John Gachanja Mundia v Francis Muriira & Another [2017] eKLR

John Gachanja Mundia v Francis Muriira & Another [2017] eKLR

Case Metadata

Case Number:

Civil Appeal 26 of 2015

Parties:

John Gachanja Mundia v Francis Muriira alias Francis Muthika & Tigania Mission Hospital (sued through the Administrator)

Date Delivered:

07 Dec 2017

Case Class:

Civil

Court:

High Court at Meru

Case Action:

Judgment

Judge(s):

Alfred Mabeya

Citation:

John Gachanja Mundia v Francis Muriira & Another [2017] eKLR

Case History:

(An Appeal from the Judgment and Decree of Hon. David Mburu, (PM) dated 3rd June, 2015 in Meru CMCC No. 475 of 2002 between Francis Muriira alias Francis Muthika vs. Dr. John Gachanja Mundia and Tigania Mission Hospital)

Court Division:

Civil

County:

Meru

History Docket No:

CMCC No. 475 of 2002

Case Summary:

The Standard of Care Required to Prove Medical Negligence

John Gachanja Mundia v Francis Muriira & Another [2017] eKLR

Civil Appeal No. 26 Of 2015

High Court at Meru

A. Mabeya,J

December 7, 2017.

Reported by Kakai Toili

Civil practice and procedure

– leave to file suit out of time – challenging a decision to grant leave to file a suit out of time - when could one challenge a decision granting leave to a party to file a suit out of time-

Limitation of Actions Act, section 27& 28

Tort Law

– negligence – medical negligence – proof of medical negligence -standard of care - what was the standard of care required to prove medical negligence?

Brief Facts:

The Deceased was admitted to the 2

nd

Respondent’s facility for delivery of her 4

th

child. She had had three previous normal deliveries. The Appellant was called to attend to her. When virginal assisted delivery failed, the Appellant decided that caesarian section be undertaken. The child was successfully extracted. However, the Deceased developed complications from which she died.

The 1

st

Respondent sought leave at the Trial Court to file suit out of time. The Trial Court granted him leave and subsequently filed a suit against both the Appellant and the 2

nd

Respondent for damages arising out of the death of his wife due to the Appellant’s and 2

nd

Respondent’s negligence. The Trial Court found the Appellant and the 2

nd

Respondent liable and entered judgment against them, jointly and severally, for Kshs. 1,524,113/=. Aggrieved by the decision the Appellant filed the instant Appeal on grounds that the Trial Court erred in holding that the 1

st

Respondent had satisfied the provisions of sections 27 and 28 of the Limitation of Actions Act, that the Trial Court erred in holding that the 1

st

Respondent had proved his case to the required standard, that the Trial Court erred in failing to give reasons for the award of KShs. 1,472,000/- as loss of dependency and finally and that the Trial Court erred in finding that the testimony of PW1 was unchallenged..

Issues:

When could one challenge a decision granting leave to a party to file a suit out of time?

What was the standard of care required to prove medical negligence?

Relevant Provisions of the Law:

Limitation of Actions Act

Section 27 - Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.

Section 4(2) does not afford a defence to an action founded on tort where—

the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and

the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and

the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and

the requirements of subsection (2) are fulfilled in relation to the cause of action.

The requirements of this subsection are fulfilled in relation to a cause of

action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which—

either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and

in either case, was a date not earlier than one year before the date on which the action was brought.

This section does not exclude or otherwise affect—

any defence which, in an action to which this section applies, may be available by virtue of any written law other than section 4(2) of this Act (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of law or equity; or

the operation of any law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.

Section 28 - Application for leave of court under section 27.

An application for the leave of the court for the purposes of section 27 of this Act shall be made

ex parte

, except in so far as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action.

Where such an application is made before the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would in the absence of any evidence to the contrary, be sufficient—

to establish that cause of action, apart from any defence under section 4(2) of this Act; and

to fulfil the requirements of section 27(2) of this Act in relation to that cause of action.

