Smr (minor Suing Through Mother and Next Friend Al) v Dr. R. Ochieng & 1 other

4. The mother left the Plaintiff in hospital on the 10th day. She would visit the Plaintiff every day at 9.00am and leave at 12.00 noon or 1,00pm. On 10.8.2018 the mother returned to hospital at 9.00am. She found the Plaintiff wearing water balloons on his hands. On asking she was told that the Plaintiff had developed fever and a cannula was inserted on his arm to administer medication and that the process injured the Plaintiff on his right hand necessitating placing of the balloons. 5. The Plaintiff claims that as a consequence of medical mismanagement and negligence by the defendants, his right arm was amputated above the elbow on the 17th day of being in hospital. The Plaintiff asserts, further, that as a result of the negligence on the part of the defendants, he suffered extensive injuries including the right arm amputation, emotional and psychological distress, pain and suffering and loss of amenities. 6. The particulars of the alleged negligence on the part of the 1st defendant are pleaded under paragraph 5 of the Plaint. 7. The Plaintiff also holds the 2nd defendant vicariously liable for the acts and/or omissions of the 1st defendant. 8. The Plaintiff has also pleaded particulars of the injuries suffered under paragraphs 8 of the Plaint and stated that in addition to filing this suit, a complaint, DC Case No. 17 of 2021, was lodged with the Medical Practitioners and Dentists Council. Defence and Counterclaim 9. The Defendants have entered appearance and filed a Defence and a Counterclaim dated 3.08.2021. They have denied liability on the allegations made in the Plaint and stated that the minor was born preterm at 29 weeks due to premature rupture of the membrane of his mother. The defendants have denied allegations that the amputation of the minor’s right arm was as a result of negligence and mismanagement on the part of the Defendants and stated that the 1st Defendant accorded the minor the best possible care and expertise in the circumstances. 10. The defendants have stated that the injuries sustained by the Plaintiff as a consequence of the said amputation were inevitable and were a necessary action aimed at saving his life, since the Plaintiff had contracted ischaemic necrosis which is a life-threatening condition that required surgical intervention. 11. The Defendants have denied the particulars of emotional and psychological distress set out in the Plaint and stated that following the amputation procedure, the Plaintiff’s mother underwent counseling, briefing, and received adequate emotional support from the Defendants’ staff. The Defendants have similarly denied the claim for special damages. Defendant’s counterclaim 12. The Defendants have raised a Counterclaim against the Plaintiff in which they claim Kshs. 2,244,196.69 being unpaid hospital bill as at 18.09.2018, plus interest thereon and costs of the counterclaim. 13. The Defendants have pleaded in the Counterclaim that following the preterm birth of the minor on 31.07.2018, he was admitted to the Neonatal Intensive Care Unit (NICU) where he was placed on an incubator, before his subsequent transfer to the Neonatal High Dependency Unit (NHDU) where he contracted ischaemic necrosis on his right arm, through no fault of the Defendants, thereby necessitating the amputation in order to save his life. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 2

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14. They pleaded that following the amputation procedure, the minor’s condition stabilized and he was consequently discharged from the 2nd Defendant hospital on 18.09.2018 by which time the final bill had accumulated to Kshs. 2,244,196.69, which remains unsettled to date. That the minor’s father had signed a Guarantee of Payment dated 18.09.2018 undertaking to settle the outstanding bill. Reply to Defence and Defence to the Counterclaim 15. The Plaintiff has denied the contents of the counterclaim and denied that the Defendants are entitled to the sums sought in the counterclaim or at all, stating that following the discharge of the minor on 18.09.2018, the 2nd Defendant took no action in demanding settlement of the bill, for a period of three (3) years. That in the circumstances, the counterclaim is an afterthought. Oral Evidence 16. The hearing of the suit commenced on 5.11.2025 with the testimony of AL, PW1, the mother of the Plaintiff. She produced her witness statement dated 20.05.2021 as P. Exhibit 1 and her list and bundle of documents of like date as P. Exhibit 2 to 13. In addition, the witness produced her further list and bundle of documents dated 5.10.2022 as P. Exhibits 14 and 15. 17. In her testimony, PW1 reiterated that the Plaintiff was born prematurely at 21 weeks at the 2nd Defendant’s hospital on 31.07.2018 and was received by the 1st Defendant; that he was placed in NICU where he was assisted to breath using breathing aid due to his underdeveloped lungs; that the Plaintiff was treated for sepsis and was put on antibiotics; that following the lapse of three (3) days, his condition improved and he was put off the ventilator and transferred to the NHDU where he was subsequently treated for pneumonia and that PW1 was discharged from hospital on the 10th day.. 18. She testified that despite having been discharged, from hospital she frequently visited the Plaintiff in hospital on daily basis; that on 10.08.2018 in the morning, she found the Plaintiff with warm water balloons placed on his hands; that upon inquiry, she was informed that he had developed a fever necessitating insertion of a cannula on his right hand to administer medication, which insertion had caused injury and that the affected area had turned red. 19. It is the testimony of PW1 that the 1st Defendant was not at the hospital and her attempts at contacting her were futile; that when she was finally able to reach the 1st Defendant at around 4.20pm on that day, the 1st defendant informed her that the purpose of the water balloons was to assist in resolving the injury caused by the wrong insertion of the cannula. 20. She testified that on 11.08.2018 the Plaintiff’s hand had become pale while three (3) of his fingers had turned black; that one Dr. Mugambi, upon running tests on the veins, attempted a nerve block with the assistance of Dr. Kabugi, to no avail and that another doctor (Dr. Runturi) casually told the PW1 that the Plaintiff had a diseased vein but left without giving any further explanations. 21. PW1’s testified, further, that her attempts at seeking a second opinion from an independent doctor were declined by the defendants and she was informed that the only viable option would be to amputate the Plaintiff’s arm; that the Plaintiff subsequently underwent the amputation procedure on 17.08.2018 and stayed in hospital to heal for 34 more days. She blames the hospital for not exercising professionalism in the care of the Plaintiff. 22. During cross-examination, PW1 testified that she attended antenatal clinics at her private doctor’s (Dr. Rakaria) clinic; that at 21 weeks of pregnancy, her water membrane ruptured necessitating her undergoing caesarian procedure at 29 weeks; that she is aware of the existence of the matter before the KMPDC including the finding that there was no negligence or medical malpractice on the part of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 3

