(Being an Appeal from the Judgment of Hon P Muholi (PM), in the Principal Magistrate Court at Githunguri Civil Case No E008 of 2024)
1. This is an appeal against the judgment of the Principal Magistrate's Court at Githunguri, delivered on 6th March 2025 by Hon. P. Muholi (PM) in Civil Suit No. E008 of 2024. The trial court found the Appellant liable for medical negligence and entered judgment in favour of the Respondent, Alice Kwamboka, who sued as the next friend of the minor Blessing Mokeira. The trial court awarded general damages of Kshs.2,500,000/= and special damages of Kshs.38,450/=, together with costs and interest.
2. The Appellant, being dissatisfied with the judgment, filed a Memorandum of Appeal dated 26th March 2025 challenging both the finding on liability and the quantum of damages awarded.
3. This Court directed that the appeal be convassed by way of written submissions.
4. The Respondent delivered twins through caesarean section at the Appellant's hospital. Immediately after birth, the two infants were placed in a heater in the hospital's nursery for the purpose of providing warmth and post-delivery monitoring. While under the exclusive care, management and supervision of the Appellant's medical personnel, the minor herein, Blessing Mokeira, sustained extensive burn injuries to multiple parts of her body.
5. Medical evidence produced at the trial court confirmed that the minor sustained burn injuries affecting the elbow, knee, lower leg, foot, buttocks, chest and abdomen, together with amputation of distal phalanges. The medical expert assessed permanent incapacity at 10 percent. The minor remained admitted at the Appellant's hospital for approximately two months while receiving treatment for the burns.
6. The Respondent filed the suit before the trial court on behalf of the minor. The Appellant denied liability and contended that it had provided adequate medical care and that the Respondent had failed to prove negligence.
7. After hearing the parties, evaluating the oral and documentary evidence and considering the written submissions filed, the trial court found the Appellant liable for negligence and entered judgment in favour of the Respondent.
8. The Appellant filed the following grounds of appeal;
(i) That the Learned Trial Magistrate erred in law and fact in finding the Appellant liable for negligence despite lack of sufficient evidence proving breach of duty of care.
(ii) That the Learned Trial Magistrate erred in awarding general damages of Kshs.2,500,000/= which are excessive and unjustified given the circumstances of the case.
(iii) That the Learned Trial Magistrate erred by relying on a medical report whose findings were exaggerated and not independently verified.
(iv) That the Learned Trial Magistrate erred by failing to properly consider the medical evidence presented by the Appellant which refuted the extent of injuries claimed by the Respondent.
(v) That the Learned Trial Magistrate misdirected himself in disregarding the fact that the Respondent failed to provide crucial medical records including a P3 Form to prove the alleged injuries.
(vi) That the Learned Trial Magistrate erred in failing to find that the claim was time-barred, given the delay in seeking medical treatment and filing the suit.
(vii) That the Learned Trial Magistrate erred in awarding special damages of Kshs.38,450/= without strict proof.
(viii) That the Learned Trial Magistrate erred in failing to appreciate that the Appellant provided adequate medical care to the minor and went to great lengths to ensure her wellbeing.
(ix) That the Learned Trial Magistrate erred in dismissing the Appellant's defence and submissions, leading to a biased and unjust decision.
APPELLANT'S SUBMISSIONS
9. The Appellant through Counsel on record submitted that the Respondent failed to discharge the burden of proof required to establish medical negligence. It was submitted that mere proof that an injury occurred while a patient was under a hospital's care does not, establish liability. The Appellant contended that negligence must be specifically proved through credible evidence and that the Respondent's evidence fell short of this standard.
10. The Appellant further submitted that the medical report relied upon by the trial court was exaggerated and had not been independently verified. It was argued that the Appellant's own medical evidence showed that the injuries sustained were not as extensive as claimed, and that the trial court failed to give adequate weight to this evidence.
11. The Appellant also contended that it could not be held responsible for an event whose cause was not established. No evidence was produced to show how or why the minor sustained the burn injuries while in the heater, and accordingly it was not possible to find that any specific act or omission by the Appellant's staff caused the injuries.
12. The Appellant argued, in its submissions, that the Respondent's suit was time barred, noting the delay between the occurrence of the injuries and the filing of the suit. It submitted that the trial court erred in granting leave to file suit out of time and that this Court should find the suit incompetent.
