[2022] KEHC 14094 (KLR)

St. Damiano Medical Centre v Were (suing on behalf of the Estate of the Late Doris Nafula Palanga) (Civil Appeal E005 of 2020) [2022] KEHC 14094 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14094 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal E005 of 2020

DK Kemei, J

October 12, 2022

Between

St. Damiano Medical Centre

Appellant

and

Martin Simiyu Were (suing on behalf of the Estate of the Late Doris Nafula Palanga)

Respondent

(Being an Appeal from the judgement of CAS Mutai Senior Principal Magistrate given on 16th October, 2020 in Bungoma CMCC No. 99 of 2017, Martin Simiyu Were (suing for and on behalf of the estate of the late Doris Nafula Palanga vs St. Damiano Medical Centre)

Judgment

1. The Respondent sued the Appellant in the lower court seeking general damages under the Law Reform Act and the Fatal Accidents Act on behalf of the estate of Doris Nafula Palanga pursuant to mismanagement of the deceased who had been under their care which led to her premature death on December 10, 2014. He also prayed for special damages, costs of the suit and interest.

2. The facts giving rise to this cause of action is that the deceased was the wife to the Respondent who had been married to him since November 18, 2003 under customary law and proceeded to have the same registered under the Marriage Act CAP 150. Both of them were trained in the security sector with the deceased working with the Kenya Defence Forces prior to her death. They were blessed with two children namely LN and DHS.

3. The particulars of negligence attributed to the Appellant are:i.Failing to offer a caesarian section operation to the deceased at the right time.ii.Manually pulling out the placenta causing uterine rapture leading to extensive haemorrhage causing death.iii.Failing to maintain any due care and maintenance of the delivery upon realizing that the baby had been born with an umbilical cord around its neck.

4. The deceased was then expecting her third-born child at the time of her demise. That unborn child also died.

5. The Respondent avers in their plaint that at all material times to the suit the deceased was admitted as a patient at the Appellant’s medical centre and was due to give birth to her third child. That, on December 10, 2014 the membranes of the deceased raptured and that the following morning at around 10. 30 am the second stage of labour was around noon on December 11, 2014 when the baby was delivered with a cord around the neck. There was placenta retention which was manually removed by the midwife. Thereafter the patient experienced server postpartum haemorrhage and later died at 2. 10 pm.

6. The particulars of negligence attributed to the hospital are the same as what was alleged against the doctors who attended to the deceased. The Respondent also relied on the doctrine of Res Ipsa Loquitur.

7. It was averred that as a result of the aforesaid matters, the deceased underwent great pain and suffering, lost the unborn term baby, and she eventually died. She lost her expectation of life. Her dependants and estate have also as a result suffered loss and damage for which the Appellant should be held liable. The Respondent further pleaded that the deceased lost the unborn baby for which damages are claimed. The dependants were particularized as:a.Martin Simiyu Were Wabomba, Husbandb.LN, daughterc.DHS, son

8. It was further averred that the Respondent lodged a complaint against the Appellant at the Medical Practitioners and Dentists Board; PIC case No 3 of 2015 pursuant to the provision of the Medical Practitioners and Dentists Act Cap 253 Laws of Kenya wherein the Preliminary Inquiry Committee found the Appellant guilty and was admonished and sentenced.

9. As a result, the Respondent claimed general damages for the loss of the unborn child, general damages under the Law Reform Act and the Fatal Accidents Act, as well as special damage for:a.General damages for pain and suffering before death.b.General damages for lost expectation of life.c.General damages for lost earnings.d.Funeral expenses -100,000/=e.Cost and interest.

