https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7697

Wambu (Suing as Administrator & Personal Representative of the Estate of Ruth Gathoni Wambu) v Wambwa & 2 others (Civil Case 232 of 2010) [2026] KEHC 7697 (KLR) (Civ) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7697 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 232 of 2010 AN Ongeri, J June 2, 2026 Between Walter Ndindi Wambu (Suing as Administrator & Personal Representative of the Estate of Ruth Gathoni Wambu) Plaintiff and Dr. J. R. Wambwa 1st Defendant Dr. Lucy Muchiri 2nd Defendant The Mater Hospital 3rd Defendant Judgment 1.The plaintiff in this case, Walter Ndidi Wambu sued the three defendants, Dr. Wambwa, Dr. Lucy Mchiri And Mater Hospital seeking general damages under the Law Reform Act and the Fatal Accidents Act together with special damages plus costs and interest vide plaint dated 28/4/2010 amended. 2.The suit arose out of an alleged negligence by the 1st and 2nd defendants towards the plaintiff’s wife Ruth Wambu (deceased) while she was admitted at the 3rd defendant hospital. 3.The plaintiff avers in the plaint dated 28/4/2010 which was amended on 27/5/2010 that the cause of action arose from events began on or about May 20, 2009, when the deceased was admitted to the third defendant’s medical health facility suffering from abdominal issues. 4.The plaintiff further avers that a duty of care existed between the deceased and the defendants, requiring them to exercise a high degree of professional skill and care to ensure her safety. 5.However, the plaintiff avers that the first and second defendants negligently managed her treatment under the watch and care of the third defendant, leading to her premature death on July 17, 2009. 6.The specific particulars of negligence attributed to the first defendant include failing to make a proper diagnosis despite adequate facilities, subjecting the deceased to unnecessary surgery, removing normal body tissue while misrepresenting it as the cause of illness, subjecting her to an unnecessary second surgery, and subsequently abandoning that second surgery without a second opinion, thereby leaving the patient to suffer and die from complications. 7.Additionally, the plaintiff avers that the first defendant is misrepresented facts to the patient and her relatives and managed the deceased in a negligent manner. 8.The plaintiff also avers that the second defendant, a pathologist at the third defendant’s facility, is negligent for causing the writing and release of a grossly erroneous histopathology report, causing the destruction of the body through embalming, and obstructing the postmortem process, thereby subjecting the family to unwarranted suffering. 9.The third defendant, a limited liability company operating the medical health facility, is alleged to be liable for employing incompetent or negligent doctors, failing to protect the patient from unnecessary pain and suffering, attempting to cover up the events leading to her death, and misrepresenting facts regarding her health status. 10.By reason of this negligence, the deceased suffered intense pain and suffering, her expectation of life was drastically shortened, and her estate and beneficiaries suffered severe loss and damage. 11.The plaintiff also avers that the conduct of the defendants amounted to disgraceful and infamous conduct within the medical profession. 12.Despite a demand and notice of intention to sue being issued, the defendants failed, neglected, or refused to admit liability. 13.As the cause of action arose in Nairobi, within the jurisdiction of the court, and since no other identical legal proceedings are pending, the plaintiff prays for judgment against the defendants jointly and severally. 14.The remedies sought include general damages under the Law Reform Act and Fatal Accidents Act, aggravated damages, and interest on those damages. 15.Furthermore, the plaintiff claims total special damages amounting to 3,278,654.40 Kenyan Shillings, which encompasses 2,712,654.40 Shillings for medical expenses, 300,000 Shillings for funeral expenses, 150,000 Shillings for post-mortem charges, 50,000 Shillings for family doctor representation at the Medical Board, 50,000 Shillings for legal representation by an advocate at the Medical Board, 15,000 Shillings for legal fees to obtain letters of administration, and 1,000 Shillings for Medical Board and dentist application charges, alongside the costs of the suit and any other relief the court deems just. 16.The defendants filed a statement of defence dated 28/6/2010 in which they denied the plaintiff’s claim. 17.The case proceeded by viva voce evidence. The plaintiff who testified as PW1 adopted his witness statement dated 12/10/ 2009 as his evidence in chief. 18.The plaintiff stated in the said statement that in the week preceding 19th May 2009, his late wife was an outpatient of Dr. J. S. Bhangra at his clinic in Nairobi South C, where she received treatment for abdominal discomfort. 19.When her condition did not improve, she returned to the clinic on 18th May 2009, and Dr. Bhangra instructed her to have x-rays taken the following morning. 20.On 19th May 2009, three x-rays were taken at Mater Hospital, and later that day Dr. Bhangra analysed the films and diagnosed a partial intestinal obstruction, which he said was not life-threatening and only required two to four days of hospitalisation, not surgery. 