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the defendants; that she is equally aware of the risks of premature birth including infection and sepsis; that at birth, the Plaintiff weighed 1.2kg and had underdeveloped lungs, requiring administration of oxygen to assist in his breathing and that on day three (3) post-birth, the Plaintiff developed pneumonia resulting in insertion of an IV cannula for purposes of administering antibiotics. 23. It is her further evidence, in cross examination, that prior to the amputation, a cannula had been placed on various parts of the Plaintiff’s body on different occasions but that the cannula which resulted in complications had been placed by a trainee doctor. 24. In re-examination, the witness reiterated her earlier evidence and stated that the court is not bound by the decisions of the KMPDC and that a separate finding was arrived at by Dr. Wokabi that there was human error in handling the Plaintiff. 25. Dr. Washington Wokabi testified as PW2. He produced his medical report dated 23.03.2021 as an exhibit. PW2 took the court through the contents of his medical report and pointed out that according to the said report, there was an indication of negligence in the treatment extended to the Plaintiff and that blood supply problems were never noted at birth and hence any issues in that respect were caused by human intervention. 26. The doctor explained that gyanosis is a condition attributed by changes to the body’s tissues from a red colour, due to a lack of oxygen, consequently leading to the death of the tissues due to oxygen deprivation and that an injury resulting from a cannula insertion can cause an infection. 27. During cross-examination, PW2 testified that in preparing his report, he considered reports from other medical doctors and other relevant documents, but that he did not study the findings arrived at by the KMPDC and that he was unaware that a complaint had been lodged before the KMPDC and a determination made on the same. 28. He further testified that it is routine procedure for doctors to put hot balloons on injuries and that there are indications of efforts being made to establish circulation to the Plaintiff’s affected area; that he is a general surgeon and does not specialize in vascular surgery, which deals with the circulation of blood but nevertheless, he could confirm the presence of sepsis in the Plaintiff and that in such an instance, the use of a cannula was the only measure available. 29. He testified that in the case of pre-term babies, it is quite difficult to trace the veins and that in instances of vein blockage, chemicals ought to be used in constricting muscles, but that it ought to be anticipated that blood flow may also be constricted and hence appropriate preventative measures should be taken. 30. Dr. R. Ochieng, the 1st Defendant testified as DW1. She adopted her witness statement dated 3.08.2021 (D. Ex. 1) as her evidence-in-chief. She also produced Volumes 1 and 2 of her list and bundle of documents as D. Exhibits 2(a) and 2(b) respectively and a copy of the ruling delivered by the KMPDC on 16.09.2022 as D. Exhibit 2(c). 31. DW1 testified that she received the Plaintiff on 31.07.2018 following his premature birth at 29 weeks; that babies born prematurely tend to face many challenges including breathing and blood system challenges as well as susceptibility to sepsis; that in the case of the Plaintiff, he had to first be resuscitated, followed by insertion of a breathing tube in his trachea in order to assist with breathing and that she further gave him baby surfactant to help keep his lungs open. 32. DW1 testified that the Plaintiff was at a higher risk of developing sepsis due to the time spent between the time the mother’s water broke to the time of his birth and that antibiotics were administered to the Plaintiff aimed at clearing all infections. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 4

