ADVOCATE TRAINING PROGRAMME

ATP 103: LEGAL WRITING AND DRAFTING

PROJECT WORK
BY FIRM 22 CLASS C
COURSE INSTRUCTOR: MRS NELLY KAMUNDE
SUBMITTED: 9TH SEPTEMBER.
NO. FIRM 22 MEMBERS STUDENT’S ID SIGNATURE

David Chokaa 20220495

Bill Khabongo 20220822

Kisese Jones Kyalo 20221960

Ann Wangui 20220883

Brillian Njoki 20220534

Rhema Sifuna 20220269

Ayoma Faith 20221114

Elizabeth Ombija 20220440

Leah Wanjiku 20220281

CHAIRPERSON………………………… SECTRETARY…………………………
SIGNATURE……………………………. SIGNATURE………………...................
DATE: ……………………………………. DATE: ………………………………….

DECLARATION
We certify that this project is our original work and has not been presented anywhere for
academic credit. We have referred to a range of sources in the course of preparing this document
which we have accordingly acknowledged.

CHAIRPERSON: …………………………………………..

SIGNATURE: ……………………………………………...

DATE: ……………………………………………………...

COURSE LECTURER: ........................................................

SIGNATURE: ………………………………………………

DATE: ……………………………………………………….
ACKNOWLEDGEMENT
We would like to sincerely acknowledge each other’s valued input in this research. This project
would not be complete without the effort and cooperation from each and every firm member.
We would also wish to express our gratitude to our lecturer Mrs Nelly Kamunde for her
scholarly guidance from the very beginning. Her assistance and advice have served a vital role in
the completion of our Project.

LIST OF LEGAL REFERRENCES

LEGISLATION.
Constitution of Kenya 2010.
Occupational Safety and Health Act

LIST OF ABBREVIATIONS
OSHA - Occupational Safety and Health Act

CASE LAW.
Boniface Muthama Kavita v Canton Manufactures, Ltd [2015] e KLR
Karita v Mbuthia (1985)
James Finlaly (K) Ltd v Benard Kipsang Koechi [2021] eKLR
Jones v. Livox Quarries Limited 1952 2 QB 608
Omusamia v Upperhill Springs Restaurant [2021] KEELRC 3 (KLR)
Stat Pack Industries vs James Mbithi Munyao (2005)
Alfred Chivatsi Chai& another v Mercy Zawadi
FIDA-Kenya & 3 others v AG
Roe v Wade 410 US 113 [1973]

ii
 Table of Contents
DECLARATION........................................................................................................................................i
ACKNOWLEDGEMENT.........................................................................................................................ii
LIST OF LEGAL REFERRENCES........................................................................................................ii
LEGISLATION.....................................................................................................................................ii
LIST OF ABBREVIATIONS...............................................................................................................ii
CASE LAW............................................................................................................................................ii
1.(b) APPROPRIATE COMMUNICATION..........................................................................................1
OFFICE MEMORANDUM..................................................................................................................1
Brief facts:..............................................................................................................................................1
Issues:.....................................................................................................................................................1
Analysis:.................................................................................................................................................1
Conclusion:............................................................................................................................................2
1.(a) LEGAL OPINION ...........................................................................................................................3
Summary of facts:..................................................................................................................................3
Issues arising:.........................................................................................................................................4
The Law:................................................................................................................................................4
Analysis:.................................................................................................................................................4
Conclusion:............................................................................................................................................6
2 CASE BRIEF..........................................................................................................................................7
Parties, Procedural History and Summary of Facts...........................................................................7
Issues for Determination & analysis....................................................................................................8
1) Whether there was a gap in the current statutory scheme to operationalize Article 26(4) of the
Constitution?..........................................................................................................................................8
2) Are sections 158, 159 and 160 of the Penal code inconsistent with Article 26(4) of the
constitution?...........................................................................................................................................9
3) Should the proceedings in the lower court be cancelled?.............................................................10
4) Were the constitutional rights of the Petitioners violated?..........................................................10
5) Should the court give orders for mandamus under prayers k, l and m?...................................11
3. PLAIN ENGLISH...............................................................................................................................12
Answer......................................................................................................................................................12
Explanation..............................................................................................................................................12
Bibliography............................................................................................................................................13

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1.(b) APPROPRIATE COMMUNICATION
MUTUA & COMPANY ADVOCATES.

