[2025] KEHC 1262 (KLR)

Mediplan Limited & another v MTN & 2 others (Civil Appeal E851 & E842 of 2023 (Consolidated)) [2025] KEHC 1262 (KLR) (Civ) (23 January 2025) (Judgment)

Neutral citation: [2025] KEHC 1262 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E851 & E842 of 2023 (Consolidated)

JN Njagi, J

January 23, 2025

Between

Mediplan Limited

Appellant

and

MTN

1st Respondent

Britam Life Assurance Co. (K) Ltd

2nd Respondent

As consolidated with

Civil Appeal E842 of 2023

Between

Britam Life Assurance Company (K) Limited

Appellant

and

MTN

1st Respondent

Mediplan Limited

2nd Respondent

(Being an appeal from the judgment of Hon. Wendy Micheni, Chief Magistrate, in Milimani MCC No. E6178 of 2020 delivered on 28/7/2023)

Judgment

1. The 1st respondent herein had taken out insurance policies with the 2nd respondent company. The 2nd respondent referred her to the appellant for a medical test before the policies could be approved. The 1st respondent presented herself at the appellant`s clinic where blood samples were taken from her for the purpose of conducting the required tests. The appellant conducted the test and sent the results to the 2nd respondent. The agent for the 2nd respondent who was dealing with her case approached her and asked her to top up her premium because one of her tests had some issues. The agent refused to disclose to her what the issue was. The 1st respondent and the said agent proceeded to the offices of the appellant where a member of staff of the appellant informed the 1st respondent that her HIV test had turned out positive. It is the said results that had been sent to the 2nd respondent. The staff member went on to counsel the 1st respondent on how to accept the results and to live positively. The 1st respondent disputed the results and demanded for a second test that was done and turned out negative. Later the 1st respondent did another test at Agha Khan Hospital and it also turned out negative. The 1st respondent sued the appellant and the 2nd respondent claiming general damages, aggravated damages and special damages for the trauma and anguish occasioned to her by the false results.

2. Both the appellant and the 2nd respondent denied the claim. The 2nd respondent pleaded that the appellant when conducting the test on the 1st respondent on their behalf was acting as an independent contractor and they were therefore solely liable for any damage occasioned to the 1st respondent. The appellant on the other hand pleaded that the laboratory tests as conducted were negative but that when the same were being typed they were mistakenly typed as “positive”. That this was a typing error for which they were not liable.

3. Upon hearing the case, the trial court found both the appellant and the 2nd respondent liable and apportioned liability among them in the ratio of 70% for the appellant and 30% for the 2nd respondent. The court awarded the 1st respondent Ksh.1,000,000/= in general damages. Both the appellant and the 2nd respondent were aggrieved by the judgment and lodged two separate appeals. The appeal herein was taken as the lead file.

4. The grounds of appeal for the appellant herein are that:1)That the learned Trial Magistrate erred in law and fact by failing to properly scrutinize and evaluate the evidence tendered by the Appellant in court and correctly related the same to the case law cited in court thereby failed to arrive at a fair and reasonable assessment on the issue of liability and quantum.2)That the learned Trial Magistrate erred in law and fact in deciding the case against the weight of evidence on record and apportioning liability against the Appellant and setting an extreme standard of liability in medical practice.3)That the Trial magistrate erred in law and fact by holding the Appellant liable without any proof or evidence of collusion between the Respondents.4)That the Trial magistrate erred in law and fact in making an award on quantum which is too high and not supported by commensurate injury, relevant authorities, guided by the doctrine of precedent, case law or similar facts or rules of natural justice.5)That the Judgment of 28th July 2023 has no legal or factual basis and ought to be set aside.

5. The grounds of appeal for the 2nd respondent are that:(1)The Learned Magistrate misdirected herself and erred both in law and fact by holding the appellant 30% liable whereas evidence on record called for dismissal of the Plaintiff’s suit against the appellant and thus arrived at an erroneous finding on liability.(2)The learned trial magistrate misdirected herself and erred in law by holding that the respondent had proved her case on liability against the appellant on a balance of probabilities despite the weight of evidence.(3)The Learned trial magistrate misdirected herself and erred in law and fact by failing to dismiss the respondent’s suit against the appellant in the lower court in view of the evidence tendered before her.(4)The Learned trial magistrate misdirected herself and erred both in law and in fact by considering extraneous matters and going out of the ambit of the proceedings and evidence tendered before her and hence arrived at an erroneous decision on liability.(5)The Learned trial magistrate misdirected herself and erred in law and fact failing to hold that the 2nd respondent was an independent contractor who admitted to the error explained by the 1st respondent and therefore find the 2nd respondent 100% liable.(6)The Learned trial magistrate misdirected herself and erred in law and fact by failing to acknowledge that despite not calling any witnesses, the appellant had been exonerated by the 2nd respondent from any blame and hence arrived at an erroneous decision on liability.(7)The Learned trial magistrate misdirected herself erred both in law and in fact by awarding general damages that are so manifestly excessive as to be erroneous.(8)The Learned trial magistrate misdirected herself and erred both in law and in fact by failing to find that there was no breach on the part of the appellant and hence arrived at an erroneous decision on liability.(9)That the Learned Magistrate misdirected herself and erred both in law and fact by failing to properly consider the appellant’s submissions on record and thus arrived at an erroneous finding not supported by law or fact.