13. The Appellant submitted that the award of general damages of Kshs.2,500,000/= was manifestly excessive and unjustified in the circumstances. It argued that the injuries, to the extent they existed, did not warrant such a high award and that the trial court applied the wrong principles in arriving at this figure. It further submitted that the special damages of Kshs.38,450/= were not strictly proved.
14. The Appellant prayed that the appeal be allowed, the judgment of the trial court set aside, and costs awarded to the Appellant.
RESPONDENT'S SUBMISSIONS
15. The Respondent through their counsel submitted that the present appeal is devoid of merit and that the Learned Trial Magistrate properly evaluated the evidence, applied the correct legal principles in determining liability, and exercised judicial discretion judiciously in assessing damages.
16. The Respondent relied on the decision in Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR, where the Court of Appeal stated that a first appeal is by way of retrial and the appellate court must reconsider the evidence, evaluate it and draw its own conclusions, bearing in mind that it has neither seen nor heard the witnesses. Similarly, in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the Court held that the primary role of a first appellate court is to re-evaluate, re-assess and reanalyse the record and determine whether the conclusions of the trial court should stand.
17. The Respondent submitted that the finding of liability by the Learned Trial Magistrate was well reasoned and clearly grounded in the evidence on record. The Respondent cited the following legal principles on medical negligence:
18. In Jimmy Paul Semenye v Aga Khan Hospital & 2 Others (2006) eKLR, the court held that when a physician or other medical staff member does not treat a patient with the proper amount of quality care, resulting in serious injury or death, they commit medical negligence.
19. In Ricarda Njoki Wahome v Attorney General & 2 Others (2015) eKLR, the court observed that a doctor can only be held guilty of medical negligence when he falls short of the standard of reasonable medical care. For medical negligence to arise, there must be a breach of duty and that breach must be the direct or proximate cause of the loss, injury or damage.
20. In John Gachanja Mundia v Francis Muriira & Another [2017] eKLR, the court held that a patient who approaches a doctor expects medical treatment with all the knowledge and skill 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.
21. The Respondent submitted that the circumstances of this case clearly attract the doctrine of res ipsa loquitor, which applies where the nature of the accident is such that it would not ordinarily occur in the absence of negligence, and where the instrumentality causing the injury was under the control of the defendant. The Respondent cited Nandwa v Kenya Kazi Ltd [1988] eKLR, where the Court of Appeal affirmed that where the facts are such that the accident would not ordinarily occur without negligence, the doctrine applies and the defendant must rebut the inference of negligence.
22. The Respondent also cited Embu Public Road Services Ltd v Riimi [1968] EA 22, where the court held that where the circumstances of an accident give rise to an inference of negligence, the evidential burden shifts to the defendant to provide an explanation consistent with absence of negligence.
23. The Respondent submitted that the trial court correctly drew an adverse inference against the Appellant for failing to produce crucial medical records despite being served with a Notice to Produce dated 21st March 2024. The records were admittedly within the Appellant's possession and were critical in explaining the precise circumstances under which the injuries occurred and the treatment administered. The absence of these records deprived the court of the very evidence that could have explained how a newborn placed in a heater sustained such severe and extensive burn injuries.
24. The Respondent submitted that the argument on limitation was being raised for the first time on appeal and is therefore legally untenable. The Respondent noted that the issue of the competency of the suit on account of limitation was never raised before the trial court. The Appellant fully participated in proceedings before the lower court without challenging the leave granted to the Respondent to institute the suit out of time. It is trite law that a party cannot introduce new issues at the appellate stage which were neither pleaded nor canvassed before the trial court.
25. The Respondent submitted that the Learned Trial Magistrate exercised judicial discretion properly in assessing damages. The uncontroverted medical evidence established that the minor sustained serious burn injuries with permanent incapacity assessed at 10 percent. The trial court was guided by the decision in Charles Kimani Ng'ang'a v Kenya Power & Lighting Company Limited [2006] KEHC 2817 (KLR) in arriving at the award of Kshs.2,500,000/=.The Respondent further submitted that special damages were strictly pleaded and proved by receipts which were not challenged at trial.
26. The Respondent urged this Court to dismiss the appeal in its entirety, uphold the judgment of the trial court, and award costs to the Respondent.
