https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/363

JM (Mother to MAB (Minor)) v Wesu Sub-County Hospital & another (Civil Suit E014 of 2025) [2026] KEMC 363 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEMC 363 (KLR) Republic of Kenya In the Voi Law Courts Civil Suit E014 of 2025 TN Sinkiyian, PM July 30, 2026 Between JM (Mother to MAB (Minor)) Plaintiff and Wesu Sub-County Hospital 1st Defendant Ministry of Health County Government of Taita Taveta 2nd Defendant Judgment Background 1.This court heard this matter on 5/6/2025 and 30/10/2025 formal proof before the magistrate herein was transferred on 12/1/2026 to Mariakani Law Courts. Parties were referred to this court on 30/4/2026 for Judgment to be reserved by this court. The matter was reserved for judgment: 24/6/2026 at 2.30pm. 2.The summary of evidence as given in plaintiffs submissions is a precise summary of the evidence on record. 3.The plaintiff in submissions dated 17th November 2025, lodged through Ronald Kai & Co. Advocates Advocates For The Plaintiff submits for consideration proposals on award as follows:General damagesI. Pain and suffering-kshs.12,000,000.00/-; II. Future medical expenses i. -(physio therapy @2,000.00 per day for 18years) =kshs.8,640,000.00 as per the doctor; Special damages: i. For medical report Kshs. 2,000.00 /= ii. For doctor’s expenses kshs.7,000.00/-; and on Loss of earning capacity and Costs of the suit and interest. 4.Following the High Court decision: Ruling by the High Court Voi of 21/7/2026 (Hon. A. Mshila, Judge), setting aside the Ruling of 24/6/2026 setting aside this court's ruling of 24/6/2026, this court hereby proceeds to consider the issue of quantum of damages within this court’s pecuniary limits. 5.2nd witness PW2 doctor Ajoni Adede testified and produced the medical report dated the 18th December 2024 that he prepared upon examining master Andrew. He tendered a receipt for kshs.2,000/= and testified that he was paid Kshs.7,000/= for attendance. 6.Doctor Adede MB, Ch B, PGD testified on 30/10/2025 and produced the medical report dated 18/12/2024 medical report prepared by Dr. Ajoni Adede dated 18th December 2024, produced as exhibit 7 together with treatment notes from Wesu sub County Hospital, Moi Voi Hospital and Coast General Hospital prove the severe injuries the plaintiff suffered;-a) Amputation on the right upper limb b) Tourniquet blood obstruction c) Injury to the upper right limb (d) Development of dry gangrene on the right upper limb. 7.Dr. Ajoni Adede (Gama Medical center) examined the minor Andrew and considered the treatment documents availed to him and saw a 10 cm stump on the right upper limb. The minor had undergone above the elbow amputation at Coast General Hospital. He ascertained from the medical documents from Wesu sub county hospital, Moi County referral hospital and Coast General Hospital that the minor as a new born on 21/1/2024 was applied a tourniquet at the arm pit area axilla: a strap was tied at the area to obstruct follow of blood temporarily for an intravenous cannula insertion, and the said strap was forgotten for over 24 hours on the arm. As a result of the strap being left untied, blood flow was obstructed and the minor's arm swelled, darkened and lost pulse and dry gangrene developed. Dr. Adede concluded that the minor had undergone amputation above the elbow right upper limb. From the medical documents he considered he confirmed the tourniquet was applied at Wesu sub county hospital where the minor was admitted there from birth, and as far as the mother PW 1 was concerned, the child was not sick. The birth was through normal delivery. 8.The minor at WESU sub–County Hospital, admitted for 7days, and then sent to MOI County referral Hospital Voi on 30/1/2024. The minor was then referred to Coast General Hospital where he was admitted for 20 days. The diagnosis at Coast General was that the minor required above elbow amputation to be done given the dry gangrene developed on that limb. 9.Dr. Ajoni Adede testified that he examined the minor who only had a 10cm stump on the right limp. He confirmed from the medical documents availed to him that the minors right limp was amputated following his right limp developing gangrene. Dr. Adede testified that a medical procedure tourniquet had been done on the minor, he explained the procedure as placing of a rubber band to restrict blood flow temporarily, and stated that it appeared that in Baraka’s case the band was forgotten, and therefore blood flow to the limp was obstructed leading to the limp developing gangrene. The tourniquet was done at WESU sub County Hospital, Moi Voi Hospital. The amputation was done at Coast General hospital. In his assessment Dr. Adede testified that the minor had suffered a 50% permanent disability as a result of his right limp being amputated at barely 11months of age. In his medical opinion as a medic with 36years experience Dr. Adede testified that failure to remove the band from the minor's limp was medical negligence. 