10. The Appellant was served with the summons to enter an appearance and it duly entered appearance and filed a defence denying all the adverse averments in the plaint and called for strict proof of the claim. The matter proceeded to full hearing with the Respondent calling one witness. At the close of the Respondent’s case the Appellant did not avail any witnesses. Judgment was finally entered against the Appellant which was found to be vicariously liable and the following awards were made:Pain and suffering Kshs 60,0000/=Loss of Dependency 12×26×42,166× 2/3 Kshs 8, 770, 528/=Loss of consortium Kshs 1,000,000/=TOTAL Kshs 9,830,528/=Costs of the suit and interest

11. The Appellant herein, being dissatisfied with the judgement and decree of Hon CAS Mutai Senior Principal Magistrate delivered on October 16, 2020 in Bungoma CMCC No 99 of 2017 appeals against the said judgement/decree and has set forth the following grounds of appeal:i.The learned trial magistrate erred in fact in holding that the Respondent had proved negligence against the Appellant.ii.The learned trial magistrate failed to consider and/or ignored the Appellants’ submissions filed in court erroneously holding/stating that the Appellant had not filed such submissions.iii.The learned trial magistrate erred in fact in failing to realize that the Respondent did not plead any cause of action against the Appellant.iv.The learned trial magistrate erred in fact in failing to realize and hold that the alleged particulars of negligence set out in the plaint were not stated to be against the Appellant and were expressed in such wide and general terms as to be ambiguous, vague and unacceptable.v.The learned trial magistrate erred in fact in failing to find that the decision of the preliminary inquiry committee relied upon by the Respondent was a nullity and did not amount to evidence or proof of negligence against the Appellant.vi.The learned trial magistrate erred in fact in finding that the Respondent had established negligence against the Appellant without analysis of the evidence and without making any findings at all of such negligence and what it entailed.vii.The learned trial magistrate failed in law to analyze the evidence of PW-1 and to make suitable findings thereon.viii.The learned trial magistrate failed to appreciate that the Preliminary Inquiry Committee’s decision had not been ratified by the Board, and that the Preliminary Inquiry Committee decision was accordingly, a nullity for being made without jurisdiction.ix.The learned trial magistrate erred in fact in failing to realize that the Respondent did not discharge the onus of proving medical negligence placed by law on the Respondent.x.The learned trial magistrate failed in law and in fact in failing to realize that in medical negligence claims, the test to be applied is that of the ordinary skilled man exercising and professing that skill.xi.The learned trial magistrate erred in law and in fact in awarding general damages for loss of dependency while using the gross salary of the deceased as the multiplicand instead of her net income.xii.The learned trial magistrate erred in law and in fact in using a multiplier of 26 years for a 32-year-old deceased without applying the correct principles, in particular that comparable cases attract comparable awards and without considering the vagaries and vicissitudes of life.xiii.The learned trial magistrate erred in law and in fact in applying dependency ration of 2/3 without applying the correct principles and without assigning any valid reasons therefore and while the evidence showed that the Respondent contributed more to the family than the deceased.xiv.The learned trial magistrate erred in law and fact in awarding general damages for loss of consortium without analyzing the authorities cited before him by the Appellant.

12. This being a first appeal, this court is enjoined to revisit the evidence that was before the trial court afresh, analyze it, evaluate it and arrive at its own independent findings and conclusions, but always bearing in mind that the trial court had the benefit of seeing the witnesses, hearing them and observing their demeanour and giving allowance for that. See the case of Selle vs Associated Motor Boat Company (1968) EA 123.