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33. It is DW1’s testimony that on 10.08.2018 she inserted a cannula in the Plaintiff and noted that he had heavy breathing which indicated that his lung condition was worsening due to possible infection; that they changed the antibiotics on the seventh day, at which time, the attending nurse noted that the drugs could not go in and therefore replaced the existing cannula with another and that upon the 1st Defendant’s examination of the Plaintiff, she found his condition to be improving at the time and therefore proceeded with the treatment. She testified that later that day, the nurse observed that the Plaintiff’s arm was turning pale and alerted the doctor on call, as well as informing the 1st Defendant and that they had the cannula removed, elevated the limb and kept it warm, in line with the standard of care recommended in such situations. 34. DW1 further testified that, the Plaintiff’s arm was still pale on the following day although blood was flowing into the limb; that she decided to consult a cardio-vascular surgeon and undertook an ultrasound on the affected arm and that as they waited for the surgeon to respond, she requested an anesthetist to perform a nerve block. DW1 maintained that, together with her team, she was constantly monitoring the Plaintiff and regularly updating the mother on his status. 35. In cross-examination, DW1 stated that she is still an employee of the 2nd Defendant; that on 10.08.2018 a qualified Senior House Officer inserted a cannula into the Plaintiff’s arm and which worked properly; that the blocked cannula had been inserted a few days prior hence the medicine could not pass through. 36. Dr. Stanley Mugambi testified for the Defence as DW2. His testimony is that he is a paediatric surgeon at the 2nd Defendant Hospital. He adopted his witness statement dated 22.04.2022 (D. Ex. 2) as his evidence-in-chief. He testified that he participated in the treatment and care of the Plaintiff, particularly on 11.08.2018 when he received a call to that effect once it was observed that the Plaintiff’s limb and fingers were turning blue and were swollen. He stated that from his medical experience, the paleness was likely due to reduced blood flow to the lower limb. 37. He testified that the initial care management entailed elevating the arm, keeping it warm and inserting a cannula; that a report subsequently prepared by a radiologist confirmed that the blood flow from the elbow down had been restricted, but that there was no blood clot and that, in addition, an anesthetist was contacted to perform a nerve block. 38. In cross-examination, the doctor testified that he is an employee of the 2nd Defendant and the 1st Defendant is a colleague; that he did not insert the cannula in question and that according to his diagnosis, it is possible that the vessel spasms that affected the Plaintiff could have been secondarily caused by the cannula insertion. He testified that in his opinion, the condition may not have led to an amputation and that a premature baby, like the Plaintiff, is likely to face various health challenges. 39. Dr. Jimmy Kabugi testified for the defence as DW3. He adopted his witness statement dated 22.04.2022 (D. Exhibit 4) as his evidence-in-chief and testified that he too was involved in the care of the Plaintiff, in his capacity as an anesthesiologist; that he performed a nerve block in various parts of the Plaintiff’s body since there was a change in colour of his skin; that he was called to perform the procedure on 11.08.2018 at 4.00pm and that upon performing the said procedure, the Plaintiff’s blood flow improved. According to him, the nerve block was a necessary procedure since it was apparent that the paleness was a signal of reduced blood flow. 40. In brief cross-examination, he stated that he was an employee of the 2nd Defendant but no longer works there; that by the time he attended to the Plaintiff, the cannula had been removed and that in his opinion, the cannula may have caused the infection. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 5

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41. Dr. Ruturi Josiah testified as DW4. He adopted his witness statement dated 21.4.2022 (D. Ex. 5) as his evidence-in-chief. He testified that he is a vascular and cardio thoracic surgeon; that on 12.08.2018 he received a call at about 11.30am to attend to the Plaintiff; that upon his arrival at the NICU, he reviewed the Plaintiff who by then had a pale hand from the elbow to the fingertips; that though the elbow had a pulse, the rest of the hand had no pulse and that upon reviewing the notes indicating actions taken by Doctors Mugambi and Kabugi, he advised that there was no need for any further action on his part since the Plaintiff’s condition had improved and there were no signs of a blood clot. 42. The doctor testified that he advised the Plaintiff’s mother that given the circumstances, it was possible that the Plaintiff would lose his right hand. It was his view that the medical personnel had done their best to attend to the Plaintiff and to save his life. He further stated that having read the report findings by the KMPDC, he is of the view that vessels of a premature baby are quite small and there is no guarantee that the artery was necessarily punctured during the procedure. 43. In cross-examination, the doctor gave evidence that he is an employee of the 2nd Defendant and a colleague of the 1st Defendant. Lastly, he stated that save for giving advice on steps to be undertaken, he was not directly involved in the care of the Plaintiff. There was no re-examination of this witness. 44. Joseph Kiguro Thuo testified as DW5. His evidence is that he is employed by the 2nd Defendant, as a Supervisor in the Accounts Recovery Unsecured Debts department. He adopted his executed witness statement dated 21.07.2021 as his evidence (D. Exhibit 6). In the absence of any cross-examination, the defence case was marked as closed. Plaintiff ’s Submissions 45. At the conclusion of oral evidence, the parties filed submissions. The Plaintiff’s submissions are dated 5th March 2026. The submissions are contained in a lengthy document of 38 pages. I have read the issues raised in those submissions. In sum, the issues raised relate to negligence of the 1st and 2nd defendants; whether the decision of PMPDC is binding to this court; the applicability of the doctrine of res ipsa loquitor and whether the Plaintiff is entitled to the reliefs sought. 46. On liability, the Plaintiff has submitted that there is sufficient evidence to support the claim that the amputation of the Plaintiff’s right hand was the direct result of negligence on the part of the 1st Defendant. The Plaintiff has cited various authorities on the duty of care in medical negligence claims, including the case of JPS v Aga Khan Health Service, Kenya t/a The Aga Khan Hospital & 2 others [2006] KEHC 2134 (KLR) where the court reasoned thus: “ There exists a duty of care between the patient and the doctor, hospital or health provider. Once this relationship has been established, the doctor has the following duty;a)Possess the medical knowledge required of a reasonably competent medial practitioner engaged in the same specialty. b)Posses the skills required of a reasonable competent health care practitioner engaged in the same specialty. c)Exercise the care in the application of the knowledge and skill to be expected of a reasonably competent health care practitioner in the same specialty, and d)Use the medical judgment in the exercise of that care required of a reasonably competent practitioner in the same medical or health care specialty.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 6