10.PW 1 mother of the minor Jennifer testified on 5/6/2025 was overwhelmed by grief as she testified adopting her witness statement dated 30/1/2025 as her testimony, which details that on or about 21/1/2024, she delivered a boy as shown in certificate of birth certificate produced as plaintiff’s exhibit 1. She delivered normal delivery. She saw canula but was not aware of any ill health.On 28th and 29th January 2024, baby developed complications where the right upper limb of the baby began swelling and darkening. Treatment notes from WESU Hospital were produced as plaintiff’s exhibit no.3 a,b. Her statement on the unfortunate events the forgotten tourniquet, referral to Moi County Referral Hospital-Voi later to the Coast General and Teaching Referral Hospital, Mombasa for the minor's treatment are corroborated by the evidence given by Dr. Ajoni Adede who considered medical treatment notes from Wesu Sub county hospital and from Moi county referral hospital. Minor was admitted at Moi County and referred to Coast General on the 31/1/2024. Minor's treatment notes from Coast General Hospital Mombasa County produced as plaintiff’s exhibit no.3c). PW 1 produced photos of Master Andrew as plaintiff’s exhibit no.6. 11.Analysis And Findings: This court is satisfied having heard Dr. Adede and the child's mother and upon considering the plaintiff's submissions that the minor Baraka was severely injured as a result of medical negligence. The attending doctors/nurses at Wesu Sub county hospital were negligent in their failure to remove the band after the tourniquet was applied on 21/1/2024 on the new borns axilla (armpit), canula insertion done. 12.This court finds the attending medics breached their professional duty of care and as a result the minor suffered an injury that he would not have suffered had the medics been diligent in rendering service to the minor. 13.This court finds the plaintiff's case is uncontroverted given that the defendants did not defend the case despite due service. 14.The only question for determination in this matter is the quantum of damages that the minor is entitled to given that there is an interlocutory judgment entered against the defendants on 15/5/2025 for failing to appear and defend the suit. 15.On the question of liability for medical negligence this court finds merit in the plaintiff’s evidence and submissions. Particulars of negligence are set out under paragraph 9 of the Plaint dated 30/1/2025 as are the injuries suffered by the minor; loss and special damages. 16.Leaving a strap on a newborn for 24 hours is an act not capable of explanation other than that the attending nurse/doctor was careless in the manner they cared for the minor. The standard of care the hospital employed in care of the minor was negligent. The attending doctors/nurse breached duty care and as result of the breach the minor suffered immensely; the right limp developed dry gangrene due to the tourniquet injury. The minor had to undergo surgery to have the damaged limb amputated above the elbow. 17.The court agrees with the plaintiff's submissions and finds the plaintiff’s case is proved as required in law. The court finds that the hospital WESU Sub county hospital and the Ministry of Health, County Government of Taita Taveta, vicariously liable for medical negligence of the staff of the hospital who were negligent in the care of Master Andrew. 18.On Quantum: plaintiff seeks Kshs. 12 million on general damages ,for pain suffering and loss of amenities and a further medical Kshs. 8,640,000/= for Future medical expenses: set out physio therapy Kshs.2,000/= per day for 18years) =Kshs.8,640,000/= as per the doctor's report; special damages kshs. 2,000/= for medical report and Kshs. 7,000/= for doctor's court attendance. 