OFFICE MEMORANDUM.
TO: Partner In Charge of Litigation.

FROM: Associate Partner.

DATE: 1st May 2022.

RE: DR. RUTHERFORD (CLIENT)-EMPLOYEE WORKPLACE INJURY DUE TO

FAULTY EQUIPMENT.

Brief facts: An employee of Engels Water Company, Dr. Rutherford during routine maintenance
fell from an unmaintained adjustable ladder owned by the company where he broke his hands.
Company policy provided employees needed to wear a helmet and a reflector jacket which he
had not worn. The managing director Mr. Hershford Wales was heard complaining that
employees who do not follow company policy on proper dressing and safety measures will not
be compensated in the event of accidents.

Issues: 1. Whether Engels Water Company is to blame for injuries suffered by Dr. Rutherford
while in the cause for his employment? 2. Was there contributory negligence on the part of Dr.
Rutherford?

Analysis: On Issue 1, Yes, Dr. Rutherford was injured while on duty. He alleges that he was
provided with a ladder due for servicing to perform work. The burden of proof is on Dr.
Rutherford to prove his case on balance of probability. The Occupational Safety and Health
Act (OSHA) provide that an employer should ensure the safety of his or her employees at the
work place. According to Winfield and Jolowicz on Tort 1“ If a worker is injured just because
no one had taken the trouble to provide him with an obviously necessary safety devise, it is
sufficient and in general satisfactory to say that the employer has not fulfilled is duty.” In the
case of Boniface Muthama Kavita v Canton Manufactures, Ltd [2015] e KLR learned
Justice Onyanja; held that the relation between employer and employee creates a duty of care
and the employer is required to take precautions for safety of the employee to avoid exposing the
1
WVH Rogers, London Sweet and Maxwell 14th Edition, page 213.
employee to unreasonable risk. Reliance is also placed in the case of Karita v Mbuthia (1985)
where the court found that under common law the employer had a duty of care to fence of the
machine or at least those parts, which were dangerous to the user of the machine. According to
OSHA, Engels Water Company owed a duty of care to Dr. Rutherford as their employee. This in
essence means that they would be liable to compensate him in case of an accident or a
negligence claim would arise. The company ought to have carried out routine maintenance on
the ladder and ensure that it is in good condition for use by the employees. For this claim to
suffice the harm needs to have been foreseeable and that nothing was done to prevent it.

On Issue 2, Yes, However the said duty of care is not absolute and it does not absolve the
employee from the duty to exercise due care to avoid exposing himself from foreseeable risk like
avoiding to wear safety clothing. Section 13(a) of OSHA provides that an employee should
ensure his own safety and health and that of other persons at the work place. The doctrine of Res
Ipsa Loquitor states that a person should not put themselves in harm’s way knowingly. In James
Finlaly (K) Ltd v Benard Kipsang Koechi [2021] eKLR Justice O.N.Makau; held an
employer’s duty of care is not absolute and it does not extend to cases where the employee is just
acting negligently, carelessly and recklessly. Further Lord Denning noted in Jones v. Livox
Quarries Limited 1952 2 QB 608 that a claimant must always foresee a breach of duty on the
part of the defendant and must always take the reasonable means and precautions necessary to
protect himself against accident or damage. Dr Rutherford Mutula can risk his case thrown out
due to contributory negligence as the policy requiring all employees to dress correctly and in
accordance with safety precautions including wearing helmets and using reflectors since it was
aware of the risk associated with that activity. Dr. Rutherford's condition worsened because he
didn't take the essential precautions to wear protective gear, such as a helmet.

