https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9710

OZA (Minor suing through mother and next friend) & 2 others v Olunya & another (Civil Case E067 of 2020) [2026] KEHC 9710 (KLR) (Civ) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9710 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E067 of 2020 JN Mulwa, J July 2, 2026 Between OZA (Minor Suing Through Mother And Next Friend) 1st Plaintiff NO 2nd Plaintiff RO 3rd Plaintiff and Dr David Oluoch Olunya 1st Defendant The Nairobi Hospital 2nd Defendant Judgment Pleadings 1.By a Plaint dated 05/08/2020, OZA (herein the 1st Plaintiff) suing through her mother and next friend NO (hereafter the 2nd Plaintiff), and RO (hereafter the 3rd Plaintiff) her father sued Dr. David Oluoch Olunya and Kenya Hospital Association t/a The Nairobi Hospital (hereafter the 1st & 2ndDefendants) on a claim founded on medical negligence seeking that judgment be entered jointly and severally as against the Defendants for -:a.Special damages for Kshs. 17,828,245/- as particularized in paragraph 19 above;b.Special damages for the 2nd and 3rd Plaintiffs as particularized in paragraph 17;c.General damages for the 1st Plaintiff for the pain, suffering and loss of amenities;d.General damages for the 2nd and 3rd Plaintiffs for pain, suffering and anguish;e.Costs of future medical expenses, school fees and adaptive equipment for the rest of the 1st Plaintiff’s life as particularized in paragraph 20 above;f.Costs of the suit; andg.Interest in (a), (b), (c), (d) and (e) at Court rates.h.honorable Court deems fit to grant.i.Costs of this suit.j.Interest on (b), (c), and (e) above at Court rates from the date of filing until payment in full. 2.It is the Plaintiffs claim that sometime in 2017, the 2nd Plaintiff during her pregnancy, she attended the 2nd Defendant’s facility commonly known as “Andersons Clinics” for antenatal care whereinafter she was eventually referred to the 1st Defendant, Dr. David Olunya, a Consultant Neurosurgeon for antenatal investigations upon which it revealed a suspected intracranial cyst in the 2nd Plaintiff’s unborn baby wherein at the time the 1st Defendant represented himself as a specialist competent to manage the child's condition. 3.The Plaintiffs state that after her birth on 5/11/2017, six weeks thereafter, they noticed a bulge and swelling on the minors head, that upon consultation with the doctor, a confirmation of a Posterior Fossa Arachnoid Cyst was made, and thereafter the minor underwent a series of neurosurgical procedures at the 2nd Defendant's hospital between January 2018 and February 2019. They stated that the treatment was negligently undertaken, including a failed endoscopic fenestration resulting in intraventricular hemorrhage, negligent insertion of a frontal “Ommaya Reservoir” leading to CSF leakage, cerebritis and ventriculitis, delayed management of infection, malfunctioning and improperly inserted shunts, perforation of the brain stem, retention of shunt material in the brain, and ineffective postoperative management. 4.The Plaintiffs aver that the aforestated acts and omissions cumulatively caused permanent and irreversible brain damage, to the minor with hydrocephalus, cerebral palsy, epilepsy, severe cognitive impairment, profound physical disability, inability to speak, walk or feed orally, and lifelong dependence. 5.That on the premise of the forested, the 1st Defendant is liable for failing to exercise the degree of skill and care expected of a competent neurosurgeon by, inter alia, delaying diagnosis, making unilateral treatment decisions, committing surgical errors, failing to provide appropriate treatment alternatives, delaying intervention after complications arose, persisting with ineffective treatment, and failing to communicate adequately with the Plaintiffs. 6.The Plaintiffs go on to state that on the part of the 2nd Defendant it was negligent by recommending the 1st Defendant as suitably qualified professional, failing to provide adequate systems for consultation, communication and supervision, and permitting the impugned procedures to be undertaken within its facility. 7.That subsequent treatment of the child at Apollo Hospital in India corrected some of the earlier procedures, confirmed the presence of the embedded catheter that could not safely be removed, and resulted in measurable clinical improvement, which goes to confirm that the earlier treatment had been negligently performed. 8.The Plaintiffs further aver that the negligence caused extensive financial and emotional loss to the family by way of incurred substantial medical expenses in Kenya and India, costs of travel, therapy, caregiving, counselling and other related expenditures, together with loss of earnings, interrupted careers, abandoned professional opportunities and significant emotional distress arising from the child's lifelong disability. 9.The Plaintiffs therefore seek to hold both Defendants jointly and severally liable for the minor's catastrophic injuries and the consequential losses suffered by the family, including recovery of special damages in the sum of Kshs. 17,828,245/-, future medical treatment and surgical costs, lifelong therapy and nursing care, disability-related equipment and home modifications, educational and disability mainstreaming expenses in sum of Kshs. 65,420,000/-, together with general damages, costs of the suit, interest and such further relief as the Court may deem just. 10.The 1st Defendant filed a statement of defence dated 28/05/2021 generally denying the key averments in the plaint. He goes on to state that the minor was referred to him with an existing posterior fossa cyst and hydrocephalus requiring neurosurgical intervention, and that all treatment, surgery and follow-up care were undertaken in accordance with accepted medical practice. He further asserts that he is a duly qualified, licensed and experienced consultant neurosurgeon, to wit, he exercised the requisite degree of skill, care and diligence expected of a specialist. And that the procedures, subsequent follow-up care and progress reports in respect of the minor were all consistent with accepted professional practice and that no surgical errors or acts of negligence occurred. 11.The 1st Defendant additionally stated that he was not involved in the medical treatment undertaken in India and cannot be held responsible for its outcome, and contends that the Plaintiffs failed to resume follow-up care upon their return. That no complaint of professional misconduct or malpractice was lodged before the Kenya Medical Practitioners and Dentists Council, which is the statutory body best suited to investigate such complaints. He therefore urged the Court to dismiss the suit with costs on the basis that no negligence or breach of professional duty was occasioned. 12.Despite service of pleadings and court processes upon the 2nd Defendant, it failed or opted not to file a defence within prescribed time, upon which interlocutory judgment against it was entered and endorsed on 10/02/2021. 13.The 2nd Defendant’s effort to set aside the said interlocutory judgment were unsuccessful when Visram, J. rendered a ruling on 31/05/2023 dismissing the 2nd Defendant's application that sought to set aside the aforestated interlocutory judgment. 14.The suit proceeded to full hearing during which the Plaintiffs and 1st Defendant called evidence in support of the claims in their respective pleadings. Plaintiffs Evidence 15.NO testified as PW1. She began by identifying herself as mother to the minor Ouma Zuri. She proceeded to adopt her witness statements dated 02/02/2021 and 30/08/2023 as her evidence in chief meanwhile adduced into evidence the bundle of documents appearing in the Plaintiffs list of documents dated 30/05/2022 and supplementary list of documents dated as 30/08/2023 as Pexh.1 & 2 respectively. 16.The gist of her evidence, which in part, was a restatement of her pleadings was that upon delivery of her baby on 05/11/2017 there were no complications and after discharge she returned six (6) weeks later upon noticing that the minor had a bulge and or swelling in her head. After an MRI was done on the minor the 1st Defendant recommended a procedure called “Endoscopic Fenestration” to penetrate and collapse the cyst as seen in the MRI. That she was not informed of the procedures chances of success whereas the eventual outcome was that the 1st Defendant was unable to penetrate the cyst as it would occasion bleeding, to wit, the same was abandoned. 17.She added that several other medical procedures were undertaken on the minor leading to the installation of an “Ommaya Reservoir” to drain the fluid from the minor’s brain. She stated that despite the procedure there was no improvement on the minor as fluid was still building up in the minor’s brain meanwhile there were recurrent instances of blood oozing out where the “Ommaya Reservoir” was placed. That despite removal of the “Ommaya Reservoir” the minor’s situation did not improve whereinafter it was later discovered that the latter had an infection, was put on antibiotic and an external ventricular drain (EVD) to try to clear the infection. 18.She testified that the minor’s situation did not improve despite further interventions by the 1st Defendant by way of a “ventriculoperitoneal shunt” and even on consulting other doctors over the minor’s condition they were informed that it was irreversible. That the totality of the aforestated prompted them to take the minor to India in 2019, to wit, the cyst was removed alongside the earlier “ventriculoperitoneal shunt” and replaced with another one that is still in use. She concluded that since 2018 her life has been occasioned with depression, stress and financial constraints by the 1st Defendant’s actions, to wit, she urged the Court to allow the suit and reliefs as prayed. 19.On cross examination, PWI confirmed that the cyst diagnosis was first made before delivery of her child in 2017, that upon the 2nd Defendant’s diagnosis and recommendation, they also visited Aga Khan Hospital, which also confirmed the existence of a cyst in the minor’s head. It was her evidence that she believed the 1st Defendant advice and actions were in the best interest of both mother and minor therefore did not doubt him however conceded that any surgical procedure carries risks. 20.She confirmed having also obtained medical opinions from other doctors in the United Kingdom (UK) who despite not having physically examined the minor did not offer any contradiction to the procedure carried out by the 1st Defendant. That it was in India where the cyst on the minor’s head was removed whereas the doctors there did not advise on any missteps with respect to the minor’s management. She maintained the 1st Defendant did not do his best as he undertook the wrong interventions towards management of the minor’s condition meanwhile confirmed the doctors in India did not inform them what would have happened if no interventions were undertaken at six (6) weeks. 21.In re-examination, she stated that opinions rendered by the doctors in the United Kingdom (UK) were solely based on medical reports on the minor, to wit, all their final recommendations were, shunt placement. That she did not blame the 1st Defendant for adopting the shunt procedure but for leaving a piece of shunt in the minor’s brain. She concluded by iterating that the cyst was detected before the minor was born and that it was only in India that they learnt of other available medical options. 22.Dr. Sunit Mediratta, testified on line from India as PW2. He began by stating that he resides in New Delhi – India, practicing as a Neurosurgeon at Indraprastha Apollo Hospital, whereinafter he proceeded to adopt his witness statements dated 25/11/2021 and 24/07/2023 as his evidence in chief. It was his evidence that he examined the minor in India, in 2019 when she was one (1) year (6) months old, and at the time she had a feeding tube in her stomach, to wit, he established that she had undergone multiple surgeries from the age of three (3) months. 23.It was his evidence that the minor had lost the ability to swallow and was unconscious whereas it was his professional opinion that the minor ought not to have been operated on at six (6) weeks unless she had specific issue(s). He stated that he would have waited six (6) months to undertake any procedures on the minor. That the shunt was in an incorrect position as it was not functioning as intended whereas any corrective measures or replacement ought to have been carried out immediately a CT Scan showed within 24-48 hours that the shunt was malfunctioning. He added that on discharge the minor’s head decreased in size, that she could move her limbs and had no fever, all of which were to the contrary on her admission as such there was no need for further intervention. He concluded by stating that as a result of the minor’s condition she faces permanent disability of being unable to swallow food, move her limbs, brain damage and would thus depend on others. 