The High Court has rejected compensation claims against a State-owned Chinese firm, Sinohydro Construction Limited which accused of damaging underground telecommunications cables that had been installed along a section of the Nairobi-Thika highway.
The court allowed Sinohydro’s appeal and set aside a lower court ruling that had found it liable for destroying fiber cables belonging to Frontier Optical Networks Limited.
The dispute stemmed from an April 2011 incident near the Roysambu KPLC area, where Sinohydro, then undertaking road works, dug trenches that cut through fiber optic cables laid parallel to major roads in Nairobi.
Frontier Optical Networks sued, accusing the contractor of acting ‘negligently and maliciously’ by failing to account for existing underground infrastructure. The company sought compensation for repair costs and associated losses.
But Sinohydro denied liability, arguing it had no knowledge of the cables and faulted the telecom firm for installing them without proper safeguards or approvals.
The High Court agreed, finding that Frontier failed to prove it had obtained mandatory licences to lay cables within road reserves from state agencies such as Kenya Urban Roads Authority, Kenya National Highways Authority and Kenya Rural Roads Authority.
‘These licences are important,’ the court ruled, warning that unregulated installations ‘would amount to an illegality which normally bars compensation of this nature.’
The court found no credible evidence that Sinohydro knew of the cables’ existence before excavation, a key factor in establishing negligence.
‘There was no witness to clearly testify that anyone working on the said road reserves would know that there were cables underneath,’ it said.
The court also faulted Frontier’s evidence, noting that the company relied on a technician who only repaired the cables and did not participate in the initial installation.
That gap, the court held, denied the company the opportunity of comparing the first installation and the second one, raising doubts about whether the damaged infrastructure had been properly laid or documented.
Further weakening the case, Frontier did not produce receipts, detailed cost records, or clear photographic evidence of the alleged damage.
The court also raised concerns over the failure to join key government agencies responsible for managing road reserve as parties to the case. It said their absence left critical questions unanswered.
‘If indeed these bodies knew that there were underground cables, they ought to have warned the appellant (Sinohydro),’ the court observed, adding that liability could shift where such warnings were not issued.
The judge warned that failure to regulate road reserves may certainly create chaos and danger to other subsequent licensed users, underscoring risks to both infrastructure and the public.
“Regulations of road reserves are statutory, and failure to obtain adequate licenses will certainly create chaos and danger to other subsequent licensed users along the road, as it is difficult to know or see what lies beneath,” said Justice Linus Kassan.
The court noted that the telecom firm did not dispute that the Chinese contractor was undertaking the road construction on behalf of the government, but its main contention was that Sinohydro was negligent.
The court found that Frontier had not proven its case on a balance of probabilities and declined to assess damages.