https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1043

Aga Khan University Hospital v Warue & 2 others (Civil Appeal 28 of 2020) [2026] KECA 1043 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1043 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 28 of 2020 DK Musinga, M Ngugi & GV Odunga, JJA May 29, 2026 Between The Aga Khan University Hospital Appellant and Beriah Wangare Warue 1st Respondent Sylvester Musyoki Kisonzo 2nd Respondent Dr. Donald Oyatsi 3rd Respondent (Being an appeal from the judgment and decree of the High Court of Kenya at Nairobi (Sergon, J.) delivered on 12th April 2018 in H.C.C.C. No. 496 of 2010 Civil Case 496 of 2010 ) Judgment 1.In the dispute culminating in this appeal, the High Court at Nairobi (Sergon, J.) found the Aga Khan University Hospital (the Hospital) and Dr. Donald Oyatsi (Dr. Oyatsi) liable jointly and severally for the death of Nina Ngina Kisonzo (the deceased) and awarded damages in the sum of Kshs. 4,350,000/- together with costs and interest at court rates. 2.The background to this appeal is that Sylvester Musyoki Kisonzo and Beriah Wangare Warue (the 1st and 2nd respondents respectively), the administrators and personal representatives of the estate of the the deceased, instituted suit against Dr. Oyatsi and the Hospital (sued as the 1st and 2nd respondents respectively), vide a Plaint dated 25th October 2010, which was subsequently amended on 20th July 2015. They contended that the deceased, their minor daughter aged 9 years and previously in good health, fell ill and was admitted for treatment at the Hospital. They asserted that during the course of her admission and treatment at the said Hospital, her condition was improperly assessed and managed by the attending medical practitioners, including Dr. Oyatsi, thereby setting in motion a chain of negligent acts and omissions that culminated in her death. 3.In particular, the respondents alleged that Dr. Oyatsi and the Hospital failed to properly and timeously diagnose the deceased’s condition and to undertake appropriate medical investigations. They further contended that the deceased was misdiagnosed and subjected to inappropriate psychiatric evaluation which diverted attention from her true medical condition and delayed proper treatment. It was also alleged that the deceased’s condition was not adequately monitored, and that the standard of care, skill, and diligence expected of competent medical practitioners was not met, leading to her deterioration and eventual death. 4.On that basis, they brought the claim under the Law Reform Act and the Fatal Accidents Act, seeking damages for pain and suffering, loss of expectation of life, and loss of dependency, together with special damages particularised at Kshs. 466,000/- incurred in relation to funeral expenses, post- mortem charges, medical processes, and legal representation. 5.In response, Dr. Oyatsi, in his Amended Statement of Defence dated 7th August 2015, denied that the deceased was under his direct care, or that he misdiagnosed her condition. He contended, in the alternative, that his involvement, if any, arose two days after the deceased’s admission and was limited to a review based on clinical notes prepared by an earlier team of doctors and information provided by the 1st and 2nd respondents. He maintained that he exercised all reasonable skill and care expected in the circumstances, and denied any negligence or liability. 6.Similarly, the Hospital, in its Amended Defence dated 23rd July 2015, denied all allegations of negligence, and asserted that the deceased was at all times treated professionally and in accordance with accepted medical standards. The Hospital further contended that the doctors involved were independent practitioners over whom it exercised no control, and it therefore denied vicarious liability. In the alternative, it attributed any alleged injury or loss to the 1st and 2nd respondents’ own conduct, including failure to follow medical advice and lack of cooperation, and denied the applicability of the doctrine of res ipsa loquitur as pleaded in the amended plaint. 7.At the hearing before the trial court, the 1st respondent testified as PW1. He said that his daughter fell ill in May 2009 and was admitted at the Hospital, where she was initially attended to by other doctors before Dr. Oyatsi took over her management on 24th May 2009. He testified that Dr. Oyatsi downplayed the seriousness of the illness, attributing it to stress, and introduced psychiatric intervention, including by Dr. Onyancha, which PW1 believed diverted attention from the true medical condition. 8.He further testified that despite persistent complaints about his daughter’s deteriorating condition, Dr. Oyatsi maintained that she was clinically well and failed to undertake appropriate investigations. He recounted that her condition worsened, leading to admission to the High Dependency Unit, where she died shortly thereafter. He attributed her death to misdiagnosis and poor management, including failure to conduct necessary tests such as those to detect meningitis. 9.PW1 also testified that he suffered financial strain due to initial refusal by the insurer to settle the hospital bill, allegedly based on Dr. Oyatsi’s report that the child was clinically well, though the insurer later reimbursed him. He maintained that both the doctor and the hospital were responsible for the death of the deceased, citing inadequate care and failure to involve appropriate specialists. 10.Under cross-examination, PW1 conceded that he was not present at all stages of treatment and was not medically trained to interpret clinical decisions. He acknowledged that other doctors had attended to the child, and that he was unaware whether certain tests, including a lumbar puncture, had been undertaken or recommended earlier. However, he maintained that Dr. Oyatsi bore primary responsibility as the lead consultant. 11.The 2nd respondent, who testified as PW2, corroborated the evidence of PW1 and stated that the deceased first fell ill on 12th May 2009 and was initially treated for a urinary tract infection before her condition deteriorated. Upon referral to the main Aga Khan University Hospital, the deceased was attended to by Dr. Jowi and later admitted, after which Dr. Oyatsi took over her care. She testified that Dr. Oyatsi was introduced following a recommendation by the Hospital through Dr. Hussein, and that the family relied on that recommendation in accepting him as the treating doctor. 