Nairobi West Hospital v KJM & another (Civil Appeal E504 of 2024) [2026] KEHC 4926 (KLR) (Civ) (16 April 2026) (Judgment)

Nairobi West Hospital v KJM & another (Civil Appeal E504 of 2024) [2026] KEHC 4926 (KLR) (Civ) (16 April 2026) (Judgment) Neutral citation: [2026] KEHC 4926 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E504 of 2024 WA Okwany, J April 16, 2026 Between Nairobi West Hospital Appellant and KJM 1st Respondent Dr JO 2nd Respondent Judgment Background 1.The 1st Respondent was referred to the Appellant hospital in September 2018 with complaints of abdominal pain. Following diagnostic investigations, she was diagnosed with ascites and a dermoid cyst. 2.The 1st Respondent subsequently underwent a surgery that was performed by the 2nd Respondent, an independent consultant specialist operating within the hospital. Post-operative follow-ups were conducted at the consultant’s clinic. 3.A complaint was later lodged before the Kenya Medical Practitioners and Dentists Council (the Council) alleging that the 2nd Respondent negligently removed the 1st Respondent’s ovaries without proper consent, contrary to what had been agreed. 4.In its decision rendered on 10th June 2021, the Council found fault with the conduct of the 2nd Respondent, particularly regarding lack of informed consent and clinical decision-making. The Council found the Appellant hospital vicariously liable for acts of medical negligence attributed to the 2nd Respondent, a consultant gynaecologist. and proceeded to impose a fine of Kshs. 250,000 upon the Appellant and directed mediation. The Appeal 5.Aggrieved by the Council’s decision, the Appellant filed the instant appeal contesting both its factual and legal basis asserting that the Council misapprehended the applicable legal framework governing liability in medical practice. 6.The appeal was canvassed by way of written submissions which I have considered. The 2nd Respondent did not participate in the appeal. The Appellant’s Submissions 7.The Appellant submitted that the Council failed to distinguish between two recognized models of healthcare delivery, namely; a model where hospitals employ medical practitioners and assume liability for their acts; and a model where hospitals provide the infrastructure for independent consultants who operate autonomously thus bearing personal responsibility for their clinical decisions. 8.It was submitted that the 2nd Respondent fell within the latter category, being an independent, licensed specialist conducting private practice within the hospital. It was contended that the 2nd Respondent operated autonomously as a licensed specialist in private practice and not as an employee or agent of the hospital. 9.The Appellant contended that liability cannot automatically attach to a hospital for acts of independent consultants and that vicarious liability only arises where an employment relationship exists or where the hospital exercises control over the practitioner’s work. 10.The Appellant argued that the Council erred in imputing liability without examining the true nature of the relationship between the hospital and the 2nd Respondent. 11.The Appellant asserted that the 2nd Respondent held a valid specialist licence and operated an independent clinic that was not subject to the administrative or clinical control of the hospital. The Appellant added that the hospital neither directed nor supervised his clinical decisions or surgical procedures and that accordingly, no master-servant or principal-agent relationship existed to ground vicarious liability. 12.It was the Appellant’s position that no negligence was attributed to the hospital in respect of services under its direct control such as nursing, diagnostics, or administrative care and that all acts complained of related exclusively to specialized clinical services rendered by the consultant. The Appellant added that there was no evidence of systemic, institutional or operational failure by the hospital as the alleged negligence related exclusively to specialized clinical services rendered by the consultant. The Appellant noted that no fault was attributed to the hospital’s staff, systems, protocals or facilities 13.The Appellant relied on the Medical Practitioners and Dentists Act and related regulations to argue that medical practitioners bear personal and non-delegable responsibility for their professional acts as the law requires practitioners to maintain individual indemnity cover, reinforcing personal accountability. 14.The Appellant explained that hospitals primarily provide infrastructure and support services and do not make clinical decisions. 15.Further reliance was placed on Regulation 28 of the Medical Practitioners and Dentists (Inspection and Licensing) Rules, 2022, to assert that hospitals are only liable where they knew or ought to have known of the risk of negligence. The Appellant maintained that no such knowledge or failure of oversight was demonstrated. 16.The Appellant submitted that the duty to obtain informed consent rests solely on the treating medical practitioner under the Health Act, 2017. It was argued that the duty is a personal and professional obligation owed by the doctor that cannot be transferred to a hospital since it involves individualized clinical judgment beyond the scope of institutional control. 17.The Appellant submitted that the duty to obtain informed consent rests solely on the treating medical practitioner under the Health Act, 2017 and that the duty 18.The Appellant’s case was that the alleged failure to obtain informed consent was attributable solely to the 2nd Respondent. 19.The Appellant explained that duties such as obtaining obtaining informed consent, mking surgical and diagnostic decisions, determining treatment approaches, explaining risks and alternatives and providing post-operative care are legally and professionally assigned to licensed practitioners and cannot be discharged by a hospital. 20.The Appellant cited comparative jurisprudence to support the proposition that hospitals do not generally bear responsibility for independent consultants absent control or employment and that the duty to obtain informed consent rests with the physician. 21.It was submitted that medical practitioners are required to maintain individual professional indemnity cover as hospitals do not and cannot lawfully perform clinical functions such as diagnosis, surgery, or treatment decisions. 22.It was the Appellant’s case that vicarious liability does not extend to acts outside the scope of employment or to independent contractors. The Appellant added that medical practitioners bear personal, non-delegable responsibility for their professional conduct. 23.The Appellant contended that the Council failed to identify any negligent act by the hospital or its staff, imposed liability without establishing an employment or agency relationship, misapplied the doctrine of vicarious liability and attributed liability solely on the basis that the treatment occurred within the hospital. The 1st Respondent’s Submissions 24.The 1st Respondent submitted that the 2nd Respondent acted as an agent of the Appellant since the patient did not choose the doctor and relied on the hospital for treatment. 