13. A perusal of the lower court record shows that the Respondent testified as PW2. He told the court that on December 10, 2014 he took his wife who was expectant to the Appellant for delivering their third born child. In the morning the deceased experienced labour pains and was taken to the wards for delivery at about 8. 00 to 9. 00 pm. At around 10. 30 to 11. 00 am he was informed that she had died. He told the court that this was as a result of the Appellant’s negligence as he had not been informed of any complications and he was given a death certificate which he produced in Court as Pexhibit-IV. He reported the matter to the Kenya Doctors and Dentist Board and a ruling was issued on the same which he produced in court as Pexhibit-v. In the ruling, the Board confirmed that it was a case of negligence. He proceeded to take out letters of administration ad litem dated February 17, 2017 which he produced as P exhibit-VII.He stated that the deceased was a military officer with the KDF and as per her pay-slip she earned a net pay of Kshs 93, 856. 25/= and another Kshs 100,0000/= as a volleyball coach as she was also an international volleyball player, a referee and a volleyball coach. He produced her pay slips as follows:i.August 1, 2013 -Pexhibit-VII(a)ii.June 30, 2016 -Pexhibit-VII(b)iii.September 2010 --Pexhibit-VII(c)iv.April 2010 -Pexhibit-VII(d)v.November 2014 -Pexhibit Vii(e)He further produced bundles of certificates and letters of commendations as Pexhibit- IIX.He told the court that they were blessed with two children and he produced their birth certificates as Pexhibit- IX (a) and (b) respectively. He also produced their marriage certificate as Pexhibit-X.On cross examination, he told the court that, he appeared before the Preliminary Inquiry Committee when he testified and it was the KMPDB that found it was the board’s finding that the hospital staff were admonished and it did not find the hospital itself negligent and no names of the doctor or midwife were given in the report. According to him, the deceased was at the time of her death still an employee of KDF earning a gross pay of Kshs 42, 166/= with a net of Kshs 33,666/= and that she was paid by the clubs she was playing for through cash. He noted that he lacked proof showing that she played in any volleyball team.On re-examination, he told the court that his wife died while still pregnant.

14. On February 18, 2020 the Appellant closed its case without calling witnesses.

15. The appeal was canvassed by way of written submissions. Learned counsels duly complied and filed their respective submissions.

16. It was the Appellant’s submission that the trial court misdirected itself on the assessment of quantum and the apportionment of liability. It urged this court to find merit in the appeal and allow the same by setting aside the lower court’s judgement and grant costs of the lower court and the appeal to the appellant.

17. The Respondent submitted that he demonstrated via pages 57 and 58 of the pay slips that the deceased earned a basic salary of Kshs 111,698. 55/= whenever she was on special missions at the United Nations and when she was not on active mission, she earned a salary Kshs 33,666/= and further earned Kshs 100,000/= from playing volleyball for the national team. He urged this court to carefully examine this evidence and come to a conclusion that indeed the deceased was not just an exemplary military officer but a celebrated captain of the Kenya Women’s National Volleyball Team and she earned extra pay from her talents.

18. On the multiplier, the Respondent submitted that the deceased was 32 years of age and would have retired at the age of 62 years and thus urged the court to use a multiplier of 30 years as she would have lived a happy life and she would earn between Kshs 33, 666/= and 111, 698. 55/=.

19. The Respondent submitted that the threshold set out to prove loss of dependency and consortium were indeed met and set out in the pleadings as buttressed herein and that the Appellant had the opportunity to cross-examine on the same.

20. On the aspect of exception to the rule that parties are bound by their pleadings, the Respondent’s submission was that the exception arising from the above case is as binding before this court as it is aimed at achieving the aim of justice and equity. Counsel further submitted that the Court of Appeal set the exception to the binding nature of pleadings to the extent to inter alia; where an issue not in the pleadings arises in the course of the proceedings and where the same is fully canvassed by the parties. According to the Respondent, they did so in their written submissions before the lower court and in the same submissions and proceedings, the Appellant had the chance to counter but failed to make submissions and prayers to the extent of loss of dependency. It was the Respondent’s final submission that it is only fair and in the interest of justice that, upon the loss of life, such prayer be granted to the Respondent as the same accrues as a matter of equity and justice.

21. On the aspect of liability, the Respondent urged this court to consider the evidence adduced during the trial of the case and find that evidence could only lead to one conclusion, that the Appellant was negligent in the death of the deceased. The Respondent availed the evidence from the Kenya Medical and Dentists Practitioners Board and that the said decision was never challenged nor appealed against by the Appellant. Also, the Appellants via their own admission admitted that there was: poor and slow communication between staff at maternity and others; few skilled staff available at the time of the disaster; deficient blood reserves and no colloids at the pharmacy.

22. The Respondent urged this court to dismiss the appeal and uphold the decision of the lower court, granting costs both in the lower court and this appeal.