21.He listed several hospitals including Mater Hospital, and the couple chose Mater due to its proximity to their residence. 22.On 20th May 2009, he and his wife reported to Mater Hospital for admission. 23.He attempted to book a private room but was told the admission fee was Ksh.70,000 because the case was surgical, which he disputed since no tests had been done. He observed a male nurse preparing his wife for new x-rays even though they had brought the previous day’s films, and only after his protest did staff look at the existing x-rays. 24.His wife was eventually admitted to a private room in Lourdel ward. Contrary to Dr. Bhangra’s opinion, Mater Hospital treated the condition as surgical, and an operation was performed about three days after admission. 25.She was later moved to the High Dependency Unit until 28th May 2009, then back to a private room. On 6th June 2009, she was issued a discharge sheet by Dr. C. J. M. Mureithi, and he paid the final bills, but before leaving the hospital she began feeling unwell again, so Dr. Mureithi detained her and moved her back to the HDU for better monitoring. 26.On Sunday 7th June 2009, he visited with a friend, Mr. James Macharia Nganga. His wife was awake and communicating normally, though he noticed she was struggling to maintain conversation. 27.Later that afternoon, Dr. Wambwa called and requested a further surgical operation. He discussed this with his wife, who agreed and said, “My God is with me.” 28.She endured the operation but then remained in the ICU for 44 days with little sign of life except occasional eye movement. 29.During that time, he held three meetings with hospital staff, receiving contradictory reports from day and night shifts. 30.His wife died on the evening of 17th July 2009, with a total bill of Ksh.6,127,729.97 for what had started as a partial intestinal obstruction. 31.After the first surgery, he had complained to Mr. Bernard Mokaya about rising bills without corresponding care, and Mr. Mokaya authorised a 5% discount. By the day his wife died, he owed Ksh.3,384,077.48. 32.The hospital pressed him to secure the debt and take the body away without establishing the cause of death. 33.In meetings with Mr. Mokaya on 22nd and 23rd July 2009, he requested a substantial reduction or waiver of the bill given his wife’s death, but the best offer was to reduce upfront cash from Ksh.1.5 million to Ksh.1 million, with the balance secured. He felt short-changed. 34.He engaged Dr. Kiama Wangai as his family pathologist on 23rd July 2009, as Mater had not established the cause of death. 35.A postmortem was conducted on 27th July 2009, during which Dr. Lucy Muchiri suggested the hospital had done its best and mentioned that his wife was diabetic, hypertensive and obese, even though he maintained she had never been diabetic. 36.Dr. Kiama noted irregularities and arranged a second postmortem on 29th July 2009 with Dr. Andrew Gachie and police pathologist Dr. Oduor. 37.Before that postmortem, he observed significant interest from Mater management and medical staff, including a long meeting among them from which he was excluded. 38.After the second postmortem, Dr. Kiama indicated the death might involve the police, and he reported the matter to Industrial Area Police Station on 31st July 2009. 39.A third postmortem was planned for 10th August 2009, but when he tried to book it on 7th August 2009, he was refused a prescribed form and instead asked to write a letter. 40.He was then directed to return for a reply but found the relevant offices locked. On 10th August 2009, the hospital’s legal officer refused to stamp his letter requesting release of the body. 41.He received two letters, one from J. G. Onyango demanding payment of outstanding bills within seven days, and another from Dr. Dolan refusing to allow the third postmortem and reminding him to settle bills. 42.He believed both letters were drafted by the same person to intimidate him. Dr. Dolan also attempted to bar Dr. Kiama from acting as pathologist on grounds not found in Kenyan law. 43.On 13th August 2009, when he and Mr. Charles Likimani went to collect a postmortem consent form, Dr. Dolan initially opened her drawer to produce it but slammed it shut upon seeing him and directed them to the laboratory, where staff were shocked because they did not issue such forms. 44.On 17th August 2009, he received an email from the hospital’s advocates further attempting to block Dr. Kiama. 45.He reaffirmed his appointment of Dr. Kiama and Dr. Gachie. On 18th August 2009, he attended for the planned postmortem with Dr. Kiama, Mr. Likimani, and Police Constable Kiarie, but the morgue was locked and staff were absent. 46.While he waited, Mater Hospital falsely reported to Industrial Area Police Station that four unknown people, including someone impersonating a police officer, were causing a disturbance. 47.Two armed officers responded but confirmed that PC Kiarie was on official duty. The incident was recorded in the police occurrence book. 48.On 19th August 2009, the Medical Practitioners and Dentists Board wrote to Mater to release the body and requested Dr. Moses Njue to conduct and forward the final postmortem report. 49.Dr. Njue, accompanied by Dr. Oduor, Dr. Kiama, Dr. Gachie, and Dr. Muchiri, performed the third and final postmortem. 50.He requested release of the body and offered security for the outstanding bills, making clear that this did not constitute admission of debt. 51.After securing the balance on 21st August 2009, he went to collect the body but discovered that his wife’s internal body parts had been left out in a pail and the body unsealed after the last postmortem. 