Aga Khan University Hospital v Kwm & 1 other

4. The trial court conducted a full trial in which both parties called witnesses and at the close of the case, the trial court found the Appellant liable for negligence in the administration of the Cholera vaccine and awarded damages amounting to Kshs. 2,877,749. 5. The trial court held that the Appellant owed the minor a duty of care, which duty was breached when Shanchol was administered intramuscularly instead of orally. The court found that the breach caused short-term injury and suffering to the minor and that the Appellant was vicariously liable for the acts of its staff. The Appeal 6. 7. Aggrieved by the trial court’s decision, the Appellant filed the instant appeal in which it challenges the trial court’s findings on both liability and quantum. The Appellant listed the following grounds of appeal in the Memorandum of Appeal: a. That the Learned Trial Magistrate erred in law and fact in making a finding that the Appellant was negligent and that such negligence resulted into injury or damage to the 1st and 2nd Respondents. b. That the Learned Trial Magistrate erred in law and fact in making a finding that The Aga Khan University Hospital, Well Baby Initial Assessment (First Visit) Form dated 27/10/2021 produced by the Appellant had an alteration indicating that the Cholera vaccine was administered orally. c. That the Learned Trial Magistrate erred in law and fact in making a finding that the Appellant failed to call the nurse who administered the vaccine as a witness even after allowing the 1st and 2nd Respondents to call the said nurse as a witness. d. That the Learned Trial Magistrate erred in law and fact in the assessment of quantum thereby giving an award on quantum on general damages of Kenya Shillings Two Million Eight Hundred Thousand (Kshs. 2,800,000/=). e. That the Learned Trial Magistrate erred in law and fact by failing to take into consideration all the evidence on record including that adduced by all the witnesses in reaching her determination. The Respondents filed a Memorandum of Cross Appeal against the trial court’s decision and listed the following grounds of appeal: a. That the trial court awarded an inadequate amount of damages given the nature of the case, the harm suffered by the minor and precedent in similar cases. b. That the trial court disregarded the submissions of the plaintiffs on the amount of damages that should have been awarded. c. That the award of kshs. 2,800,000 awarded as general damages for medical negligence of the Respondent’s minor child by the Appellants was inordinately low and ought to be adjusted to Ksh. 5,000,000 as submitted by the Respondents. 8. The Respondents urged this court to allow the cross appeal by enhancing the trial court’s award. 9. The Appellant however filed an Application dated 24th June 2025 seeking the striking out of the Cross Appeal on the basis that it had been filed out of time without leave and that no explanation was offered for the delay of approximately six months from the date of judgment. It was the Appellant’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 2

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case that the Respondents were aware of the appeal proceedings and even opposed the stay application, demonstrating knowledge of the judgment and decree. The Appellant relied on the provisions of Order 42 Rule 32 of the Civil Procedure Rules and the decision in ICEA Lion General Insurance Company vs. Chris Ndolo Mutuku t/a Crystal Charlotte Beach Resort [2020] eKLR, where the Court declined to validate a delayed cross-appeal filed without satisfactory explanation. 10. The Respondent, on the other hand, opposed the application on the grounds that: a. The Civil Procedure Rules do not expressly stipulate timelines for filing a cross-appeal from subordinate courts, and the matter falls within the Court’s discretion. b. The Appellant has approached the Court with unclean hands, having failed to comply with directions to file submissions on the appeal. c. The appeal has not been set down for hearing, hence no prejudice will be occasioned to the Appellant. d. Drawing analogy from Rule 95 of the Court of Appeal Rules, a cross-appeal is required to be filed at least 30 days before hearing; thus the present cross-appeal is within reasonable time. e. The application is frivolous and an abuse of the court process. 11. Directions were taken for the hearing of the Application and the Appeal at the same time. I will therefore determine the Application first before embarking on the Appeal. 12. I find that the main issue for determination is whether the Appellant has made out a case for the striking out of the Cross-Appeal. 13. It was not disputed that judgment in the subordinate court was delivered on 18th July 2024. The Appellant filed its appeal on 9th August 2024. The Respondents’ Cross-Appeal was filed on 14th April 2025, approximately six months after delivery of the judgment. 