12.She testified that despite ongoing symptoms, including weakness and inability to perform basic tasks, the necessary diagnostic tests were not conducted in time, and the child did not improve under treatment. She denied that the parents prevented any medical procedures and maintained that they relied entirely on Dr. Oyatsi’s expertise. She attributed the death to failure by both Dr. Oyatsi and the Hospital to provide proper care and timely intervention. 13.In cross-examination, PW2 acknowledged that she was not a medical professional and could not specify which tests ought to have been conducted, but insisted that the doctors failed to properly investigate the illness. She also confirmed that Dr. Oyatsi was not an employee of the Hospital but a doctor they accepted upon the Hospital’s recommendation. She nonetheless attributed liability to the Hospital for recommending and allowing him to manage the patient. 14.On his part, Dr. Oyatsi, who testified as DW1, said that he is a Consultant Neurologist in private practice and not an employee of the Hospital, but a specialist who attends to patients in various hospitals. He testified that he was called to attend to the deceased after the parents requested for another neurologist, and that he took over her management on 24th May 2009 after other doctors had already reviewed the patient. 15.He stated that a lumbar puncture had been recommended earlier by other specialists but was not carried out due to the parents’ reluctance to consent. In the absence of that procedure, he relied on clinical judgment and treated the patient for a suspected brain infection, including meningitis or meningo-encephalitis. He maintained that he exercised due skill and care, reviewed the patient regularly, and that the poor outcome was due to the severity of the illness and not negligence. 16.Under cross-examination, DW1 reiterated that he was an independent consultant and not an employee of the Hospital, although he had been called in by the Hospital to manage the patient and worked with its staff. He conceded that the lumbar puncture was not performed, and acknowledged that it would have been important in confirming the diagnosis. He further admitted that treatment for meningitis was initiated several days after he first saw the patient, and that certain aspects of the diagnosis were not expressly documented in his notes.Notwithstanding these concessions, he maintained that his management was appropriate, within accepted medical practice, and denied any negligence, attributing the outcome to the severity of the illness and the patient’s lack of response to treatment. 17.The Hospital did not present any witnesses at the hearing, having failed to justify the substitution of Judith Oduge Otieno, its former Legal Officer, who had provided a written witness statement, with Dr. Mativo. Its application to call Dr. Mativo in her place was rejected as an afterthought and prejudicial, particularly as it was made after the close of the other parties’ cases. Although Judith Oduge Otieno’s written statement had been filed and remained on record, she was not called to testify. Nonetheless, the statement was admitted in evidence without calling its maker. The gist of her statement was that the deceased received proper medical care at the Hospital from qualified and competent staff, that all treatment decisions were made in accordance with accepted clinical standards, and that there was no negligence or mismanagement on the part of the Hospital or its personnel. She maintained that the Hospital’s staff acted diligently throughout, and that the Hospital bore no liability for the deceased’s treatment or outcome. 18.After the hearing, the trial court rendered judgment on 12th April 2018. It identified two key issues for determination, namely, whether there was a breach of duty of care amounting to medical negligence, and whether the 1st and 2nd respondents were entitled to the damages sought. 19.On the issue of liability, the trial court reaffirmed the settled principles governing medical negligence, emphasizing that both a medical practitioner and a Hospital owe a duty to exercise reasonable care, skill, and diligence in the treatment of a patient. The trial court found that it was not in dispute that the deceased had been admitted at the Hospital, was under the care of Dr. Oyatsi, and died from meningitis and related complications. It further found that no definitive diagnostic test, particularly a lumbar puncture, had been conducted to confirm or rule out meningitis, and that there was no cogent evidence that the parents had declined consent for the procedure. In those circumstances, the trial court concluded that Dr. Oyatsi failed to meet the required standard of care and thereby breached his duty. 20.On the Hospital’s liability, the court rejected the contention that Dr. Oyatsi was merely an independent contractor for whose acts it could not be held responsible. It held that, by admitting the patient and arranging her treatment, the Hospital assumed a direct duty of care and was vicariously liable for the negligent acts and omissions of the medical practitioners involved. The court found that the Hospital engaged and/or instructed Dr. Oyatsi to manage the patient, and that a series of errors, omissions, and commissions during treatment impeded the deceased’s recovery. Consequently, both Dr. Oyatsi and the Hospital were found jointly and severally liable. 21.On quantum, the court adopted a global approach appropriate to a minor and awarded Kshs. 200,000/- for pain and suffering, Kshs. 150,000/- for loss of expectation of life, and Kshs. 4,000,000/- for loss of dependency. It declined to award special damages for lack of strict proof. In the result, judgment was entered in favour of the 1st and 2nd respondents against Dr. Oyatsi and the Hospital, jointly and severally, in the total sum of Kshs. 4,350,000/-, together with costs and interest at court rates. 