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Case Type: Civil Case


Titus Kimondo Ndirangu & 6 Others (Suing On Behalf Of Former Kenextel Employees) V Teleposta Pension Scheme [2015] eKLR

Case Number: Civil Case 251 of 2013 Date Delivered: 23 Jan 2015

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Titus Kimondo Ndirangu, Charles Mackenzie Ndola, Samuel K. Mwangangi, Jackson Kimuzi Mwambela, Mushellum Ndungu Maina, Walter Mungai Muigai & Peterson Weru Mwethia (Suing on behalf of former Kenextel Employees) v Teleposta Pension Scheme

Citation: Titus Kimondo Ndirangu & 6 Others (Suing On Behalf Of Former Kenextel Employees) V Teleposta Pension Scheme [2015] eKLR

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Moses Mwangi Karanja V Samuel Mwangi Karanja [2015] eKLR

Case Number: Civil Case 5 of 2006 (OS) Date Delivered: 23 Jan 2015

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Moses Mwangi Karanja v Samuel Mwangi Karanja

Citation: Moses Mwangi Karanja V Samuel Mwangi Karanja [2015] eKLR

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Naomi Wanjiku Waweru & Another V Teresia Nyokabi Njuguna [2015] eKLR

Case Number: Civil Case 12 of 2010 (OS) Date Delivered: 23 Jan 2015

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Naomi Wanjiku Waweru & Alex Waweru Kiburia v Teresia Nyokabi Njuguna

Citation: Naomi Wanjiku Waweru & Another V Teresia Nyokabi Njuguna [2015] eKLR

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Zablon Kamau Kiarie V Erastus Githua Kihito & 2 Others [2015] eKLR

Case Number: Civil Case 190 of 2010 Date Delivered: 23 Jan 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Zablon Kamau Kiarie v Erastus Githua Kihito,Amos Kinyanjui & Eveready East Africa Limited

Citation: Zablon Kamau Kiarie V Erastus Githua Kihito & 2 Others [2015] eKLR

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Gichuki Muchiri V Wasike Waluanda & 2 Other [2015] eKLR

Case Number: Civil Case 197 of 2010 Date Delivered: 23 Jan 2015

Judge: Enock Chacha Mwita

Court: High Court at Kakamega

Parties: Gichuki Muchiri v Wasike Waluanda, Henry Waluanda & Rashid Waluanda

Citation: Gichuki Muchiri V Wasike Waluanda & 2 Other [2015] eKLR

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Berndeta Atsieno Wesonga V Joseph Malala Sakwa & 17 Others [2015] eKLR

Case Number: Civil Case 77 of 2008 Date Delivered: 23 Jan 2015

Judge: Enock Chacha Mwita

Court: High Court at Kakamega

Parties: Berndeta Atsieno Wesonga v Joseph Malala Sakwa, Humphrey Nyongesa Mapesa, Judith Uluma Kimanyala, Dorice Achola Odero, Linus Ogudo Ogweno, Ambrose Ambwere Opeso, James Amere Bunyali, Nerea Awino Odock, Nelson Makokha Wambia, Ranuel Namatsi , Agnes Khight Obiero, Casmir Augustus Obiero, Antony Ng’ono Obiero, Mabel Akiso Malanda, Fred Sumba, Rajab Sebwa Makokkha Injamu, Josephat Washika Malona a.k.a. Salim Wasika Maloba & George Musundi Onyango

Citation: Berndeta Atsieno Wesonga V Joseph Malala Sakwa & 17 Others [2015] eKLR

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Lawrence C. Njeru V Danson Buya Mungatana [2015] eKLR

Case Number: Civil Case 343 of 2011 Date Delivered: 23 Jan 2015

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Lawrence C. Njeru v Danson Buya Mungatana

Citation: Lawrence C. Njeru V Danson Buya Mungatana [2015] eKLR

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Irene Wambui Muthike V Konza Merchant Ltd & Another [2015] eKLR

Case Number: Civil Case 1260 of 2003 Date Delivered: 23 Jan 2015

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Irene Wambui Muthike v Konza Merchant Ltd & James Muraguri Kihuha

Citation: Irene Wambui Muthike V Konza Merchant Ltd & Another [2015] eKLR

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Jeremiah Muku V Methodist Church In Kenya Trustees Registered & Another [2015] eKLR

Case Number: H.C.C.C 80 of 2005 Date Delivered: 22 Jan 2015

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Jeremiah Muku v Methodist Church in Kenya Trustees Registered v Joseph Ntombura

Citation: Jeremiah Muku V Methodist Church In Kenya Trustees Registered & Another [2015] eKLR

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Jeremiah Muku V Methodist Church In Kenya Trustees Registered & Another [2015] eKLR