6. Both appeals were canvassed by way of written submissions.

Appellant’s submissions 7. The appellant submitted that it had followed all the procedures in conducting the test on the 1st respondent. That it had discharged its duty of care owed to the 1st respondent as per the law and the standard set out in the case of Bolam vs Friern Hospital Management Committee (1952) 2ALL E.R where the court set the test 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 skills.

8. The appellant submitted that that standard must however be put in the context of human reasonableness as medical professionals are not infallible in which case a mistake that is free of malicious intent and what can be interpreted as a ‘slip’ should not be equated to medical negligence. In this regard the appellant relied on the decision in the case of Pope John Paul`s Hospital & another v Baby Kasosi (1974) EA 221.

9. Counsel submitted that a court should be careful not to construe anything that goes wrong in the medical profession to be medical negligence. That in this case there was no evidence of negligence but only a misadventure in clinical practice in that the wrong results were transmitted to the 1st respondent through an inadvertent mistake by the lab technologist. That such mistake cannot be elevated to medical negligence as it occurred out of human error and was only a misadventure. The appellant cited the case of Waweru v Nairobi Hospital (2002) eKLR where the court emphasized that the mere occurrence of an adverse event does not necessarily indicate negligence on the part of healthcare provider if appropriate precautions were taken to prevent such events.

10. It was submitted that the appellant took immediate steps to rectify the error immediately it was discovered which minimized the harm caused to the 1st respondent by providing the correct medical information and offering the necessary support and counselling.

11. It was submitted that the 1st respondent had failed to prove that the appellant was negligent.

12. Counsel submitted that the assessment on General damages by the trial court was unfair and unreasonable. Counsel urged this court to disturb the said award. Reliance was placed in the case of Arror Car Limited & Elijah Shalla Bimomom v Dishon Mbali & 2 others (2004) eKLR, Gitobu Imanyara & 2 others v Attorney General (2016) eKLR and Jane Chelagat Bor v Andrew Otieno Onduu (1988-920 2 KAR 288, (1990-1994) EA47. Counsel submitted that the 1st respondent had not demonstrated that she had suffered any harm.

13. The appellant submitted that the award was inordinately high and undesirable in the circumstances of the case. They submitted that in the event that the court is inclined to award damages, they urged the court to be guided by the case of LWW (suing as the Administrator of the Estate of BNM) deceased v Charles Githinji (2019) eKLR where Ksh.500,000/= was awarded for psychological and mental injury for loss of a daughter.

1st Respondent’s submissions 14. The 1st respondent through her counsel submitted that there is an admission of negligence by the appellant both on oath and by a letter dated 1st October 2020 to the 1st respondent which trivialized the issue as a mere typo.

15. Counsel submitted that there was breach of duty which was owed to the 1st respondent. Reliance was placed in the cases of Jimmy Paul Semenye v Aga Khan Hospital & 2 others (2006) eKLR and PKM (suing on behalf as next friend of AB) GSM v Nairobi Women’s Hospital & Mutinda (2012) eKLR. In support of the position that the negligence was reasonably foreseen by the appellant, counsel referred the court to the cases of Gitau v Kenyatta National Hospital & another (2015) eKLR and Waweru v Nairobi Hospital (2002) eKLR.

16. On quantum, counsel submitted that courts have awarded between Ksh.2,000,000/= and Ksh. 3,500,000/= as general damages. That the award by the trial court was thus a gross underestimation bearing in mind that she was subjected to anxiety, embarrassment and counselling. The 1st respondent urged the court to dismiss the appeal.

2nd Respondent’s submissions 17. Counsel for the 2nd respondent submitted that the appellant was an independent contractor carrying out medical examinations in a field of its specialty and hence the 2nd respondent cannot be held liable for any negligent acts by the staff of the appellant who were in control and management of the appellant. The 2nd respondent in support of this proposition relied on the case of Board of Governors St. Mary’s School v Boli Festus Andrew Sio (2020) eKLR where the Court of Appeal held that:So the general rule is that an employer who has employed an independent contractor to undertake services or work on his behalf is not responsible for any tort committed by the contractor in the course of his work. The employer is also not liable for the tortious act committed by the contractor’s employees.