22.Being aggrieved and dissatisfied with the decision of the trial court, the Hospital lodged this appeal. Although the memorandum of appeal dated 28th January 2020 sets out nineteen (19) grounds, we are of the view that they may be condensed into three broad issues, namely, whether the learned judge erred in law and fact in finding that there was sufficient evidence to hold the Hospital liable for negligence; whether the learned judge erred in imposing vicarious liability on the Hospital; and whether the award of damages was so inordinately high as to represent an entirely erroneous estimate. 23.At the hearing of this appeal, learned counsel Mr. Zul Mohammed appeared for the Hospital, learned counsel Prof. Kiama Wangai for the 1st and 2nd respondents, and learned counsel Mr. Murithi for Dr. Oyatsi. All counsel elected to rely substantially on their respective written submissions. 24.In the written submissions dated 23rd September 2020 and further submissions dated 1st August 2024, the Hospital identifies three main issues for determination in this appeal, namely, whether there was sufficient evidence to hold it liable for negligence, whether there was any basis for imposing vicarious liability, and whether the award of damages was so inordinately high as to represent an entirely erroneous estimate. 25.On negligence, the Hospital contends that the deceased’s treatment records demonstrate that she was attended to by multiple specialists on various dates from 20th May 2009, beginning with an initial assessment by Dr. Jowi, a Consultant Neurologist, who evaluated her condition at the Hospital’s Outpatient Neurology Clinic. It is further contended that, following the parents’ request for another neurologist, Dr. Oyatsi was engaged and assumed conduct of her management on 24th May 2009. The Hospital maintains that during this period, the deceased underwent several diagnostic tests, including EEG, MRA and MRV brain tests, all of which yielded normal results, and that she was continuously monitored and treated with appropriate medication, including antibiotics, but did not respond to treatment. On that basis, it is contended that the medical records establish that all reasonable steps were taken, and that no neglect or improper treatment was demonstrated. The appellant further faults the 1st and 2nd respondents for failing to adduce independent expert evidence to demonstrate that what was being done to treat the deceased was allegedly improper and negligent. The appellant maintains that the lay testimony on record and submissions by counsel were insufficient to establish professional negligence. 26.The appellant further asserts that professional opinions can differ, and that a difference in opinion does not necessarily give rise to an inference of negligence. In support of this position, the appellant relies on Hunter v Hanley [1955] SC 200, 1955 SLT 213, for the principle that a medical practitioner is only negligent where he acts in a manner no ordinary competent practitioner would adopt, and that a mere difference in professional opinion does not amount to negligence. It also cites Medical Negligence Case Law (Rodney Nelson-Jones & Frank Burton, 2nd ed., Butterworths, 1995), for the proposition that a practitioner is not negligent merely because another doctor would have adopted a different approach, and that courts should be slow to prefer one body of medical opinion over another, unless the conduct falls outside accepted practice. 27.The appellant reiterates that hospitals and doctors are not insurers of successful outcomes, and that medical treatment is inherently attended by risk, such that a negative outcome does not, without more, amount to negligence. Relying on Medical Negligence Case Law (supra), it is contended that a practitioner is not an insurer of success and cannot guarantee outcomes. 28.The appellant further contends that the duty of the Hospital, once it admitted the patient, was limited to following the instructions of the treating consultant and supervising activities carried out within its facilities. It is contended that all decisions relating to the deceased’s management were made by Dr. Oyatsi in his capacity as a private consultant, and that no specific negligent act on the part of the Hospital or its staff was demonstrated. 29.Further, the appellant maintains that the deceased underwent numerous diagnostic tests which revealed no adverse findings, and that treatment, including the administration of antibiotics, was undertaken based on clinical assessment and after the 1st and 2nd respondents declined performance of a lumbar puncture on the patient. It is contended that the trial court failed to give due weight to the uncontroverted evidence of Dr. Oyatsi that the diagnosis was made on clinical grounds, and that the condition was more serious than initially appreciated. 30.Lastly, on negligence, the appellant asserts that the trial court erred in relying on the 1st and 2nd respondents’ evidence which it characterizes as exaggerated and driven by emotion following the loss of their child. It is submitted that their allegations against Dr. Oyatsi were not substantiated and should have been treated with caution, particularly in light of inconsistencies revealed during cross-examination. 31.On vicarious liability, the appellant submits that the trial court erred in holding it liable for the acts of Dr. Oyatsi, maintaining that the evidence on record overwhelmingly demonstrated that he was an independent consultant and not an employee of the Hospital. Reliance is placed on Cassidy v Ministry of Health [1951] All ER 574 for the proposition that where a patient or their family selects and engages a doctor, the hospital is not liable for that doctor’s negligence. The appellant further contends that the learned judge misapplied M (a minor) v Amulega & Another [2001] KLR 400, which, it asserts, concerned employed doctors and is distinguishable from the present case involving an independent consultant. 32.The appellant also points to consistent and uncontroverted evidence from all parties in support of this position. It highlights the testimony of PW1, who stated that the Hospital recommended Dr. Oyatsi, and that of PW2, who expressly stated that Dr. Oyatsi was not an employee of the Hospital. This position was reinforced by Dr. Oyatsi (DW1), who testified that he was a neurologist in private practice, not employed by any hospital, and that he attended to the deceased upon being appointed by the parents, albeit working alongside the Hospital staff. 