Conclusion: Given the case law and the facts of this particular matter based on the 1st and 2nd
issue Engels Water Company would owe compensatory damages to Dr. Rutherford Mutula .
The best recourse to settle the matter is in the Employment and Labour Relations Court.

Yours Faithfully,

Associate Partner.

2
1.(a) LEGAL OPINION .
Mutua & Company Advocates
Mwatu Wa Ngoma Road, J.K Ibisu Building

P.O. Box 456-20100

Machakos.

___________________________________________________________________________________

Our Ref: MC/F22/01/022 Your Ref: TBA Date: 12 May 2022

Dr. Rutherford Mutula,

P.O. Box 2234- 00200,

Nairobi,

KENYA.

Dear Sir,

RE: LEGAL OPINION WORK PLACE INJURIES DURING ROUTINE

MAINTENANCE AT ENGELS WATER COMPANY ON 3RD FEBRUARY 2022

We render this Legal Opinion after the interview on 1 st May 2022 in compliance of your
instructions.

Summary of facts:
As an employee of Engels Water Company, during routine maintenance you fell from an
unmaintained metallic adjustable ladder due for servicing by the company for several years
where you broke your hands. At the time of the accident you were not wearing a helmet nor a
reflector jacket. Further company policy provided employees needed to wear a helmet and a
reflector jacket which you had not worn during the exercise. You informed us that the managing
director Mr. Hershford Wales was heard complaining that employees who do not follow
company policy on proper dressing and safety measures will not be compensated in the event of
accidents.

3
Issues arising:
a. Whether you are an employee of Engels Water Company?
b. Whether Engels Water Company can be liable for the injuries suffered?
c. Whether your claim can be defeated by contributory negligence?
d. Whether you have any legal remedy?
The Law:
Article 41(2)(b) of the Constitution of Kenya 2010 states that every worker has the right to
reasonable working conditions. Section 6 of the Occupational Safety and Health Act which
places a duty on employers to ensure the safety of their employees. Section 13 supra above
places a duty on the employee to ensure his own safety while at the workplace and to wear or use
protective equipment or clothing provided by the employer for the purpose of preventing risks to
his safety.

Analysis:
a. Whether you are an employee of Engels Water Company?
A contract of service is defined under Section 2 of the Employment Act to mean an agreement,
oral or in writing, expresses or implied, to employ or to serve as an employee for a period of
2
time. Justice Ocharo Kebira in the case of Omusamia v Upperhill Springs Restaurant,
described a contract of service to be i a contract by which a person, contractor or service provider
makes a commitment to another to carry out material or intellectual work or to provide a service
for a price. You work as an engineer at Engels Water Company, employed by contract to give
service for payment and period of time .If you prove the contract of service then you can be able
to bring action either under labor law and/ or tort law and get relief from the court.

b.Whether Engels Water Company was negligent and is liable for the injuries you
suffered?
Article 41(2)(b) of the Constitution of Kenya 2010 states that every worker has the right to
reasonable working conditions. Section 6 of the Occupational Safety and Health Act which
places a duty on employers to ensure the safety of their employees. In the case of Stat Pack
Industries vs James Mbithi Munyao (2005) the court held that an employer’s duty at common
law is to take all reasonable steps to ensure the employee’s safety. He is not expected to watch
over the employee constantly. Negligence is where one fails to take reasonable care and it results
2
[2021] KEELRC 3 (KLR) para 16