23. I have carefully considered the Appellant’s appeal, and evidence, as well as the submissions by their counsel on record and the authorities, cited. In my humble view, the issues that flow for determination are:i.Who was to blame for the death of the deceased?ii.Whether the appellant can be held vicariously liable for acts of its employees.iii.What damages are awardable?iv.Who should bear costs of the suit?

24. On the first issue of who should blame for the death of the deceased, it is worth noting that this is a medical negligence case and therefore the question would be whether the appellant is jointly and severally liable for negligence in their management of the deceased leading to unfortunate demise.

25. According to PW2, he took his wife to the appellant’s hospital and was later admitted at St. Damiano Hospital and on December 10, 2014 at 9. 00 am the deceased went into early labour. At around 10. 30 am the following day, she was reported to have developed precipitate labour and was alleged to have delivered a still born baby with a cord round the neck. The placenta retention which was normally removed by the midwife was not removed and thereafter she experienced severe postpartum hemorrhage and later passed on at 2. 10 pm.

26. PW1, Kevin Murimi Wachiari, told the court that he works with KMDPB and was authorized to tender evidence on its behalf (Pexhibit I a). He stated that the Board delivered its ruling (Pexhibit II) in which the appellant was admonished and fined over the circumstances leading to the demise of the Respondent’s wife.

27. With the above revelations, the Respondent lodged a complaint with the Medical Practitioners and Dentists Board on January 26, 2015 who opened a preliminary inquiry into the demise of the deceased to establish whether the Appellant could have contributed to the death through medical negligence. Vide its decision as communicated to the Respondent and the Appellant dated April 26, 2016 PIC case No 3 of 2015, the Medical Practitioners and Dentists Board’s Preliminary Inquiry Committee decision and ratified by the full Board found that:i.The patient should have had a caesarian section operation earlier; the complaint against the Appellant was proved satisfactorily and that the same has merit and the Board proceeded to direct that;a.The Appellant and the medical officer at the facility be admonished for the delay in managing the deceased and failing to undertake caesarian section on the deceased under the circumstances of the deceased’s condition at the material time;b.That the Board do arrange and undertake a joint inspection of the facility at St Damiano Medical Centre and prepare a report on its finding;c.That the Appellant do enter into mediation with the Estate of the deceased with a view of compensation and update the chairman of the KMPDB within 90 days; andd.That the Appellant do pay the KMPDM the sum of Kshs 50,000/= within 30 days.

28. The PIC decision was signed by Dr. David Truman Kiima, Ag Chairman PIC. The Respondent also produced all the hospital records of the deceased as held by them showing how the deceased was received, admitted and managed by the Respondent’s hospital and the doctors who attended to her.

29. In defence, the Respondent’s Maternal Mortality Review Committee Meeting minutes dated December 19, 2014 it was established that the following technical deficiencies were noted: poor or slow communication between staff at maternity and others; few skilled staff available at the time of disaster; deficient blood reserves and no colloids at the pharmacy.

30. What emerges from this is that the lack of promptness to conduct caesarian section was the key cause of the death of the deceased. The Respondent medic-in-charge ought to have resorted to that in efforts to save the deceased and her unborn baby. If that were not the case, then the Medical Practitioners and Dentists Board PIC would not have found the Respondent’s complaint meritorious; and reprimand both the medic who was handling her and the Appellant.

31. In my humble view, the Respondent owed the deceased a duty of care and that they breached that duty of care when they immediately noted that there was delay/poor progression of labour and opted to augment labour with syntocinon awaiting the establishment of active labour and at the second stage of labour with the deceased with the fetal head down at introitus with the shoulder deep in the pelvis and an untwined umbilical cord on the neck of an asphyxiated baby, Caesarian would have been the best rapid mode of delivery to avoid further fetal or maternal complications. The Respondent in my humble view, was obliged to mitigate the risk which they did not. Furthermore, they have not participated in these proceedings to tell us that there was no way of mitigating that risk to the satisfaction of the court. The appellant, despite being served with the Respondent’s pleadings and the evidence tendered, opted not to challenge the evidence as well as damning conclusions by the Appellant’s supervisor namely Kenya Practitioners and Dentist Board. It would thus leave no doubt that the respondent’s evidence was uncontroverted in any manner whatsoever.