24.On cross examination, it was his evidence that he had expertise in pediatric issues. That the survival rate in respect of the condition afflicting the minor was dependent on it being attended to and whether there are other underlying medical issues. He stated that in the instant matter, the cyst at birth was close to 3-4cms as gathered from the medical notes and that at six (6) weeks it was the 1st Defendant that examined the minor whereas the decision to operate was based on his own findings. That when trained professionals such as himself and the 1st Defendant are faced with similar circumstances there may be different opinions however the procedural approaches and standards would be the same. 25.He stated that the procedure at six (6) weeks in Kenya had a 50% chance of failure and that the shunt placed in the minor’s brain in 2018, failed. That the remedy was to revise it in order to correct it, like any other procedure, however the 1st Defendant in the present case failed to correct it. That despite shunt revision being done by the 1st Defendant, which has a 90% chance of success where there is no infection, the revision undertaken by the 1st Defendant failed. 26.It was his evidence that as a medical professional you cannot guarantee the outcome or assure success of certain medical procedures however in this case, the shunt being wrongly positioned would amount to medical negligence. Upon discovery that revision of the procedure was required on the minor and was undertaken, the old shunt was not removed therefore it amounted to negligence. That the shunt relocation did not mean that it was not placed in the wrong place however it was allowed to move whereas the old one ought to have been replaced. 27.It was his evidence that the minor had two (2) shunts in place, with the one placed in India functional and the other non-functional. That infections, internal bleeding and malfunctions are common complications of such procedures. He stated that given that the cyst was present at birth, if it was left in situ without any procedures the likely outcome would have been increased bleeding, fluid buildup in the brain and delayed milestones or disability thereby requiring intervention. 28.He stated that his opinion on negligence on the part of the 1st Defendant was premised on the fact that the stunt was placed in 2018 in an abnormal position and was not removed on revision. He confirmed having not entirely removed the cyst whereas the minor did not require any urgent medical interventions at six (6) weeks given that her condition was known before her birth. That premised on his assessment of the medical records was that there was no medical emergency to require the 1st Defendant’s intervention whereas despite the minor's medical condition she was born without any attendant symptoms. 29.In re-examination, he stated upon review of the minor's medical documents and conducting a CT Scan their diagnosis was that the minor had an increased head size with three (3) shunt procedures done in Kenya which were not successful. He iterated that the minor could not feed and had no strength due to an intracranial cyst, which condition can be life threatening if left untreated. That given the lack of urgency to intervene, the only side effect would have been increased head size with attendant mental issues later. 30.He reiterated that the medical intervention ought to have been delayed for about 3-4 months because the minor did not exhibit any symptoms save for the enlarged head size. That the use of an “Ommaya Reservoir” is only a temporal fix whereas at the time the minor arrived Apollo Hospital, she had two (2) shunts meanwhile fluids were seeping into her brain due the malfunctioned shunts. He removed one shunt and replaced it with another one that is still functional however could not remove the other given that it was stuck in the brain and its removal would cause more damage. 31.He confirmed that insertion of a shunt, as an intervention to the minor’s condition was an acceptable solution in the medical field whereas its failure may have been occasioned by the minor’s repeated infections and poor placement. Upon review he established that the shunt was larger than required for the minor whereas after establishing its failure it ought to have been removed within 24 hours. He stated that at the time he undertook the necessary interventions the minor had already suffered irreversible conditions, to wit, she would require lifelong 24-hour care and medical attention. He concluded by stating that when a shunt fails, a patient is placed on Diamox to reduce emission of excess fluid in the brain. 32.Scholastica Oyieyi Auma testified as PW3. She began by identifying herself as a duly registered nurse having practiced for over 24 years meanwhile proceeded to adopt her undated witness statement as her evidence in chief. The gist of her evidence was premised on a Nursing Care Schedule adduced as part of the Plaintiff’s bundle of documents. Having met the minor, it was her professional opinion that she would require 24-hour full time care. 33.On cross-examination, she stated that if the nursing care is followed to a tee the minor is likely to attain minimal but normal consciousness. In re-examination, she maintained that in her 24-years of nursing she had offered special care to various children with mental challenges. 34.Dr. Duncan Mwania testified as PW4. He began by identifying himself as an Occupational Clinical Therapist having practiced for over 16 years meanwhile proceeded to adopt his witness statement as his evidence in chief. Likewise, to PW3, the gist of his evidence was premised on an Occupational Assessment Report adduced as part of the Plaintiff’s bundle of documents. He stated that the minor was brought to him for specialized rehabilitation by the parent on referral whereupon he conducted a deep assessment on the minor. 35.It was his assessment that the minor had delayed development in her head and extremities (mild hypotonia) that affected various facets of her life. He also did an assessment of the requirements towards rehabilitation of the minor that included among others care, shelter, education and assistive aids, all at a relative cost as per his assessment. 36.On cross-examination, he iterated having observed delayed development in the minor as at May 2018 upon reviewing treatment notes. It was his evidence that he had dealt with several other patients with conditions similar to that of the minor. That in his experience the minor’s condition could only be managed with regular neurology consults to enable her to live with the condition. In re-examination, he stated that at the time of his interaction with the minor she was already afflicted by her condition for which he prescribed reliefs. He concluded by stating that his duty was specific to achieving the minor’s growth milestones. 1st Defendant’s Evidence 37.Dr. David Oluoch Olunya, testified as DW1. He began by identifying himself as a Consultant Neurosurgeon with a career in medicine spanning over 35 years. He proceeded to adopt his witness statement dated 18/04/2023 as his evidence in chief and adduce into evidence the bundle of documents appearing in the 1st Defendant’s list of documents of even date and supplementary list of documents dated 20/09/2023 as Dexh.1 & 2 respectively. 38.It was his evidence that on examination of the minor after birth, scans revealed raised pressure in her head hence he could not delay intervention by way of surgery given that her condition was life threatening. Contrary to Plaintiffs assertions, he used the correct shunt size of which was functional at installation whereas he did not place it in the minor’s brain stem. 39.He went on to state that he did a shunt revision, because evidence arose that it was not functioning as intended and that the said revision was successful because the minor’s fontanel was soft and head circumference was draining. He concluded by stating that at all material times during the procedure he was in communication with the minor’s parents. 40.On cross-examination, he stated complications after certain intrusive medical procedures are sometimes expected and or occur. That while the brain is undeniably a very sensitive organ any complications affecting it can be life threatening. He confirmed that the success or failure rate in respect of such a procedure undertaken on the minor who was under six (6) months is up to 50% whereas beyond the aforestated age the percentage rises up to 80-90%. If the condition is not attended to the risk of death rises as the head will increase and cause brain damage whereas the shunting procedure bypasses the aforestated. 41.He confirmed that a shunt embedded in the brain stem occasions higher risk, to wit, a doctor has to be ultra-cautious in the circumstance given that it may migrate. He went on to state that the risks associated with the procedure are ordinarily communicated to the patient’s caregivers, to wit, he discussed the issue at length with the minor’s parents. He stated that alongside a stunt, an “Ommaya Reservoir” is one of the available procedures to intervene in the minor’s conditions. That as at using the reservoir the fluid in the minor’s brain was thicker and in his view the latter was the best possible solution at the time. 42.DW1 continued to testify that another procedure was to directly drain the fluid from the brain though it was risky. He confirmed being familiar with a procedure known as Specialized Neuronavigation Systems (S7) which technology is locally available however he did not inform the parents of the same. That Diamox was prescribed to the minor to manage the production of brain fluids whereas after the procedure he released her to go home, to wit, it would ordinarily take a week for such a wound to heal. 43.He stated that he was in communication with the parents once they informed him of the bleeding from the wound and thus suggested that they bring in the minor for admission. He first removed the reservoir meanwhile having noted that the external drain was not working, he changed it. He went on to state that the 1st shunt was installed sometime on 17/10/2018 and after its failure he undertook the revision procedure on 22/12/2018. He also confirmed that the shunt was not touching the brain stem and that it was collecting fluid as intended whereas had the 1st operation been successful that would not have been a need for the second. 44.That the 1st shunt was left in the brain as he only removed pieces of it for different purposes and that during the revision procedure he could not access the ventricular catheter therefore decided to place a 2nd shunt. It was his evidence that he explained to the family the implications of retaining parts of the 1st shunt in the brain which advice was after excessive consultation. 45.He testified to not being an employee of the 2nd Defendant, to wit, he only has admitting privileges at the hospital and has been paying the requisite fees since 2007. That at all material times relevant he was a private practitioner licensed to use the 2nd Defendant’s facilities. 46.It was his further testimony that hemorrhage could not be attributed to the 2nd Defendant as he was the consulting neurosurgeon whereas complications arising from the procedure were likely risks. Penultimately, he stated that the minor’s parents engaged him as a private practitioner whereas the hospital merely gave him all the support he needed. In conclusion, it was his evidence that the 2nd Defendant has an Ethics Committee, that he was never called to appear before the committee over mishandling of the minor’s treatment or otherwise. 47.In re-examination, it was his position that there was no cure for the minor’s ailment and that it could only be managed, of which, he attempted to do. That his intervention was to reduce pressure in the brain and that he informed the parents of the bleeding risks or increased chances of neurological defects. He confirmed that the consent form did not have all the above information however he documented it in the patients file. 48.That the procedure was initially successful with no attendant leakage, to wit, he proceeded to discharge the patient. While it was not normal for leakage to occur, it could be due to buildup of fluid pressure in the minor’s brain. He maintained that he promptly communicated to the minor’s parents on what to do once he was informed of the leakage and thereafter rapidly carried out medical intervention. That in total he undertook four (4) procedures with the purpose and risk of each duly explained to the parents. 49.He clarified that a shunt was placed within the cavity of the brain and not in the brain stem meanwhile, the cyst in the minor’s brain was relatively large. Therefore, he opted to place catheters instead of using other available specialized procedures. 