52.The funeral home attendants refused to take the body in that state, and he had to compel the hospital’s legal officer to order the mortician to return the parts and seal the body. 53.He concluded by noting several glaring observations: a 5% discount on bills had been given after his complaint, suggesting many patients might not raise such issues; a hospital staff member, Ruth Were, had tried to persuade him to move his wife to a less expensive hospital, 54.Dr. Dolan repeatedly tried to block Dr. Kiama as family pathologist; the legal officer gave false information to police; his wife incurred over Ksh.2 million in medicine costs for what began as a partial intestinal obstruction. 55.Dr. Dolan refused to issue a postmortem consent form and misdirected him; and a mortician left body parts outside the body and the body unsealed after postmortem, which he found traumatising. 56.He stated that he took his wife to Mater Hospital to be treated for partial intestinal obstruction, and he was only liable for bona fide bills related to that condition. 57.PW 1 was extensively cross-examined by the defence counsels and he maintained that he deceased was mismanaged by the defendants. 58.The plaintiff called PROF KIAMA WANGAI who testified as PW 2. He produced his report dated 13/10/2009 as an exhibit in this case. 59.The report was contested by the defence counsels especially concerning his qualifications and PW 2 was also extensively cross-examined by the defence counsels. 60.In the report dated 13/10/2009 PW 2 stated in summary that he was engaged by the family of the deceased to act as their family pathologist after her death at Mater Hospital, where she had been admitted for abdominal pains, diagnosed with intestinal obstruction, and underwent multiple surgeries including a right hemicolectomy and later a small bowel resection with ileostomy. 61.She developed hypertension, fluctuating blood sugars, high fevers, and required haemodialysis, after which her condition deteriorated and she died. 62.Upon conducting the initial postmortem on 27th July 2009, Dr. Wangai immediately noted suspicious findings that showed that the body lacked blood, which was replaced by a reddish fluid throughout the abdomen, chest, and around the heart and lungs, the great saphenous veins of both lower limbs were completely bloodless and white, and the vascular system contained a yellowish gelatinous material. 63.He concluded that the body had been embalmed without the knowledge or consent of the relatives, which he characterized as interference with evidence. 64.The hospital pathologist, Dr. Lucy Muchiri, behaved evasively and at one point attempted to abandon the postmortem by claiming the body’s yellowness suggested hepatitis and that the mortuary was unsafe, a claim Dr. Wangai rejected by attributing the yellowness to multi-organ failure. 65.As a result of the above irregularities, Dr. Wangai decided to take a medicolegal approach, involving the police pathologist Dr. Oduor and another private forensic pathologist, Dr. Andrew Kanyi Gachie, for a repeat postmortem. 66.Throughout subsequent attempts to complete the examination, including brain dissection and a third postmortem, the hospital and its officials, including Dr. Dolan (Director of Medical Services), Mrs. Were, and a legal officer, systematically obstructed the process. 67.They cancelled scheduled postmortems, blocked doorways, locked Dr. Wangai and others inside a room for nearly twenty minutes, refused to produce tissue samples from the first surgery, and demanded that he delete photographs he had taken of hospital records. 68.Dr. Dolan falsely claimed that the family pathologist had no business at the hospital. When Dr. Wangai requested to peruse the files, he was surveilled by a receptionist and later bundled into an office, interrogated, and illegally confined. 69.The hospital also sent a letter demanding payment of outstanding bills within seven days under threat of court action, which Dr. Wangai interpreted as retaliation for insisting on further postmortems. 70.There were serious clinical inconsistencies that emerged from Dr. Wangai’s review of the hospital records such as blood gas reports showing impossible patterns, only Ruth’s samples appeared to be processed for long periods in a busy ICU, and printouts appeared to have been done at the same sitting to create false flags suggesting haemodialysis was performed. 71.The file had been interfered with to claim that dialysis was conducted via the left femoral artery, but the original notes from Dr. Ngani clearly stated that the arterial cannula was fixed in the left radial artery, and those notes remained in the file. 72.Histology reports by Dr. Muchiri were internally inconsistent. 73.She described transmural inflammation and peritonitis, but Dr. Wangai noted that peritonitis cannot be diagnosed from the tissue submitted, and that the same features being present in both large and small gut simultaneously was not tenable, such a patient would not have survived more than a week. 74.No perforation was seen at gross or microscopic examination, despite the surgeon claiming to have found a perforated caecum. 