DIOCESE OF EMBU AND THE ADMINISTRATOR,CONSOLATA HOSPITAL VS SIMON GICHANGI MUGO

An appeal from the Judgment and Decree of Hon. Lucy Ambasi CM in Embu CMCC No. 235 of 2016 delivered on 22^nd May 2023

1. Vide Memorandum of appeal dated 22^nd June 2023, the appellant seeks the following orders:
   1. That this appeal be allowed;
   2. That the decree of the Chief Magistrate dated 22^nd May 2023 be set aside;
   3. Costs of this appeal be awarded to the appellants; and
   4. such further orders as pleases the court in the interest of justice.
2. The appeal is premised on the grounds that:
   1. The learned Chief Magistrate was in error, misapprehension and misunderstanding of the trial when she refused pretrial on the convoluted grounds that she could not re-open a matter that was heard and concluded;
   2. The learned Chief Magistrate was in error and misdirection in proceeding with the trial in utter disrespect and disregard of the orders of the High Court in HCCA No. 23 of 2019, dated 8.12.2022 which were clear, unambiguous and mandatory, an error that renders the whole trial a nullity;
   3. The learned Chief Magistrate was in error of jurisprudence with regard to the hierarchy of the courts. She refused to adjourn the matter on grounds of absence of counsel for the defendant who was engaged at the Court of Appeal and which takes precedence over all the courts below it;
   4. The learned Chief Magistrate in proceeding with the hearing exparte and closing the defense case thus violating the rules of natural justice of audi alteram partem and the Civil Procedure Rules;
   5. The learned Chief Magistrate was in error in relying on the evidence of PW1 and 16 exhibits produced by him without any legal or evidential basis without which the evidence of PW1 is and remains to be hearsay;
   6. The learned Chief Magistrate admitted the evidence of PW3 as expert evidence without qualifying the witness, thereby making the evidence valueless as expert evidence;
   7. The learned Chief Magistrate erred and misdirected herself in awarding the plaintiff without reference to the plaintiff’s plaint dated 27.08.2011 by which the plaintiff’s claim was premised on medical negligence and not running down claims or fatal accidents relied on by the trial court;
   8. The learned Chief Magistrate’s assessment on liability and the sums for pain and suffering, loss of expectation of life, loss of dependency and loss of consortium were not claimed by the plaintiff in his plaint and the court was wrong in deciding on unpleaded issues;
   9. The award of special damages was also wrong as the claim was not before the learned Chief Magistrate as specifically pleaded and proved;
   10. The learned Chief Magistrate erred and misdirected herself in her identification of issues as informed by Order 15 of the Civil Procedure Rules and therefore relieved the plaintiff of his burden of proof which he failed to discharge on the evidence, notwithstanding that the defense was wrongly and deliberately kept away from the court and were shut out from participation; and
   11. The judgment of the learned Chief Magistrate fails to confirm with the provisions of Order 20 Rule 4(2) in that the judgment does not contain ‘a concise statement of the case, points for determination, reasons thereon and the reason for the decision’.
3. The respondent filed a plaint dated 27^th August 2011 seeking judgment against the appellant and Dr. Pierre Asabi Misambo, jointly and severally, for special damages, general damages, costs and interests. It was his case that on 21^st September 2008 at the appellant’s hospital, Dr. Pierre Asabi Misambo in the course of his employment at the appellant’s facility, so negligently provided medical services to the plaintiff’s wife Lucy Kageni Njeru (deceased) that he caused her death. He provided a list of particulars of negligence, which the appellant denied through a statement of defense in which it stated that the medical procedure in question was done in a professional manner.
4. The parties had initially entered a consent on 13^th July 2016 regarding production of exhibits and witnesses. The court proceeded on this front, considered the evidence adduced and dismissed the suit through its judgment delivered on 06^th May 2019 by Hon. M.N. Gicheru, CM. The respondent herein challenged this decision through HCCA 23 of 2019 in which the legality of the consent was brought into question in light of Order 18 of the Civil Procedure Rules. This court rendered the whole trial a nullity given the flaw in the rules of production of evidence and the judgment of Hon. M.N. Gicheru, CM was set aside. The court ordered that the matter be remitted back to the trial court for retrial and determination.
5. When the matter was placed before the trial court for retrial, the appellant’s advocate was not present in court but had communicated that he is held up before the Court of Appeal and would like to reopen pretrial. The respondent’s advocate stated that he would not wish for pretrial to be reopened since the matter was ripe for hearing. The trial court stated that there was no reason why a matter which was heard and concluded should be reopened for pretrial. That the reasons given by the appellant’s advocate were not credible. The trial magistrate ordered that the matter proceeds to hearing later in the day.
6. PW1 was the respondent who produced documentary evidence and relied on the averments made in the plaint. PW2 was PW1’s mother and she stated that the deceased was her daughter-in-law. PW3 was Dr. Moses Njue Gachoki, a pathologist, who stated that the cause of death was disseminated intravascular coagulation (DIC) following a spontaneous vaginal delivery, hysterectomy and massive blood transfusion. That the uterus of the deceased was surgically opened to remove the baby and, in the process, a blood vessel was severed, thus explaining the blood in the cavity.
7. That the surgical procedure was done in darkness due to a blackout and the generator was not turned on. That the source of light was a tilly lamp (koroboi) which provided insufficient light. That during his examination, he asked to see the uterus but he was informed that it had been removed and discarded. That the deceased had already delivered and was sent back for surgery due to bleeding, which procedure could have been avoided. That the death could have occurred due to the prolonged procedure, failure of anesthesia or a medical error because of the blackout.
8. The plaintiff closed its case. In the absence of the appellant’s advocate, the court closed the defense case as well and the respondent was urged to file his submissions. The trial court then delivered a judgment dated 22^nd May 2023 in which, judgment was entered against Dr. Pierre Asabi Misambo who was the 1^st defendant since he did not appear or enter defense. The trial magistrate noted that the appellant did not produce any evidence at the rehearing and she regarded that statement of defense as mere denial of facts. She noted that the appellant had been duly served with the hearing notice. She considered the respondent’s submissions, assessed liability at 100% and awarded damages as follows:
   1. Pain and suffering- Kshs.250,000/=
   2. Loss of expectation of life- Kshs.100,000/=
   3. Loss of dependency- 3,686,800/=
   4. Loss of consortium- Kshs.800,000/=
   5. Special damages- Kshs.80,000/=
   6. Costs of the suit
   7. Interests on all awards.
9. In this appeal, the court directed the parties to file their written submissions but only the respondent complied.
10. It was the respondent’s submission that the trial was conducted in compliance with the Civil Procedure Rules. That if the court in HCCA 23 of 2019 had intended for a pretrial conference to be conducted again, it would have said so but instead the Honourable Judge ordered a retrial. It was his argument that if the appellant’s advocate was attending to a Court of Appeal matter, he ought to have communicated to the court early enough that he would be absent from court, otherwise, the trial court rightly exercised its discretion.
11. From the memorandum of appeal and the submissions made, the issues for determination are thus:
    1. Whether the trial court erred in marking the defense case as closed; and
    2. Whether the trial court’s findings on liability and quantum are fair and just in the circumstances.
12. It is the duty of the first appellate court to re-examine the evidence adduced at trial and make its own finding. This was held in the case of Okeno vs. Republic [1972] EA 32 where the Court of Appeal stated thus:

