https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12838

Mwarua v Pandya Memorial Society Registered Trustees & 2 others (Civil Suit 333 of 2009) [2026] KEHC 12838 (KLR) (14 August 2026) (Judgment) Neutral citation: [2026] KEHC 12838 (KLR) Republic of Kenya In the High Court at Mombasa Civil Suit 333 of 2009 J Ngaah, J August 14, 2026 Between Uchi Mwidhin Mwarua Plaintiff and Pandya Memorial Society Registered Trustees 1st Defendant Dr Awadh Hemed 2nd Defendant Dr Rajab M Karega 3rd Defendant Judgment Introduction and pleading 1.This suit was instituted by way of a plaint dated 31 July 2009 and filed on 24 September 2009 by the plaintiff, then a minor aged about three and a half years, suing through her parents as next friends. The plaint was amended in May 2023 and, pursuant to directions issued by this court on 28 January 2025, further amended by the Further Amended Plaint dated 31 January 2025 and filed on 7 February 2025. The plaintiff has in the intervening years attained the age of majority and now prosecutes the suit in her own name, Uchi Mwidhin Mwarua. 2.The gravamen of the plaintiff's case is that on or about 7 August 2008, then a child of three and a half years, she was referred from the Kenya Ports Authority (“KPA”) Clinic to the 1st defendant's hospital, Pandya Memorial Hospital, on account of an ailment of her left arm. At the hospital she was attended to by the 2nd and 3rd defendants. An intravenous line was fixed on the wrist of her right arm, the arm that had no complaint, through which antibiotics were administered. She avers that as a result of the insertion of the needle and the subsequent intravenous administration of the antibiotic, she developed profuse bleeding and incessant pain; that despite her mother's insistence for intervention, the hospital's doctors merely recommended immersion of the affected arm in warm water and the administration of soporific medication; that on 16 August 2008, following the 1st defendant's inability to arrest the deterioration of her right arm, she was referred to Kenyatta National Hospital (“KNH”) where a scan revealed severe vascular compromise with gangrene demarcating at five centimetres below the elbow; and that her right arm was consequently amputated below the elbow, leaving her permanently disabled. 3.At paragraph 13 of the Further Amended Plaint the plaintiff sets out thirteen particulars of negligence against the defendants, which may be compendiously summarised as: failure to exercise reasonable care and skill in diagnosis; injecting and treating the right arm instead of the referred left arm; failure to prescribe correct treatment; failure to prevent or arrest her pain and severe bleeding upon insertion of the needle; ignoring the complaints made by her mother; administering hot water over an arm that was turning black; administering antibiotics without proper diagnosis; carrying out their duties in breach of established medical practice; and failing to control or arrest the deterioration, bleeding, swelling and ultimately the gangrene that led to the amputation. 4.At paragraph 14 the plaintiff pleads the particulars of damage, injury and disability, namely:(i)severe bleeding and pain due to intra-arterial injection;(ii)amputation of the right forearm resulting from gangrene and severe vascular compromise demarcating 5 cm below the elbow;(iii)development of sepsis over the left forearm with a pus-discharging wound below the left elbow; and(iv)marked oedema of the right arm and right axilla. 5.Special damages of Kshs 141,891.00 have been particularised as medical expenses at Pandya Hospital (Kshs 68,676.00), X-ray (Kshs 3,000.00), scans (Kshs 6,000.00) and air ticket and other travel expenses (Kshs 64,215.00). 6.The plaintiff prays for judgment against the defendants jointly and severally for general damages for loss of use of the right forearm, future nursing/medical expenses and care, loss of future earnings and/or earning capacity, and pain and suffering; special damages of Kshs 141,891.00; costs; and interest. 7.The 1st defendant filed its defence on 18 November 2009 which it amended on 26 November 2009. The 2nd defendant filed his written statement of defence dated 28 May 2023. In their defences, the 1st and 2nd defendants aver that the plaintiff was admitted to the hospital on 7August 2008 from the KPA Clinic with a history of high fever and a swollen, tender left elbow joint; that she was admitted under the care of the 3rd defendant who examined her; that in accordance with the directions of the 3rd defendant, the 2nd defendant, then employed by the 1st defendant as a Resident Medical Officer, fixed an intravenous line which was tested and found to be functioning well, whereafter intravenous treatment was commenced without any problem. They deny that the plaintiff developed profuse bleeding or haemorrhaging; they narrate the events of the night of 8th/9th August 2008 culminating in the 3rd defendant's review of the child at 4.30 a.m.; and they deny any negligence, recklessness or breach of duty, averring that the 1st defendant's employees, including the 2nd defendant, exercised reasonable skill and care in accordance with the 3rd defendant's instructions. They specifically deny that the 3rd defendant was engaged by the 1st defendant, averring that he was a consultant paediatrician in private practice. 8.The 3rd defendant's statement of defence is dated 24 July 2023. He denies that the plaintiff was referred with an “ineffective process of the left arm” and avers that she was referred from the KPA Clinic with fevers and a painful, swollen left elbow which had already been treated at that clinic with powerful antibiotics. He admits reviewing the plaintiff's history and examining her on 7 August 2008 for the purposes of diagnosis, and admits that the 2nd defendant inserted the intravenous line. He admits that on 9 August 2008 a report was made of severe pain at the cannula site and that the cannula was removed for refixing; avers that upon consultation with Dr. Gathua, a senior surgeon, warm compressions were commenced to increase blood flow and the mode of administration of the antibiotic was changed; admits the transfer to KNH; and denies negligence, averring that he exercised reasonable care and skill throughout. He also questioned the pecuniary jurisdiction of this court, a point to which I shall return in due course. The evidence (a) The plaintiff's case 9.The plaintiff called two witnesses. PW1 was Fatuma Bakari Mwasadi, the plaintiff's mother, who adopted her witness statement as her evidence-in-chief. Her evidence was that the plaintiff, then aged three and a half years, was referred from the KPA Clinic and admitted at the 1st defendant's hospital on 7 August 2008 under the care of the 3rd defendant, who diagnosed cellulitis and possible septic arthritis of the left elbow and prescribed, among other treatment, an antibiotic to be administered intravenously. The 2nd defendant fixed the intravenous line on the child's right wrist in her presence. She testified that at the time of insertion of the needle, blood came out with a lot of force, spilling on the 2nd defendant; that whenever medicine was administered through the line, blood would enter the cannula and the child would cry in pain; that the right hand thereafter began to change colour and turn cold as if it had insufficient blood supply; and that the child was in such pain that she had to be sedated to sleep. She narrated the Doppler scans of 9 and 14 August 2008, the transfer to KNH on 16 August 2008, and the amputation of the child's right arm below the elbow on 21 August 2008. She testified that the plaintiff lost her dominant arm; that her ambition of becoming a police officer is now beyond reach; and that her education, career prospects and social standing have been gravely affected by stigma. She produced, among other exhibits, a school admission letter and progress reports. In cross-examination she conceded that the child was admitted under the care of Dr. Karega, who is the one who examined the minor, but she insisted that the blood at cannulation was spurting and bright red in colour, and maintained that the problems began on the night of 7 August 2008 and not 8 August 2008 as the hospital records suggest. 