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ELRCDismissedNot stated in the judgment (memorandum of appeal dated 29th July, 2024)· [2025] KEELRC 3721 (KLR)

Glad Toto Apartment Ltd v Mugasia (Employment and Labour Relations Appeal E221 of 2024) [2025] KEELRC 3721 (KLR)

Employment and Labour Relations Court (Appeals Division)
19 December 2025
4,190 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal against the whole judgment of Hon. Becky Cheloti Mulemia (PM) delivered on 15th July 2024, in which the trial magistrate found that although the respondent had not established an employer-employee relationship with the appellant, the appellant owed him a duty of care as he was lawfully on the appellant's premises when a piece of wood fell and destroyed his right eye. The trial court apportioned liability at 90:10 and awarded general damages of Kshs 2,000,000/= and special damages of Kshs 15,640/= with costs and interest. The appeal was disposed of by written submissions. The appellate court condensed the eight grounds into four issues. It overturned the trial court's finding on employment, holding that the unsigned sub-contract agreement, the timing of the respondent's engagement a month before the sub-contract's start date, the sign post naming the appellant as client, and payment of wages by the appellant's supervisor Abdirahman established an employment relationship; the appellant should have joined the alleged sub-contractor if it believed him liable. On duty of care, the court found no evidence that protective gear was issued, the employer bearing the burden as custodian of records, but agreed the respondent was contributorily negligent, upholding the 90:10 ratio. The hearsay objection to the medical reports failed because the appellant never demanded the makers' attendance at pre-trial or hearing. Applying Butt v Khan, the court found the Kshs 2,000,000/= award for total blindness of one eye with 100% incapacity not excessive. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Existence of employer-employee relationship

Holding

The appellate court overturned the trial court's finding and held that an employer-employee relationship existed between the respondent and the appellant

Reasoning

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.

p. 5
02

Duty of care and contributory negligence

Holding

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

Reasoning

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.

p. 7
03

Hearsay objection to medical reports

Holding

The trial court did not rely on hearsay; the medical report was properly produced and the objection was an afterthought

Reasoning

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.

p. 7
04

Apportionment of liability and quantum

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is found unmerited and is hereby dismissed with costs to the respondent
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)

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, "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.