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47. The Plaintiff has also cited Dennis Isoe Moruri Suing for and Behalf of the Estate of Truphena Abisa Moruri v Nyangena Hospital & another [2022] KEHC 2296 (KLR) where the court elaborated that a duty of care arises where a person who holds himself or herself as possessing certain knowledge and special skill accepts responsibility for the treatment and care of a patient, and such patient relies on the said knowledge and skills in receiving and accepting treatment from the professional in question. 48. The Plaintiff submitted that in this instance, it is not in dispute that the Plaintiff was placed under the care of the 1st Defendant at all material times, thereby giving rise to a duty of care on the part of the latter. That the said duty of care was breached by the 1st Defendant, who failed to diligently and constantly monitor the Plaintiff’s progress or status, particularly given the fact that the Plaintiff was a preterm baby. That it is due to lapses on the part of the 1st Defendant in keeping a close eye on the Plaintiff, that the latter developed an infection and complications on his right hand and that additionally, there was an inordinate delay in effecting interventions to reduce the injuries sustained by the Plaintiff especially resulting from the defective cannula. 49. It is also the Plaintiff’s submission that the 1st Defendant acted negligently by failing to adequately assess the risks of administering antibiotics intravenously as opposed to orally, placing reliance on various authorities such as the case of JOO & 2 others v Okutoyi & 2 others [2019] KEHC 10919 (KLR) in which the court entered a finding of liability for medical negligence upon reasoning that the 1st defendant therein had failed in her professional duty, to adequately monitor the plaintiff’s condition. 50. It is the Plaintiff’s further submission that as a result of the 1st Defendant’s negligence, the right arm worsened thereby necessitating an amputation when the outcome was avoidable; that the events preceding the amputation lead to one conclusion: that the amputation was caused by the negligent insertion of the cannula which resulted in infection and paleness of the right arm. 51. On whether the opinions and findings arrived at by the KMPDC are binding to the court, the Plaintiff submitted that the said opinion ought to be disregarded for placing reliance on expert evidence that was lacking in logic. The Plaintiff on authorities including OZA & 2 others v David Oluoch Olunya & another [2021] KEHC 6732 (KLR) where the court acknowledged that decisions by the Medical Practitioners and Dentists Council are not binding on the courts and the case of Moga (Suing on his behalf and that of the Estate of the Late Joyce Adema in his capacity as the legal representative as well as on behalf of the named dependants of the said deceased) v The Nairobi Women's Hospital & 3 others [2015] KEHC 6969 (KLR) in which the court reasoned that while members of the Medical Practitioners and Dentists Board constitute medical professionals and experts, the findings and recommendations arrived at in that instance were contradictory in nature. 52. The Plaintiff urged the court to deem the doctrine of res ipsa loquitur as applicable to the circumstances of this case and thus infer negligence on the part of the 1st Defendant. On the same limb, the Plaintiff has also urged the court to find the 2nd Defendant vicariously liable for negligent acts and/or omissions by the 1st Defendant, by virtue of the subsisting employer-employee relationship between the said Defendants. On this point, the Plaintiff cited the case of Michubu (Suing as the Legal Representative of the Estate of Agnes Kawira) v St John’s of God Hospital Tigania [2024] KEHC 2239 (KLR) where the court held a hospital vicariously liable for the negligent acts of its member of staff. 53. On the reliefs sought, the Plaintiff has submitted on four (4) heads of damages. On general damages for pain suffering and loss of amenities, the Plaintiff seeks Kshs. 35,000,000/-. This prayer is based on the case of JPS (A minor suing through his father and next friend PS) v Aga Khan Health Service Kenya t/a The Aga Khan Hospital & 2 others [2023] KECA 459 (KLR) where an award of Kshs. 15,000,000/- was made under a similar head. The Plaintiff has also urged the court to draw guidance https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 7

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from the Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland (4th Edition), published on 4.03.2013 at page 27, where a possible award of £140,000 can be made to an amputee. 54. Regarding the claim for costs of successive prosthetic arm every 2 years from age 3 to 18 years, a sum of Kshs. 12,519,000/- is sought upon taking into account the fact that the Plaintiff’s current age of 8 years alongside the fact that a modern prosthetic arm would cost approximately Kshs. 2,503,872/-. 55. Concerning future medical expenses, the court has been urged to award a sum of Kshs. 3,000,000/under this head, given the Plaintiff’s medical history of humerus overgrowth, supported by the medical evidence on record. 56. On special damages, the Plaintiff has sought a total sum of Kshs. 157,000/- broken down as follows: medical report (P. Exhibit 11) - Kshs. 10,000/-; court attendance costs for PW2 - Kshs. 20,000/-; expenses incurred at Cure International Hospital in Kijabe (P. Exhibit 15) - Kshs. 127,000/-. 57. Lastly, the Plaintiff has urged the court to award him costs of the suit and interest on the general and special damages sought, at court rates. Defendants’ Submissions 58. The 1st and 2nd Defendants joint written submissions are dated 20.04.2026. They submitted on the allegations of negligence on their part. They denied being negligent and submitted that the Plaintiff was not a private patient at the 2nd Defendant Hospital and hence his care was in the hands of the various doctors and medical personnel who were on duty on the material dates; that in addition, the respective medical staff were acting on the directions of the 1st Defendant, being the primary doctor and that other doctors equally stepped in to assist in the care and treatment of the Plaintiff. 59. They have submitted that as soon as the Plaintiff’s condition altered, his mother was informed and further updated of the plans in place to address the arising concerns with his health; that the 1st Defendant was appraised of the cyanosed fingers and issued instructions on what was to be done; that in the circumstances, it is clear that the 1st Defendant took charge of the Plaintiff’s care at all material times, and it is inaccurate for the Plaintiff’s mother to state otherwise. 60. The Defendants have relied on the case of Herman Nyangala Tsuma v Kenya Hospital Association T/ A The Nairobi Hospital & 2 Others [2012] KEHC 1451 (KLR) in which the court borrowed from a separate decision rendered in M Shoba v Dr. Rajakumari Unnithan AIR 1999 Kerata 149 where it was held that a finding of negligence can only be arrived at once it is established that a medical professional acted below the standards of reasonable skill required and contended that the Plaintiff has not demonstrated the manner in which the defendants’ actions or omissions fell below the medical standards of care. 61. Further, the Defendants have contended that evidence was tendered to show the absence of a connection between the IV cannula and the amputation, and further evidence was tendered to show that the cyanosis was likely the result of inflammation of the Plaintiff’s blood vessels, due to infection. They submitted that the evidence tendered by PW2 is biased in nature and was not drawn from the medical documentation previously presented to the Plaintiff’s mother (PW1). That, PW2 did not have the relevant expertise to ascertain whether the standard of care provided to the Plaintiff was proper and reasonable in the circumstances. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 8