10.PW2 was Dr. James Kabora Mogire, an orthopaedic and trauma surgeon, who testified as the plaintiff's expert witness. He produced his Medical-in-Confidence report dated 14 November 2008 (Exhibit 15), an addendum report dated 18 September 2023, and an Appraisal of the Standard of Care dated 26 October 2023 (Exhibit 16). He first encountered the plaintiff at KNH on 16 August 2008, when he was asked to review her for a definitive test; he performed a nuclear uptake scan which showed that the right arm no longer had viable blood vessels. The arm was amputated on 21 August 2008 and the child discharged on 2 September 2008; he reviewed her thereafter on 26 September 2008 and 14 November 2008. His opinion was that the loss of the arm was avoidable; that the cannula was placed in the radial artery rather than a vein, as evidenced, in his view, by the spurting of blood at insertion described by the mother and by the Doppler findings of arterial spasm beginning at the radial artery at the very site of the cannula and later extending to the cubital and brachial arteries; that each forceful injection of Dalacin C against arterial pressure aggravated the injury and drove the drug into the soft tissues; and that proper supervision or verification of the cannula placement would have detected the error early enough to salvage the arm. He assessed the plaintiff's permanent incapacity at 50% on account of the loss of the right forearm below the elbow, and spoke of the severe physical, psychological and social trauma occasioned to her, and of the need for stump revision at the phases of growth spurt. In cross-examination he conceded that he does not practise paediatric medicine; that he does not personally cannulate his patients, resident medical officers routinely doing so, and that as a consultant his primary role, like the 3rd defendant's, is to diagnose and prescribe; that the handwritten cardex notes were never availed to him and his reports were not based on them, although such notes are relevant and useful; that no autopsy or biopsy was performed on the amputated limb; that the left elbow condition for which the child was admitted had resolved by the time of her admission at KNH; and that leakage of medicine into the tissues, as suggested by Dr. Gathua, remained a possibility. (b) The defence case 11.The 1st and 2nd defendants called four witnesses. DW1, Ishmael Onchari, the 1st defendant's Director of Nursing Services, produced the hospital's records of the plaintiff's treatment, including the Nursing Report prepared by the then Matron, Mrs. Peace Emurwon, and the cardex notes; he explained that, save for Nurse Khalima Fondo, the nurses who attended the plaintiff had since left the 1st defendant's employment and their whereabouts were unknown. 12.DW2 was the 2nd defendant, Dr. Awadh Hemed, now an orthopaedic surgeon but at the material time a Resident Medical Officer employed by the 1st defendant. He adopted his statements of 14 August 2008 and 19 July 2023. His evidence was that on 7 August 2008 he was on call when the plaintiff was admitted into the paediatric ward from KPA under the care of the 3rd defendant; that he was called to fix an intravenous line, which he did with Nurse Tawa in the presence of both parents; that as he fixed the line he explained the process step by step, and Nurse Tawa confirmed with him that a vein had been cannulated, as evidenced by dark red (not bright red) blood which oozed rather than spurted; that he confirmed the presence of the radial pulse after fixing the line; that the line was tested by flushing with water for injection and found to flow smoothly without resistance; and that treatment commenced the same day without any problem. He was never called again about any problem with the line, and his involvement in the plaintiff's care ended there. He testified that intravenous access may properly be obtained from any accessible vein and that he would in any event avoid the affected limb; and that had there been any issue with the cannulation he would not have proceeded. 13.DW3, Nurse Khalima Fondo, a senior nurse in the 1st defendant's employment since 1995, adopted her statement. She was on duty on the night of 8 August 2008. At 8.00 p.m. she received the patient, whose mother reported that the child was complaining of a painful branula; she removed the branula “for refixing”; at 10.00 p.m. treatment was given and observations recorded (temperature 37.8°C, pulse 110, respiration 24); the Resident Medical Officer “was to attend and fix the branula”; the child was left to sleep, the branula to be refixed in the morning. At 2.00 a.m. observations were taken (temperature 37°C, pulse 100, respiration 22). At 3.20 a.m. the mother called complaining that the child's fingers could not move; the Resident Medical Officer was called to review the hands; at 3.30 a.m. Dr. Karega was telephoned and directed warm compresses, saying he was coming to see the patient; at 4.30 a.m. Dr. Karega attended, directed continuous warm compression, stopped the Dalacin C injection in favour of oral syrup, and prescribed Cataflam drops. On examination the palm had cyanosis radiating from the wrist upwards, though the digits could still move. 14.DW4 was Dr. Peter Aseyo Sore, a consultant general, cardiothoracic and vascular surgeon, who produced medical opinions dated 10 August 2023 and 16 October 2023. His evidence, based on his review of the treatment records, was that: the classical signs of arterial cannulation are bright red blood, pulsatile flow, upward movement of blood in the infusion tubing, and pain with distal ischaemia; neither the 2nd nor 3rd defendants nor any of the nurses on duty saw any sign of arterial cannulation; it was not wrong to place a cannula in the right hand since a cannula may be placed in any easily accessible vein; vascular insufficiency following radial artery cannulation is extremely rare because of the palmar arch, the collateral network by which the hand is supplied by both the ulnar and radial arteries, which is why the radial artery can be harvested for coronary bypass surgery; injury to the radial artery causing vascular insufficiency typically manifests in darkening of the fingertips, which did not occur here; clindamycin (Dalacin C) is known to cause thrombophlebitis in some patients, and this, with drug leakage into the tissues as noted by Dr. Gathua, can cause a tissue reaction leading to compartment syndrome and compromised blood flow in the forearm; the documented progressive swelling, pain and loss of function of the whole forearm supported compartment syndrome rather than radial artery spasm from a cannula; the Doppler scans could not establish the cause of the injury; a CT angiogram would have proved or disproved arterial injury but that imaging modality was not then available in Mombasa; and, decisively, the only conclusive and scientific means of ascertaining the cause of the gangrene would have been an autopsy of the amputated part with biopsy of the vessels, which was never done, so that the cause of the gangrene is now difficult to ascertain. 15.The 3rd defendant testified on his own behalf and called one witness. Dr. Elizabeth Awimbo (DW5), a consultant paediatrician and neonatologist of over thirty years' standing, produced her opinion on the management of the plaintiff dated 3rd October 2012. Her evidence was that the 3rd defendant kept good paediatric practice; that his diagnosis was correct; that his treatment plan and interventions were prompt and appropriate at each turn of expected and unexpected events; that he involved fellow professionals when called for, utilised all basic and specialised investigations then available, exercised due diligence in closely monitoring the evolution of the plaintiff's condition, and personally availed himself to assess the plaintiff up to three times a day; and that warm compression was an appropriate measure pending specialised investigation to establish the cause of the impaired circulation. In cross-examination she conceded that she was not in a position to conclude what caused the branula problem, and that an autopsy could have given a conclusive answer. 