High Court 19714 of 2025

5. The plaintiffs further alleged that at all material times the 1st Defendant held himself out as an experienced, skilled and competent Consultant Gynaecologist, to provide to the 1st Plaintiff Gynaecological consultation and advisory services over the Pelvic Endometriosis issue. 6. The plaintiffs further claimed that at all material times the 2nd Defendant held himself out to be experienced, skilled and competent as a Consultant Urologist and agreed, for reward, to provide to the 1st Plaintiff with consultation and advisory services subsequent to the Pelvic Endometriosis treatment offered by the 1st Defendant. 7. According to the plaintiffs on 14th of September 2006, the 1st Defendant carried out the Pelvic Endometriosis on the 1st Plaintiff at the Hospital and due to the negligence of the 1st Defendant, the 1st Plaintiff's bladder was damaged resulting in a Vesico Vaginal Fistula. 8. The matters set out above were caused solely by the 1st Defendant in breach of contract and negligence in the course of treatment to the 1st Plaintiff. 9. The plaintiffs further alleged that the 1st Defendant was negligent in that he: (a) Unskilfully performed a hysterectomy procedure. (b) Unskilfully performed a Pelvic Endometriosis procedure. (c) Unskilfully performed an operation on 14th September 2006. (d) Failed to exercise reasonable care in carrying out the operation on14th September 2006; (e) Knew or ought to have known that he was not qualified properly or at all to carry out the operation on 14th of September 2006; (f) Failed to consult or engage a Urologist during the operation on 14th September 2006; (g) Wrongfully discharged the 1st Plaintiff from hospital after the operation on 16th September 2006; (h) Carried out in breach of contract negligent treatment and operations on 14th September 2006; (i) Was not qualified to practice as a medical doctor and more particularly as a urological surgeon; (j) He failed to exercise due care and diligence in his care of the First Plaintiff; (k) He failed to exercise the proper skill and care commensurate with a Doctor practising in the field of Obstetrics and Gynaecology; (1) And the 1st Plaintiff will to the extent necessary rely on the principle of res ipsa loquitor. 11. The 1st Plaintiff also learnt that during the hysterectomy procedure wherein the 1st Plaintiff delivered the Uterus and ovaries per birth canal, the 1st Defendant removed the 1st Plaintiff's cervix without the 1st Plaintiff's knowledge and /or consent. 12. On 4th of October 2006 emergency repairs and procedures were carried out by the First and 2nd Defendants in an attempt to remedy the Vesico Vaginal Fistula, However, notwithstanding these emergency repairs, the Vesico Vaginal Fistula continued. 13. The plaintiffs further contended that the matters set out above were caused solely by the First and 2nd Defendant's breach of contract and negligence in the care and treatment of the 1st Plaintiff. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 2

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Particulars Of Breach Of Contract Of The First And 2Nd Defendants 14. The 1st and 2nd Defendants were in breach of contract in that: a. They failed to exercise reasonable care and skill in the provision of professional advice and treatment in respect of a special skill which they had held themselves out to possess. b. Unskilfully and in breach of contract performed an operation on 4th c. October 2006. d. Failed to exercise reasonable care in carrying out the Second operation e. on 4th October 2006; f. Knew or ought to have known that the 1st Defendant was not qualified g. properly or at all to carry out the original operation; h. The 1st Defendant failed to consult or engage a Urologist during the i. original operation; j. Carried out in breach of contract further treatment and operations on 4th of October 2006. k. The 1st Defendant was not qualified to practice as a Urological Surgeon. The First Plaintiff avers that the First, Second and 3rd Defendants were negligent and in breach of their common law and contractual duty. Particulars Of 1St And 2nd Defendant's Negligence 15. The 1st and 2nd Defendant were negligent in that they: (a) Carried out negligent treatment and operations on the 1st Plaintiff; (b) Failed in both operations; (c) Failed to take reasonable care in carrying out the operation; (d) Knew or ought to have taken a second Urologist's opinion; (e) Treated and operated the 1st Plaintiff in an unskilful or negligent manner. Particulars Of 3rd Defendant's Negligence And/or Breach Of Contract 16. The 3rd Defendant was negligent and in breach of contract in that it:a. Allowed unskilled or unqualified negligent medical practitioners to work and operate at its Hospital; b. Allowed an unqualified person to work and operate at its Hospital c. 3rd Defendant's agent or servants acted without reasonable care and skill in treatment, operation and advice to the 1st Plaintiff; d. 3rd Defendant's agents or servants allowed treatment, operation and advice to be carried out in a negligent manner or without reasonable care. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 3

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e. 17. 3rd Defendant's agent failed to exercise reasonable care and skill in the provision of professional advice and treatment in respect of a special skill which they had held themselves out to possess. As a result of the matters aforesaid, the 1st Plaintiff, who was aged 32 years at the time, suffered great pain, sustained severe injury, loss and damage. Particulars Of The 1st Plaintiff's Injuries (a) Persistent lower abdominal pain with tenderness; (b) Persistent bottom/perineum pain; (c) Damaged contracted scarred bladder; (d) Capacity of bladder has been reduced; (e) Severe urinary incontinence. (f) Rupture of the vaginal wall and uterus. (g) Severe Trauma. (h) Recurrent urinary tract infections 18. The plaintiffs further alleged that as a result of the matters aforesaid, the 1st Plaintiff suffered and continued to suffer severe humiliation and embarrassment, emotional distress leading to depression of having to put on diapers. 19. Further, the plaintiffs alleged that the 1st Defendant removed the 1st Plaintiff's cervix without the 1st Plaintiff's knowledge and /or consent and she thereby sustained loss and damage; Particulars Of Loss a. Loss of the cervix; b. Loss of ability to satisfy her husband sexually; c. Loss of sexual enjoyment. 20. The plaintiffs claimed that subsequent to the loss and damage caused by the Defendants' breach of contract and negligence, the 1st Plaintiff was compelled to seek further specialized medical attention in South Africa and thereby incurred additional medical expenses over and above the expenses paid to the Defendants, which consideration wholly failed. 21. It was also alleged by the plaintiffs that the nature of injury inflicted on the 1st Plaintiff requires sustained and continuous medical treatment and the 1st Plaintiff claimed against the Defendants jointly and severally for the costs of future medical care to be ascertained by an inquiry at the hearing hereof. Particulars Of The 1st Plaintiff's Special Damages Expenses on treatment and incidentals ITEM Amount Kshs. Amount https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 4

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a. Amounts paid to the Defendants i Operation Fee to 1st Defendant 100,000.00 ii Bill to Defendant 132,000.00 iii Anesthesiologist’s 35,000.00 fee iv Further fee to 3rd Defendant v Further 10,000.00 Anesthesiologist’s fee vi Operation fee to the 2nd Defendant 50,000.00 i Airfare Economy Class USD 976 68,320.00 ii Further airfare USD 2250 157, 500.00 iii Further airfare USD 2260 158,200.00 iv Accommodation USD 1554 108, 780 v Hospital Bill 26,093.84 Rands 260, 938. 40 vi Doctor’s Fees 97,571. Rands 36 985, 440.60 vii Medicines 3, 510. 52 Rands 38, 145.20 3rd 58,000.00 b. Expenses to, from and while in South Africa viii Doctor Consultation fee 500 Rands 5,000. 00 ix Further Doctor’s Fee 1500 Rands 15,000. 00 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 5

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x. Taxi travelling (to and from Hospital and Clinics) 720 Rands Xi Cost of Future medical care 5,000,000 TOTAL 22. Kshs. 524.20 7, 200. 00 7,207, The 1st Plaintiff went on to claim that she has further suffered social stigma as a result of the matters aforesaid as her friends and relatives have looked down upon her with suspicion as being fragile and unclean arising from the post -surgery complication and she has further been shunned by friends and relatives who are afraid to relate with her because of the fear of being requested to assist with meeting hospital bills or to otherwise be associated with her. In her testimony she went to great length to explain to this court that her friends and relatives distanced themselves from her to avoid being called upon to assist in meeting medical costs since she would be occasionally in and out of hospital. 23. The 1st Plaintiff further stated that by reason of the injuries and incapacities, she has been rendered incapable of being in any gainful employment and therefore claims loss of earnings or loss of earning capacity. 24. The Second Plaintiff who is the husband of the 1st Plaintiff claimed and testified that he was deprived and continues to be deprived of the spousal society and services of the 1st Plaintiff and has been put to considerable trouble, inconvenience and expense, and has suffered loss and damage as a consequence thereof. He also testified that they were forced to sleep in different bedrooms due to the 1st plaintiff’s condition. 25. . The plaintiffs claimed that they issued notices to sue to the defendants but the same were ignored prompting the filing of this suit. 26. The Plaintiffs have sought Judgment against the First, Second and 3rd Defendants jointly and severally for:a. General damages for: i. Pain and suffering to the 1st Plaintiff; ii. Loss of society and services by the Second Plaintiff; b. General damages for removal of the 1st Plaintiff's cervix without the 1st Plaintiff's knowledge and /or consent. c. Special damages of Kshs. 7,207,524.20. d. Loss of. earnings or earning capacity. e. Costs; f. Interest on (a), (b) and (e) above; g. Such further or other relief this Honourable Court may deem fit to grant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 6

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Plaintiff ’s Case 1St Plaintiff's Evidence 27. . The 1st plaintiff during her testimony adopted her statement as her evidence in chief. In the statement she stated that on or about 23 October 2005 to 27th October 2005 she was admitted at the 3rd Defendant's hospital in Nairobi on instructions of the 1st Defendant for a procedure concerning her reproductive organs. 28. . The 1st Defendant attended to her and performed a procedure of hysterectomy. 29. During the procedure the 1st Defendant only advised the 1st plaintiff that he would be remove her uterus and ovaries. 30. . The 1st plaintiff later learnt that the 1st Defendant removed the uterus and ovaries through the vagina rather than an open operation by dissecting her abdomen and removing the uterus and the ovaries. 31. . According, to the 1st plaintiff, at the time of the operation the only consent availed to her was to remove the uterus and ovaries and no more. 32. . The 1st plaintiff later learnt that the 1st Defendant removed her cervix, and never told her of this removal and neither was he authorized by her to remove it. 33. . The 1st plaintiff has since the operation at the age of 31 lived without a cervix. 36. According to her the 1st Defendant never advised her at all of implications of the type of operation that was proposed and specifically maintained that the 1st Defendant never told her that the cervix would be removed, 37. . As a married woman, the 1st plaintiff testified that she has suffered extreme loss by reason of removal of her cervix. The 1st plaintiff testified that she has since the removal of the cervix not been able to satisfy her husband sexually as she used to prior to the operation. 37. . The 1st plaintiff went on to testify that on or about 13th to 16th September 2006, she was admitted at the 3rd Defendant's hospital for medical care for procedure known as Pelvic Endometriosis. She testified that she was admitted under care of the 1st Defendant and the 3rd Defendant. 38. It was her further evidence that she later learnt that the Pelvic Endometriosis was as a result of the 1st Defendant's negligence when during the Hysterectomy procedure he delivered her uterus and ovaries through the vagina. 39. . The first plaintiff further stated that at the time of the operation all the Defendants were aware of her reproductive health condition having been a patient of the Defendants for several years. 40. At the time of the operation the 1st Defendant represented himself to her as a qualified Consultant Gynaecologist who was able to offer the specialized treatment that she sought. 41. . According to her, in the operation of 14th September 2006, she was attended to by the 1st Defendant and the agents of the 3rd Defendant. 42. After the operation, she testified that she developed a vesico vaginal fistula, because in course of the operation the 1st Defendant and the servants of the 3rd Defendant scarred her bladder. 43. . She went further to testify that after the operation she felt extreme pain in her vagina and because of the urinal incontinence, the urine could leak even on the sofa seat and all the places she would sit https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 7

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and or stand. The 1st plaintiff was not suffering urine incontinence when she went for the operation on 14th September 2006. 44. . On developing the fistula, the 1st Defendant and 2nd Defendant proposed and carried out repair procedures; vide a further operation carried out on or about the 4th October 2006. 45. At the time of the said operation the 2nd Defendant represented to her as being a Consultant Urologist and who was capable of offering the specialized treatment she needed then. 46. . The fistula persisted even after the said second operation and the First, Second and 3rd Defendants failed to advise that indeed she had a fistula and instead having inserted a catheter inside her, assured her that her bladder was well when indeed they knew it was not. 47. She went on to state that as a result of the said urinal incontinence, she was caused a lot of embarrassment. The 1st plaintiff narrated an incident that happened while at the M.P. Shah Hospital where she had gone for X-ray photographs. She testified that while in a queue together with other members of the public, she was urinating on herself because of the urinal incontinence and when she called the First and 2nd Defendant, they still covered up on the issue of her having developed a fistula. 48. . As a result of the fistula the 1st plaintiff testified that she had to start wearing diapers so as to contain the urine flow. 49. . The 1st plaintiff further stated that as a result of the said repeated failure by the Defendants to give her the correct prognosis of the condition, when she begun to develop infection in her private part, she decided to seek a second medical opinion, and flew to South Africa where she was attended to by Dr. Johan Van der Wat a Gynaecologist obstetrician and Dr. Louis G. Gecelter a Urologist. 50. The said South African doctors after examining her condition advised her that she had developed a fistula because of scarring of the bladder during the procedure of Endometriosis. 51. The said South African doctors then commenced on treatment course to treat her first with a view of countering the fistula which endangered her life by leaking the urine in the blood stream. 52. The 1st plaintiff went on to state that she has had since then been forced to make periodic visits to South Africa for the treatment and this went on until she depleted her savings and the 2nd plaintiff’s. The 1st plaintiff maintained that presently her health condition is quite imperiled. 53. The 1st plaintiff reiterated the particulars of negligence of the Defendants as pleaded in the Plaint filed and the injuries and losses as pleaded in the Plaint. 54. . The 1st plaintiff further testified that demand for the claims against the Defendants was done through her advocates on record but the Defendants neglected to make reparations thus rendering the filing of this suit necessary. 55. The 1st plaintiff produced a bundle of documents which included two reports from the two South African doctors giving their opinions on the matter. 56. The report by Dr. Louis Gus Gecelter- Urologist-uroloog reads in part; ‘’ on 20th October she underwent an extensive exploration of her bladder and ureters and the findings of the previous assessment were confirmed in that she had a vesicovaginal fistula, recent to the endometriosis in her bladder all of which were successfully excised and the wound closed in layers for Van Der Wat completed a laparotomy and made sure that there were no lesions of endometriosis left behind at the end of the operation either intraperitonially or retroperitoneally. The patient made an uneventful recovery and has remained free of infection and leakage simce.’’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 8

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57. The report by Dr. Louis Gus Gecelter was emailed on the 16th January 2007 at 9.14pm. 58. The other report that the 1st plaintiff produced was a report dated the 4th December 2008 by Dr. Johan Van Der Wat Gynaecologist and Obstetrician. The doctor’s report showed that the 1st plaintiff had been his patient since 6/10/ 2003. The doctor said that on 23/6/2004 he performed an oophorectomy by way of a posterior incision in the uterus and an area of adenomyosis was resected. The uterus was closed in layers. It was then that the first ovary of the 1st plaintiff was removed and chronic endometriosis diagonized. 59. The doctor goes on to state that the patient returned on19th October 2006 with a history that she had a child delivered by ceasarian section. After delivery the patient developed once again, pelvic pain and it was decided to do a laparoscopic hysterectomy with right salpingo oophorectomy. The same was done in Kenya. At that stage she was 32years old. During this procedure she developed complications which related to the ureter being injured and urine draining into the abdominal cavity. After numerous attempts to fix this she remained with an atonic bladder and a VVF(vesicovaginal fistula). She was permanently catheterized. 60. The doctor went on to state that he referred the 1st plaintiff to Dr. Gecelter, their Urologist who the managed the urinary problem further. In conclusion the doctor stated in his report that the patient would visit him at regular intervals to control her hormonal situation. 57. The two doctors essentially corroborated the evidence of the 1st Plaintiff that she developed complications after the surgery in October 2006. The problem was apparently rectified when she saw the two South African doctors. 58. The 1st plaintiff also placed reliance on a report prepared by Dr N.H Bhanji a Consultant General surgeon and Traumatologist dated the 28th May 2014. The doctor gave the following opinion regarding protocols that govern operations:(a). It is a basic rule of practice that a doctor is required to obtain inform consent of the patient before the operation. i. The patient must be informed of any serious risks, even if it is that of low frequency. ii. The patient should be warned about transient and less serious risk that occur commonly. iii. Details of the diagnosis and prognosis and the likely prognosis if the condition is left untreated. iv. Uncertainties about the diagnosis including options for further investigation prior to treatment. v. Options for treatment or management of the condition, including the option not to treat. vi. The purpose of a proposed investigation or treatment. vii. Explanations of the likely benefits and the probabilities of success and discussion of any serious or frequently occuring risks, and any of any lifestyle changes, which may be caused by or neccesitated by the treatment. viii. Advice about whether a proposed treatment is experimental. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 9