4
in the injury of another3 and further it is demonstrated by a duty of care on the part of the
defendant, that there was a breach of that duty of care, as a result an injury/damage occurred and
that the breach of duty of the defendant was the direct cause of the injury/damage. 4 The burden
of proof lies on the plaintiff.5 Your case satisfies all the elements required to prove negligence,
you were not afforded reasonable conditions and the company did not ensure for your safety.
Engels Water Company had an obligation to service the metallic adjustable ladder had been used
for a very long, but it failed to do so in the past several years. The company allowed you to use
it despite it being defective on the 3rd of February 2022 where as a result you fell off and broke
your hands. For you to succeed in this claim, you have to prove, among others, that you
suffered injuries while engaged on duties that you were expected to perform in the course of your
employment.
c. Whether your claim can be defeated by contributory negligence?
Section 13 of the Occupational Safety and Health Act supra above places a duty on the
employee to ensure his own safety while at the workplace and to wear or use protective
equipment or clothing provided by the employer for the purpose of preventing risks to his safety.
In the case of Alfred Chivatsi Chai& another v Mercy Zawadi,6 The court held failure to wear
a helmet at time of accident could not be a sufficient argument for her to be liable for
contributing to the accident because failure to wear a helmet did not cause the accident. Further
reliance is placed Jones v Livox Quarries Limited 1952 2 QB 608 where Lord Denning he
stated that a person is guilty of contributory negligence if he knew and could predict that he
could injure himself by doing something. Contributory negligence is where any person suffers
damage as a result partly as his own fault and partly of the fault of the other person. 7 In your
case, you had not put on the appropriate gear/equipment when you were working. Engels Water
Company can take up this defence and argue that you did not wear a helmet and a reflector jacket
at the time of you fell and broke your hands and therefore could not be compensated according to
company policy. However, the accident was not caused because you failed to wear a helmet and

3
R.F.V Heuston, Sir John William Salmond, R.A Buckley, Salmond and Heuston on the Law of Torts (7th
edn, Sweet &Maxwell 1928) pg 266-268
4
Lochgelly Iron Coal Co. Ltd v McMillan [1934] A.C.
5
Ahmed Mohammed Noor v Abdi Aziz Osman [2019] par 24 eKLR. See also Evidence Act, s107-108 and
Salmons and Heuston pg 313
6
[2019 HC 57
7
Ibid, 268-269. See also the Law Reform Act, s4

5
reflector jacket but because the ladder was faulty. Furthermore, the reflector jacket and the
helmet could not have in any way prevented injury to your arms. Therefore, it is our opinion that
the defense cannot stand.
d. Whether you have any legal remedy?
Your options for help based on the injuries you incurred, include you can raise the issue with
management and write a demand letter to the company seeking compensation. Seek alternative
dispute resolution such as negotiations, mediation or arbitration pursuant to Article 159 of the
Constitution of Kenya 2010, between yourself, your representative and the company If these
option fails recourse to the Employment and Labour Relations Court is suitable. Suing Engels
Water Company for a claim based under tort law negligence. Here, you will be able to claim for
damages both general and special. As a result, you will get compensation for the injuries
sustained. The second avenue you can pursue is to file a Constitutional Petition where you will
claim that your rights have been infringed.8 This will be hinged on Article 41 of the
Constitution. Here, you can pray for a declaration that your rights have been infringed and/or an
order for compensation.9
Conclusion:
The facts of the case are clear and we are inclined to believe that you have a valid claim against
Engels Water Company. Your claim can be brought under either labor law and/ tort law. We will
first have to prove that you are an employee of Engels Water Company. Further, we will have to
prove that Engels Water Company was negligent for failure to service the ladder and therefore
should be held liable and compensate you for your injuries. Against the defence of contributory
negligence we will just have to show that the failure to wear a helmet and reflector jacket was
not the direct cause of the accident, rather, that the faulty ladder was the direct cause of the
accident. Your claim can decide to sue Engels Water Company under tort law negligence and/or
bring a petition against them under Article 41 of the Constitution.

Yours Faithfully,

Rhema Sifuna , Associate Partner.

For: Mutua & Company Advocates.

8
Constitution of Kenya 2010, Art 22
9
Constitution of Kenya 2010, Art 23

6
2 CASE BRIEF

PAK and Salim Mohammed vs Hon. Attorney General & 3 others [2020]

Petition No. E009 of 2020

High Court of Kenya at Malindi

Coram: Justice R. Nyakundi

Dated: March 24th 2022

Parties, Procedural History and Summary of Facts.