32. In Pope John Paul’s Hospital & Another V Baby Kasosi [1974] EA 221 the East African Court of Appeal held:'If a professional man professes an art, he must reasonably be skilled in it. He must also be careful, but the standard of care, which the law requires, is not insurance against accidental slips. It is such a defence a degree of care as normally skillful member of the profession may reasonably be expected to exercise in the actual circumstances of the case, and, in applying the duty of care to the care of a surgeon, it is peculiarity necessary to have regard to the different kinds of circumstances that may present themselves for urgent attention. A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correctly greater. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. In cases charging medical negligence, a court should be careful not to construe everything that goes wrong in the cause of medical treatment as amounting to negligence. The courts would be doing a disservice to the community at large if they were to impose a liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion required the courts to have regard to the conditions in which hospitals and doctors work. They must insist on due care for the patient t every point, but must not condemn as negligence that which is only a misadventure. To the extent of not confusing negligence with misadventure, clear proof of negligence is necessary in cases involving medical men, but it cannot be accepted that the burden of proving such negligence is higher than in ordinary cases. The burden is to prove that the damage was caused by negligence and was not a question of misadventure, and that burden must be discharged on a preponderance of evidence. In medical cases, the fact that something has gone wrong is not in itself any evidence of negligence. In surgical operations, there are, inevitably, risks on the other hand, of course, in a case like this, there are points where the onus must shift, where a judge or injury might infer negligence, particularly if available witnesses who would throw light on what happened were not called.'

33. From the above decision, it follows that the standard of care is the standard expected of a particular profession to which the defendant belongs and not that of a reasonable man. Further, the mere fact that there was misadventure in managing a patient does not in itself sustain a tort of professional medical negligence. Ringera J (as he then was) in K& K Amman Ltd V Mount Kenya Game Ranch Ltd & 3 Others HCC 6076/96stated that:'For one to prove professional negligence against a professional person, one has to call evidence that the professional conducted himself with less than the competence, diligence and skill expected of an ordinary professional in his field or otherwise persuade the court that the acts or omissions complained of were manifestly or patently negligent.'

34. This court also observes from the aforementioned decisions that, unlike drivers of motor vehicles, professionals such as doctors do not operate in a defined set of circumstances. They are nevertheless required to follow accepted medical practices, and unless it can be proven that a doctor departed from accepted practice and did so in a way that caused harm or injury, the doctor will be held accountable for negligence. A doctor in this case is also required to defend their actions in court by arguing that they were not negligent in how they handled the patient, that they followed all rules and guidelines, and that any harm or loss was the result of an accident rather than carelessness. This is the case since only the doctors who are possessed of that specialized knowledge of how a patient in the state in which the deceased was could be managed.

35. In the instant case, the doctor and the hospital administration chose not to testify so as to inform the trial court that the opted more rapid assisted delivery performed on the deceased could not have been risky in the circumstances and that it was a safe mode of managing the deceased’s current condition.The appellant did not demonstrate to the trial court that there was no other alternative means of managing the deceased other than the 'McRoberts maneuver', as the ultra sound scan had shown that the foetus was normal and the only challenge was the untwined umbilical cord on the neck of the foetus. In Embu Public Road Services Ltd V Riimi [1968] EA 22 the court stated that:'Where the circumstances of the accident give rise to the inference of negligence then the defendant in order to escape liability has to show that there was a probable cause of the accident which does not connote negligence or that the explanation for the accident was consistent only with an absence of negligence.'

36. In the instant case, the Appellant chose not to advance their theory that the deceased’s death was due to a misadventure after they had done all that they had done or could have done in the circumstances to save the life of the deceased and her unborn child. There is no evidence to show that there was a probable cause of the deceased’s death which did not connote negligence or even an explanation for the death, consistent only with an absence of negligence on the part of the Appellant.