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ix. How and when the patient's condition and any side effects will be monitored or reassessed. x. The name of the doctor who will have overall responsibility for treatment. xi. Whether doctors in the training will be involved. xii. A reminder that patients can change their minds about a decision at any time. xiii. A reminder that patients have a right to seek a second opinion. xiv. Where applicable, details of costs or charges which the patient may have to meet. (b) The doctor performing the surgery is required to explain to the patient the intended procedure precisely and the implications/side effects thereof. All hospital have such forms available to the surgeon concerned before the intended surgery. (c) Likewise, in a hysterectomy and or removal of cervix, the doctor is required to explain the side effects and implications, following the removal, to the health of the patient in detail and may even be required to answer questions raised by the patient and her family regarding this procedure. (d) Normally, when a surgeon is operating for hysterectomy he/she may not proceed to remove the cervix without the patient's consent, unless during the surgery that the cervix looks malignant or deformed and the patient would benefit from such removal. Again, this is a case that happens infrequently. (e) The treatment of the bladder is specialized and may only be handled by Urologist. (f) A gyneacologist/obstrician may not touch the bladder beacuse it is a speciality of urologist and visa versa. According to the medical dictionary a gyneacologist is a specialist who treats diseases of genital tract in women. Likeswise it also says an obstrician as a surgeon who deals with the management of pregnancy, labour and the puerperium. (g) Whether a bladder is perceived to be weak due to numerous operations can be operated on by laparoscopy or incisive surgery can be decided only by a urologist. (h) A surgeon who has performed surgery on a patient or has treated a patient from a medical condition is ethically required to give a patient true diagnosis and post-operation diagnosis whatever the results. Basically, doctors cannot lie to their patients, doctors may hold the details of treatment and attendant risks if disclosure would likely cause serious harm to mental or physical health of the patient. This is known as the doctrine of therapeutic privilege. However, if it is not a licence for paternatistic medicine the emphasis being on the likelihood of disclosure causing serious harm. 59. The report by Dr Banji to a great extent illuminates the issue of informed consent by a patient before any procedure which in the instant case the plaintiffs say was not obtained before her pelvis was removed. 60. The 2nd plaintiff is the husband to the 1st Plaintiff. He testified that they have one child. 61. According to him, on or about 23rd October 2005 to 27th October 2005 the 1st Plaintiff was admitted at the 3rd Defendant's hospital in Nairobi on instructions of the 1st Defendant for a procedure concerning her reproductive organs. The 1st Defendant attended to the 1st Plaintiff and performed for https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 10

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a procedure of hysterectomy. During the procedure the 1st Defendant only advised them that he would only remove the 1st Plaintiff's uterus and ovaries. 62. The 1st Defendant however removed the 1st Plaintiff's ovaries and uterus through the vagina rather than an open operation by dissecting the abdomen and removing the uterus and ovaries. 63. At the time of the operation the only consent availed to the 1st Defendant for the said operation was to remove the uterus and ovaries and no more. 64. The 2nd Plaintiff stated that he later learnt that the 1st Defendant removed the 1st Plaintiff's cervix, and never told them of it. He maintained throughout his testimony that the 1st defendant was not authorized to remove it. 65. He went further to state that the 1st Defendant never advised them at all of implications of the type of operation that was proposed. He claimed that the 1st defendant did not specifically tell them that the 1st Plaintiff's cervix would be removed. 66. The 2nd plaintiff lamented that as a married man, he had suffered extreme loss of consortium by reason of removal of his wife's cervix; he emphatically stated that sex has permanently been rendered impossible. 67. He went on to testify that on or about 13th to 16th September 2006, the 1st Plaintiff was admitted at the 3rd Defendant's hospital for medical care for procedure known as Pelvic Endometriosis and that she was admitted under care of the 1st Defendant and the 3rd Defendant. 68. The 2nd plaintiff said that he learnt that the Pelvic Endometriosis was as a result of the 1st Defendant's negligence when during the Hysterectomy procedure he delivered the 1st Plaintiff's uterus and ovaries through the vagina. 69. He confirmed that at the time of the operation all the Defendants were aware of the 1st Plaintiff's reproductive health condition the 1st Plaintiff had been a patient of the Defendants for several years. 70. The 2nd Plaintiff reiterated that at the time of the operation the 1st Defendant represented himself to them as a qualified Consultant Gynecologist who was able to offer the specialized treatment that they sought. 71. He further confirmed that during the operation of 14th September 2006, the 1st Plaintiff was attended to by the 1st Defendant and the agents of the 3rd Defendant. 72. He also testified that the 1st Plaintiff developed a vesico vaginal fistula, because in the course of the operation the 1st Defendant and the servants of the 3rd Defendant scarred her bladder. 73. On her developing the fistula aforesaid, the 1st Defendant and 2nd Defendant proposed and carried out repair procedures, vide a further operation carried on or about the 4th October 2006. 74. During the procedure to correct the Vesico Vaginal Fistula the 2nd Defendant represented to them as being a Consultant Urologist and who was capable of offering the specialized treatment needed then. 75. The fistula persisted even after the said second operation and the First, Second and 3rd Defendants failed to advise that indeed the 1st Plaintiff had a fistula. The defendants instead inserted a catheter inside her and assured them that her bladder was well knowing too well it was not. 76. The 2nd plaintiff reiterated the testimony of the 1st plaintiff on the experience she has undergone and the fact that they had to resort to South Africa for treatment at great cost and expense. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 11

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77. He further reiterated all her the particulars of negligence set out in the plaint and the injury suffered. 1St Defendants' Defence 78. The 1st Plaintiff was the 1st Defendant's patient between October 2005 to September 2006. 79. The 1st Plaintiff had previous history of hysterectomy. The 1st Plaintiff had undergone a left salpingectomy by laparotomy in May 2000 for an ectopic pregnancy, a Laparoscopic left ovarian cystectomy in June 2001, a Laparatomy endometriosis in February 2003, a Laparoscopy in October 2003 for ovarian cystectomy and pelvic endometriosis, and Laparatomy for a Myomectomy and Endometrioma in June 2004. 80. a. In October 2005, the 1st Defendant performed a total Laparoscopic Hysterectomy for Dysfunctional Uterine Bleeding and deep dyspareunia. The history of the uterus confirmed Adenomyosis and simple endometrial hyperplasia. b. On 5th September 2006, the 1st Plaintiff consulted the 1st Defendant complaining of lower abdominal pain, on the right side. c. Abdominal examination revealed multiple previous Laparotomy and Laparoscopy scars. There was no tenderness or masses appreciated. The liver and spleen were not palpable. There was no clinical evidence of any intra abdominal free fluid. The bowel sounds were normal. d. An IVU carried out 11th September 2006 was reported as normal, although the superior aspect of the bladder on the right side showed an extrinsic impression possibly due to adhesions. e. A diagnosis of Recurrent Pelvic Plain possibly due to endometriosis was entertained and after discussing all her available options which included Zoladex injections in view of her long long standing history of pelvic endometriosis, the 1st Plaintiff opted for a Diagnostic Laparoscopy. f. At Laparoscopy, a good view was obtained. There were no adhesions. The right side of the peritoneum was riddled with endometriotic lesions which excised using a harmonic scalpel. The appendix appeared hyperaemic and engorged and an appendectomy was performed using the harmonic scalpel and bipolar coagulation. A good lavage was undertaken. The specimen was sent for histology. g. The 1st Plaintiff recovered well and was discharged for follow up at the 1st Defendant's clinic on 26th September 2006. h. On 26th September 2006, the 1st Plaintiff complained of little pain and was otherwise normal. The histology report was discussed which confirmed features of pelvic endometriosis, old ovarian endometrioma and an appendix with a faecolith. i. On 29th September 2006, the 1st Plaintiff called the 1st Defendant complaining of lower abdominal pain and initial urinary retention and then subsequently, partial incontinence of urine. The 1st Defendant referred the 1st Plaintiff to the 2nd Defendant for further investigations and management. j. The 1st Defendant denies that the doctrine of "res ipsa loquitor" as pleaded at paragraph 13 (i) of the Plaint is either applicable or relevant to the matters in issue in this suit. The 1st defendant testified that he held the necessary qualifications as a consultant gynecologist and was therefore competent to handle the 1st Plaintiff’s medical condition and he used his knowledge and skill to give the 1st plaintiff medical care and treatment that was suitable for her condition. Dr. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 12

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Rafique Parkar denied that he was negligent in the way he handled the 1st plaintiff case and blamed any complications that may have arisen from her long history of endometriosis which he said no doctor can administer 100 % cure to the problem. He however admitted that he recommended to the 1st plaintiff the removal of the uterus and the right ovary and any residual endometriosis. 81. He explained that the removal of the cervix was done with the full knowledge of the plaintiffs since according to him he had explained to the 1st plaintiff that he was to perform total hysterectomy. The 1st defendant went on to say that the cervix is the mouth of the uterus and for every benign condition they remove the uterus, the fundus of the uterus and the cervix. 82. He described the procedure that he applied as LAVH which stands for laparoscopic Assisted Vaginal Hysterectomy , he went to claim that the description given by Dr. Banji is incorrect and that before performing a laparscopic surgery he would also take consent for open surgery commonly known as Total Abdominal Hysterectomy. 83. The 1st defendant therefore stated that both options were available to him and that the abbreviations used in the consent form signed by the 1st plaintiff is a standard medical practice. 84. The 1st defendant maintained that he used laparoscopic surgery which according to him has less pain, less blood loss, faster recovery and does not leave scars. He preferred laparoscopic surgery over open surgery since the patient consented to both and in his opinion there was no need for open surgery. He maintained that there was no anatomic blood as claimed by Dr. Louis Gus Gecelta. He also denied that there was urine draining to her abdominal cavity. 85. According to him if there was urine draining to the abdominal cavity, that would have been toxic and the patient could never have survived due to the toxicity for more than two weeks. He denied causing any ureteric or vesico vaginal fistula as opined by Dr. Gecelta in his report 86. The 1st defendant went further to testify that in a case of endometriosis the expertise required is that of a gynecologist since endometriosis is within the domain of gynecology. Further, the 1st defendant explained that if the 1st plaintiff had ureteric fistula the pain would have been excruciating and if it was a vesico vaginal fistula it would generally be painless but cause discomfort because of the ulcers that could form in the pubic area caused by urine. He said that after the surgery the 1st plaintiff did not have a complaint for four days. 87. However, the 1st defendant testified that if there was any damage and there was need for repair, a urologist would be required and that would be the point at which a multi-disciplinary approach would be necessary. The 1st defendant stated that in his assessment it was not necessary to involve a urologist when he performed the operation on 14th September 2006. In that second procedure he said that he removed the appendix and residual endometriosis of the right ovary and the 1st plaintiff had a very tiny lesion of the dome of the bladder. 88. He claimed to have been to handle the condition of the 1st plaintiff single handedly since a gynaecologist can manage a case of endometriosis as well as a prolapse blood. In the event of any urine incontinence the 1st defendant maintained that as a gynaecologist he would be able to handle the same without consulting a urologist. According to him he had no challenges undertaking the procedure and that after the second surgery the 1st plaintiff was fine and left without any complaint only to return after 10 days. 89. According to the 1st defendant urine incontinence could occur when the urethra and the bladder do not perform optimally and that could be caused by stress. In the case of vesicovaginal fistula the 1st defendant stated that urine would flow continually. He went further to state that a prolapse of the bladder could cause urine incontinence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 13

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90. The 1st defendant further testified that on 29th September 2006 the 1st plaintiff went to see complaining of incontinence but he did not think that there was any surgical or anatomical issue with the bladder to make it necessary to call in a urologist. However, he made the decision to involve the 2nd defendant Dr. Naji Said on the 26th of September 2006 when he last interacted with her. 91. He went further to inform the court that the 2nd defendant performed a cystoscopy in his presence and that the examination did not reveal a fistula. He denied that the procedures he performed on the 1st plaintiff would cause sexual dysfunction upon the first plaintiff and denied causing the 1st plaintiff Dyspareunia which is painful sexual activity. He maintained that she had it before he attended to her. 92. The 1st defendant in his testimony admitted that he placed a request with the 3rd defendant to admit the 1st plaintiff in the hospital and that he enjoyed admitting privileges in the facility. According to him, he adhered to all the by-laws, responsibilities and conditions given by the hospital to all doctors who enjoy admitting rights. He however admitted that hospital staff would prepare the patient for surgery and thereafter inform the surgeon. During the surgery the 1st defendant testified that he would have theatre assistants who are employees of the hospital that supply him with whatever is required during the procedure and that during the operation they would follow his instructions and those of anesthetist. 93. When he was cross examined by counsel for the 3rd defendant, the 1st defendant stated that when that he decided to refer the 1st plaintiff to the 2nd defendant it was because he had determined that the condition of the 1st plaintiff was a urological issue that required a urologist to deal with. It turned out during cross examination that the 1st defendant has had a case in Uganda relating to his practice as a result of which he was banned from practicing in Uganda. 94. The 1st defendant admitted that in the practice of gynecology complications do arise and upon further cross examination by Mr. Bwire counsel for the plaintiffs the 1st defendant stated : “ I am not prepared to discuss the issue of my revocation of admitting rights and priviledges at the Aga Khan. Reason for not discussing I don't think it is relevant in this case and it was not an issue regarding clinical medical practice. After 2006 my clinical privileges were withdrawn not because of clinical issues but with differences of opinion with some of the Adminsistrative staff. I am not a urologist. In 2005 on or about September the 1st plaintiff came woth the 2nd plaintiff for consultation.” 95. Further, the 1st defendant admitted that at the time he performed the second operation to remove the operation the science of preservation of ovaries existed and he did not advice the plaintiffs to explore ovary preservation but only advised the performance of hysterectomy to remove the ovary and the uterus. 96. The 1st defendant further admitted that there is partial hysterectomy in practice. However, he performed total hysterectomy. 97. Upon cross examination the 1st defendant stated that total hysterectomy is done in emergency situations. 98. Further, the 1st defendant stated that in a case of total hysterectomy he would discuss with patient all the implications including matters to do with hormonal balance and that would be captured in the clinical notes. He however did not provide the clinical notes to the court in his evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 14

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99. Upon being pressed by the counsel for the plaintiffs the 1st defendant testified that in managing benign conditions they always remove the cervix, but in the 1st plaintiffs case he determined that she had endometriosis thus there was need to remove the ovary and the uterus. 100. The 1st defendant did not however state whether the 1st plaintiffs condition was benign to warrant the removal of the cervix. 101. After the operation the 1st defendant stated that the patient would leave the theater with a catheter and that he did not know at the time of the discharge she had difficulties in passing urine and that a catheter had been inserted. According to the 1st defendant the anesthetist confirmed that she was unable to pass urine but that information was not shared with him immediately. He got to know of the problem much later when the 1st plaintiff contacted him complaining about urine incontinence and that was when he decided to refer her to the 2nd defendant Dr. Naji Said. 102. According to the 1st defendant, leaking urine raises an alarm bell but in the 1st plaintiff’s case the 1st defendant insisted it was a case of incontinence however the notes recorded referred to a case of leaking urine. 103. The 1st defendant admitted that after the first operation in 2003 the plaintiffs continued having sexual intercourse as a result of which they got a baby. He had however taken note of the plaintiffs’ claim that they were unable to engage in sexual activity as a result of the surgery. 104. He concluded his evidence by admitting that the South African doctors identified a fistula. 2Nd Defendant 105. The 2nd Defendant averred that he first saw the 1st Plaintiff on 30th September 2006 with a complaint of urinary incontinence. 106. The 1st Plaintiff had no history of haematuria and she had been treated for urinary tract infection. prior to her review with the 2nd Defendant. 107. The 1st Plaintiff gave a history of an of an acute urinary retention post operation while at the Aga Khan Hospital where she was catheterized and the catheter had subsequently been removed. 108. Clinical examination revealed no renal masses or tenderness. There was no supra pubic fullness but she had tenderness over the supra pubic area and more so over the right iliac fossa. Plaintiff was a febrile abdomen was distended and peritonitis. iliac fossa. The 1st Plaintiff was a febrile and had no pallor. The abdomen was distended and there was no features of peritonitis. 109. On 2nd October 2007, a urethral catherization was performed and thereafter a micturating Cystourethrogram (MCUG) to rule out the possibility of a vesicovaginal fistula. An extended series of the MCUG was taken in both the supine and erect position and no leakage was demonstrated even upon removal of the catheter. The 1st Plaintiff was requested to cough on several occasions and to strain and there was no leakage demonstrated. 110. The catheter was re-inserted and following a discussion with the First and Second Plaintiff, it was decided to admit the 1st Plaintiff at the Aga Khan Hospital on 4th October 2006 for a Cystoscopy under antibiotic cover and examination under anaesthesia in view of the persistent incontinence and the previous history of multiple surgical procedures for endometriosis. 111. On 4th October 2006, the cystoscopy revealed no abnormalities and the 1st Plaintiff had a normal bladder neck and sphincter with no evidence of any sphincter incontinence. An examination under https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 15