16.The 3rd defendant, Dr. Rajab M. Karega (DW6), a consultant paediatrician qualified since 1992 and at the material time in private consultancy at the Doctors' Plaza at the 1st defendant's hospital, adopted his witness statement dated 24 July 2023. He testified that on the evening of 7 August 2008 he reviewed the plaintiff, who had been referred from the KPA Clinic with fevers and a painful, swollen left elbow joint after four days' treatment there with Rocephin and Amikacin; he diagnosed cellulitis and septic arthritis of the left elbow joint, ordered a full haemogram and an X-ray of the left elbow, and started empirical treatment with Dalacin C, Brufen and Bactroban cream. He reviewed the child at 8.00 a.m. and again at 5.00 p.m. on 8 August 2008 and on both occasions the mother and nurses reported no complaints, the cardex confirming a calm night and an uneventful day; the blood report and X-ray favoured cellulitis without joint involvement. At about 4.00 a.m. on 9 August 2008 he was called by the nurses and told that the child was in severe pain in the right hand at the cannula site; he attended within thirty minutes; the cardex showed that the nurses had removed the cannula at 8.00 p.m. on 8 August 2008 following pain at the site, and they had not informed him of this. On examination he found a swollen right hand with poor blood flow, formed an impression of arterial spasm, and recognised it as a surgical emergency. He immediately telephoned Dr. Gathua, a senior surgeon, on whose advice warm compressions were started pending surgical review; he also changed the antibiotic to oral form. At 8.30 a.m. the hand was cold and dusky and he ordered a Doppler scan; Dr. Gathua reviewed the child at 9.45 a.m., concurred that blood flow was reduced, and recorded his suspicion of drug leakage into the tissues rather than needle injury to the artery. The Doppler scan of 9 August 2008 showed very reduced flow in the distal right radial artery but could not identify the cause. On 10 August 2008 he asked both parents whether they recalled any incident at the fixing of the needle, such as abnormal blood flow, pain or blanching, and both said they could not; he therefore considered other causes, including a clot, and prescribed Clexane. The fingers began turning gangrenous on 12 August 2008; a repeat Doppler was ordered together with blood tests to exclude autoimmune causes, which the father initially declined but accepted the following day; the repeat Doppler of 14 August 2008 alarmed him, showing occlusion extending to the cubital, axillary and brachial arteries, whereupon he urged the immediate transfer of the child to KNH as an emergency rather than await demarcation of the gangrene for amputation by Dr. Gathua. In cross-examination he stated that if a cannula goes into an artery the reaction and its detection would be immediate; that the causes of arterial spasm are several, including arterial injury, compartment syndrome, a clot, autoimmune disease and severe skin disease; that Dr. Nondi's report of 14 August 2008 was not conclusive of thrombosis; and that without an autopsy one cannot conclusively say what caused the problem. Issues for determination 17.Upon consideration of the pleadings, the evidence and the rival submissions of counsel, the issues that commend themselves for determination are the following:(i)whether the defendants, or any of them, owed the plaintiff a duty of care;(ii)whether the plaintiff's case founded on intra-arterial cannulation is open to her on the pleadings;(iii)whether the defendants, or any of them, breached the duty of care;(iv)whether the breach, if established, caused the loss of the plaintiff's right forearm;(v)how liability, if established, should be borne as between the defendants;(vi)what damages, if any, the plaintiff is entitled to under the respective heads claimed; and(vii)what orders should issue as to interest and costs. 18.The 3rd defendant's plea that this court lacks pecuniary jurisdiction was not pursued at the trial and is, in any event, without merit: this court enjoys unlimited original jurisdiction in civil matters under Article 165(3)(a) of the Constitution, and nothing in the value of the subject matter of this claim took it outside that jurisdiction when the suit was filed in 2009. The burden and standard of proof 19.The legal burden of proof rests on the plaintiff throughout. Sections 107, 108 and 109 of the Evidence Act (Cap 80) enact the familiar principle that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. The standard is proof on a balance of probabilities. In claims of professional negligence against medical practitioners, the East African Court of Appeal in Pope John Paul's Hospital & Another v Baby Kasozi [1974] EA 221 cautioned that while a charge of professional negligence against a medical man is serious and clear proof of negligence is necessary so that negligence is not confused with misadventure, the burden of proof is not higher than in ordinary civil cases: the burden is to prove, on a preponderance of evidence, that the damage was caused by negligence and was not a question of misadventure. 20.Because the expert evidence in this case was in conflict, it bears restating that under section 48 of the Evidence Act the opinions of persons specially skilled in a science are admissible, but such opinions are not binding on the court. As the Court of Appeal held in Amosam Builders Developers Ltd v Betty Ngendo Gachie & 2 Others [2009] eKLR, the court must consider expert opinion along with the other evidence and form its own opinion on the matter in issue, and is at liberty to accept or reject the evidence of experts depending on the facts and circumstances of the case. The duty of care 21.The existence of a duty of care presents no difficulty in this case. The neighbour principle articulated by Lord Atkin in Donoghue v Stevenson [1932] AC 562 finds its most obvious application in the relationship between a healthcare provider and a patient. As long ago as R v Bateman (1925) 94 LJKB 791 it was held that if a person holds himself out as possessing special skill and knowledge, and he is consulted as so possessing them by or on behalf of a patient, he owes a duty to that patient to use due caution, diligence, care, knowledge, skill and caution in administering the treatment. The content of that duty in the medical context was set out in Jimmy Paul Semenye v Aga Khan Hospital & 2 Others [2006] eKLR: once the doctor-patient relationship is established, the practitioner must possess the knowledge and skill required of a reasonably competent practitioner in the same specialty, and must exercise the care and judgment in their application to be expected of such a practitioner (see also BO (a minor suing through his next friend DOO) v Nathan Khamala & Another [2020] eKLR). 22.The 3rd defendant accepted the plaintiff as his patient on the evening of 7 August 2008, diagnosed her and directed her treatment; he plainly owed her the duty of a reasonably competent consultant paediatrician. The 2nd defendant, in undertaking the cannulation, owed her the duty of a reasonably competent medical officer performing that procedure. The 1st defendant, a hospital which admitted the plaintiff to its paediatric ward and undertook, through its nursing and resident medical staff, her round-the-clock care, owed her a duty to provide that care with reasonable skill and diligence. A hospital is answerable for the negligence of the professional staff, nurses and doctors alike, whom it employs to treat the patients it admits. See Gold v Essex County Council [1942] 2 KB 293 and Cassidy v Ministry of Health [1951] 2 KB 343, where Denning LJ observed that when a patient is treated by the staff whom the hospital authorities have appointed, the hospital authorities must answer for the way in which he was treated, and it is no answer that the patient cannot identify which particular member of staff was at fault. More recently the Supreme Court of the United Kingdom in Woodland v Essex County Council [2014] AC 537 recognised that a hospital's duty to patients it has admitted is of the non-delegable kind, that is, it is a duty not merely to take care, but to ensure that care is taken. I respectfully adopt those statements as sound expressions of the common law applicable in Kenya, where the right to the highest attainable standard of health under Article 43(1)(a) of the Constitution reinforces, though it does not replace, the common law duty. The standard of care in medical negligence 23.The standard against which an allegation of medical negligence is measured is that laid down by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The