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62. It is equally their joint submissions that the KMPDC arrived at a sound decision on the matter, correctly finding that there was no evidence of negligence on the part of the Defendants and urged the court to concur with that finding. 63. In view of the foregoing, the Defendants have argued that the Plaintiff has not met the threshold for medical negligence and that the doctrine of res ipsa loquitur is not applicable in this case. On this point, the Defendants relied on Odero v Aga Khan Hospital Kisumu [2024] KEHC 3408 (KLR) where it was reaffirmed that the burden of proof in negligence claims lies with the plaintiff, who has to collectively prove all the elements associated with the said tort. 64. The second issue addressed by the Defendants is in respect of their counterclaim. In this regard, they have briefly submitted that at the time of discharge from hospital, the Plaintiff had a pending bill amounting to Kshs. 2,244,196.69 which remains unpaid to date and therefore the Defendants are entitled to the said sum, as sought in the counterclaim. They have urged that the Plaintiff’s suit ought to be dismissed with costs, and the counterclaim ought to succeed, with costs thereon. Analysis and Determination 65. I have carefully considered the respective pleadings filed and the evidence tendered at the trial, as well as the rival submissions and authorities cited by the parties. I have noted that the Plaintiff had filed a statement of issues dated 13.10.2021 setting out 13 issues for determination. There is no indication that the Defendants filed any proposed list of issues for consideration or agreed with the proposed issues raised by the Plaintiff. 66. I propose to deal with the issues arising from this dispute in the following manner: 67. a. Whether the Plaintiff has made a case for medical negligence against the 1st and 2nd Defendants; b. Whether the Plaintiff is entitled to the reliefs sought in the plaint; c. Whether the 1st and 2nd Defendants have proved their counterclaim to the required standard and if so, whether they are entitled to the reliefs sought therein. On the first issue, it is trite law that the burden of proof rests with the Plaintiffs to prove their case against the Defendant, on a balance of probabilities. Section 107 (1) of the Evidence Act clarifies this position by providing that: “ Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” 68. In Mumbi M'Nabea v David M.Wachira [2016] eKLR, the Court of Appeal, while discussing the standard and burden of proof in civil claims in the Kenyan jurisdiction had this to say: “ In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows: “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” The above provision provides for the legal burden of proof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 9

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However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows: “The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that: “Whereas under section 107 of the Evidence Act, (which deals with the legal evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.” 69. It is a settled legal position that the legal burden of proof under Section 107 of the Evidence Act never shifts from the Plaintiff in a civil matter. However, the evidentiary burden under section 109 of the Evidence Act keeps shifting from one party to the other depending on which of the two parties wishes the court to believe on the existence of a particular fact. 70. The Plaintiff’s case is anchored on the tort of negligence. In Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] eKLR, the Supreme Court of Kenya held the view that in a claim based on the tort of negligence, four elements must be proved: “ Four key elements predominate in establishing a negligence claim - a duty of care, a breach of that duty, causation, and damage. A defendant must owe a 'duty of care' to the person bringing the claim, in the sense that they fell within a class of interests which the law considers should be protected. … There is a breach of that duty involving a failure to take reasonable care. Causation must be proved, and the type of damage alleged must be protected by the law’. 71. I am alive to the fact that the claim under determination is founded on the tort of medical negligence. In that respect, I have noted that the court in the case of Bulam v Friern Hospital Management Committee (1957) 2 AII E.R. explained the law on liability in medical negligence as follows: “ ...The test whether there has been negligence or not is not the test of the man on the clapham omnibus, because he has not this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill...” 72. Upon my review and consideration of the pleadings and evidence tendered in this matter, I have observed that it is not disputed that the Plaintiff was delivered as a preterm baby on 31.07.2018 in the 2nd Defendant Hospital by way of a caesarian procedure, under Dr. Rukaria. He was received by 1st Defendant, an employee of the 2nd Defendant. He was placed in the NICU and breathing aid administered. The evidence shows that on 3.08.2018, the Plaintiff was noted to be feeding well and was therefore transferred to NHDU, with cranial ultrasounds scans reported to be normal. That on 7.08.2018 the Plaintiff developed pneumonia and was put on medication. That on 9.08.2018, the chest was noted as having cleared. That on 10.08.2018 the Plaintiff developed cyanosis of his right hand and fingers, resulting in removal of the IV cannula through which he was receiving medication. That the Plaintiff was reviewed by various specialists but there was no improvement in his condition. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 10