19.The nature of injuries suffered by the minor as pleaded under paragraph 9 of the plaint are proved as pleaded vide exhibit 7 medical report by Dr. Ajoni Adede upon exam of master Andrew confirmed the amputation done on the minor's right upper limb left him with a 10 cm stump only above the elbow. He assessed the injury had left the minor with a 50% permanent partial disability as a result of his right limp being amputated at barely 11months of age. He assessed the degree of disability considering that the minor: as result of the amputation faced future reduced earning capacity to work and earn; future increased dependence, social stigma, difficulty self grooming. And he would require future medical interventions: a prosthesis for the right upper limb and due to his age it would require replacement every 5 years initially until he reaches 18 years to accommodate the minor's growth. Then after 18years replacement of the artificial limb would be required every 15 years, with 3 year interval servicing of the screws. He estimated costs Kshs. 450,000/= for artificial limb at APDK Mombasa and service at Kshs. 7500/= after every 3 years. He recommended that from 5years of age, the minor can reasonably start training on use of an artificial limb. 20.Definitely as a result of the hospital's negligence, master Andrew faces more tough challenges for a child his age than he would have faced ordinarily without the disability. 21.The decisions cited in support of award of Kshs.12,000,000/= proposed by the plaintiff general damages head (pain and suffering) Nthuci v Kenya Power & Lighting Company Limited (Civil Suit E001 of 2022) [2024] KEHC 1387 (KLR) (14 February 2024) (Judgment)Neutral citation: [2024] KEHC 1387 (KLR) is relevant in the circumstances of this case. Lady Justice on 14th February, 2024 L. Njuguna awarded upon finding the defendant 100% liable for the accident awarded among other awards the plaintiff General damages for pain and suffering and loss of amenities of Kshs. 4,000,000/= with interest from the date of judgment until payment in full and Kshs. 10,000,000/= for future medical expenses. In paragraph 17 of the decision the Judge summed up the injuries suffered by the plaintiff and upon considering awards in cases involving comparable injuries, awarded the plaintiff an award of Ksh. 4,000,000/= general damages for pain and suffering and loss of amenities. The judge took into account that the left upper limb was severed above the elbow; numerous surgery for debridement and skin grafting on the stump of the severed limb, as shown by the medical report produced: the plaintiff was assessed to have suffered grievous harm; with 80% permanent disability. As a result the plaintiff needed a myoelectric prosthesis, which the doctor recommended one with components: socket, sensor, terminal hooks and cables, at a cost of Kshs. 10,000,000/= with annual cost of maintenance approximated Kshs. 100,000/=. The judge additionally awarded the plaintiff Kshs. 10,000,000/= for future medical expenses. 22.The awards sought by the plaintiff are therefore not unfounded in the circumstances of this case and considering the relevant authorities cited. The question of quantum in this case must be looked at within the principal magistrates court pecuniary limit: Kshs. 10,000,000/= only. 23.Doctor Adede MB, Ch B, PGD testified on 30/10/2025 and produced the medical report dated 18/12/2024 medical report prepared by Dr. Ajoni Adede dated 18th December 2024, produced as exhibit 7 together with treatment notes from Wesu sub County Hospital, Moi Voi Hospital and Coast General Hospital prove the severe injuries the plaintiff suffered;-a) Amputation on the right upper limb b) Tourniquet blood obstruction c) Injury to the upper right limb (d) Development of dry gangrene on the right upper limb. Dr. Ajoni Adede (Gama Medical center) examined the minor Andrew and considered the treatment documents availed to him and saw a 10 cm stump on the right upper limb. The minor had undergone above the elbow amputation at Coast General Hospital. He ascertained from the medical documents from Wesu sub county hospital, Moi County referral hospital and Coast General Hospital that the minor as a new born on 21/1/2024 was applied a tourniquet at the arm pit area axilla: a strap was tied at the area to obstruct follow of blood temporarily for an intravenous cannula insertion, and the said strap was forgotten for over 24 hours on the arm. As a result of the strap being left untied, blood flow was obstructed and the minor's arm swelled, darkened and lost pulse and dry gangrene developed. Dr. Adede concluded that the minor had undergone amputation above the elbow right upper limb. From the medical documents he considered he confirmed the tourniquet was applied at Wesu sub county hospital where the minor was admitted there from birth, and as far as the mother PW 1 was concerned, the child was not sick. The birth was through normal delivery. The minor at WESU sub–County Hospital, admitted for 7days, and then sent to MOI County referral HOSPITAL Voi on 