https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9762

Mutuku (Suing as the Administrator of the Estate of Francis Mwanza Mulwa) v Maranai t/s Pharmaplus Pharmaceuticals Ltd (Civil Appeal E329 of 2023) [2026] KEHC 9762 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 9762 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E329 of 2023 AN Ongeri, J June 12, 2026 Between Caroline Nzilani Mutuku (Suing as the Administrator of the Estate of Francis Mwanza Mulwa) Appellant and Vincent Maranai t/s Pharmaplus Pharmaceuticals Ltd Respondent (Being an Appeal from the Judgement of HON. M.A. OTINDO (PM) in MACHAKOS CMCC NO. 414 of 2020 delivered on 6/12/2023) Judgment 1.In this judgment delivered by the Chief Magistrates Court at Machakos, the appellant, Francis Mwanza Mulwa, brought a suit against the respondent, Vincent Marinai trading as Pharmaplus Pharmaceuticals Limited, and Pharmaplus Pharmaceuticals Limited itself, claiming general, exemplary, and special damages together with costs of the suit. 2.The appellant’s cause of action arose from allegations that the respondent had negligently dispensed expired drugs, specifically Nitrocontin 2.6mg, which the appellant had purchased on two occasions in June 2020 and July 2020 from the respondent’s outlet at Gateway Mall in Syokimau. 3.The appellant claimed that the respondent had concealed the expiry date on the medicine bottles by covering it with a price sticker, and that as a result of consuming or being exposed to expired medication, the appellant suffered mental anguish and trauma. 4.The trial court, having considered the amended plaint filed on 22nd September 2020, the defence filed on 16th October 2020, and the evidence adduced by both parties including testimony from the pharmacist who dispensed the medicine in July 2020, made several factual findings. 5.The court noted that it was undisputed that the appellant had purchased medicine from the respondent on 21st July 2020, as evidenced by a receipt exhibited as PEX 1, and that the drug dispensed on that date had indeed expired. 6.It was also undisputed that the appellant’s daughter returned the unused bottle to the pharmacy, whereupon the respondent offered to replace the medicine or refund the purchase price, but the appellant declined that offer. 7.The respondent had assured the appellant at the time of return that the medicine was still usable for a period of three months after the expiry date, though no pharmaceutical regulations were placed before the court to support that assertion. 8.However, the trial court found that the appellant failed to prove the alleged purchase in June 2020, as no receipt or other evidence was produced. 9.Applying section 107 of the Evidence Act which places the burden of proof on the party alleging a fact, the court ruled that the respondent had not dispensed any medicine to the appellant in June 2020, and therefore no duty of care arose from that alleged transaction. 10.Regarding the July 2020 purchase, the court affirmed that the respondent, having held itself out as possessing special skill and knowledge in dispensing prescription drugs, owed the appellant a duty of care, citing the principle from R v Bateman (1925) that a person who undertakes treatment owes a duty to use diligence, care, knowledge, skill, and caution. Nevertheless, the court found that the respondent did not breach that duty. 11.The court stated that the respondent’s conduct in offering to replace the expired medicine or refund the price demonstrated that the respondent cared for the appellant, and that a breach would have occurred only if the respondent had refused to take back the medicine. 12.Finally, on the claim of mental anguish and trauma, the court held that the appellant had not provided any medical report or other proof to support the assertion of emotional suffering, and thus on a balance of probabilities the appellant had not persuaded the court that any harm was suffered. 13.The trial court therefore ruled in favor of the respondent, finding no liability, and effectively dismissed the appellant’s suit. 14.The appellant appealed against the said judgment on the following grounds;i.That the Learned Principal Magistrate erred in both law and fact by failing to allow the Plaintiff’s claim, either as prayed or to the extent prayed.ii.That the Learned Principal Magistrate erred in both law and fact by failing to note and appreciate that the appellant had proved his case on a balance of probability and proceeded to decide against the weight of evidence.iii.That the Learned Principal Magistrate erred in both law and fact by failing to note and appreciate that the appellant’s evidence had not been rebutted and that the respondent had offered no logical or valid defence.iv.That the Learned Principal Magistrate erred in both law and fact by dismissing the appellant’s claim when the same had not been disputed because the respondent had admitted the claim.v.That the Learned Principal Magistrate erred in both law and fact by failing to note and appreciate that the appellant bought expired drugs with the respondent’s full knowledge, and that fact alone sufficed to decide in favour of the appellant.vi.That the Learned Principal Magistrate erred in both law and fact by failing to give a proposal of an award in the event the Plaintiff had won the case. 15.The parties filed written submissions as stated below. 