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anaesthesia and instillation of methylene blue into the bladder and a speculum examination confirmed no evidence of dye extrasation into the vagina. 112. The 2nd Defendant reinserted the 1st Plaintiff's urethral catheter and the 1st Plaintiff was discharged the next day. 113. With the presence of the urethral catheter the 1st Plaintiff had no further episodes of leakage and a thorough discussion was made between the 1st Plaintiff and the second Plaintiff on the further plan of treatment. 114. The 1st Plaintiff did not return to 2nd Defendant from 5th October 2006. 115. In his testimony the 2nd defendant stated that he practices at Aga Kahn Hospital as a urological surgeon and that his first interaction with the 1st plaintiff was on 30th of September 2006 upon a referral to him by Dr. Rafique Parkar the 1st defendant. He said that he was called on a Saturday by Dr. Parkar who asked him to see the 1st plaintiff that morning since according to Dr. Parkar it was urgent. 116. According to the 2nd defendant, when he saw the 1st plaintiff that morning her complaint was that she was leaking urine having been operated and discharged by the 1st defendant 2 weeks earlier. 117. The 2nd defendant noted from her clinical history that the 1st plaintiff did not have previous urological operations or interventions and that she had been through several operations, about 9 in number, as a result of her endometriosis condition. The 2nd defendant however noted endometriosis can affect the bladder, uterus, ureters and the vagina. 118. The 2nd defendant went on to testify that endometriosis can cause bleeding of the bladder and cyclical pain. 119. The 2nd defendant further testified that the management of endometriosis is multi-disciplinary and involves both gynecologists and urologists. The 2nd defendant’s evidence on this, confirmed the evidence of the 1st defendant that in endometriosis cases a multi- disciplinary approach would be more desirable. It is not purely a urologist’s affair but also involves gynaecologists who manage and treat it. 120. The 1st plaintiff presented a urology complaint when she went to see him. According to the 2nd defendant she complained of urine leakage and had pain on the lower right side of the abdomen. He examined her because he could not immediately tell the exact problem. He noted that she had tenderness on the right side of the lower abdomen, no fever, and all her vital signs were normal. He went on to state that he was not able to detect a fistula or the cause of the problem or source of leakage from a physical examination. 121. The 2nd defendant sent the 1st plaintiff to the lab for blood test including full haemogram kidney function test. The results came back reading normal except for microscopic blood visible in the urine test but not visible with a naked eye. 122. On the 2nd October 2006 the 2nd defendant send the 1st plaintiff for an MCUG-maturing cystourethrogram an X-ray test used to examine the urinary tract (bladder, urethra and sometimes ureters). The test helps in assessing the function of those structure and look for abnormalities like reflux (backflow of urine) or blockages. 123. In the performance of the X-ray Dr Handa a radiologist did it. The 2nd defendant said that he took the 1st plaintiff there personally because he felt sorry about her condition. According to him they did the best but were unable to see the leakage. He maintained that he did not see any leakage from the bladder https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 16

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and that is when he decided to perform a cystoscopy procedure basically a procedure that would require the use of a camera inserted into the bladder but not an operation. 124. The 2nd defendant obtained the necessary consent from the 1st plaintiff. The procedure was described in the consent form as Cystoscopy, EVA + repair of Fistula EVA -examination under anaesthesia. According to him the use of abbreviations in the consent form is permitted but the doctor must explain to the patient the procedure. He did the procedure on 4/10/ 2006 but did not detect any abnormality. 125. The second defendant testified that there was no fistula detected and no leakage was noted. He went on to say that he explained the results to the two plaintiffs and he discharged them on the 5th October 2006. The 1st plaintiff was to return to see him on the 9/10/2006 but she never returned for further review. 126. The 1st plaintiff left with a catheter on so she was to return for discussions on the way forward. The catheter when it was on she never complained of leakage. The 2nd defendant further testified that when the plaintiffs failed to return, he reached out the 2nd plaintiff who informed him that they had travelled to South Africa. 127. The 2nd defendant testified that he also got to know from the plaintiffs that in 2005 the 1st plaintiff underwent a hysterectomy procedure under the care of the 1st Defendant whom he said he knew was a laparoscopic surgeon. 128. He maintained that he does not usually deal with endometriosis cases but he is occasionally called in to deal with any urological complications that may arise. In this case he was called in due to urine leakage and that was two weeks after the surgery. 129. He was categorical the he was not involved in the surgery involving the removal of the appendix and the nodules on the bladder and those on the pelvis. 130. The 2nd defendant emphatic that the cystoscopy examination he did was not a surgical procedure but a purely diagnostic procedure. According to him, he had known the 1st defendant a qualified Laparoscopic surgeon. 131. The 2nd defendant observed that the reports by the two doctors from South Africa were contradictory in that the report by Dr Gecelter showed that the upper tracts were normal but Dr. Van Der Wat indicated that she developed complications which related to the ureter being injured and urine draining into the abdominal cavity. 132. The 2nd defendant also denied that he made any attempt to repair urine leak contrary to the report by Dr Johan Van Der Wat. 133. The second defendant however confirmed that Dr Gecelter indicated in his report that he made an incision in the lower abdomen and explored a dimple which appeared to tract descending behind that vaginal stump. 134. He however maintained that there was no fistula since in his opinion there was no patent tract. He also denied that the 1st plaintiff was permanently catheterized. 135. The 2nd defendant further contended that he did not find any evidence that a surgery was done by the South African doctors to repair the urine leak. 136. The 2nd defendant contended that the accusation against him that he caused the 1st plaintiff to lose her sex life was unfair since a cystoscopy would not affect her sexual organs or drive since it is a purely diagnostic procedure. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 17

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137. He went on to testify that as at the time he saw the 1st plaintiff had a pre-existing condition known as dyspareunia (pain during, before and after sex). He thus denied any negligence on his part. 138. He maintained that he had all the necessary qualifications and was accorded privileges to practice medicine and consult as a urologist in the 3rd defendant’s facility. He did admit that when he handled the patient, he was assisted by nurses of the 3rd defendant’s hospital. 139. In his view the 1st plaintiff’s choice to go to South Africa was personal and in his view it was unnecessary. 140. The 2nd defendant explained that when the 1st plaintiff left the hospital, she had a catheter on to keep her dry. He also testified that he was the one who informed the plaintiffs that the 1st plaintiff did not have a cervix. He admitted on cross examination that the fact that he was unable to determine the cause of the urine leak did not mean that the 1st plaintiff was okay. 141. He also told the court that if one is unable to determine the cause of the problem, one would need to do further investigations. In the meantime, one would require to catheterize the patient to keep her dry and plan for available options. 142. The 2nd defendant when cross-examined on the basis of the reports by the two South African doctors he acknowledged that the reports indicated that a vesicovaginal fistula was discovered and treated or repaired. 143. On the equipment used the 2nd defendant maintained that he used a rigid cystoscope whereas Dr Gecelter used a flexible cystoscope. 144. In his opinion a rigid cystoscope would give a better image than a flexible cystoscope. 145. The 2nd defendant went put it on record that when he saw the 1st plaintiff she had urine retention which required a catheter to empty it. He however south to explain that a catheter would be inserted because retention could occur due to use of anaesthesia , severe constipation pushing up on the bladder or after manipulation of the bladder such as the two excisions of the dome of the bladder. 146. The patient having left hospital on16th September 2006 by the time she saw him on the 30th October 2006 the effects of anaesthesia would have been over. 147. He concluded by stating that fo urine to flow freely from the vagina it is possible that there would be a tract or communication from the bladder not through the urethra. 148. On re-examination the 2nd defendant while seeking consent from the patient he included the aspect of repair of fistula so that if he were to discover any he would go ahead and repair it. 149. The First and Second defendants therefore denied the alleged or any negligence and maintained that so far as the allegations are concerned;- 150. a. the risk of the 1st Plaintiff undergoing pain due to her condition, having particular regard to her medical condition upon presentation, was an inherent risk which arose notwithstanding the exercise of reasonable care and skill on the part of the First and 2nd Defendants; and b. the treatment and care given to the 1st Plaintiff accorded with the practice of a responsible body of medical opinion Further the First and 2nd Defendant denied that the 1st Plaintiff had suffered the alleged or any injuries, loss or damage as a result of the First and/or the 2nd Defendant's negligence either as pleaded in the particulars or at all. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 18

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151. The two defendants also contended that there was no need for the 1st plaintiff to undergo subsequent treatment and the costs for future medical expense were unlikely to be incurred thus the two defendants urged this court to disallow the claim. 152. Dr. Richard Baraza testified for the defence for the 1st and 2nd defendants and stated that he had prepared a report dated 21st January 2024 which report he adopted as his evidence in chief. The report was marked DEXH-5. He testified that he was requested to give an expert opinion about an injury that occurred after surgery performed by Dr. Parkar (1st Defendant) on 14th September 2006. The doctor testified that his report was based on the treatment notes that he reviewed as well as the complaint by the 1st plaintiff. 153. According to him, he found that the two doctors were qualified and that before the operation and other procedure the doctors secured the necessary consents from the patient. He testified that based on the documents availed to him , the 1st plaintiff consented to the removal of her cervix and that the procedure adopted by the Doctor of removing the same through the vagina was standard procedure. He went on to state that the choice of the procedure by the 1st defendant did not amount to negligence on the part of the 1st defendant. 154. It was his evidence that the removal of the cervix does not affect the sexual functions or feelings although the removal of ovaries may affect the same. In his opinion, laparoscopic procedure did not require the involvement of a urologist since in his opinion it was purely a gynecological issue. The doctor admitted that complications can arise from a surgery and in his view, the surgery performed by the 1st defendant on 14th September 2006 appeared to have been properly done since the patient left the operation room dry. 155. He however was quick to add that he could not say more about the surgery since he was not present when it was done. Further, the witness testified that endometriosis can very easily affect the bladder and any injury would more likely be to the ureters. 156. In his opinion, the 3rd defendant may not have seen where the fistula was when he performed the cystoscopy. He stated :“ the equipment in this country is less sophisticated compared to our counterparts in South Africa. We use a rigid cystoscope. It is not surprising a hidden fistula could be missed” 157. Upon cross- examination by counsel for the 3rd defendant, Dr. Richard Baraza stated that he is a practicing urologist and he had done cystoscopy many times. He went on to state that there are two types of cystoscopes that is ; Rigid and Flexible Cystoscopy. He testified that in Nairobi Hospital where he works, they do not have a flexible cystoscope. 158. Further he went on to state “Depending on the job one is doing, for diagnostic purpose the flexible one is more comfortable for the patient. It can be done at the clinic as an outpatient. It can be done at the clinic as an outpatient. If you want high quality work like operations we use the rigid because it is clearer and you can introduce other equipment in it. The investigation under inquiry if one knew where the problem was the rigid one would be superior because it has superior image quality. If you do not know where the problem is and for diagnostic purpose you use the flexible if available.” 159. The witness upon cross-examination by Mr. Bwire for the plaintiff stated “If examining for a fistula the urologist urologist would use any of the cystoscopies. The bladder is rugged and for our purpose of examining contours or cornes the flexible cystoscope would be appropriate. A urologist can find flexible cystoscope in Kenya. Page 105 of the Plaintiff's bundle States cystoscopy examination under https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 19

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Anaesthesia - Repair of the fistula. The urologist would be examining to find out if there was s fistula and if so proceed to repair it.” 160. On the issue of consent, the witness said that informed consent is a strict requirement and that as per procedure the doctor explains the intended procedure to the patient in the presence of a nurse. He went further to state, an operation of the bladder and on the bladder is a urological procedure. 161. In his professional opinion, whenever one performs a procedure on the bladder the functioning of the bladder would remain the same since it is a very resilient organ. 162. On the issue of loss of sexual satisfaction attributed to the removal of the cervix, the witness stated that his opinion that the removal of the cervix does not affect a woman’s pleasure during sexual intercourse was based on his interview of gynecologist since he is not an expert in the area. 163. He concluded his evidence by stating on 4th October 2006 the doctor who performed the cystoscopy could have missed the fistula and that the procedure on the bladder should have been done by a urologist. Further, he stated that both laparoscopic operations should have involved a urologist. 164. The last witness was Dr. Boniface Mativa a specialist in internal medicine. He stated that he worked for the 3rd defendant and his role was to ensure that doctors who authorized to provide patient care at the hospital are competent and experienced. He stated that he was familiar with the credentials of the 1st and 2nd defendants as well as the treatment file of the 1st plaintiff. 165. He maintained that the 1st and 2nd defendants were not employees of the hospital but were granted privileges to practice at the hospital. He went further to state that there were by laws that regulate the conduct of physicians who practice in the 3rd defendant’s hospital and that those by laws apply to both staff of the hospital as well as private contractors such as the 1st and 2nd defendants. 166. According to him, independent doctors attending to patients at the hospital are always the team leaders and are assigned nurses and other staff of the hospital to assist them. The doctor would remain responsible for the patient. 167. He further testified that the staff of the Aga Khan Hospital are fully qualified and they undergo a rigorous training while working with them. He denied that the staff of the 3rd defendant were incompetent. 168. The witness produced documents to show that the 1st and 2nd defendants were recognized as an Obstetrics and gynecologist and a urologist respectively. 169. He denied that the hospital was negligent and maintained that the 3rd defendant provided quality staff and physicians, care and environment including equipment and technology optimal for patient needs. 170. On cross -examination, the witness said that he was not suited to critic the performance of the 1st and 2nd defendants he however urged the court to dismiss the suit as against the hospital. 171. On cross examination by counsel for the plaintiff, Dr. Mativa stated that a cystoscopy was done on the 1st plaintiff to determine whether she had a fistula and his expectation was that all the necessary equipment was provided to the doctor upon request. He stated that the appropriate cystoscopes were available. He admitted that the hospital owed the patient as duty of care and if anything was done without the consent of the patient, that would be wrong. 172. Dr. Mativa just like Dr. Baraza informed the court the practice at the hospital was that there must be a nurse present when the procedure is being explained to the patient. The nurse would witness the signing of the consent form. However, Dr. Mativa contradicted himself by stating that patient https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 20

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education about the procedure could be done by the doctor without the nurse. When the witness was shown the consent form PEXH-1 he noted that there was no signature of the witness who would ordinarily be the nurse. Analysis And Determination 173. The case by the plaintiffs is one that is based on medical negligence. The first plaintiff was treated at the 3rd defendant’s facility by the 1st and 2nd defendants on various dates. The plaintiffs’ claim is anchored on alleged negligence on the part of the three defendants. 174. Medical negligence claims are not widely litigated in this country and the immediate challenge one encounters in the determination of this kind of claims is finding local precedents on the matter that can act as a useful guide to the court. It should not therefore come as a surprise to the parties that the court will rely heavily on comparative jurisprudence from common law jurisdictions that are persuasive on the various issues under consideration in this case. 175. The court having heard all the parties is now called upon to determine whether;- 176. a. There was a case of medical negligence established by the plaintiffs b. Who was to be found culpable for the negligence, c. Whether the plaintiffs have proved damage to them, d. If the plaintiffs suffered injury and damaged as pleaded, what then would be the suitable award in general damages e. Whether the special damages pleaded were adequately proved f. Who bears the costs of the suit? The concept of negligence in Halsbury’s Laws of England 3rd Edition Vol. 28 pp. 3-5 is formulated as hereunder : “ Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case and the categories of negligence are never closed. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. When there is no duty to exercise care, negligence in popular sense has no legal consequence. When there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to person or property. The duty of care owed to that person by whom injury can reasonably be foreseen and not necessarily to all persons in the same situation The material considerations are the absence of the care which is on the part of the defendant due to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two." 177. The development of the law on the tort of negligence is well captured by Lord Denning M.R in his treatise; The Discipline of Law at page 227 where he writes:“ of all the developments in the 20th century by the judges, the greatest has been in the law of negligence at the beginning of the 19th century the rules of law were all derived from the forms of actions….the judges of the 19th century formulated a series of particular rules as to when the defendant were under duty to the plaintiff and what was the extent of that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 21

