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
==================================================================

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 7-18

“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.”

This was
Relevance:-

This case affirms the principle that

(see page 14)

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2. M (a Minor) –vs. –Amulega & another [2001] KLR 420, 19-22

"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
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 (see page20)
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:


3. In Medical Negligence and Compensation by Dr Jagdish 23-27

Singh & Vishwa Bhushan (2nd Edition),(1999), the
authors provide a distinction at page 131 thereof on
liability of the Hospital/Nursing Home and a doctor
practicing independently in the following words:

“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 operation in hospitals or nursing
homes in India and it cannot be maintained that the
post-operative care and treatment will continue to be

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 provided by the foreign doctor who may no longer be
in the country.”

Relevance:


4. Wishaminya v Kenyatta National Hospital Board[2004]2 28-33

EA 351].

5. Herman Nyangala Tsuma v Kenya Hospital Association

T/A The Nairobi Hospital & 2 Others [2012]eKLR].
6. LWW (Suing as the Administrator of the estate of BMN)
deceased v Charles Githinji [2019] Eklr where the
court awarded the plaintiff Ksh. 500,000/- for mental
and emotional distress. The plaintiff had sued the
defendant (a doctor) for negligence leading to the death
of the plaintiff’s daughter.

7. Benedeta Wanjiku Kimani vs. Changwon Cheboi &

another [2013] eKLR, Emukule, J. held that “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.”

8. Sanya Hassan & Anor v Somar Properties Ltd NRB

HCCC 1517 of 2002 where shs. 1,000,000 was
awarded as damages for pain and suffering over four
months. Similarily in Kazosi Kalama & another v Rea
Vipingo Plantation Limited [2012] eklr 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.

9. Nancy Njeri Muthiani (Suing on behalf of the estate of

Joseph Muthiani) v James Wambua & another [2003]
eKLR

10. Mohammed Huka (suing as personal representative of

the Estate of Huka Wako) v Adan Kosi & 2 others
[2017] eKLR Where the courts awarded Kshs 100,000
for loss of expectation of life for the deceaseds
persons who were 61 at the time of their deaths.

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 11. in Stephen Onsumu Kibage v Rebeka Mwango Simion &
another (suing as legal rep. of the state of Keremensia
Onkeo Nyakundi (Deceased) [2017] eKLR The court
awarded Kshs 100,000 for loss of expectation of life
for the deceased who was aged 57 when he died.

12. Mary Njeri Murigi v Peter Macharia & another [2016]

eklr the court awarded kshs 100,000 for loss of
expectation of life for the deceased who was aged 60
at the time of his death.

13.

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)