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That the paleness to his right arm did not subside and that eventually, Dr. Kabugi advised on surgical intervention on 12.08.2018. That following treatment on 13.08.2018 and 14.08.2018, it was decided that the amputation would be done. That the Plaintiff’s right arm was amputated above the elbow on 17.08.2018 followed by post-operative care until 18.09.2018 when he was discharged. That the Plaintiff subsequently underwent physiotherapy sessions at the 2nd Defendant Hospital. 73. The evidence shows that Plaintiff’s parents were dissatisfied with the quality of treatment and care given to the Plaintiff and they lodged a complaint with the KMPDC, which rendered its decision vide a ruling delivered on 16.09.2022 (tendered as D. Exhibit 2(c)). The Council found no evidence of malpractice or negligence on the part of the Defendants and found the complaint to be lacking in merit and dismissed it. 74. In respect to the first element of statutory duty of care, I draw reference to the case of JPS v Aga Khan Health Service, Kenya t/a The Aga Khan Hospital & 2 others, cited above. I note that the evidence is clear that the Plaintiff was at all material times placed under the medical care and attention of the 1st and 2nd Defendants herein, thereby giving rise to a statutory duty of care. Whereas the 1st Defendant has argued that the Plaintiff was not a private patient of hers but was under the care of various medical staff, she admitted to being the primary doctor in charge of his care and treatment in her capacity as a neonatal consultant, and that the medical staff of the 2nd Defendant acted on her directions and instructions. 75. Having established the existence of a statutory duty of care, I will now contemporaneously discuss the second, third and fourth elements on whether the duty of care was breached, thereby causing the complications and ultimate amputation of the Plaintiff’s arm, in the manner pleaded. 76. Courts in our jurisdiction have previously held that any professional person ought to demonstrate the skills possessed and to thereafter use such skills with adequacy and efficiency. This is precisely what the East African Court of Appeal alluded to when it held the following in the case of Pope John Paul’s Hospital & Another v Baby Kasozi [1974] EA 221 cited in the authority of John Gachanja Mundia v Francis Muriira & Another [2017] eKLR: “ If a professional man professes an art, he must reasonably be skilled in it. He must also be careful, but the standard of care, which the law requires, is not insurance against accidental slips. It is such a degree of care as normally skillful member of the profession may reasonably be expected to exercise in the actual circumstances of the case, and, in applying the duty of care to the care of a surgeon, it is peculiarly necessary to have regard to the different kinds of circumstances that may present themselves for urgent attention...A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motorcar. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater...The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care…” 77. Upon my examination of the pleadings and evidence in this case, it is not disputed that following his premature birth, the Plaintiff’s condition was generally good and that the functionality of his underdeveloped lungs was being managed. That despite these challenges, the Plaintiff responded well to treatment and feeding leading to his being moved from NICU to NHDU. The condition that led to the amputation of his right arm above the elbow developed under the care of the Defendants. It is my view that given the delicate situation the Defendants were faced with, there was no room for error on their part. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 11

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78. From my examination of the pleadings and material on record, I have observed that while the Plaintiff was placed primarily under the care of the 1st Defendant, it is upon the 1st Defendant to demonstrate by way of cogent evidence, that the she personally and regularly monitored the condition of the Plaintiff, particularly on the days preceding the deterioration of the Plaintiff’s right arm and consequent amputation thereof. Given that the Plaintiff is blaming the defendants for neglecting to take proper care to avoid the circumstances that led to the amputation of his right arm, it is upon the Defendants, being the ones who wish to have this court believe the particular fact that the Plaintiff was professionally handled and hence they are not to blame for the amputation of his right arm, to demonstrate that this was the case. It is my view therefore, that the evidentiary burden of proof, under Section 109 of the Evidence Act, shifts to them. 79. Going by the evidence tendered, it is apparent that the paleness of the Plaintiff’s right arm was first noticed at 4.20pm on 10.08.2018 upon which a Senior House Officer was called to review the condition. By this time, the Plaintiff’s right hand and fingers had developed cyanosis. Upon discussion with a Senior Resident Doctor, it was decided that the IV cannula through which the Plaintiff was receiving medication be removed. 80. The medical report prepared by the 1st Defendant and dated 4.12.2018 (part of D. Exhibit 2(a)) indicates that at 5.40pm on 10.08.2018 the Plaintiff’s arm was still pale. That, a plan was put in place to keep the arm warm, hence the use of hot balloons; that the condition of the Plaintiff’s arm had not improved by 11.08.2018 and he was thus reviewed by a cardiothoracic surgeon, upon which review, a nerve block was done but this was unsuccessful. 81. In the days to follow, a conference was held between the various specialists and the Plaintiff’s parents on 13.08.2018, the latter of whom raised concerns with the delay in responding to the situation and further requested to consult an independent doctor but this request was denied. 82. Further, the evidence on record shows that on 14.08.2018 there had been no improvement in the Plaintiff’s condition and that medications were being administered. Ultimately, on 17.08.2018 the amputation procedure was done, since the Plaintiff’s arm had developed gangrene which put him at risk. 83. From the evidence on record, it is clear that there was no specific doctor or medical staff assigned to keep a close eye on the Plaintiff, despite him being primarily under the care of the 1st Defendant. Similarly, as earlier mentioned, it is evident that the various medical staff ultimately acted on or were expected to be acting on the 1st Defendant’s directions and hence the said Defendant was answerable for any interventions that were either undertaken or omitted to be undertaken. 84. Upon my examination of the totality of the material on record, I am not satisfied that the 1st Defendant has demonstrated by way of sufficient evidence, the specific steps she took to ensure that the condition of the Plaintiff was closed monitored given the circumstances of his birth. It has not demonstrated that the 1st Defendant in particular and the 2nd Defendant took adequate steps to assess the risks associated with the various interventions or modes of treatment offered to the Plaintiff, at all material times given the delicate circumstances surrounding the Plaintiff’s birth or to controvert the allegations made by PW1. 85. Upon my further examination of the totality of the evidence on record, I also observed that while it may be true that various specialists reviewed the Plaintiff’s condition, the prolonged delay on the part of the Defendants to adequately address the delicate condition of the Plaintiff has not been explained. I find no sufficient evidence showing the Defendants taking on an active role in addressing the developing condition of the Plaintiff between 10.08.2018, when the paleness of the Plaintiff’s right arm and fingers https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 12