14. My finding is that while the Civil Procedure Rules do not contain an elaborate stand-alone regime governing cross-appeals from subordinate courts, a cross-appeal is nonetheless an appeal. It challenges part of a decree and must comply with the general statutory framework governing appeals, including timelines. 15. Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court shall be filed within thirty days from the date of decree or order appealed against, excluding time certified as necessary for preparation of the decree. An appeal filed out of time may only be admitted upon leave of the Court and upon sufficient cause being shown. 16. The Respondents did not seek leave to file the Cross-Appeal out of time. No formal application for extension of time was placed before this Court. Further, no explanation has been tendered in affidavit form accounting for the six-month delay. 17. I find that the argument that the appeal has not yet been fixed for hearing does not cure non-compliance with statutory timelines. Timeliness is not dependent on the hearing date but on compliance with statutory requirements. 18. My take is that the analogy drawn from the Court of Appeal Rules is inapplicable as the High Court is governed by the Civil Procedure Act and Rules, and a cross-appeal challenging a subordinate court decree must conform to Section 79G unless leave is obtained. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 3

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19. The record further shows that the Respondents were fully aware of the appeal proceedings, having opposed the stay application and participated in post-judgment processes. Knowledge of proceedings without action cannot justify inordinate delay. 20. In the absence of leave and in the absence of any explanation for delay, I find that the Cross-Appeal is incompetent and I therefore strike it out. I will make orders on costs at the end of the judgment on the main appeal. 21. The appeal was canvassed by way of written submissions which I have considered. Appellant’s Submissions 22. The Appellant contended that the trial court erred both in law and fact in finding negligence, in holding that the Well Baby Initial Assessment Form had been altered, and in drawing adverse inferences unsupported by pleadings or evidence. 23. It was submitted that the Respondents did not discharge the burden of proof required to establish medical negligence. It was submitted that following the minor’s vaccination, the he developed fever and pain at the vaccination site, was admitted at the Appellant’s Parklands facility, treated, and discharged after three days in good condition. Subsequent follow-up records demonstrated that the minor progressed well, achieved developmental milestones, and suffered no lasting injury or complications. It was the Appellant’s case that fever and pain are recognised post-vaccination reactions and do not, without more, constitute proof of negligence. 24. The Appellant relied on settled principles of negligence, citing Blyth vs. Birmingham Water Works Co. (1856) 11 Ex 784, where negligence was defined as the omission to do something which a reasonable man would do; or doing something which a reasonable man would not do 25. The Appellant further relied on the decision in Donoghue vs. Stevenson [1932] AC 562, where the court held that negligence is proved through the existence of duty of care, breach of that duty and damage suffered as a direct or proximate result of the breach. 26. The Appellant emphasised that for negligence to arise, the breach must be the proximate cause of the injury, defined as a cause which, in a natural and continuous sequence, produces damage without which the injury would not have occurred. 27. Applying the above principles, the Appellant submitted that the Respondents failed to prove breach of duty or causation. 28. The Appellant relied on the testimony of Dr. Kihara (PW4), who confirmed that vaccines may have side effects even when properly administered. The Appellant noted that PW4 testified that she could not state, with certainty, that the side effects exhibited by the child on that day are for cholera vaccine. 29. The Appellant further pointed out that Joy Wanjiku (PW2) admitted that the minor was healthy and had achieved developmental milestones post-vaccination, and that Dr. Wahu, who treated the minor, confirmed that the child did not suffer injury or damage attributable to vaccination. 30. The Appellant faulted the trial court for introducing and determining the issue of alteration of the Well Baby Initial Assessment (First Visit) Form dated 27th October 2021, when the issue of alteration had not been pleaded by the Respondents. 31. The Appellant contended that during inspection of original medical records conducted pursuant to court directions on 27th February 2023 and 1st March 2023, counsel for the Respondents confirmed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 4

