'Introduction
1. The Petition dated 21st January 2019 is supported by the 1st Petitioner’s affidavit in support of even date and a supplementary affidavit sworn on 17th May 2023.
2. The gist of this Petition is the alleged violation of the Petitioners rights and fundamental freedoms by the Respondents during labour by the 1st Petitioner and the subsequent delivery of the 2nd Petitioner at the Respondent’s medical facility. In particular, the Petitioners accused the Respondent of infringing their right to the highest attainable standard of health, including reproductive healthcare under Article 43 (1) (a), the right to inherent dignity under Article 28 and the right of access to information under Article 35 considering what the Petitioner underwent at the Respondent’s medical facility.
3. The Petitioners thus seek the following reliefs against the Respondent:
i. A declaration that the Respondent''s conduct and negligent handling of the Petitioners gravely violated the Petitioners'' right to the highest attainable standard of health care as provided for under Article 43(1)(a) Constitution.
ii. A declaration that the Respondent''s conducted and negligent handling of the Petitioners unjustifiable violated and or otherwise breached the Petitioner''s right to inherent dignity as provided for under Article 28 Constitution.
iii. A declaration that the Respondent''s negligent failure to inform the 1st Petitioner of available health services violated her right to information as provided for under Article 35(1)(b) Constitution.
iv. A declaration that the Respondent''s negligent failure to inform the 1st Petitioner of available medical service procedures violated the 1st Petitioner''s right to information as a consumer of medical services as provided for under Article 46(1) of Constitution.
v. A declaration that the Petitioners are entitled to award of general damages for breach of their constitutional right to highest attainable standard of health care provided under Article 43(1)(a) Constitution.
vi. Interest on (d) above calculated at the courts rates from the date of judgment until payment in full.
vii. Costs of this suit.
viii. Any other or further orders, writes and decrees this Court may deem just and fit to grant in the circumstances.
Petitioners’ Case
4. The 1st Petitioner testified that her maiden name was Gladwell Kaguu Ikinya (PW 1) which she changed to Mariam Kaguu Kinya after her marriage to Ayub Ali. Their marriage was blessed with the 2nd Petitioner. Afterwards they divorced, she to revert to her previous name. She exhibited her marriage certificate no. 020980 as part of exhibits P. exhibit 2 (a) & (b) and the Certificate of birth of the 2nd Petitioner = P. exhibit 3.
5. PW 1 stated that on 21st April 2003, she visited the 1st Respondent for a medical check–up. At the time she was expectant with the 2nd Petitioner. She stated:
“I felt I needed to be checked. I felt I needed to go and be checked. I needed to go and be checked about reduced featal beats. I was not in labour at all and my due date was not yet... the normal procedure that are usually performed was not administered. I was looking forward to have ultra sound to be done but it was not done even on request.”
6. Instead, she was informed that she was due for delivery and admitted. According to her, she was introduced to an intern doctor who told her he would attend to her because doctors were not in the hospital as the day was a public holiday.
7. Her request for ultra sound to confirm if the status of the 2nd Petitioner was okay was declined by the intern doctor who told her it was not necessary because she was just about to deliver yet her due date was on 22/4/2023. She was thus asked to go to the labour ward.
8. The 1st Petitioner was not experiencing any labor contractions hence the intern doctor and the nurse decided to induce labour. The assisting nurse then discovered that although her uterus was opening, the 2nd Petitioner’s head hence they kept on increasing medication throughout the night. All along she was not told what were the benefits of using the inducement method or given any alternatives or consulted. Notwithstanding the fact the father of the 2nd Petitioner was in the hospital, he too was never consulted. The inducement method did not succeed despite prolonged labour for 24 hours.
9. As a result, the 1st Petitioner was rushed to the theatre as a medical emergency.
10. During the surgical procedure, her legs were put on forceps (something between the legs to facilitate opening of uterus enable the baby to come out) but this procedure caused her pubic symphysis and sacroiliac joints that resulted in severe nerve damage. That procedure did not succeed and thus they resorted to vacuum delivery. All along, she was not consulted or asked to consent to any procedure.
