[2020] KEHC 8723 (KLR)
The court found that the answers given by the plaintiff during cross-examination reflected the circumstances under which consent for surgery was obtained. Therefore, the plaintiff is entitled to explain these circumstances during re-examination. If any genuinely new issues arise, the court may grant leave for...
Source-derived case information.
- Citation
- [2020] KEHC 8723 (KLR)
- Parties
- Plaintiff: Walter Ndindi Wambu (Personal representative and administrator of the Estate of Ruth Gathoni Wambu); Defendant: Dr. J.R. Wambwa; Defendant: Dr. Lucy Muchiri; Defendant: The Mater Hospital
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 232 of 2010
- Procedural Posture
- Civil Case / Ruling on Objection During Re Examination
- Outcome
- Objection overruled. Plaintiff allowed to explain circumstances of consent during re-examination.
- Judges
- BT Jaden
- Legal Topics
- Re Examination Scope, Consent in Medical Negligence, Evidence Act Section 146, Pleadings and Case Theory
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Walter Ndindi Wambu (Personal representative and administrator of the Estate of Ruth Gathoni Wambu)
Plaintiff
Dr. J.R. Wambwa
Defendant
Dr. Lucy Muchiri
Defendant
The Mater Hospital
Defendant
Procedural Posture
Civil Case / Ruling on Objection During Re Examination
Legal Issues
- 1 Whether the plaintiff can explain the circumstances under which consent for surgery was obtained during re-examination.
- 2 Whether the re-examination is introducing new matters not covered in cross-examination.
- 3 Whether the plaintiff is attempting to repackage the case beyond the pleadings.
Ratio Decidendi
The court found that the answers given by the plaintiff during cross-examination reflected the circumstances under which consent for surgery was obtained. Therefore, the plaintiff is entitled to explain these circumstances during re-examination. If any genuinely new issues arise, the court may grant leave for further cross-examination by the defendants. The court also held that concerns about pleadings and alleged repackaging of the case can be addressed in final submissions, as the pleadings and evidence will speak for themselves.
Court Disposition
Objection overruled. Plaintiff allowed to explain circumstances of consent during re-examination.
Orders
- Plaintiff is at liberty to explain the circumstances under which consent was obtained during re-examination.
- If new matters arise, defendants may cross-examine on those matters with leave of the court.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 232 OF 2010
WALTER NDINDI WAMBU (Suing as the..................................................PLAINTIFF
Personal representative and administrator of the Estate of RUTH GATHONI WAMBU)
VERSUS
DR. J.R. WAMBWA..........................................................................1ST DEFENDANT
DR. LUCY MUCHIRI......................................................................2ND DEFENDANT
THE MATER HOSPITAL................................................................3RD DEFENDANT
RULING
1. The Plaintiff, Walter Ndindi Wambu (PW1) has given his evidence in chief and has been cross-examined. During the re-examination, the counsel for the Defendants objected to the line of re-examination adopted by the Plaintiff’s counsel. It was contended that the re-examination was raising new matters that were not part of the cross-examination.
2. The objection is on the question regarding the circumstances under which the consent to carry out surgery on the deceased herein, Ruth Gathoni Wambui, was obtained. The Defendants’ side is apprehensive that they will have no chance to address any new issues being raised in the re-examination. It was further submitted on behalf of the Defendants that the issue regarding the manner in which the consent was obtained was an afterthought, was not pleaded and is an attempt by the plaintiff’s side to repackage their case.
3. The plaintiff’s counsel submitted that the issue of the consent was raised during cross-examination and that the Plaintiff was not given a chance to explain at that stage. That if the Plaintiff is curtailed from explaining at this stage how the consent was obtained, then he would not be able to bring out his case. That if any new matters arise, the Defendants can be given a chance to cross-examine on the same.
4. I have considered the objections raised and the response to the same.
5. Section 146 (3) of the Evidence Act Cap 80 Laws of Kenya provides as follows:
“The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross –examine upon that matter.”
6. I have gone through the cross-examination herein with a fine tooth comb. I have picked out the following three answers in response to the questions by the counsel for the Defendants on the issue of the consent:
(a) In answer to the questions by the 1st Defendant’s counsel on 8th October, 2019:
“yes, consent was given for the first and second surgery”
(b) In response to the counsel for 2 & 3 Defendant’s on 8th October, 2019:
“Yes, on 23rd May, 2009 I signed a consent form. I have nothing in the form of any document lodging a complaint about my wife’s treatment before I gave the consent on 23th May, 2009.
Yes, on 7th June, 2009 I gave a second consent without any written complaint. My consent was being sought for the surgery to be conducted.”
7. During the examination-in-chief, the Plaintiff had testified he had reluctantly signed the consent after the wife intervened.
8. Prior to the objections being raised, the Plaintiff had during the re-examination confirmed that he signed the consent form and that he gave the consent for the second surgery after a big argument with the doctor. The attempts to explain further were then stopped by the objections raised.
9. In this courts view, the answers in cross-examination reflect the circumstances under which the consent was obtained and therefore can be explained in the re-examination. In the premises, the Plaintiff is at liberty to explain the same. If per chance any new issue crops up, the same can be raised with the leave of the court and the Defendants’ side will be given a chance to cross-examine on the same.
10. On the issues raised concerning the pleadings and whether there is an attempt by the Plaintiff’s side to re-package their case, the pleadings herein and the evidence will speak for themselves and the Defendants’ side will have a chance to address the same in their final submissions.
Date, signed and delivered at Nairobi this 5th day of Feb., 2020
B. THURANIRA JADEN
JUDGE