50.He discharged the patient after the procedure in February 2018 given that the wound was dry with no infection whereas an elongated stay at the hospital placed the minor at risk of contracting an infection. It was his testimony that the cyst was at the base of the brain and that the foreign object was the tip of the shunt which is silicone based. In conclusion he maintained that he was not negligent in any of the procedures he conducted on the minor. 51.Dr. Mubashir Mahmood Qureshi, testified as DW2. He began by identifying himself as a Surgical Neurosurgeon with a career spanning over 30 years. He adopted his witness statement dated 18/04/2023 alongside his medical report dated 20/07/2022 appearing in Dexh.1 as part of his evidence in chief. The gist of his statement was that he previously reviewed the minor as a consultant neurosurgeon, examined the child on more than one occasion, reviewed the medical records, imaging, and reports authored by DW1 and other treating practitioners, and discussed the child's management with DW1. 52.He recounts that the child had undergone an endoscopic third ventriculostomy (ETV), later developed ventriculitis, subsequently underwent cystoperitoneal shunt procedures and revisions, and was reviewed while clinically stable, following which he recommended further imaging and assessment before considering shunt revision. It was his evidence that the neurosurgical procedures performed by DW1 were appropriate, recognized neurosurgical interventions undertaken by a qualified specialist in accordance with accepted practice. 53.He went on to state that the intra-operative hemorrhage was a recognized complication of the neuro-endoscopic procedure; that appropriate post-operative measures were instituted to control the hemorrhage, and that subsequent management, including external ventricular drainage, “Ommaya Reservoir” placement, treatment of cerebrospinal fluid leakage, investigations, and later shunt procedures, was timely and clinically appropriate. 54.He further stated that a delay of approximately twenty-four (24) hours before the child's admission following the reported cerebrospinal fluid leak was not attributable to DW1 and that such delay increased the risk of infection. 55.Having reviewed the operative records, imaging, and subsequent management, his conclusion was that the complications experienced were recognized risks of the procedures and did not result from any act or omission by DW1, who in his opinion met the standard expected of an ordinarily skilled neurosurgeon. 56.In conclusion he disagreed with the opinions expressed by PW2, stating that the criticisms regarding the timing of surgery, alleged lack of treatment, discharge of the patient, and alleged negligence are unsupported by the medical records and accepted clinical practice, and that delaying surgery would not have been justified in the circumstances. 57.On cross-examination, it was his opinion that DW1 would have effectively dealt with the minor’s condition with or without additional opinion given that he has the requisite experience to handle the issue. He confirmed having examined the minor sometime in 2018, to wit, it was his advice that she would be best treated by way of a Cystoperitoneal Shunt, which recommendation was to be effected by DW1. That the minor’s condition was not curable however could be managed under treatment. He went on to state that it was normal to leave inert objects in the brain when it is considered dangerous to remove it. And further it was not typical to carry out multiple procedures nevertheless the same depends on the condition of the patient whereas depending on the diagnosis it may sometimes be necessary to carry out multiple procedures. 58.In re-examination, he asserted that the minor’s condition at birth would not be life threatening however it could proceed to be, if not treated. He stated that on reviewing the minor, what the mother told him were confirmation of the medical notes save that an Endoscopic Third Ventriculostomy (ETV) was never performed on the minor. He sustained that there was no delay in respect of the intervention performed by DW1 on the 14/03/2018 when the minor was returned to hospital on the premise of blood oozing from her scalp. 59.He iterated that the totality of procedures carried out by DW1 were acceptable standard procedures in the medical field given the justified diagnosis of the minor. That in any event, with serious medical procedures there is no guarantee of 0% chance of risk or 100% chance of success, to wit, it is required that the patient is informed of the risks of any procedure and its likelihood of success. Ultimately, it was his position that had there been no intervention in the minor’s condition, she would have suffered impairment and brain damage. He concluded that ordinarily such patients tend to have a shortened life span. 60.At the close of the trial, directions were taken on filing of submissions. Notwithstanding, the 2nd Defendant’s limited participation in the matter, for reasons stated elsewhere in this judgment, only the Plaintiff and 1st Defendant complied. Plaintiff’s Submissions 61.Counsel for the Plaintiffs began his extensively lengthy submissions by restating in brief the history of the matter meanwhile condensed his submission into six (6) cogent issues. That said, the gist of the Plaintiffs submission anchors on the fact that the suit arises from a series of neurosurgical procedures performed by the 1st Defendant on the minor at the 2nd Defendant's hospital, which they contend were carried out negligently, without informed consent, and in violation of the minor's constitutional and statutory rights. They argue that the Defendants' acts and omissions caused catastrophic and irreversible brain damage, leaving the minor permanently disabled, wholly dependent on lifelong medical care, and incapable of living an independent life. 62.According to the Plaintiffs, the 1st Defendant proceeded with a neuro-endoscopic fenestration despite knowing that the minor was too young for safe surgery and that postponing the procedure for six (6) months to one year would have significantly reduced the risk of hemorrhage. They contend that he failed to disclose the high surgical risks, the benefits of delaying the procedure, and the existence of the alternative S7 procedure, thereby depriving the Plaintiffs the opportunity to give informed consent. They further submit that the failed surgery, improper placement of the Ommaya Reservoir leading to prolonged cerebrospinal fluid leakage and infection, improper placement of successive shunts, delayed remedial treatment, inadequate post-operative monitoring, premature discharge, and the retention of a foreign object in the minor's brain cumulatively caused the permanent injuries complained of. 63.The plaintiffs further argue that Kenyan medical negligence law has evolved from a purely common law tort regime to one founded upon the Constitution and the Health Act. Relying principally on English decision in Montgomery v Lanarkshire Health Board (2015) UKSC 11, they submit that the duty to disclose material risks and alternative treatment options is determined by the informational needs of the patient rather than professional medical practice under Bolam v Friern Hospital Management Committee (1957) 1 WLR 582. They contend that Articles 28, 35, 43 and 46 of the Constitution, together with Sections 8, 9 and 12 of the Health Act, impose statutory and constitutional duties requiring healthcare providers to obtain informed consent, respect patients' right to health, and provide medical treatment with the requisite skill, care and diligence. According to the Plaintiffs, the Defendants breached each of these duties, rendering them liable for the injuries sustained by the minor. 64.Firstly, submitting on the duty to obtain informed consent before carrying out any surgical procedure, the Plaintiffs argue that the Defendants breached their statutory and constitutional duty to obtain the parents' informed consent before performing the surgical procedures on the minor. They argue that Articles 28, 35, 43 and 46 of the Constitution, together with Sections 8 and 9 of the Health Act, require healthcare providers to disclose the patient's condition, material risks, available treatment options, their benefits and consequences, and the right to refuse treatment. They contend that any consent obtained without such disclosure is invalid and renders the procedure unlawful. 65.According to the Plaintiffs, both Defendants failed to disclose the approximately 50% risk of hemorrhage associated with the neuro-endoscopic fenestration, failed to inform the parents that postponing surgery for six (6) months to one year would significantly reduce that risk, and failed to disclose the existence and comparative advantages of the S7 procedure. They maintain that, had this information been provided, the parents would not have consented to the immediate surgery. 66.While calling to aid the English decision in Montgomery v Lanarkshire Health Board (supra), the Australian decision in Rogers v. Whitaker (1992) 175 CLR 479, Chappel v. Hart (1998) HCA55, the American decisions in Scott v Wilson 396 S.W 2d 532 (Tex. Civil App. 1965), Stewart v Long Island College Hospital 58 Misc. 2d 432, 296 N.Y.S 2d (Sup. Ct 1968), Custodio v Bauer 251 Cal. App. 2d 303, 59 Cal. Rptr (1967), Aiken v Clary (1965) 396 SW 2d 668, the Canadian decision in Reibl v Hughes (1980) 33 NR 361 (SCC) and the South African decision in Castell v De Greef (1994) (4) SA 408 (C) A the Plaintiffs posited that the duty of disclosure is patient-centered, requiring disclosure of all material risks, changes in the magnitude of those risks over time, and reasonable alternative treatments. 67.They submit that this duty is not governed by Bolam (supra) standard but by what information a reasonable patient would consider material. The Plaintiffs therefore contend that the parents' consent was not informed and was consequently invalid. They urge this Court to find that every surgical procedure performed on the minor was undertaken in breach of Section 8 and 9 of the Health Act and the Constitutional principles protecting patient autonomy and the right to make informed medical decisions. 68.Secondly, submitting on the Defendants duty to respect and uphold the minor’s right to health by abstaining from acts which jeopardize her health, the Plaintiffs argue that, apart from breaching the duty to obtain informed consent, the Defendants violated the minor's constitutional right to the highest attainable standard of health guaranteed under Article 43(1)(a) of the Constitution. They argue that every constitutional right carries a corresponding duty, relying on the writings of W.N. Holifield, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning", 23 Yale Law Journal (1913) 16, and that healthcare providers are under a duty to refrain from acts or omissions that jeopardize a patient's health. They further contend that, by virtue of Article 20(1) of the Constitution, the Bill of Rights binds both the State and private persons, relying on Currie I & de Waal J, The Bill of Rights Handbook (5th ed., Juta, 2010) 43 in support of the horizontal application of constitutional rights. 69.The Plaintiffs contend that the 1st Defendant violated the minor's right to health by improperly placing a ventricular catheter in her brain stem and by leaving a foreign object inside her brain. They argue that the evidence established that no foreign object ought to be placed in or touch the brain stem, that imaging confirmed the catheter was lodged in the brain stem, and that the resulting injury significantly contributed to the minor's permanent neurological deficits. They further submit that, even if the catheter migrated as alleged by the Defendants, the 1st Defendant was negligent for failing to promptly detect and remove it. The American decision in Harris v Fall, 177 F. 79, and the academic commentary in Joseph Askew, "Foreign Objects and Doctor's Liability", 3 North Carolina Central Law Review (1972) 185 were cited in the latter regard. 70.The Plaintiffs further submit that the 1st Defendant breached the minor's constitutional right to health by leaving a portion of the ventricular catheter inside her brain without informing her parents. Placing reliance on the decision in Amisi v Siaya County Referral Hospital [2022] KEHC 12117 (KLR) and St Damiano Medical Centre v Martin Simiyu Were [2022] KEHC 14094 (KLR), they argue that the presence of an unintended foreign object in a patient's body constitutes prima facie evidence of professional negligence and that the burden lies on the physician to explain its presence. They therefore contend that the improper placement of the catheter and the retention of a foreign object in the minor's brain amounted to breaches of the Defendants' constitutional duty to respect and uphold the minor's right to health and independently established professional negligence. 