11. Eventually, they pulled out the child on 22nd April, 2003 and they realized the umbilical cord had coiled around the 2nd Petitioner’s head and tightened. When came out, he did not cry and had a minimal heartbeat. He was thus rushed to the Intensive Care Unit (ICU) where one Dr. Ochieng was summoned to attend to him.
12. The 1st Petitioner avers that Dr. Ochieng who managed to resuscitate the 2nd Petitioner indicated that he may have suffered severe brain damage and was unlikely to live a normal life as he had celebral palsy. The 2nd Petitioner remained in the ICU up until 2nd May 2003.
13. Thereafter the 2nd Petitioner became dependent on epatunin syrup for epilepsy. A CT scan later showed that the extent of the brain damage was severe, an indication of cerebral atrophy. Dr. Ochieng concluded that the 2nd Petitioner would never live a normal life.
14. The 1st Petitioner subsequently lodged a complaint with the Respondent’s Chief Executive Officer, Ian Cripwell who informed her that since it was a breach of the doctor – patient relationship, they Respondent would waive the maternity fee (Ksh.30, 000) and hospital bill (Ksh.143,766).Furthermore vide a letter dated 23rd May 2003,she was informed that the matter would be investigated but has never been informed of the status of this investigation till date.
15. The 1st Petitioner argues that owing to the Respondent’s conduct aforesaid, they both son and herself suffered irreversible damage, namely:
Particulars of injury by 1st Petitioner
a) Torn and extensively damaged uterus wall lining for the 1st Petitioner.
b) Dangerous growth in the uterus that compromised 1st Respondent''s reproductive capacity.
c) Severe abdominal pain and vaginal discharge after delivery.
Particulars of injury by 2nd Petitioner
a) Loss of natural eyesight: 2nd Petitioner subjected to lifetime use of xalatan eye drops.
b) Inability of to read properly.
c) Suffering from glaucoma (high eye pressure) as a result of injuries sustained while at the ICU.
d) Delayed second stage and now has a delayed age group of 3 years.
e) Lack of proper coordination as a result of injuries caused to the brain during birth.
16. The 1st Petitioner stressed that this damage was solely caused by the Respondent’s negligence for the following reasons:
a) Allowing unqualified persons to attend to the Petitioners.
b) Failing to conduct ultra-sound as is the procedure.
c) Failing to conduct ultra-sound procedure despite having been requested by the 1st Petitioner.
d) Inducing labor/contractions without doing due diligence.
e) Misdiagnosis of the nature and gravity of the 1st Petitioner''s complications.
f) Failing to exercise reasonable care and skill while attending to the Petitioners.
g) Failing to offer reasonable standard of health care.
h) Failing to seek Petitioner''s consent before undertaking any operation despite there being no emergency care at the initial stages.
i) Failing to give the Petitioner sufficient information on the nature. advantages and or otherwise of the intended procedures so as to enable the 1st Petitioner make an informed decision.
17. She likewise depones that on 17th July 2020, her Counsel instructed Prof. Kiama Wangai who is a medico-legal expert to assess the cause, nature and extent of injury suffered and issue a medical legal report. To do so, she paid Ksh.50, 000 downpayment of the required Ksh.100,000. The opinion was subsequently issued on 19th October 2020.The conclusion was that the Petitioners harm had been caused solely by negligence of the Respondent.
18. The Petitioner avers therefore that ultimately owing to these negligent acts, their constitutional rights under Article 28, 35(1)(b), 43(1)(a) and 46(1)(b), of the Constitution were violated by the Respondent.
19. The 1st Petitioner informs that owing to the extent of the injuries afflicted on the 2nd Petitioner, she has had to place him in a special school and attend consistent hospital visits to monitor his condition. She says this has had a great financial burden on her. She as such seeks compensation of Ksh.65, 675, 712.80 from the Respondent.
20. On cross-examination, the Petitioner confirmed that at the point of discharge, she was only issued a discharge summary and all other reports were done later. She also confirmed that her complaint to the hospital was written though she had not retained a copy of what she wrote.