test is the standard of the ordinary skilled man exercising and professing to have that special skill; a practitioner is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art, and there may be one or more perfectly proper standards. The Bolam test has been consistently applied in this jurisdiction; see, for instance, Ricarda Njoki Wahome v Attorney General & 2 Others [2015] eKLR, where the court held that a doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care, and not because, in a matter of opinion, he made an error of judgment, an approach consonant with Lord Fraser's observation in Whitehouse v Jordan [1981] 1 WLR 246 that an error of judgment may or may not be negligent, depending on whether it is one that a reasonably competent practitioner acting with ordinary care could have made. 24.Two glosses on Bolam must, however, be kept in view. First, as the House of Lords held in Bolitho v City and Hackney Health Authority [1998] AC 232, the court is not bound to absolve a defendant merely because a body of professional opinion supports his conduct; the professional opinion relied upon must be capable of withstanding logical analysis, and in the rare case where it cannot, the court is entitled to hold the practice negligent. Secondly, the claimant must also prove causation; as the Bolitho decision itself emphasises, the claimant must prove that had there been no negligence, the injury, loss and damage complained of would have been avoided or at least been much less. Foreign courts have sounded the same cautionary notes; for instance, the Supreme Court of India in Jacob Mathew v State of Punjab (2005) 6 SCC 1 and Kusum Sharma v Batra Hospital (2010) 3 SCC 480 warned against the tendency, when things have gone wrong, to look for a human actor to blame, and held that a professional is negligent only if he falls short of the standard of a reasonably competent practitioner in his field, passages which the 3rd defendant pressed upon me and which I accept as a correct statement of principle. As Denning LJ put it in Roe v Minister of Health [1954] 2 QB 66, we must not condemn as negligence that which is only a misadventure; but equally, as the same learned judge insisted, the courts must insist on due care for the patient at every point. The pleadings objection 25.Before turning to the evidence on breach, I must resolve the objection strenuously advanced by Mr. Nanji for the 1st and 2nd defendants, that the plaintiff's case at trial, that the cannula was placed in the radial artery and not a vein, was a departure from her pleadings, and that this court, on the authority of Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] 2 EA 385 and the line of authority culminating in Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR, may not found a decision on an unpleaded issue. 26.The principle is not in doubt; parties are bound by their pleadings, and evidence at variance with the pleadings goes to no issue. But the principle must be applied to the pleadings as they actually stand, read fairly and as a whole. Three features of the Further Amended Plaint are decisive. First, paragraph 9 pleads that “as a result of the insertion of the needle on the plaintiff's wrist/forearm and the subsequent administration of antibiotic intravenously, the plaintiff developed profuse bleeding problems and/or incessant haemorrhaging”; an averment that the injury originated at, and from, the cannulation. Secondly, particular (v) of paragraph 13 alleges a failure “to prevent and/or arrest the minor's pain and or suffering upon insertion of the needle in her forearm and thus causing her severe bleeding.” Thirdly, and most significantly, paragraph 14(i) expressly pleads, as the first particular of damage and injury, “severe bleeding and pain due to intra-arterial injection.” The allegation of an intra-arterial injection is therefore on the face of the plaint. It might more elegantly have been placed among the particulars of negligence, but a defendant reading this plaint could have been left in no doubt that the manner of the cannulation, and specifically the assertion that the injection was intra-arterial, was squarely in issue. 27.Nor were the defendants in fact taken by surprise. They met the allegation head-on: the 2nd defendant testified in detail as to the colour and flow of the blood at insertion and the confirmation of the radial pulse; the 1st and 2nd defendants retained and called a consultant vascular surgeon, Dr. Sore, for the very purpose of rebutting the theory of arterial cannulation; and counsel sought and obtained time to deal with Dr. Mogire's evidence on the point. Where an unpleaded or imperfectly pleaded issue is nonetheless left by both parties to the court for decision, and is fully canvassed in evidence without objection or prejudice, the court may pronounce upon it (see Odd Jobs v Mubia [1970] EA 476). This is a fortiori where, as here, the issue does in fact appear on the face of the pleading. I accordingly hold that the question whether the cannulation was intra-arterial is properly before me. Galaxy Paints, where the issue decided by the trial court appeared nowhere in the pleadings at all, is distinguishable. That said, the objection retains this much force. The burden remains on the plaintiff to prove the allegation, and the manner in which it emerged, besides Dr. Mogire's contemporaneous 2008 report and articulated only in his 2023 addendum and at trial, is a matter going to the weight of his evidence, to which I now turn. Whether the 2nd defendant was negligent 28.Two complaints are levelled against the 2nd defendant: that he cannulated the wrong arm, and that he cannulated the radial artery rather than a vein. 29.The first complaint may be shortly disposed of. The uncontroverted expert evidence, from the 2nd defendant, from Dr. Sore, and indeed unchallenged by Dr. Mogire, was that intravenous access may properly be obtained from any accessible vein, and that good practice would positively avoid the affected limb, in this case the left arm with its cellulitis and swelling. Placing the cannula on the right wrist was therefore not merely unobjectionable; it was correct practice. No responsible body of medical opinion was shown to hold otherwise. This particular ground of negligence fails. 30.The second complaint is the fulcrum of the plaintiff's case against the 2nd defendant, and it turns on a stark conflict of evidence. On the one side stands the evidence of PW1, that at insertion blood spurted out with force, bright red, spilling on the 2nd defendant, and that the child cried in pain at every administration; and the opinion of Dr. Mogire that the Doppler findings, spasm commencing in the distal radial artery at the precise site of the cannula and ascending to the cubital and brachial arteries, together with the mother's account, establish intra-arterial cannulation. On the other side stands the evidence of the 2nd defendant, corroborated in its essentials by the contemporaneous records, that the blood was dark and oozing, that the radial pulse was confirmed after fixing, that the line flushed smoothly and functioned without resistance, and that treatment ran through it uneventfully; the evidence of Dr. Karega and Dr. Sore that arterial cannulation manifests immediately, bright red pulsatile blood, upward movement of blood in the tubing, pain and distal ischaemia, and that neither the doctors nor any of the several nurses on duty over the succeeding twenty-five hours recorded any such sign; Dr. Sore's evidence that vascular insufficiency from radial artery cannulation is extremely rare owing to the palmar arch, and that its typical signature, darkening of the fingertips, was absent; and the contemporaneous note of Dr. Gathua, the senior surgeon who examined the child on the morning of 9 August 2008, that the picture appeared to be “a reaction to drug leakage into the tissue, with notable extension proximal to the venipuncture site.” 31.Having weighed this evidence with care, I am unable to find, on a balance of probabilities, that the 2nd defendant cannulated the artery. My reasons are these. First, the contemporaneous hospital records, the cardex entries made in real time by no fewer than five different nurses across successive shifts, and the Nursing Report which mirrors them, record a calm night on 7 August, an