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duty. These particular rules do not satisfy the social necessities and social opinion of the 20th century. In a series of decisions from 1932 onwards the courts evolved negligence as an independent and vigorous wrong. It has come to dominate the whole field of civil liability. In particular there’s been a remarkable extension of liability of professional men and of public authorities” 178. The concept of negligence as generally defined applies in equal measure to case of medical negligence. Medical negligence is said to arise from the doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specifically should use under similar circumstance – Black’s Law Dictionary 179. In India, so also in England, there is no statute defining medical negligence. To common people 'medical negligence' is the negligence of the doctors and/or other medical service providers. It is easy to conceive medical negligence but very difficult to define it. In fact, different authorities have defined it differently. Medical negligence arises because of "doctor's failure to exercise the degree of care and skill that a physician or surgeon of the same medical speciality should use under similar circumstance." - Black's Law Dictionary, 8th Ed. But the said meaning perhaps is not adequate enough to follow the scope and ambit of 'medical negligence. To put it differently, 'medical negligence' must, at the first place, would be negligence having all its ingredients and secondly, such negligence is committed by any medical- man or any other medical service provider. 180. As 'medical negligence' cannot be suitably defined, it is better to delve deep into how 'medical negligence' accrues and the ingredients required to succeed in a medical negligence case. But before 1960, medical negligence cases in tort were few. 181. In the nascent stage when medical negligence was treated as an actionable wrong, a decision came from the Supreme Court in Dr. Laxman Balkrishna Joshi v. Trimbak Bapu AIR 1969 SC 128. In this case the Apex Court laid down the underlying principle of medical negligence and held when a doctor is consulted by a patient, the doctor owes to his patient certain duties, which are: (a) exercise of discretion whether to treat him as a patient; (b) duty of care in deciding what treatment to give; and (c) duty of care in the administration of treatment. Once the doctor accepts to treat the patient breach of any of the other two duties may give rise to a cause for negligence and in case the patient suffers any loss and injury, he may sue the doctor for medical negligence amounting to actionable wrong and recover damages from the doctor. The ratio of decision was followed in A.S. Mittal v. State AIR 1989 SC 1570. 182. A plaintiff who files a claim must be able to prove that the medical practitioner acted negligently to recover compensation. See Parmindjit Vs Union 1988 ACJ 38. The elements spelt out in the aforequoted decision must be established before a court can reach a finding that the medical doctor and the hospital alleged to have been negligent in the treatment and care of the patient is liable. 183. The court in Spring Meadows Hospital and Another Vs. Harjol Ahluwalia (1998) 4 SCC 39 ; AIR 1998 SC1801 held that gross medical mistake will always result in a finding of negligence. The plaintiff must therefore be able to establish that the medical officer concerned breached his duty of care and that as a result of the breach the plaintiff suffered injury. 184. The plaintiffs in this case have brought the suits to recover damages not only from the doctors who treated the 1st plaintiff but also the Hospital 3rd Defendant in which the operation leading to the injury and damage complained of happened. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 22

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185. In Savita Garg vs National Heart Institute (2004) 8 SCC 56 ;2004 ALL LJ 3900 the court observed that it is for the hospital or institute to produce the treating physician concerned and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. The court went further and stated that once the claimant has successfully discharged the initial burden that the hospital was negligent and that as a result of the negligence the patient suffered injury the duty shifted to the hospital to prove that there was no negligence involved in treatment of the patient. 186. The party accused of medical negligence can successfully defend the suit by showing that he acted in accordance with general approved practice. See Vancouver General Hospital Vs. McDaniel (1934) 152 LT 56. 187. In this case just like all negligence cases the initial burden of proof on a balance of probabilities lay on the plaintiffs to prove that the two doctors (1st and 2nd) and the hospital the 3rd defendant plaintiff were negligent in the manner they went about treating the 1st plaintiff and the that the negligence resulted into injury. 188. The 1st plaintiff was clear that in 2005 when she went to see the 1st defendant the consent she signed for the operation was for hysterectomy that in her understanding was limited to the removal of an ovary and the uterus. In her testimony she was categorical that the 1st defendant never explained to her that the procedure he was to employ would also lead to the removal of her cervix. 189. According to her she expected the doctor to carry out an open abdominal procedure but the 1st defendant elected to use the laparoscopic hysterectomy procedure that entailed extraction of the ovary and the uterus through the vagina. It is in that process that the 1st plaintiff claims to have lost her cervix without knowledge. 190. The importance of obtaining informed consent In the case of Samira Kohli vs. Dr. Prabha Manchanda and Ors. I (2008) CPJ 56 (SC), the apex court held that consent given for diagnostic and operative laparoscopy and “laporotomy if needed” does not amount to consent for a total hysterectomy with bilateral salpingo opherectomy. The appellant was neither a minor nor mentally challenged or incapacitated. As the patient was a competent adult, there was no question of someone else giving consent on her behalf. The appellant was temporarily unconscious under anesthesia, and as there was no emergency. The respondent should have waited until the appellant regained consciousness and gave proper consent. The question of taking the patient's mother's consent does not arise in the absence of emergency. Consent given by her mother is not a valid or real consent. The question was not about the correctness of the decision to remove reproductive organs but failure to obtain consent for removal of the reproductive organs as performance of surgery without taking consent amounts to an unauthorized invasion and interference with the appellant's body. The respondent was denied the entire fee charged for the surgery and was directed to pay Rs. 25000/- as compensation for the unauthorized surgery. 191. The 1st defendant confronted with that claim testified that he actually removed the cervix but according to him the 1st plaintiff consented to it. 192. The 1st defendant further sought to rely on the consent form produced by the plaintiffs to show that he had obtained the necessary consent from the patient. 193. The consent form was however not signed by any witness. According to the defence witness ( Dr. Mativa) called by the Hospital, the 3rd defendant , the consent form should have been signed by the nurse present during the surgery as a witness to the fact that the doctor explained to the patient the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 23

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procedure. In this case that was not done. The omission was not explained by the 1st defendant thus the allegation by the 1st plaintiff that her consent of did not extend to the removal of the cervix was not dislodged since the consent form was invalid to the extent that it was not witnessed by the nurse as per the procedure. 194. The 1st and 2nd defendants called the Dr Richard Baraza a urologist from Nairobi Hospital testify in their defence. The doctor confirmed as well that the consent form must be countersigned and that the operating doctor must explain the procedure to the patient. 195. The issue of the consent given by the patient becomes critical in a case where the plaintiff alleges not to have been informed fully the nature of the operations and what it entailed. 196. The protocols on the performance of surgeries were laid out elaborately by Dr. Banji whose professional opinion was produced by the plaintiffs in their bundle of documents. The patient must be shown to have given informed consent in order for the doctor against whom a claim has been made to escape liability. The patient must be shown to have received adequate information before the procedure because that would also help the patient in deciding what option of treatment to go for where there are more than one options available to the doctor in dealing with a particular issue. 197. The two plaintiffs maintained that at no time were they informed that the procedure that the first defendant was to perform would entail the removal of the cervix. 198. The 1st defendant admitted that he opted for laparoscopic hysterectomy as opposed to the open surgery since that in his view was in keeping with the current medical practice. It therefore leaves no doubt that there was need for proper patient education before the procedure to allow her to elect the procedure she would be more comfortable with. 199. In Arndt Vs. Smith [1977] 2 SCR 539 at Paragraph 15 and 16 the court held: “ Reibi is a very significant and leading authority. It marks the rejection of the paternalistic approach of determining how much information should be given to patients. It emphasizes the patient’s rights to know and ensures that patients will have the benefit of high standard of disclosure. At the same time it modified objective test for causation ensure that our medical system will have some protection in the face of liability claims from the patients influenced by the unreasonable fears and beliefs while still accommodating all the reasonable individual concerns and circumstances of the plaintiff and at the same time to recognize that physicians should not be held responsible when idiosyncratic beliefs of the patients might have prompted unpredictable and unreasonable treatment decisions” 200. The decision basically introduces the modern view of what amounts to an objective test in determining the liability of doctors and physicians where informed consent is said not to have been given. 201. The patient has the right to information from the medical professional and the information provided therefore is to be gauged objectively to determine whether it was sufficient to enable the patient to decide whether or not to submit to a given procedure. 202. The lean towards the objective test of the information provided to a patient favors the protection of the medical practitioners who might be bogged down by litigation. However, due to the rise in medical negligence cases the practice is slowly gravitating towards a new approach that is geared towards addressing the special considerations of a patient and in considering the extent of information provided to a patient by the doctor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 24

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203. The court in dealing with this matter adopts the special considerations affecting a particular patient as test of determining whether the doctor obtained informed consent for the procedure that included the removal of the cervix. 204. The 1st plaintiff had undergone previous surgeries thus the 1st defendant ought to have taken into account the special circumstances of the patient since she was young, sexually active and had already lost one of her ovaries thus the emotional trauma of losing yet another ovary and the uterus should have been matters of concern to the 1st defendant. 205. The 1st plaintiff testified that she had only consented to the removal of her ovary, uterus and nothing more. 206. The 1st plaintiff testified that she later learned that the 1st defendant removed her cervix as well contrary to the express consent that she had given. The 2nd defendant in his own defense testified that he informed the 2nd plaintiff that she did not have a cervix when she went to see him. 207. Further, she contended that the procedure as explained to her by the 1st defendant did not involve the removal of the cervix. 208. The court notes that had the 1st defendant secured the consent as per the standard practice in the presence of a nurse, nothing would have been easier than for him to have called the nurse to testify in his favor when the allegation was raised. 209. The plaintiffs having testified that the consent was limited to the removal of the ovary and the uterus, and the 1st defendant having admitted that there were options available to him and the patient, the evidential burden shifted to the 1st defendant to show that he had indeed explained the procedure to the 1st plaintiff fully and that she had made the choice of procedure. Whereas the doctor has the latitude to determine the best procedure, the full implications of any procedure or line of treatment chosen must be made known to the patient as ably stated by Dr Banji in his professional opinion. 210. It must be remembered that the removal of any removal of a body organ however small has a psychological toll on anyone. The doctor cannot simply elect to harvest an organ from the body of an individual unless the removal of the organ is purely being made to save life and the state of the patient at the time the decision is being made does not allow any consultation due to poor health. 211. The 1st plaintiff in this case was simply complaining of paint in the abdomen and that had not rendered her incapable of making a decision as to the preferred mode of treatment given the options available as per the evidence of the 1st defendant. 212. The performance of a partial hysterectomy and complete hysterectomy is a matter that the 1st defendant ought to have explored with the patient. The use of abbreviations in the consent form though an acceptable practice only complicates the matter. 213. The 1st plaintiff being a lay person, it would be grossly unfair to her if this court were to hold that she understood each and everyone of the abbreviations and that could only be explained fully if the nurse who was present during the operation had signed the form and testified. See Savita Garg vs National Heart Institute (2004) 8 SCC 56 ;2004 ALL LJ 3900 where the court observed that it is for the hospital or institute to produce the treating physician concerned and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. The care aspect would in this courts view include the issue of providing adequate information to the patient regarding the intended procedure and all the attendant complications or side effects that might arise. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 25

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214. Having failed to do so, the court finds that under Section 107 of the Evidence Act the 1st defendant had failed to prove that he had obtained an informed consent from the 1st plaintiff thus his defense as against the claim that he removed the cervix of the 1st plaintiff without consent of the patient would not stand. The burden of proof was squarely on him to proof that he had the necessary consent. 215. The claim on the loss of the cervix succeeds. 216. The operation of the 14th September 2006 was intended to deal with endometriosis. However, it did emerge from the evidence tendered by the 1st plaintiff that following the operation she encountered difficulties in passing urine at first and that prompted the insertion of a catheter as she left hospital. 217. The 1st plaintiff did also testify that it quickly evolved to leakage of urine. A situation that she testified left her publicly embarrassed and singled out an incident that happened at the M.P Shah hospital where she testified that urine freely flowed as she sat in the que with other members of the public. 218. The court notes that despite the earlier operations relating to endometriosis treatment, the 1st plaintiff had never complained of urine leakage until after the operation performed on her by the 1st defendant. 219. The 1st defendant also confirmed in his defense that the 1st plaintiff returned to her after about 10 days complaining about urine incontinence and he referred her to the 2nd defendant. The 1st plaintiff testified that the urine retention problem started immediately after she left the theatre and that was the reason why the nurses had to insert a catheter to aid her in releasing the urine. She also gave evidence that she experienced a sharp pain in her bowel and thereafter the issue of urine incontinence set in 220. Her evidence on all these complaints was not discounted and the 1st defendant admitted that she called him and narrated all these. 221. The 2nd defendant confirmed that he was called by the 1st defendant to see the 1st plaintiff urgently and that happened on a Saturday when he would ordinarily not have been working. 222. The string of evidence demonstrates the nexus between the operation and the post operation complications thus establishing the aspect of a causal link between the act of the 1st defendant having performed the operation in the 3rd defendant’s facility. 223. It is however important to point out here that the evidence tendered by the plaintiff’s does not in any way connect the 2nd defendant with the events of 14th September 2006 since the 1st defendant was categorical that he performed the operation alone and did not involve a urologist who in this case happens to be the 2nd defendant. 224. The involvement of the 2nd defendant clearly came in after the damage had already been done in the hands of the 1st defendant. The complications arising from the operation can only be attributed to the operation performed by the 1st defendant on 14th September 2006. 225. This court does not therefore find any fault on the part of the 2nd defendant. 226. The 2nd defendant did a cystoscopy which was a diagnostic procedure to establish what was causing the urine to leak and nothing more. The fact that he was unable to establish the cause cannot be held against him. It cannot amount to negligence on his part. The 2nd defendant said that he used a rigid cystoscope which according to Dr Richard Baraza is less accurate in diagnostic exploration as compared to a flexible cystoscope. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 26

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227. Dr Richard Baraza went further to state that the South African Doctors have access to superior equipment thus it should not come as a surprise that they were able to diagnose a fistula which the 2nd defendant had failed to do. 228. The witness called in his defense Dr. Rchard Baraza referred the court to two commonly used cystoscopes for the purpose of exploring the bladder if a doctor is undertaking an exploration to establish 229. The immediate duty of the plaintiffs would be to satisfy the court that the injuries suffered were as a direct result of medical negligence on the part of the doctor who attended to them. 230. The 2nd defendant only attended to the 1st plaintiff after complication had already set in. Th 1st defendant having undertaken the operation exclusively he had assumed the duty of care to the 1st plaintiff on all aspects of the operation including any procedure he performed on the bladder notwithstanding that he was not a urologist. 231. In Felder vs. Vein (2003) 68 OR (3d) 97 CA the Ontario Court of Appeal explained the Arndt decision. In doing so the court quoted the extensively from Justice Mclaughlin’s decision. The judge had stated:“ having rejected both are purely subjective and are purely objective approach, Laskin CJ crafted a test that fell between the two, the “modified objective” test. While approaching the issue of what the patient would have done objectively the judge should take into account “special consideration affecting the particular patient” (page 898). This would in his view avoid a problem of leaving the matter of causation entirely in the surgeon’s hands. “the patient’s particular situation and the degree to which the risks of surgery or no surgery are balanced would reduce the force on an objective appraisal of the surgeons recommendation” (page 899). At the same time consideration of all factors that might have reasonably affected the decision avoid exclusive reliance on the plaintiff’s assertion at trial.” 232. The patient having indicated to the doctor that she only desired the removal of her uterus and the ovary left it to the wise discretion of the 1st defendant to determine whether he could single handedly handle the situation or he would need the services of a urologist. 233. The 1st defendant said that he considered himself sufficiently qualified and skilled to perform the operation without adopting a multi -disciplinary approach which he acknowledged is at times adopted in similar cases. The legitimate expectation on the part of the 1st plaintiff was that she would have her issue resolved without any exposure to injury beyond the normal operation pains. 234. The failure to involve the 2nd defendant or any other urologist at all considering the nature of the complications the 1st plaintiff had and considering the fact that the operation would include a procedure on the bladder, that in this court’s view amounted to negligence on the part of the 1st defendant. 235. The 3rd defendant’s facility cannot have been without a urologist that he could summon to assist. Dr Mativa for the 3rd defendant testified that the hospital provides a conducive environment and has competent and capable staff. 236. The 1st defendant did not offer any reason why he decided to undertake the operation single handedly. Dr Richard Baraza observed in his evidence that the involvement of a urologist would have been desirable and that evidence was in line with the professional opinion proffered by Dr. Banji and relied https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 27