21. Prof. Kiama Wangai (PW 2) testified in the case as a medical expert in this case. He said his qualifications were Bachelor of Medicine and Surgery from the University of Nairobi, Bachelor of Law, University of Nairobi, Master of Medicine human pathology, Member of Royal College of Physicians UK, fellow faculty of forensic and legal medicine UK, fellow of College of Pathologists E. Africa and also holds bachelor of laws. He stated that he is a general practitioner, general pathologist and specialist in forensic medicine, has taught medicine for 15 years at Egerton University and has been in field of forensic medicine for 20 years.
22. He confirmed that he wrote the medical legal report dated 19/10/2020 in respect of the 2nd Petitioner which he produced as P. exhibit 5. It is necessary to set out the said report:
“Medical Legal opinion”
Name: Ali Nyahoro
History
When the minor was born on 22nd February, 2003, at Agha Khan University Hospital Nairobi, the mother Gladwell Ikinya had delayed second stage and hence prolonged labour.
At the time of admission to the hospital the foetal heart beats had reduced, the mother laboured for over 24 hours until she was tired and there was no foetal beats.
An emergency to remove the baby was done vide vacuum delivery.
The baby had an umbilical cord around his neck and the cord tightened around his neck as he was being pulled out.
Upon delivery the baby did not cry and had very minimal heart beats, the baby was rushed to the Intensive Care Unit.
The baby was resuscitated and the mother was informed by Dr. Ochieng that the child may have suffered severe brain damage, and to quote the doctor verbatim” and if the child will ever live he will never lead a normal life, she said the child had developed cerebral palsy and since I could not understand what it was, she told me that the child will be an imbecile”
The child suffers from:
1. Poor cognitive abilities
2. Poor eyesight
3. Poor learning abilities
4. Generally slow
The basis of the child clinical findings is that the child suffered asphyxia resulting from:
1. Prolonged maternal labour
2. The cord around the neck that was noticed late
The Child would have benefited from early intervention by way of caesarean section, which would have prevented the eventual birth asphyxia and damage to his brain.
He shall never fully recover brain functions and shall require regular neurological follow ups.
His cognitive functions shall always perform below what would have been expected of him had he not suffered the brain damage.”
23. During his testimony before this Court, he explained that the umbilical cord around the neck is not a problem when the baby is floating in the amniotic fluid and that whenever detected by ultra sound even during the normal at delivery, the midwife assisting the mother should upon noticing the baby’s head, put a hand around the neck of the featus and remove it as they are trained on how to it. He stated if that is not done, the child will suffer asphyxia for lack of oxygen.
24. He further explained that so as to prevent asphyxia, the mother’s labour progress is closely monitored using a partogram that relays vital information about the mother and the child during birth, for instance, if the baby is getting asphyxiated, one would notice increase in heartrate and it such a time that the option of plucking the baby using caesarian section is made because vacuum evacuation worsen the problem.
25. On effect of asphyxia, the witness explained in his evidence in chief thus:
“…The brain suffers from lack of oxygen. Brain cannot survive without oxygen for 2-3 minutes. Asphyxia results in brain damage. When the brain is damaged, it never recovers even as an adult. Once that happens, you cannot transplant brain. It is permanent.”
26. On 24 hours of labour, Prof. Kiama stated:
“This is gross negligence. ‘Hii ni mbaya’ (this is bad). You allow 24 hours of labour, this is bad. This baby was subjected to very bad state and the result came this way. They had time to intervene.”
27. On cross-examination, he was put to task that his report did not disclose the source of information such as the narration he gave on admission, vacuum delivery or the umbilical cord tied around the neck to which he replied:
“I got documents, hospital documents from the lawyer. It is from the documents they gave me, I think they are filed in Court.”
28. On his opinion regarding what the child presently suffers from; he stated:
“He was seen by other medical professionals which I relied on. I have said this patient had document they came with and I did my examination. Poor cognitive abilities, your clinical acumen can assess, which I did. Poor eyesight, I examined.”
29. He was challenged that there are child development specialists and for eyes, there are ophthalmologists who are specially trained in these areas and are able to assess using special equipment and international standards, to which he responded:
“There is nothing like international standards, they are medical protocols.”
