or agent.

The company has, however, denied owning the vehicle. It has also denied that an accident ever occurred as alleged, and that if indeed it did occur, it was not caused by the negligence of its driver.

The plaintiffs feared that the foreign company, having completed its engagement in Kenya, was likely to leave the country and would never pay any awards that might be made in their favour at the end of the suit.

To be on the safe side, the two filed an application on November 13, 2013, seeking to have the High Court issue a warrant of arrest against Synohydro Company, to show cause why the firm could not put up security of Sh30 million in the suit.

They also sought an order directed to the Kenya National Highways Authority and the Principal Secretary of the National Treasury (Department of External Resources) to attach money payable to the construction company to the tune of Sh30 million until further orders of the court were made.

They asked for an order to be issued to have the money deposited in court or have a bank guarantee approved by the court issued.

The girl and her father argued that other than the machinery and other equipment used in its construction work, Synohydro had no other known assets in Kenya that could be attached should they win the case. The application went before High Court Judge HPG Waweru.

The company opposed the application through an affidavit sworn by its assistant business manager Peng Gong Ran.

It argued that the application was merely speculative and not supported by any evidence that the firm was about to leave the country.

Synohydro submitted that, in any case, it was adequately insured under the relevant laws of Kenya against risks arising out of its line of work.

Mr Peng told the court that Synohydro was not leaving Kenya any time soon as it had a number of other lucrative contracts with the Government of Kenya and other organisations, which would take two to three years to complete.

Further, the manager said the value of their movable property in Kenya was more than sufficient to meet any damages that may be awarded in the case to the two plaintiffs.

The judge held that the girl and the father had a legal obligation to tender evidence to show the company was intending to delay the case or to avoid the court process, or they were about to abscond.

"Whereas the fact of being a foreign company may be indicative of a probability or even a likelihood of leaving the jurisdiction of the court, that fact of itself alone is not evidence that the company has absconded or left the jurisdiction of the court, or is about to abscond or leave the jurisdiction of the court, or that it has disposed of or removed from the jurisdiction of the court its property or any part thereof. There must be empirical evidence of these. There is no such evidence placed before the court," the judge summed up in a ruling delivered last Wednesday.

Justice Waweru said the company had demonstrated in its affidavit that it was still active in Kenya and would still be around for the next two to three years, if not longer.

"The first defendant has placed before the court documentary evidence of its further contracts with the Government and other organisations in the country. Above that, the first defendant has demonstrated that it is adequately insured under the relevant laws of this country against third party risks associated with its line of work (including the plaintiffs' claims in this suit). It has also been deponed (evidence has been given), on behalf of the first defendant, that the value of its road construction machinery and equipment (including motor vehicles) far exceeds the Sh30 million that has been floated by the plaintiffs," the judge said.

There was no evidence that the firm intended to dispose of or remove its properties in Kenya, the judge noted.

"The plaintiffs' application, in this regard, is at best speculative and founded only on the mere fact that the first defendant is a foreign company," he added.

The court dismissed the application, saying the plaintiffs' fears should be assuaged by the evidence adduced by the company that it was in Kenya for the next two to three years.

The judge advised the two to speed up and process their case for trial without further delay.

He ordered them to pay the costs of the application to Synohydro Ltd.

The writer is a court reporter

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