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that the documents were originals and raised no allegation of alteration. It was submitted that the issue of alteration was therefore an afterthought, unsupported by pleadings or evidence. 32. For the principle that courts are bound by pleadings, the Appellant relied on Adetoun Oladeji (Nig.) Ltd vs. Nigeria Breweries Plc SC 91/2002, where the Supreme Court of Nigeria held that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or which is at variance with them, goes to no issue and must be disregarded. 33. Further reliance was placed on Captain Harry Gandy vs. Caspair Air Charters Ltd (1956) 23 EACA 139, where the Court stated that: “ Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment. In the present case the issue on which the Judge decided was raised by himself without amending the pleadings, and in my opinion he was not entitled to take such a course.” 34. The Appellant maintained that a court errs when it determines matters not placed before it by the parties, thereby committing a reversible error. 35. On presumptions and burden of proof, the Appellant relied on Thomas De La Rue (K) Ltd vs. David Opondo Omutelema, where the Court of Appeal cautioned against rigid presumptions and emphasized that whilst section 119 of the Evidence Act entitles a court to presume certain facts, the presumption of fact can be rebutted. The court added that to rigidly presume a state of facts without considering rebuttal is erroneous.” 36. The Appellant submitted that the trial court improperly presumed negligence and document alteration without considering rebuttal evidence on record. 37. For comparable jurisprudence on medical negligence, the Appellant relied on Herman Nyangala Tsuma vs. Kenya Hospital Association t/a Nairobi Hospital & 2 Others [2012] eKLR, where the High Court held that: “ Mere negligence will not necessarily lead to liability. The plaintiff must go further and prove that the injury, loss or damage suffered would have been avoided but for the alleged negligence.” 38. On the issue of the failure to call the nurse who administered the vaccine as a witness, the Appellant submitted that the Trial Magistrate erred in drawing an adverse inference against the Appellant despite the Respondents having been granted leave to reopen their case, summons having been issued, and the nurse having been made available. The Appellant noted that the record shows that the Respondent applied to reopen their case to call the nurse, the Appellant supplied the nurse’s details for purposes of service and that the nurse was present on the virtual platform on the hearing date but the Respondents elected to close their case without calling her. 39. The Appellant contended that it was therefore erroneous for the trial court to conclude that the Appellant failed to call the nurse, when the Respondents themselves declined to utilize the opportunity granted by the court. 40. On whether negligence was proved, the Appellant reiterated that negligence was not proved to the required standard as the evidence demonstrated that the minor was vaccinated with Shancol (oral), Varivax and Havrix (injectable), and Vitamin A. It noted that the minor developed fever and pain which are known post-vaccination reactions for which the minor was treated, discharged in good condition, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 5

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and subsequently achieved all developmental milestones. The Appellant also noted that no expert evidence conclusively linked the alleged injury to negligent administration of the cholera vaccine. 41. The Appellant submitted that mere occurrence of adverse symptoms does not, without proof of breach and causation, establish negligence. 42. On quantum, the Appellant submitted that the award of Kshs. 2,800,000 was wholly unjustified given the absence of proof of injury or long-term harm. Reliance was placed on the case of Charles Oriwo Odeyo vs. Apollo Justus Andabwa & another [2017] eKLR, where the Court stated: “ An appellate court will only interfere with an award of damages if the trial court acted on wrong principles, or the award is so inordinately high or low that it represents an entirely erroneous estimate.” 43. The Appellant further relied on Butler vs. Butler [1984] KLR 225, where the guiding principles on assessment of damages were outlined, namely that: 1. An award is compensatory, not enriching; 2. It must be commensurate with the injuries sustained; 3. Comparable awards are only guides; 4. Inflation and consistency should be considered; 5. Awards should not be inordinately high or low. 44. Additional reliance was placed on Boniface Waiti & another vs. Michael Kariuki Kamau [2007] eKLR, reinforcing the need for moderation and proportionality. It was submitted that in the absence of proof of injury to the minor or harm suffered by the parents, the Respondents were not entitled to any general damages. 