Case Number: Civil Case 80 of 2005 Date Delivered: 22 Jan 2015

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Jeremiah Muku v Methodist Church in Kenya Trustees Registered & Joseph Ntombura

Citation: Jeremiah Muku V Methodist Church In Kenya Trustees Registered & Another [2015] eKLR

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John Maina Mburu T/A John Maina Mburu & Co. Advocates V George Gitau Munene (Sued As Administrator Of The Estate Of Samuel Gitau Munene) & 3 Others [2015] eKLR

Case Number: Civil Case 265 of 2011 Date Delivered: 22 Jan 2015

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Maina Mburu T/A John Maina Mburu & Co. Advocates v George Gitau Munene (Sued as Administrator of the Estate of Samuel Gitau Munene),Ian Mukaro Munene,Jane Gathoni Munene & Joan Mugure Munene

Citation: John Maina Mburu T/A John Maina Mburu & Co. Advocates V George Gitau Munene (Sued As Administrator Of The Estate Of Samuel Gitau Munene) & 3 Others [2015] eKLR

Jurisdiction of taxing masters where parties have recorded consent

John Maina Mburu t/a John Maina Mburu & co. Advocates v George Gitau Munene (sued as administrator) & 3 others

Civil Case No. 265 of 2011

High Court of Kenya at Nairobi

A Mabeya, J

January 22, 2015

Reported by Teddy Musiga

Brief facts:

The applicants (defendants herein) had retained the services of the plaintiff firm. However, after sometime they decided to withdraw the said instructions and the parties executed an agreement as to the payment of legal fees to the respondent (plaintiffs). In the said agreement, the plaintiff/ respondent was to be paid Ksh 1,000,000/= in respect of Joint venture agreement and Ksh. 13,477,010/= for the succession cause. The agreement indicated that the fees payable was subject to negotiation or arbitration between the parties.” Thereafter, the applicant paid the Ksh 1,000,000/= but failed to pay the balance of the fees despite the demands. The plaintiff/ respondents then filed the instant suit claiming the sum of Ksh. 13,477,010/=. Later both parties entered into consent. Pursuant to the consent, the respondent drew his bill of costs that was taxed at Ksh. 21,782,728. The applicant was aggrieved by that taxation hence this suit.

Issue

  1. Whether or not there were circumstances in which a taxing master had jurisdiction to tax a bill of costs where the parties had entered into consent.

Civil Practice & Procedure  – taxation of bill of costs – jurisdiction of taxing master in taxation of bill of costs – taxation of bill of costs where parties have entered into consent – Advocates Act, section 45(1); Advocates Remuneration Order, rule 13

Section 45(1) of the of the Advocates Act stated that

“Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may-

 a.  Before, after or in the course of any contentions business make an agreement fixing the amount of the advocate’s remuneration in respect thereof;

 b. 

 c. 

 and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf.”

 Rule 13 of the Advocates Remuneration order provided that:-

 “13(1) The taxing officer may tax costs as between advocate and client without any order for the purpose upon the application of the advocate or upon the application of the client applies for taxing of a bill which has been rendered in summarized or block form the taxing officer shall give the advocate an opportunity to submit an itemized bills of costs before proceedings with such taxation, and in such event the advocate shall not be bound by or limited to the amount of the bill rendered in summarized or block form.”

 

Held:

  1. The court could not interfere with the taxing officer’s decision on taxation unless it was shown that either the decision was based on error of principle or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle.
  2. A taxing officer in assessing costs to be paid to an advocate in an advocate bill of costs was exercising judicial discretion. That such judicial discretion could only be interfered with when it could be established that the discretion was exercised capriciously and in abuse of the proper application of the correct principles of law. Therefore, the instant court could not purport to replace the discretion of the taxing master with its own.
  3. The applicants had contended that the term “subject to negotiation or arbitration” meant that the amount of Ksh. 13,477,010/= could only be decreased and not increased. However, that term, could only be interpreted to mean that the amount of Ksh. 13,477,010/= agreed by the parties was not conclusive. The parties had not agreed on that sum as the final and conclusive figure. They were open to discussion by way of negotiation or arbitration. It was only after such negotiation or arbitration that the final figure payable by the applicants could be agreed or arrived at.
  4. Nowhere in the entire document was there an indication that the said fee of Ksh. 13,477,010/= was either the minimum or maximum, it could not be correct to state that the said figure was the maximum. The parties could negotiate the figure downwards or upwards. Accordingly, it was not correct to argue that the taxing master did not have jurisdiction to award an amount in excess of the figure of Ksh. 13,477,010/= as indicated in that agreement.
  5. Where there was a fee agreement between an advocate and clients, there was no jurisdiction to tax a bill of costs. The court could only intervene in distinct situations. Section 45(6) of the Advocate’s Act provided that where there was an agreement, the costs of an advocate could not be taxed unless there was fraud, illegality and or coercion in the agreement.
  6. In the instant matter, there was no agreement as such by which section 45(6) aforesaid would apply, because, firstly, the agreement entered between the parties was not certain as it left the issue of the final figure payable as fees open to negotiation or arbitration. When there was no agreement, the respondent came to court. Secondly, the parties themselves entered into consent to refer the matter to taxation, in effect set aside their earlier agreement and there could be no further reference to that agreement. And finally, by entering appearance and delivering defenses in the instant suit, the door to negotiation or arbitration of the fees in terms of the agreement was firmly shut on the applicants. Therefore, the taxation of the respondent’s bill of costs did not breach section 45 of the Advocates Act.
  7. Once the matter was referred to the taxing master by the consent of the parties and by an order of the court, the taxing master was subject to the general law and principles regarding taxation of costs under the law. In that regard, there was no breach of rule 13 of the advocates Remuneration Order by the taxing master.
  8. Once the bill of costs was presented for taxation, the taxing master was at liberty to tax the same in terms of section 49 of the Advocates Act. Accordingly, the taxing master could increase or decrease the sum contained in the plaint depending on how she exercised her discretion in assessing the costs. Further, the value of the subject matter was not the sum of Ksh. 13,477,010/= claimed in the plaint but the services offered by the respondent.
  9. From the documents produced, there were separate instructions in respect of which there separate fees agreed upon. The fee on the joint venture agreement was agreed at Ksh. 1 million and was not subject to any negotiation as was for the probate and administration files. Therefore, that fee had been agreed on with finality. The fee on Joint venture agreement was not in dispute and was not open to be referred to taxation.

Application partly allowed. The taxation of the taxing master varied accordingly.

a) Total amount awarded                 Ksh. 13,122,125

 Less Item No.2.                                   Ksh.   2,000,000

 Amount of taxation                           Ksh.   11,122,125/-

 

 b) Increased by                  =             Ksh.    5,561,062.5

 Total                                      =             Ksh.   16,683,187.50

 c) V. A. T  16%                      =              Ksh.     2,669,310   

 Grad Total                            =             Ksh.   19,352,497/50

 

Cases

East Africa

1. First American Bank of Kenya v Shah & others [2002] EA 64 p 69 – (Explained)

2. Joreth Ltd v Kigano & Associates (2002) 1EA 92 – (Followed)

3. Muraya, Jane Gathoni v Abuodha & Owino Advocates Miscellaneous Application No 439 of 2010 – (Explained)

4. Njogu, DN & Co Advocates v National Bank of Kenya Miscellaneous Civil Case No 730 of 2006 – (Followed)

5. Omulele & Co Advocates v Syncresins Ltd Miscellaneous Application No 27 of 2013 – (Mentioned)

Statutes

East Africa

1.  Advocates Act (cap 16) section 45, 49 – (Interpreted)

2.  Advocates Remuneration Order (cap 16 Sub Leg) rule 13; schedule VI clause (1) – (Interpreted)

Advocates

1. Counsel Ms Owuor for the Respondent s

2. Ms Thongori for the 1st & 2nd Applicants

3. Mr Makori for the 3rd and 4th Applicants

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Atlas Copco Customer Finance AB V Polarize Enteprises Limited [2015] eKLR

Case Number: Civil Case 32 of 2013 Date Delivered: 22 Jan 2015

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Atlas Copco Customer Finance AB v Polarize Enteprises Limited

Citation: Atlas Copco Customer Finance AB V Polarize Enteprises Limited [2015] eKLR

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Family Health Options Kenya V Urbanus Mutunga Muthama & Another [2015] eKLR

Case Number: Civil Case 561 of 2010 Date Delivered: 22 Jan 2015

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Family Health Options Kenya v Urbanus Mutunga Muthama & Harrison Masawi Mkonji

Citation: Family Health Options Kenya V Urbanus Mutunga Muthama & Another [2015] eKLR

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Sehit Investments Limited V Josephine Akoth Onyango & 3 Others [2015] eKLR

Case Number: Civil Case 705 of 2009 Date Delivered: 22 Jan 2015

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Sehit Investments Limited v Josephine Akoth Onyango, Simon Otieno, Savings & Loan Kenya Limited & Attorney General

Citation: Sehit Investments Limited V Josephine Akoth Onyango & 3 Others [2015] eKLR

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Joseph K. Marindich & 4 Others V Reuben Yator & 13 Others [2015] eKLR