18. The 2nd respondent submitted that the appellant owned up to the fault and hence the finding of the lower court was erroneous and they should therefore be absorbed of any blame.

19. Counsel urged that this Court should thus set aside the 30% liability attributed to the 2nd respondent.

20. Counsel submitted that there was no evidence of collusion between the appellant and the 2nd respondent and the results as properly pointed out by the appellant was a result of a typing error on their side. Counsel urged this court to find that the 1st respondent did not suffer any injuries as the information was held in confidence and the mistake was promptly corrected upon being identified and no ridicule came upon the 1st respondent.

21. Counsel submitted that should this court find that the 1st respondent suffered any damages, then an amount of Ksh.250,000/= would be sufficient. Reliance was placed in the case of MM V vs MNM & another (2020) eKLR where the court awarded Ksh. 250,000/= for psychological pain and suffering where the claimant’s HIV status was disclosed. They also cited the case of SNW v AG (2019) where the court similarly awarded Ksh.250,000/= for psychological pain and suffering for disclosure of HIV Status.

Analysis and determination 22. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is

23. Having considered the appellant’s grounds of appeal and the parties’ written submissions, two issues fall for determination: -(1)Whether the trial Court erred in finding the Appellant and the 2nd respondent liable.(2)Whether the trial court applied the wrong principles in assessment of damages and if the award was excessive.

Liability 24. Liability is an issue that is predominantly dependent on the evidence adduced before the court. In the case of Ephantus Mwangi & Geoffrey Nguyo Ngatia vs Dancun Mwangi Wambugu, (1982-88) KAR 278, a principle was laid out that a court on appeal will not normally interfere with a finding on fact by a trial Court unless it is based on no evidence, or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles. The same was held by the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403, where Kneller JA & Hancox Ag JJA held that-“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”

25. The appeal herein involves an issue of medical negligence. The test in cases of medical negligence is not that of any other ordinary person but that of a person in the same profession i.e a medic. This was the observation in the case of John Gachanja Mundia v Francis Muriira & Another, Civil Appeal No. 26 of 2015 [2017] eKLR where the court held as follows:“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.”

26. Similar finding was made in the case of Magil v. Royal Group Hospital & Another [2010] N.I QB 1 the High Court of Northern Ireland where it was 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.

27. 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, to decide whether the standard of care provided was proper. 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”.

28. The appellant admits that they transmitted false results to the 1st respondent that she was HIV positive. Subsequent tests confirmed that she was HIV negative.

29. The appellant however argues that they were not negligent as the correct results were captured in the examination booklet that the 1st respondent was HIV negative. That the transmission of the wrong results to the 1st respondent was as a result of a typing error of a slip by their employee.

30. The court in the case of Bahari Parents Academy v LBZ (Minor suing through his father and next friend) BNZ [2020] eKLR cited the following definition of ‘negligence’ from Salmond and Heuston on the Law of Torts 9th Edition“Negligence is a conduct, not state of mind – conduct which involves an unreasonable great risk of causing damage; negligence is the omission to do something much a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do.”

31. The worker of the appellant failed to exercise care in typing and as a result typed ‘positive’ instead of ‘negative’. An ordinary person in the position of a typist would recheck the typed copy with the entered results before finally transmitting them so as to ensure that what was typed is what was contained in the results. The failure to exercise care can only be described as negligence on the part of the employee and not a misadventure as contended by the appellant. The appellant`s employee was therefore negligent in the manner he handled medical results of the 1st respondent.

32. The appellant on the other hand should have put in place proper systems to ensure that results were rechecked after typing so as to make sure that accurate results were transmitted to their clients. The appellant cannot escape liability in failing to do so.

33. The trial court in in its judgment found the appellant vicariously liable for the wrongful acts of its employee in transmitting the wrong results to the 1st respondent. The court in this respect made reference to the case of Ricardo Njeri Wahome (suing as an administrator of the estate of the late Wahome Mutahi (deceased) v Attorney General &2 others (2015) eKLR.

34. Under common law one is held vicariously liable if, the person committing the tort is a servant or agent of the defendant and the servant is acting within the scope of his employment at the time of committing the tort. The employer who transmitted the wrong results to the 1st respondent was acting in the scope of his employment. The appellant was vicariously liable for the negligent acts of their employee. I find the trial court to have been right in finding the appellant vicariously liable for the negligent acts of their employee.