75.A tumor was also exposed during visceral dissection at the sigmoid colon, which Dr. Wangai concluded was the initial disease that had never been dealt with. 76.The government chemist’s report on toxic substances was negative, but when Dr. Wangai personally attended the laboratory, the analyst Eunice Wamuti was evasive and defensive, admitted she had tested for basic drugs and levels rather than confirming whether the submitted fluid was actually human blood, and conceded there was a mistake. 77.Dr. Wangai also noted that the hospital bill included charges for Dr. Moses Njue and Dr. Muchiri to be paid by the family, which he called irregular since they should be paid by the hospital, and he questioned how Dr. Njue’s name appeared in the bill without proper admission rights, suggesting that hospital cartels of doctors improperly license and exclude colleagues. 78.Finally, after the third postmortem on 19th August 2009, Dr. Njue communicated to the family that the cause of death was procedure-related. 79.However, according to Dr. Wangai’s overall opinion, formed from the totality of the obstruction, embalming, missing tissue samples, bloodless vascular system, manipulated records, and inconsistent histopathology, the management of the deceased was not done correctly and that there had been a deliberate attempt to cover up the true circumstances of Ruth Gathoni Wambu’s death. 80.The 1st defendant, DR. JOEL RICHARD WAMBWA testified as DW 1. He produced his written statement dated 29/11/2011 and his report dated 29/11/2009 as exhibits in this case. 81.DW 1 stated in the said statement that the deceased was admitted on 20 May 2009 with abdominal pain, distention, constipation, and vomiting. 82.Initial investigations suggested partial intestinal obstruction and a possible ovarian cyst. Conservative management was attempted, but her condition worsened, leading to a laparotomy on 23 May 2009. 83.During that surgery, the surgeon found adhesions and a perforation in the caecum, performed a right hemicolectomy, and carried out a primary anastomosis. 84.Post‑operatively, the patient was stable for a period but was readmitted on 6 June 2009 after vomiting before discharge. 85.A second laparotomy was performed on 7 June 2009 to relieve intestinal obstruction caused by dense adhesions; an ileostomy was created. 86.The patient was then managed in the intensive care unit but developed high output from the ileostomy, electrolyte imbalances, respiratory failure requiring re‑intubation, bilateral pleural effusions, renal failure requiring dialysis, cardiovascular instability needing inotropic support, liver dysfunction, and sepsis. 87.Despite these interventions, the patient did not improve and died on 17 July 2009. 88.Three post‑mortem examinations were subsequently carried out, and their reports are attached to the statement. 89.The second defendant, Lucy Wangari Muchiri testified as DW 2. She produced her medical report dated 10/9/2009. 90.DW 2 stated in the said medical report dated 10/9/2009 that the deceased, a 52-year-old obese female, had a clinical course marked by intestinal obstruction, sepsis, pneumonia, renal failure, and cardiac and hepatic dysfunction. 91.The autopsy revealed a subarachnoid hemorrhage with raised intracranial pressure and tonsillar herniation, attributed to systemic hypertension. 92.An incidental, ulcerated colonic adenocarcinoma was found, along with peritonitis, extensive adhesions, hepatomegaly with severe jaundice, pulmonary edema, and pneumonitis. 93.The cause of death was determined to be raised intracranial pressure due to subarachnoid hemorrhage from hypertension, with contributory factors including intestinal obstruction, generalized sepsis, and multiple organ failure. 94.A subsequent medicolegal autopsy confirmed the findings, and the report notes that the deceased had developed diabetes and coagulopathy while in intensive care. 95.The 2nd and 3rd defendants called one witness DW 3, DR. AGGREY WAFULA gave evidence regarding the care that was extended to the deceased. 96.DW 3 produced the 2nd and 3rd defendants bundle of document detailing the procedures that were undertaken at the 3rd defendant hospital. 97.He also produced a medical summary prepared at the 3rd defendant Hospital in the bundle dated 23/6/2023. 98.The summary which did not bear DW3’s signature stated in brief that Ruth Gathoni Wambu, a 52-year-old female, was admitted on May 20, 2009, and passed away on July 17, 2009, due to a severe intestinal obstruction and secondary complications including sepsis, pneumonia, and multi-organ failure. 99.She presented with a three-week history of abdominal distension and vomiting. 100.On May 23, 2009, Dr. Wambwa performed an emergency laparotomy which revealed a perforated caecum and bowel obstruction from dense adhesions and he performed a right hemicolectomy to remove the damaged colon and transferred her to the High Dependency Unit (HDU). 101.Her initial postoperative recovery was complicated by high fevers, unstable blood pressure, and leaking bowel contents from her drains. 102.Despite a brief improvement that led to her transfer to the general ward in early June, she suffered a sudden relapse on June 6, 2009, forcing an emergency readmission to the HDU. 103.A second emergency surgery was performed that same day for recurrent obstruction, which confirmed heavily matted bowels and required an emergency ileostomy. 104.Following this second operation, her condition rapidly deteriorated into severe sepsis, pneumonia, and respiratory failure, requiring mechanical ventilation. 