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was first noticed, and 17.08.2018 when the amputation procedure was performed. Nor is there any credible evidence tendered by the Defendants to rebut the Plaintiff’s position that the amputation was avoidable in the circumstances or to arrest the progress of the condition that led to amputation. 86. This being a civil case, the standard of proof is that of a balance of probabilities. And therefore, flowing from all the evidence tendered and the factors demonstrated in this case, I am satisfied that the Plaintiff has demonstrated the manner in which the quality and standard of care offered by the 1st Defendant fell below the proper medical and professional standards, thus giving rise to negligent on her part. Taking all the evidence into account, I can only arrive at one conclusion, that the 1st Defendant breached the duty of care she owed to the Plaintiff; that the breach led to the deterioration of the condition of the Plaintiff leading to the amputation of his right arm above the elbow. As a result of that amputation, the Plaintiff has suffered damages. He has to live with an amputated limb from his early days of his birth and must have undergone emotional distress and suffered excruciating pain. 87. As concerns liability of the 2nd Defendant, I find that credible material has been placed before this court to demonstrate that the 1st Defendant was performing her duties as an agent or employee of the 2nd Defendant. Further, it is undisputed that the Plaintiff received medical treatment and care at the 2nd Defendant Hospital. Resultantly, I am satisfied that the 2nd Defendant is held vicariously liable for the acts and/or omissions of the 1st Defendant. 88. Pertaining to the decision made by the KMPDC, I agree with the sentiments of the Plaintiff, that notwithstanding the fact that the complaint lodged against the Defendants was dismissed for want of merit, the said finding is not binding to this court. This court has discretionary power to consider the evidence presented before it and arrive at its own finding, which may or may not agree with the findings of the Council. 89. Consequently, it is my considered view that the claim for medical negligence has been proved to the required standard against the 1st and 2nd Defendants. Having arrived at the above conclusion, I now proceed to consider the various reliefs sought by the Plaintiff. 90. On general damages for pain suffering and loss of amenities, it is reasonable to state that in the course of the events preceding and following the amputation procedure, the Plaintiff must have experienced prolonged pain, suffering and distress. In addition, the medical report prepared by PW2 and dated 23.03.2021 (P. Exhibit 10) assessed permanent incapacity at 70%. 91. The Plaintiff has sought Kshs 35,000,000 under this head. Upon my consideration of the written submissions on record and the authorities cited, I am of the view that the amount proposed by the Plaintiff falls on the higher side and has not been supported by comparable authorities. The Defendants on their part did not offer any proposals on this relief. 92. I have noted that, in awarding a sum of Kshs. 15,000,000/- in the case of JPS (A minor suing through his father and next friend PS) v Aga Khan Health Service Kenya t/a The Aga Khan Hospital & 2 others [2023] KECA 459 (KLR) cited in the Plaintiff’s submissions, the court took into account the fact that the said minor had developed Erb’s Palsy resulting in immobility to his right arm. It is clear that the nature of injuries in that case are more severe in comparison to the present matter. 93. I have considered the case of C M (a minor suing through mother and next friend M N v Joseph Mwangangi Maina [2018] KEHC 4815 (KLR) where a minor who suffered an amputation of the right leg below the knee with permanent incapacity being assessed at 40% was awarded a sum of Kshs.2,000,000/- on appeal, and the case of Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA) [2020] KEHC 1817 (KLR) in which an award of Kshs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 13

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2,500,000/- was made at the instance of a minor who suffered an amputation of the right leg above the knee, with 40% permanent incapacity. 94. Upon taking into account the age of the authorities cited above in comparison to this case and the age of the Plaintiff herein, as well as the higher degree of permanent incapacity assessed in this matter and the rate of inflation, it is my view that an award of Kshs. 8,000,000/- under this head is reasonable in the circumstances of this case. 95. In respect of damages for future medical expenses, the Plaintiff has proposed an award of Kshs. 3,000,000/- on the basis of a medical history of humerus overgrowth. On their part, the Defendants did not submit on this subject. 96. The Plaintiff has placed reliance on P. Exhibit 14 being a copy of medical summary dated 15.07.2022 prepared by Dr. Felix Kirunguru of AIC Cure International Hospital. The contents therein are that the Plaintiff visited the said Hospital complaining of a right stump prominence of bone with discharging sinus. X-ray tests revealed a humerus overgrowth, thereby necessitating a right forearm stump revision on 21.06.2022 followed by a routine post-operative review. The doctor’s conclusion in his report was that the Plaintiff would experience a high probability of recurrence given that he is yet to attain full skeletal maturity. Consequently, the doctor advised that there would be need for additional revisions in the future, until such time as the Plaintiff attains full skeletal maturity. 97. From the foregoing evidence, it is clear that the Plaintiff is likely to incur additional medical expenses in the future. However, the doctor did not estimate the cost of such expenses or indicate the frequency and durations within which a revision procedure would need to be undertaken, while the Plaintiff did not tender any evidence to support the sum of Kshs. 3,000,000/- sought under this head. In the absence of any material ascertaining the frequency and estimated cost thereof, I hold the view that a sum of Kshs 1,500,000 will sufficiently cover this cost. 98. Concerning damages sought to cater for the cost of replacement of successive prosthetic arm, as earlier mentioned the Plaintiff sought a sum of Kshs. 12,519,000/- under this head. I have noted that in P. Exhibit 10, PW2 indicated therein that the Plaintiff would require a cosmetic prosthetic arm to be replaced at intervals of every 2 years, at a cost of Kshs. 50,000/-, until he attains the age of 18 years. The doctor added that at the time of preparing his medical report, no functional prosthesis was available but that the same would plausibly be in the market by the time the Plaintiff attains the age of skeletal maturity (18 years). 99. Upon my consideration this issue, I note that the Plaintiff is now 8 years of age. This means that he has 10 more years to go to reach the age of majority at 18 years when he can be said to have attained the age of skeletal maturity. While the Plaintiff proposed a cost of Kshs. 2,503,872/- for a functional prosthetic arm, no supporting material was tendered in that regard. In the circumstances, I am inclined to apply the cost of Kshs. 60,000/- which includes the Kshs 50,000 proposed by PW2, plus an additional Kshs 10,000 to cover the inflation rate, as a reasonable figure at the interval of 2 years between each replacement. The tabulation is shown as follows: 10/2 = 5 x 60,000/- = Kshs. 300,000/- 100. I therefore find that the Plaintiff is entitled to an award of Kshs. 300,000/- under the above head. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 14