Case Number: Civil Case 63 of 2011 Date Delivered: 22 Jan 2015

Judge: Elija Ogoti Obaga

Court: Environment and Land Court at Kitale

Parties: Joseph K. Marindich & 4 others v Reuben Yator & 13 others

Citation: Joseph K. Marindich & 4 Others V Reuben Yator & 13 Others [2015] eKLR

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John Nahashon Mwangi V Kenya Finance Bank Limited (in Liquidation) [2015] eKLR

Case Number: Civil Case 212 of 2009 Date Delivered: 22 Jan 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation)

Citation: John Nahashon Mwangi V Kenya Finance Bank Limited (in Liquidation) [2015] eKLR

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Kalka Flowers Limited V Equity Bank Limited [2015] eKLR

Case Number: Civil Case 60 of 2014 Date Delivered: 20 Jan 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Kalka Flowers Limited v Equity Bank Limited

Citation: Kalka Flowers Limited V Equity Bank Limited [2015] eKLR

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Jaribu Credit Traders Limited V Homelex Limited [2015] eKLR

Case Number: Civil Case 63 of 2006 Date Delivered: 19 Jan 2015

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jaribu Credit Traders Limited v Homelex Limited

Citation: Jaribu Credit Traders Limited V Homelex Limited [2015] eKLR

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Charles Lutta Kasamani T/A Kasamani & Co. Advocates V Patrick Johnson Okwaro & Another [2015 eKLR

Case Number: Civil Case 47 of 2011 Date Delivered: 19 Jan 2015

Judge: Hilary Kiplagat Chemitei

Court: High Court at Kisumu

Parties: Charles Lutta Kasamani T/A Kasamani & Co. Advocates v Patrick Johnson Okwaro & Geoffrey Denis Oluoch T/A Otieno Yogo & Co. Advocates.

Citation: Charles Lutta Kasamani T/A Kasamani & Co. Advocates V Patrick Johnson Okwaro & Another [2015 eKLR

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Vihar Construction Company Limited V Uhani Limited [2015] eKLR

Case Number: Civil Case 148 of 2014 Date Delivered: 19 Jan 2015

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Vihar Construction Company Limited v Uhani Limited

Citation: Vihar Construction Company Limited V Uhani Limited [2015] eKLR

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Kenafric Diaries Manufacturers Limited V Independent Electoral And Boundaries Commission (IEBC) [2015] eKLR

Case Number: Civil Case 160 of 2014 Date Delivered: 19 Jan 2015

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Kenafric Diaries Manufacturers Limited v Independent Electoral and Boundaries Commission (IEBC)

Citation: Kenafric Diaries Manufacturers Limited V Independent Electoral And Boundaries Commission (IEBC) [2015] eKLR

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Eliud Muturi Mwangi (Practising In The Name And Style Of Muturi & Company Advocates) V LSG Lufthansa Services Europa/ Africa GMBH & Another [2015] eKLR

Case Number: Civil Case 154 of 2014 Date Delivered: 19 Jan 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Eliud Muturi Mwangi (Practising in the name and style of Muturi & Company Advocates) v LSG Lufthansa Services Europa/ Africa GMBH & LSG Sky Chefs Kenya Limited

Citation: Eliud Muturi Mwangi (Practising In The Name And Style Of Muturi & Company Advocates) V LSG Lufthansa Services Europa/ Africa GMBH & Another [2015] eKLR

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George Moga V Nairobi Women’s Hospital & 3 Others [2015] eKLR

Case Number: Civil Case 477 of 2009 Date Delivered: 16 Jan 2015

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: George Moga v Nairobi Women’s Hospital, Wahome, Kigondu & Mucheru

Citation: George Moga V Nairobi Women’s Hospital & 3 Others [2015] eKLR

COURT AWARDS DAMAGES AGAINST NAIROBI WOMEN'S HOSPITAL DUE TO NEGLIGENCE

George Moga (suing on behalf of the estate of Joyce Ladema (deceased) in his capacity as the legal representative) v Nairobi Women’s Hospital & 3 Others

High Court of Kenya at Nairobi

Civil Case No. 477 of 2009

R.E. Ougo J.