ANALYSIS AND DETERMINATION
27. Having considered the grounds of appeal and the submissions filed by both parties, the following issues arise for determination by this Court:
i. Whether the Learned Trial Magistrate erred in law and fact in finding the Appellant liable for negligence;
ii. Whether the Learned Trial Magistrate erred in principle in the assessment and award of damages;
iii. Whether the Appellant is entitled to challenge the competency of the Respondent's suit on the basis of limitation of time, when no such objection was raised before the trial court; and
iv. Whether the Appellant has established sufficient grounds to warrant interference with the judgment of the trial court.
28. Before embarking on an analysis of the substantive issues, it is useful to restate the duty of this Court in a first appeal. In Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR, the Court of Appeal stated:
"An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect."
29. This Court is accordingly required to evaluate the evidence on the record and determine whether the conclusions of the trial court should stand. This Court will not lightly interfere with findings of fact made by the trial court unless they are based on no evidence, are contrary to the evidence, or the trial court is shown to have failed to appreciate the evidence or to have applied wrong legal principles.
30. The threshold question is whether the Appellant owed the minor a duty of care and whether that duty was breached. There can be no dispute that a hospital owes a duty of care to a patient admitted within its premises. In Jimmy Paul Semenye v Aga Khan Hospital & 2 Others (2006) eKLR, it was held that when a physician or other medical staff member fails to treat a patient with the proper amount of quality care, resulting in serious injury, they commit medical negligence.
31. The standard applicable in determining whether the Appellant breached its duty was stated in Ricarda Njoki Wahome v Attorney General & 2 Others (2015) eKLR, namely that a doctor can only be held guilty of medical negligence when he falls short of the standard of reasonable medical care. For medical negligence to arise, there must be a breach of duty which is the direct or proximate cause of the loss, injury or damage.
32. In John Gachanja Mundia v Francis Muriira & Another [2017] eKLR, the court held that:
"A case of medical negligence is not an ordinary case of negligence. The test to be applied is not that of an ordinary reasonable man known in law, but that of an ordinary skilled doctor or consultant in that field. A patient who approaches a doctor expects medical treatment with all the knowledge and skill the doctor possesses to bring relief or solve the medical problem. A doctor therefore owes certain duties of care whose breach gives rise to tortious liability."
33. Applying these principles to the facts before this Court, I make the following findings:
34. The evidence on record establishes without a doubt that the minor was a newborn infant placed entirely under the care, management and supervision of the Appellant's medical staff immediately after birth through caesarean section.
35. It is established on the evidence that the minor sustained extensive burn injuries while she was under the exclusive care and supervision of the Appellant's staff. Burn injuries to the elbow, knee, lower leg, foot, buttocks, chest and abdomen, together with amputation of distal phalanges which injuries do not arise spontaneously in a newborn.
36. The doctrine of res ipsa loquitur applies squarely on these facts. A newborn infant placed in a hospital heater cannot reasonably be expected to sustain extensive burn injuries affecting multiple parts of the body unless there was negligent handling or improper regulation of the equipment by the medical staff responsible for the infant's care. The injury is of the kind that would not ordinarily occur and the hospital heater was under the exclusive control and management of the Appellant's personnel.
37. Despite the appellant admitting that it maintained treatment notes and hospital records relating to the minor's care, the Appellant failed to produce these records before the trial court even after being served with a Notice to Produce dated 21st March 2024. Those records were precisely the documents that could have explained the circumstances under which the minor sustained the injuries. Their non-production entitled the trial court to draw an adverse inference against the Appellant.
38. The Appellant's contention that it provided adequate medical care is not supported by evidence. The question is not whether the hospital subsequently treated the injuries it is how the injuries occurred in the first place while the minor was entirely in the hospital's care. The Appellant's witness failed to explain how a newborn placed in a hospital heater could have sustained such injuries without negligence.
39. I am satisfied that the Learned Trial Magistrate properly directed himself on the law, properly evaluated the evidence before him, and was correct in finding the Appellant liable for negligence. In the foregoing I uphold the finding on liability against the Appellant.
40. The Appellant challenges the award of general damages of Kshs.2,500,000/= as excessive and the special damages of Kshs.38,450/= as not strictly proved. The Respondent submits that the awards were justified by the evidence.
41. The law on appellate interference with awards of damages is settled. An appellate court will only interfere with an award of damages where the award is so inordinately high or low as to represent an entirely erroneous estimate of the loss suffered, or where the trial court applied wrong principles in arriving at the award. The Appellant bears the burden of demonstrating that the trial court misapprehended the evidence or applied wrong principles.