uneventful day on 8 August with the child taking her meals comfortably, and the first complaint of pain at the branula site only at about 8.00 p.m. on 8 August 2008, some twenty-five hours after insertion. Contemporaneous clinical records, made by multipe hands before any question of litigation arose, are ordinarily the most reliable evidence of the sequence of clinical events, and I find them so here. PW1's insistence that the trouble began at the moment of insertion on 7 August cannot be reconciled with them; and her account acquired, over time, forensic embellishments, notably, the detail that the blood was “bright red,” which appears neither in the amended plaint nor in her original witness statement, that diminish confidence in her recollection. I do not doubt her sincerity as a mother who watched her child suffer a catastrophe; but sincerity is not accuracy, and where her recollection collides with the contemporaneous record I prefer the record. It is telling that when Dr. Karega asked both parents on 10 August 2008, while events were fresh and before any question of blame had crystallised, whether they recalled any incident at the fixing of the needle such as abnormal blood flow, pain or blanching, both said they could not. 32.Secondly, the unchallenged expert evidence of Dr. Karega and Dr. Sore was that intra-arterial cannulation declares itself immediately. A twenty-five-hour interval of uneventful infusion, with medication running without resistance and the child feeding and sleeping normally, is on the probabilities inconsistent with the cannula having been sited in the radial artery from the outset. Thirdly, Dr. Mogire's contrary opinion suffers from weaknesses which he candidly acknowledged: he is not a paediatrician; he never saw the cardex notes, though he accepted their relevance; his opinion on causation rested substantially on the mother's narration, which I have found unreliable on the critical points; no autopsy or biopsy of the amputated limb, which all the experts, including Dr. Awimbo, agreed was the only conclusive means of establishing the cause, was performed; and, tellingly, his contemporaneous report of 14 November 2008 nowhere asserted arterial cannulation, recording only that a needle was inserted in the right wrist “for intention of intravenous antibiotic administration”; the arterial thesis surfaced fully only in his addendum of September 2023, fifteen years after the event. Applying the approach in Amosam Builders (supra) to conflicting expert evidence, I find the opinions of Dr. Sore, a vascular surgeon speaking to a vascular question, whose analysis engaged with the whole of the clinical record, and of Dr. Gathua's contemporaneous note, more consistent with the proved facts than the opinion of Dr. Mogire. 33.It follows that the plaintiff has not proved that the 2nd defendant negligently cannulated the artery, or that the fixing of the intravenous line which was tested, confirmed and functioned uneventfully for more than a day, fell below the standard of a reasonably competent medical officer. His involvement in the plaintiff's care ended with that procedure; he was never recalled. The claim against the 2nd defendant must fail and is dismissed. Whether the 3rd defendant was negligent 34.The case against the 3rd defendant, as it emerged at trial and in submissions, reduces to four charges: that he failed to supervise or verify the cannulation; that his response upon recognising a “surgical emergency” at 4.30 a.m. on 9 August 2008, warm compressions and a change to oral antibiotics, was inadequate; that his subsequent management, including the empirical prescription of Clexane without a confirmed diagnosis of thrombosis and the failure to procure an MRI recommended in Dr. Nondi's report of 14 August 2008, amounted to “trial and error”; and that the transfer to KNH came too late. 35.As to supervision of the cannulation, Dr. Mogire's own evidence forecloses the complaint: he conceded in cross-examination that he does not personally cannulate his patients, that resident medical officers routinely do so, that patients are not kept waiting for consultants to cannulate, and that a consultant's primary role, his own, as much as the 3rd defendant's, is to diagnose and prescribe. It cannot be a breach of duty for a consultant to follow a division of clinical labour which the plaintiff's own expert accepts as universal practice. The Bolam test is amply satisfied; delegation of venous cannulation to a resident medical officer accords with practice accepted by a responsible, indeed, on the evidence, the entire body of professional opinion. 36.As to the diagnosis and initial treatment, there was in the end no real contest: Dr. Mogire himself accepted that the left elbow sepsis for which the child was admitted, the condition the 3rd defendant diagnosed and treated, had resolved by the time of admission at KNH. The diagnosis of cellulitis and septic arthritis was correct and the empirical antibiotic therapy appropriate, particularly after the child's prior exposure to Rocephin and Amikacin at the KPA Clinic. 37.As to the events from 4.00 a.m. on 9 August 2008, the record speaks of relative promptness rather than neglect. Dr. Karega testified that he was called at about 4.00 a.m. (the nuse on duty Nurse Khalima Fondo testified that he was called at 3.30 a.m.) the 3rd defendant was at the bedside within approximately, an hour, a fact PW1's complaint that he “ignored” her concerns cannot survive. He recognised the gravity of the presentation at once, characterising it as a surgical emergency; he immediately involved Dr. Gathua, the senior surgeon, and instituted the warm compressions which Dr. Gathua advised and later confirmed on his own review, and which Dr. Awimbo, a consultant paediatrician of thirty years' standing, endorsed as an appropriate measure to promote blood flow pending specialised investigation. He discontinued the intravenous route. He ordered a Doppler scan the same morning, the most informative vascular investigation then available in Mombasa, a CT angiogram not being available, as Dr. Sore confirmed. When the scan could not identify the cause, he canvassed the recognised differentials, arterial injury, compartment syndrome, thrombosis, autoimmune disease; he questioned the parents, and covered the possibility of a clot with Clexane. Empirical anticoagulation in the face of demonstrated arterial hypoperfusion of unknown cause, upon a differential that included thrombosis, is not “trial and error”; it is the rational management of diagnostic uncertainty, and no expert testified that a responsible paediatrician would have withheld it. The complaint founded on the MRI takes the plaintiff nowhere: Dr. Nondi's suggestion came on 14 August 2008, by which date the fingers had been frankly gangrenous for two days and the repeat Doppler showed occlusion ascending into the brachial and axillary arteries; an MRI could then have altered neither the treatment nor the outcome. And far from delaying, it was the 3rd defendant who, upon reviewing that alarming scan, overrode the plan to await demarcation locally and pressed for the child's emergency transfer to KNH. 38.There is one respect in which the 3rd defendant's management was hampered, but it was not of his making: the nurses removed the cannula at 8.00 p.m. on 8 August 2008 following the child's pain and did not inform him, a fact he asserted on oath and which was never contradicted. A practitioner cannot be faulted for failing to respond to information withheld from him. Compare the observation in Herman Nyangala Tsuma v Kenya Hospital Association t/a The Nairobi Hospital (2012) KEHC 1451 (KLR), cited with approval in Antony Lungaya Murumbutsa v Moi Teaching & Referral Hospital [2014] eKLR, that fault attaches to a doctor who deviates from well-known procedures, not to one who acts appropriately on the material before him. Measured by the Bolam standard as refined in Bolitho, and giving due weight to the supportive expert evidence of Dr. Awimbo and to the concurrence of Dr. Gathua at the time, I find that the 3rd defendant's conduct throughout accorded with the practice of a responsible body of paediatric opinion, and that such opinion withstands logical analysis. Hindsight, as the Supreme Court of India cautioned in Jacob Mathew (supra), is not the measure of negligence. The