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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial magistrate erred in finding that the Respondent was injured in the course of working for the Appellant in its premises
- 2.If the first issue is in the affirmative, whether the award was too high to warrant interference by this court
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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 )
Relief refused
#Setting aside the trial court's judgment on liability
The court found the Appellant failed to controvert the Respondent's evidence that he was injured at the Appellant's construction site
Reduction of general damages
The award of general damages was found reasonable and commensurate with awards for similar injuries
Costs of the appeal to the Appellant
The appeal was dismissed with costs to the Respondent
Costs
The appeal is dismissed with costs (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 conclusion, I find no merit in the appeal with the result that the same is dismissed with costs.
This being a first appeal, this Court has a duty to re-evaluate the entire case and come up with its own findings in the matter.
I therefore find no basis to disagree with the trial Magistrate on the finding that the Appellant failed to controvert the Respondent's evidence that he was injured at the Respondent's construction site.
I find that the award of Kshs.120,000/- as general damages for multiple soft tissue injuries was indeed reasonable and commensurate with awards for similar injuries. I therefore do not find any reason to interfere with the same.
Issues in the judgment
#Conflicting dates/citations for Crown Foods Ltd v Emily Wangui - cited as 'Nakuru Civil Appeal No. 60 of 2010 crown foods Ltd v Emily Wangui [2022] eKLR' in one paragraph and as 'Crown Foods Ltd v Emily Wangui [2011] eKLR' in another
Butt v Khan cited with inconsistent citations - '(1977) 1 KLR' in the Respondent's submissions and '(1977) 1 KAR' in the court's own citation
The judgment states at one point that the trial court awarded Kshs. 140,000 less 30% contribution giving Kshs. 98,000, while the analysis refers to the award of general damages as Kshs. 120,000
Typographical error misdescribing the site of injury - 'injured at the Respondent's construction site' where the Respondent is the injured party and the Appellant is the construction company
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.