PAK an 18 year old adolescent is the 1st Petitioner, Salim Mohammed is a registered clinical
officer is the 2nd Petitioner both arrested and charged with procuring abortion contrary to
Penal Code. The 1st Respondent is the Attorney General. The 2nd Respondent is the ODPP
Director of Public Prosecutions. The 3rd Respondent is the Inspector General of Police who
arrested the Petitioners mandated by law to arrest and effect detention under section 29(a) and 36
of the CPC. The 4th Respondent is the Senior Principal Magistrate, Kilifi Law Courts who is the
trial court of the Petitioners criminal case. The Petitioners filed a Petition supported by affidavit
challenging the constitutionality of sections 158, 159 & 160 of the Penal Code that criminalized
abortion at the High Court and their submissions. The 1 st Petitioner stated that the Respondents
forced her to make an involuntary statement and medical examination a violation of Article 25
(a) ,29 ,Article 49(1)(d) ,50(2)(4) Article 53(1)(c) and (2) of the constitution. She stated that
Article 26(4) of Constitution permitted abortion citing the case of FIDA-Kenya & 3 others v
AG. The 1st Petitioner citing Republic vs John Kithyulu, Rochin vs California, Francis
Mburu Mungai vs The Director of CID and Another submitted the decision to charge and
admitting the involuntary statement the 3rd respondent violated the provisions of Article 50(2) ,
(4) of the Constitution. Further stating the 4th Respondent violated their rights under Article
50(2) (a) by finding they had a case to answer. 1st,2nd,3rd Respondents filed grounds of
opposition and submissions with 2nd Respondent arguing among others that the case of
FIDA-Kenya & 3 others v AG determined issues raised and therefore they are barred by
estoppel. They stated Article 26(4) made abortion illegal and did not repeal sections 158,159
and 160 of the Penal Code. The 2nd Respondent in opposing the petition stated that the arrest,

7
recording of statement did not violate Articles 25(a), Article 29, Article 43(1) & (2) and
Articles 53(2). Citing the case of Ezekiel A. Omollo vs DPP & 2 Others it was submitted that
the arrest and recording of statements by the police did not contravene Articles 49 and 50.
Citing Kenneth Kanyarati & 2 others vs Inspector General of Police Director of Criminal
Investigations Department & 2 others maintained the matter to be res judicata.

Issues for Determination & analysis.

1) Whether there was a gap in the current statutory scheme to operationalize Article 26(4) of the
Constitution? 2) Are Sections 158, 159 and 160 of the Penal Code inconsistent with Article
26(4) of the constitution? 3) Should the proceedings in the Lower Court be cancelled? 4) Were
the Constitutional Rights of the Petitioners violated? 5) Should the court give orders for
mandamus under prayers k, l and m?

1) Whether there was a gap in the current statutory scheme to operationalize Article 26(4)
of the Constitution?
The court relied on the case of S vs Makwanyane (1995) which held that the right to life is
antecedent to all the other rights in the Constitution. Without life in the sense of existence, it
would not be possible to exercise rights or to be the bearer of them. It observed the application
of international law pursuant to Article 2(5) of the Constitution and highlighting Human Rights
Committee General Comment Number 36 which affirmed that States must provide access to
safe, legal and effective access to abortion where the life and health of the pregnant woman or
girl is at risk. Holding: The court held that a restrictive abortion laws coupled with lack of
effective laws giving effect to Article 26(4) of the Constitution, exposed women and girls to
mental and physical health risks thereby violating their right to life. Reasoning: The court
reasoned that a blanket ban on abortion and prosecution of medical personnel exposes both the
mother and fetus to mortality absolutely violates the right to life. Right to Privacy; The court
adopted the case of Roe v Wade 410 US 113 [1973] where it was ruled that the right to privacy
extended to a woman’s decision to have an abortion, but that right must be balanced against the
State’s interests in regulating abortions. The legal regime employed included the Committee on
Economic, Social and Cultural Rights (CESCR) and the Committee on the Elimination of
Discrimination against Women (CEDAW) , African Commission on Human and Peoples
Rights which indicated that women’s right to health includes their sexual and reproductive
health and this included the right to privacy. Holding: The courts stated that the legislature