105.Over the next several weeks, she suffered from metabolic acidosis, kidney injury, and neurological depression. Despite emergency interventions, including a pleural tap, anti-tuberculosis therapy, and the insertion of a femoral catheter for dialysis, her body succumbed to overwhelming systemic infection and liver dysfunction. 106.She remained unresponsive to all but deep pain before passing away from terminal multi-organ failure on July 17, 2009. 107.The parties filed extensive written submissions as follows; The plaintiff, the husband of the late Ruth Gathoni Wambu, submitted that he brought this suit against three defendants after she sought medical attention in May 2009 for a week of stomach discomfort. 108.After initial tests suggested a partial intestinal obstruction, she was referred to the third defendant’s hospital and admitted on 20th May 2009 under the care of the first defendant, a surgeon. 109.The plaintiff argues that the first defendant failed to conduct proper investigations, such as a colonoscopy, which would have revealed a tumour causing the obstruction. 110.Instead, he rushed into a laparotomy on 23rd May 2009, during which he removed healthy tissue and perforated the caecum. 111.The deceased was discharged on 6th June 2009 but began vomiting immediately and was readmitted. 112.A second surgery on 7th June 2009 removed more healthy small bowel, was abandoned due to adhesions, and left the patient with an ileostomy. 113.After the second surgery, she never regained consciousness, remained in a coma in intensive care, developed numerous infections, and died on 17th July 2009. 114.The plaintiff contends that the first defendant was negligent by misrepresenting that he found a pre-existing perforation, failing to investigate properly, performing two unnecessary surgeries that removed normal tissue, missing a five‑centimetre cancerous tumour in the colon, and causing the patient’s prolonged suffering and death. 115.Three postmortems confirmed that the resected tissues were normal, that the tumour was present and undiagnosed, and that the death was procedure‑related. 116.Against the second defendant, the pathologist, the plaintiff argues that she produced misleading laboratory reports and an inaccurate autopsy, attempted to cover up negligence, and frustrated the family’s efforts to obtain a proper postmortem. 117.The third defendant, the hospital, is held vicariously liable for the actions of the first and second defendants, as they were its employees or agents. 118.The plaintiff also blames the hospital for the numerous infections the deceased acquired while hospitalised and for mishandling the postmortem process. 119.The plaintiff submits that a duty of care arose upon admission and was breached by all defendants. 120.He relies on postmortem findings that the death was procedure‑related and caused by the undiagnosed tumour and subsequent complications. 121.He claims special damages of KShs. 2,613,094.49, supported by receipts, and seeks a total award of KShs. 22,613,094.00, comprising KShs. 9,500,000 for lost years, KShs. 10,000,000 for pain and suffering (including KShs. 2,000,000 for the two unnecessary surgeries and KShs. 8,000,000 for 40 days in intensive care), KShs. 500,000 for loss of expectation of life, and the special damages. 122.He also asks the court to discharge the property he pledged as security for the hospital bill and to order a refund of amounts already paid. 123.In conclusion, the plaintiff submitted that he has proved negligence on a balance of probabilities and asked the court to dismiss the defendants’ defences and grant the prayers sought 124.The 1st defendant submitted that he was not negligent in treating the deceased, who died from complications of intestinal obstruction. 125.He was a consultant surgeon who initially managed the patient conservatively, then performed two necessary surgeries when her condition worsened. 126.He contends that the caecal perforation found during surgery was a natural progression of the obstruction, not caused by him, and that pre‑operative imaging and post‑mortem findings are unreliable for ruling out such a perforation. 127.The plaintiff failed to provide expert evidence linking any act of the first defendant to the death. 128.He said that performing a colonoscopy would have been dangerous and contraindicated. 129.He submitted that the surgeries he performed were standard practice, and stopping the second surgery was in the patient’s best interest due to its difficulty. 130.He said that no breach of duty, causation, or administrative wrongdoing (e.g., withholding the body) was proved. 131.He further submitted that the damages claimed are excessive and unsupported by comparable awards. 132.He therefore seeks dismissal of the suit with costs.. 133.The 2nd and 3rd defendants submitted that the Plaintiff’s medical negligence claim over the death of Ruth Gathoni Wambu should be dismissed. 134.They first ask the court to disregard unauthenticated web links in the Plaintiff’s submissions. 135.On the facts, they note the deceased was admitted with vomiting, abdominal pain, hypertension, and borderline diabetes, and was diagnosed with partial intestinal obstruction. 136.Despite conservative treatment and two surgeries, she died on 17th July 2009. 137.The Defendants contend there was no negligence and that the deceased had multiple prior surgeries and significant adhesions, making bowel obstruction likely from adhesions rather than a tumour. 