Where such an application is made after the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence would in the absence of any evidence to the contrary, be sufficient—

to establish that cause of action, apart from any defence under section 4(2) of this Act; and

to fulfil the requirements of section 27(2) of this Act in relation to that cause of action,

and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as (apart from section 27 of this Act) to afford a defence under section 4(2) of this Act.

In this section,

“relevant action”

in relation to an application for the leave of the court, means any action in connexion with which the leave sought by the application is required.

In this section and in section 27 of this Act

“court”

, in relation to an action, means the court in which the action has been or is intended to be brought.

Held:

Being a first appeal, the Court was enjoined to revisit the evidence that was before the Trial Court afresh, analyze it, evaluate it and arrive at its own independent findings and conclusions, but always bearing in mind that the Trial Court had the benefit of seeing the witnesses, hearing them and observing their demeanour and giving allowance for that

The 1

st

Respondent was granted leave to file suit out of time which the Appellant challenged at the trial. Once leave was granted under section 28 of the Limitation on of Actions Act (the Act) it could only be challenged at the trial.

It was mandatory that the provisions of section 27 (2) of the Act were established for the leave that was granted

exparte

to stand once it was challenged. Section 27 (1) (d) of the Act was clear that for time limitation to be suspended one of the conditions to be fulfilled was the material facts relating to the cause of action was not within the knowledge of the Applicant, the 1

st

Respondent did not demonstrate that.

A Defendant could only challenge the leave at the trial by way of cross-examination on the circumstances of late filing of the case. It was only after successfully mounting such a challenge that the incidence of proof shifts back to the Plaintiff to defend the leave obtained

exparte

. That happened in the instant case but the 1

st

Respondent failed to discharge that burden.

A case of medical negligence was not an ordinary case of negligence. The test to be applied was not that of an ordinary reasonable man known in law but that of an ordinary skilled doctor or consultant in that field. A patient who approached a doctor expected medical treatment with all the knowledge and skill that the doctor possessed to bring relief or solve the medical problem. A doctor therefore owed certain duties of care whose breach gave rise to tortious liability.

The standard of care had to reflect clinical practice which stood up to analysis and was not unreasonable. It was for the Court after considering the expert evidence to determine whether the standard of care afforded the deceased put her at risk.

If a professional man professed an art, he had to reasonably be skilled in it. He had to be careful but the standard of care, which the law required was not insurance against accidental slips. The professional had to bring to his task a reasonable degree of skill and knowledge and had to exercise a reasonable degree of care.

In medical negligence cases, a court should be careful not to construe everything that went wrong in the cause of medical treatment as amounting to negligence. Courts had to insist on due care for the patient at every point but did not have to condemn as negligence that which was only a misadventure. To the extent of not confusing negligence with misadventure, clear proof of negligence was necessary in cases involving medical men, but it could not be accepted that the burden of proving such negligence was higher than in ordinary cases. The burden was to prove that the damage was caused by negligence and was not a question of misadventure and that burden must be discharged on a preponderance of evidence.

Evidence of a witness was usually challenged when doubt was cast on the truthfulness, probability or otherwise of his evidence. That was usually done through making suggestions to a witness about other possibilities other than his own version or conclusions. When such possibilities were elicited from a witness, it was then said that his evidence was shaken or challenged. That was not the case in the instant case, when the Appellant took the stand, he tried to explain as to what in his view could have been the cause of death, amniotic fluid embolism. That was neither suggested nor put to PW1 for his opinion or to shake his firm findings as to the cause of death.

If the 2

nd

Respondent’s facility lacked blood, the Deceased should have been transferred to another facility that would have had blood for the Deceased to be returned to theatre. That was a possibility that was never considered, probably, the internal bleeding would have been arrested and probably avert death. The 1

st

Respondent would have advised for the Deceased to be transferred to another facility had he been informed of the serious condition of the Deceased by the Appellant and the 2

nd

Respondent.

By holding onto the Deceased until her final demise, the Appellant and 2

nd

Respondent failed in their duty of care to the deceased. The Appellant and the 2

nd

Respondent were negligent. The Trial Court could not be faulted for finding the two jointly and severally liable.