71.Thirdly, submitting on Defendants duty to exercise care and skill in the provision of medical services, the Plaintiffs posit that the Defendants breached their statutory and common law duty to exercise skill and care in the provision of medical services. They argue that this duty is founded on Section 12(2)(a) of the Health Act, which requires healthcare providers to provide treatment conscientiously, to the best of their knowledge, and within the scope of their practice and ability. They contend that the statutory standard is more exacting than the traditional common law standard, imposing on both Defendants a duty to provide the highest attainable standard of care. 72.According to the Plaintiffs, the 1st Defendant breached that duty by refusing to postpone the neuro-endoscopic fenestration despite evidence that delaying surgery by six (6) months to one year would have significantly reduced the risk of hemorrhage; negligently performing four unsuccessful surgical procedures; prematurely discharging the minor after insertion of the Ommaya reservoir, thereby exposing her to Klebsiella oxytoca infection; delaying the diagnosis and treatment of life-threatening complications; failing to adequately monitor the minor after discharge; failing to warn the parents of the serious risks posed by persistent cerebrospinal fluid leakage; and failing to disclose emerging complications requiring urgent intervention. 73.The Plaintiffs further submit that the neuro-endoscopic fenestration was negligently performed, resulting in massive intra-operative hemorrhage and abandonment of the procedure, after which the 1st Defendant inserted an Ommaya reservoir that was improperly positioned and subsequently leaked cerebrospinal fluid. They contend that despite repeated reports of CSF leakage, the 1st Defendant delayed removing the reservoir, leading to ventriculitis, cerebritis and permanent neurological injury. They argue that the subsequent insertion of the first cystoperitoneal shunt into the brain stem, the delay in replacing the non-functioning shunt, the failure of the replacement shunt, and the retention of a catheter fragment inside the minor's brain were further instances of negligent surgical management that materially contributed to the minor's permanent disabilities. 74.The Plaintiffs submit that expert evidence established that these acts and omissions fell below the standard of care expected of a competent neurosurgeon and directly caused the minor's irreversible brain damage. They therefore contend that the Defendants are liable for professional negligence arising from repeated breaches of their statutory and common law duty to exercise reasonable skill, care and diligence in the provision of medical treatment. A raft of medical commentary and the English decision in Cassidy v Ministry of Health (1951) 2KB 343 and Mahon v Osborne (1939) 2 KB 14, Amisi (supra), St Damiano Medical Centre (supra), the South African decisions in Lungile Ntsele v Mec for Health Hospital (2013) 2 AIISA 356 (GSJ), Sabina Nyakena Mwanga v Patrick Kigoro & Another [2015] eKLR and James Odundo v Charles Opondo & Another [2018] eKLR were relied on in the above regard. 75.Fourthly, concerning whether the Defendants actions were the proximate cause of the minor current medical condition the Plaintiffs submit that the evidence established, on a balance of probabilities, a direct causal connection between the Defendants' negligent acts and omissions and the catastrophic injuries sustained by the minor. They argue that the injuries were not attributable to the underlying Posterior Fossa Arachnoid Cyst or hydrocephalus, but were caused by the Defendants' repeated breaches of their duties to obtain informed consent, uphold the minor's constitutional right to health, and exercise reasonable skill and care throughout the course of treatment. 76.The Plaintiffs contend that the chain of causation commenced with the 1st Defendant's decision to undertake the neuro-endoscopic fenestration prematurely, despite the heightened risk of hemorrhage, and without disclosing that postponement would substantially reduce that risk. They submit that the resulting intra-operative hemorrhage necessitated abandonment of the procedure, leading to the insertion of the Ommaya reservoir, which was negligently positioned and allowed persistent cerebrospinal fluid leakage. They argue that the delayed removal of the reservoir resulted in ventriculitis and cerebritis, while the subsequent negligent placement of the cystoperitoneal shunt into the brain stem, the delay in replacing the malfunctioning shunt, and the retention of a catheter fragment inside the minor's brain compounded the neurological injury. According to the Plaintiffs, each negligent act materially contributed to the ultimate outcome and formed part of one continuous chain of causation. 77.The Plaintiffs rely heavily on the expert evidence of Dr. Sunit Medirata and Professor Michael Scott to submit that the permanent neurological injuries were caused by the intra-operative hemorrhage, cerebrospinal fluid infection, delayed treatment of complications, injury to the brain stem, and prolonged hydrocephalus arising from the Defendants' management of the minor. They contend that the expert evidence demonstrated that, had the Defendants exercised reasonable skill and care, disclosed the material risks and alternative treatment options, or delayed the surgery as recommended, the injuries sustained by the minor would probably have been avoided. 78.The Plaintiffs further submit that the burden of proving causation was satisfied through both direct medical evidence and reasonable inferences drawn from the surrounding circumstances. They argue that the Defendants failed to provide any credible alternative explanation for the catastrophic deterioration in the minor's condition following the surgeries or to rebut the Plaintiffs' expert evidence linking the injuries to the negligent treatment. Accordingly, they urge the Court to find that the Defendants' breaches were the factual and legal cause of the minor's permanent disabilities and that they are jointly liable for all resulting loss and damage. 79.Fifthly, submitting on the issue of awardable damages, the Plaintiffs contend that, having established liability, they are entitled to both special and general damages to fully compensate them for the financial, physical and emotional consequences of the Defendants' negligence. They seek special damages comprising medical expenses incurred in Kenya and India, loss of income suffered by the 2nd and 3rd Plaintiffs while caring for the minor, future medical and care expenses, together with general damages for the minor's pain, suffering and loss of amenities, general damages for the emotional pain, mental distress and anguish suffered by the 2nd and 3rd Plaintiffs costs of the suit and interest. 80.On special damages in the sum of Kshs. 17,828,245/-, the Plaintiffs rely on Joseph Kipkorir Rono v Kenya Breweries Limited & Another [2003] eKLR and Hahn v Singh [1985] KLR 716 to submit that special damages must be specifically pleaded and strictly proved. They contend that they have discharged this burden by producing receipts, invoices, medical records and other documentary evidence demonstrating medical expenses incurred in Kenya and India, non-medical expenses, loss of income and other pecuniary losses attributable to the Defendants' negligence. 81.On loss of income by the 2nd and 3rd Plaintiffs, the latter submit that both parents were compelled to abandon or substantially curtail their employment in order to provide full-time care to the minor. In particular it was argued that the 2nd Defendant reduced earnings and loss of career advancement opportunities in the total annual sum of Kshs.3,600,000/- whereas the 3rd Plaintiff equally abandoned assignment together with suspension of post-doctoral studied resulting in loss of earnings in the sum in the total annual sum of Kshs. 1,200,000/-. In summation the Plaintiffs pray for resulting annual loss of earnings in the Kshs. 4,800,000 as damages. 82.With respect to future expenses, the Plaintiffs submit that future medical care, rehabilitation and related costs in the sum of Kshs. 65,420,000/- are recoverable where specifically pleaded and proved. They rely on Tracom Limited & Another v Hassan Mohamed Adan [2009] KECA 48 (KLR) for the proposition that future medical expenses constitute a special claim requiring specific pleading and proof, Estate of Shamji Visram & Kurji Karsan v Shankerprasad Maganlal Bhatt and Others, Civil Appeal No. 25 of 1964, for the proposition that compensation should reflect the actual loss suffered by the Plaintiffs rather than any benefit accruing to the Defendants and on P K M (Suing on own behalf and as next friend of A J B) & G S M v Nairobi Women Hospital & Mutinda in support of the multiplier approach for assessing lifelong care costs. They contend that the minor will require permanent medical treatment, physiotherapy, speech therapy, specialized equipment, caregiving services, medication, transport, educational support and home modifications throughout her lifetime, and urge the Court to award the pleaded future expenses. 83.On general damages, the Plaintiffs submit that the minor has suffered permanent pain, suffering and complete loss of amenities as a consequence of the Defendants' negligence. Relying on JMA (Suing through BOA as Next Friend) & another v Registered Trustees of the Sisters of Mercy (Kenya) t/a Mater Misericordiae Hospital Registered Trustees of the Sisters of Mercy (Kenya) t/a Mater Misericordiae Hospital [2023] KEHC 17556 (KLR) and PKM (Suing on own behalf and as next friend of AJB) & another v Nairobi Women Hospital & another [2018] KEHC 6967 (KLR), they argue that the authorities support a substantial award given the severity and permanence of the minor's condition. They therefore pray for Kshs. 10,000,000 as general damages for the minor's pain, suffering and loss of amenities. 84.The Plaintiffs further submit that the Defendants' negligence has caused the 2nd and 3rd Plaintiffs severe emotional pain, psychological distress, mental anguish, anxiety, depression, sleep disturbance, loss of enjoyment of life and lifelong caregiving burdens. Relying again on JMA (supra), they contend that the emotional harm suffered by the parents in this case is significantly greater because of the minor's lifelong dependence and extensive care needs. They accordingly seek Kshs. 10,000,000 for each of the 2nd and 3rd Plaintiffs as general damages for emotional pain, psychological distress, mental anguish, loss of amenities and injured feelings. 85.Finally, the Plaintiffs seek costs pursuant to Section 27 of the Civil Procedure Act and interest under Section 26(1) of the Civil Procedure Act. They rely on Dipak Emporium v Bond's Clothing [1973] EA 553 to submit that interest on special damages should run from the date of filing suit, while interest on general damages should accrue from the date of judgment until payment in full. 1st, Defendant’s Submissions 86.On the part of the 1st Defendant’s equally lengthy submissions, which largely consisted of a restatement of the history and evidence adduced in the matter, condensed his submission into two (2) salient issues. As pertains to the agreed facts arising from the evidence, the 1st Defendant posits that the viva voce evidence disclosed substantial agreement between PW2, DW1 and DW2 on the material medical issues, thereby undermining the allegation of professional negligence. 87.He submits that all three witnesses agreed that the minor was born with an intracranial cyst, that the condition was life-threatening if left untreated and could result in brain damage, and that the procedures performed by the 1st Defendant were recognized standard neurosurgical procedures. The 1st Defendant further emphasizes that PW2 performed the same shunting procedure and that no evidence was led to show that the 1st Defendant departed from universally accepted medical practice. 88.He equally argues that the witnesses agreed that Ommaya reservoirs and shunts may fail and require revision, that PW2 similarly did not remove the original shunt because it was medically unsafe to do so, and that shunts are accepted medical devices implanted to divert cerebrospinal fluid notwithstanding that they remain as foreign objects in the brain. That the procedures carried inherent risks, including infection, hemorrhage, leakage and neurological deficits, all of which were disclosed to the parents as part of the informed consent process. 89.Meanwhile, the evidence established that the minor remains alive, albeit with neurological deficits, and that PW3 testified she is likely to attain normal consciousness if the prescribed nursing care plan is followed. On this basis, the 1st Defendant contends that the evidence demonstrates medically indicated treatment carried out in accordance with accepted neurosurgical practice rather than negligence. 90.Submitting on whether the 1st Defendant was in breach of any duty of care owed to the minor, the 1st Defendant posit that the Plaintiffs failed to establish, on a balance of probabilities, that he breached the duty of care owed to the minor or that any alleged breach caused the injuries complained of. That the applicable standard is the Bolam test, namely that a medical practitioner is not negligent where he acts in accordance with a practice accepted as proper by a responsible body of medical opinion, notwithstanding differences in professional judgment. 