138.The initial conservative care and subsequent laparotomy were medically appropriate and colonoscopy and CT scan were unsuitable due to the obstructed bowel. 139.The dense adhesions created a “hostile abdomen,” and even the Plaintiff’s own pathologist confirmed the difficulty. 140.Any caecal perforation could result from pressure, not surgical error. Legally, a bad outcome alone does not prove negligence, and a doctor following approved practice is not liable. 141.They also submitted that Plaintiff’s expert Dr. Kiama is a pathologist, not a surgeon, and lacks clinical experience in treating intestinal obstruction, whereas the Defendants’ experts are qualified surgeons. 142.Regarding the alleged cover‑up by the 2nd Defendant, all pathologists agreed on the cause of death, the family was represented at all autopsies, and there was no finding of embalming. 143.The discrepancies in dates or omission of certain medical sites do not change the substantive consensus. 144.Hospital‑acquired infections were known complications of prolonged stay, managed by a multidisciplinary team. 145.The 3rd Defendant did not frustrate the family; it simply required pathologists to be properly registered, and Dr. Kiama was allowed to observe. 146.Finally, they submitted that the claim for Ksh. 27,963,094 in damages lacks evidence of the deceased’s earnings or dependency. 147.The Defendants concluded that the suit is without merit and should be dismissed with costs. 148.The plaintiff filed rejoinder submissions in which they stated that the first defendant’s reliance on perforations and adhesions is misleading, as these complications arose only after the initial laparotomy, during which the first defendant failed to identify and remove the actual intraluminal tumour discovered at post-mortem, instead resecting normal bowel tissue. 149.The plaintiff also contends in their rejoinder that adhesions were an afterthought, that the Bolam principle does not protect such plainly unreasonable surgical conduct, and that the second and third defendants breached their duties by failing to ensure proper diagnostics and clinical oversight. 150.Further, that causation is established because, but for the defendants’ negligence, the deceased would not have suffered unnecessary surgeries, deterioration, coma, and death. 151.The plaintiff claims total damages of Kshs. 30,613,094.00, including special damages of Kshs. 2,613,094.49. 152.The issues for determination in this case are as follows;i.Whether the defendants owed a duty of care to the deceased;ii.Whether the defendants breached that duty through medical negligence;iii.Whether the negligence caused the deceased’s pain, suffering, and premature death; andiv.What quantum of damages if any, the plaintiff is entitled to. 153.The court has carefully considered the pleadings, the testimony of the plaintiff who testified as PW1, the expert evidence of Professor Kiama Wangai who testified as PW2, the evidence of the defendants, and the extensive submissions filed by all parties. 154.This is a tragic case where a woman who entered a hospital with a manageable condition, a partial intestinal obstruction, ended up dying after two surgeries and forty-four days in intensive care. 155.The test as to whether a doctor has been negligent is not whether the outcome was bad, but whether the doctor acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. 156.As held in the case of Bolam v Friern Hospital Management Committee [1957] 2ALL E.R 118, a medical professional is not negligent simply because things go wrong. 157.However, a doctor is negligent if he falls below the standard of the ordinary skilled man exercising and professing to have that special skill. 158.The High Court in John Gachanja Mundia v Francis Muriira & Another (2017) eKLR held that a patient who approaches a doctor expects medical treatment with all the knowledge and skill that the doctor possesses to bring relief or solve the medical problem, and a doctor therefore owes certain duties of care whose breach gives rise to tortious liability. 159.This court finds that there was indeed a duty of care owed to the deceased. 160.When the deceased was admitted to the third defendant hospital on 20th May 2009 under the care of the first defendant, a surgeon, a doctor-patient relationship was established. 161.The law is clear that a hospital is vicariously liable for the negligent acts of its employees and agents, including doctors and nurses. 162.In Ricarda Njoki Wahome v Attorney General & 2 others (2015) eKLR, the court held that a duty of care arises once a doctor or other healthcare professional agrees to diagnose or treat a patient, and a hospital is vicariously liable for the negligence of its staff. 163.The most important question is whether the defendants breached that duty of care. 164.After reviewing the evidence, this court finds that the first defendant, Dr. Wambwa, was negligent in several material respects. 165.The deceased presented with symptoms of intestinal obstruction. 166.Rather than conducting proper investigations such as a colonoscopy or CT scan that would have revealed a tumour in her colon, the first defendant proceeded directly to surgery. 167.The first surgery performed on 23rd May 2009 was a right hemicolectomy, which removed a portion of the large intestine. 168.However, the postmortem examinations later confirmed that the tumour was never removed. 169.Even worse, the second surgery performed on 7th June 2009 was described as being abandoned due to adhesions, leaving the patient with an ileostomy from which she never recovered consciousness. 