30. Asked to precisely state when he actually examined the 2nd Petitioner if he actually did it, he stated:
“The report is dated 19/10/2020, is when I did the report after assessment.”
31. On what he exactly relied on to prepare a report of the 2nd Petitioner over the incident of birth that had taken place years before, he explained:
“Baby was born 171/2 years after delivery. This baby was born 17 years ago, we were reviewing circumstances of birth of the child, so I relied on history about birth of the child.”
32. Prof. Kiama was confronted that the 1st Petitioner did not have any hospital or medical document relating to the 2nd Petitioner apart from the discharge summary dated 3/5/2003 until again the year 2015) to which he replied:
“She the one to deal with that”
33. On being challenged that the discharge summary dated 3/5/2003 only indicated that ‘the child was discharged having delivery twitches but now ok’ The witness replied:
“A discharge summary is a summary of the management of the patient. It does not tell you what caused the twitch.”
Respondent’s Case
34. The Respondent filed an amended response to the Petition dated 27th April 2023. In addition, it called Dr. James Muriungi Kaburia (DW 2) and Dr. Mukaindo Abraham Mwaniki (DW1) as witnesses.
35. The Respondent denied the Petitioners were attended at its facility on 21st April 2003 as alleged in the Petition explaining that even names that appeared in the hospital records did not match those that were cited in the Petition and thus put the Petitioners to strict proof.
36. The Respondent also denied the claim made in the Petition that there was no doctor at its facility on the said date allegedly because it was a holiday and maintained that there is always a doctor on call at its facility because the hospital provides essential services.
37. The Respondent further asserted that the admission, diagnosis and delivery procedure carried out in respect of the Petitioners was done in line with the best medical practices and in a professional manner as is done for every patient.
38. The Respondent further faulted the instant Petition pointing out that it is disguised as a constitutional petition yet it is a claim under tort law hence time barred by the Statute of Limitation and is thus an abuse of the Court process.
39. The Respondent called two witnesses. Through its witness Dr. James Muriungi Kaburia (DW 2); he explained that in 2018, a request was made through the Respondent’s Legal Department to retrieve documents in relation to ‘ALI NYAHORO AYUB’ who was born on April 22, 2003 to ‘Gladwel Ikinya’ but none of these names were in their medical records.
40. However, he searched electronic records (Electronic Management Register-EMR) using the hospital identification number showing on the document as AK No. 701586 and was able to trace the name ‘Miriam K Ikinya’ while he also used registration number AK No. 426605 and found the name ‘Ali Ayub’. He further expanded the search into the dispatch register for 22nd April, 2022 which was being used to capture births and notifications submitted to the Registrar of births and discovered the names of MARIAM K IKINYA and AYUB G. ALI.
41. That efforts to trace physical files and electronic records relating to the two individuals were futile because though the hospital retains inpatient maternity and pediatric medical records in optical media, only information relating to registers such as registration of birth is archived because the hospital adheres with the policy of destroying outpatient records after five years from the period of last encounter while inpatient records are retained for only seven years from the period of last encounter with the patient.
42. He produced the bundle of documents relating to the above information as D. Exhibit 1 (a)& (b) and the document containing the Respondent’s medical records retention procedure policy – D. exhibit 2.
43. Dr. Mukaindo Abraham Mwaniki (DW 1), testified that he is an Assistant Professor and Consultant Obstetrician at the Agha Khan University Hospital. He explained that he trained as a medical doctor and graduated as a medical doctor with degree in medicine and surgery in 2004 and then pursued a master’s degree in obstetrics and gynecology which completed in 2010. He testified that he is registered with the Medical Council as a gynecologist and has been practicing and teaching since the year 2012. He said he specifically runs an out-patient clinic in which he deals daily with reproductive health matters which include-antenatal clinic, maternity care and delivery. Additionally, he has worked at Agha Khan Hospital since 2007. According to the witness, he has performed a couple of thousands of deliveries.
