REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION
CIVIL SUIT NO. 382 OF 2010

IRENE WAIRIMU NDUNGU………………………………………………………………………1st PLAINTIFF

ROBERT KINANGU NDUNGU……………….…………………………………………………2nd PLAINTIFF

(Suing as the legal representatives of the estate of Godfrey Ndungu Mwaura)

VERSUS

THE KENYA HOSPITAL ASSOCIATION

T/A THE NAIROBI HOSPITAL………………………………………………………………... 1st DEFENDANT
DR. C. K MUSAU……………………………………………………………………………………. 2nd DEFENDANT
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PLAINTIFF’S LIST OF AUTHORITIES

In support of the Plaint dated 27th July 2010, amended pursuant to the consent dated
12th April, 2012]

AUTHORITY PAGE
(in the Bundle)

1. Jimmy Paul Semenye vs. Aga Khan Hospital & 2 Others

[2006] eKLR

This was a case of medical negligence that arose from a

maternity case on the delivery of a baby. The baby
suffered Erbs palsy or Brachial plexus injury. The minor,
through his next of friend and father Paul Semenye sued
the hospital.

Excerpt:
“There exists a duty of care between the patient and
the doctor, hospital or health provider. Once this
relationship has been established, the doctor has the
duty to…. Exercise the care in the application of the
knowledge and skill to be expected of a reasonably
competent health care practitioner in the same
specialty and use the medical judgment in the
exercise of that care required of a reasonably
competent practitioner in the same medical or health
care specialty.”

Relevance: -
This case establishes that hospitals and doctors owe a
duty of care to a patient in their care. The standard of
care being that of a competent health care practitioner
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 in the same specialty.

2. M (a Minor) –vs. –Amulega & another [2001] KLR 420,

In this case the plaintiff through his parent and next
friend had sued a hospital and doctor for medical
negligence, resulting in injuries to the minor.
Excerpt:
"Authorities who own a hospital are in law under the
self-same duty as the humblest doctor. Whenever
they accept a patient for treatment, they must use (see page)
reasonable care and skill to cure him of his ailment.
The hospital authorities cannot of course do it by
themselves. They must do it by the staff whom they
employ and if their staff is negligent in giving the
treatment, they are just as liable for that negligence
as is anyone else who employs others to do his duties
for him.... It is established that those conducting a
hospital are under a direct duty of care to those
admitted as patients to the hospital. They are liable
for the negligent acts of a member of the hospital
staff, which constitutes a breach of that duty of care
owed by him to the Plaintiff thus there has been
acceptance from the courts that hospital authorities
are in fact liable for breach of duty by its members
of staff.... It is trite law that a medical practitioner
owes a duty of care to his patients to take all due
care, caution and diligence in the treatment."
[Underlining ours].
"
Relevance:
This case establishes that hospitals owe the same duty
of care to a patient in their care as doctors. The case
further argues that hospitals are liable for the
negligence of their staff members.

3. Medical Negligence and Compensation by Dr Jagdish -

Singh & Vishwa Bhushan (2nd Edition),(1999: at page
131:
Excerpt:
“The doctor is the employer and the staff of the
Nursing Home are his employees (though temporary).
In this situation the doctor would be vicariously liable
for negligence of the Nursing Home. The Nursing
Home, would of course also be directly liable for any
negligence which occurs at the level of the facilities
they are providing.…The National Commission in
Sudhanshu Bhattacharya v B.S Hegge[1993]3CPR
414(NCDRC) observed that in the case of the
operation being performed in an institution(hospital)
it is the duty of the institution to render post-
operative treatment and acre to the hospital’s
patients. Quite often foreign doctors undertook
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 operation in hospitals or nursing homes in India and it
cannot be maintained that the post-operative care
and treatment will continue to be provided by the
foreign doctor who may no longer be in the country.”

Relevance:
The authors provide a distinction between the liability
of the doctor in Hospital/Nursing Home and a doctor
practicing independently.

4. Wishaminya v Kenyatta National Hospital Board -

[2004]2 EA 351].
The plaintiff had sued the defendant hospital for
negligence while the plaintiff was a patient at the
defendant’s medical facility.

Excerpt:

“The duty of care to a patient is a fundamental one

and a hospital is expected by its very nature to take
all reasonable steps that a patient especially in the
causality wing receives emergency care.....”

Relevance:
The case states that a hospital is expected by its very
nature to take all reasonable steps to ensure that a
patient especially one in the Intensive Care Unit receives
proper and intensive care.

5. Herman Nyangala Tsuma v Kenya Hospital Association

T/A The Nairobi Hospital & 2 Others [2012] eKLR].
 The plaintiff sued the defendants, for professional
negligence resulting in mental distress, loss and damage
occasioning the need for future and continued therapy.

Excerpt:
“It therefore follows that mere negligence will not
necessarily lead to liability on the part of the
defendants. The plaintiff must go further and prove
that the injury, loss and damage which he alleges to
have suffered would have been avoided but for the
said negligence”

Relevance:
The case affirms the principle that Plaintiffs are
obligated to prove that the negligence caused the
injury, loss and damage complained of. That the injury,
loss and damages would have been avoided but for the
said negligence.

6. LWW (Suing as the Administrator of the estate of BMN)

deceased v Charles Githinji [2019] Eklr

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 The plaintiff had sued the defendant (a doctor) for
negligence leading to the death of the plaintiff’s
daughter.