January 16, 2015

Reported by Emma Kinya Mwobobbia

Brief facts

The deceased sought the services of The Nairobi Women’s Hospital after being previously treated in a different hospital with no improvement. However, she was instructed by the doctor at Nairobi Women’s Hospital to continue with the medication ordered by the doctor at the previous hospital. The following day, the deceased’s condition worsened and she returned to the hospital for further examination. She was attended to by Dr. Kigondu who relied on the previous diagnosis of depression and admitted her awaiting Dr. Mucheru to arrive from Dadaab. All this while, the deceased continued to complain of chest pain and inability to breath. Dr Mucheru a psychiatrist, arrived at 8:30pm by which time the deceased’s condition had already deteriorated but nonetheless relied on the same initial diagnosis  of depression even after noting that the deceased’s condition was worsening rather than improving. The doctor administered valium and flugone to reduce chest congestion and depression and when her condition deteriorated further valium was administered. She later recommended that a physician be called to examine the deceased but left before ensuring that the same was done and no physician examined the deceased as recommended. The deceased later died at 10:30 pm on the same day. A post mortem was conducted on the deceased’s body and the cause of death was found to be acute col-pulmonale secondary to pulmonary thrombo-embolism.

The Court noted that before coming to court the plaintiff had lodged a complaint at the Medical and Dentist Board and a finding had been made by the Board after parties had made their submissions. The Board had professionals who are experts in the medical field and therefore their findings were vital. However, the court noted that the Board contradicted itself in the finding s and recommendation in the report. The court expected them being professionals to give a consistent verdict between their findings and recommendations which was not the case.

 

Issues:

  1. Whether the defendants were bound by the diagnosis of the doctor from the previous hospital during treatment of the deceased
  2. Whether the defendants owed a duty of care to the deceased to conduct a thorough examination before treatment
  3. Whether the duty of care was breached by the reliance of the doctor on the diagnosis of a previous doctor
  4. Whether the defendants was negligent in the execution of its duties and hence liable for the death of the deceased
  5. Whether the hospital could be held liable for the negligence of its employees including doctors who had taken individual Hippocratic oaths
  6. Whether there were any damages recoverable

 

Law of Torts – negligence – medical negligence – application for damages – claim by the applicants that the deceased died out of misdiagnosis and  medical negligence by the medical staff – duty of care  - breach of duty care – whether the medical staff had breached the duty of care owed to the patient now deceased during treatment at their facility

Held:

  1. The plaintiff’s case against the defendants was that of negligence. In order to succeed in negligence the plaintiff must prove that:
    1. there was a duty of care owed to deceased by the defendants
    2. that there was a breach of that duty of care and
    3. that the breach of duty resulted in damage to the plaintiff which was not remote.
  2. 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 .The law requires a doctor to exercise such degree of care as any skilful member of his profession may reasonably be expected to exercise. A doctor, like any other professional, must exercise such skill and care.
  3. The 2nd defendant being the first doctor to treat the deceased set the ball rolling in determining the deceased’s ailment. It was evident that he did not change the medication for reasons that the deceased had been examined by a consultant. Being the first doctor who attended to the deceased it was his duty to make the appropriate examination. However, he chose to follow the diagnosis of the doctor from the previous hospital and did not conduct his own proper diagnosis on the deceased.
  4. Despite the patient complaining of breathlessness and pain in her chest, fainting episodes and mood disorders, the 2nd defendant selectively picked the last mentioned complaint of the patient’s mood disorder and recommended the patient to be booked for psychiatric review. He did not take time to find out whether she had a problem with her chest and heart other than the depression she suffered from.
  5. Being the first doctor to attend to the patient, the 2nd defendant ought to have done a proper independent examination on the patient. Had he obtained a proper diagnosis from the patient he would have noticed that other than depression, the deceased needed urgent treatment to ease the pain in her chest and the breathlessness. The 2nd defendant therefore did not conduct proper diagnosis on the deceased but chose to rely on the diagnosis of the previous doctor.
  6. According to the evidence adduced in court and the Medical Practitioners and Dentist Board’s report and recommendation, the 3rd defendant did not prescribe any medication to the deceased since he was called in to sustain the deceased when she deteriorated and therefore, he was not negligent.
  7. The 4th defendant was called by a staff at the hospital at 3:00pm to check on the deceased but she responded to the patient at 8:30p.m, five hours later instead of explaining that being in Daadab, the distance between her and the deceased needed the intervention of another doctor. That would have in fact paved way for the 1st defendant to get a second doctor on call to attend to the deceased.
  8. When a patient of such condition as the deceased was attended to in any hospital and by doctors who upheld their Hippocratic oaths, a doctor ought to take each patient with the seriousness they deserve, that being the duty of care. They should consider that every patient in a hospital needs an emergency intervention until they are well enough to be discharged that being the standard of care.
  9. It was the 4th defendant’s duty to find out from the hospital staff the condition of the patient before she committed to attend to her knowing very well that she was out of Nairobi. It was apparent that the hospital staff opted to wait for her to attend to the patient and all the while the patient was deteriorating. It was the 4th defendant’s duty to carefully consider what the previous doctor had sought to do at before and in addition make a recommendation that a physician attends to her immediately.
  10. The 4th defendant owed the deceased a duty of care which she failed to give and thus was negligent in her duty. The exercise of reasonable skill and care required that the doctor ought to have taken the necessary steps as soon as possible to ensure the patient gets the best possible treatment whenever the patient’s condition required so especially when there was no hindrance to the facilitation of such treatment.
  11. What was expected of the doctors at the hospital was to take note that despite the deceased coming back to hospital a day after treatment she needed further diagnosis as she had a consistent complaint of chest pain and dyspnoea. Therefore, in not taking any action in the two days she was at the hospital the hospital staff did not exercise reasonable care and skill as expected in the circumstances of this case.
  12. The fact that the deceased died as a result of Pulmonary thrombo embolism (PTE) was not in dispute. All doctors who testified agreed that it was not easy to detect the disease. However, the 2nd and 4th defendants failed to investigate the causes of the chest pain and strained breathing that the deceased complained of. Even if there were psychiatric manifestations in the patient, the symptoms of chest pains ought to have been taken seriously as her condition deteriorated thereby leading to her admission.
  13. The 1st defendant was vicariously liable for acts of the 2nd and 4th defendants. The hospital authorities were liable for breach of duty of its members of staff of a duty owed to a patient because the doctors having received and taken under their care patients, were servants or employees of the 1st defendant and therefore any negligence in the performance of the doctors duties would make the 1st defendant vicariously liable. The 1st defendant was therefore vicariously liable for the actions of the 2nd and 4th defendants.
  14. (Obiter) “I must express my views on the findings of the Medical Practitioners and Dentist Board. I note that before coming to court, the plaintiff had lodged a complaint at the Medical and Dentist Board and after the parties made their submissions a finding was done by the Board. The Board has professionals who are experts in the medical field therefore their findings and recommendations were vital. However, I note that the Board contradicted itself in the findings and recommendation in the report. What would have been expected of them being professionals is a consistent verdict between their findings and recommendations.”

