[2017] KEHC 1409 (KLR)

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....1ST RESPONDENT

TIGANIA MISSION HOSPITAL

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

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

dated 3rd June, 2015 in Meru CMCC No. 475 of 2002 between

FrancisMuriira 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 16th June 2009, the 1st respondent sued both the appellant and the 2nd 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 2nd respondent were negligent in carrying out caesarean section on the deceased as a result of which she died.

2. The 1st respondent set out a total of nine particulars of what he considered to be the negligence of the appellant and the 2nd 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 2nd 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 2nd respondent denied the claim and contended that the operation had been carried out by the appellant as an independent contractor.

4. Although, the 2nd 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 2nd 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 1st 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 1st 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 2nd respondent’s hospital on 13th 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 4th 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 1st respondent told the court that on 4th July, 1998, he took his expectant wife to the 2nd respondent’s facility where she was admitted. He got information on 6th 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 1st 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 1st 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 2nd respondent; that he saw the deceased at on 5th 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 6th 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 3rd 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 1st 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] eKLRwas cited in support of that submission. That the 1st 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 1st 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 1st respondent’s submissions.

18. On the first ground, it was the appellant’s contention that the trial court erred in holding that the 1st respondent had met the criteria set out in sections 27 and 28 of the Limitation of Actions Act. Section 27provides:-

“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 6th July 1998. This suit was filed on 25th July, 2002, about 4years and 19 days after the date the cause of action arose. The 1st respondent was granted leave to file suit out of time which the appellant challenged at the trial. In the case ofOruta & Another v. Nyamato [1988] eKLR, it was held that leave once granted under section 28 of the Limitation Actcan only be challenged at the trial.

21. At the trial, the 1st 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 1st 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 1st 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 1st respondent should have demonstrated that he was not aware of the material facts relating to the case.

23. The Record shows that when the 1st 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 1st respondent was unwell. That could be a disability which would entitle him to extension of time under section 22 of the Limitation Act. The 1st 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 1st respondent did not demonstrate.

25. It was submitted for the 1st 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 799to 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 1st 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 1st respondent failed to discharge that burden. Ground number 1 succeeds.

27. The next grounds are; whether the 1st 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 2nd respondent’s facility for delivery of her 4th 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 2nd 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 2nd respondent contacted the 1st 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 2nd respondent failed in their duty of care to the deceased.

37. Accordingly, the appellant and the 2nd 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 1st 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 7th day of December, 2017.

A. MABEYA

JUDGE