42. The Learned Trial Magistrate was guided by the decision in Charles Kimani Ng'ang'a v Kenya Power & Lighting Company Limited [2006] KEHC 2817 (KLR) in arriving at the figure of Kshs.2,500,000/=. I am not persuaded that this amount is inordinately high so as to represent an erroneous estimate. Having regard to the nature, multiplicity and permanence of the injuries, the young age of the minor, the pain and suffering endured, and the lasting physical scars, I find the award to be reasonable and justified.The Appellant has not demonstrated that the trial court applied wrong principles in the assessment of damages.
43. The Appellant's argument that the medical report was exaggerated is not supported by any credible evidence. The Appellant's own witness confirmed key aspects of the injuries and the hospital records that would have shown the precise clinical picture were withheld by the Appellant itself
44. The Respondent produced receipts in support of the pleaded amount of Kshs.38,450/=. The Appellant did not challenge the admission of those receipts at the trial. It is trite law that a party cannot on appeal challenge the admission of documentary evidence whose admissibility was not contested at trial. The special damages were properly pleaded and proved. Ground 7 of the appeal fails.
45. The Appellant raises in its submissions the argument that the Respondent's suit was time-barred. The Respondent counters that this issue was never raised before the trial court and is therefore improperly raised on appeal.
46. The record confirms that the Respondent obtained leave of the court to institute the suit out of time. The Appellant participated fully in the proceedings before the trial court at all stages without at any point challenging that leave or raising any objection to the competency of the suit on grounds of limitation.
47. It is settled law that a party cannot introduce new issues at the appellate stage that were neither pleaded nor canvassed before the trial court. The purpose of an appeal is to review the decision of the trial court based on matters that were placed before it.
48. The upshot is that this appeal lacks merit and is dismissed accordingly with costs to the Respondent. Consequently, the judgment and decree of the learned trial Magistrate is hereby upheld
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF JUNE, 2026 THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
GATOTO FOR THE APPELLANT
OJIL H/B FOR OCHIENG FOR THE RESPONDENT
COURT ASSISTANT: JAEL NOSIM
1. This is an appeal against the judgment of the Principal Magistrate's Court at Githunguri, delivered on 6th March 2025 by Hon. P. Muholi (PM) in Civil Suit No. E008 of 2024. The trial court found the Appellant liable for medical negligence and entered judgment in favour of the Respondent, Alice Kwamboka, who sued as the next friend of the minor Blessing Mokeira. The trial court awarded general damages of Kshs.2,500,000/= and special damages of Kshs.38,450/=, together with costs and interest.
2. The Appellant, being dissatisfied with the judgment, filed a Memorandum of Appeal dated 26th March 2025 challenging both the finding on liability and the quantum of damages awarded.
3. This Court directed that the appeal be convassed by way of written submissions.
4. The Respondent delivered twins through caesarean section at the Appellant's hospital. Immediately after birth, the two infants were placed in a heater in the hospital's nursery for the purpose of providing warmth and post-delivery monitoring. While under the exclusive care, management and supervision of the Appellant's medical personnel, the minor herein, Blessing Mokeira, sustained extensive burn injuries to multiple parts of her body.
5. Medical evidence produced at the trial court confirmed that the minor sustained burn injuries affecting the elbow, knee, lower leg, foot, buttocks, chest and abdomen, together with amputation of distal phalanges. The medical expert assessed permanent incapacity at 10 percent. The minor remained admitted at the Appellant's hospital for approximately two months while receiving treatment for the burns.
6. The Respondent filed the suit before the trial court on behalf of the minor. The Appellant denied liability and contended that it had provided adequate medical care and that the Respondent had failed to prove negligence.
7. After hearing the parties, evaluating the oral and documentary evidence and considering the written submissions filed, the trial court found the Appellant liable for negligence and entered judgment in favour of the Respondent.
8. The Appellant filed the following grounds of appeal;
(i) That the Learned Trial Magistrate erred in law and fact in finding the Appellant liable for negligence despite lack of sufficient evidence proving breach of duty of care.
(ii) That the Learned Trial Magistrate erred in awarding general damages of Kshs.2,500,000/= which are excessive and unjustified given the circumstances of the case.