45. The Appellant faulted the trial court for failing to consider the entirety of the evidence on record, including defence testimony and documentary evidence demonstrating that the Appellant exercised due care, the minor suffered no lasting injury and that the Respondent’s anxiety stemmed from being first-time parents, as confirmed on cross-examination. This failure, it was submitted, resulted in an erroneous determination. 46. Accordingly, the Appellant urged the Court to allow the appeal, set aside the judgment of the trial court, find that no negligence was proved, and award costs to the Appellant. Respondents’ Submissions 47. On liability for medical negligence, the Respondents submitted that the trial court correctly found the Appellant liable for medical negligence. They observed that the evidence on record, particularly the Appellant’s own treatment notes, Clinical Summary Discharge, and paediatric assessment forms, unequivocally demonstrate that the minor was treated for injection site cellulitis following administration of the cholera vaccine which diagnosis is consistent only with intramuscular injection and not oral administration. 48. It was submitted that both lay and expert evidence confirmed that cholera vaccines are ordinarily administered orally and that intramuscular administration is contrary to established medical practice and manufacturer instructions. The Respondent asserted that no evidence was adduced to show that any competent medical professional would administer the cholera vaccine intramuscularly in the circumstances presented. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 6

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49. The Respondents maintained that the trial court therefore properly applied the settled principle that once a claimant demonstrates a departure from accepted medical standards resulting in injury, liability attaches. Reference was made to PKM (Suing on Behalf and Next Friend of AJB) & GSM vs. Nairobi Women’s Hospital & Mutinda (2018) eKLR, where the High Court held that the court will not hesitate to find negligence proved where a medical practitioner departs from established procedures and such departure causes injury. 50. It was the Respondents’ case that the trial court’s finding on liability was firmly anchored on both evidence and law and ought not to be disturbed. 51. On the alleged alteration of the Well Baby Initial Assessment (First Visit) Form dated 27th October 2021 the Respondent submitted that the trial court correctly found that the document had been altered. The Respondent noted that the word “oral” had been curiously inserted above the term “Shanchol”, particularly because none of the other vaccines listed on the form indicated their mode of administration. 52. It was the Respondent’s case that this selective insertion of the word ‘oral’, coupled with the contemporaneous treatment notes indicating injection site cellulitis, irresistibly led to the conclusion that the alteration was made after the complaint had been lodged. The Respondents submitted that the trial court was entitled to interrogate the credibility and authenticity of documentary evidence placed before it. 53. It was submitted that the trial court’s conclusion on this issue was sound and supported by the evidence. 54. On the Appellant’s failure to call the nurse who administered the vaccine as a witness, the Respondents noted that was the most crucial witness in the matter and that the Appellant, as her employer and having custody of employment records, was in the best position to call her yet the Appellant failed to do so. 55. It was the Respondents’ case that even though they were permitted to summon the nurse, they were unable to secure her attendance due to difficulties in service. They added that record demonstrates inconsistencies regarding the Appellant’s assertions on the nurse’s availability and contact. 56. The Respondents submitted that the trial court correctly invoked the missing witness doctrine, which permits a court to draw an adverse inference where a party fails to call a material witness without any reasonable explanation. 57. The Respondents submitted that the adverse inference drawn by the trial court was justified and properly grounded in law. 58. On quantum, the Respondents submitted that the award of Kshs. 2,800,000 was not excessive and was arrived at after due consideration of the nature of the injury, the pain and suffering endured by the minor, the hospitalization, and the psychological trauma suffered by the parents. 59. The Respondents further submitted that comparable authorities demonstrate that awards in medical negligence cases involving minors and parental emotional distress often exceed the sum awarded by the trial court. Reference was made to the decision in JMA (Suing through BOA as Next Friend) & Another vs. Registered Trustees of the Sisters of Mercy (Kenya) t/a Mater Misericordiae Hospital [2023] eKLR, where the court awarded Kshs. 1,000,000 to the mother for pain and suffering alone. 60. Reliance was also placed in the case of LWW (Suing as the Administrator of the Estate of BMN) deceased vs. Charles Githinji [2019] eKLR, where the High Court awarded Kshs. 500,000 to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 7