8
further draft a law which recognizes right to abortion in consonance with Article 26(4) of the
Constitution for protection of right to life. Reasoning: The court reasoned there exists a direct
link between a woman’s decision to terminate a pregnancy with the constitutional right to
privacy. The court made a judgment “The language in the impugned sections looked at from
the legal lens of the Constitution there is a gap on information regarding the termination of
pregnancies as strongly provided for in these provisions. That a declaration directed at
Parliament to enact an abortion law in terms of Article 26(4) of the Constitution to provide
for the exceptions.” Comments: Abortion is quite a sensitive factor in society, as much as there
are laws prohibiting and giving exceptions to its performance there ought to be put in place
legislation providing more information on how Article 26(4) will be affected.

2) Are sections 158, 159 and 160 of the Penal code inconsistent with Article 26(4) of the
constitution?
In determining this issue the court employed the principles espoused in Federation of Women
Lawyers & 3 Others vs The Attorney General & 10 others [2019] eKLR cited with approval
the decision in Coalition for Reform and Democracy (CORD) & 2 Others vs Republic of
Kenya &10 Others [2015] eKLR which held that Article 259 required courts in considering
the constitutionality of any issue do interpret the Constitution in a manner that promotes its
purposes, values and principles, advances the rule of law, human rights and fundamental
freedoms in the Bill of Rights and that contributes to good governance. Holding: The unlawful
actions contemplated in the impugned penal provisions ought to be read harmoniously whenever
reasonable with separate parts being interpreted with their broader statutory context. Reasoning:
The court reasoned that the constitutional provision clearly set out the threshold within which
procurement of an abortion was permissible, the parameters being opinion of a trained health
professional, life of the mother in danger. Concluding for the abortion to be considered
unlawful it must breach the threshold. The court made judgment “That sections 158,159 and
160 of the Penal Code are not inconsistentwithArticles,26, and Sixth Schedule Section 7 of
the Constitution.” Comments: The logic of putting the context of the impugned sections with
the wrong they are meant to inhibit is essential since the exception or limitation is already
provided for under the Constitution. We agree with the judgment.

9
3) Should the proceedings in the lower court be cancelled?
The Petitioners sought for an order of certiorari a judicial review in nature as a remedy under
Article 23 of the Constitution to have the proceedings quashed. In determining this the court
relied on the case of Kenya National Examinations Council vs Republic Ex Parte Geoffrey
Gathenji Njoroge & Others Civil Appeal No. 266 of 1996 eKLR where the Court of Appeal
held an order of certiorari can quash a decision already made and will issue if the rules of
natural justice are not complied with. Holding: The court concluded that the charges and
proceedings were unfounded and they should be quashed as there was no prima facie evidence .
The abortion was conducted outside the threshold of Article 26(4) of the Constitution.
Reasoning: The court reasoned that this discretionary remedy by the court to quash quasi-
judicial decisions of inferior tribunals and courts was in cases where the decision made was an
error of law on the face of record. The court pronounced judgment on this issue and stating.
“That the proceedings having been marked with irregularities from the outset a writ of
certiorari clearly merit based do issue against the text of the charges involved in
prosecuting the petitioners under the authority of Article 157 (6) & (7) of the Constitution.”
Comment: Where proceedings and decisions of inferior courts to place accused person on their
defence are marred by errors apparent of the face of record, lack of prima facie evidence they
ought to be quashed as they are repugnant to the principles of natural justice.

4) Were the constitutional rights of the Petitioners violated?