(iii) That the Learned Trial Magistrate erred by relying on a medical report whose findings were exaggerated and not independently verified.
(iv) That the Learned Trial Magistrate erred by failing to properly consider the medical evidence presented by the Appellant which refuted the extent of injuries claimed by the Respondent.
(v) That the Learned Trial Magistrate misdirected himself in disregarding the fact that the Respondent failed to provide crucial medical records including a P3 Form to prove the alleged injuries.
(vi) That the Learned Trial Magistrate erred in failing to find that the claim was time-barred, given the delay in seeking medical treatment and filing the suit.
(vii) That the Learned Trial Magistrate erred in awarding special damages of Kshs.38,450/= without strict proof.
(viii) That the Learned Trial Magistrate erred in failing to appreciate that the Appellant provided adequate medical care to the minor and went to great lengths to ensure her wellbeing.
(ix) That the Learned Trial Magistrate erred in dismissing the Appellant's defence and submissions, leading to a biased and unjust decision.
APPELLANT'S SUBMISSIONS
9. The Appellant through Counsel on record submitted that the Respondent failed to discharge the burden of proof required to establish medical negligence. It was submitted that mere proof that an injury occurred while a patient was under a hospital's care does not, establish liability. The Appellant contended that negligence must be specifically proved through credible evidence and that the Respondent's evidence fell short of this standard.
10. The Appellant further submitted that the medical report relied upon by the trial court was exaggerated and had not been independently verified. It was argued that the Appellant's own medical evidence showed that the injuries sustained were not as extensive as claimed, and that the trial court failed to give adequate weight to this evidence.
11. The Appellant also contended that it could not be held responsible for an event whose cause was not established. No evidence was produced to show how or why the minor sustained the burn injuries while in the heater, and accordingly it was not possible to find that any specific act or omission by the Appellant's staff caused the injuries.
12. The Appellant argued, in its submissions, that the Respondent's suit was time barred, noting the delay between the occurrence of the injuries and the filing of the suit. It submitted that the trial court erred in granting leave to file suit out of time and that this Court should find the suit incompetent.
13. The Appellant submitted that the award of general damages of Kshs.2,500,000/= was manifestly excessive and unjustified in the circumstances. It argued that the injuries, to the extent they existed, did not warrant such a high award and that the trial court applied the wrong principles in arriving at this figure. It further submitted that the special damages of Kshs.38,450/= were not strictly proved.
14. The Appellant prayed that the appeal be allowed, the judgment of the trial court set aside, and costs awarded to the Appellant.
RESPONDENT'S SUBMISSIONS
15. The Respondent through their counsel submitted that the present appeal is devoid of merit and that the Learned Trial Magistrate properly evaluated the evidence, applied the correct legal principles in determining liability, and exercised judicial discretion judiciously in assessing damages.
16. The Respondent relied on the decision in Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR, where the Court of Appeal stated that a first appeal is by way of retrial and the appellate court must reconsider the evidence, evaluate it and draw its own conclusions, bearing in mind that it has neither seen nor heard the witnesses. Similarly, in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the Court held that the primary role of a first appellate court is to re-evaluate, re-assess and reanalyse the record and determine whether the conclusions of the trial court should stand.
17. The Respondent submitted that the finding of liability by the Learned Trial Magistrate was well reasoned and clearly grounded in the evidence on record. The Respondent cited the following legal principles on medical negligence:
18. In Jimmy Paul Semenye v Aga Khan Hospital & 2 Others (2006) eKLR, the court held that when a physician or other medical staff member does not treat a patient with the proper amount of quality care, resulting in serious injury or death, they commit medical negligence.
19. In Ricarda Njoki Wahome v Attorney General & 2 Others (2015) eKLR, the court observed that a doctor can only be held guilty of medical negligence when he falls short of the standard of reasonable medical care. For medical negligence to arise, there must be a breach of duty and that breach must be the direct or proximate cause of the loss, injury or damage.
20. In John Gachanja Mundia v Francis Muriira & Another [2017] eKLR, the court held that a patient who approaches a doctor expects medical treatment with all the knowledge and skill 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.