claim against the 3rd defendant fails and is dismissed. Whether the 1st defendant was negligent 39.The 1st defendant's liability stands on a different footing, for the case against it does not depend on the disputed mechanics of the cannulation at all. It rests on what its own records show, and, more importantly, on what they show was not done, during the night of 8/9 August 2008. The material facts are drawn almost entirely from the 1st defendant's own witnesses and contemporaneous documents, and they are these. At 8.00 p.m. on 8 August 2008 the incoming night nurse, DW3 Khalima Fondo, was told by the mother that the child was complaining of a very painful branula site; the right hand was tender to touch; the branula was so troublesome that Nurse Fondo removed it altogether. The hospital's own plan, recorded in the cardex, was that the Resident Medical Officer “was to attend and fix the branula.” No Resident Medical Officer attended. No doctor of any description examined the child or her limb. According to the uncontroverted evidence of the treating consultant, Dr. Karega, he was not informed of the pain or of the removal of the cannula. The child was, in the words of the record, “left to sleep.” Routine vital signs were taken at 10.00 p.m. and 2.00 a.m., but no observation of the limb, its colour, warmth, perfusion, capillary refill or movement, was recorded in the intervening seven hours. The next clinical event in the record is the mother's alarm at 3.20 a.m. that the child's fingers could not move and the hand was cold. By the time Dr. Karega examined the child at 4.30 a.m. the hand was swollen with poor blood flow and clawed fingers, cyanosis radiating from the wrist; a presentation which he himself instantly recognised as a surgical emergency. 40.In my judgment, the failure of the 1st defendant's staff, between 8.00 p.m. and 3.20 a.m., to procure any medical review of a three-and-a-half-year-old child whose intravenous site was so painful that the cannula had to be removed, and whose hand was tender to touch, was a plain breach of the duty of care. Pain at an infusion site of such severity as to require removal of the cannula in a small child, a patient who cannot articulate her symptoms and whose deterioration must therefore be detected by those watching her, is a red flag calling for medical assessment of the limb, not for the child to be “left to sleep” with the matter deferred to the morning. The hospital's own contemporaneous plan acknowledged as much: the Resident Medical Officer “was to attend.” He did not, and no system of the 1st defendant ensured that he did. Nor was the consultant under whose care the child was admitted told of a development, pain necessitating removal of his prescribed route of administration, which manifestly bore on his management. This is not territory in which competing schools of professional practice can be invoked in the hospital's defence. No witness, whether Dr. Sore, Dr. Awimbo or Nurse Fondo herself, suggested that any responsible body of nursing or medical opinion would regard it as proper to leave such a child unexamined by a doctor for over seven hours in those circumstances; and had any such opinion been proffered, it could not, in the language of Bolitho (supra), have withstood logical analysis. The breach here is of a piece with that in Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, where the casualty officer's failure to see and examine a patient presented to the hospital was held, without hesitation, to be negligence; the hospital escaped liability in that case only on causation, a matter to which I return below. It is also the very kind of systemic failure of communication and escalation for which a hospital answers directly: the duty the 1st defendant owed the plaintiff on admission was, as Woodland v Essex County Council (supra) and Cassidy v Ministry of Health (supra) hold, a duty to ensure that reasonable care was taken of her by the staff into whose hands it committed her; and per Denning LJ in Cassidy, it matters not that the plaintiff cannot say which individual nurse or officer was at fault, for the hospital must answer for them all. 41.Two further observations are apposite. First, the plaintiff did not plead res ipsa loquitur and I have not found it necessary to resort to that doctrine; the breach is established affirmatively on the 1st defendant's own records. Secondly, the 1st defendant's principal forensic shield, that in the absence of an autopsy the initiating cause of the gangrene cannot be conclusively ascertained, is no answer to this breach. Whether the ischaemic process was set in motion by extravasation of clindamycin into the tissues (as Dr. Gathua contemporaneously suspected and Dr. Sore thought probable), by chemical thrombophlebitis (which Dr. Sore testified clindamycin is known to cause), by thrombosis, or by some insult to the artery, the negligence found against the 1st defendant is independent of the initiating mechanism: it consists in the failure to detect and to respond to an evolving vascular emergency during the very window in which, on the evidence, it evolved. Causation 42.The plaintiff must, of course, go further and prove on a balance of probabilities that the breach caused or materially contributed to the loss of her forearm (Bolitho v City and Hackney Health Authority (supra) and Barnett v Chelsea and Kensington Hospital Management Committee (supra)). In Barnett the hospital escaped because the deceased would have died of the arsenic poisoning even with prompt and proper treatment; the question here is whether the plaintiff's arm was already doomed at 8.00 p.m. on 8 August 2008, or whether timely medical review during the night would, on the probabilities, have saved it. 43.I find that it would, for the following reasons. First, the clinical trajectory locates the decisive deterioration squarely within the unmonitored window. At 8.00 p.m. the complaint was pain and tenderness; the digits were moving; there was no recorded discolouration, coldness or loss of function. By 3.20 a.m. the fingers could not move and the hand was cold; by 4.30 a.m. there was established cyanosis, swelling, poor blood flow and clawing – critical ischaemia. The limb, that is to say, passed from a threatened state to a critically ischaemic state during the seven hours in which nobody with medical training looked at it. Secondly, the evidence of all the medical witnesses, the defendants' no less than the plaintiff's, treated acute limb ischaemia as an emergency in which time is of the essence: Dr. Karega called it a surgical emergency the moment he saw it and rushed to hospital at 4.00 a.m.; Dr. Gathua's interventions were directed at urgently restoring blood flow; Dr. Sore described compartment syndrome, his own preferred mechanism, as a process of progressively increasing compartment pressure compromising perfusion and damaging tissue, a mechanism which, by its nature, is arrested by early recognition and decompression and becomes irreversible with delay. Thirdly, Dr. Mogire's evidence, which on this point was not contradicted by any defence expert, was that the loss of the arm was avoidable and that early detection would have allowed the arm to be salvaged. Dr. Sore and Dr. Awimbo joined issue with him on the cause of the ischaemia; neither gainsaid the elementary proposition that ischaemic tissue death is time-dependent and that the prospects of salvage diminish with every hour of undetected hypoperfusion. Fourthly, the events after 4.30 a.m. demonstrate what an earlier review would have set in motion: consultant attendance, surgical referral, cessation of the offending infusion route, measures to promote perfusion and urgent vascular imaging. Had that cascade been triggered at or shortly after 8.00 p.m. when the child's pain and the removal of the cannula demanded it, it would, on the balance of probabilities, have been triggered while the hand still moved and before the ischaemia became critical. 