Judgment entered for the plaintiff against the 1st, 2nd and 4th defendants jointly and severally for Kshs. 3,623,200 plus costs and interest from the date of judgment.

Cases

East Africa

1. Hahn v Singh, [1985] KLR – (Followed)

2. Herman Nyangala Tsuma v Kenyatta Hospital Association t/a The Nairobi Hospital Dr James 3.Mbuvi and Dr Ernest Kioko Civil Suit No 534 of 2007 – (Explained)

4. Karisa, William Kazungu v Cosmas Angore Chanzera Civil Suit No 85 of 2001 – (Mentioned)

5. Kimani, Benedeta Wanjiku v Changwon Cheboi & another Civil Case 373 of 2008 – (Followed)

 6. M (A minor) v Amullenga & another [2001] KLR 420 – (Explained)

 7. Ngatia, Betty (Administrator of the estate of Gladys Waithira Ngatia) v Samuel Kinuthia Thuita Civil Suit No 339 of 1998 - (Followed)

United Kingdom

1. Cassidy v Ministry of Health (1951)2 KB 343; [1951] 1 All ER 574 – (Followed)

2. Djemal v Bexley Health Authority [1995]6 Med.L R 269 – (Followed)

3. Hunter v Hanley [1955] SLT 213; [1955] ScotCS CSIH_2; 1955 SC 200 – (Explained)

4. Marriot v West Midlands Regional Health Authority [1999] Lloyd’s Rep Med 23, CA – (Followed)

5. Republic v Batemen (1925)94 LJ KB 791 – (Followed)

Statutes

East Africa

1. Law Reform Act (cap 26) – In general

Texts & Journals

 1. Garner, BA., (Ed) (2009) Black’s Law Dictionary  St Paul Minnesota: West Group 9th Edn

 2. Powell, JL., Jackson,RM., (Eds) (1998)  Jackson & Powel on Professional negligence London: Sweet & Maxwell 5th Edn   p12-177

3.  Swash, M., Proff (Ed) (2001) Hutchinson’s clinical methods London: Saunders Ltd 21st Edn, box 3.8

 

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Frank Mwangi Mathews V Elizabeth Hanna Waithera & Another [2015] eKLR

Case Number: Civil Case 31 of 2009 Date Delivered: 15 Jan 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Frank Mwangi Mathews v Elizabeth Hanna Waithera & Soil Merchants (K) Ltd

Citation: Frank Mwangi Mathews V Elizabeth Hanna Waithera & Another [2015] eKLR

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A K M V A M M & 2 Others [2015] eKLR

Case Number: Civil Case 40 of 2011 Date Delivered: 15 Jan 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: A K M v A M M, Solomon Kyalo Mutiso & Kyalo Isika