“An Appellant on a first appeal is entitled to expect the    evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.  (Shantilal M. Ruwala Vs. R. (1957) EA. 570).  It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions.  Only then can it decide whether the magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”

1. From perusal of the trial court proceedings, this court notes that on the hearing date, the trial magistrate recorded that the defendants (including the appellant herein), were absent but they had been duly served and an affidavit of service was on record. The respondent’s advocate informed the court that the appellant’s advocate told him that he was attending to a Court of Appeal matter and that he sought to reopen the case for pretrial. The respondent’s advocate’s position was that this court in HCCA 23 of 2019 ordered for a retrial based on the evidence adduced.
2. He argued that the Court of Appeal appearance should take less than 10 minutes, meaning that counsel for the appellant should have been able to attend court for the retrial hearing. The trial magistrate stated that there was no reason to reopen pretrial since the matter had already been determined once before. That the counsel’s reason for failing to attend court was a scapegoat and it was brought too late in the day. The matter proceeded in the absence of the appellant’s advocate and the court took the respondent’s evidence. The decision by the trial magistrate to proceed with the trial in the absence of the appellant’s advocate was reached through the court’s discretion. It was upon the appellant’s advocate to demonstrate that indeed he was attending to a Court of Appeal matter on the same day.
3. It is the respondent’s advocate who relayed to the court that the appellant’s advocate had communicated to him that he would be held up in the Court of Appeal. In my view, the appellant’s advocate ought to have written to the court intimating his predicament and demonstrating the same for instance through giving a case number. Court of Appeal cause lists are public records and the proceedings are similarly held in public and so nothing stopped the appellant’s advocate from disclosing more details to the trial court to accommodate him. However, the counsel’s predicament was mentioned to the trial court seemingly in passing, thus the court was unable to exercise its discretion in his favour. No more information was provided regarding counsel’s absence from the court.
4. The case had already taken a long time to get to the point of a retrial, all along, considering the subject matter which is medical negligence. The respondent had gotten a chance to have the matter retried and he took advantage of the opportunity as it arose. On the other hand, the appellant seemed to approach the matter with nonchalance and without demonstrating eagerness to litigate the retrial as ordered. Courts of law can only exercise judicial discretion bestowed upon them judiciously and in a manner that does not stand in the way of dispensation of justice. In the case of John Mukuha Mburu v. Charles Mwenga Mburu (2019) eKLR, the court stated:

“......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”

In my view, the trial court did not err in its discretionary decision to proceed with the matter in the absence of the appellant’s advocate and to mark its case as closed.

1. The evidence adduced by the respondent included proof that he is the deceased’s husband and the administrator of her estate, demand letters following the incident and the deceased’s proof of earnings. The medical negligence in question was particularized in the plaint. The deceased, who was an employee of the appellant, drove herself to hospital to deliver her baby. Once the baby was safely delivered through a vaginal birth, the deceased began bleeding and Dr. Pierre Asabi Misambo conducted a hysterectomy on her in a bid to stop the bleeding but the surgery failed and she died.
2. PW3, Dr. Moses Njue Gachoki produced a postmortem report that he authored which indicated that the cause of death was complication of disseminated intravascular coagulation (DIC) post-surgery. On the postmortem report, he commented that the surgery took a very long time between 4PM and 3:30Am the following morning and was done without adequate lighting. That the amount of blood within the abdominal cavity suggested the possibility of a severed blood vessel. That the uterus should have been preserved and not concealed as it seemed like an attempt to conceal an injury.
3. In his uncontroverted testimony, PW3 stated that when the deceased was undergoing the hysterectomy surgery, there was a blackout and the appellant resorted to a ‘koroboi’ lamp as the source of light. It was his opinion that given that the patient had already shown signs of disseminated intravascular coagulation (DIC), the surgery should not have been conducted in the first place.
4. Based on this evidence, the court found the appellant 100% vicariously liable for negligence. In the circumstances, the appellant owed the deceased a duty of care given that it was possessing the special skilled manpower required to undertake the needed medical care. In the case of R. v. Bateman 1925 94 L.J. K.B. 791, the court stated thus regarding the duty of care:

“If a person holds himself out as possessing a special skill and knowledge and he is consulted…he owes a duty to the patient to use due caution in undertaking the treatment. The law requires a fair and reasonable standard of care and competence.”

Similarly, in the text book by Charles Worth & Percy on Negligence (8^th Edition), the authors noted that;

“The doctor’s relationship with the patient that gives rise to the normal duty to exercise his skill and judgment to improve the latter’s health in any particular respect, in which the patient has consulted him, is to be treated as a single comprehensive duty;  it covers all the ways in which a doctor is called upon to exercise his skill and judgment in the improvement of the patient’s physical or mental condition and in respect of which his services were engaged”

1. The appellant’s vicarious liability is to be determined through the same standard as the attending doctor’s liability in the negligence. I say this regarding the testimony of PW3 who stated that at some point during the unnecessarily lengthy surgery, the appellant suffered a blackout but there was no backup power source in the facility. This is a foreseeable incident and it is expected that the appellant should have made available an alternative source of power considering that it houses surgical facilities in its establishment In the case of BS v. Jonardan D. Patel (2019) eKLR the court delved into the question and stated that:

“When can a doctor be said to be negligent? A doctor can only be held guilty of medical negligence 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. For negligence to arise there must have been a breach of duty and breach of duty must have been the direct or proximate cause of the loss, injury or damage.  By proximate is meant a cause which in a natural and continuous chain, unbroken by any intervening event produces injury and without which injury would not have occurred.  The breach of duty is one equal to the level of a reasonable and competent health worker.”