33.Further, the appellant relies on the clinical records to demonstrate that the decision to involve Dr. Oyatsi originated from the parents. It is contended that on 23rd May 2009, following discussions between Dr. Hussein and Dr. Mativo, the parents expressed a desire to replace Dr. Jowi with another neurologist, specifically indicating Dr. Oyatsi or Dr. Miyanje.When Dr. Miyanje could not be reached, Dr. Oyatsi was contacted and agreed to attend to the patient the following day, with Dr. Jowi being subsequently informed and asked to accede to the parents’ request. The appellant submits that this sequence of events demonstrates that Dr. Oyatsi’s engagement was initiated by the parents rather than the Hospital. 34.The appellant asserts that this evidence was neither challenged nor controverted at trial, and that the learned judge failed to properly evaluate it in concluding that Dr. Oyatsi was acting as an employee of the Hospital. It further contends that, in the absence of any specific negligent act attributable to the Hospital or its staff, the trial court erred in making a generalized finding that a “series of errors, omissions and commissions” had occurred, without identifying any evidential basis linking the Hospital to such acts. 35.The appellant also emphasizes that the circumstances of Dr.Oyatsi’s appointment, coupled with the uncontroverted evidence of his private practice and independent clinical judgment, negate any inference of control by the Hospital. It further submits that the pool of available child neurologists in the country was limited, and that Dr. Oyatsi was a qualified and experienced specialist, factors which support the reasonableness of his engagement and reinforce the conclusion that he was not acting as an employee of the Hospital. 36.In addition, the appellant raises a procedural challenge, contending that the trial court erred in declining to admit the evidence of Dr. Mativo, a material witness involved in the treatment of the deceased. It is contended that this exclusion denied the appellant the opportunity to present its full defence and violated the right to a fair hearing and the principle of equality of arms. In this regard, reliance is placed on Article 159(2)(d) of the Constitution and the decision in Stephen Kariuki v George Mike Wanjohi & 2 Others, Nairobi Election Petition No. 2 of 2013 wherein several decisions, including Raila Odinga & Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, Dyson v Attorney General [1911] 1 KB 410, Musa Misango v Eria Musigire & Others [1966] EA 390, and D.T. Dobie & Company (Kenya) Limited v Muchina [1982] KLR 1 were cited for the principle that courts should administer substantive justice without undue regard to procedural technicalities, and that a party should not be shut out from presenting its case without a full hearing. 37.Finally, the appellant submits that the trial court failed to consider the findings of the Medical Board which did not attribute negligence to the appellant, and argues that this omission further weakened the basis of the finding on liability. 38.On quantum, the appellant contends that the award of Kshs. 4,000,000/- for loss of dependency was excessive and based on speculation in the absence of a proven multiplicand or multiplier. It relies on Muchami Mugeni vs Elizabeth Wanjugu Mungara & Anor, Civil Appeal No 141 of 1998 for the proposition that lump sum awards without a proper basis are erroneous. The appellant places further reliance on Dominic Owour Dibuoro & John Okoth Adunda v R.A (Administrator and personal representative of the Estate of M.O), Civil Appeal No. 43 of 2015, where a significantly lower award was made in respect of a minor for the argument that the award in the present case was inordinately high. 39.In conclusion, the appellant urges this Court to allow the appeal, set aside the judgment and decree of the High Court, and dismiss the 1st and 2nd respondents’ claim with costs. It also prays that the sum of Kshs. 2,500,000/- paid by it into a joint interest earning account with Commercial Bank of Africa Limited be released to it together with accrued interest. 40.On their part, the 1st and 2nd respondents, vide written submissions dated 22nd October 2020, contend that the trial court properly found the appellant liable for negligence and vicariously liable for the negligence of D. Oyatsi; , and that the award of damages was justified and should not be disturbed. 41.On negligence, the 1st and 2nd respondents submit that the trial court properly found that the 3rd respondent breached the duty of care owed to the deceased. They rely on the trial court’s finding that it was not in dispute that the deceased was admitted at the appellant’s facility, was attended to by Dr. Oyatsi, and died from meningitis and its complications. They emphasize that no lumbar puncture was carried out, and that there was no cogent evidence that the parents declined to consent to the procedure. In those circumstances, they assert, the failure to undertake this critical diagnostic test amounted to a breach of duty. 42.The 1st and 2nd respondents anchor this position on the definition of negligence in Blyth v Birmingham Waterworks Co. (1856) 11 Ex 784, submitting that the omission to do what a reasonable and competent practitioner would have done, particularly in the face of a deteriorating condition, constitutes negligence. They further contend that this was not a case of a mere difference in professional opinion, but a clear instance of omission and delay in diagnosis and treatment. 43.They also rely on M (a minor) v Amulega & Another (supra) to emphasize that medical practitioners and hospital authorities owe patients a duty to exercise reasonable care and skill in treatment, and that failure to meet that standard gives rise to liability. In their view, the failure to carry out essential investigations and to properly manage the deceased’s condition fell below that standard. 