Citation: A K M V A M M & 2 Others [2015] eKLR

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Fredrick Nzioki Kamunzyu & Another V Mary Mbuvi Maundu & 2 Others [2015] eKLR

Case Number: Civil Case 135 of 2011 Date Delivered: 15 Jan 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Fredrick Nzioki Kamunzyu & Lydia Wanjiru Waruguru v Mary Mbuvi Maundu,Francisca Syombua Maundu & Isaac Muthama Kimilu

Citation: Fredrick Nzioki Kamunzyu & Another V Mary Mbuvi Maundu & 2 Others [2015] eKLR

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Ezekiel Katato & 2 Others V Wuapi Ole Sialala & 11 Others [2015] eKLR

Case Number: Civil Case 310 of 2011 Date Delivered: 14 Jan 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Ezekiel Katato, Simon Saisa & Taine Ladaro v Wuapi Ole Sialala, Nkalayi Ole Nchape, Kotikash Olosidai, Karrayia Kueka, Chichaai Matampash, Tarayia Ole Rosha,Tauta Ole Mungira, Pius Nyabuga, Josiah Kipelian Kores, Tarayia Ole Ntaru, Parkau Tompoi & William Singira

Citation: Ezekiel Katato & 2 Others V Wuapi Ole Sialala & 11 Others [2015] eKLR

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Roselyne Otago V Jonathan Nyangau [2015] eKLR

Case Number: Civil Case 180 of 2012 Date Delivered: 14 Jan 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Roselyne Otago v Jonathan Nyangau

Citation: Roselyne Otago V Jonathan Nyangau [2015] eKLR

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Moses Munene V Patrick Gikunda Kimathi [2015] eKLR

Case Number: HCC 140 of 2008 Date Delivered: 14 Jan 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Moses Munene v Patrick Gikunda Kimathi

Citation: Moses Munene V Patrick Gikunda Kimathi [2015] eKLR

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Esther Nkatha Mukindia V Julius Kaai Munyua & 3 Others [2015] eKLR

Case Number: HCC 115 of 2012 Date Delivered: 14 Jan 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Esther Nkatha Mukindia v Julius Kaai Munyua & 3 others

Citation: Esther Nkatha Mukindia V Julius Kaai Munyua & 3 Others [2015] eKLR

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William Washington Omakada V John Wanyonyi Etyang [2014] eKLR

Case Number: Civil Case 30 of 2002 Date Delivered: 23 Dec 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: William Washington Omakada v John Wanyonyi Etyang

Citation: William Washington Omakada V John Wanyonyi Etyang [2014] eKLR

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Labelle International Limited & Another V Fidelity Commercial Bank Limited & Another [2014] eKLR

Case Number: Civil Case 786 of 2002 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Labelle International Limited & Tejinder Kaur Birdi v Fidelity Commercial Bank Limited & Ismael M.H Mawji

Citation: Labelle International Limited & Another V Fidelity Commercial Bank Limited & Another [2014] eKLR

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Hamdi Restaurant Limited V Hamdi Hotels And Restaurant Limited & Another [2014] eKLR

Case Number: Civil Case 488 of 2012 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Hamdi Restaurant Limited v Hamdi Hotels and Restaurant Limited & Registrar of Companies

Citation: Hamdi Restaurant Limited V Hamdi Hotels And Restaurant Limited & Another [2014] eKLR

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Plista Akumu Bayi V Susan Ongaro Bayi & 2 Others [2014] eKLR

Case Number: Environment & Land Civil Case 61 of 2012 Date Delivered: 19 Dec 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Plista Akumu Bayi v Susan Ongaro Bayi, John Meta Bayi & Alphonce Odiwuor Bayi

Citation: Plista Akumu Bayi V Susan Ongaro Bayi & 2 Others [2014] eKLR

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Giro Commercial Bank Limited V Michael Philip Theuri & 4 Others [2014] eKLR

Case Number: Civil Case 596 of 2003 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Giro Commercial Bank Limited v Michael Philip Theuri, Patrick Ng’ang’a Njinu, Joseph Kuria Tharao, Peter Kamau Njinu & David M. Githere

Citation: Giro Commercial Bank Limited V Michael Philip Theuri & 4 Others [2014] eKLR

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Danish Organisation For Sustainable Energy V Kenya Organisation For Environmental Education & Another [2015] eKLR

Case Number: Civil Case 465 of 2011 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Danish Organisation For Sustainable Energy v Kenya Organisation For Environmental Education & Non-Governmental Organisations Co-Ordination Board

Citation: Danish Organisation For Sustainable Energy V Kenya Organisation For Environmental Education & Another [2015] eKLR

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Erdemann Property Limited V Registered Trustees Of The Kenya & 2 Others [2015] eKLR