21. The Respondent submitted that the circumstances of this case clearly attract the doctrine of res ipsa loquitor, which applies where the nature of the accident is such that it would not ordinarily occur in the absence of negligence, and where the instrumentality causing the injury was under the control of the defendant. The Respondent cited Nandwa v Kenya Kazi Ltd [1988] eKLR, where the Court of Appeal affirmed that where the facts are such that the accident would not ordinarily occur without negligence, the doctrine applies and the defendant must rebut the inference of negligence.
22. The Respondent also cited Embu Public Road Services Ltd v Riimi [1968] EA 22, where the court held that where the circumstances of an accident give rise to an inference of negligence, the evidential burden shifts to the defendant to provide an explanation consistent with absence of negligence.
23. The Respondent submitted that the trial court correctly drew an adverse inference against the Appellant for failing to produce crucial medical records despite being served with a Notice to Produce dated 21st March 2024. The records were admittedly within the Appellant's possession and were critical in explaining the precise circumstances under which the injuries occurred and the treatment administered. The absence of these records deprived the court of the very evidence that could have explained how a newborn placed in a heater sustained such severe and extensive burn injuries.
24. The Respondent submitted that the argument on limitation was being raised for the first time on appeal and is therefore legally untenable. The Respondent noted that the issue of the competency of the suit on account of limitation was never raised before the trial court. The Appellant fully participated in proceedings before the lower court without challenging the leave granted to the Respondent to institute the suit out of time. It is trite law that a party cannot introduce new issues at the appellate stage which were neither pleaded nor canvassed before the trial court.
25. The Respondent submitted that the Learned Trial Magistrate exercised judicial discretion properly in assessing damages. The uncontroverted medical evidence established that the minor sustained serious burn injuries with permanent incapacity assessed at 10 percent. The trial court was guided by the decision in Charles Kimani Ng'ang'a v Kenya Power & Lighting Company Limited [2006] KEHC 2817 (KLR) in arriving at the award of Kshs.2,500,000/=.The Respondent further submitted that special damages were strictly pleaded and proved by receipts which were not challenged at trial.
26. The Respondent urged this Court to dismiss the appeal in its entirety, uphold the judgment of the trial court, and award costs to the Respondent.
ANALYSIS AND DETERMINATION
27. Having considered the grounds of appeal and the submissions filed by both parties, the following issues arise for determination by this Court:
i. Whether the Learned Trial Magistrate erred in law and fact in finding the Appellant liable for negligence;
ii. Whether the Learned Trial Magistrate erred in principle in the assessment and award of damages;
iii. Whether the Appellant is entitled to challenge the competency of the Respondent's suit on the basis of limitation of time, when no such objection was raised before the trial court; and
iv. Whether the Appellant has established sufficient grounds to warrant interference with the judgment of the trial court.
28. Before embarking on an analysis of the substantive issues, it is useful to restate the duty of this Court in a first appeal. In Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR, the Court of Appeal stated:
"An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect."
29. This Court is accordingly required to evaluate the evidence on the record and determine whether the conclusions of the trial court should stand. This Court will not lightly interfere with findings of fact made by the trial court unless they are based on no evidence, are contrary to the evidence, or the trial court is shown to have failed to appreciate the evidence or to have applied wrong legal principles.
30. The threshold question is whether the Appellant owed the minor a duty of care and whether that duty was breached. There can be no dispute that a hospital owes a duty of care to a patient admitted within its premises. In Jimmy Paul Semenye v Aga Khan Hospital & 2 Others (2006) eKLR, it was held that when a physician or other medical staff member fails to treat a patient with the proper amount of quality care, resulting in serious injury, they commit medical negligence.
31. The standard applicable in determining whether the Appellant breached its duty was stated in Ricarda Njoki Wahome v Attorney General & 2 Others (2015) eKLR, namely that a doctor can only be held guilty of medical negligence when he falls short of the standard of reasonable medical care. For medical negligence to arise, there must be a breach of duty which is the direct or proximate cause of the loss, injury or damage.
32. In John Gachanja Mundia v Francis Muriira & Another [2017] eKLR, the court held that:
"A case of medical negligence is not an ordinary case of negligence. The test to be applied is not that of an ordinary reasonable man known in law, but that of an ordinary skilled doctor or consultant in that field. A patient who approaches a doctor expects medical treatment with all the knowledge and skill the doctor possesses to bring relief or solve the medical problem. A doctor therefore owes certain duties of care whose breach gives rise to tortious liability."