16.The appellant, Caroline Nzilani Mutuku (suing as administrator of the estate of Francis Mwanza Mulwa), submitted that she appeals against the judgment of the Machakos Principal Magistrate’s Court delivered on 6 December 2023 in Civil Case No. E414 of 2020. 17.The appellant narrows the six original grounds of appeal to a single issue: whether the appellant proved her case on a balance of probabilities. 18.The appellant argues that the evidence clearly established that the respondents sold expired prescription medicine, specifically Nitrocontin 2.6mg 25’s, to the deceased on two separate occasions in June and July 2020 at their pharmacy outlet in Gateway Syokimau. 19.The appellant testified that the deceased, a regular customer undergoing serious treatment for a heart ailment at Coptic Hospital, removed the price sticker out of curiosity and discovered the drugs had expired by the end of May 2020, with the same lot number appearing on both bottles. 20.During cross-examination, the respondents admitted selling expired medicine and wrote an apology letter dated 10 August 2020 acknowledging liability, which the trial court noted was undisputed by the defence. 21.The appellant contends that the respondents or their employees knowingly and intentionally dispensed expired drugs, exposing the deceased to health risks and possible poisoning, and causing mental anguish and trauma. 22.In their defence, the respondents claimed that a different lady had purchased the expired drugs and asserted that it is permissible in pharmaceutical practice to sell drugs within three to six months after their expiry date without posing a threat to consumers—an assertion the appellant disputes as having no legal basis. 23.The appellant’s case is founded on medical negligence, with pleaded particulars of negligence, seeking damages for emotional pain, distress, psychological damage, physical incapacity, special damages for the cost of the expired drugs, and costs of the suit. 24.Citing case law such as LWW (Suing as the Administrator of the Estate of BMN) Deceased v Charles Githinji and Ricarda Njoki Wahome v Attorney General & 2 Others, the appellant submits that the elements of negligence, duty of care, breach of that duty, and resultant injury, are satisfied. 25.The appellant argues that the duty of care arose when the respondents agreed to dispense prescription medication for the deceased’s serious heart condition. 26.The appellant relies on Sections 8 and 9 of the Food, Drugs and Chemical Substances Act, which criminalise selling adulterated drugs or drugs labelled in a false, misleading, or deceptive manner, arguing that these provisions impose a statutory and fiduciary duty to sell only drugs fit for human consumption. 27.The appellant points to the respondents’ own apology letter dated 10 August 2020 as an admission that they acted without care and recklessly, thereby breaching their duty of reasonable care and skill. 28.Citing R. v. Bateman, the appellant submits that a person who holds himself out as possessing special skill owes a duty to the patient to use due caution, and here the respondents failed to exercise any reasonable care, placing the deceased in grave danger. 29.The appellant therefore urges the court to find that the case was proved on a balance of probabilities and to allow the appeal. 30.The Respondents submitted that they oppose the Appellant’s appeal, which arose from a suit claiming that the Respondents dispensed expired medicine in June 2020, causing mental anguish and trauma 31.They further submitted that;i.The trial court correctly found that the Appellant failed to prove her case on a balance of probabilities.ii.The Appellant could not produce a receipt to prove she purchased the medicine from the Respondents in June 2020.iii.The Appellant could not identify batch numbers on the alleged medicine bottle or properly identify photographic and physical exhibits she produced in court.iv.The Appellant admitted to returning an unopened bottle of the medicine to the Respondents in July 2020.v.The Appellant failed to establish the essential elements of negligence: a duty of care, breach of that duty, causation, and actual damage.vi.The Appellant confirmed under cross-examination that the medicine had not been consumed.vii.The Appellant failed to produce any medical report to prove the alleged injuries, mental anguish, or trauma.viii.Without proof of causation or actual harm, the Appellant is not entitled to general or exemplary damages.ix.The appeal raises no compelling reason for the appellate court to interfere with the trial court’s factual findings.x.The trial magistrate properly analyzed the evidence and applied the correct legal principles. 