44.Further, the 1st and 2nd respondents place reliance on the findings of the Medical Practitioners and Dentists Board, which established that the lumbar puncture was not carried out in time, that there were delays in conducting other tests, including a chest X-ray, and that the patient’s condition was mismanaged, including by an inappropriate psychiatric referral. They contend that these findings corroborate the trial court’s conclusion that negligence was proved. 45.On vicarious liability, the 1st and 2nd respondents submit that the appellant was properly held liable for the acts and omissions of Dr. Oyatsi, contending that the relationship between the Hospital and the doctor, as disclosed by the evidence, placed responsibility squarely on the appellant. They rely, in the first instance, on the factual findings of the trial court that the appellant instructed Dr. Oyatsi to take over and manage the treatment of the deceased, and that the 1st and 2nd respondents did not independently source or directly engage him. In their view, this finding is critical, as it demonstrates that Dr. Oyatsi was brought into the patient’s care through the Hospital’s own system rather than through a separate contractual arrangement with the family. 46.The 1st and 2nd respondents further contend that the entire course of treatment occurred within the appellant’s facility and was delivered through its institutional framework, including its wards, equipment, and nursing staff. They contend that once the deceased was admitted, the Hospital assumed responsibility for coordinating and providing medical care, and that the treatment administered by Dr. Oyatsi cannot be isolated from the Hospital’s overall system of care. In that regard, they emphasize that the nursing staff and other employees of the Hospital were actively involved in the management of the deceased, and that the Hospital, through its personnel, knew or ought to have known that her condition was deteriorating, but failed to take appropriate steps. 47.In addition, the 1st and 2nd respondents point to evidence suggesting that the Hospital’s own medical staff were intrinsically involved in the events leading up to Dr. Oyatsi’s involvement. They refer to the role of Dr. Jowi and Dr. Mativo, both associated with the Hospital, and the fact that decisions regarding the deceased’s management, including the need for a lumbar puncture and further investigations, arose within the Hospital’s clinical setting. They also rely on the contemporaneous clinical notes, including the entry of 23rd May 2009 by Dr. Hussein, an employee of the Hospital, which records that the parents wished to change from Dr. Jowi to another neurologist and that the Hospital, through its doctor, contacted Dr. Oyatsi, who agreed to attend to the patient on the following day. The 1st and 2nd respondents contend that this sequence shows that the process of engaging Dr. Oyatsi was facilitated and effected by the Hospital, thereby reinforcing its responsibility for his involvement. 48.The respondents also challenge the Hospital’s reliance on the characterization of Dr. Oyatsi as an independent contractor, submitting that such a label is not determinative of liability. They contend that, in substance, Dr. Oyatsi was operating within the Hospital’s system, using its facilities, supported by its staff, and treating a patient admitted under its care. In those circumstances, they contend, the Hospital retained sufficient control over the environment and delivery of care to attract liability. They further emphasize that the Hospital cannot avoid responsibility by delegating treatment to a consultant while continuing to provide the institutional framework within which that treatment is delivered. 49.They also draw this Court’s attention to the Hospital’s failure to call any medical witnesses directly involved in the treatment of the deceased to explain or justify the clinical decisions made. Instead, the appellant relied on a statement by a legal officer, which they argue was inadequate to rebut the detailed evidence of negligence presented before the trial court. They submit that this failure left the evidence on record, including the role of the Hospital and its staff, largely unchallenged, and supports the inference that the Hospital bore responsibility for the acts complained of. 50.Further, the respondents invoke the statutory framework under the Medical Practitioners and Dentists Act, Cap 253 and the applicable subsidiary legislation governing nursing homes and hospitals, particularly the provisions placing responsibility on the owner and management of a hospital for the professional conduct of practitioners operating within its premises. They assert that these provisions impose a duty on the hospital to ensure that patients receive proper care, and that any professional misconduct or negligence occurring within the hospital’s facility falls within its responsibility where it knew or ought to have known of such conduct. 51.In the circumstances, the 1st and 2nd respondents submit that, whether viewed from the perspective of the Hospital’s direct duty of care, its control over the treatment environment, or its role in engaging and facilitating Dr. Oyatsi’s involvement, the Hospital was properly found vicariously liable. They therefore urge this Court to uphold the trial court’s finding that the Hospital and Dr. Oyatsi were jointly and severally liable for the negligence that led to the deceased’s death. 52.On quantum, the 1st and 2nd respondents submit that the award made by the trial court was proper, justified, and not inordinately high as alleged by the Hospital. They contend that the learned judge correctly adopted a global approach in assessing damages for loss of dependency, noting that the deceased was a minor, and that, in such cases, a multiplicand and multiplier are often speculative and unnecessary. 53.They further contend that the award of Kshs. 200,000/- for pain and suffering and Kshs. 150,000/- for loss of expectation of life were reasonable and consistent with comparable awards. 54.In conclusion, the 1st and 2nd respondents urge this Court to dismiss the appeal in its entirety with costs, maintaining that the trial court correctly evaluated both the evidence and the law in arriving at its decision. 55.On his part and in opposing this appeal, Dr. Oyatsi identifies two principal issues for determination, namely, liability and negligence, and the propriety of the award of damages. 