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on by the plaintiffs. The 1st defendant having made the choice to undertake the operation alone, he must similarly deal with the consequences of the after effects of the operation to the exclusion of the 2nd defendant. 237. The law on medical negligence recognizes that once a doctor accepts to treat a patient breach of any of the duties to the patient may give rise to a cause for negligence and in case the patient suffers any loss and injury, he may sue the doctor for medical negligence amounting to actionable wrong and recover damages from the doctor. The suit by the plaintiffs is thus properly founded. 238. It follows therefore once the doctor has made the decision to operate on a patient, as was the case here. all that the doctor has to do is explain to the patient the procedure he intends to adopt and or use and upon obtaining the necessary consent proceed to administer the treatment. Any injury resulting from any act or omission by the doctor would be compensated by him. 239. From the 1st plaintiff’s statement and evidence in court the doctor (1st defendant) had explained to her the procedure that he was to undertake a procedure that would only involve the removal of the ovaries and uterus. The patient did not anticipate that the hysterectomy procedure could result in the nature of issues that she had to contend with after the operation. 240. The 1st plaintiff testified that at the time of the procedure the 1st defendant held himself out as a qualified consultant gynecologist who was able to offer specialized treatment. 241. The evidence by the 1st plaintiff was not controverted by the 1st Defendant. All that the 1st Defendant told the court was that the procedure he adopted was laparoscopic surgery which he said would leave minimal scars on the patient. 242. It is that procedure that involved the removal of the cervix. The 1st Defendant however, said that open surgery option was also there but he preferred the laparoscopic surgery because that it is the newly preferred procedure by medical practitioners. 243. The 1st Plaintiff was only 32 years old at the time of the surgery she was categorical but the 1st Defendant advised her that they were to remove the uterus and ovaries. She went further to state that there was no advice given to her on preservation of ovaries yet there was desire for more children. She further testified that the doctor did not tell her the implication of the procedure. 245. The position taken by the 1st plaintiff on the failure by the 1st defendant to advise her on the implications of the procedure goes back to the confirm that the patient was not adequately informed about the procedure thus the consent given was not informed. 246. The 1st plaintiff already had one of her ovaries removed earlier on meaning that with the that with the removal of the second ovary and uterus she would be incapable of bearing any other child. The 1st defendant did not deny there being technology to preserve ovaries. He also admitted on crossexamination that he did not give that advise. As a professional gynaecologist, one would assume that those discussions would have formed the part of the briefing before the patient was required to append her signature to the consent form. 247. It is therefore clear from her evidence that there were specific considerations that the 1st defendant should have taken into account in advising on the procedure to be used. The 1st defendant clearly failed in his duty to guide the patient. 248. A plaintiff who is lay cannot be expected to know what abbreviations in medical document stand for. The risk that the doctor takes in such a case is that the procedure would require to be explained when the consent is dishonored such as in this case thus placing a heavy burden on the medical practitioner. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 28

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The patient’s word against that of the doctor invites the court into considering who amongst the two is to be believed yet nothing prevents the doctor from being as clear as possible in the description of the procedure. 249. It should also not be forgotten that patients about to undergo an in every operation are already under some form of psychological tension thus clarity is everything in every document that one is required to sign. 250. The 1st plaintiff supported by the 2nd plaintiff testified that after the discharge from hospital on 27th October 2005 her sex life became very difficult. 251. She testified that she would experience a lot of pain during sexual intercourse and that there was no pleasure. 252. The 1st plaintiff went ahead to state that they actually resolved with the 2nd plaintiff to be sleeping in separate bedrooms. 253. The 1st Plaintiff stated in evidence that she decided to visit the 1st Defendant on the 4th September 2006 for consultation over the persistent pain experienced during intercourse. She went with her husband. The 1st Defendant examined her and prescribed some antibiotics and painkillers. According to her the 1st Defendant diagnosed the problem as a possible infection. 254. She went on to testify that she took the medication until the 11th September 2006 when she went back to see the 1st Defendant. This time the doctor recommended an X-ray of the stomach. 255. It was through the X-ray that she stated that the doctor (1st defendant) discovered some dome on the bladder. 256. The doctor recommended that she undergoes a second operation. According to the 1st Plaintiff the 1st Defendant told her that he was a gynecologist and not a urologist. 257. The 1st Plaintiff went back to the hospital and that is when the 1st Defendant performed the procedure through laparoscopy. 258. The 1st Plaintiff went on to testify that when the doctor performed procedure, he went on to inform her that her appendix was swollen and required to be removed. The 1st Defendant went ahead and removed it. 259. The 1st Defendant also informed her that there were plaques of endometriosis in her bladder on the right side and the 1st Defendant used a scapel to remove them. 260. It is important that I highlight here that the procedures on the bladder were being performed by the 1st defendant who admittedly was not a urologist but gynecologist consultant. 261. The 1st Plaintiff testified that after the procedure she went to the washroom and tried to pass her in but it could not flow. 262. The nurses tried to induce the flow of urine but that proved unhelpful and that is when the 1st Defendant was called in to assist. 263. The 1st Plaintiff stated that when the 1st Defendant touched her belly, he said that the bladder was full and he ordered the nurses to bring a disposable catheter which he inserted into her for the urine to flow. 264. The 1st Plaintiff testified that following the insertion of the catheter she passed almost a liter of urine. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 29

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265. She stayed in hospital and was discharged on the 16th September 2006. According to her at the time of discharge anytime she tried passing urine she would feel pain and it would take time to flow. 266. The portion of evidence is important to note in that as at the time the 1st Plaintiff went to consult the 1st Defendant on 4th September 2006 her only concern was pain during sexual intercourse. She did not tell the court that she had any difficulties before the procedure on 14th September 2006. 267. The evidence is key because the line of treatment was chosen by the 1st defendant thus, he assumed a duty of care as he went about treating the 1st Plaintiff. 268. The 1st Defendant did testify and as a medical practitioner he did not offer any explanation as to why the 1st Plaintiff developed the problem of obstructed urine flow and the pain that she experienced while passing it. For her to be catheterized obviously there was obstruction in the natural flow and the burden would shift to the 1st Defendant to explain why that happened immediately after the procedure. 269. The 1st Defendant did not explain the same to rule out negligence on the manner he handled the 1st Plaintiff. 270. As the medical expert the 1st Defendant ought to have sufficiently explained to the 1st Plaintiff as well as to this court whether the complication that followed the procedure was normal and whether that could not have been avoided. 271. The issue of the restricted urine flow becomes even more critical considering that the 1st Defendant was not a urologist but a gynecologist. 272. The 1st Plaintiff went further to testify that upon discharge on 16th September 2006 whenever she tried to pass urine she would feel like she was not passing urine and on the 23rd September 2016 she testified that she got a striking pain in the vagina at about 2:00 AM and she kept crying because the pain was very intense. 273. She testified that at about 7:00 AM she called the 1st Defendant who advised her to proceed to the emergency section of the Aga Khan hospital the 3rd Defendant to see the 2nd defendant. 274. The 1st Plaintiff testified that when she got to Aga Khan that is when she discovered that she was passing urine without knowing. It would just flow as she walked. She was seen by the 1st defendant who gave her some medication but the urine problem did not stop. 275. On the 29th September 2006 she consulted the 1st Defendant who referred her to the 2nd Defendant Dr. Naji Said. 276. The 1st Plaintiff went to see doctor Naji Said and that was when doctor Naji Said informed her that she did not have a cervix. 277. DR. NAJI SAID (2nd Defendant) referred her to MP. SHAH hospital for ultra sound. The ultrasound was done and according to the 1st Plaintiff it did not reveal anything. 278. The 2nd Defendant advised the 1st Plaintiff to be wearing pampers and give her some medication. The 1st Plaintiff’s journey of wearing adult pampers had just began. 279. DR. NAJI SAID testified that he is a urological surgeon and confirmed that the 1st Plaintiff went to him on referral from the 1st Defendant. The 2nd defendant did not take part in the operation of the 1st plaintiff and as stated elsewhere in this judgment he was not in any way liable for the omissions and or commissions of the 1st defendant as against the plaintiffs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 30

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300. The involvement of the 2nd Defendant become a matter of great interest to this court in view of the fact that in the testimony of the 1st Defendant he made it appear like he did not require to involve ideologist in handling the plaintiffs case. 301. The 1st Defendant had testified :“ if there is damage and repair urologist would do it . Multidisciplinary approach comes with severity of the disease. In this case I decided to do it alone. The second procedure of 2006 did not require initially. When I did the second surgery I removed the appendix residual endometriosis of the right ovary and she had a very tiny lesion of the Dome of the bladder. Page 153 the plaintiffs document are my operation notes. The domes appearing at page 153 I was able to handle them. I had the necessary expertise to handle and I did. In the handling of a case of endometriosis there is a lot of overlap between gynecologist and urologist while managing women pelvic conditions. When you have vaginal vesicle fistula it is the gynecologist. Prolapse of the bladder the gynecologist handles it. Incontinence it is the gynecologist who does repair I do not need to consult the urologist during the second procedure.” 302. The evidence of the 1st Defendant leaves this court wondering if then the 1st Defendant was able to deal with the 1st Plaintiff’s issue as per his own testimony, why was it necessary to request the services of the 2nd Defendant? 303. The logical conclusion that this court draws from the 1st Defendant’s decision to involve the 2nd Defendant is that he had come to the painful realization that he was unable to manage the case of the 1st Plaintiff. The 1st plaintiff had already suffered injury in his hands and therefore he hoped that the 2nd defendant would be able to help. 304. The decision by the 1st defendant to call in the 2nd defendant so late in the day was a calculated attempt to try and salvage an already bad situation. 305. The 1st Defendant sought to explain when incontinence occurs and he said:“ incontinence of the urinal occurs when the urethra and the bladder does not perform optimally. It could be a case of stress incontinence vesicle fistula urine flows continuously. Prolapse can cause incontinence. I did not discharge wrongly from hospital…. On 29/9/2006 she came again complaining of incontinence. I did not think there was any surgical or anatomical issue with the bladder to make it necessary to call in a urologist. I thought of a functional issue of the bladder commonly we call it a detrusor instability meaning the bladder has a functional issue that is when I referred her to the 2nd Defendant” 306. From analysis of the statement of the 1st Defendant, it is clear that there was a problem with the bladder and that problem started after the second procedure the burden of proof was therefore upon the 1st Defendant to explain why a patient who walked to him without urine problems left hospital after a procedure done by him with obstructed urine flow and later developed urine incontinence. 307. The 1st Defendant failed to discharge the burden placed upon him to show that it was not as a direct result of the procedure he performed that the 1st Plaintiff’s condition worsened to include urine incontinence forcing her to wear pampers. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 31

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308. In Huck’s Vs Cole and Another (1968) 118 New LJ 469 Lord Denning speaking for the court observed:“ a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his contact fell below that of the standards of reasonably competent practitioner in his field.” 309. In the instant case the action of the 1st defendant cannot be said to have been a misadventure. The 1st defendant was fully away of his limitations as a professional on matters urology and as such should have avoided venturing into a procedure that would most likely require the expertise of a urologist. It is a case of volenti non fit injuria on his part as a professional. He must be held to the standards of a urologist performing a procedure on the bladder. 310. In this court view the 1st Defendant went about treating the 1st Plaintiff without exercising caution care and skill required of the standards of a reasonably competent practitioner in the relevant field. 311. The 1st Defendant was therefore expected to exercise due care and skill to avoid harm to the 1st Plaintiff. 312. The 2nd Plaintiff testified almost tearfully that following the operation conducted on 14th September 2006, he was compelled to undertake duties that would ordinarily be undertaken by his wife the 1st plaintiff such as attending to their lone child who was barely a year old. 313. The 1st plaintiff explained that due to the pain that the 1st plaintiff was experiencing she could not assist in house chores and further that his sex life was drastically interfered with since he could no longer enjoy his conjugal rights considering that the 1st plaintiff was injured and had to wear diapers to contain the urine leak. 314. Further, the 2nd plaintiff narrated to this court how his wife’s condition wiped out his resources as he struggled to ensure that she received treatment and care in Kenya and South Africa. He submitted documents before the court in support of the special damages claim that he had specifically pleaded and urged this court to consider granting him the same. 315. The defendants caused him to suffer the expense, lose the enjoyment of conjugal rights and eventually the injury saw his wife stop working thus diminishing their economic abilities thus he emphasized the need for the court to make adequate award in damages to try and restore them to the position they were in prior to the operation. 316. The 1st Defendant should have been alive to the hazards and risks in the professional task he decided to undertake and to ought to have ensured that he brought into in the skill and prowess that other ordinarily competent members of his profession would bring, but needed not bring more. 317. The standard against which he would be measured would be that of a reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of Polymath and prophet. See Kuisum Sharma Vs. Batra Hospital and Medical Research Centre, (2010) AIR SCW 1315; AIR 2010 SC 1050. 318. The 1st defendant should have restricted himself to the realm of gynaecology which her professed to be his area of competence and speciality. He however voluntarily chose not to do so. The court finds that he was grossly negligent in his approach by failing to engage the services of a urologist at the initial https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 32

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phase only to seek the 2nd defendant’s input after the injury. A classic case of try to shut the stable after the horse has bolted. 319. The evidence on record does not show the reason why he avoided involving a urologist in the first instance. It would have been perfectly understandable if the 1st Defendant had to handle the 1st Plaintiff’s case at, say a remote location in this country where the services of a urologist would have been hard to secure. However, this was happening at Aga Khan hospital the 3rd Defendant one of the most prestigious health facilities in this country. 320. The 1st Defendant cannot escape liability for he failed to recognize and take into account the special considerations affecting his patient. 321. The 1st Plaintiff was a young lady aged 32 years with a few months old baby and was still desirous of getting more children as per her evidence. 322. The involvement of the 2nd Defendant at a time when the 1st Plaintiff case had taken a devastating turn was of not much help to the 1st plaintiff. 323. The 1st Plaintiff in her evidence stated that the two doctors 1st and 2nd defendant performed a cystoscopy on her and none of them informed her she had developed a fistula. 324. On 4th October 2006 the 1st Plaintiff stated that she was admitted in hospital and the doctors were to check if she had a fistula and repair it. 325. The 1st Plaintiff signed a consent form which is contained in her bundle of documents at page 118. 326. The content form in the procedure part indicates the doctors were to check and repair the fistula. 327. The procedure was done and she left the hospital with a catheter and the urine bag. 328. According to the 1st Plaintiff she stayed for about two weeks and within these two weeks she was meant to go see the 2nd Defendant. 329. She however went to South Africa on the 19th October 2006 to seek help after realizing that the two doctors were not assisting her get out of her regrettable situation. 330. The evidence tendered by the witnesses in this matter leave no doubt that the 1st plaintiff suffered injury following a procedure performed by the 1st defendant in the 3rd defendant’s facility. The 1st and 3rd defendants are therefore found to be culpable for negligence. 331. The court now turns to the issue of liability on the part of the 3rd defendant. The 3rd defendant provided facilities and staff to the 1st Defendant during the operation that led to the injury giving rise to this claim. The hospital management in allowing the 1st Defendant to practice within its institution assumed a duty of care over the patients who would time and again seek the services of the 1st Defendant. 332. Evidence emerged that the 1st Defendant had been granted priviledges and rights to practice in the 3rd Defendants facilities. It also emerged that the 1st Defendant has had a previous medical negligence case in Uganda which led to him being disbarred from practicing medicine in Uganda. The 1st Defendant when confronted by Counsel for the Plaintiff on the subject, he became irritable and declined to delve into the details of the complaint that resulted into him being disbarred from the practice of medicine in Uganda. 333. The 3rd Defendant knew or ought to have known that patient who seek medical care and attention in their facility do so on the basis of their believe in the capacity of the 3rd Defendant to offer the best https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 33

