Bhachu Industries Ltd v Kyendi (Appeal E363 of 2024) [2025] KEELRC 2654 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Liability - whether the trial court erred in finding the appellant 100% liable despite the PPE issuance record
The finding of 100% liability was upheld; the appellant failed to prove the authenticity of the PPE issuance form and the signature on it, and its own investigator's report established lack of protective gear
The appellant bore the burden of proving the PPE record and the respondent's signature under Sections 107, 109 and 70 of the Evidence Act but called no handwriting expert nor any witness present at issuance; DW1 was not employed at the material time. The insurer's investigation report covering 2012-2017 found negligence in provision of safety gear and no hand gloves. On a balance of probability the PPE form was not authentic, and the appellant did not challenge the finding that the old shaft caused the crush injury. Applying Mbogo v Shah, the trial court's finding was not disturbed.
Quantum - whether Kshs. 450,000 general damages for fracture of the metacarpal/metatarsal bone of the right hand and blunt trauma to the wrist was inordinately excessive
The award was upheld; the injuries were more severe than those in the comparators cited by the appellant, and the respondent was certified with 10% permanent incapacity
Applying the Butt v Khan test, an appellate court interferes only where the award is entirely erroneous or the judge proceeded on wrong principles. The two medical reports produced by consent confirmed the injuries; Dr. Mwaura certified 10% disability. The trial magistrate considered injuries, residual effects, incapacity and inflation and substantially explained the award. The Triad Coaches comparator involved less severe injuries (Kshs. 250,000). No basis existed to interfere.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
- An appellate court will not interfere with an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence
- A court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong because of misdirection or failure to consider relevant matters
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Magistrate's Court (Trial Magistrate Hon. Ruguru Selina N. Muchungi, S.R.M)
- MCC No. 153 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court (Memorandum of Appeal dated 17th December, 2024)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bhachu Industries Ltd v Kyendi (Appeal E363 of 2024) [2025] KEELRC 2654 (KLR)", Case Analysis (2025). Appeal against judgment in MCC No. 153 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2654/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.