Case Number: Civil Case 294 of 2012 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Erdemann Property Limited v Registered Trustees Of The Kenya, Railways Staff Retirement Benefit Scheme & Kenya Railways Corporation

Citation: Erdemann Property Limited V Registered Trustees Of The Kenya & 2 Others [2015] eKLR

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Thiong’o Kiunga V Kenya Commercial Bank Limited & 3 Others [2015] eKLR

Case Number: Civil Case 722 of 2010 (O.S) Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Thiong’o Kiunga v Kenya Commercial Bank Limited, Peter Macharia Mwangi, Patrick Githinji Mwangi & Stephen Maina Kimanga

Citation: Thiong’o Kiunga V Kenya Commercial Bank Limited & 3 Others [2015] eKLR

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Villa Care Ltd V Registered Trustees Of The National Fund For The Disabled Of Kenya [2014] eKLR

Case Number: Civil Case 193 of 2013 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Villa Care Ltd v Registered Trustees of the National fund for the Disabled of Kenya

Citation: Villa Care Ltd V Registered Trustees Of The National Fund For The Disabled Of Kenya [2014] eKLR

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Virginia Wangui Mathenge V Agnes Wairimu Njoro & Another [2014] eKLR

Case Number: Civil Case 568 of 2012 Date Delivered: 19 Dec 2014

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Virginia Wangui Mathenge v Agnes Wairimu Njoro & Waweru Guandaru Mathenge

Citation: Virginia Wangui Mathenge V Agnes Wairimu Njoro & Another [2014] eKLR

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Jeremiah Matoke V Kenya Commercial Bank Limited & Another [2014] eKLR

Case Number: Civil Case 290 of 2002 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Jeremiah Matoke v Kenya Commercial Bank Limited & William Wilhite Anyenda

Citation: Jeremiah Matoke V Kenya Commercial Bank Limited & Another [2014] eKLR

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Capital Constructions Company Limited V Equity Bank Ltd & 2 Others [2014] eKLR

Case Number: Civil Case 660 of 2009 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Capital Constructions Company Limited v Equity Bank Ltd, Neptune Credit Management Ltd & Willie Omoro

Citation: Capital Constructions Company Limited V Equity Bank Ltd & 2 Others [2014] eKLR

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Co-Operative Bank Of Kenya Limited V Peter Kimani [2014] eKLR

Case Number: Civil Case 331 of 2004 Date Delivered: 19 Dec 2014

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Co-Operative Bank of Kenya Limited v Peter Kimani

Citation: Co-Operative Bank Of Kenya Limited V Peter Kimani [2014] eKLR

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NIC Bank Limited V Archen Company Limited & 2 Others [2014] eKLR

Case Number: Civil Case 924 of 2009 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: NIC Bank Limited v Archen Company Limited, Lazarus Okello & Fredrick Gichuhi

Citation: NIC Bank Limited V Archen Company Limited & 2 Others [2014] eKLR

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Sundonwer Lodge Ltd V Kenya Tourist Development Corporation [2014] eKLR

Case Number: Civil Case 481 of 2012 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Sundonwer Lodge Ltd v Kenya Tourist Development Corporation

Citation: Sundonwer Lodge Ltd V Kenya Tourist Development Corporation [2014] eKLR

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Clesoi Holdings Limited V Prime Bank Limited [2014] eKLR

Case Number: Civil Case 148 of 2011 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Clesoi Holdings Limited v Prime Bank Limited

Citation: Clesoi Holdings Limited V Prime Bank Limited [2014] eKLR

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Agnes Ndinda Malundu V Family Bank Limited [2014] eKLR

Case Number: Civil Case 27 of 2012 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Agnes Ndinda Malundu v Family Bank Limited

Citation: Agnes Ndinda Malundu V Family Bank Limited [2014] eKLR

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Medina Corporation Co Ltd V Meridian Properties Ltd & Another [2014] eKLR

Case Number: Civil Case 342 of 2012(603 of 06) Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Medina Corporation Co Ltd v Meridian Properties Ltd & another

Citation: Medina Corporation Co Ltd V Meridian Properties Ltd & Another [2014] eKLR

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Paragon Electronics Ltd V Samsung Electronics Ltd [2014] eKLR

Case Number: Civil Case 171 of 2009 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Paragon Electronics Ltd v Samsung Electronics Ltd

Citation: Paragon Electronics Ltd V Samsung Electronics Ltd [2014] eKLR

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Riara Group Of Schools Limited V Lucas Kimani [2015] eKLR

Case Number: Civil Case 704 of 2012 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Riara Group of Schools Limited v Lucas Kimani

Citation: Riara Group Of Schools Limited V Lucas Kimani [2015] eKLR

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