The law had to be applied with the socio-political and economic context within which those it affected operated in mind. One could not be said to have contributed absolutely nothing yet she had a family to take care of just because there was no documentary proof of her income. The figure of Kshs.8,000/- per month was a reasonable figure. The multiplicand of 23 years was also reasonable.

Appeal partly allowed

1

st

Respondent failed to discharge the burden of proof on obtaining leave ex parte at the Trial Court

Each party to bear its own costs.

Extract:



Cases

East Africa

1.

AAA v Registered Trustees (Aga Khan University Hospital, Nairobi)

Civil Case No 3 of 2013 – (Mentioned)

2.

Moi Teaching and Referral Hospital v Cypril Awuor Aura

Civil Appeal No 31 of 2008 – (Mentioned)

3.

Ndai, Peter Kimani & another v Peter Gitau Njoroge

Civil Appeal No 522 of 2006 – (Mentioned)

4.

Oruta & another v Nyamato

Civil Appeal No 96 of 1984 – (Mentioned)

5.

Pope John Paul’s Hospital & another v Baby Kasosi

[1974] EA 221 – (Explained)

6.

Selle v Associated Motor Boat Company

[1968] EA 123 – (Mentioned)

7.

Yunes K Oruta v Samuel Mose Nyamato

[1988] KLR 490 - (Explained)

United Kingdom

1.

Cozens v North Devon Hospital Management Committee and another

[1966] 2 ALL ER 799 – (Mentioned)

2.

Magil v Royal Group Hospital & another

[2010] NI QB 1 - (Explained)

Statutes

East Africa

1.

Limitation of Actions Act (cap 22) sections 27(1)(d);

28 – (Interpreted)

Advocates:

None Mentioned

History Magistrate:

Hon. David Mburu, (PM)

History County:

Meru

Case Outcome:

Appeal allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KEYA

AT MERU

CIVIL APPEAL NO. 26 OF 2015

DR. JOHN GACHANJA MUNDIA.....................................APPELLANT

VERSUS

FRANCIS MURIIRA alias FRANCIS MUTHIKA....1

ST

RESPONDENT

TIGANIA MISSION HOSPITAL

(Sued through the Administrator).....................2

ND

RESPONDENT

(An Appeal from the Judgment and Decree of Hon. David Mburu, (PM)

dated 3

rd

June, 2015 in Meru CMCC No. 475 of 2002 between

Francis

M

uriira alias Francis Muthika vs. Dr. John Gachanja

Mundia and Tigania Mission Hospital)

J U D G M E N T

1. By a Plaint further amended on 16

th

June 2009, the 1

st

respondent sued both the appellant and the 2

nd

respondent for damages arising out of the death of his wife, the late Tabitha Kaliuntu Mithika (hereinafter “the deceased”). The respondent claimed that, the appellant and the 2

nd

respondent were negligent in carrying out caesarean section on the deceased as a result of which she died.

2. The 1

st

respondent set out a total of nine particulars of what he considered to be the negligence of the appellant and the 2

nd

respondent. He pleaded that as a result of the demise of the deceased, her estate had suffered loss and damage. He therefore claimed general damages and Kshs. 52,113/- on behalf of the estate of the deceased.

3. Both the appellant and 2

nd

respondent filed separate defences. The appellant denied the claim and contended that he had carried the subject operation in a professional manner and had taken all the necessary precautions. The appellant further contended that the suit was time barred. On its part, the 2

nd

respondent denied the claim and contended that the operation had been carried out by the appellant as an independent contractor.

4. Although, the 2

nd

respondent had filed a defence, it never appeared at the trial and the suit proceeded in its absence. The trial court found the appellant and the 2

nd

respondent liable and entered judgment against them, jointly and severally, for KShs. 1,524,113/=. It is against that judgment that the appellant has now appealed to this court.