37. In Nandwa V Kenya Kazi Ltd [1988] KLR 488 the Court of Appeal held that:'In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if, in the cause of trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendants’ evidence provides some answer adequate to displace that inference.'

38. Although the above decisions were made in road traffic accident claims, but the principles enunciated are applicable in claims of the tort of negligence and I have no hesitation in applying them to this suit, since the principle arises from the application of section 112 of the Evidence Act Cap 80 Laws of Kenya which enacts that:'In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him'

39. InCA 178/2003 Rahab Michere Murage V Attorney General & 2 Others [2015] e KLR, the Court of Appeal observed that:'The conduct of the respondents appears to us to suggest that they deliberately withheld evidence as to the cause of the accident to frustrate the appellant’s suit. Section 112 of the Evidence Act Cap 80 of the Laws of Kenya, we think, was meant to deal with situations as those in the present case.'

40. In the above case, the respondent was not an eye witness to the accident. The appellant was. Particulars of negligence were set out against the appellant but the appellant through its servants or agents never appeared in court to testify and to provide an explanation as to why the accident occurred leading to the demise of the deceased Doris Nafula Pauline. The Court of Appeal applied section 112 of the Evidence Act and found in favour of the Appellant whose case had been dismissed by Angawa J on the ground that since the plaintiff was not an eye witness to the accident, she should have called evidence to prove negligence and that she had failed to prove her case against the defendants on a balance of probabilities.

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. Therefore, it is expected that a doctor carries out a report from the patient. Furthermore, unless it is an emergency, he obtains informed consent of the parties before proceeding with any major treatment, surgical operation, or even invasive investigation. Failure of a doctor and hospital to discharge this obligation is essentially a tortuous liability.'

43. The evidence adduced in this case shows that clearly, there was no emergency in the case of the deceased when she was first admitted for monitoring of fetal movement and preparations to give birth.That being the case, the adoption of the 'Mc Roberts maneuver' more rapid assisted delivery, was a risky affair. The PIC too found the Appellant culpable for medical negligence with the appropriate details of the same. This court finds that the Respondent has on a balance of probabilities proved that the Appellants did not administer proper maternal care on the deceased. This in my view, is not a case where proper treatment was given but nonetheless death occurred due to the process admistered during fetal delivery and maternal care. It is a case where even the Medical Practitioners and Dentists Board PIC found that the failure to undertake a caesarian section on the deceased under the described circumstances herein led to the death of the deceased and her unborn child.

44. Based on the above evidence, I therefore have no hesitation in finding that the Appellant did not merely make errors of judgment, but that they fell short of the standard of reasonable medical care in the manner in which they managed the deceased. This is also supported by the medical literature Respondent availed in the form of the PIC ruling as well as evidence adduced by the official from the Board. At this juncture, I do concur with the brief analysed holding of the trial court on the Appellant’s liability.