33. Applying these principles to the facts before this Court, I make the following findings:
34. The evidence on record establishes without a doubt that the minor was a newborn infant placed entirely under the care, management and supervision of the Appellant's medical staff immediately after birth through caesarean section.
35. It is established on the evidence that the minor sustained extensive burn injuries while she was under the exclusive care and supervision of the Appellant's staff. Burn injuries to the elbow, knee, lower leg, foot, buttocks, chest and abdomen, together with amputation of distal phalanges which injuries do not arise spontaneously in a newborn.
36. The doctrine of res ipsa loquitur applies squarely on these facts. A newborn infant placed in a hospital heater cannot reasonably be expected to sustain extensive burn injuries affecting multiple parts of the body unless there was negligent handling or improper regulation of the equipment by the medical staff responsible for the infant's care. The injury is of the kind that would not ordinarily occur and the hospital heater was under the exclusive control and management of the Appellant's personnel.
37. Despite the appellant admitting that it maintained treatment notes and hospital records relating to the minor's care, the Appellant failed to produce these records before the trial court even after being served with a Notice to Produce dated 21st March 2024. Those records were precisely the documents that could have explained the circumstances under which the minor sustained the injuries. Their non-production entitled the trial court to draw an adverse inference against the Appellant.
38. The Appellant's contention that it provided adequate medical care is not supported by evidence. The question is not whether the hospital subsequently treated the injuries it is how the injuries occurred in the first place while the minor was entirely in the hospital's care. The Appellant's witness failed to explain how a newborn placed in a hospital heater could have sustained such injuries without negligence.
39. I am satisfied that the Learned Trial Magistrate properly directed himself on the law, properly evaluated the evidence before him, and was correct in finding the Appellant liable for negligence. In the foregoing I uphold the finding on liability against the Appellant.
40. The Appellant challenges the award of general damages of Kshs.2,500,000/= as excessive and the special damages of Kshs.38,450/= as not strictly proved. The Respondent submits that the awards were justified by the evidence.
41. The law on appellate interference with awards of damages is settled. An appellate court will only interfere with an award of damages where the award is so inordinately high or low as to represent an entirely erroneous estimate of the loss suffered, or where the trial court applied wrong principles in arriving at the award. The Appellant bears the burden of demonstrating that the trial court misapprehended the evidence or applied wrong principles.
42. The Learned Trial Magistrate was guided by the decision in Charles Kimani Ng'ang'a v Kenya Power & Lighting Company Limited [2006] KEHC 2817 (KLR) in arriving at the figure of Kshs.2,500,000/=. I am not persuaded that this amount is inordinately high so as to represent an erroneous estimate. Having regard to the nature, multiplicity and permanence of the injuries, the young age of the minor, the pain and suffering endured, and the lasting physical scars, I find the award to be reasonable and justified.The Appellant has not demonstrated that the trial court applied wrong principles in the assessment of damages.
43. The Appellant's argument that the medical report was exaggerated is not supported by any credible evidence. The Appellant's own witness confirmed key aspects of the injuries and the hospital records that would have shown the precise clinical picture were withheld by the Appellant itself
44. The Respondent produced receipts in support of the pleaded amount of Kshs.38,450/=. The Appellant did not challenge the admission of those receipts at the trial. It is trite law that a party cannot on appeal challenge the admission of documentary evidence whose admissibility was not contested at trial. The special damages were properly pleaded and proved. Ground 7 of the appeal fails.
45. The Appellant raises in its submissions the argument that the Respondent's suit was time-barred. The Respondent counters that this issue was never raised before the trial court and is therefore improperly raised on appeal.
46. The record confirms that the Respondent obtained leave of the court to institute the suit out of time. The Appellant participated fully in the proceedings before the trial court at all stages without at any point challenging that leave or raising any objection to the competency of the suit on grounds of limitation.
47. It is settled law that a party cannot introduce new issues at the appellate stage that were neither pleaded nor canvassed before the trial court. The purpose of an appeal is to review the decision of the trial court based on matters that were placed before it.
48. The upshot is that this appeal lacks merit and is dismissed accordingly with costs to the Respondent. Consequently, the judgment and decree of the learned trial Magistrate is hereby upheld
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF JUNE, 2026 THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
GATOTO FOR THE APPELLANT
OJIL H/B FOR OCHIENG FOR THE RESPONDENT
COURT ASSISTANT: JAEL NOSIM