Glad Toto Apartment Ltd v Mugasia (Employment and Labour Relations Appeal E221 of 2024) [2025] KEELRC 3721 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court upheld a Kshs 2 million award to an injured carpenter, confirming employers can't dodge responsibility by claiming sub-contractors.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred by finding there was no employer-employee relationship between the respondent and the appellant
- 2.Whether the trial court erred by finding that the appellant had a duty of care to provide a safe working environment for the respondent
- 3.Whether the trial court relied on hearsay evidence
- 4.Whether the trial court was justified in apportioning liability at 90:10 and awarding the respondent Kshs 2,000,000/= as general damages
Key legal issues
#Existence of employer-employee relationship
The appellate court overturned the trial court's finding and held that an employer-employee relationship existed between the respondent and the appellant
The sub-contract agreement was unsigned; the respondent began work on 9th July 2018, a month before the sub-contract start date; a sign post showed the appellant as the client; and wages were paid by Abdirahman, the appellant's supervisor. The employer, as custodian of records, bore the duty to prove any contrary arrangement, and the sub-contractor was never joined.
Duty of care and contributory negligence
The appellant owed a higher duty of care to provide a safe working environment, but the respondent was also guilty of contributory negligence, justifying the 90:10 apportionment
The appellant produced no evidence, inventory or witness to show protective gear was issued, while materials fell from workers above the respondent. Yet the respondent, knowing others worked above him, should have ensured he had protective gear. Both parties had some duty to mitigate the accident, with the heavier burden on the appellant.
Hearsay objection to medical reports
The trial court did not rely on hearsay; the medical report was properly produced and the objection was an afterthought
Section 35(5) of the Evidence Act permits medical practitioner reports to prove facts in trial; the appellant never demanded the maker's attendance at pre-trial under Order 11 or at hearing, nor requested a second medical report. Consistent with Eldoret Express Co Ltd v Nandabelwa, a party that consented to production cannot impugn authenticity on appeal. The admission date discrepancy was explained by referral on 4th and operation on 5th October 2018.
Apportionment of liability and quantum
The 90:10 apportionment was reasonable and the general damages of Kshs 2,000,000/= were not excessive for total blindness of the right eye with 100% permanent incapacity
Comparable awards of Kshs 2,500,000/= and Kshs 2,000,000/= had been made for loss of one eye with 100% incapacity. Applying Butt v Khan, the appellate court would interfere only if the award were inordinately high or low or proceeded on wrong principles; bearing in mind inflation, the award was not excessive.
Legal principles established
#- An appellate court will not disturb 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 party who consents to the production of evidence cannot impugn its authenticity as hearsay at the appellate stage where no demand was made for the maker to attend at pre-trial or hearing
- An employer bears responsibility to provide a safe working place and protective gear, and must produce an inventory of issuance of safety gear to disprove an employee's claim
- The duty of care owed by an employer is not absolute and does not absolve an employee from exercising due care to avoid foreseeable risk
- Where a party contends that a third party (sub-contractor) was liable, it must enjoin that third party in the suit
Court orders
#- 1.The appeal is found unmerited and is hereby dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial before Hon. Becky Cheloti Mulemia, PM)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over a magistrates' court civil judgment (appeal by way of rehearing)
Relief refused
#Setting aside the judgment and decree of Hon. Becky Cheloti and all consequential orders
The appeal was found unmerited; the appellate court affirmed the trial court's findings on employment relationship, duty of care, liability apportionment and quantum
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the foregoing the appeal is found unmerited and is hereby dismissed with costs to the respondent.
It is so ordered.
This court therefore overturns the trial court finding that the respondent did not establish an employer-employee relationship and finds that there existed employer-employee relationship in this matter.
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
This comes as an afterthought hence the court did not rely on hearsay evidence.
Issues in the judgment
#The judgment alternately gives the medical report date as 5th October, 2020 and the admission/treatment as 5th October, 2018, while elsewhere stating injuries were sustained on 4th October, 2018; the report date of 2020 may be a typographical error
The court holds the respondent's blindness resulted from injury at the appellant's premises yet the judgment elsewhere records the trial court awarding 'total damages at Kshs 1,814,076/- (which is Kshs 2,015.640/= less Kshs 201,564' - the figures 2,015.640 and total award are internally inconsistent as printed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Glad Toto Apartment Ltd v Mugasia (Employment and Labour Relations Appeal E221 of 2024) [2025] KEELRC 3721 (KLR)", Case Analysis (2025). Not stated in the judgment (memorandum of appeal dated 29th July, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3721/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.