91.The 1st Defendant argues that the Courts should not equate recognized complications, unsuccessful outcomes or competing medical opinions with negligence, as the law recognizes that there may be more than one acceptable approach to diagnosis and treatment. Reliance was placed in the decisions in John Mutora Njuguna t/a Topkins Maternity & Clinic v Z W G [2017] KEHC 1143 (KLR); Bolam Case; The Administrator, H.H. The Aga Khan Platinum Jubilee Hospital v Busan Munyambu [1985] KECA 74 (KLR); Pope John Paul's Hospital & Another v Baby Kasozi [1974] EA 221; Nevill v Cooper (1958) EA 594; Herman Nyangala Tsuma v Kenya Hospital Association T/A The Nairobi Hospital & 2 Others [2012] KEHC 1451 (KLR); Wishaminya v Kenyatta National Hospital Board [2004] 2 EA 351; Ricarda Njoki Wahome (Suing as Administrator of the Estate of the Late Wahome Mutahi (Deceased)) v Attorney General & 2 Others [2015] KEHC 4929 (KLR); Pope John Paul’s Hospital & Another v Baby Kasozi [1974] EA 221; Fatma Habib Kurji v Mwangombe [2023] KEHC 21608 (KLR); Statpack Industries v James Mbithi Munyao [2005] eKLR; Odero v Aga Khan Hospital Kisumu [2024] KEHC 3408 (KLR); and Nairobi Hospital & Another v Mumo & 2 Others (Civil Appeal Nos. 137 & 150 of 2019 (Consolidated)) [2024] KEHC 7657 (KLR). 92.Applying the above principles, the Plaintiffs failed to prove any departure from accepted neurosurgical practice. That the evidence established the minor was born with a life-threatening intracranial cyst requiring intervention; the procedures performed were standard and universally accepted; the disclosed complications including bleeding, infection, shunt malfunction and the need for revision surgery were recognized inherent risks; and that the minor’s parents were informed of those risks before each procedure. 93.The 1st Defendant further submits that the Plaintiffs' own expert, PW2, acknowledged that the procedures undertaken were standard, accepted worldwide, carried recognized failure rates, and that revision surgery was the accepted remedy where shunt failure occurred. Although PW2 attributed negligence to the retained shunt, he also admitted that he did not remove the original shunt during his own intervention, thereby undermining the allegation that its retention constituted negligence. 94.The 1st Defendant further contends that the Plaintiffs failed to establish causation. That liability in medical negligence requires proof that the alleged breach directly caused the injury complained of, and that the Plaintiffs failed to demonstrate that the minor's neurological deficits resulted from any negligent act or omission by the 1st Defendant rather than the underlying congenital condition or the inherent risks associated with treatment. The 1st Defendant argues that the evidence instead demonstrated that the interventions were medically indicated, successfully relieved intracranial pressure when performed, and were necessary to prevent further deterioration or death. Accordingly, the 1st Defendant hinges that the Plaintiffs failed to prove breach of duty, causation or professional negligence, and that the suit should therefore be dismissed. 95.On whether Plaintiffs are entitled to damages as pleaded, the 1st Defendant qualifies that without prejudice to the primary submission that no liability has been established, if the Court does find a breach of duty, the damages sought by the Plaintiffs ought to be substantially limited. The 1st Defendant relies on Nairobi Hospital & Another v Mumo & 2 Others (supra), for the settled principles that damages are compensatory rather than punitive, must be commensurate with the injuries proved, guided by comparable awards while considering inflation, and should neither be inordinately high nor low. 96.That the claim for past medical expenses is not recoverable because the evidence established that the minor was born with a life-threatening congenital intracranial condition requiring urgent medical treatment irrespective of who rendered the treatment. The 1st Defendant goes on to posit that the Plaintiffs failed to adduce evidence demonstrating alternative treatment elsewhere would have resulted in different or lower medical expenses. 97.Regarding the claim for the parents' estimated annual loss of earnings, the 1st Defendant submits that it fails for want of proof of proximate causation, as no evidence was tendered establishing a causal nexus between the alleged loss of earnings and any act or omission of the 1st Defendant. Reliance was placed on the decisions in Hydro Water Well (K) Limited v Sechere & 2 Others (sued in their representative capacity as the officers of Chae Kenya Society) & 2 Others [2021] KEHC 22 (KLR) for the principle that recoverable damages must be the proximate consequence of the alleged breach and not merely remote or speculative. 98.The Defendant further submits that the claims for future medical expenses, school fees and assistive equipment are speculative, as PW2 did not identify the future treatment, medication or equipment that would be required. In any event, PW3's evidence was that the minor could attain normal consciousness if the prescribed nursing care plan was followed, further undermining the speculative nature of those future claims. 99.In conclusion, the 1st Defendant submits that the claim for general damages for pain, suffering and loss of amenities was unsupported by evidence establishing the degree or percentage of permanent disability attributable to the alleged negligence. As a guide, the Defendant relies on JPS v Aga Khan Health Service, Kenya t/a The Aga Khan Hospital & 2 Others [2006] KEHC 2134 (KLR), where Kshs. 800,000 was awarded for a comparable condition, and submits that, allowing for inflation, an award of Kshs. 1,600,000/- would be adequate had liability been established. Accordingly, the Defendant urges the Court to reject the Plaintiffs' claim for special and future damages as unproven and speculative and, in the alternative, to make only a modest award consistent with comparable authorities. Analysis and Determination 100.The Court having carefully considered the respective parties’ pleadings, the evidence adduced, and the parties' elaborate lengthy written submissions, it postulates that the issues for determination concern-;a.Whether the Plaintiffs proved, on a balance of probabilities, that the 1st Defendant was professionally negligent in the diagnosis, treatment, surgical management of the minor and or the 1st Defendant actions, and by extension the 2nd Defendant, were the proximate cause of the minor’s attendant sequela, thereby breaching the applicable duty of care owed to the minor?b.Whether the Plaintiffs are entitled to the reliefs sought in the plaint, to wit, general damages, special damages, future medical expenses, future care costs, loss of earnings and costs of the suit, and if so, the appropriate quantum?c.Who ought to bear the costs of the suit? Whether the Plaintiffs proved, on a balance of probabilities, that the 1st Defendant was professionally negligent in the diagnosis, treatment, surgical management of the minor and or the 1st Defendant actions and by extension the 2nd Defendant, were the proximate cause of the minor’s attendant sequela, thereby breaching the applicable duty of care owed to the Plaintiff (minor)? 101.Pertinent to the determination of issues before this Court are the pleadings, which formed the basis of the parties’ respective cases before this Court. Concerning the latter, the Court of Appeal in Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91 observed that-“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” 102.Further, the applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” 103.With above in reserve, what I garner to be the undisputed facts are as follows. Essentially, the parties agree that the (minor) was born with a congenital posterior fossa (intracranial) cyst (arachnoid cyst), a condition which, if left untreated, was life-threatening and likely to result in progressive brain damage. It is further common ground that the 1st Defendant, a consultant neurosurgeon, attended to the minor and performed a series of neurosurgical procedures, including fenestration, insertion of an Ommaya reservoir, its subsequent removal, insertion of a ventriculoperitoneal (VP) shunt, and a later shunt revision, following the diagnosis and progression of the minor's condition. 104.The parties are also in agreement that the procedures undertaken by the 1st Defendant are recognized and accepted neurosurgical procedures for the management of the minor’s condition, and that such procedures inherently carry recognized risks and complications, including infection, hemorrhage, shunt malfunction, neurological deficits and the possible need for revision surgery. It is equally undisputed that shunt failure is a recognized complication of treatment and that revision surgery may become necessary in appropriate cases. 105.The Court further notes that the parties were equally in agreement that the minor subsequently underwent further neurosurgical management under another specialist in India, who similarly employed a shunting procedure and did not remove the original shunt catheter because of the attendant surgical risks. That the minor is presently alive but suffers neurological deficits requiring continued medical management and supportive care. 106.Consequently, it would appear to me that the principal contestation between the parties is not the nature of the minor's underlying illness, the necessity of neurosurgical intervention, or the recognized risks attendant to such treatment, but whether the Defendants management departed from the standard of care expected of a reasonably competent neurosurgeon and, if so, whether any such departure caused the injuries and losses alleged by the Plaintiffs. 107.With the above in reserve, as noted elsewhere in this judgment, the Plaintiffs suit is founded on the tort of negligence and breach of an implied duty of care. As to the common law scope of negligence, the Court of Appeal in SO & JM v Nathan M. Murugu, Lucy Muchiri, Bessie Byakika, Nairobi Hospital, AAR Health Services & Medical Practitioners and Dentist Board [2019] KECA 709 (KLR) observed concerning the tort of negligence that -;“Negligence is a specific tort whose origin can be traced from the common law jurisprudence. The case of Donoghue v Stevenson [1932] ALL ER 1 established the modern law of negligence, laying the foundations of the duty of care and the fault principle. The elements which constitute a negligent tort are: a person must owe a duty or service to the victim in question; the individual who owes the duty must violate the promise or obligation; an injury then must arise because of that specific violation; and the injury must have been reasonably foreseeable as a result of the person's negligent actions. See Kenya Breweries Ltd. V. Godfrey Odoyo Civil Appeal No. 127 of 2007. 108.It is trite that the onus of proving any alleged negligence, breach of statutory obligations and or lack of exercise of due care and skill as dictated under common law, lies with the party alleging the same. As stated in Halsbury’s Laws of England 4th Edition, Pg. 662:“The burden of proof in an action for damages for negligence rests primarily on the plaintiff who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the breach of duty a causal connection must be established.” 109.Meanwhile, the authors in, Clerk & Lindsell on Torts, 18th Edition, Pg. 600 Para. 4, on their part, identified the essentials on an action for breach of statutory duty to constitute: -“(1)The claimant must show that the damage he suffered falls within the ambit of the statute mainly that it was of the type that the legislation was intended to prevent and that the claimant belonged to the category of persons that the statute was intended to protect. It is not sufficient to imply that the loss could not have occurred if the defendant had complied with the terms of the statute.This rule performs a function similar to that of remoteness of damages.(2)It must be proved that the statutory duty was breached. The standard of liability varies considerably with the wording of the statute, ranging from liability in negligence to strict liability.(3)As with other torts, the claimant must prove that the breach of statutory duty caused his loss, which he will fail to do if the damage caused would have occurred in any event.(4)Finally, there is the question whether there are any defences available to the action.” 