170.The plaintiff’s expert pathologist, Professor Kiama Wangai, testified that the management of the deceased was not done correctly and that there had been a deliberate attempt to cover up the true circumstances of her death. 171.He noted that the body had been embalmed without the knowledge or consent of the relatives, which he characterized as interference with evidence. 172.He also pointed out that histology reports by the second defendant, Dr. Lucy Muchiri, were internally inconsistent, and that no perforation was seen at gross or microscopic examination despite the surgeon claiming to have found a perforated caecum. 173.A tumour was exposed during visceral dissection at the sigmoid colon, which Dr. Wangai concluded was the initial disease that had never been dealt with. 174.The defendants have argued that the treatment was appropriate and that the complications were unfortunate but not negligent. 175.They have pointed to the dense adhesions and the hostile abdomen as reasons why the surgeries were difficult. 176.They have also argued that the plaintiff’s expert is a pathologist and not a surgeon, and therefore his opinion should be given less weight. 177.This court does not accept these arguments. A pathologist is eminently qualified to examine tissues, review medical records, and determine whether the standard of care was met. 178.More importantly, the objective evidence from the postmortem examinations is clear. Three separate postmortems were conducted, and the cause of death was ultimately described as procedure-related. 179.The tumour was missed, normal tissue was removed, and the patient died from complications that arose directly from the mismanagement of her condition. 180.The second defendant, Dr. Lucy Muchiri, the pathologist at Mater Hospital, is also found to have been negligent. 181.Her histopathology reports were inconsistent and misleading. 182.She attempted to obstruct the postmortem process and, together with other hospital officials, frustrated the family’s efforts to get a proper examination. 183.The second defendant claimed during the first postmortem that the deceased was diabetic, hypertensive, and obese, but the plaintiff, who was her husband, testified that she had never been diabetic. 184.This inconsistency raises serious questions about the accuracy of the hospital records and the care provided. 185.The third defendant, The Mater Hospital, is vicariously liable for the negligence of the first and second defendants, who were its employees or agents. 186.Additionally, the hospital itself acted negligently by allowing the body to be embalmed without consent, by obstructing the postmortem process, by attempting to block the family pathologist from carrying out his duties, and by putting pressure on the plaintiff to pay the bill before he could take the body. 187.The hospital’s conduct after the death, including refusing to release the body, and reporting false information to the police, demonstrates a pattern of cover-up rather than transparency. 188.The Court of Appeal in Pope John Paul’s Hospital & Another v Baby Kasozi (1974) EA 221 held that a charge of professional negligence against a medical man is serious and the burden of proof is greater than in ordinary negligence cases, but once the standard is met, liability follows. 189.In this case, the plaintiff has discharged that burden. The evidence shows that the first defendant failed to make a proper diagnosis, performed unnecessary surgeries, removed normal body tissue, missed a cancerous tumour that was later found at postmortem, and abandoned the second surgery without proper consultation. 190.These actions fall below the standard expected of a reasonably competent surgeon. 191.The plaintiff has also argued that the defendants misrepresented facts to the patient and her relatives, and that the second defendant caused the destruction of the body through embalming before proper examination could take place. 192.These allegations are supported by the evidence of Dr. Wangai, who testified about the evasive conduct of Dr. Muchiri, the unexplained embalming, and the systematic obstruction of the postmortem process. 193.This court finds that the defendants’ conduct was not merely negligent but showed a reckless disregard for the well-being of the deceased and for the rights of her family. 194.On the issue of causation, this court finds that but for the negligence of the defendants, the deceased would not have suffered the prolonged pain and eventual death that occurred. 195.She entered the hospital with a partial intestinal obstruction, a condition that Dr. Bhangra had said was not life-threatening and required only two to four days of hospitalization without surgery. 196.Instead, she underwent two major surgeries, spent forty-four days in intensive care unit, incurred a bill of over six million shillings, and died. 197.The chain of causation is unbroken. The missed diagnosis of the tumour, the unnecessary removal of healthy tissue, the decision to perform a second surgery that was abandoned, and the post-operative complications that led to multi-organ failure all flow directly from the defendants’ negligence. 