56.On negligence, Dr. Oyatsi submits that the deceased was initially attended to at the Hospital from 20th May 2009 by other doctors, including Dr. Mativo and Dr. Jowi, and that he only assumed management of the patient from 24th May 2009 to 8th June 2009. He contends that by the time he became involved, key diagnostic steps, including the lumbar puncture, had already been recommended but had not been undertaken, and that the patient had been under the care and control of the Hospital’s medical staff. 57.In advancing the applicable standard of care, Dr. Oyatsi relies on Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, submitting that the test for negligence is whether a medical practitioner has acted in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular field. He emphasizes that, in matters of diagnosis and treatment, there is room for genuine differences of professional opinion, and that a practitioner is not negligent merely because his approach differs from that of another practitioner. 58.Dr. Oyatsi further contends that the failure to perform a lumbar puncture cannot be attributed solely to him, as the procedure had been identified earlier by doctors employed by the Hospital, but was not carried out. He maintains that he was brought in after the initial treating doctors had managed the patient, and that his involvement followed the parents’ request for a change of neurologist. In support of this position, he points to what he terms the mismanagement of the deceased by the Hospital’s staff, including the unavailability of Dr. Jowi at a critical stage, and the failure by Dr. Mativo, who had identified the need for a lumbar puncture, to carry out the procedure. 59.It is therefore Dr. Oyatsi’s position that responsibility for the deceased’s deterioration cannot be placed solely on him, and that the Hospital’s staff materially contributed to the outcome.In that regard, he supports the trial court’s finding that both he and the Hospital bore liability. He further relies on the decision of this Court in Hussein Omar Farah v Lento Agencies [2006] eKLR for the principle that where the court is unable to determine, on the evidence, the precise degree of fault between parties, liability may properly be apportioned equally. 60.Dr. Oyatsi thus submits that the trial court did not err in apportioning liability between himself and the Hospital, and that the Hospital was properly held vicariously liable for the acts of its employees, particularly Dr. Jowi and Dr. Mativo, whose omissions contributed to the outcome. 61.On quantum, Dr. Oyatsi supports the award made by the trial court and submits that an appellate court should be slow to interfere with such an award, unless it is shown to be based on wrong principles, or is so inordinately high or low as to represent an erroneous estimate. In this regard, he relies on Kenya Bus Services Limited & Another v Githae Gatururi [2013] eKLR, where this Court held that interference is only justified where the trial court acted on wrong principles or misapprehended the evidence. 62.He further cites Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR, for the settled principle that an appellate court will only interfere with a trial court’s award where the award is inordinately high or low, or where relevant factors were not considered, or irrelevant factors were taken into account. Additional reliance is placed on Catholic Diocese of Kisumu v Tete [2004] eKLR, where this Court emphasized that assessment of damages is a matter of judicial discretion, and that an appellate court should not substitute its own figure merely because it would have reached a different conclusion. 63.Applying these principles, Dr. Oyatsi submits that the award of Kshs. 4,000,000/- for loss of dependency was fair and justified, taking into account that the deceased was a 10-year-old child with promising future prospects, including the expectation that she would pursue a professional career. He maintains that the global sum awarded by the trial court constituted fair compensation and should not be disturbed. 64.On costs, Dr. Oyatsi relies on Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR, for the principle that costs are at the discretion of the court and ordinarily follow the event, unless there is good reason to depart from that rule. Accordingly, he submits, in light of the evidence on record and the procedural fairness of the proceedings, the appeal lacks merit, that the findings on liability and quantum were sound, and he urges this Court to dismiss the appeal with costs. 65.We have carefully considered the record of appeal, the impugned judgment, the grounds set out in the memorandum of appeal, the submissions by the parties and the law. This being a first appeal, it is well settled that this Court is not bound to accept the findings of fact made by the trial court. A first appeal proceeds by way of a rehearing, and the duty of this Court is to reconsider the evidence on record, evaluate it independently, and draw its own conclusions. In doing so, however, the Court must bear in mind that it neither saw nor heard the witnesses testify and must therefore make due allowance for that limitation. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] EA 1. 66.From the record, this appeal turns on three issues, namely, whether the learned judge correctly found that Dr. Oyatsi was negligent; whether the Hospital was properly held liable notwithstanding its position that Dr. Oyatsi acted as an independent contractor; and whether the award of damages warrants interference. 67.As regards the first issue, the material facts surrounding the deceased’s treatment at the Hospital are largely not in dispute. The deceased was first seen at the Hospital on or about 20th May 2009 by Dr. Jowi, the Head of the Hospital’s Neurology Department. She was subsequently reviewed on 22nd May 2009 by Dr. Mativo, who was then standing in for Dr. Jowi. Upon examining her, Dr. Mativo formed the opinion that she required admission to the paediatric ward and, after consulting with Dr. Jowi over the telephone, Dr. Mativo arranged for her admission. At that stage, her condition was assessed and investigations were commenced, including the recommendation by Dr. Mativo for a lumbar puncture to aid in diagnosis. It is common ground that this procedure was not performed. 