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101. In respect of special damages, the standing legal position is that special damages must be specifically pleaded and strictly proved. This was reaffirmed by the Court of Appeal in David Bageine v Martin Bundi [1997] eKLR when it stated thus: “ It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a Sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: “... special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Part Hotel Limited [1948] 64 TLR 177 thus; “Plaintiff must understand that if they bring actions for damages, it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, ‘this is what I have lost, I ask you to give me these damages, ‘They have to prove it.” 102. The Plaintiff pleaded special damages solely on the preparation of the medical report, amounting to Kshs. 10,000/-. However, at the submissions stage, the Plaintiff in addition to the above sum, sought special damages for court attendance costs by PW2 amounting to Kshs. 20,000/- and for the bill incurred at Cure International Hospital–Kijabe as shown under the invoice and discharge summary (P. Exhibit 15) in the sum of Kshs. 127,000/-. 103. The law on special damages is settled, as mentioned above. In this instance, the Plaintiff solely pleaded the sum of Kshs. 10,000/- for preparation of the medical report. The legal principle is that a party is bound by his/her pleadings. The Plaintiff pleaded Kshs 10,000 as special damages. He cannot be had to seek special damages by way of submissions. He has tendered a receipt dated 11.03.2021 tendered as P. Exhibit 11 to support his claim. It is my finding, therefore, that the Plaintiff would only be entitled to this sum. 104. Flowing from the foregoing therefore, I am satisfied that the Plaintiff is entitled to the respective awards made hereinabove, as well as the costs of the suit plus interest at court rates on the general from the date of this judgment and special damages from the date of filing this suit until payment in full. 105. In total the Plaintiff is awarded damages as shown below: i. Pain suffering and loss of amenities Kshs 8,000,000 ii. Future medical expenses Kshs 1,500,000 iii. Cost of replacement of successive prosthetic arm Kshs 300,000 iv. Special damages Kshs 10,000 Total Kshs 9,810,000 106. I have considered the 1st and 2nd Defendants Counterclaim. Upon my review of the pleadings and the evidence on record, it is not disputed that following the treatment and discharge of the Plaintiff from the care of the 1st and 2nd Defendants, his father, RMJ, executed a Guarantee of Payment indicating that he would settle the outstanding hospital bill. Both the Plaintiff and the Defendants have tendered copies of the said Guarantee of Payment dated 18.09.2018 as P. Exhibit 6 and part of D. Exhibit 2(a) respectively. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 15

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107. Upon my examination of the contents thereof, it is clear that on the date of the Plaintiff’s discharge from the 2nd Defendant Hospital, the outstanding hospital bill stood at Kshs. 2,244,196.69. While the same did not specify the timelines in which the bill was to be settled, it is clear that the Plaintiff’s father had committed himself to settling the hospital bill nonetheless. 108. Going by the record, there is nothing to indicate that the aforesaid sum has been paid whether fully or partially. In the circumstances and in the absence of any contrary evidence, I am persuaded that the counterclaim succeeds and resultantly, the 1st and 2nd Defendants are entitled to the sum of Kshs. 2,244,196.69 together with interest thereon at court rates from the date of filing the Counterclaim until payment in full, as well as costs of the counterclaim. 109. In the end therefore, the following constitute the final orders made: a. Judgment on the claim be and is hereby entered in favour of the Plaintiff and against the 1st and 2nd Defendants jointly and severally in the following manner: i. Liability 100% ii. General damages for pain suffering and loss of amenities Kshs. 8,000,000/- iii. Future medical expenses Kshs 1.500.000/- iv. Cost of successive prosthetic arm Kshs. 300,000/- v. Special damages Kshs. 10,000/Total Kshs 9,810,000/- 110. b. The Plaintiff shall also have the costs of the suit and interest on the general damages at court rates from the date of judgment until payment in full, and interest on the special damages at court rates from the date of filing suit until payment in full. c. The Defendants’ counterclaim similarly succeeds. Consequently, judgment be and is hereby entered in their favour and against the Plaintiff, in the sum of Kshs. 2,244,196.69. d. The Defendants shall also have the costs of the counterclaim and interest on the sum of Kshs. 2,244,196. 69 at court rates from the date of filing suit until payment in full. e. Parties are liberty to work out the payment method including subtracting the amount awarded to the Defendants in the Counterclaim from the amount awarded to the Plaintiffs. Orders shall issue accordingly. DATED, SIGNED AND DELIVERED THIS 18TH DAY OF JUNE 2026. S. N. MUTUKU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9615/eng@2026-06-18 16

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