110.As to medical negligence, recently the Court of Appeal in Nyaga v Ibaya & 3 others [2025] KECA 2086 (KLR) observed that-;“……….In allegations of medical negligence, the standard to be considered cannot be that of a reasonable man on the street. The standard to be applied is that of an averagely skilled practitioner in the field of medicine. The standard set for medical practitioners is now settled in our jurisdiction; the courts continue to apply the Bolam test as encapsulated in the notable case of Bolam vs. Friern Hospital Management Committee [1957] 1 WLR 583, where the court stated:“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill… It is a well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art… In the case of a medical man, negligence means failure to act in accordance with the standard of a reasonably competent medical man at that time…. There may be one or more perfectly proper standards, and if a medical man conforms to one of these proper standards, then he is not negligent.” 111.Further to the above, this Court agrees with John Healy in his book on Medical Malpractice Law, Round Hall 2009, Pg. 38, Para. 1-65 wherein he succinctly put it that-;“the modern test of professional misconduct embraces conduct that falls seriously short of the expected standards” 112.The particulars of the respective Defendants negligence were pleaded at Paragraph 12 of the plaint. Nevertheless, at this juncture, I wish to first dispose of the Plaintiffs case as against the 2nd Defendant for reasons that I believe would be prudent and in good order. 113.In light of the latter, the question that begs is whether a cause of action can sustain as against the 2nd Defendant?It is not in dispute that the minor received treatment in respect of her congenital malformation at the 2nd Defendant’s hospital. The Court equally garners from the bundle of documents appearing at Pexh.1, that in the course of the PW2’s antenatal clinic, she first visited the Aga Khan University Hospital on 17/10/2017. Thereafter, she appears to have attended to the 2nd Defendant’s hospital, to wit, she was referred to the 1st Defendant for a neurosurgical consult over her unborn baby due to an observed Posterior Fossa Cyst. Thus, it is on the premise of the above set of facts, among others earlier pointed out in this judgment, that the Plaintiffs pleaded as against the 2nd Defendant particulars of negligence encapsulating purported actualities of negligence. 114.Firstly, concerning whether the 2nd Defendant was negligent by referring the Plaintiffs to 1st Defendant under the notion that the latter had the requisite expertise to handle the minor’s condition?At the risk of repetition, by his evidence before this Court 1st Defendant described himself as a Consultant Neurosurgeon registered and licensed to practice under the Medical Practitioners and Dentist Act. He was equally categorical that he was not an employee of the 2nd Defendant and that he only had admitting privileges at the hospital, to wit, he was paying the requisite fee for the aforestated since 2007. 115.I also garner from both PW4 and DW2’s evidence that the 1st Defendant is a qualified, highly skilled and one of the leading neurosurgeons in Kenya. While the Plaintiffs appear to impugn the 1st Defendant’s expertise, there was no evidence placed before this Court to suggest that the 1st Defendant lacked the requisite expertise to handle the minors’ condition. 116.As such, for all intended purposes, the 2nd Defendant was well within its mandate to refer the Plaintiffs to the 1st Defendant who was and remains a qualified neurosurgeon in Kenya. In any event, the Plaintiffs were not obligated to specifically consult the 2nd Defendant given that from both PW4 and DW2’s evidence there were other specialists in the said field available for consultation, if the Plaintiffs so required. 117.Secondly, on whether the 2nd Defendant failed to provide an effective system of consultation between neurosurgeons to minimize the risk of misdiagnosis and eliminate surgical errors? I repeat my earlier sentiments that the 1st Defendant was an independent privately practicing consultant with admission rights to the 2nd Defendant facility. This was reflected from the admission request letters authored by the 1st Defendant and addressed to the 2nd Defendant (Dexh.1), often seeking admission of the minor under his care at the said facility.Purposefully, the 1st Defendant was neither the latter’s employee, servant and or agent in respect of the minor’s treatment and or for any connected purposes. 118.I also note from the Discharge Summary, evinced in Pexh.1, that the 1st Defendant always captured his contact information, and not that of the 2nd Defendant, for follow ups and treatments. Likewise, the Plaintiffs were always at liberty to seek second opinion in respect of any diagnosis and intended cause of action resorted to by the 1st Defendant in respect of any perceived misdiagnosis or surgical errors. Therefore, it would be arduous in the circumstance to find the 2nd Defendant negligent in respect of the above query. 119.Thirdly, on whether the 2nd Defendant failed to provide effective supervision over the 1st defendant? here I need not belabor on issue give my earlier finding that the 1st Defendant never pleaded or proved that the 2nd Defendant’s was an employee, servant and or agent, to wit, the latter would be held vicarious liable for any acts and omissions during the course of the minor treatment at the 2nd Defendant’s hospital. 120.I reasonably believe that his admissions privileges and or credentials at the 2nd Defendant hospital, as a licensed neurosurgeon, was limited to place patients requiring any form of neurosurgical treatment at the 2nd Defendant under his own name for the purpose of managing treatment and or coordinate inpatient care. 121.While I agree with the 1st Defendant’s proposition concerning his nexus to the 2nd Defendant, ultimately the latter bore the responsibility of ensuring proper screening, monitoring and or foresee any possible harm with respect to all physicians with admission privileges at its facility.Here, there was no evidence placed before this Court in the aforestated regard to warrant a finding of liability against the 2nd Defendant as a consequence of direct agency. Whereas, I also note that the Plaintiffs case did not concern negligence of 2nd Defendant servants and or employees. 122.In totality of the above, this Court concurs with Odunga, J. (as he then was) in JOO & 2 others v Okutoyi & 2 others [2019] KEHC 10919 (KLR), wherein while equally addressing himself to issue of whether a hospital could be held liable for acts or omissions of a consulting surgeon or specialist, he cited the authors in Charlesworth & Percy on Negligence (13th Ed.), English decisions in Cassidy v Ministry of Health [1951] 2 KB 343 & Gold v Essex County Council [1942] 2 KB 293 and the Canadian decision in Yepremian v Scarborough General Hospital (1980) 28 OR (2d) 494 (CA) in arriving at the determination that where a patient personally selects and retains a consultant surgeon who merely has admitting or operating privileges at a private hospital, the hospital is not vicariously liable for that consultant's negligent acts simply because the surgery was performed in the hospital. He was emphatic that liability depends upon who employed or retained the doctor. 123.Moving on to the case as against the 1st Defendant, as stated elsewhere in this judgment, despite the Plaintiffs having impugned the latter’s expertise and knowledge to handle the minor condition, no evidence was presented to the contrary. 124.PW4 and DW2 were categorical that the 1st Defendant is one of the leading neurosurgeons in Kenya. Meanwhile, both PW2 and DW2 alongside the expert opinion by Dr. Michael Scott appearing in Pexh.1, despite the minor’s medical complication, dovetails on the fact that the minor’s condition was congenital and would be appropriately managed by way of a VP shunt. 125.Palpably, the 1st Defendant’s earliest medical report dated 16/11/2017 appearing in Dexh.1, captured the minor’s diagnosis and prognosis as requiring some sort of Cerebrospinal fluid (CSF) flow diversion which was dependent on the results of the minor’s imaging and performance status. 126.Subsequently, in his medical report of 16/01/2018 upon diagnosing the minor with hydrocephalus and increased head size, the 1st Defendant proposed as an immediate recourse to conduct an endoscopic penetration and or placement of a ventriculoperitoneal shunt (VP shunt). Here it is needless to reinstate ostensibly that the 1st Defendant was alive to the nature of the minor’s ailment and recourse to be taken, of which, in my view the end medical approach on management of the minor’s condition, as accounted by the medical experts, was unanimous. 127.The 1st Defendant’s position was that on examination of the minor, scans revealed raised pressure in her head hence he could not delay intervention by way of surgery given that her condition was life threatening. It is on the premise of the above finding the 1st Defendant employed a series of procedures beginning with an endoscopic fenestration, later installation of an external ventricular drain thereafter placement and removal of an ommaya reservoir, to wit, a variable pressure cystoperitoneal shunt, was ultimately fitted. 128.The Plaintiffs have advanced the position that the series of actions undertaken by the 1st Defendant constituted a delay in diagnosis which led to the minor’s deterioration, the 1st Defendant adopted treatment procedures that caused the minor to suffer irreparable brain damage and that the 1st Defendant made surgical errors, therefore the latter ought to be found negligence. 129.PW2 was of the view that the minor ought not to have been operated on at six (6) weeks unless she had a specific issue and that he would have waited for six (6) months to undertake procedures on the minor. Both PW2 and 1st Defendant agreed that the procedure undertaken on the minor had a higher percentage of success if the minor was six (6) months or older. While the above position may have been obtained, the 1st Defendant who was the immediate specialist doctor examining the minor assessed the necessity of urgent medical intervention given the attendant symptoms observed therefore I reasonably believe that he could not be faulted for being negligent for such an attempts. 130.On the above, the Court of Appeal in The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Busan Munyambu [1985] KECA 74 (KLR) while addressing itself to the right test that ought to be applied in diagnosis and treatment on the part of surgeons, anesthetists and nurses cites English decisions to the effect that-;“Lord Scarman in his speech in the House of Lords in Maynard v West Midlands Regional Health Authority 1983 The Times May 9 said:“Differences of opinion and practice exist, and will always exist, in the medical field as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgement. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence.”If there are two respectable and responsible schools of medical thought holding different or opposing views of what is or is not negligent in the circumstances of the case the trial judge ought not to choose between them.The House approved of Lord Clyde’s test in Hunter v Harley (1955) SC 200:“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other men... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to have been guilty of such failure as no doctor of ordinary skill would be guilty of it acting with ordinary care.” 131.Applying my mind to the above rendition, I rationally believe that 1st Defendant in taking necessary steps to alleviate the minor’s immediate distress, despite the attendant complications and sequela visited upon the minor, his approach was neither negligent nor in breach of his duty of care towards the minor. He promptly identified the minor’s urgent medical needs and employed the appropriate medical intervention to assuage the situation. 132.In any event, it necessitates that I mention that at the material times relevant to the issue in controversy, the Plaintiffs were alive to the minor’s medical condition and if they had any reservations as to the 1st Defendant’s intended medical approach they ought to have sought a second opinion with a view of whether to continue with the intended treatment course and or opt out of the same. Here, they did not. They fully had faith in the 1st Defendant’s ability as a seasoned neurosurgeon. 133.On first admission of the minor in 2018, she was being attended to by an attending doctor from the 2nd Defendant and the 1st Defendant as the consulting specialist in respect of her congenital condition that had manifested thereby requiring urgent medical intervention. 134.DW1 did testify as to his academic and professional qualifications whereas he identified various publications he had authored within the space of his profession, all spanning onwards of 35 years. Reasonably, he had the necessary wherewithal to immediately address himself to the minor’s affliction without having to refer to other specialists within his field of profession. 