68.On 23rd May 2009, following discussions between the Hospital’s doctors and the deceased’s parents, a request was made for a change of the neurologist. The clinical notes indicate that the parents expressed a preference for either Dr. Oyatsi or Dr. Miyanje. The process of reaching out to the preferred specialists was undertaken by Dr. Hussein, a doctor attached to the Hospital, who first attempted to contact Dr. Miyanje without success. He thereafter contacted Dr. Oyatsi, who agreed to attend to the patient and assumed her management on 24th May 2009. From that point until her demise, the deceased remained admitted at the Hospital and was treated within its facilities by Dr. Oyatsi in conjunction with the Hospital’s own staff, including nurses and other personnel. 69.Against that factual background, we now turn to the issue of negligence. The applicable standard, as correctly appreciated by the trial court, is that set out in Bolam v Friern Hospital Management Committee (supra), namely, that a medical practitioner is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical professionals. Indeed, this Court in Nyaga v Ibaya & 3 others [2025] KECA 2086 (KLR) restated that position thus:““In ordinary cases of negligence, the standard of care to be considered is that of an ordinary man in the street. It is whether the ordinary man would do or refrain from doing some act. 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 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 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.” 70.As to the applicable standard of care, the Court in Nyaga v Ibaya & 3 others (supra) went on to cite Pope John Paul’s Hospital & Another vs. Baby Kosozi [1974] EA 221, where the predecessor to this Court held thus:“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 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 peculiarly 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 motorcar. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater...The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care...” 71.The gravamen of the dispute before the trial court concerned the failure to perform a lumbar puncture, a diagnostic step that had been identified as necessary even before Dr. Oyatsi assumed management of the deceased. In the appeal, it is contended that this omission ought not to be attributed to Dr. Oyatsi as the recommendation predated his involvement. With due respect, we do not find that contention tenable. In stating so, we note that although the test had been recommended before Dr. Oyatsi assumed management of the deceased, the relevant clinical notes and treatment records, including that recommendation, were available to him at the time he took over her care. As the specialist assuming primary responsibility, he was under a duty to review the patient’s history, reassess the existing management plan, and take such steps as were warranted in light of her condition. Indeed, given his expertise as a neurologist and the evidence that the deceased’s condition was deteriorating, he ought reasonably to have appreciated the necessity of that diagnostic intervention. 72.The explanation advanced by the Hospital and Dr. Oyatsi was that the 1st and 2nd respondents declined to give consent for the lumbar puncture to be undertaken. However, the trial court found, and we agree, that there was no evidence that the parents declined to give such consent. In addition, it was conceded that treatment for meningitis was initiated several days after Dr. Oyatsi took over management. The post mortem report confirmed that the cause of death was ‘Meningitis due to Septicemia/ Bacteremia, due to Broncho Pneumonia due to viral Encephalitis’ which, in our view, underscored the centrality of timely diagnosis and intervention. 73.That said, and while we appreciate the argument advanced by the Hospital that medicine is not an exact science and that clinical judgments may vary, the failure to undertake a critical diagnostic procedure, coupled with delay in instituting targeted treatment in the face of a deteriorating condition, cannot, in our view, be explained as a mere difference in professional opinion. We are also mindful of the Hospital’s contention that no independent expert evidence was adduced to establish medical negligence. In our view, while expert testimony is often necessary in cases involving competing medical opinions, it is not an inflexible requirement. In the present case, the omission complained of was clear and concerned a fundamental diagnostic step that had been expressly recommended in the clinical records but was not undertaken, with no satisfactory explanation. Based on the material before this Court, that omission in the deceased’s medical care fell below the standard expected of a reasonably competent practitioner. We therefore find no basis to interfere with the finding that Dr. Oyatsi was negligent. 74.Turning to the question of the Hospital’s liability, if any, which lies at the heart of this appeal, we deem it necessary to deal first with the Hospital’s complaint that the trial court erred in declining to admit the evidence of Dr. Mativo, a doctor involved in the treatment of the deceased. It is contended that this exclusion denied the Hospital the opportunity to present its full defence and thereby infringed its right to a fair hearing and the principle of equality of arms. 75.We are not persuaded by that contention. The record shows that the Hospital had initially identified Judith Oduge Otieno as its witness and filed her statement, but failed to take steps to secure her attendance or invoke the court’s process for that purpose. The application to substitute her with Dr. Mativo was made after the close of the other parties’ cases and was properly rejected as an afterthought that would have occasioned prejudice. In those circumstances, the exclusion of Dr. Mativo’s evidence did not amount to a denial of a fair hearing, but was a proper exercise of the trial court’s discretion in managing the proceedings before it. 76.We now turn to the substantive question of the Hospital’s liability. The Hospital contends that Dr. Oyatsi was an independent consultant rather than its employee, that it exercised no control over his clinical decisions, and that it cannot therefore be held liable for his acts. In support of that position, reliance is placed on the Patient’s Status/Admission Form which identifies Dr. Oyatsi as a private practitioner under whose care the patient was admitted and expressly distinguishes between hospital-managed patients and those attended by private consultants. Further reliance is placed on the Hospital’s pleadings denying any employment relationship, as well as the oral and documentary evidence on record, including the acknowledgment by PW2 in cross-examination that Dr. Oyatsi was not an employee of the Hospital, and Dr. Oyatsi’s own witness statement and testimony to the same effect. 