5. In his Memorandum of Appeal, the appellant set out six grounds of appeal which can be collapsed into four as follows;

that the trial court erred in holding that the 1

st

respondent had satisfied the provisions of sections 27 and 28 of the Limitation of Actions Act; that the trial court erred in holding that the 1

st

respondent had proved his case to the required standard; that the trial court erred in failing to give reasons for the award of KShs. 1,472,000/- as loss of dependency and finally; that the trial court erred in finding that the testimony of PW1 was unchallenged.

6. This being a first appeal, this court is enjoined to revisit the evidence that was before the trial court afresh, analyze it, evaluate it and arrive at its own independent findings and conclusions, but always bearing in mind that the trial court had the benefit of seeing the witnesses, hearing them and observing their demeanour and giving allowance for that. See the case of

Selle vs. Associated Motor Boat Company (1968) EA 123.

7. PW1 was Dr. Moses Njue, a Specialist Forensic Pathologist. He conducted the post mortem on the deceased at the 2

nd

respondent’s hospital on 13

th

July, 1998. He was to ascertain the cause of death. His findings were, inter alia, that the body had evidence of a recent operation; there was an 11cm incision duly sutured below the umbilical cord; on opening the body there was a collection of blood stained fluid in the chest cavity and 2 litres of blood in the peritoneal cavity. The blood vessels in the uterus were severed. He formed the opinion that the cause of death was massive blood loss occasioned by the severed left blood vessels. He produced the post mortem report as Pexh.1.

8. In cross-examination, Pw1 admitted that he did not look at the treatment notes; he had recorded the date of death as 4

th

July, 1998; he had noted the tear in the uterus where blood vessels are located and he concluded that blood clotting was not the problem. He was firm in his testimony that the blood in the chest cavity was from the capillaries caused by death agony as the deceased struggled to breath. According to him, C-Section is a simple procedure that is regularly carried out by medical officers.

9. On his part, the 1

st

respondent told the court that on 4

th

July, 1998, he took his expectant wife to the 2

nd

respondent’s facility where she was admitted. He got information on 6

th

July, 1998 that his wife had died during an operation conducted by the appellant. He was not satisfied with the explanation and he therefore sought the assistance of PW1 who conducted a post mortem on the body. PW1 informed him that the operation had been carried out negligently. He paid KShs.16,000/- for the post mortem. He also produced receipts for burial expenses all totaling KShs.45,303/-.

10. The 1

st

respondent further testified that he was attacked by Tuberculosis and was admitted at Nkubu Consolata Hospital. That in the circumstances, he was late in bringing the suit. That he had applied and obtained leave to file the suit out of time. He stated that the deceased was of good health; member No. 9321 and used to sell her coffee to Miathene/Kariati coffee factory. She died at the age of 31 years.

11. In cross-examination, the 1

st

respondent told the court that the deceased used to grow maize, beans and coffee; that he had been sick for long but had not known what he was suffering from until it was discovered that it was T.B.

12. In his defence, the appellant told the court that he was working for the 2

nd

respondent; that he saw the deceased at on 5

th

July, 1998 at 10.00 a.m. when she was in a critical condition and it was decided that she be operated; that on opening the patient, he found the baby’s head already into the pelvic; he pulled the baby but there was an accidental tear when he pulled out the baby; on repairing the incision, he noticed that the patient was still bleeding and he struggled to succeed. The patient was later taken to the ward in a semi-conscious state due to aesthesia.

13. At about 9.00 p.m., he was called when the patient’s condition started to deteriorate. All efforts to save the patient failed and the patient died on 6

th

July, 1998 at 12.50pm. He criticized the findings of Dr. Njue (PW1) as having been made without the use of the clinical notes. That it was risky to remove the uterus as proposed by PW1 as it would have involved the cutting of 4 crucial vessels; that he was not qualified to undertake a by-pass surgery. In his view, the death was as a result of leakage of amniotic fluid to the patient’s bloodstream.

14. In cross-examination, the appellant admitted that he owed a duty of care to the deceased; that he made three attempts of vaginal assisted delivery but it failed. He denied that any uterine arteries were severed. The patient lost a lot of blood than the appellant would have expected. He and DW2, the anesthetist, transfused two pints of blood while the patient was in theatre and a third one when she was in the ward. The appellant admitted that he had been fined KShs. 12,000/- by the Medical Board a decision he had not appealed against.