135.Meanwhile, given that the 1st Defendant was the consulting specialist on the condition afflicting the minor, with no evidence that his expertise was questionable, it would be absurd to impose a duty on the 1st Defendant to at all material times consult his fellow specialists in neurosurgery before charting a course of plan, in respect of all his patient. In any event no evidence was adduced that he did not do so, as it is also a practice in the medical field for consultants and doctors to consult each other, but without saying so or disclosing to the patients. 136.Indeed it is not entirely true that the 1st Defendant unilaterally made decisions without consulting other neurosurgeons as DW1 in his evidence confirmed in his testimony that he had examined the minor on more than one occasion, reviewed the medical records, imaging, and reports authored by DW1 and other treating practitioners and discussed the child's management with DW1. To the above end, negligence cannot be attributed towards the 1st Defendant for having opted for a particular course of treatment given the minor obtaining condition at the time. 137.As to whether procedure(s) carried out on the minor were done negligently, without informed consent in violation of the minor's constitutional and statutory right?Article 28 of the Constitution guarantees every person's inherent dignity and the right to have that dignity respected and protected; Article 35(1)(b) secures the right to access information necessary for the exercise or protection of a right or fundamental freedom; Article 43(1)(a) guarantees the right to the highest attainable standard of health; and Article 46 protects consumers by guaranteeing access to quality goods and services, adequate information, protection of their health, safety, and economic interests, and compensation for any loss suffered. 138.Localizing the above constitutional provisions to the Health Act, Section 2 of the Act defines informed consent as “a process of getting permission before conducting a healthcare prevention on a person “Section 8 of the Act requires healthcare providers to give patients, or where applicable their guardians, sufficient information about their health status, available treatment options, the benefits, risks, costs and consequences of each option, and the right to refuse treatment together with the implications of such refusal. The information must, where possible, be communicated in a language and manner the patient understands. 139.Meanwhile, Section 9 of the same Act provides that no specified health service may be provided without the patient's informed consent, except in limited circumstances prescribed by the Act. And that healthcare providers must take all reasonable steps to obtain informed consent. Whereas, Section 12 of the aforestated Act sets out the rights and duties of healthcare providers. It imposes a duty to provide healthcare competently, render emergency treatment, and ensure patients are informed of their health status in a manner they can understand. It is on the premise of the above provision that the Plaintiffs based their claim of the Defendants breach of their statutory duty of care. 140.Odunga, J. observations concerning the question of consent in JOO & 2 others (supra), was to the effect that doctors ought to expressly obtain consents from their patients or parents unless the case is an emergency one before proceeding with surgery. On the same issue, Njuguna, J. (as she then was) in BS v Jonardan D. Patel [2019] KEHC 8716 (KLR) took the position that the “requirement of a consent before a surgery can be undertaken and failure by the defendant to obtain the required consent from the plaintiff cannot be excused.” 141.In an earlier decision the same Court in HWK v Rachel N. Kang’ethe & Karen Hospital Nairobi [2019] KEHC 1753 (KLR), while addressing itself to consent stated that-:“In my view, consent is not only required in cases of operation but also in normal treatments of patients, which in most cases is implied and especially in cases where a patient freely walks in a hospital for treatment. The issue of consent was also discussed by the court in the case of PBS vs. Archdiocese of Nairobi Kenya Registered Trustees & 2 others (2016) eKLR in which the court cited the medical journal thus;“Expectations of a patient are two fold. Doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly they will not do anything to harm the patient in any manner either because of their negligence, carelessness or recklessness or altitude of their staff. Though a doctor may not be in a position to save his patient’s life at all times, he is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him. Therefore, it is expected that a doctor will carry out a report from the patient. Furthermore, unless it is an emergency, he obtained informed consent of the parties before proceeding with any major treatment, surgical operation even invasive investigation. Failure of doctor and hospital to discharge this obligation is essentially tortious liability.According to Medical Malpractice Law by John Healy (Barrister at law) the common law has drawn a distinction between the failure to obtain a patient's basic or real consent (attracting civil liability in trespass for battery) and failure to provide sufficient information to enable a patient to understand the broader implication of the proposed intervention (attracting liability in negligence as a breach of doctors duty of care in and around the giving of medical advice). The law on trespass has established that to obtain a patient’s consent to a medical intervention, it is both necessary and sufficient to explain the “nature and purpose” of the intervention.It is important to note that the cause of action herein is that of trespass, assault and illegal confinement on account of lack of consent and not one of medical negligence. 142.At this juncture, it is important to note that the issue concerning the 1st Defendant’s violation of the minor's constitutional and statutory right for failing to obtain an informed consent were not pleaded in the body of the Plaint or as a part of the particulars of negligence. The same was only canvassed by the respective parties at the submissions stage. Here, It would be remiss if I do not reiterate the settled position as observed in the case of Galaxy Paints Co. Limited v Falcon Guards Limited [2000] 2 EA 385, that the issues for determination in a suit generally flow from the pleadings and a trial Court can only pronounce judgment on the issues arising from the pleadings or such issues as the parties framed for determination. 143.Nevertheless, I note from the proceedings before this Court, the issue transiently arose during re-examination of the 1st Defendant and was submitted on by the respective parties. 144.The Plaintiffs made heavy weather of fact that 1st Defendant made surgical errors that bore attendant consequence which afflicted the minor. Captured earlier in this judgment the 1st Defendant performed a series of neurosurgical procedures among them being neuro-endoscopic fenestration, insertion of an Ommaya reservoir, its subsequent removal, insertion of a ventriculoperitoneal (VP) shunt, shunt revision. Subsequently, additional procedures by way of nissen fundoplication and gastrostomy were equally performed on the minor. 145.It was PW1’s evidence that in the course of the minor’s treatment she suffered from hemorrhaging, CSF leakages, infections, brain injury, complicated hydrocephalus, hypotonia, epileptic seizures, poor eyesight and aspiration pneumonia. PW2, DW1 & DW2 all concurred that complications after certain intrusive medical proceedings, such as the one performed on the minor, are sometimes expected and or occur. That while the brain is undeniably a very sensitive organ any complications affecting it can be life threatening. 146.On the issue, a review of Pexh.1 and Dexh.1, it is apparent that the requisite informed consents were obtained from the Plaintiffs prior to any of the procedures being performed on the minor. A cursory review of the continuation sheet at Pexh.1 captures notes on varied dates by the 1st Defendant wherein the latter and or the attending doctors note that consent was sought and attendant risks concerning procedures, such as hemorrhaging, infection and blockage, were communicated and explained to the minors relatives, to which i believe were the parents. The goal of obtaining informed consent serves the purpose of envisioning the likelihood of portended risk, if any. Therefore, the Court is not convinced that procedures done by the 1st Defendant were undertaken negligently and without the requisite informed consent by the parents. 147.Concerning whether 1st Defendant was negligent in piercing the minor’s brain stem and or whether the 1st Defendant was negligent for leaving a piece of the shunt? Here, it necessitates that I restate that the compatible fact throughout these proceedings was that the minor, before its birth, was diagnosed with an existing posterior fossa cyst and hydrocephalus requiring neurosurgical intervention. My understanding of the above from the proceedings and evidence before this Court is that the posterior fossa cyst was located at the back of the brain right near the base of the skull and above the neck, a region I also gather from the instant proceedings houses the cerebellum and brainstem. 148.It is apparent from the clinical notes that the nature of the procedure employed by the 1st Defendant would require placement of a shunt within the area localized at the base of the skull and above the neck in order to evacuate, divert or release dangerous intracranial pressure from the brain and cysts. 149.DW1’s evidence was to the effect that he used the correct shunt size of which was functional at installation whereas he did not place it in the minor’s brain stem. PW2’s testimony was that the shunt was in an incorrect position as it was not functioning as intended whereas any corrective measures or replacement ought to have been carried out immediately a CT Scan shows within 24-48 hours that the shunt is malfunctioning. 150.In support of the PW2’s testimony the Plaintiffs evinced an axial slice of the minor’s CT scan demonstrating artifact interference (a piece of the shunt) still in place. A cursory review of the latter, while it does confirm the artifact in question, is inconclusive as to incorrect placement of the shunt given that the CT scan is dated 12/04/2019. In my view, the Plaintiffs would have successfully attributed negligence as against the 1st Defendant had they adduced a CT scan done immediately after the procedure, indicative of the fact that shunt was indeed placed within the brain stem area. 151.Why do I say so? DW1 did acknowledge that indeed part of the 1st stunt was left in place given his inability to remove the same, to wit, he extensively explained to the family the implications of retaining parts of the 1st shunt.Whereas, if it was a question of the shunt being negligently left in place with associated possibility of its removal, PW2 ought to have been in a position to remove the same as at when he installed the second shunt. He too failed to remove it. It appears in all probability that leaving the shunt in place was a clinical decision intended to avert any adverse outcome as a consequence of its extraction. 152.Nonetheless, while this Court cannot assert being endowed with medical knowledge, deductive reason would extrapolate that the unfortunate congenital condition in question afflicted the minor in her formative years. It is in the latter years that the brain develops both physically and psychologically. 153.Logic would thus dictate that due to the continued growth of the minor’s brain the initial shunt/artifact, that was in situ, would be incorporated within and alongside the developing brain, and the continued buildup of fluid in the brain. The above logic can equally be gathered from Paragraph 19 of DW2’s report dated 20/07/2022 adduced as part of Dexh.1. Consequently, the Plaintiffs assertion of negligence as against the 1st Defendant for purportedly piercing the minor’s brain stem and leaving a piece of the shunt in situ of the minor head cannot attach in the circumstance. 154.On whether the 1st Defendant was negligent for adopting an ineffective drug regime to treat the minor? Again, as can be garnered from the medical notes the diagnosis of minor’s posterior fossa arachnoid cyst had the effect of causing hydrocephalus. My understanding of the above condition as can be construed from the clinical notes placed before this Court, is that, the effect of the above condition was that other than the cyst filling with up with fluid, it equally obstructs the normal pathways of cerebrospinal fluid (CSF) in the brain. 