45. Before departing from the issue of who was to blame for the unfortunate demise of the deceased, I must answer the question of vicarious liability. In my humble view, the medical officer in charge of the deceased was the hospital’s agent or servant at the material time. Courts have held that a hospital would be vicariously liable for negligence of its doctors /nurses or even consultants. In M (a minor) Vs Amulega & Another (2001) KLR 420, the court stated that:'Authorities who own a hospital are in law under the self-same duty as the humblest doctor. Whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot of course do it by themselves. They must do it by the staff whom they employ and if their staff is negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him. It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital. They are liable for the negligent acts of a member of the hospital staff, which constitutes a breach of that duty of care owed by him to the plaintiff thus there has been acceptance from the courts that hospital authorities are in fact liable for breach of duty by its members of staff. It is trite law that a medical practitioner owes a duty of care to his patients to take all due to his patients to take all due care, caution and diligence in the treatment.'66. In Byrne V Ryan [2007] IEHC 207 where the plaintiff claimed for damages for negligence arising from a failed sterilization, through tubal ligation carried out on her subsequent to which she bore two children, one of the issues for determination was the question of vicarious liability, if any, of a public hospital for the negligence of a consultant doctor or its staff in treatment a public patient. The court held that a hospital authority is vicariously liable for a consultant that is employed and paid, not by a patient, but by the hospital; and that in that case, the performance of the operation was part of a service provided by the hospital to the plaintiff. In Cassidy V Ministry of Health [1951] 2 KB at page 362 Lord Denning L J stated that:'Where the doctor or surgeon, be he consultant or not, is employed and paid, not by the patient, but by the hospital authorities, I am of the opinion that the hospital authorities are liable for his negligence in treating the patient.' ( See also Roe V Ministry of Health [1954] 2 QB 66. From the above analysis, it is clear that the Appellant will be vicariously liable for acts of medical officers who handled the case of the deceased as they were to be found attending to patients at the hospital with its authority. The Appellant is consequently found to be liable in negligence at 100%. The deceased could not under any circumstance be said to have contributed to the factors that led to her demise since as a patient she had no control in the manner the appellant’s employees handled her,

46. The next issue for determination relates to the extent of damages the Respondent would be entitled to, having proved negligence on the part of the Respondent. In this case, a scrutiny of the plaint reveals that the claim is based on general damages under the Law Reform Act and the Fatal Accidents Act as pleaded. On the claim of general damages, the Respondent pleaded and submitted under several heads:i.Damages under the Law Reform Act. Pain and suffering : Kshs 180,000/= was proposed by the Respondent in the trial court’s submissions. Counsel relied on the case ofP B S & another v Archdiocese of Nairobi Kenya Registered Trustees & 2 others [2016] eKLR where an award of Kshs 100,000/= was made. Counsel argued that in this instant case the suffering was inordinately prolonged and the deceased died within some two days of hospitalization. On perusal of the trial court’s proceedings, it is noted that the Appellant never raised any contentions to this award vide submissions. The trial court made an award of Kshs 60,000/=. In this case, the deceased experienced placenta retention which was manually removed by a midwife and thereafter suffered postpartum haemorrhage that led to her death. I find that a sum of Kshs 100,000/= damages for pain and suffering would adequately compensate the Respondent for the pain and suffering his wife went through that material day before she died at 2. 10 pm and find the case relied upon by the Respondent relevant. I hereby set aside the award of the trial court and substitute the same with an award of Kshs 100,000/=.ii.Loss of expectation of life. The Respondent prayed for the sum of Kshs 300,000 based on the case of West Kenya Sugar Co Limited vs Philip Sumba Julaya (suing as the administrator and personal representative of the estate of James Julaya Sumba (2019) eKLR where the deceased died at the age of 38 years and was awarded Kshs 200,000/=. On perusal of the trial court’s proceedings, it is noted that the Appellant never raised any contentions to this award vide submissions. The trial court appears not to have made an award under this heading. In my humble view, as the deceased was 32 years old, I proceed to make an award of Kshs 100,000/= which is reasonable and conventional damages under this head.iii.On the claim for damages under the Fatal Accident’s Act, the Respondent prayed for loss of dependency. He produced a death certificate for the deceased, grant of letters of administration intestate, birth certificates for the two children alive, a marriage certificate showing his marital status and relationship with the deceased and pay slips showing her profession as a security expert and her earnings. The deceased was aged 32 years at her demise. She was married with two children who were aged between 11 years and 7 years. The deceased was earning a net of Kshs 33, 666/=. She was aged 32 years, as per her pays lips produced in evidence. I note that the same would increase when she was on a special mission to the UN and she got compensated for playing volleyball. The court deduces that she was an employee, of the Kenya defence forces and as such will only rely on her pays lip from the KDF as she was compensated separately for her missions to the UN. The deceased was a permanent and pensionable employee of the Government of Kenya. The life expectancy as per statistics given by the World Bank is 66. 7 years. At that time, the retirement age was 60 years. She would have worked for the next 28 years until her retirement. There was nothing to show that she was of poor health or that her life would have been shortened had it not been for the negligence of the appellant. I would take her earnings per month to be Kshs 33, 666/= and a multiplier of 22 years. On the dependency ratio, the Respondent prayed for 2/3. However, the Respondent who is working did not show that the deceased spend 2/3 of her income on her family. He also, no doubt had a duty to contribute to the well-being of his family. There is no rule of thumb that 2/3 is the ratio to be applied.Considering that both spouses were working, I would adopt a dependency ratio of ½ thus Kshs 33, 666 x 12 x 25 x ½= Kshs 5, 049, 900/=. I am guided by the decision of Beatrice Wangui Thairu V Honourable Ezekiel Barngetuny & Another Nairobi HCC 1638 of 1988 unreported wherein Ringera J ( as he then was ), held as follows, concerning the claim under Fatal Accident Act:'The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years’ purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and the dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.'Further, the court in the above Beatrice Wangui Thairu case held that:'I am constrained to observe that there is no rule of law that two thirds of the income of a person is taken as available for his family expenses. The extent of dependency is a question of fact to be determined in each case. Where a trial court adopts two thirds of the income to value of dependency, this is no more than a finding of fact that such is reasonable in the particular case.Unfortunately those findings of fact have for long masqueraded as holdings on points of law and counsel appearing before courts may be forgiven for assuming them to be the law. They are not. It takes a discerning court to put the law back to track. If I may say with admiration, such was the appellate bench in Boru Onduu [1982-1992] 2 KAR 288. 'Since the above Beatrice Wangui Thairu decision , the courts have adopted that holding as the correct legal position for assessment of damages under the Fatal Accidents Act and in regard to determining loss of dependency.In the instant appeal, the multiplicand is the net income of the deceased which is her gross income less tax per month as already calculated above. The multiplier is the number of years of expectation of her earning life to retirement and the dependency of her dependants.From the foregoing, I proceeded to set aside the award of the trial court and substitute the same with the award of Kshs 5, 049, 900/=.e.On the claim for loss of consortium, the Respondent did not plead the same in his pleadings. I hereby find that the trial magistrate misdirected himself in making an award under this head while the same had not been pleaded by the Respondent. Parties are bound by pleadings. Parties should not be allowed to use submissions as pleadings or to correct any error on their pleadings. Consequently, the award made by the trial court regarding the same is hereby set aside.