15. DW2 was Charles Mutembei Riara, an anesthetist. He assisted DW1 during the operation and was the one giving aesthesia; the patient recovered from anesthesia and was stable when being taken to the ward. In cross-examination, he admitted that the patient lost a lot of blood and he transfused 2 pints of blood while in theatre. A 3

rd

pint was transfused while in the ward. He later learnt that the patient had died.

16. It was submitted on behalf of the appellant that the 1

st

respondent did not prove that he was entitled to the extension of time under

sections 27 and 28 of the Law of Succession Act;

the case of

Peter Kimani Ndai & Anor v. Peter Gitau Njoroge [2008] eKLR

was cited in support of that submission. That the 1

st

respondent did not prove that the appellant was negligent and that the omitted procedure would have improved the condition of the deceased. Finally that the trial court erred in adopting a multiplicand of KShs. 8,000/-. The court was urged to allow the appeal.

17. On behalf of the 1

st

respondent, it was submitted that once leave to file suit out of time had been granted, the burden shifted to a defendant to show that such leave was not warranted. That in the instant case, the trial court was right in upholding the leave; that the testimony of Dr. Njue Pw1 proved that the appellant was negligent; finally that the awarded damages was within the acceptable limits. The cases of

Moi Teaching and Referral Hospital v. Cypril Awuor Aura [2012] eKLR and AAA v. Registered Trustees (Aga Khan University Hospital, Nairobi) [2015] eKLR

were all cited in support of the 1

st

respondent’s submissions.

18. On the first ground, it was the appellant’s contention that the trial court erred in holding that the 1

st

respondent had met the criteria set out in

sections 27 and 28 of the Limitation of Actions Act. Section 27

provides:-

“27(1) Section 4(2) does not afford a defence to an action founded on tort where-

(a) the action is for damages for negligence, nuisance or breach of duty …

(b) the damages claimed by the plaintiff for the negligence, nuisance or duty consist of or include damages in respect of personal injuries of any person, and

(c) the court has, whether before or after the commencement of the action, granted leave for the purposes of this section, and

(d) the requirements of section 2 are fulfilled in relation to the cause of action.

(2) The requirements of this section are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff ……..”.

19. From the foregoing, it is clear that the said section is applicable where the claim is for negligence, nuisance or breach of duty and that the claim consists of or includes damages for personal injuries. However, the plaintiff must prove that the material facts relating to the cause of action and of a decisive character were not within his knowledge and that he became aware of it after the limitation period had elapsed or at least within one year of lodging the suit.

20. In the present case, the claim is for negligence. It seeks damages for personal injuries. That satisfies the first part of

section 27 of the Act.

The negligent act complained off is alleged to have occurred on the 6

th

July 1998. This suit was filed on 25

th

July, 2002, about 4years and 19 days after the date the cause of action arose. The 1

st

respondent was granted leave to file suit out of time which the appellant challenged at the trial. In the case of

Oruta & Another v. Nyamato [1988] eKLR,

it was held that leave once granted under

section 28 of the Limitation Act

can only be challenged at the trial.

21. At the trial, the 1

st

respondent told the court that he had been sick of T. B and he underwent treatment for six months which prevented him from lodging the suit within time. He produced a clinic card in support of that contention. He told the Court that he had obtained leave to file suit out of time. In its judgment, the trial court held that the leave was properly obtained as the 1

st

respondent had showed that he had been seriously sick. The court took judicial notice that tuberculosis is a serious ailment which takes long to heal.

22. The 1

st

respondent’s claim was founded in negligent in terms of

section 27 of the Act.

The trial court was criticized on the ground that it did not examine whether the provisions of

sub-section 2

of that section were satisfied. That the 1

st

respondent should have demonstrated that he was not aware of the material facts relating to the case.