44.I therefore find, on a balance of probabilities, that the negligent failure of monitoring, escalation and medical review during the night of 8/9 August 2008 caused the progression of the plaintiff's condition from a salvageable, threatened limb to irreversible gangrene necessitating amputation. If, contrary to that primary finding, it were said that the initiating pathology might in any event have claimed some tissue, I would hold in the alternative that the 1st defendant's breach made a material contribution to the totality of the injury ultimately suffered, the loss of the whole forearm below the elbow, within the principle in Bonnington Castings Ltd v Wardlaw [1956] AC 613, as applied to medical negligence in Bailey v Ministry of Defence [2009] 1 WLR 1052 that where medical science cannot precisely apportion the contribution of the negligent delay and of the underlying pathology, it suffices that the negligence contributed materially, that is, more than negligibly, to the harm. On either analysis causation is established against the 1st defendant. 45.For completeness, no question of contributory negligence arises. A child of three and a half years is incapable in law of contributory negligence, and nothing in her parents' conduct breaks the chain of causation. The mother, far from being passive, was the person whose vigilance at 8.00 p.m. and again at 3.20 a.m. supplied the hospital with the very information on which it failed to act; and the father's initial declining of blood samples on 12 August 2008, relied on faintly by the 3rd defendant, occurred after gangrene was already established, was reversed the following day, and had no bearing on the outcome. Liability and its apportionment 46.The result of the foregoing analysis is as follows. The claim against the 2nd defendant fails; the plaintiff has not proved that the cannulation was negligently performed. The claim against the 3rd defendant fails; his diagnosis, treatment and responses accorded at every stage with responsible professional practice, and the one systemic failure that hampered him, the want of notification, was the 1st defendant's, not his. The claim against the 1st defendant succeeds: through its nursing and resident medical staff, for whose acts and omissions it is vicariously liable, and in breach of the non-delegable duty of care it assumed upon admitting the plaintiff, it negligently failed to monitor, escalate and secure medical review of the plaintiff during the night of 8/9 August 2008, and that failure caused the loss of her right forearm. Since the 2nd defendant's personal liability is not established, the 1st defendant's liability rests not on his acts but on those of its nursing staff and its absent Resident Medical Officer, and on its own systemic failure; the 3rd defendant, being a private consultant and not the 1st defendant's servant or agent, as the evidence established and as I find, attracts no vicarious liability to the 1st defendant, but none is needed. Liability is accordingly apportioned wholly, that is, at one hundred per cent, against the 1st defendant. Judgment on liability is entered for the plaintiff against the 1st defendant, and the suit as against the 2nd and 3rd defendants is dismissed. Quantum of damages 47.Although I have dismissed the claims against the 2nd and 3rd defendants, and found the 1st defendant solely liable, I must assess damages under each head sought. The governing principles are settled. General damages are compensatory, not punitive; they are assessed by the exercise of a judicial discretion informed by the injuries proved, comparable awards in decided cases, and the prevailing conditions in the country, while remembering that no two cases are identical. In this regard I am persuaded by Southern Engineering Co. Ltd v Musingi Mutia [1985] KLR 730; Kigaragari v Aya [1985] KLR 273, where it was emphasised that damages must be within limits set out by decided cases and also within limits the Kenyan economy can afford. For non-pecuniary loss the classic exposition remains that of the House of Lords in H. West & Son Ltd v Shephard [1964] AC 326 and Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 where it was held the award for pain, suffering and loss of amenities is conventional and moderate, seeking fair, not perfect, compensation for that which money cannot truly restore. (a) General damages for pain, suffering and loss of amenities (including loss of use of the right forearm) 48.I agree with Mr. Nanji that the prayer for “loss of use of the right forearm” is in substance a claim for loss of amenities, conventionally assessed together with pain and suffering, and I assess it accordingly under a single head. The injury proved is grave: a child of three and a half years endured fourteen days of escalating and at times excruciating pain, pain so severe that she required sedation, upgraded analgesia and ultimately pethidine, followed by the amputation of her dominant right forearm five centimetres below the elbow, hospitalisation to 2 September 2008, and a permanent incapacity assessed by Dr. Mogire at fifty per cent, an assessment no defence witness controverted. She will live the whole of her life with one forearm: the loss of bimanual function, the daily indignities and adaptations, the narrowed field of vocation and recreation, and, as Dr. Mogire testified and as common experience confirms, the psychological and social burden of visible disability in a society in which, regrettably, stigma persists. 49.Counsel for the plaintiff proposes KShs 20,000,000.00, anchored on JPS (a minor suing through his father and next friend PS) v Aga Khan Health Service Kenya t/a The Aga Khan Hospital & 2 Others [2023] KECA 459 (KLR), where the Court of Appeal awarded Kshs 15,000,000.00 for pain, suffering and loss of amenities to a child who developed Erb's palsy of the right arm at birth. The defendants propose between Kshs 1,500,000.00 and Kshs 2,500,000.00, relying on the line of amputation awards: Umoja Rubber Products Ltd v Bobson Rimba Lewa [2015] eKLR (Kshs 2,000,000.00 confirmed for a below-elbow amputation); Peter Musyoka Kamuya v Elgon Kenya Ltd [2022] KECA 1404 (KLR) (Kshs 2,500,000.00 for a below-elbow amputation held neither inordinately high nor low); Nathaniel Kahindi Siku v Kilifi Plantation [2024] KEHC 691 (KLR) (Kshs 1,500,000.00 for amputation of a forearm); Lydiah Nyategi Tingwe v Bright Vivian Okola [2024] KEHC 4006 (KLR) (Kshs 1,500,000.00 for an above-elbow amputation with 65% disability); Stella Masaa Muinde v Yislam Salim [2024] KEHC 8822 (KLR) (Kshs 1,500,000.00, above-elbow amputation with other injuries); KWW (minor) v Shajanand Holdings Ltd & Another [2024] KEHC 9199 (KLR) (Kshs 2,000,000.00, refashioning of an injured right forearm into a stump); Kenya Power & Lighting Co. Ltd v IO (minor) [2024] KEHC 7845 (KLR) (Kshs 2,000,000.00, forearm amputation with amputation of toes and other injuries); and SNS (minor) v Kenya Power & Lighting Co. Ltd [2025] KEHC 11867 (KLR) (Kshs 4,500,000.00 for amputation of the right hand above the wrist with extensive burns and other injuries). 50.Both anchors, taken alone, mislead. JPS is distinguishable in the respects urged by the 3rd defendant; the appellant there suffered a traumatic birth injury followed by numerous surgeries in infancy in attempts to remedy the palsy, and an award of the order of Kshs 20,000,000.00 would stand far outside the range of every amputation authority cited to me, contrary to the caution in Kigaragari (supra). Yet the defendants' proposals, drawn overwhelmingly from awards to adults injured in traffic and industrial accidents, undervalue three features of this case: the plaintiff's extreme youth, which means the deprivation will be endured for substantially the whole of a lifetime and shaped her development from infancy; the loss of the dominant limb; and the protracted, conscious suffering of a small child over a fortnight preceding the amputation. The most instructive comparator is SNS (supra), a 2025 award of Kshs 4,500,000.00 to a minor for a hand amputation, albeit accompanied by burns; the additional injuries there are, in my assessment, broadly offset here by the higher level of this plaintiff's amputation (below the elbow, with fifty per cent incapacity), her younger age at injury, and the dominance of the lost limb. Doing the best I can on all the material, and mindful of the value of money as at the date of this judgment, I assess general damages for pain, suffering and loss of amenities, including the loss of use of the right forearm, at Kshs 4,500,000.00. (b) Future nursing, medical expenses and care 51.This head fails, for the reasons pressed by both defence counsel. The Court of Appeal held in Tracom