155.It was the 1st Defendant’s evidence that alongside other medication he prescribed to manage the minor’s attendant symptoms he equally prescribed Diamox, a drug used to manage the production of brain fluid.Indubitably, the prominent difficulty that confronted the minor physicians was repeated and continuous buildup of fluids in the minor’s brain. In an attempt to curb the issue, the 1st Defendant employed varied procedures to alleviate the minor’s distress. Meanwhile, PW2 confirmed that when a shunt fails, a patient is placed on Diamox to reduce emission of excess fluid in the brain. In light of the latter’s evidence, I find it strenuous to sustain the argument that the 1st Defendant adopted and or persisted with an ineffective drug regime. 156.Concerning the 1st Defendant’s failure to employ alternative treatment alternative, here this Court had also pointed out earlier in this judgment that the minor’s condition was congenital having been diagnosed before her birth whereas the medical expert’s opinion in the matter was in concurrence that placement of a ventriculoperitoneal shunt was the medical solution to manage the minor’s condition. 157.It can equally be garnered from the proceedings in the matter that the 1st Defendant eventually installed the shunt after attempting other medical procedures to manage the minor’s immediate medical concerns. 158.As earlier stated in this judgment, the 1st Defendant was a seasoned neurologist who employed treatment remedies he best knew would be able to manage the minor’s condition. The methodology adopted by the 1st Defendant throughout the minors treatment, though questioned by PW2, were not in themselves unrecognized standards in the neurological medical industry, to thus be deemed inappropriate and by extension negligent, as confirmed by DW2. 159.In any event, alternative remedies, as I gather, to the minor’s condition included neuro-endoscopic fenestration and external ventricular drain (EVD) all of which were employed to manage the minor’s pressing medical condition. 160.Therefore, I reasonably believe that failure on the part of the 1st Defendant to employ Specialized Neuronavigation Systems (S7) towards diagnosis and treatment of the Plaintiff cannot be deemed to have been negligent whereas there was no empirical evidence tendered before the Court that, its use would have most likely raised the chance of success in treatment of the minor’s condition. 161.Meanwhile, there was equally no evidence to the effect that there existed other recognized medical procedure(s) capable of managing the minor’s condition, of which, were not employed by the 1st Defendant, at the relevant time, available in Kenyan hospitals. 162.On whether the 1st Defendant was negligent and in breach of his duty of care for failing to effectively communicate with the Plaintiffs throughout the procedure? Here, in support of the above assertion the Plaintiffs relied on a bundle of screen grab messages between themselves and the 1st Defendant adduced in Pexh.1.Firstly, I note from the medical notes appearing in the Continuation Sheets that the minor’s medical treatment was effectively documented and communicated. Secondly, in the respective discharge summary’s the 1st Defendant being the consulting specialist availed his contact information for purposes of follow up and consultation.Thirdly, given the 1st Defendant profession he would have been more than likely heavily engaged with other patients and like related activities, which seems to appear from the screen grab messages placed before this Court when he was communicating with the minor’s parent whenever they inquired of information from the 1st Defendant as at when an issue arose with the minor. 163.I also note that the 1st Defendant was responsive in his messaging by way of directing the Plaintiffs on the next cause of action whenever they inquired of the same. On the latter, the 1st Defendant confirmed during his testimony that he promptly communicated to the minor’s parents on what to do once he was informed of CSF leakage and thereafter rapidly carried out medical intervention. The attempts at medical intervention can equally be garnered from the medical treatment notes. 164.Fourthly, had there been any perceived challenges as to the 1st Defendant modus of communication the Plaintiffs were equally availed of the option to change the attending specialist if there was need to do the same, all in the urgent best interest of the minor. Therefore, I am equally not convinced that the 1st Defendant was negligent on the above front as purported by the Plaintiffs. 165.Having reasonably addressed myself to the Plaintiffs grievance, the aforestated bring to mind, Kemei, J.’s decision in St. Damiano Medical Centre v Were (suing on behalf of the Estate of the Late Doris Nafula Palanga) [2022] KEHC 14094 (KLR), wherein he proceeded to quote -;“ 41.In the Indian Journal of Urology VOL 25(3) July September 2009 PMC 2779963, medical negligence is considered in a legal perspective by M.S Pandit and Shobha Pandit, it is stated that:'A patient approaching a doctor expects medical treatment with all the knowledge and skill that the doctor possesses to bring relief to his medical problem. The relationship takes the shape of a contract retaining the essential elements of a tort. A doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against the doctor.' 42.The Medical Journal further states that:'Expectations of a patient are to fold: -doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly, they will not do anything to harm the patient in any manner either because of their negligence, carelessness, or reckless attitude of their staff. Though a doctor may not be in a position to save his patient’s life at all times he is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him.” 166.In conclusion, I find and hold that the Plaintiffs have failed to meet the threshold on proof of medical negligence, and breach of duty of care, for reasons earlier illuminated in this judgment. Thus, having analyzed the evidence on record, under Section 107 of the Evidence Act, the burden of proof lay with the Plaintiffs and if their evidence did not support the facts pleaded, they failed as the party with the burden of proof. See the case of Wareham t/a A.F. Wareham (supra). 167.The Plaintiffs case is therefore dismissed as against the Defendants. 168.However, this Court is required to assess the quantum of damages had the Plaintiffs successfully pleaded and proved their case.In the assessment of damages, the guiding principles were spelt out by the Court of Appeal in SJ v Francesco D. Nello & Another [2015] eKLR as follows: -“The guiding principle in the assessment of damages has been the subject of numerous authorities. For the purposes of this case, we refer to the Ossuman Mohammed & Another vs. Saluro Bundi Mohamud, CA 30/1997 (unreported) wherein the following passage, in the case of Kigaragari vs. Aya (1982 – 1988), KAR 768 is employed;“Damages must be within limits set out by decided cases and also within limits the Kenyan economy can afford. Large awards are inevitably passed on the members of the public, the vast majority of whom cannot afford the burden in the form of increased costs of insurance or increased fees. Over time, courts have held that damages should not be so inordinately low or so inordinately high as to be a wholly erroneous estimate of damage.” 169.Meanwhile, it is trite that a claim founded on future medical expenses must be specifically pleaded and proved. That said, decisions on special damages are replete and this Court does not intend to reinvent the wheel on the same. Chesoni, J (as he then was) in the case of Ouma v Nairobi City Council (1976) KLR 304 held that -:“Thus, for a plaintiff to succeed on a claim for special damages he must plead it with sufficient particularity and must also prove it by evidence. As to the particularity necessary for pleading and the evidence in proof of special damage the court’s view is as laid down in the English leading case on pleading and proof of damages, Ratcliffe v Evans (1892) 2 QB 524 where Bowen L J said at pages 532, 533;-The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”See also-; David Bagine v Martin Bundi [1997] eKLR and Hahn -v- Singh [1985] KLR 716. 170.Bearing the foregoing authorities in mind, and having carefully considered the parties' respective submissions on the appropriate award of general damages together with comparable awards made by superior courts, I would have assessed general damages for the minor’s for pain, suffering and loss of amenities at Kshs. 8,000,000/-. 171.Turning to the claims set out under the summary of expenses incurred and the particulars of future medical and related expenses pleaded at paragraphs 19 and 20 of the Plaint, I observe that these constitute claims for special damages and future medical expenses. 172.At the outset, and at the risk of repetition, I agree with the 1st Defendant's submission that it was beyond dispute that the minor was born with a life-threatening congenital condition which, by its very nature, was capable only of management and not cure. It therefore follows that, even if the medical interventions undertaken by the 1st Defendant had been wholly successful, the 2nd and 3rd Plaintiffs would nonetheless have remained responsible for providing for the minor with lifelong specialized medical care and treatment. 173.In those circumstances, I find that the sums pleaded at paragraphs 19 and 20 of the Plaint appear to have been calculated on the erroneous premise that the minor was born healthy and free from any congenital condition. That was plainly not the factual position. It would therefore be illogical to conclude that the entirety of the itemized expenses would have been incurred solely as a consequence of the matters complained of. Accordingly, I am satisfied that the Plaintiffs would only have been entitled to recover an appropriate proportion of the sums pleaded under those heads. 174.Before leaving this issue, I find it necessary to observe that the Plaintiffs, at paragraph 19 of the Plaint, included claims relating to the minor's treatment in India, travel-related expenses attendant thereto, parking charges at Nairobi Hospital, food, caregiver expenses, personal hygiene costs, airtime and counselling services among others. 175.In my view, the decision to seek treatment for the minor in India was an elective one. No evidence was adduced to demonstrate that the minor's condition could only have been effectively managed or treated in that jurisdiction. Indeed, had the Plaintiffs elected to seek treatment in another foreign jurisdiction where the attendant expenses were double or even quadruple those incurred in India, it could hardly be suggested that the Court would be bound to award such expenditure merely because it had been incurred. I think not. Claims of this nature must, in my view, satisfy the requirements of reasonableness and proportionality. 176.To award every expense simply because it was incurred, without regard to whether it was reasonable and commensurate in the circumstances, would lead to an untenable and absurd result. 177.Similarly, and for reasons akin to those applicable to the expenses pleaded at paragraph 17 of the Plaint, I find that the claims relating to parking charges at Nairobi Hospital, caregiver expenses, personal hygiene costs, airtime and counselling services are too remote to attract compensation. Those claims are therefore declined in their entirety. Final Disposition 178.The Court has sufficiently addressed itself to the matter before it. The final orders are as follows-;a.The Plaintiffs suit as against the Defendants is dismissed in its entirety.b.On costs, for reasons earlier stated, applying my mind to provisions of Section 27 of the Civil Procedure Act, and the circumstance and facts of this suit, 1 order that each party bears its own costs of the suit. 179.Had the Plaintiffs suit succeed, Judgment would have been entered solely as against the 1st Defendant in the following terms :1.On liability: The 1st Defendant would have been held wholly (100%) liable.2.On special damages for Kshs. 17,828,245/- as particularized in paragraph 19 of the plaint: The Court would have awarded 30% of the tabulated figure in respect of (medical expenses in Kenya (procedures), medical expenses in Kenya (medication), occupational therapy & feeding tubes. For avoidance of doubt, the other tabulated expenses would be declined.3.On special damages for the 2nd and 3rd Plaintiffs as particularized in paragraph 17 of the plaint: The Court would have declined the same in toto.4.On general damages for the minor’s for the pain, suffering and loss of amenities: The Court would award Kshs. 8,000,000/-.5.On general damages for the 2nd and 3rd Plaintiffs: The Court would have declined the same in toto.6.On costs of future medical expenses, school fees and adaptive equipment for the rest of the minor’s life as particularized in paragraph 20 of the plaint: the Court would have awarded 30% of the total tabulated sum of Kshs. 65,420,000/-.7.Lastly, the Court would have awarded interest on (2) above from the date of filing suit and interest on (4) & (6) above from the date of judgment until payment in full, with costs being borne by the 1st Defendant.Orders Accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2026.……………………….JANET MULWA.JUDGE