23. The Record shows that when the 1

st

respondent was cross-examined on why he was late in filing the suit, he stated:-

“I filed case late as I had been sick. I had T.B. I was treated for six months. I had been unwell for long but I did not know what I was suffering from. ……The main reason why I was late is that I was sick.”

The cross-examination ended there. The evidence is clear that the 1

st

respondent was unwell. That could be a disability which would entitle him to extension of time under

section 22 of the Limitation Act

. The 1

st

respondent had not sought extension of time under that section but under

section 27 of that Act

.

24. It is mandatory that the provisions of

subsection 2 of section 27

are established for the leave that was granted exparte to stand once it is challenged like in this case.

Section 27 (1) (d)

is clear that for time limitation to be suspended one of the conditions to be fulfilled is the material facts relating to the cause of action was not within the knowledge of the applicant. This the 1

st

respondent did not demonstrate.

25. It was submitted for the 1

st

respondent that once the leave was granted, the burden of proof shifted to the Appellant to prove that it had not been properly granted. The long thread of cases on this subject from

Cozens v. North Devon Hospital Management Committee and Anor [1966] 2 ALL ER 799

to

Yunes K. Oruta v. Samuel Mose Nyamato [1988] KLR 490

establish that, an objection regarding the granting of leave to file suit out of time can only be raised at the hearing of the suit. That objection was raised by the appellant and the incidence of proof shifted to the 1

st

respondent to show that he was deserving the leave he had been granted.

26. The view this Court takes is that, a Defendant can only challenge the leave at the trial by way of cross-examination on the circumstances of late filing of the case. It is only after he successfully mounts such a challenge that the incidence of proof shifts back to the Plaintiff to defend the leave obtained

exparte.

This happened in the present case but the 1

st

respondent failed to discharge that burden. Ground number 1 succeeds.

27. The next grounds are; whether the 1

st

respondent had proved his case to the required standard and whether the trial court erred in holding that the evidence of Pw1 had not been challenged. A case of medical negligence is not an ordinary case of negligence. The test to be applied is not that of an ordinary reasonable man known in law, but that of an ordinary skilled doctor or consultant in that field. A patient who approaches a doctor expects medical treatment with all the knowledge and skill that the doctor possesses to bring relief or solve the medical problem. A doctor therefore owes certain duties of care whose breach gives rise to tortious liability.

28. In the case of

Magil v. Royal Group Hospital & Another [2010] N.I QB 1

the High Court of Northern Ireland held:-

“The general principles of law applicable in clinical negligence cases are rarely in dispute in modern cases…. To all the defendants in this case, there is to be applied

the standard of the ordinary skills of a consultant, doctor or nurse as the case may be.

They must act in accordance with the practice accepted at the relevant time as preferred by a responsible body of medical and nursing opinion, see also Sidaway v. Bethlem Royal Hospital Governors [1985] 1 ALL ER 643 at 649.

The standard of care must reflect clinical practice which stands up to analysis and is not unreasonable.

It is for the court, after considering the expert evidence whether the standard of care afforded the deceased put him at risk”.

(Emphasis added).

29. In

Pope John Paul’s Hospital & Another v. Baby Kasosi [1974] EA 221

, the East African Court of Appeal held:-

“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 defence a degree of care as normally skillful member of the profession may reasonably be expected to exercise in the actual circumstances of the case.……

The professional must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.

In cases charging medical negligence, a court should be careful not construe everything that goes wrong in the cause of medical treatment as amounting to negligence. … They must insist on due care for the patient at every point, but must not condemn as negligence that which is only a misadventure. To the extent of not confusing negligence with misadventure, clear proof of negligence is necessary in cases involving medical men, but it cannot be accepted that the burden of proving such negligence is higher than in ordinary cases.

The burden is to prove that the damage was caused by negligence and was not a question of misadventure, and that burden must be discharged on a preponderance of evidence”.

(Emphasis supplied).

30. In this case, the evidence on record was that the deceased was admitted to the 2

nd

respondent’s facility for delivery of her 4

th

child. She had had three previous normal deliveries. The appellant was called to attend to her. That when virginal assisted delivery failed, the appellant decided that caesarian section be undertaken. That the child was successfully extracted. However, the deceased developed complications from which she died.