35. The 2nd respondent argued that the appellant was a professional practitioner and that they had engaged them as an independent contractor. That the employees for the appellant were under the control and supervision of the appellant. That only the appellant could be blamed for any negligence on the part of their employee.

36. The trial court in finding the 2nd respondent liable based its reasoning on the ground that the 2nd respondent did not call any evidence to rebut the evidence of the 1st respondent. Therefore, that the evidence of the 1st respondent stood unchallenged as far as the case against for the 2nd respondent was concerned.

37. It is however clear to me that the defence raised by the 2nd respondent was on a point of law, that as an employer, it was not liable for any negligent acts committed by an independent contractor such as the appellant. Such an issue of law need not be proved through evidence. It is therefore my view that the trial court erred in finding the appellant liable because they did not call evidence in the case.

38. The general rule in respect of an independent contractor is that an employer who has employed an independent contractor to undertake services or work on his behalf is not responsible for any tort committed by the contractor in the course of his work. The employer is also not liable for the tortious act committed by the contractor’s employees. See Board of Governors St. Mary’s School v Boli Festus Andrew Sio (supra). In Charlesworth on Negligence, 4th Edition, Sweet and Maxwell, the authors state that an employer is not liable for the negligence of an independent contractor or his servant in the execution of his contract. They say:“Unquestioningly, no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servant commits some casual act of wrong or negligence, the employer is not answerable.”

39. In the present case, the 2nd appellant had no control over the employees of the appellant. The appellants were professionals in their own right. They knew how to carry out their duties professionally and indeed depicted a picture that they acted professionally. I find that the appellants were independent contractors and as such the 2nd appellant was not liable for negligence committed by the appellant`s employees. I find the trial court to have erred in holding the 2nd appellant liable for the negligence of the appellant. The finding on liability concerning the 2nd appellant is in the premises set aside. I find the appellant to have been solely and 100% liable for its negligence of transmitting false results to the 1st respondent.

Whether the trial court applied the wrong principles in assessment of damages and if the award was excessive 40. The circumstances in which an appellate court will interfere with the quantum of damages awarded by a trial ourct were clearly laid out in the case of Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v. AM. Lubia and Olive Lubia (1982 –88) 1 KAR 727 at p. 730 Kneller J.A. said: -“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V. Manyoka [1961] EA 705, 709, 713; Lukenya Ranching and Farming Co-Operatives Society Ltd V. Kavoloto [1970] EA 414, 418, 419. This Court follows the same principles.”

41. The 2nd respondent argued that an award of Ksh. 250,000/= would be sufficient whereas the 1st respondent submitted that the award made by the trial court was on the lower side. The appellant urged the court to be guided by a figure of Ksh.500,000/=.

42. I have looked at the authorities relied on by counsels for the parties. I am of the view that the figure proposed by the counsel for the appellant is on the lower side. There is no doubt that the 1st respondent suffered great mental anguish and emotional trauma from the time she learnt about the erroneous results until when a repeat test was conducted at agha Khan Hospital. In M K v Seventh Day Adventist Health Services & Maragia Omwega [2016] eKLR, Sergon J. awarded Kshs. 6,000,000/- to a Plaintiff who was misdiagnosed with HIV and was traumatized for eight (8) months before a repeat test revealed that he was HIV negative. In Lucy Njeri Ngugi & another v Avenue Healthcare Ltd & 2 others [2018] eKLR, the Court awarded the plaintiff general damages of Ksh. 600,000/= for pain and suffering occasioned by the side effects of malaria misdiagnosis. In the instant case, taking into account the fact that the 1st respondent suffered mental trauma and anguish and passage of time, there is no reason to interfere with the award of the trial court in general damages of Ksh. 1,000,000/-.

43. The upshot is that the appellant herein is found 100% liable in damages while the 2nd respondent is found not in any way liable. The finding of the trial court on liability is accordingly set aside and substituted with a finding that the appellant herein is found 100% liable while the 2nd respondent is found not in any way liable. The award of the trial court on general damages of Ksh.1,000,000/= is upheld.

44. Orders accordingly. Each party to bear its own costs. The judgment, with the necessary modifications, to apply in Milimani HCCA No.E842 of 2023.

DELIVERED VIRTUALLY, DATED AND SIGNED AT GARSEN THIS 23RD DAY OF JANUARY, 2025. J. N. NJAGIJUDGEIn the presence of:Mr. Mutembei for AppellantMr. Onduso for 1st RespondentMiss Waithera HB for Mr.Chengecha for 2nd RespondentCourt Assistant: -