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possible care available. The 1st plaintiff had a legitimate expectation that the doctors that would attend to her in the 3rd Defendants facility were competent and professional. 334. The 3rd Defendant called Dr. Mativa, the officer in charge of internal medicine at the hospital and the witness informed the court that the 1st Defendant was not an employee of the 3rd Defendant but a private contractor or practitioner. Dr. Mativa sought to absolve the hospital from any acts that would amount to negligence committed by either the 1st or the 2nd Defendant. The witness however did not tell the court how the 1st Defendant who already had professional negligence issues managed to continue practicing in the facilities of the 3rd Defendant. 335. It goes without saying that a patient seeking treatment in a hospital would not venture into enquiring about the competence, professionalism or employment status of a doctor since their only concern would be to access good medical care in the said hospital. 336. As earlier in stated elsewhere in this judgment in Savita Garg vs National Heart Institute (2004) 8 SCC 56 ;2004 ALL LJ 3900 the court observed that it is for the hospital or institute to produce the treating physician concerned and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. The court went further and stated that once the claimant has successfully discharged the initial burden that the hospital was negligent and that as a result of the negligence the patient suffered injury the duty shifted to the hospital to prove that there was no negligence involved in treatment of the patient. 337. The 3rd defendant failed to explain how a medic who had been sanctioned over professional negligence related issues though by another country had been allowed to practice in their institution. The decision by the 1st defendant to embark on a procedure that would ordinarily have required a multi-disciplinary approach as stated by Dr. Bhanji and Dr. Richard Baraza amounted to gross negligence on his part. The hospital would be held vicariously liable. 338. The medical opinions of Dr. Richard Baraza and Dr. Mativa the evidence of the 1st and 2nd defendants largely advanced the case for the defence . On the other hand the evidence of Dr. Bhanji. Dr. Gucelter and Dr. Van Der Wat advanced the case for the plaintiffs. Under Section 48 of the Evidence Act Cap 80 of the Law of Kenya this court has considered all the opinions weighing them against the oral evidence of the plaintiffs and the defendants. The opinions are not binding to the court but assist the court in arriving at the decision as to whether or not the case of the plaintiffs was established on a balance of probabilities as against the defendants. 339. In the case of Stephen Kinini Wang'ondu v. The Ark Limited [2016] eKLR the court (Mativo J. as he then was) expressed itself as follows with regard to expert evidence: “ The fundamental characteristic of expert evidence is that it is opinion evidence. Generally speaking, lay witnesses may give only one form of evidence, namely evidence of fact. To be practically of assistance to a court, however, expert evidence must also provide as much detail as is necessary to allow the court to determine whether the expert’s opinions are well founded. While the test for admissibility of expert evidence differs from jurisdiction to jurisdiction, judges in all jurisdictions face the common responsibility of weighing expert evidence and determining its probative value.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 34

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340. As far back as 1995, the Court of Appeal in Dhalay v. Republic (1995 – 1998) EA 29 held as follows with regards to expert evidence: “ Where the expert who is properly qualified in his field gives an opinion and gives reasons upon which his opinion is based and there is no other evidence in conflict with such opinion, we cannot see any basis upon which such opinion could ever be rejected. But if a court is satisfied on good and cogent ground(s) that the opinion though it be that of an expert, is not soundly based, then a court is not only entitled but would be under a duty, to reject it.” (Emphasis added). 341. In the case of the case of Stephen Kinini Wang'ondu (supra), the court went on to hold as follows: “While there are numerous authorities asserting that expert evidence can only be challenged by another expert, little has been said regarding the criteria a court should use to weigh the probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account.[11] Four consequences flow from this. Firstly, expert evidence does not “trump all other evidence”.7 It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision. Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing.12 A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence. Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred. Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones.[12]”. 342. This court having considered the opinions of the experts and analyzed them against the testimonies of the witnesses the court finds that the case of the plaintiff was well founded and there was proof that the duty of care owed to her by the 1st defendant and the 3rd defendant was breached and as a result she suffered damage which the court must remedy. 343. In Bilonoba v. Zubirzitzky 233 Pa. Super 136, 336 A. 2d 351 (Pa super 1975) and Scott v. Brookdale Hospital 60A D. 2d 647, 400 N.Y.S. 2d 552 (NY. A. D 1977) the hospital was held liable for negligence. 'Loss of chance' theory has been applied in some cases against the hospital. “ In case the evidence reveals that an individual who committed the alleged negligent act was acting as independent contractor meaning that he was not subject to the hospital's direction and control as to the manner of providing the service the hospital will be liable to the plaintiffs not on the basis of vicarious liability, but only on the basis of corporate liability". Of course, the corporate liability theory does not exclude the alternative theory of vicarious liability - see for details, Medical Malpractice by Frank M. McClelian, pp. 39-42. The learned author makes it clear that "Corporate negligence differs from the doctrine of respondent superior because it imposes on the hospital a non-delegable duty owed directly to the patient without regard to the details of the doctor - patient relationship." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 35

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344. The 1st defendant according to Dr.Mativa was an independent contractor however on the basis of corporate liability the 3rd defendant would be held liable and this court finds that had the 3rd defendant not allowed the 1st defendant to practice in its institution probably the 1st plaintiff would never have come into contact with the 1st defendant. 345. This court takes judicial notice under Section 60 of the Evidence Act that the Agakhan Hospital is one of the premier hospitals in Kenya and that the natural expectation is that those that are allowed to practice medicine in the facilities of the 3rd Defendant carry out their duties with the greatest degree of professionalism expected in any discipline they specialize in. 346. The hospital would bear a duty of care to the patient as a corporate entity. The concept of Corporate negligence of hospital was defined in Bader v. United Orthodox Synagogue 148 Conn. 449, 172 A. 2d 192 (Conn 1961), as "the failure of those entrusted with the task of providing accommodations and facilities necessary to carry out the charitable purposes of the corporation to follow, in a given situation, the established standard of conduct to which the Corporation should conform." 347. In Darling v. Charreston Community Memorial Hospital 3311 2d at 332, 211 N 2d at 257, the court, focusing on the relationship between the hospital with patients, concluded that the evidence would support a finding of negligence against the hospital. 348. In Grubb v. Albert Einotein Medical Center 255 pa. super 381, 387 A. 2d 480 (1978), the hospital was held responsible for a patient's paralysis caused by defective electric drill used in surgery. The hospital also has a duty to its patients to select its staff physicians carefully and periodically review their credentials - see Johnson v. Misericordia Community Hospital 9G Wis 2d 708, 301 N.W. 2d 156 (Wis 1980); Purcell v. Zimbelman 18 Ari App. 75, 500 p. 2d 335 (1972). (Emphasis mine). The decision to allow the 1st defendant to practice in the facilities of the 3rd defendant exposed the 3rd defendant to liability for any torts of commission or omission on the part of the 1st defendant. 349. A natural outgrowth of the basic corporate liability theory is that a hospital has duty to formulate medical rules and/or policies. The landmark case is Airhields v. Spears 590 S.W. 2d 574 (Tex. Civ App, 1979 (Not only in Airshieds v. Spears 590 S.W. 574 (Tex. Cin App 1979), where a premature new born child was placed in an incubator that continually administered a prescribed amount of oxygen. The infant later developed retrolental fibroplasia, which resulted in total blindness. The court held that the hospital was liable for constructive knowledge that the amount of oxygen administered was too great and would likely result in blindness. 350. The court has already found that the 1st Defendant was grossly negligent in the manner he went about treating the 1st Plaintiff. He caused her to suffer injury as was reported by Dr. Louis Gus Gecelter and Dr. Joan Van Dawat. The operation leading to the 1st Plaintiff suffering a Vesicovaginal fistula was done by the 1st Defendant in the 3rd Defendants’ Facility. 351. The two defendants would therefore be liable to compensate the plaintiffs under the concept of composite negligence. Composite negligence occurs when a person sustains injury without any fault or negligence on his part but due to negligence of two or more persons. Though in legal parlance it is styled "composite negligence", it is a case of "joint negligence". In case of composite negligence the person wronged has a choice of proceeding against all or any one or more then one of the wrong doers, notwithstanding the fact that all or more than one are responsible for the incident. And in his suit, the plaintiff is not bound to strict analysis of the proximate or immediate cause of the event to find out whom he can sue. He is entitled to sue any one he likes or all of them or some of them. Again, even if the decree is against more than one defendant, the plaintiff can recover the full decretal amount from any of the defendants. The other defendants cannot insist for recovering the amount from other https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 36

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defendants. Their liability is joint and several. See Medical Negligence and Compensation 2nd Edition by Ram Shelkar Quantum 352. The court having found that the 1st and 3rd defendants are jointly and severally liable, proceeds to determine what the are the recoverable damages by the plaintiffs. 353. The plaintiffs pleaded for special damages and called evidence in support thereof. The court was satisfied by the evidence produced by the plaintiffs and has no hesitation in finding in favor for the plaintiffs. 354. The law on special damages is that they not only need to be specifically pleaded but also proved. See Hahn Vs Singh , Civil Appeal No. 42 of 1983 [1985] KLR 716 at Pg 717 and 721 where the learned Judges of Appeal -Kneller Nyarangi JJA and Chesoni Ag. JA held that :“ special damages must not only be specifically claimed (pleaded) but also strictly proved… for they are not the direct natural or probable consequence of that complete or it will not be inferred from the act. The degree of certainly and particularly of proof required depends on the circumstances and nature of the acts themselves” 355. The plaintiff’s under paragraph 22 of the plaint pleaded the figure and during the hearing produced documents contained in plaintiff’s Exhibit 1 in support of the claim. 356. The plaintiffs particularized the figures amounting to the Kshs. 7, 207, 524. 20 as hereunder:- 357. a. Operation fees paid to the 1st defendant Kshs.100,000 b. The bill by the 3rd Defendant of Kshs. 132,000 c. Anaesthologists fee Kshs.35,000 d. Further fees to the 3rd Defendant Kshs.58,000 e. Anaesthologists fee Kshs. 35,000 f. Operation fees paid to the 2nd Defendant Kshs.50,000 The plaintiffs in their submissions and set out the following:a. Air fair economy class USD 976 – this was in respect of the flight to South Africa for further treatment on 18/10/2006 That is the time the 1st plaintiff saw Dr. Louis Gecelter and the document in support of that was said to be found at page 13 of the Plaintiff’s Exhibit 1. 358. The plaintiff produced an invoice issue to Triton Petroleum Co. Ltd by Highlight Travel. The invoice covered the travel cost of the 1st plaintiff and another person by the name Nadra Qureshi for travel on 17th October 2006. 359. The plaintiff’s provided an explanation why the 1st plaintiff had to be accompanied on her journey to South Africa. In their submissions the plaintiffs stated that as at the time of travel, the 1st plaintiff was catharized and with a leg bag and she could therefore not travel without an aide given her state of health. 360. At the hearing the 1st plaintiff testified to that effect and urged the court to find that the travel of Nadra Qureshi with her was justifiable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 37

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361. The plaintiff’s explained in evidence that the invoice was sent to the Triton Petroleum Co. Ltd where the 2nd Plaintiff worked. The employer of the 2nd plaintiff was said to have paid the sum and recovered if from the 2nd Plaintiff’s salary. 362. Further, the plaintiffs submitted under paragraph (h) that of their submission in support of the special damages that the plaintiff’s incurred a further sum of USD 220 after the procedures in South Africa on travel back to the country. 363. The plaintiffs father submitted that they incurred an expense of USD 2260 during the period between 19th April 2007 and 24th April 2007 .The same arose out yet another visit to South Africa to further treatment by Dr Johan Van Der Wat and Dr. Lous Gaecelter. Treatment notes and an invoice What produced and are contained in the Plaintiffs exhibit one at page 20 to 37 and 40. The plaintiffs submitted that just like in the first travel the 1st plaintiff had to travel with an aide to South Africa due to her condition. 364. The invoice of USD 2260 was also directed to Triton Petroleum Co. Ltd where the 2nd Plaintiff worked and settled by the employer who would later recover from his salary. 365. The plaintiff further contended that the 1st plaintiff and her aide spent USD 1554 in accommodation during her visit to South Africa on 18th October 2006 covering her entire period of stay there. 366. A further item included in the special damages was Hospital Bill for 26,093. 84 Rands. The claim was supported by documents from Net Care Hospitals (PTY) Ltd. The documents show zero balances which according to the plaintiffs was proof that the amount was paid. 367. The plaintiffs also claimed Doctors fees amounting to 97, 571.36 Rands. The evidence in support of that limb of the claim were produced vide plaintiff Exhibit 1- pages 37-39 and 48, 49, 75 ,76 and 80. 368. A claim for the cost of medicines totaling to 3,510.52 Rands was also made and supported with documents at pages 17, 18, 20 and 21 of the Plaintiff’s Bundle Exhibit 1. 369. The plaintiffs went further and submitted on further doctors fees amounting to Rands 1500. Evidence in support of the same to be found in plaintiff’s bundle at page 39. 370. The plaintiff’s also claimed tax costs to and from the Hospital and Clinics amounting to 720 Rands. The plaintiffs did not however provide receipts in support of this limbs and urged the court to the sum claimed to be a reasonable figure and comparable to taxi costs locally in Kenya. 371. Lastly, on special damages the plaintiffs sought an award of Kshs.5,000,000 as costs for future medical care. 372. The plaintiffs argued that the figure would cover costs to South Africa post the filing of the suit and the costs for the filing of the suit and the costs for purchase of hormonal drugs that the 1st plaintiff would require. 373. The plaintiffs concluded by urging the court to find that they had established their case on special damages to the court to find that they had established their case on special damages to the degree of balance of probabilities and the court should grant the same being Kshs. 7, 207, 524. 20 374. The defendants took the view that the plaintiff’s action of seeking treatment in South Africa was not warranted therefore the cost attendant thereto should not be granted to them by way of special damages. This court has however considered the medical reports submitted before the court by the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 38

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plaintiffs originating from Dr. Gicelta and Dr. Van Da Wat who were undeniably doctors based in South Africa. Invoices were also produced as proof of costs incurred during the trips to South Africa. According to the 3rd defendant the plaintiffs took their visits to South Africa as opportunities for vacations a submission that this court did not take very kindly considering that the visits to South Africa were occasioned by the negligence of the 1st and 3rd defendants otherwise the 1st plaintiff or any of his relatives who accompanied him there would have had no business going to South Africa. The submission by the 3rd defendant was insensitive in this court’s view. A patient travelling to a far off destination carrying with her a urine bag and a catheter would certainly require an assistant. The court therefore finds that the special damages in the sum of Kshs. 7,207,524.20 were expended for a proper and justifiable course related to the search for medical care and treatment that the 1st and 3rd defendants were unable to provide to the plaintiffs. Accordingly, the plaintiffs shall have the special damages of Kshs. 7,207,524.20 borne by the 1st and 3rd defendants. 375. On general damages the plaintiffs proposed a figure of Kshs 250million as a reasonable assessment of damages whereas the 1st, 2nd and 3rd defendants did not propose any figure. 376. The 1st and 2nd defendants submitted :“ The principles applicable to awards for damages in personal injury cases were perhaps best analysed by Potter JA in Tayab -vs- Kinanu (1983) eKLR at Pages 307-321 of the 1st and 2nd Defendants' Authorities. His citations are best looked at in some detail. He commences with West (H) & Son Limited -vs- Shephard (1964) AC 326: "But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavor to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional. He then went on to consider Lord Denning's dictum in Lim Poh Choo -vs- Camden and Islington Area Health Authority (1979) 1 All ER 332 at 339 at Pages 322-350 of the 1st and 2nd Defendants' Authorities: “ In considering damages in personal injury cases, it is often said: 'The defendants are wrongdoers, so make them pay up in full. They do not deserve any consideration.' That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay. It is worth recording the wise words of Parke B over a century ago:'Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life ...You are not to consider the value of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 39

