Hajar Services Limited v Mwita (Appeal 5(B) of 2020) [2025] KEELRC 1029 (KLR)
The bottom line
#A Kenyan employer lost its appeal against a construction injury award because it failed to produce its attendance records to disprove the worker's claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was injured in the course of working for the Appellant
The trial magistrate did not err; the Appellant failed to controvert the Respondent's evidence, especially the uncontested medical reports, and its failure to produce the attendance register/list of workers on the material date was fatal
The court re-evaluated the evidence as a first appellate court. The Respondent's uncontested medical reports corroborated that he was injured. The photos produced by the Appellant did not clarify whether the work was inside or outside the building or whether scaffolding existed on both sides. The Appellant's failure to produce the attendance register of labourers and foremen for the material date meant it did not discharge its burden of disproving the Respondent's presence at the site.
Whether the award of general damages was excessive
The award of Kshs. 120,000 (before 30% contribution) was reasonable and commensurate with awards for similar injuries; no basis to interfere
Applying the Butt v Khan principle, the court noted the award is discretionary and interference only warranted where irrelevant factors were considered, relevant ones ignored, or the award was inordinately high or low. The Appellant relied on fairly old authorities, whereas the Respondent's authority (Goerge Kinyanjui) involved almost similar injuries and was from 2016. The court found the award reasonable and commensurate.
Legal principles established
#- A first appellate court must re-evaluate the entire evidence and come to its own conclusions while making due allowance for the fact that it did not see or hear the witnesses
- An appellate court will only interfere with an award of general damages where the trial court considered irrelevant factors, failed to consider relevant factors, or arrived at an inordinately low or high award amounting to an erroneous estimate
- A party in possession of evidence, such as an employer with attendance registers or lists of workers, who fails to produce it, risks an adverse inference
Court orders
#- 1.The appeal is dismissed with costs
- 2.The judgment of the trial magistrate delivered on 31st January 2020 (liability of 70%, general damages of Kshs. 98,000 after 30% contribution, special damages of Kshs. 4,700, total Kshs. 102,000 plus costs and interest from date of judgment) is left undisturbed
- On appeal from
- Principal Magistrate's Court, Kajiado
- Kajiado CMCC No. 35 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's decree ( Memorandum of Appeal dated 1st July, 2020 )
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hajar Services Limited v Mwita (Appeal 5(B) of 2020) [2025] KEELRC 1029 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1029/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.