31. According to Pw1, a Consultant Pathologist, when he performed postmortem on the body, he found a collection of blood-stained fluid in the chest cavity and 2 litres of blood in the peritoneal cavity. He concluded that the cause of death was excessive bleeding occasioned by severed left blood vessels. He explained that the blood-stained fluids in the chest cavity meant that the deceased bled profusely and went into agonal breathing as the heart started to stop. That the fluids are collected as the small veins rupture, hence the blood-stains.

32. On his part, the appellant told the court that after making the incision on the uterus, he saw that the baby’s head was already into the pelvic. He pulled out the baby but there was an accidental tear. According to him, that was a usual happening. He identified the bleedings and dipped them through suturing. The patient was released to the ward semi-conscious after about 3 hours in theatre. The patient developed complications and died later. That he administered three pints of blood on the patient. That he could not return the patient to the theatre to reopen the uterus because there was no blood in the hospital.

33. PW1 told the court that it was not usual to severe blood vessels during a caesarean section. That assertion was not challenged. He told the court that the remedial measures that would have been undertaken were, either the removal of the uterus, which is the most common practice in Kenya for lack of good and effective technology or to undertake a by-pass. That testimony of PW1 was not challenged.

34. Evidence of a witness is usually challenged when doubt is cast on the truthfulness, probability or otherwise of his evidence. This is usually done through making suggestions to a witness about other possibilities other than his own version or conclusions. When such possibilities are elicited from a witness, it is then said that his evidence is shaken or challenged.

35. This was not the case with Pw1. Indeed, when the appellant took the stand, he tried to explain as to what in his view may have been the cause of death, amniotic fluid embolism. This was neither suggested nor put to PW1 for his opinion or to shake his firm findings as to the cause of death.

36. The appellant explained that he could not undertake any of the available alternatives suggested by PW1 because the 2

nd

respondent’s facility lacked blood. If that was the case, why was the deceased not transferred to another facility that would have had blood for the deceased to be returned to theatre. This was a possibility that was never considered. Probably, the internal bleeding would have been arrested and probably avert the death. Neither, the appellant nor the 2

nd

respondent contacted the 1

st

respondent about the serious condition of the deceased. Probably he would have advised for her to be transferred to another facility. By holding into the deceased until her final demise, the appellant and 2

nd

respondent failed in their duty of care to the deceased.

37. Accordingly, the appellant and the 2

nd

respondent were negligent. The trial court cannot be faulted for finding the two jointly and severally liable. Accordingly, the two grounds fails.

38. The last ground was that the trial court erred in failing to give reasons for the award of Kshs. 1,472,000/-. The trial court found that there was evidence that the deceased carried some farming which gave her some income. The trial court quite correctly observed that there was no documentary proof of earnings but nevertheless assessed her contribution and therefore loss of dependency at Kshs.8,000/- per month.

39. The 1

st

respondent’s unchallenged testimony was that the deceased was a farmer, a mother and a wife. She used to sell her own coffee to Miathini/Kariati factory. He produced as Pexh 9, her membership card. She also had some cows. She was also looking after her family which was lost upon her demise. Surely, she was of help to her family. In our own Kenyan rural set up, to expect that our rural folk will meticulously keep records of their income will be unrealistic.

40. The law must be applied with socio-political and economic context within which those it affects operate in mind. One cannot be said to have contributed absolutely nothing yet she has a family to take care of, just because there is no documentary proof of her income. To my mind, the figure of KShs.8,000/- per month is a reasonable figure. The multiplicand of 23 years is also reasonable. In the circumstances, I find no merit in that ground and the same is hereby dismissed.

41. Accordingly, since the appellant has succeeded in ground 1, the appeal is allowed. In the circumstances of this case I will order that each party bears own costs.

DATED

and

DELIVERED

at Meru this 7

th

day of December, 2017.

A. MABEYA

JUDGE