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existence as if you were bargaining with an annuity office ... I advise you to take a reasonable view of the case and give what you consider fair compensation'. Potter JA then went on to cite Lord Denning's remarks in the same case about extravagant awards: “ I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention" 377. The 1st and 2nd defendants further submitted that :“ Awarding large amounts of damages has a direct impact on the lives of Kenyans, as insurance companies in effect raise their premiums. This was the position in Kigaragari - vs- Agripina Mary Aya (1985) at Pages 351-354 of the 1st and 2nd Defendants' Authorities.” 378. The 1st and 2nd defendants though having captured the principles that guide the court in the assessment of damages failed to do the noble thing of citing decided cases that would offer a useful guide to this court in arriving at a just decision on the matter of general damages. The two defendants have effectively left the court without any insight from them as to what they would consider as reasonable compensation to the plaintiffs. 379. The 3rd defendants on their part submitted in relation to quantum that:(A) "The words of Lord Denning in the West (H) & Son Ltd (1964) A.C. 326 at page 341 on excessive awards on damages are important to replicate herein thus:" I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a National Health Service. But the health authorities cannot stand huge sums without impending their service to the community. The funds available come out of the pockets of the taxpayers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation." (Paragraph 28) (B) The words of Lord Denning were reiterated by Nyarangi, JA. in Kigaragari v Aya [1985] eKLR thus: "I would express firmly the opinion that awards made in this type of cases or in any other similar ones must be seen not only to be within the limits set by decided cases but also to be within what Kenya can afford. That must bear heavily upon the court. The largest application should be given to that approach. As large amounts are awarded, they are passed on to members of the public, the vast majority of whom cannot just afford the burden, in the form of increased costs for insurance cover (in the case of accident cases) or increased fees." (Paragraph 29) (C) It is thus common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry as well as the economy. See the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra) where it was stated that:...but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 40

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compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional....." (Paragraph 31) (iii) This courts attention is further drawn to the decision of the Court of Appeal in Civil Appeal No. 26 of 2013 Simon Taveta V. Mercy Mutitu Njeru (copy attached and marked "F") wherein the Court of Appeal found high an award of Kshs. 4,000,000/= by way of general damages for 100% total disability and substituted the same with an award of Kshs. 3,500,000/=. (Paragraph 20).” 380. Similarly, the 3rd defendant opted not to place on record any authorities that would guide the court in the assessment of damages. In effect therefore, all the defendants have not highlighted any comparable awards thus the court is left to exercise its discretion based on the authorities cited by the plaintiffs as well as those that this court has been able to unearth. 381. On the other hand the plaintiffs urged the court in considering what to award in general damages to bear in mind that the 1st plaintiff has had to endure persistent abdominal pains with tenderness and that and that she presently lives with a damaged, contracted and scarred bladder, severe urinary incontinence, recurrent urinary tract infections. 382. Further, the plaintiffs urged the court to consider that the 1st plaintiff suffered the loss of her cervix and that the same was removed without her consent. 383. The plaintiffs further argued that the 1st plaintiff has as a result of the removal of her cervix and her general health condition lost the quality to satisfy her husband sexually and she has lost sexual enjoyment. 384. According to the 1st plaintiff she has suffered social stigma from family, friends and former colleagues owing to her urine leakages. 385. The 1st plaintiff further claims to have been shunned by friends and family who are afraid of relating with her lest they asked to help in meeting hospital bills. 386. The 1st plaintiff further contended that due to her condition which necessitated frequent visits to hospital she would occasionally be forced to stay away from work and thus she remains incapable of being in any gainful employment. Her absence from work affected her productivity thus she lost her job and remained out of gainful employment. 387. The 2nd plaintiff on his part claims that for 17 years now during which this matter has been pending in the courts, he has been deprived and shall continue to be deprived of spousal society and services for the rest of his life. 388. The 2nd plaintiff contends that he is a man of principle and has chosen to stick and stand by his wife. 389. The 2nd plaintiff also claims to have suffered inconvenience and expenses owing to the fact that he is now the sole breadwinner for the family due to the 1st plaintiff’s condition. 390. The 2nd plaintiff has urged the court to consider that he has had to shoulder the expenses of footing medical expenses of the 1st plaintiff in Kenya and South Africa. The 2nd plaintiff contends that this has led to the depletion of hid finances and those of other family members who have had to extend a helping hand to him. 400. Following the botched operation of the 1st plaintiff in the hands of the 1st and 2nd Defendant, the 2nd plaintiff claims that the 1st plaintiff was rendered inactive and that forced him to perform all parental https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 41

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duties to their barely 1 year old daughter when ensuring that he remained at work to ensure that he was able to provide for the family. 401. It is against this background that the plaintiffs seek to recover general damages against the three (3) defendants. 402. The plaintiffs have urged the court to exercise its discretion in the assessment of damages as that is purely a matter for the court. 403. The plaintiffs cited the case of Peter M. Kariuki Vs. Attorney General [2012] eKLR where the court of appeal held:“ it bears repeating that assessment of quantum of damages is a matter for the discretion of the trial judge, which must be exercised judicially and with regard to the general conditions prevailing in the country and to prior relevant decisions” 404. The plaintiffs have urged the court to pay regard to the principle that comparable injury attracts comparable compensatory award in arriving at the decision as to what is the suitable award to make in respect of general damages. 405. The plaintiff further argued that the injury and damage suffered by the 1st and 2nd plaintiff was as a direct consequence of the negligent acts of the defendants. 406. According to the plaintiffs the extent and nature of injuries is key in determining the award as well as other comparable awards by other courts. See Simon Taveta Vs. Mercy Mutetu Njeru Civil Appeal No. 26 of 2013 [2014] eKLR where the court held:“ the context in which the compensation for the respondent must be evaluated is determined by the nature and extent injurie and comparable awards made in the past” 407. The plaintiffs submitted that in course of research on this subject medical negligence they did not find any local decisions in cases that have been adjudicated in this country thus they could not lay their hands on any local precedents that cover the array of issues, injuries , harm and damages. 408. The plaintiffs further submitted that they were unable to find a decision on a case that has lasted this long in the temples of justice. 409. The plaintiffs thus resorted to the United Kingdom , and United States for jurisprudence to guide the court in resolving this matter. 480. The plaintiffs cited the following authorities in support of their claim for the award of damages in the sum of Kshs. 250 Million:“ “ (a) Keith Burchell vs. Faculty Physicians & Surgeons of The Loma Linda University School of Medicine(supra) In 2014, Plaintiff/Respondent in this appeal, Keith Burchell underwent what was supposed to be a simple, outpatient procedure to remove a small mass in his scrotum for testing. The surgeon, Dr. Gary Barker, discovered that the mass was more extensive than expected, involving not only the scrotum but also the penis. Barker believed that the mass was malignant. Without consulting either Burchell (who was under anesthesia) or the person Burchell https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 42

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had designated as his medical proxy, Barker removed the mass from both the scrotum and the penis, a different and substantially more invasive procedure than had been contemplated. Burchell suffered serious side effects, some of which are permanent and irreversible. The mass turned out to be benign. Burchell brought suit, alleging professional negligence and medical battery. A jury returned a verdict for Burchell on both causes of action, awarding him $4 million in past noneconomic damages and $5.25 million in future noneconomic damages (General Damages). The jury was not asked to consider any economic damages, as the parties stipulated before trial that Burchell's economic damages were $22,346.11. The trial court entered judgment of $9,272,246.11' (b) Denman v Radovanovic, 2024 ONCA-276 E S E&B The central issues underlying this case was the nature and extent of a physician's duty to obtain informed consent for a multi-step course of elective medical treatment. On May 10, 2010, Mr. Denman suffered a stroke or seizure. He taken by ambulance, to hospital where he was diagnosed with an AVM and a flow-related aneurysm. On May 11, 2010, Mr. Denman received treatment which resolved the aneurysm but not the AVM. Denman's underwent stereotactic radiosurgery on March 2, 2011in hopes of resolving the AVM, however this treatment was not successful. In May of 2014, Mr. Denman's case was reviewed at a multidisciplinary AVM case conference at TWH. The multidisciplinary AVM team, which included Dr. ter Brugge and Dr. Radovanovic but not Dr. Pereira (who did not practice at TWH at the time), formulated a plan of treatment including a series of embolizations, followed by a possible microsurgical resection of the AVM, meant to effect a cure of Mr. Denman's AVM. For Mr. Denman to benefit from a reduction of risk of spontaneous bleed, his AVM had to be fully treated. As such, procedures achieving only partial embolization would result in no benefit to Mr. Denman. Dr. ter Brugge was tasked with conveying the necessary information about the risks and benefits of Mr. Denman's options following the AVM conference, so that he could make an informed decision about whether to pursue the recommended treatment plan. At a meeting in June of 2014, Dr. ter Brugge discussed the risks of a single embolization procedure, the first step of the treatment plan. Dr. ter Brugge testified that he told Mr. Denman that this procedure carried a 3 to 5% risk of stroke or death, and further directed him to a TWH Hosite that reported this team and the website that reported this treatment to carry a small chance of stroke, about 1-to 3 percent. At no point did Dr. ter Brugge discuss the possibility that further treatment would likely be required, nor did he provide Mr. Denman with an estimate of his lifetime risk should he choose to forego treatment. The first embolization was conducted on August 19, 2014, by Dr. Pereira. Only partial embolization was achieved. Upon recommendation of follow-up treatment, on December 9, 2014, Dr. Pereira performed a second embolization of Mr. Denman's AVM where, again, only partial embolization was achieved. There was no record that any informed consent discussion took place before this procedure. On January 29, 2015, Dr. Pereira and Dr. Radovanovic met with Mr. and Mrs. Denman to propose and discuss what was expected to be the final treatment: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 43

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a third embolization procedure to be performed by Dr. Pereira, followed by a microsurgical resection of the AVM to be performed by Dr. Radovanovic. Pereira explained to Mr. Denman that the risk of an adverse outcome from the combined treatment was 10 to 15 percent, of which 3 to 5 percent would be a severe, life-threatening complication. He further explained that, once the AVM had been removed, Mr. Denman would be cured. Radovanovic testified to having informed Mr. and Mrs. Denman that the risk of the combined procedure was around 10%, including deficits ranging from minor disabling. At the conclusion of the meeting, Mr. Denman signed the consent form. On June 23, 2015, Dr. Pereira performed the third embolization. Postoperatively, Mr. Denman showed signs of complications from the procedure and was taken back to the operating room. Dr. Radovanovic performed emergency surgery to remove the AVM and stop the bleeding causing the complication. As a result of the brain bleed, Mr. Denman was left densely hemiplegic (one-sided legic (one-sided paralysis) on his left side, fully dependent for all care, and only able to communicate by writing and gesturing. brain bleed, ie, dies causing the complication Mr. Denman sued for negligence, alleging that the doctors had not breached their duty of disclosure, the matter went to full trail and the trial judge held that all three doctors were liable based on a failure to obtain informed consent and she thus awarded Mr. Denman $8.5 million for damages, as well as $3 million costs. • On this appeal, the Doctors challenged the trial judge's judgment and her costs decision, In his decision, Rouleau, J.A. sitting as the appellate judge dismissed the appeal by the Doctors and upheld the judgement in its entirety. (c) Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in hypoxic insult with consequent cerebral palsy. Her obstetrician had not disclosed the increased risk of this complication in vaginal delivery, despite Montgomery asking if the baby's size was a potential problem. Montgomery sued for negligence, arguing that, if she had known of the increased risk, she would have requested a caesarean section, and would thus issued a well informed consent for the procedure based on actual knowledge of the attendant risks. Before the Court of Session, two distinct grounds of negligence were advanced on behalf of Mrs. Montgomery. The first concerned her ante-natal care. It was contended that she ought to have been given advice about the risk of shoulder dystocia (the inability of the baby's shoulders to pass through the pelvis) which would be involved in vaginal birth, and of the alternative possibility of delivery by elective caesarean section. The second branch of the case concerned the management of labor. It was contended that Dr McLellan had negligently failed to perform a caesarean section in response to abnormalities indicated by cardiotocograph ("CTG") traces. The Lord Ordinary, Lord Bannatyne, rejected both grounds of fault: [2010] CSOH 104. In relation to the first ground, he based his decision primarily on expert evidence of medical practice, following the approach laid https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 44

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down by the majority in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. He also concluded that, even if Mrs Montgomery had been given advice about the risk of serious harm to her baby as a consequence of shoulder dystocia, it would have made no difference in any event, since she would not have elected to have her baby delivered by caesarean section. That decision was upheld by the Inner House (Lord Eassie, Lord Hardie and Lord Emslie): [2013] CSIH 3; 2013 SC 245. The appeal to the supreme court thus focused on the first ground of fault. The court was invited by Mrs. Montgomery to depart from the decision of the House of Lords in Sidaway and to re-consider the duty of a doctor towards a patient in relation to advice about treatment. The court has also been invited to reverse the findings of the Lord Ordinary in relation to causation, either on the basis that his treatment of the evidence was plainly wrong, or on the basis that, instead of applying a conventional test of “but for” causation, he should instead have applied the approach adopted in the case of Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. The Supreme Court of the UK announced judgment in her favour in ECH March 2015 (the ruling March 2015. The ruling overturned a previous decision by the House of Lords, which had been-law since at least the mid1980s.It established that, rather than being a matter for clinical judgment to be assessed by professional medical opinion, a patient should be told whatever they want to know, not what the doctor thinks they should be told, the ratio decidendi being that: “ An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo." And in allowing said appeal the Supreme Court award Mrs. Montgomery, £5 million in damages. (d) NKX (By his mother and litigation friend NMK) V Barts Health NHS Trust [2020] EWHC 828 (QB) This was a claim brought on behalf of the claimant by his mother (NMK) and the trial was restricted to issues of liability and causation. This was NMK's second pregnancy. Her first child was born by caesarean section in 2013. When she attended her booking visit she was advised by the midwife that she was a candidate for vaginal birth after caesarean section (VBAC). Wherefore among the issue for consideration were was there proper advise and information to NMK of the risks of the procedure both during the clinic sessions and after admission and was there failure to ensure close monitoring of NMK during her stint at the hospital. It was held that repeated counselling and re-assessment should have set out the risks inherent in not having continuous monitoring, and should also have emphasized that the close monitoring the NMK had expected could not be guaranteed as the unit was so busy. NMK should have been told continuous monitoring could not happen in during the process as there was no available wireless CTG monitor and there may be no staff with https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 45

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sufficient experience to care for a VBAC mother without continuous monitoring. The court held thus: “ ..there should have been a re-statement of the risks to the Claimant's parents on admission on the 23rd May; that they should have been told that Midwife Havire recommended CFM and why; that they should have been told that this was particularly the case because the unit was very busy and that there was no-one available who had the experience of caring for a VBAC mother without CFM; and that if given this information in these terms they would probably have decided to accept CFM." As a consequence of the negligence of the hospital, NKX sustained severe brain damage, it was thus found that there were breaches of duty in management of the labour of NMK and the court apportioned liability upon the hospital awarding NMK at £50,000 in respect of past care provided and expenses incurred, £500,000 as interim payments and a further sum of £500,000 on account of costs, subject to any successful appeal, and when appeal was preferred the same was denied and the above decision for £1,050,000.00 upheld.” 365. This court has considered the submissions by all the parties and all the authorities cited thereof. A suit for medical negligence of the health care provider is a suit on tort, wherein the successful plaintiff gets monetary compensation from the defendant tortfeasor. The object of awarding compensation is to make good the loss that the plaintiff has suffered as a result of the defendant's negligence - the principle being restitutio in integrum. But in real life restitutio in integrum in most of the medical negligence cases is not possible. See Medical Negligence & Compensation 2nd Edition by Ram Shelkar 366. The Supreme Court in Malay Kumar Ganguly v. Sukumar Mukherjee AIR 2010 SC 1162 (2009)9 SCC 221 observed: “ Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong." Compensation paid for medical negligence is neither punishment, nor a reward. There is difference in the principles followed in the assessment of compensation in a tort of medical negligence and other actions of personal injuries such as road accident claims - see Surendra Kumar Tyagi v. Jagat Nursing Home and Hospital IV(2010) CPJ 199. 365. In an action for tort the Court is required to resolve one or more of the following issues: (i) whether the defendant has committed a tort; (ii) whether the alleged tort inflicted an injury to the plaintiff's person; (iii) extent of the plaintiff's losses (pecuniary as well as non- pecuniary); (iv) when the alleged losses are relevant at law; and (v) amount of money to be paid as compensation for legally # recoverable pecuniary and nonpecuniary losses. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 46