The court relied on the principles set out in the case of Mumo Matemo vs Trusted Society of
Human Rights Alliance Civil APP.290/2012 (2013) eKLR that established the threshold for
constitutional violation, where it was held a person should set out with a reasonable degree of
precision that of which he complains, the provisions infringed, and the manner in which they are
infringed. Among others it also relied on the case of Avocats Sans Frontieres (on behalf of
Bwampanye) –v- Burundi (2000) AHRLR 48 (ACHPR 2000) where it was decided the right
to fair trial involved the right to equal treatment, the right to defence and Courts guaranteeing a
fair trial to all. Holding: It was crystal clear that the 1 st Petitioner’s rights were grossly violated.
The 2nd petitioner acting on emergency may not face criminal penalties because he would not
meet both the mensrea and actus reus of the offence. Reasoning: The prosecution failed to
establish the medical procedure breached Article 26(4), there was no counsel present when the 1 st
Petitioner signed the statement and the admission by the Respondent that the involuntary

10
statement was used to charge the Petitioner. The court pronounced itself on the issue and made
judgment. “That the forced medical examination in which the 1st petitioner was subjected
to by the police violated her rights .That the trained health professional licensed to practice
medicine in Kenya exercising skill with due care and attention shall not be guilty of an
offence in the expansive provisions of the Penal Code on procuring abortion.” Comment:
We agree with the court’s finding in that the health and other rights of an individual remain
paramount and any unjustified attempt to infringe them by state organs ought to be sanctioned.

5) Should the court give orders for mandamus under prayers k, l and m?
The court observed the threshold for issuing orders of Mandamus set out in Kenya National
Examination Council vs Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others [1997]
eKLR where the court held “The order of mandamus is a command issuing from the High Court,
directed to inferior tribunal, requiring them to do which appertains to their office and is a public
duty. Its purpose is to remedy the defects of justice.” Holding: Mandamus cannot be granted on
mere apprehension by the Petitioners that their rights are likely to be violated in the future by the
respondent. Reasoning: The court noted that the Petitioner did not show the actions sought , the
respondents were legally bound to do. The court pronounced itself on the issue that ,“the
declaration be and is hereby issued that a prerogative writ of mandamus prayed for by the
petitioners against the 1st, 2nd and 3rd respondents to fulfil the public duty on a wide
range of duties stated in the petition lacks merit and is therefore denied”. Comment: We
are in agreement with the court that indeed one cannot enforce obligations that are not specific
or a duty vested on a state organ within such a timeline that would amount to ultra vires.

11
3. PLAIN ENGLISH

The declaration stated, that the plaintiff theretofore, and at the time of the committing of the
grievances thereinafter mentioned, to wit, on, etc, was lawfully possessed of a certain donkey,
which said donkey of the plaintiff was then lawfully in a certain highway; and the defendant was
then possessed of a certain wagon and of certain horses drawing the same, which said wagon and
horses of the defendants were then under the care, government and direction of a certain then
servant of the defendant, in and along the said highway; nevertheless the defendant then ran
and struck with great violence against the said donkey of the plaintiff and thereby then
wounded, crushed and killed the same.

Draft the above in plain English.

Answer
In report, the defendant`s servant fatally hit and killed the plaintiff`s donkey, while riding the
wagon pulled by horses along the highway.

Explanation
1. We avoided legalese and archaic words- Declaration, stated, theretofore, thereinafter,
to wit, lawfully possessed, which said, nevertheless and thereby.
2. Avoided word wasting idioms- committing of the
3. We avoided string words (synonyms) - (care, government and direction), (ran and
struck), (wounded, crushed and killed).
4. We avoided using long sentences and instead used short sentences.
5. We avoided bloated phrases- at the time of, in and along.
6. We avoided verbose words.

12
Bibliography.

Salmond and Heuston on the Law of Torts (7th edn, Sweet &Maxwell 1928)

Winfield and Jolowicz on Tort London Sweet and Maxwell 14th Edition

13