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mother for emotional and psychological suffering and Kshs. 9,000,000 to the infant for pain and suffering. 61. Against the above jurisprudential backdrop, the Respondents submitted that the award of Kshs. 2,800,000 was in fact conservative. The Respondents therefore urged the Court to allow the crossappeal and enhance the award of general damages to Kshs. 5,000,000, which more accurately reflects prevailing judicial trends, the nature of the injury, and the compounded suffering of both the minor and the parents. 62. The duty of the first appellate court is to re-evaluate the evidence tendered before the trial court with a view to arriving at its own independent conclusion while bearing in mind that it did not see or hear the witnesses testify. (See Selle vs. Associated Motor Boat Co. Ltd (1968) EA 123). Plaintiffs’/Respondents’ Case 63. The Plaintiffs’ case was that on 27th October 2021, the 2nd Plaintiff took the minor, FMW, to the Defendant’s Kikuyu Clinic for routine vaccination. 64. It was the Plaintiffs’ evidence that the minor was scheduled to receive vaccines including Hepatitis A, cholera, chickenpox and Vitamin A, and that the vaccines were administered as injections on the right arm and both thighs. 65. The 2nd Plaintiff testified that after the vaccination, the minor became unwell within hours, presenting with excessive crying, vomiting, fever, swelling and severe pain in the left thigh. The family later sought medical attention at the Defendant’s main hospital where the minor was admitted and treated for about three days. The Plaintiffs’ evidence was that upon review, the doctor informed them that the cholera vaccine is ordinarily administered orally, hence the conclusion that it had been misadministered by injection, resulting in the child’s adverse reaction and suffering. 66. The Plaintiffs also testified that they lodged complaints with the hospital and sought a formal report, but were dissatisfied with the outcome of the Defendant’s internal processes. 67. The Plaintiffs called additional witnesses including: PW2 (Ruth Wanjiku Warimwe) who corroborated the administration of injections and the minor’s immediate adverse reaction; PW3 (Kevin Waithaka Mugweru) who stated the minor had severe pain and swelling, prompting hospital admission; and PW4 (Dr. Ruth Kihara) who opined that cholera vaccine (Shanchol) is administered orally and that injection could cause inflammation/swelling. PW4 however admitted she did not examine the child and could not conclusively confirm that the side effects were solely due to Shanchol. The Defendant’s/Appellant’s Case 68. The Defendant called witnesses who testified that the minor was vaccinated on 27th October 2021 and that the vaccines administered included: Shanchol (oral vaccine), Varivax (injectable), Havrix (injectable) and Vitamin A 69. DW1 (Dr. Moody Omulako) testified that according to the hospital records, the minor was given Shanchol orally and that he did not have direct first-hand knowledge of what transpired in the vaccination room. He further stated that the nurse who administered the vaccine had since left employment and was not called as a witness. 70. DW2 (Dr. Wahu Gitaka) confirmed she admitted the minor at the Defendant’s main hospital with fever, irritability and swelling at the injection site, and treated him for injection site cellulitis. She stated that she later reviewed records and concluded that Shanchol had been administered orally. She also https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 8

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admitted she was not present during vaccination and could not tell how the vaccines were actually administered. Issues for Determination 71. I have carefully considered the record of appeal and the parties’ rival submissions. I find that the following issues arise for my determination: a. Whether the trial court erred in finding medical negligence b. Whether the adverse inference drawn from failure to call the nurse was justified c. Whether the finding regarding alteration of medical records was supported by evidence d. Whether the award of damages warrants appellate interference Analysis and Determination Medical Negligence 72. It is settled that medical negligence is established upon proof of duty of care, breach, and causation of damage. In Herman Nyangala Tsuma vs. Kenya Hospital Association t/a Nairobi Hospital & 2 Others [2012] eKLR, the court discussed the elements of medical negligence and reaffirmed that a plaintiff must establish a duty of care owed by the medical practitioner or hospital; breach of that duty (failure to meet the standard of care); and causation, meaning that the breach caused the injury complained of. The court rendered itself as follows: “ The ingredients of negligence are well settled. The plaintiff must prove that the defendant owed him a duty of care, that the defendant breached that duty and that as a result of that breach he suffered damage.” 