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365. In an English case in Gardner v. Dyson, 1968 ACJ 115 (CA, UK), where the claimant lost one eye, the Court observed that it is impossible to assess precisely the pecuniary value of an eye, or an arm or leg, although no damages are in a sense conventional but the injury is real; and as such an amount, which a reasonable man would regard as fair and sensible compensation, should be paid. 366. This court has therefore to determine what would be a suitable award for the loss of a cervix since there is no comparable authority cited by any of the parties and this court has not found any authority in our jurisdiction on the point. 367. The Court of Appeal in England in Brikelt v. Hays 1983 ACJ 697 observed: "There is nothing to guide us but the felling of what is fair Judge has to award compensation for the past and also for the future pain, suffering, loss of amenities. The future that lies ahead, beyond the date of trial, is often of more consequences than the past. The Judge / awards lump sum at the date of trial to cover all." 365. The above decisions highlight the difficulties that courts have to contend with in medical negligence cases. The problem is even more complex in case like this that is about to celebrate a second decade in court! 366. In Soni Hospital v. Arun Balakrishnan Iyer AIR 2011 Mad 208, the patient had hysterectomy and her uterus was removed. Later on because of abdominal pain, she required further treatment. The X-ray report revealed the existence of a foreign substance inside her body. By another operation one abdominal pad had to be removed. Madras High Court directed the gynaecologist and the hospital to pay compensation of Rs. 2,00,000 for pain and suffering and Rs. 1,00,000 for mental agony. 367. In Pushtan v. National Coal Board (1953)1 All ER 314, the Court held that the compensation should as such which in the general consensus of opinion, appear fair in today's society. This mean the amounts awarded long back should not be followed holding that like cases are to be disposed in like manner. Change of the economic condition by lapse of time cannot be ignored. The price index of those days should not be compared with the price index at the time of the occurrence of the case in hand. Indeed, damages under the head "pain and suffering" normally constitute a conventional amount arrived at on the footing of previous judicial decisions relating to comparable severity of the injures sustained, as indicated in a large number of decisions. In this connection it is to be remembered the claimants are entitled to damages not only for pain and suffering undergone in course of their treatment but also for pain and suffering likely to be undergone in future - see Deepti v. Banwari Lal, 1966 ACJ 217 MP. 365. The House of Lords in H. West & Son Ltd. v. Shephard (1963)2 All ER 625 provides the guidelines which shows that the Court has to assess compensation on two counts (a) personal loss, and (b) economic loss. The guidelines run as follows: “ (i) Bodily injury is to be treated as a deprivation which entitles the claimant to damages, which naturally vary according to the gravity of injury. (ii) Deprivation may bring with it three consequences - loss of earning or earning capacity; expenses requiring to pay others for otherwise he would do so himself, and loss of enjoyment of life. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 47

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(iii) Number of limbs lost, the duration of the deprivation and the degree of awareness of the deprivation." 365. The objective test was involved in this case. It has been authoritatively settled that it is in respect of objective loss of amenities that the damages will be determined and on proof of mental suffering, additional amount will be paid. The total compensation will be assessed by adding pecuniary and nonpecuniary damages. But “the damages awarded should be such that the ordinary sensible man would not instinctively regard them as either mean or extravagant, but would consider them to be sensible and fair in all circumstances" Lord Simond in Fletcher v. Autocare and Transporters Ltd. (1968)2 QB 322: (1968)1 All ER 726. } 365. In regard to Loss of earning vis-a-vis loss of earning capacity, earning capacity is not the same thing as earning. Loss of earning takes within its sweep actual loss in earnings between the date of occurrence and the trial. The injured plaintiff is entitled to recover damages for any resultant loss of wages, salaries etc. The calculation has to be done on broad lines, but not necessarily with mathematical accuracy see British Transport Commission v. Gourley (1956) AC 185: (1955)3 All ER 796. 366. Loss of future earnings may be due loss of earning capacity, which might be for various reasons, such as pain, suffering, loss of limb etc. A claimant may, in a given situation, actually get a higher salary or ear more than what he was getting when the incident took place. But, it will be wrong to think that in that situation there is no scope to urge that there has been loss of earning capacity because of the negligence of the defendant. Calcutta High Court, long back in Calcutta Licensed Measures v. Md. Hussain, 1969 ACJ 92 Cal observed: “ “ (a) that various factors may lead to rise in earnings but rise in wages is not necessarily conclusive of no loss of earning capacity, (b) that loss of physical capacity is not co-extensive with loss of earning capacity; (c) that loss of capacity or even physical incapacity may have relevance in assessing the extent to which there has been loss of earning capacity ....... (d) that medical evidence as to physical incapacity or diminution of the physical capacity of the injured should play an important role in the assessment of the loss of earning capacity .......”. Unless the injured brings evidence that he had become totally unfit for work, the compensation under this head should be in proportion to the loss of earning capacity - State of M.P. v. Dayali 1971 ACJ 425 M.P. 365. When the question of loss of earning capacity arises, it becomes difficult to fall upon arithmetical calculation alone and there would be need to get answers to the following questions : a) Has the defendant's act caused any hardship or disability, temporary or permanent, total or partial, to the plaintiff/claimant? b) What is the nature and extent of the alleged disablement? c) What would have been the expected annual earnings of the victim patient in future, had there not been negligent commission or omission of the defenant? https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 48

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d) Will not the disablement sustained by the plaintiff affect his earning capacity? If so, what is the percentage of diminution of the said earning capacity? see Ramanlal Ranchod v. Asthi Gustadji Rustomji AIR 1979 Guj 14. 365. In the instant case the 1st plaintiff was forced to stop working as a result of the injury she sustained. That effectively rendered her incapable of earning income since her physical condition could not allow her to freely interact with the rest of the members of the society. Urine leakage in an adult would certainly be embarrassing and any sensible human being would be forced to remain secluded in the company of those that would understand her condition. The injury therefore limited the 1st plaintiff’s interaction with the rest of the society effectively keeping her off any gainful engagement. 366. In Oliver v. Ashman (1962)2 QB 210 the court held that, the problems of assessment of compensation under the head 'loss of earning in future' is stiffer when the claimant is presently earning nothing. But it does not prevent him from recovering damages, for his capacity to earn in future is not necessarily shut out or reduced due to injuries. Even a child is entitled to compensation when his capacity to earn in future is reduced. 367. When the 1st plaintiff testified before this court she maintained that she has not been able to resume work since she was laid off due to absence from work due to her condition. However, the court observes that the 1st plaintiff did not adequately explain why even after receiving treatment from South Africa which rectified the injury, she has not been able to find something to do that would give her some returns. The court shall definitely consider that in arriving at a figure that would go towards loss of earnings and earning capacity. 368. The plaintiffs have jointly claimed that they suffered and continue to suffer loss of amenities of life. The loss of amenities and enjoyment of life can be evalued both subjectively and objectively subjectively where the loss depends. entirely upon mental suffering and objectively where the loss is of something personal, such as deprivation of a limb. 418. Loss of amenities of life embraces loss in different ways, for example, dependence of the injured on the help of others, Heaps v. Perrite (1937)2 All ER 60; inability to look after and render services to the dependants by the injured; sexual impotency. See Harris v. Harris (1973)1 Lloyd's Rep 45); inability to lead life which the injured used to lead or might have led - Keating v. Elvan Reinforced Concrete Co. (1967)3 All ER 611. 419. The plaintiffs made a case for loss of consortium. The 1st plaintiff explained that she was no longer capable of satisfying her husband sexually since the operation. The 1st plaintiff attributes the inability to satisfy her husband the 2nd plaintiff on the removal of her cervix. the loss of a cervix has been found to have some negative effect on the ability of some women to enjoy sexual intercourse. See European Journal of Obstetrics & Gynecology and Reproductive Biology Vol. 247 April 2020 Page 80-84. The case of the 1st plaintiff appears to fall within the category of those women who have through research been found to have lost their sexual functionality after the removal of their cervix. 420. The Black's Law Dictionary, 8th Edn defines Consortium as the benefits that one person esp. a spouse, is entitled to receive from another, including companionship, cooperation, affection and financial support, and (between spouses) sexual relations..... A husband could, for example, bring an action against a person who had injured his wife whereby he lost the companionship of his wife - per quod consortium amist - this latin phrase means "where he lost the company (of his wife). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 49

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421. The plaintiffs were robbed off enjoyment of their sex life as a couple at a very early age. The 1st and 3rd defendants must therefore make reparations for the loss since this is a life long situation they will have to endure for as long as they remain together as was declared to be the intention by the plaintiffs. 422. Injuries which have serious effects on the sex-functions are considered as a class by themselves. Even in case of a boy, who permanently became unfit to enjoy sex, was award Rs. 75,000 in 1983 - National Ins. Co. v. Minor Ramanbhai 1983 ACJ 779. 423. In Samira Kohli v. Dr. Prabha Manchandra (2008) 2 SCC 1: AIR 2008 SC 1385, the doctor in good faith and having regard to the physical condition of the lady aged 44 years, performed hysterectomy and removed her reproductive organs like uterus, ovaries, and fallopian tubes without taking consent of the patient. Having regard to the mitigating circumstances the Supreme Court directed to pay Rs. 25,000 to the lady with interest @ 10% p.a. from the date of the order till payment. It is made clear by the Apex Court that "there is no need to explain remote or theoretical risks involved, which may frighten or confuse patient.” That apart, in Samira, consent of the mother of the patient was taken after explaining the need for removal of reproductive organs of the patient. 424. The decision mirrors the situation that this court is confronted with in this case where the issue of consent for the removal of the cervix has been raised. The 1st plaintiff maintained throughout her evidence that she never consented to the removal of her cervix and the 1st defendant did not offer any explanation why he deemed it necessary to remove the cervix as he went about removing the ovary and the uterus. The 1st plaintiff is entitled to recover damages under this head. 425. In Smt Saroj Chandhoke v. Sir Ganga Ram Hospital III(2007) CPJ 189, a lady aged 43 years was admitted in the hospital for hysterectomy due to dysfunctional uterine bleeding. Consent for removal of uterus through abdominal route was taken. But the gynaecologist removed ovaries during hysterectomy. Another surgery needed for removal of one of the kidney. The gynaecologist and the hospital were held negligent for removal of one kidney and ovaries without consent. The National Commission awarded Rs. 5,00,000 against them and they were made jointly and severally liable. 426. The principal goal of damage award in a medical negligence case is restitutio in integrum, that is to return the victim to the economic position he enjoyed before the tort. Though money cannot be a panacea for all evils, courts recognize that there are some losses that can be measured precisely in terms of money, some that are not susceptible to measurement at all. In fact, tort law has offered different answers to claims for compensation of losses that are difficult to measure. 427. In the instant case for instance, it is not humanly possible to estimate with mathematical precision what would be adequate compensation to a couple who can no longer enjoy conjugal rights to their satisfaction yet the law expects them to remain a family unit as the basic unit of society under Article 45 of the Constitution. Any temptations on either couple to wander out of the family unit in search for sexual satisfaction would invite a divorce cause. The court has to strike a delicate balance in arriving at the award in damages to address those moral dilemmas that the couple here find themselves in courtesy of negligence of the 1st and 3rd defendants. 428. The plaintiff further submitted that the research revealed that in most medical negligence cases, the matters would be resolved amicably between parties before the courts could pronounce themselves on the same. 429. The plaintiffs called the courts attention to a report by Toders Solivitors LLP , a reputable law firm in Exeter England , that has been involved several cases relating to medical negligence which were settled in favour of their clients https://www.tozers.co.uk/personal/medical-negligence/recent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 50

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medical- negligence-case-wins, . The plaintiffs urged this court to consider the reports as a persuasive authority. 430. According to the plaintiffs the range of awards to successful plaintiffs is in the region of Kshs. 162 million to Kshs. 300,000,000 taking into account the prevailing exchange rate. 432. The plaintiffs urged this court to consider awarding them the sum of Kshs. 250,000,000 in general damages. 431. The plaintiffs emphasized on the uniqueness of this case and urged the court to consider that fact in arriving at the damages payable to the plaintiffs. The court was referred to the case of Park Towers Ltd Vs. John Mithamo Njika and 7 Others 2014 eKLR cited in Hosea Nyandika Mosagwe Milton Ndege Onyancha & Martin Kapseri Onsanse Vs. County Government of Nyamira (Environment & Land Case No. 21 of 2021) [2021] KEHC 1151 (KLR) (16TH December 2021) (Judgment) where Mutungi J held as follows:“ I agree with the learned judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded general damages. The court in such circumstances is under duty to assess the damages awardable depending on the unique circumstances of each case.” 432. The uniqueness of this case lies in the nature of injuries and circumstances under which those injuries were sustained and this court is thus bound to grant appropriate relief bearing in mind that there are no local precedents of comparable awards. The area of medical negligence practice in Kenya is dry to say the least. 433. The societal attitude towards the 1st plaintiff due to urine incontinence has also been amplified as a relevant consideration by the plaintiffs and the stigma that goes with it. 434. In the case of the 2nd plaintiff the plaintiffs have urged the court to consider that he has had to put up with a spouse he cannot enjoy his conjugal rights with to his satisfaction besides all the financial and social difficulties he has experienced. 435. The 2nd plaintiff has pleaded that this is a life-long problem that was occasioned by the defendants and they should therefore be condemned to pay damages that her commensurate to the harm suffered. 436. The plaintiffs have urged this court to seize the moment and set a precedent in this kind of cases in Kenya on the matter of the negligence by medical practitioners. 437. The plaintiffs have also argued that the decision of this court will go a long way in addressing impunity in the practice of medicine in this country and put medical practitioners and health institutions that medical negligence should be replaced with professionalism in the handling of those that seek treatment in our health facilities. 438. The court has addressed its mind to the facts, evidence and the law and has arrived at the finding that the plaintiffs have established their case on a balance of probabilities that the 1st and the 3rd defendants jointly and severally owed them a duty of care, breached the duty of care and as a direct result of the breach caused the plaintiffs to suffer damage which this court must remedy. CONCLUSION 439. The court having undertaken an analysis of the evidence and considered the submissions by the parties comes to the conclusion that;- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 51

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440. a. The 1st plaintiff only consented to the removal of her uterus and ovary but the 1st defendant went ahead to remove her cervix without obtaining the necessary consent from the 1st plaintiff b. The plaintiffs proved on a balance of probabilities that the 1st defendant was grossly negligent in the performance of his duty thus occasioning a life changing injury to the 1st plaintiff. c. Following the injuries sustained by the 1st plaintiff, she lost her employment and therefore lost her capacity to earn. d. The injury sustained by the 1st plaintiff has caused the two plaintiffs to suffer loss of amenities e. The two plaintiffs have also suffered loss of consortium f. The 1st plaintiff lost her cervix in the hands of the 1st defendant g. The 2nd defendant did not contribute to the injuries sustained by the 1st plaintiff and is therefore not guilty of negligence h. The 3rd defendant owed the 1st plaintiff a duty of care as a patient in their facility and that duty was breached by allowing the 1st defendant to practice in the said hospital knowing too well that the 1st defendant had been disbarred from practice in Uganda i. The 3rd defendant failed to provide the latest diagnostic equipment such as a flexible cystoscope thus making it impossible for the 2nd defendant to detect the vesicovaginal fistula that Dr Gecelter and Dr Van Der Wat were able to detect and repair in South Africa j. The special damages pleaded by the plaintiffs were specifically proved thus the same are owing and due to the plaintiffs k. The plaintiffs are entitled to recover general damages from the 1st and the 3rd defendants jointly and severally. In the end, judgment is hereby entered in favor of the plaintiffs as hereunder:i. Special damages of Kshs. 7,207, 524.20 ii. General damages for; a. Loss of cervix – Kshs. 30,000,000 b. Loss of consortium – Kshs. 40,000,000 c. Loss of amenities – Kshs. 20,000,000 d. Pain and suffering – Kshs. 10,000,000 e. Loss of capacity to earn – Kshs. 20,000,000 f. Loss of society and services by the 2nd Plaintiff – Kshs. 30,000,000 Total = Kshs. 157, 207, 524.20 g. 441. Costs and interests at court rates from the date of the filing of the suit. It is so ordered. DATED, SIGNED AND DELIVERED IN VIRTUAL COURT AT NAIROBI THIS 4TH DAY OF JUNE 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 52

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A. M. MUTETI JUDGE In the presence of: Kiptoo: Court Assistant Bwire for the 1st & 2nd Plaintiff Ms Kinyanjui for the 1st & 2nd Respondent Samnakay for 3rd Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19714/eng@2025-06-04 53

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