Ltd & Another v Hassan Mohamed Adan [2009] eKLR that a claim for future medical expenses, though falling within general damages, is a special claim which must be specifically pleaded and proved before it can be awarded; and in Mbaka Nguru & Another v James George Rakwar, Civil Appeal No. 133 of 1998, the same court disallowed such a claim where there was no averment or quantification in the body of the plaint, holding that a simple reference in a medical report, or the insertion of a bare prayer, does not suffice. Here the head appears only in the prayer; nothing in the body of the Further Amended Plaint pleads or quantifies it. Nor was it proved: Dr. Mogire's passing reference to stump revision at the phases of growth spurt was never costed, no evidence of required nursing or care was led, and, the amputation having occurred more than seventeen years ago and the plaintiff now being an adult whose growth is complete, the anticipated revisions were themselves overtaken by time without any evidence that they were undertaken or remain necessary. The claim for future nursing, medical expenses and care is disallowed. (c) Loss of future earnings and loss of earning capacity 52.These are distinct heads and must be kept distinct. As Lord Denning MR explained in Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd's Rep 40, compensation for loss of future earnings is awarded for real, assessable loss proved by evidence, whereas compensation for diminution of earning capacity is awarded as part of general damages. The claim for loss of future earnings, being a special claim, was neither pleaded in the body of the plaint nor supported by any evidence of earnings, inevitably, since the plaintiff was an infant, and it is disallowed on the authority of Mbaka Nguru (supra) and Cecilia Mwangi & Another v Ruth W. Mwangi, Civil Appeal No. 251 of 1996, there cited. 53.Loss of earning capacity stands differently. It is general damages. In Butler v Butler [1984] KLR 225, Chesoni Ag. JA held that once it is accepted in principle that a victim of personal injuries who has lost earning capacity is entitled to compensation, it is of little materiality whether the award is made under the composite head of general damages or as an item on its own. The defendants object, on Mbaka Nguru and Mawji Govind & Co. v Munga Nzaka Munga, Mombasa Civil Appeal No. 161 of 1989, that the head was not pleaded in the body of the plaint. Those authorities disallowed the head where it was neither pleaded nor claimed nor supported by any evidence; they concerned adult claimants whose earnings history was capable of proof and was simply not proved. This case differs in each material respect: the head is expressly claimed in prayer (a) of the Further Amended Plaint; its factual foundation, “permanent life disability”, is pleaded at paragraph 14; and it is supported by evidence, namely the uncontroverted assessment of fifty per cent permanent incapacity, the loss of the dominant forearm, and PW1's testimony, supported by school records, as to the plaintiff's constrained vocational horizons. The factors identified in Moeliker v A. Reyrolle & Co. Ltd [1977] 1 All ER 9 for weighing the risk of disadvantage in the labour market cannot be applied arithmetically to one who was injured before she could ever enter that market; but that is a reason for a moderate global assessment, not for refusing any award, for it can hardly be doubted, and no defence witness doubted, that a young woman who has lost her dominant forearm faces a real and substantial handicap in the labour market for the whole of her working life. Kenyan courts have made precisely such global awards to child amputees. For instance, in Kenya Power & Lighting Co. v BA (suing as mother and next friend of EOO, a minor) [2024] KEHC 3555 (KLR) an award of Kshs 1,500,000.00 for loss of earning capacity to a minor who lost an arm was upheld on appeal. Guided by that authority, I award the plaintiff Kshs 1,500,000.00 as general damages for loss of earning capacity. (d) Special damages 54.Special damages must be specifically pleaded and strictly proved (see Hahn v Singh [1985] KLR 716; Capital Fish Kenya Ltd v Kenya Power & Lighting Co. Ltd [2016] eKLR. The plaintiff pleaded Kshs 141,891.00. On the documents produced, only the following items were strictly proved by receipts: the air ticket from Kilindini Travel Centre Ltd, receipt No. 80556, Kshs 30,920.00; and bus tickets Nos. 5246 (Kshs 300.00), 75230 (Kshs 1,000.00), 74328 (Kshs 1,200.00) and 186712 (Kshs 1,200.00), totalling Kshs 3,700.00, an aggregate of Kshs 34,620.00. The Pandya Memorial Hospital invoice No. W1924 for KShs 68,676.00 is made out to the Kenya Ports Authority, which the hospital's own admission form recorded as the party responsible for the plaintiff's bills, and no proof of payment by or on behalf of the plaintiff was tendered; it is disallowed, as are the unreceipted claims for X-ray (Kshs 3,000.00) and scans (Kshs 6,000.00) and the balance of the travel claim. Special damages are awarded in the sum of Kshs 34,620.00. (e) Summary of the award 55.The plaintiff is accordingly awarded:(a)general damages for pain, suffering and loss of amenities (including loss of use of the right forearm) Kshs 4,500,000.00;(b)general damages for loss of earning capacity, Kshs 1,500,000.00; and(c)special damages, KShs 34,620.00;The total award Kshs 6,034,620.00, payable by the 1st defendant. Interest and costs 56.In the exercise of the discretion conferred by section 26(1) of the Civil Procedure Act (Cap 21), interest shall run on the special damages at court rates from the date of filing suit, 24 September 2009, until payment in full, and on the general damages at court rates from the date of this judgment until payment in full. 57.As to costs, section 27 of the Civil Procedure Act ordains that costs follow the event unless the court, for good reason, orders otherwise. The plaintiff, having succeeded against the 1st defendant, shall have her costs of the suit against the 1st defendant. The 2nd and 3rd defendants, against whom the suit is dismissed, would ordinarily look to the plaintiff for their costs; but this is, in my view, a proper case for an order of the kind sanctioned in Sanderson v Blyth Theatre Co. [1903] 2 KB 533 and Bullock v London General Omnibus Co. Ltd [1907] 1 KB 264, whereby the unsuccessful defendant is ordered to pay the costs of the defendants against whom the claim has failed. 58.The plaintiff acted reasonably in joining all three defendants: her child was injured within the walls of the 1st defendant's hospital in the course of care shared among the hospital's nurses, its Resident Medical Officer and the consultant, and the question of which of them bore responsibility – obscured as it was by gaps and silences in the hospital's own records, including the unrecorded cannulation procedure and the unexecuted plan for medical review – could only be resolved at trial. It was the 1st defendant's manner of conducting the plaintiff's care that made the joinder of its doctor and of the consultant practically unavoidable, and it would be unjust to visit the costs of the exonerated defendants upon a young woman disabled by the 1st defendant's negligence. Accordingly, the 1st defendant shall pay, in addition to the plaintiff's costs, the taxed costs of the 2nd and 3rd defendants. 59.In the result, judgment is entered as follows:(a)The plaintiff's suit against the 2nd and 3rd defendants is dismissed.(b)Judgment is entered for the plaintiff against the 1st defendant, liability being borne wholly (100%) by the 1st defendant, in the sum of Kshs 6,034,620.00, made up of:(i)Kshs 4,500,000.00 general damages for pain, suffering and loss of amenities (including loss of use of the right forearm);(ii)Kshs 1,500,000.00 general damages for loss of earning capacity; and(iii)Kshs 34,620.00 special damages.(c)The claims for future nursing, medical expenses and care, and for loss of future earnings, are disallowed.(d)Interest shall run on the special damages at court rates from 24 September 2009, and on the general damages at court rates from the date of this judgment, in each case until payment in full.(e)The 1st defendant shall pay the plaintiff's costs of the suit, and shall further pay the taxed costs of the 2nd and 3rd defendants. DATED, SIGNED AND PUBLISHED ON 14 AUGUST 2026NGAAH JAIRUSJUDGE