47. On special damages, the law is trite that special damages must not only be specifically pleaded but they must be strictly proved. SeeZakaria Waweru Thumbi V Samuel Thuku [2006] e KLR affirming the decision of the Court of Appeal in Hahn V Singh CA 42/83. According to the Respondent, the funeral expenses pleaded were Kshs 100,000/- but he only produced receipts in support of the same amounting to Kshs 30,000/= invoice for professional autopsy fee and Kshs 12, 800/= morgue billing sheet. Hence, i set aside the holding of the trial court with regards to special damages and substitute it with an award of Kshs 42, 800/=.

48. In the result, it is my finding that the appeal against liability lacks merit and is dismissed. The appeal on quantum partly succeeds to the extent that the orders of Hon CAS Mutai dated the October 10, 2020 are hereby set aside and substituted with judgement being entered for the Respondent on quantum against the Appellant as follows: -i.Pain and suffering Kshs 100,000/=ii.Loss of Expectation of life Kshs 100,000/=iii.Loss of Dependency Kshs 5,049,900/=iv.Special Damages Kshs 42,800/=Total Kshs 5, 292, 700/=

49. As the appeal has partly succeeded, the appellant is awarded half costs of the appeal while the respondent will have full costs in the lower court. Interest on special damages to accrue from the date of filing suit until payment in full while the interest on general damages shall accrue from the date of this judgment until payment in full.It is hereby so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 12TH DAY OF OCTOBER, 2022D.KEMEIJUDGEIn the presence of :Wekesa for Wamalwa Simiyu for AppellantWambilianga for RespondentKizito Court Assistant