73. In the context of medical negligence, the learned court applied those settled principles to medical practitioners and hospitals, emphasizing that liability only arises where breach of the professional duty of care is proved and the breach is causally linked to the injury complained of. 74. In the present case, it was not disputed that the Appellant owed the minor a duty of care. Indeed, the trial court found that there existed a doctor/patient relationship between the minor (as a patient) and the Appellant hospital, and that a duty of care was therefore owed. 75. The trial court applied the principles of medical negligence as restated in Ricarda Njoki Wahome (Suing as administrator of the estate of the late Wahome Mutahi (Deceased)) vs. Attorney General & 2 others [2015] eKLR, including, that a claimant must prove duty, breach, and injury and held that the Appellant owed the minor a duty of care. 76. The central question is whether the Respondents proved breach and causation. 77. The evidence on record reveals that the minor was treated for injection-site cellulitis, a diagnosis consistently recorded in the Appellant’s own clinical notes. Both PW4 and DW2 confirmed that Shanchol is administered orally, and no medical evidence was led to demonstrate that intramuscular administration of Shanchol accords with accepted medical practice. 78. Although PW4 did not examine the child, expert evidence need not be conclusive to support negligence where documentary and circumstantial evidence point to a clear departure from standard procedure. In PKM (suing on behalf of AJB) & GSM vs. Nairobi Women’s Hospital [2018] eKLR, the court held https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 9

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that where a claimant demonstrates a departure from established medical procedure resulting in injury, liability will attach notwithstanding absence of direct eyewitness evidence. 79. Similarly, in Achutrao Haribhau Khodwa & Ors. vs. State of Maharashtra & Ors. (1996) 2 SCC 634 the Supreme Court of India held that: “ The facts of the present case are eloquent. A mop was left inside the abdomen of the patient. It was for the defendants to explain how it happened. In the absence of any satisfactory explanation, the doctrine of res ipsa loquitur would apply.” The Court further held: “ Leaving a mop in the abdomen of a patient during an operation is, by itself, a negligent act.” 80. My finding is that the presence of injection-site cellulitis, coupled with the absence of any explanation as to how an oral vaccine could result in such injury, was sufficient to support a finding that there was a breach of duty of care. This Court finds no error in that conclusion. Failure to Call the Nurse 81. It cannot be gainsaid that the nurse who administered the vaccine was the most material witness in this case. My humble view is that while the Respondents were granted leave to summon her, the Appellant, as her employer and custodian of employment records, was in a superior position to secure her attendance. In Bukenya & Others vs. Uganda [1972] EA 549, the court held that where a party fails to call a material witness and no sufficient explanation is offered, the court may draw an inference that the evidence would have been adverse to that party. 82. In Kenya Akiba Micro Financing Ltd vs. Ezekiel Chebii [2012] eKLR, the court held that failure to call a witness with special knowledge entitles the court to draw an adverse inference. 83. Similarly, in Nesco Services Ltd vs. CM Construction (EA) Ltd [2021] eKLR, the court observed that: “ Where a party fails to call evidence that is within its control, the court is entitled to presume that such evidence would have been adverse to that party.” 84. In the instant case, the record shows uncertainty and inconsistency regarding the nurse’s availability. The Appellant’s witnesses admitted they had no first-hand knowledge of what transpired in the vaccination room. I find that in the circumstances of this case, the trial court was entitled to draw an adverse inference from the Appellant’s failure to call the nurse who administered the vaccine as a witness. This Court finds no misdirection on this issue. Alteration of Medical Records 85. It is trite that courts are bound by pleadings. In the same vein, courts are equally entitled to interrogate the credibility of evidence placed before them. In Captain Harry Gandy vs. Caspair Air Charters Ltd (1956) 23 EACA 139, the court cautioned against courts deciding unpleaded issues, but this does not preclude a court from evaluating the authenticity and consistency of documentary evidence. 86. In the instant case, the trial court observed that the word “oral” was curiously selectively inserted above “Shanchol”, while no mode of administration was indicated for other vaccines. This observation was weighed against contemporaneous treatment notes diagnosing injection-site cellulitis. The trial court found that the alteration on the treatment document raised serious questions about the integrity of the document and the credibility of the defendant’s case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 10