198.The defendants have submitted that the deceased was a difficult case with dense adhesions from previous surgeries, and that even with the best care, the outcome might have been the same. 199.This court rejects that argument. The Bolam test does not protect a doctor who makes an error that no reasonably competent doctor would make. 200.The failure to perform a colonoscopy or CT scan before surgery, the removal of normal tissue while missing the actual tumour, and the abandonment of the second surgery without obtaining a second opinion are not mere errors of judgment. They are fundamental failures in the standard of care. 201.Turning now to the question of damages, this court makes the following awards. The plaintiff has claimed special damages totaling KShs. 3,278,654.40, which includes medical expenses, funeral expenses, post-mortem charges, and other costs. 202.The plaintiff produced receipts to support these claims. Special damages must be specifically pleaded and strictly proved, and this court finds that the plaintiff has satisfied that requirement. 203.Accordingly, special damages are awarded in the full amount of KShs. 3,278,654.40. 204.For general damages under the Law Reform Act, the plaintiff is entitled to damages for pain and suffering experienced by the deceased before her death. 205.The evidence shows that the deceased underwent two major surgeries, spent forty-four days in the intensive care unit, and was largely unresponsive except for occasional eye movements. 206.She experienced significant pain and suffering. Considering the prolonged period of suffering, the two unnecessary surgeries, and the forty-four days in intensive care, this court awards KShs. 4,000,000 for pain and suffering. 207.Additionally, under the Law Reform Act, the plaintiff is entitled to damages for loss of expectation of life. This is a conventional sum awarded to compensate the estate for the fact that the deceased’s life was cut short. 208.This court awards KShs. 200,000 under this head. 209.Under the Fatal Accidents Act, the plaintiff is entitled to damages for loss of dependency. The deceased was a married woman, and the plaintiff has lost the support and companionship of his wife. 210.The deceased was fifty-two years old at the time of her death. The plaintiff did not provide specific evidence of the deceased’s earnings, but the court can apply the minimum wage or a reasonable multiplier. 211.The Court of Appeal in Hellen Waruguru Waweru v Kiarie Shoe Stores Limited (2015) eKLR provided guidance on the assessment of damages under the Fatal Accidents Act. The court said that same should not be arbitrary. 212.In the current case, in the absence of tangible proof of earnings, this court finds it appropriate to adopt a global sum approach in assessing damages for loss of dependency instead of the multiplier method. 213.The plaintiff’s claim of total damages of Kshs. 30,613,094.00, including special damages of Kshs. 2,613,094.49 is excessive in the circumstances of this case. 214.In Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the Estate of Mercy Nzula Maina (deceased) [2016] eKLR, it was held that where the multiplicand cannot be ascertained with any precision, courts can make a global award. 215.This court adopts a global figure of KShs. 2,500,000 for loss of dependency. 216.This court also notes that the plaintiff’s claim for aggravated damages. Aggravated damages may be awarded where the defendant’s conduct has been particularly high-handed or oppressive. 217.In this case, the defendants’ conduct after the death, including embalming the body without consent, obstructing the postmortem process, attempting to block the family pathologist, and reporting false information to the police, merits an award of aggravated damages. 218.This court awards KShs. 500,000 as aggravated damages. 219.The total award is therefore as follows;i.Special damages of KShs. 3,278,654.40,ii.General damages for pain and suffering of Kshs. 4,000,000,iii.Loss of expectation of life of KShs. 200,000,iv.Loss of dependency of KShs. 2,500,000, andv.Aggravated damages of KShs. 500,000. 220.The total sum is KShs. 10,478,654.40. 221.The plaintiff also requested the court to discharge the property he pledged as security for the hospital bill. 222.This court finds that given the finding of negligence against the defendants, it would be unjust for the plaintiff to remain liable for the full hospital bill. 223.The third defendant is ordered to discharge any security provided by the plaintiff as the negligence of the defendants caused the prolonged hospitalization and the massive bill. 224.In conclusion, judgment is hereby entered in favour of the plaintiff against the defendants jointly and severally in the sum of KShs. 10,478,654.40. 225.The defendants shall also pay interest on the special damages from the date of filing suit until payment in full, and interest on the general damages from the date of this judgment until payment in full. 226.The defendants shall pay the costs of this suit. 227.This court wishes to express its sympathy to the plaintiff for the tragic loss of his wife. She went to hospital expecting to be healed, but instead she suffered and died due to the negligence of those who were supposed to care for her. 228.It is the hope of this court that this judgment will serve as a reminder to all medical practitioners and hospitals of their profound duty of care to their patients. 229.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF JUNE, 2026........................A. N. ONGERIJUDGEIn the presence of:M/S Kariuki Owesi hb for M/S Ngoyu for the PlaintiffMr Gatuguti and Mr Musoma for the 1st DefendantMr Ogunde for the 2nd and 3rd Defendants