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ELRCPartially AllowedMemorandum of Appeal dated 4th November, 2021 (appeal against judgment in Milimani CMCC No. 5779 of 2017)· [2025] KEELRC 261 (KLR)

Mbalava v Insight Management Consultants Ltd (Appeal E138 of 2021) [2025] KEELRC 261 (KLR)

High Court of Kenya
31 January 2025
3,980 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 first appeal against the judgment of Honourable A.M. Obura, Chief Magistrate, in Milimani CMCC No. 5779 of 2017, delivered on 8th October 2021, dismissing the Appellant's claim for injuries sustained while replacing a rubber roller on a machine at the Respondent's workplace. The Appellant, a machine operator from 2011 to 2017, alleged the machine was switched on by a colleague without his knowledge, cutting his right little finger, and blamed the Respondent for failing to provide protective gloves. The Respondent closed its case without calling witnesses, contending the Appellant failed to wear gear provided and failed to prove negligence. The appeal was disposed of by written submissions. The court framed two issues: whether the Appellant proved his case on a balance of probabilities, and whether he was entitled to the reliefs sought. Applying Selle v Associated Motor Boat Co., the court held that the Respondent bore the evidential burden to show it provided protective gear, since no evidence controverted the Appellant's claim, and that an employee need not prove he requested protective gear. However, because the Appellant had long experience with the machine, failed to plead that Samuel Kangethe switched it on, and did not demonstrate he took all due precautions, the court found contributory negligence. The court allowed the appeal in part: liability was apportioned 60% against the Respondent and 40% against the Appellant. Applying Butt v Khan, the court declined to disturb the trial court's indicative quantum of Kshs. 80,000/- as general damages, awarding the Appellant a net Kshs. 48,000/-. The Appellant received costs in the lower court, with each party bearing their own costs of the appeal.

Key legal issues

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01

Whether the Appellant proved negligence on the part of the Respondent on a balance of probabilities

Holding

The court disagreed with the trial magistrate's outright dismissal and found the Respondent liable, but held the Appellant contributorily negligent, apportioning liability at 60% Respondent and 40% Appellant

Reasoning

The Respondent closed its case without calling any witness, so no evidence controverted the claim that protective gear was not provided. It was the employer's role to provide protective gear whether requested or not. However, the appellant had used the machine from 2011 to 2017 and was presumed to have the skill to take precautions; he also failed to plead who switched on the machine. This made it a case of contributory negligence.

p. 7
02

Whether the appellate court should interfere with the trial court's assessment of quantum

Holding

The court declined to interfere with the Kshs. 80,000/- award, applying the Butt v Khan principles, and reduced the net award only through apportionment to Kshs. 48,000/-

Reasoning

Applying Butt v Khan, an appellate court will not disturb an award unless it is inordinately high or low or proceeds on wrong principles. The trial magistrate had considered the nature of the injuries (deep cut to the right little finger, permanent scars and weakness of the right hand) and comparable cases in proposing Kshs. 80,000/-. The court found that assessment satisfactory and within a fair range.

p. 8
03

Whether the absence of a defence witness meant the appellant's uncontroverted evidence automatically proved the case

Holding

Uncontroverted evidence does not automatically discharge the claimant's burden of proof; negligence must still be established

Reasoning

The court acknowledged the Respondent called no witnesses and that no evidence controverted the claim on protective gear, which shifted the evidential burden to the Respondent on that issue. Nonetheless, occurrence of an accident at the workplace does not per se imply employer blame, and the appellant's failure to plead the colleague who switched on the machine and his own familiarity with the machine weighed against full liability.

p. 6

Legal principles established

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  • It is the responsibility of an employer to provide protective gear to an employee whether requested or not, and where non-provision is pleaded, the employer bears the evidential burden to show the gear was provided
  • An employer's duty of care is not absolute and does not absolve an employee from exercising due care; an experienced employee who fails to take precautions may bear contributory negligence
  • Parties are bound by their pleadings, and evidence at variance with the pleadings should be disregarded

Court orders

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  1. 1.Liability apportioned at 60% against the respondent, the appellant bearing 40%
  2. 2.Quantum of damages retained at Kshs. 80,000/- as assessed by the trial court, the appellant awarded Kshs. 48,000/-
  3. 3.The appellant shall have costs in the lower court but each party shall bear their costs of this appeal
On appeal from
Chief Magistrate's Court, Milimani
CMCC No. 5779 of 2017
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Memorandum of Appeal dated 4th November, 2021)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbalava v Insight Management Consultants Ltd (Appeal E138 of 2021) [2025] KEELRC 261 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 4th November, 2021 (appeal against judgment in Milimani CMCC No. 5779 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/261/eng@2025-01-31

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