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87. In BO (a minor) vs. Nathan Khamala & Another [2020] eKLR, it was held that medical records must be internally consistent and that where unexplained inconsistencies arise, the court is entitled to draw adverse conclusions against the party responsible for their preparation. 88. My finding is that the trial court did not determine a new cause of action but merely assessed credibility. I find that the inference drawn from the insertion of the word “oral” above “Shanchol” was supported by evidence and was not therefore perverse. Quantum of Damages 89. It is trite that an appellate court will only interfere with an award of damages if it is shown that the trial court acted on wrong principles, took into account irrelevant factors, or that the award is so inordinately high or low as to represent an entirely erroneous estimate. (See Butt vs. Khan [1981] KLR 349). 90. In the present case, the trial court expressly acknowledged that the injuries suffered were short-term and non-permanent, and proceeded to assess damages with reference to the following authorities: i. PKM (Suing on Own Behalf and as Next Friend of A J B) vs. Nairobi Women’s Hospital & Another [2018] eKLR, where the High Court awarded Kshs. 8,000,000 in general damages in respect to a minor who suffered nervous shock arising from a surgical error. ii. JPS (A minor suing through his father and next friend PS) vs. Aga Khan Health Service Kenya t/a The Aga Khan Hospital & 2 others (Civil Appeal 28 of 2012) [2023] KECA 459 (KLR) the Court of Appeal set aside the trial court’s award of Kshs 800,000 as general damages and substituted it with general damages for pain, suffering and loss of amenities of Kshs 15,000,000 where the minor sustained a Brachial Plexus injury commonly referred to as Erb’s palsy. This injury led to nerve damage and permanent functional impairment of the arm. iii. BO (a minor suing through his next friend) vs. Nathan Khamala & Another [2020] eKLR, where negligence in medical management caused injury but without permanent disability and the High Court awarded Kshs. 1,500,000 in general damages. iv. Akichelesit Children of Busia County, where a Magistrates Court awarded Kshs. 42,880,000 to 28 children who developed paralysis or serious neurological injury after they were administered malaria injections at a local health facility. 91. In the instant case, the trial court awarded general damages of Kshs. 2,000,000 to the minor and Kshs. 800,000 to the parents. The record shows that the minor’s parents witnessed their one-year-old child deteriorate within hours of vaccination, dealt with acute distress, persistent crying, fever, vomiting, and swelling. The child was admitted for three days following the botched vaccination and the parents were confronted with the possibility that a routine medical intervention had seriously harmed their child. 92. Kenyan courts have taken the position that parental emotional distress is compensable. In JMA (suing through BOA as next friend) vs. Registered Trustees of the Sisters of Mercy (Kenya) [2023] eKLR Kshs. 1,000,000 was awarded to the mother alone for pain, suffering, and emotional trauma. 93. In LWW (suing as administrator of the estate of BMN – deceased) vs. Charles Githinji [2019] eKLR Kshs. 500,000 was awarded to a mother purely for emotional and psychological suffering, separate from damages to the infant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 11

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94. In the present case, I find that the trial court’s award reflects a measured and proportionate assessment that is commensurate to the proven injuries and the absence of permanent disability. Conversely, the Respondents have not demonstrated that the award was inordinately low to justify enhancement. 95. This Court finds that the trial court properly evaluated the evidence, correctly applied the law on medical negligence and exercised its discretion judiciously in awarding damages. I find no justification in interfering with the trial courts decision on quantum of damages. Disposition 96. For the reasons that I have stated in this judgment, I find that the appeal is not merited and I therefore dismiss it. Having struck out the Cross Appeal, I find that each party shall bear their own costs of the appeal and cross appeal. For the avoidance of doubt, the judgment of the trial court is affirmed in full. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF FEBRUARY 2026. HON W. A. OKWANY JUDGE In the presence of Ms Anguti for Kiongera for Appellant Miss Meto for Miss Abiero for Respondent Abdirzak - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1784/eng@2026-02-12 12

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