25.The 1st Respondent noted that all payments were made to the hospital and maintained that hospitals owe a non-delegable duty of care to patients. According to the 1st Respondent, the Appellant cannot escape liability by labeling the doctor a “consultant.” 26.It was further submitted that the negligence resulted in irreversible harm, namely loss of fertility. Issues for Determination 27.From the record of appeal and the parties’ submissions, I find that the following main issues arise for my determination: -a.Whether the doctrine of vicarious liability is applicable in the circumstances of this case;b.Whether the Council erred in law and fact in holding the Appellant liable. 28.As a first appellate court, this Court is obligated to re-evaluate, re-analyse and reconsider the entire evidence on record and arrive at its own independent conclusions, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses. This duty is well settled. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123, the Court stated:“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…” 29.Similarly, in Peters vs. Sunday Post Ltd (1958) EA 424, it was held:“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial judge should stand, this jurisdiction is exercised with caution… It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case…” 30.Accordingly, this Court will approach the present appeal guided by the foregoing principles. The appeal raises significant questions regarding the distinction between institutional liability and personal professional responsibility in medical practice, particularly in the context of independent consultants operating within hospital facilities. The Court is therefore called upon to interrogate the legal relationship between hospitals and consultants, the scope and the principles underpinning vicarious liability, and the allocation of responsibility under the governing statutory framework. 31.It was not disputed that a doctor-patient relationship existed between the 1st and 2nd Respondents. It was also not disputed that the 1st Respondent underwent a medical procedure at the Appellant’s hospital. 32.It is trite that a duty of care arises once a doctor or a health care professional agrees to diagnose or treat a patient. This is the position that was taken in the case of Ricarda Njoki Wahome vs. Attorney General & 2 others (2015) eKLR. 33.The law on hospital liability for medical negligence is well settled. In Charles Worth & Percy on Negligence, it is stated:“…the law is that hospitals are liable vicariously for the negligence of the members of its staff, including nurses and doctors.” 34.Similarly, in Cassidy vs. Ministry of Health [1951] 2 KB 343, the Court held that those running hospitals are under a direct duty of care to those admitted as patients and are liable for the negligent acts of a member of the hospital staff. In this case Lord Denning further stated that the hospital authorities are responsible for the whole of their staff and it does not matter whether they are permanent or temporary as the hospital authorities are responsible for all of them. 35.The principle emerging from authorities is that hospitals owe a non-delegable duty of care to their patients and they are vicariously liable for the acts of professionals working within their walls whether or not formally employed. This is the position that was expressed in Herman Nyangala Tsuma vs. Kenya Hospital Association t/a The Nairobi Hospital & 2 others [2012] eKLR where it was held: -“that the distinction between a contract of service or a contract for service, as important as it is, does not apply in cases where the hospital authorities are themselves under a duty to use care in treating the patient. It is clear law and good sense that where a person is himself under a duty of care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation of it be to a servant under a contract of service or to an independent contractor under a contract of services.”And further:“Therefore if a person is admitted as a patient to a hospital and suffers injuries through the negligence of some member of the staff it is unnecessary for him to pick upon any particular employee… The hospital is responsible for all those in whose charge the patient was.” 36.From the above decision, it is clear that hospitals owe a non-delegable duty of care to patients and therefore cannot escape liability by delegating duties to employees or independent contractors. This means that hospitals are vicariously liable for all medical professionals acting within their system. 37.In the instant case, I have already noted that the 1st Respondent was admitted and treated at the Appellant hospital. The 2nd Respondent performed surgery within the hospital and payments were made to the hospital. The record also reveals that the patient did not independently select the doctor. Indeed, the 2nd Respondent was head of department within the hospital. 38.My finding is that the Appellant hospital presented itself as the provider of treatment and the 2nd Respondent operated within its institutional framework. I further find that the relationship between the hospital and the doctor/2nd Respondent constituted agency for purposes of liability. 39.My take is that the Appellant’s argument that the 2nd Respondent had an independent contractor status is therefore untenable. 40.On the issue of whether the 1st Respondent gave informed consent, I note that the failure to obtain informed consent was established by the disciplinary body and that this is an issue that was not controverted. I find that such failure constitutes professional negligence, the consequences of which the hospital must bear under the doctrine of vicarious liability. 41.Under Sections 106 and 107 of the Evidence Act, the Appellant bore the burden of proving absence of an employment or agency relationship. This burden was not discharged. 42.After a careful analysis of the facts of this case and having regard to the findings that I have made in this judgement, I find that the decision by the Council was sound in law and fact. 43.Consequently, I find that the instant appeal is not merited and I therefore make the following final orders: -a.The Appeal is hereby dismissed in its entirety.b.The decision of the Kenya Medical Practitioners and Dentists Council dated 10th June 2021 is upheld.c.The Appellant is found vicariously liable for the negligence of the 2nd Respondent.d.Costs of the appeal are awarded to the 1st Respondent.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF APRIL, 2026.HON. W. A. OKWANYJUDGE16/04/2026For Appellant Ometo For AdungaFor The Respondent No AppearanceCourt Assistant AbdirizakFile closedParties to be notified