REPUBLIC OF KENYA

IN THE HIGH COURT, NAIROBI

CIVIL SUIT No. 1376 OF 2005
PETER NJOROGE wa KAMAUPLAINTIFF
VERSUS
KENYA POWER AND LIGHTING COMPANY LTDDEFENDANT

DEFENCE
1. Save as in herein below expressly admitted, the defendant does not admit liability to
the plaintiff and all the allegations and contents of the plaint as if the same were set
out herein verbatim and traversed ad seriatim.
2. The defendant states that the plaint as framed is misconceived, incompetent and bad
in law and at the appropriate stage the defendant shall apply for its striking out and/or
raise a preliminary point of law on that basis.
3. The contents of paragraph 1 and 2 of the plaint are admitted in so far as they are
descriptive of the parties, save to add that the defendants address for service for the
purposes of the suit is care of Messrs. WENGER, FERGUSSON AND CO.
ADVOCATES, INTERNATIONAL HOUSE, MEZZANINE FLOOR, P.O. BOX 77,
NAIROBI.
4. The defendant admits the contents of paragraph 3 of the plaint that the plaintiff was a
meter reader, employed by the defendant on contractual terms and situate at Stima
Plaza but does not admit that at the material time and date of the alleged accident the
plaintiff was acting in the ordinary course of employment, the plaintiff is put to strict
proof thereof.
5. In reply to paragraph 4 of the plaint, the defendant reiterates the averments of the
immediate aforestated paragraph of the defence and further asserts that at the material
time and date of the alleged accident the plaintiff was acting outside the realm of his
course of employment and as such the plaintiff has no recourse to the defendant
and/or right over the defendant for any claim or claims arising thereof whatsoever.

6. The defendant does not admit the contents of the Headings PARTICULARS OF
INJURY and PARTICULARS OF SPECIAL DAMAGES as particularized therein
under and puts the plaintiff to strict proof thereof.
7. The defendant does not admit the allegations in paragraph 5 of the plaint that they did
not provide the plaintiff with the safety gear and further state that as stipulated by the
provisions of The Employment Contract sections 6 & 7, the plaintiff has/had a duty to
ensure that the said safety gear and other equipment as documented in the Equipment
Release Form are in good and proper working condition as well as apply common
sense as pertaining to matters of safety to himself as well as others.
8. In response to paragraph 6 of the plaint, the defendant states that the plaintiff does not
have a valid claim against the defendants for the sum claimed nor for damages for the
alleged breach of contract and puts the plaintiff to strict proof thereof.
9. The averments particularized under the Heading PARTICULARS OF
NEGLIGENCE are not admitted by the defendants and refers the plaintiff to the
provisions of The Employment Contract sections 6 & 7 as well as the express
provisions of The Equipment Release Form (both documents of which the plaintiff is
signatory to), which lay the onus on the employee [plaintiff included] to:
a) To take reasonable care to ensure that the equipment assigned to him for purposes
of carrying out his duties of employment and safety gear therein included are in
good and proper working condition BEFORE he embarks on their use.
b) Further that as a matter of COMMON SENSE, the plaintiff employee, having
known or had reasonable cause to believe that any of the said equipment was
faulty, ought, as a reasonable person to have:
I) Reported the same to The Mechanics and Repairs Department of the
defendant company, which report if any the defendant has no knowledge
thereof
II) NOT put the said faulty equipment into use knowing or having reasonable
cause to believe that the same faulty equipment or lack of safety gear could
put his health or life at risk.
The defendants further wish it to be NOTED that reference to equipment includes but is
not limited to:
a) Helmets
b) Kneepads

c) Safety Jackets
d) Gloves
e) Goggles
f) Boots
Which equipment were at the disposal of all the assigned employees at all material times
including the plaintiff and the defendant therefore CANNOT be held liable for the NONUSE or WRONGFUL USE of the same.
10. The defendant does not admit the averments enunciated under the Heading
PARTICULARS OF BREACH OF CONTRACT in the plaint that the defendant
wrongfully terminated the contract of employment with the plaintiff citing Section 5
(1) (ii) of the Workmens Compensation Act under which the plaintiff acted in
misconduct when he put into use equipment knowing them NOT to be in good and
proper working condition as well as embarking on the alleged course of duty whilst
lacking the relevant safety gear such as helmet which were at all times at his disposal
contrary to the provisions of The Employment Contract and The Equipment Release
Form.
The defendant further does not admit that the plaintiff was never served with a Notice of
Termination of Contract at least 28 days before the material date of the termination of the
contract of employment.
11. In reply to paragraph 7 of the plaint, the defendant does not admit liability for the
plaintiff loss of earning capacity as alleged in the plaint.
12. In reply to paragraph 8, the defendant admits receipt of Notice of Intention To Sue but
deems the suit to be misconceived, ill advised, incompetent and bad in law as
aforementioned.
13. The contents of paragraph 9 are admitted in so far as there have been no previous
proceedings in any court between the plaintiff and the defendant over the same
subject matter.
14. The jurisdiction of the court is not contested.

REASONS WHEREFORE, the defendant prays that the plaintiffs suit be dismissed with
costs.
DATED at NAIROBI this Day of..2005.
.
WENGER, FERGUSSON & CO.
ADVOCATES.
ADVOCATES FOR THE DEFENDANT.
DRAWN & FILED BY:
WENGER, FERGUSSON & CO. ADVOCATES.
INTERNATIONAL HOUSE
MEZZANINE FLOOR
P.O. BOX 77,
NAIROBI.
TO BE SERVED UPON:
MUCHIRI, KISAKA & CO. ADVOCATES
TEMBO HOUSE, 3rd FLOOR
P.O. BOX 48354,
NAIROBI.