1. It is my view that the finding of the trial court on liability is sound and need not be disturbed. Further, given the fact that the plaintiff’s case is not challenged, the standard of proof is satisfied through the available evidence.
2. As for quantum, the trial court awarded as follows:
   1. Pain and suffering- Kshs.250,000/=
   2. Loss of expectation of life- Kshs.100,000/=
   3. Loss of dependency- 3,686,800/=
   4. Loss of consortium- Kshs.800,000/=
   5. Special damages- Kshs.80,000/=
3. The trial court’s award of general damages for pain and suffering of Kshs.250,000/= noting that the deceased bled profusely for about 11 hours before her demise. In the case of COR (Suing on his own Behalf and as the Personal Representative of the Estate of MAO - Deceased) & 2 others v Kenya Hospital Association (Trading as) The Nairobi Hospital & 2 others (Civil Suit 148 of 2015) [2023] KEHC 19500 (KLR) (Civ), the court awarded general damages for pain and suffering of Kshs.500,000/= for a deceased person who died of cardiac arrest after her fall off a high hospital bed to the floor, excruciating and highly intrusive medical procedures, lab tests, multiple surgeries including the unsuccessful subtotal hysterectomy, medical complications, organ failure and two successive cardiac arrests in the ICU. In light of this case, I find that the award of damages under this head by the trial court is fair and need not be unsettled.
4. An award of Kshs.100,000/= as damages for loss of expectation of life is modest since that is the maximum conventional award in may cases. In the case of Benham vs Gambling, (1941) AC 157 it was held that only moderate awards should be granted for loss of expectation of life for the following reasons:-

“In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.”

1. In assessing damages for loss of dependency, the trial court considered that the 34-year-old deceased was survived by a husband and 3 children and adopted a ratio of ⅔. It also applied a multiplier of 26 years considering the statutory retirement age and the deceased’s monthly salary as the multiplicand. Under this head, the court awarded Kshs.3,686,800/=. Given that the deceased had a defined monthly income, the multiplier method is the most suitable method to use in determining damages under this head. Therefore, the finding of the trial court to this extent is fair and just.
2. Regarding the trial court’s award for general damages for loss of consortium, it is my view that the same is not based on law, neither was it pleaded by the respondent. In my view, the same should be set aside. In the case of Innocent Ketie Makaya Denge v Peter Kipkore Cheserek & another (2015) eKLR the court held thus:

“With respect to the award of KShs. 150,000/- for loss of consortium, I entirely agree with the appellant that this award should be set aside in its entirety as it was not anchored on any law. There is no law that provides for an award of damages to the widow of a deceased person for loss of consortium. The Law Reform Act and the Fatal Accidents Act which are the two statutes which govern the award of damages in fatal accident claims recognize only three heads of general damages and loss of consortium is not one of them. These are damages for pain and suffering, damages for loss of expectation of life and damages for loss of dependency. In my view, loss of consortium can only be subsumed in a claim for loss of amenities in an action instituted by a survivor of an accident in which it is claimed that owing to the injuries sustained in the accident in question, the plaintiff was incapable of enjoying consortium with his/her spouse and that his or her quality of life had as a result been diminished. Loss of consortium cannot thus be maintained as a claim on its own. In light of the foregoing, the award of damages for loss of consortium to the respondents portrays a serious misapprehension of the law by the trial magistrate.  The award was obviously made contrary to the law and cannot be allowed to stand.  It is consequently set aside.”

1. For special damages, the respondent prayed for Kshs.80,000/= being funeral expenses and the costs of acquiring the grant ad litem. It is trite that special damages must not only pleaded but they must also be proved (see the case of Pollmans Tours & Safaris Ltd v Gupta Sea Tour Limited (2015) eKLR). The respondent did not provide any proof of there amounts in the form of receipts. While it may be true that the money was spent, the same can only be reimbursed in the form of special damages if it is proved through receipts. Therefore, I find that the award of special damages is erroneous since the same was not strictly proved.
2. In the end, I find that the appeal partially succeeds, with the following orders issuing:
   1. Liability is maintained at 100% against the appellant and its co-defendant jointly and severally;
   2. General damages are hereby awarded as follows:
      1. Pain and suffering         - Kshs.250,000/=
      2. Loss of expectation of life    - Kshs.100,000/=
      3. Loss of dependency        - Kshs. 3,686,800/=
   3. Costs of the trial court to be borne by the appellant and is co-defendant;
   4. Each party to bear its own costs of this appeal;
   5. Interests on the awards shall be at court rates until payment in full.
3. It is so ordered.

Delivered, dated and signed at Embu this 28^th day of August, 2024.