77.We have carefully considered that argument and the evidence underpinning it. There is no doubt that, in formal terms, Dr. Oyatsi operated as an independent consultant with admitting privileges. Indeed, the documentation on record and testimony support that characterization. However, and without prejudice to the foregoing, the question before the Court is not confined to the existence or absence of a contract of service. Rather, the inquiry is whether, in the circumstances of this case, the Hospital can avoid responsibility for the treatment rendered to a patient admitted under its care. 78.The law has moved beyond a rigid application of the distinction between employees and independent contractors in determining hospital liability. As the court observed in M (a minor) v Amulee & Another (supra), a hospital which admits a patient comes under a direct duty to exercise reasonable care and skill in the patient’s treatment. That duty arises from the relationship between the hospital and the patient and reflects the hospital’s assumption of responsibility upon admission. It follows, therefore, that the hospital remains answerable for the treatment rendered within its facility through those engaged to provide such care, irrespective of the precise contractual status of the practitioner involved. 79.In the present case, certain aspects of the evidence on record point clearly to the Hospital’s culpability. First, the deceased was admitted at the Hospital and remained there throughout the period of treatment. All care was rendered within the Hospital’s institutional setting, using its facilities, equipment, and personnel. Secondly, the engagement of Dr. Oyatsi, even if prompted by the parents, was facilitated through the Hospital’s own staff and processes. Thirdly, the treatment of the deceased was not a series of isolated acts by a single practitioner, but a continuum involving multiple doctors, including those attached to the Hospital, operating within a single system of care. Indeed, we note in this regard that a lumbar puncture, a critical diagnostic step that had been identified as necessary by a doctor employed by the Hospital, was not done. 80.In those circumstances, the Hospital cannot properly characterize itself as a mere provider of space. It undertook to provide treatment to the deceased and held itself out as doing so. The patient and her family were entitled to look to the Hospital as responsible for the overall management of her care, hence the 1st and 2nd respondent’s reliance on Dr. Hussein’s recommendation on the consultant to retain. Therefore, the distinction between an employee and an independent consultant, while relevant in other contexts, does not determine liability in the circumstances herein. 81.We also note that the Hospital did not call key medical witnesses involved in the earlier stages of the deceased’s treatment to explain the course of management or to support its assertion regarding lack of consent for the lumbar puncture. That omission left important aspects of the evidence unexplained and entitled the trial court to draw an adverse inference. 82.In our view, the Hospital’s liability arises not merely on a narrow basis of vicarious liability, but from its own duty to ensure that reasonable care was provided to a patient admitted under its charge. That duty, in substance, is non-delegable. The Hospital could not avoid it by relying on the independent status of Dr. Oyatsi when the treatment complained of occurred within its own system. Accordingly, we find no error in the trial court’s conclusion that the Hospital and Dr. Oyatsi were jointly and severally liable. 83.On quantum, the principles governing appellate court interference with awards made by a trial court are well settled. An appellate court will not disturb an award of damages unless it is shown that the trial court acted on wrong principles, or that the award is so inordinately high or low as to represent an erroneous estimate. This position has been articulated in several decisions of this Court, including Butt v Khan [1978] eKLR, Kemfro Africa Limited t/a Meru Express Services & Another v Lubia & Another (supra) and Catholic Diocese of Kisumu v Tete (supra). 84.The trial court adopted a global approach in assessing damages for loss of dependency, taking into account that the deceased was a minor. That approach is consistent with established jurisprudence, particularly given that the multiplier method would, in such circumstances, be inherently speculative. As observed by Ringera, J. (as he then was) in Mwanzia v Ngalali Mutua & Kenya Bus Services (Msa) Ltd & Another [2007] eKLR, the multiplier approach is not a rule of law but a method that must be abandoned where the facts do not facilitate its application, lest justice be sacrificed on the altar of methodology. In the present case, in the absence of any proper basis for computation, and bearing in mind the parents’ legitimate expectations, the award of Kshs. 4,000,000/- cannot be said to be excessive. As regards the awards for pain and suffering at Kshs. 200,000/- and for loss of expectation of life at Kshs. 150,000/-, we are satisfied that they were reasonable and justified. 85.In the end, we are not satisfied that this appeal has any merit.It is accordingly dismissed with costs to the 1st and 2nd respondents. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2026.D. K. MUSINGA (PRESIDENT)……………………………….MUMBI NGUGIJUDGE OF APPEAL……………………………….G. V. ODUNGAJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.