32.The Respondents conclude that the appeal is devoid of merit and should be dismissed with costs. 33.The issues for determination in this appeal are as follows;i.Whether the appellant established that the respondent dispensed expired medication to the deceased in June 2020;ii.Whether the respondent breached its duty of care by dispensing expired prescription medication in July 2020; andiii.Whether the appellant proved that the deceased suffered actionable injury, harm, or mental anguish as a result of the respondent's actions to warrant an award of damages. 34.It is a well-settled principle that an appellate court will not lightly interfere with a trial court’s findings of fact unless they are based on no evidence, are misdirected, or are demonstrably wrong, as guided by the Court of Appeal in Peters v Sunday Post Limited [1958] EA 424. 35.Regarding the first issue, Section 107 of the Evidence Act (Cap 80) explicitly places the burden of proof on the party who alleges a fact. 36.The appellant failed to produce any receipt, batch number, or documentation linking the respondent to a sale of medicine in June 2020. 37.Consequently, the trial court properly held that no transaction was established for that month and no duty of care arose, a position supported by Hahn v Singh [1985] KLR 716, which dictates that he who alleges must prove. 38.Concerning the July 2020 transaction, the facts present a clear deviation by the trial court from established principles of medical negligence. 39.A pharmacy holding itself out as an expert in dispensing medications owes a strict duty of care to its customers. 40.Selling a prescription drug for a critical cardiac ailment that has already reached its expiry date, and masking that expiry date with a price sticker, constitutes a blatant breach of that duty of care. 41.The trial court's reasoning that the respondent's subsequent offer to replace the drugs or refund the money cured the breach is legally flawed. 42.A breach occurs at the point the substandard or dangerous service is rendered. 43.Furthermore, under Sections 8 and 9 of the Food, Drugs and Chemical Substances Act (Cap 254), it is a statutory offence to sell expired or deceptively labeled drugs. 44.Where a statutory duty meant for the safety of a class of persons is breached, it constitutes negligence per se. 45.The respondent’s apology letter dated 10 August 2020 further served as an un-rebutted admission of this negligence. 46.Therefore, the trial court erred in finding that no breach of duty occurred. 47.However, establishing a breach of duty is only one part of a negligence claim and the appellant must also satisfy the crucial elements of causation and damage. 48.Negligence is not actionable without proof of actual loss or injury flowing directly from the breach. 49.The evidence on record indicates that the July 2020 medicine bottle was returned unopened and was never consumed by the deceased. 50.To sustain a claim for general damages for mental anguish, trauma, or psychological distress, there must be tangible proof of such injury. 51.Claims for psychological trauma and mental suffering must be supported by medical or psychiatric evidence showing a recognizable psychiatric injury, rather than mere hurt feelings or anxiety. 52.The appellant did not present any medical report or expert testimony to show that the deceased suffered any physical or verifiable psychological harm due to the discovery of the expired medicine. 53.Speculation regarding potential poisoning or prospective health risks cannot substitute for concrete evidence of injury. 54.Consequently, because no actual damage or injury was proved on a balance of probabilities, the claim for general and exemplary damages must fail. 55.The appeal is therefore dismissed on the ground of failure to prove injury, and the trial court's final decree dismissing the suit is upheld. 56.Each party to bear its own costs of this appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026ASENATH N. ONGERIJUDGEIn the presence ofNo appearance for the AppellantNo appearance for the RespondentChrispin - Court Assistant