Excerpt:
“Weighing one thing against the other and doing
doing the best in the circumstances of this case, I
make an award of Ksh. 500,000/- for mental and
emotional distress on the part of the plaintiff.”

Relevance:
The court awarded the plaintiff Ksh. 500,000/- for
mental and emotional distress.

7. Benedeta Wanjiku Kimani vs. Changwon Cheboi &

another [2013] eKLR,

 The plaintiff sued the defendants as an Administrator of

the Estate of the deceased following a road traffic
accident, allegedly caused by the defendants, in which
the deceased sustained fatal injuries.

Excerpt:

“The general accepted principle is that very nominal

damages will be awarded on this head (pain and
suffering) if death followed immediately after the
accident. Higher damages will be awarded if the pain
and suffering was prolonged before death.”

Relevance:

The case establishes the principle that the amount of

damages awarded for pain and suffering will depend on
how long the deceased suffered before their death.

8. Sanya Hassan & Anor v Somar Properties Ltd NRB

HCCC 1517 of 2002

The plaintiff’s child was shot by armed robbers who

were robbing a bank and incurred paraplegic injuries.
The plaintiff sued the proprietors of the building for not
having adequate security in place.

Excerpt:

“At the time the deceased was shot she was 12 years
old. For 4 months she has been in hospital undergoing
serious treatment to try and save her life. The pain

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 this child had under gone would not have been
equivalent to Ksh. 20,000/- a sum I would normally
award for someone who dies soon after the accident.
…. I would hereby award a further Ksh. 980,000/- for
pain and suffering. I would thus enter judgment for a
total of Ksh. 1,000,000/- under this head.”

Relevance:

The court awarded Kshs. 1,000,000 as damages for pain

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and suffering for over four months.

Kazosi Kalama & another v Rea Vipingo Plantation

Limited [2012] eklr

The legal representatives of the estate of the deceased,

sued the defendants for negligence for an Accident
which occurred on the defendant’s plantation. The
deceased, an employee of the defendant, who was a
pillion passenger on the motor cycle suffered serious
injuries. He died some nine months later.

Excerpt:

“In my considered view a sum of shs. 1.3million

would be adequate as general damages for pain and
suffering in this case. I award such amount under
that head. “

Relevance:

the court awarded a sum of Kshs. 1,300,000/ for pain

and suffering to the estate of a plaintiff who suffered
for nine months before death.

10. Hardev Kaur Dhanoa v Multiple Hauliers (E.A) Limited

[2017] eKLR.

The plaintiff sued as the legal representative of the

Estate of the deceased who died following a road
accident when the Defendants vehicle knocked the
deceased down causing him to sustain fatal injuries

Excerpt:

“The general thread running through decisions cited

above is that courts would award conventional sums,
upon about consideration of circumstances of each
case. I shall award of Kshs. 200,000/= under this

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 subhead.”

Relevance:

The court awarded Kshs 200,000 for loss of expectation

of life for the deceased person who was 61 at the time
of his death.

11 Mary Njeri Murigi v Peter Macharia & another [2016]

eKLR

This suit was instituted by the plaintiff suing as the

personal representative of the estate of the deceased
who died   following fatal accident allegedly as a result
of the negligent acts of the defendants.

Excerpt:

 “Summary: liability against the defendants jointly

and severally at 100%; special damages awarded.
Ksh 45,700; general damages: under the Law Reform
Act, -pain and suffering Kshs 10,000; loss of
expectation of life Kshs 100,000; Under the Fatal
Accidents Act, I award a lump sum of Kshs
4,000,000. “

Relevance:

The deceased in the case was aged 60 years and the

court awarded a lump sum of Kshs. 4,000,000/= for loss
of dependency.
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Albert Odawa V Gichimu Gichenji [2007] Eklr

The appellant appealed the decision of the trial who

found that the appellant was liable for the accident and
attributed liability entirely to the appellant and
awarded general and special damages The high court
set aside the decision of the trial court, holding that the
multiplier method should not have been applied in the
absence on proof of income.

Excerpt:

“The multiplier approach is just a method of

assessing damages.  It is not a principle of law or a
dogma.  It can, and must be abandoned, where the
facts do not facilitate its application.  It is plain

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 that it is a useful and practical method where factors
such as the age of the deceased, the amount of
annual or monthly dependancy, and the expected
length of the dependancy are known or are knowable
without undue speculation where that is not possible,
to insist on the multiplier approach would be to
sacrifice justice on the altar of methodology,
something a Court of Justice should never do”

Relevance:

The case establishes that the multiplier approach is not

a settled legal principle and should not be applied where
the facts do not facilitate its application. When the facts
such as monthly income and dependency are uncertain
the approach should be abandoned.

Dated at NAIROBI this day of SEPTEMBER, 2021.

WAWERU GATONYE & CO.

ADVOCATES FOR THE PLAINTIFFS’.

DRAWN AND FILED BY:

Waweru Gatonye & Company

Advocates
Timau Plaza, 4th Floor
Argwings Kodhek-Timau Road Junction
P.O.Box 55207-00200
NAIROBI.
[Ref: WG/09/8304/GL 2905]

TO BE SERVED UPON: -
Hamilton Harrison & Mathews
Advocates
ICEA Building
Kenyatta Avenue
P.O Box 30333-00100
NAIROBI.
(Ref: 22/U0073/74)

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