30/1/2024. The minor was then referred to Coast General Hospital where he was admitted for 20 days. The diagnosis at Coast General was that the minor required above elbow amputation to be done given the dry gangrene developed on that limb. Dr. Ajoni Adede testified that he examined the minor who only had a 10cm stump on the right limp. He confirmed from the medical documents availed to him that the minors right limp was amputated following his right limp developing gangrene. Dr. Adede testified that a medical procedure tourniquet had been done on the minor, he explained the procedure as placing of a rubber band to restrict blood flow temporarily, and stated that it appeared that in Baraka’s case the band was forgotten, and therefore blood flow to the limp was obstructed leading to the limp developing gangrene. The tourniquet carelessly left untied for 24 hours must have occasioned the minor untold pain, the trauma of which only time will reveal. Physically the limb was swollen, darkened and it lost pulse due to tourniquet blood obstruction on the upper right limb; dry gangrene developed and treatment under inpatient care was long: 7 days at Wesu Sub County, 1 day at Moi County referral and 20 days at Coast General where the amputation was done. Thus other than pain of the injury the minor suffered also the pain of enduring treatment necessitated by the avoidable mistake of the medics. However this court cannot make an award exceeding this court’s pecuniary limit under Magistrates Court Act 2015, for Principal Magistrate Kshs. 10,000,000/-. This court applies the High Court decision and awarded the plaintiff Kshs. 4,000,000/= general damages, pain, suffering and loss of amenities. 24.In the circumstances the court wards plaintiff Kshs. 4,000,000/= general damages for pain, suffering and loss of amenities. 25.Special damages pleaded were proved: For medical report Kshs. 2,000/= and court awards that with interest from 30/1/2025 date of suit until paid in full. 26.Dr. Adede assessed costs likely to be incurred in purchase of artificial future medical expenses to Kshs. 450,000/= at intervals of 5years, that from 5th year the minor can be trained on using an artificial limb prosthesis. After the minor reaches 18years, replacement of the artificial limb can be done after every 15years, with 3 year intervals of servicing. Servicing the screws contained in a prosthetic limb will cost about Kshs.7,500/=. 27.Working with year 5, as the 1st instance of use of a prosthetic limb, 5th year being for training, with replacements at years 10th, 15th, and 20th, the 15yearly intervals up to 60th year, this at cost of Kshs. 450,000/= which is likely to soar with inflation, court awards Kshs. 4,000,000/= for future medical expenses towards prosthetic limb and reasonable service costs. 28.Reduced earning capacity was pleaded as relief sought. This court believes master Andrew’s ability to productively carry out ordinary life activities and eventually earn a living has been hampered by the loss of his right limb. The court awards plaintiff Kshs. 1,898,000/= compensation for diminished earning capacity. 29.As recommended by Dr. Adede the plaintiff should consider having the minor registered as a person living with disabilities with the relevant body to give him such opportunities taking into account his state. 30.Costs of suit: Defendants were duly notified of intention to file this suit vide a demand notice dated 4th day of September 2024 and received by the hospital on the 12th day of September 2024 Plaintiffs exhibit. Defendants received the demand letter on 13th and 12th September 2024 respectively. The plaintiff is awarded costs of suit as against the defendants.The defendants shall bear the plaintiff's costs of the suit. Interest shall accrue from the date of judgment until paid in full at court rates. 31.Judgment is entered in favour of the plaintiff against the defendants jointly and severally for the awards above stated: General damages for pain, suffering and loss of amenities Kshs. 4,000,000/=, reduced earning capacity Kshs. 1,898,000/= and future medical expenses Kshs. 4,000,000/= shall earn interest court rates from the date of the judgment until paid in full. Special damages Kshs.2,000/= to earn interest from 30/1/2025 date of suit until paid in full. Costs of suit awarded to plaintiff. Appeal as prescribed to High Court Voi. JUDGMENT DATED, SIGNED & DELIVERED THIS ……30TH ……. DAY OF …JULY 2026T.N. SINKIYIANPRINCIPAL MAGISTRATEIn presence of:For plaintiff:Mr.Kai: presentRonald Kai & Co. AdvocatesBoth defendants: AbsentCourt assistant: Wesonga Michael (Mariakani Law Courts)