44. Concerning the instant Petition, he stated around March, 2021, the hospital’s legal department forwarded some documents that had emanated from the petitioner for him to give a professional assessment. He only restricted himself to the documents as provided because he did not have first-hand recollection of care nor the complete medical file of their care while at the facility. He nevertheless was required to address the issues raised about obstetrics and gynaecological care given to the petitioner.
45. According to Dr. Mukaindo, the 1st Petitioner presented at the hospital at 39 weeks and 6 days, one day shy to her due date with complaints of reduced featal movements. Assessment was done and she was offered induction of labour to be able to proceed to the delivery. According to Dr. Mukaindo, that is standard care of women with concerns about reduced featal movements at term for it reduces risk of child birth. After induction, delivery took long than anticipated due inadequate pushing effort prompting the use of vacuum assisted delivery after which the baby was born with one application of the vacuum meaning it was uncomplicated vacuum delivery.
46. Post delivery, 1st Petitioner was stated to have developed leg blood clot (deep vein thrombosis, DVT) which was confirmed on ultra sound examination. According to the doctor, pregnancy and especially post-partum period increases the risk of DVT in pregnant women at least four-fold as opposed to those that are not.
47. The 1st Petitioner was managed on physiotherapy and warfarin for the DVT. She was discharged on pain killer (olfen) and anti-acid (omeprazole) and the blood thinner (warfarin). She was to turn up for review at the gyneacological clinic in weeks’ time but there was no record that she went back.
48. On the allegation that she requested for ultra sound but it was denied, he stated that the document he reviewed does not have that information. He explained that the for ultra sound is indicated if there has been slowed growth of the baby which is usually picked during antenatal period or a patient who comes with reduced movement beyond the first time and usually, there are 4-8 antenatal clinics. The third time is when there are other complications during pregnancy such as blood sugar. He thus observed that it was not unusual that no ultra sound was taken.
49. On the issue of the baby born with a cord around the neck, he explained:
“Cord around the neck is a common occurrence. Most- 10-20% most baby born vaginally are born with cord around the neck. The evidence collected by many studies has shown that cord around the neck is not in and of itself a predictor of poor outcome in babies after delivery e.g. study published in 2020 in one of the journals which looked at experience of 240,000 deliveries with about 34,000 with cord around the neck and looked at risk of them on babies with those who had cord those who had no nuchal cord (cord around the neck) is not associated with higher rate of perinatal mortality or long respiratory liability. Therefore, cord around the neck is not what we routinely look for…even when a baby is born with a cord around the neck, and the head is born, initially old school was grab the neck and undo the knot. That has been discarded, the reversal somersault maneuver- you hold the baby in place -the head that has been born, allow birth then undo the loop once the baby has been born.”
50. On the existence of only the mother’s discharge summary, he explained that once the baby is born, it gains its own identity and hospital number and also their own discharge summary which he did not find to collate as it would have shown the defaults of condition at birth and care that was taken of the baby and the assessment at discharge as well as follow up plans.
51. Concerning the claim that the 2nd Petitioner developed cerebral palsy due to complications experienced at birth, Dr. Mukaindo testified:
“There are other causes of cerebral palsy besides asphyxia but it is documented that majority of cerebral palsy may be initiated by factors beyond birth.”
52. On the claim that the petitioner suffered injury to the uterus, Dr. Mwaniki Mukaindo (DW 1) disputed that assertion indicating that there was no evidence of big scar in the womb (uterine rupture) which is an obstetric emergency as it would have led to massive bleeding requiring blood transfusion and emergency repair in the theatre and such should have been reflected in the discharge summary of the mother. Further, the patient would have needed close follow ups and anti-biotics which claims are not even supported by discharge summary.
53. On cross-examination, he was asked if the reverse somersault procedure was administered on the 1st petitioner to which he replied that this was not documented.
54. Cross-examined on Apgar score, he explained that it is a quick assessment of a baby’s health at one and five minutes after its birth using the parameters of skin colour, heartrate or breathing of the baby, whether the baby reacts to provocation-reflex responses, tone of their muscles where each element is scored from 0, 1 or 2 with total being between 0 to 10. He explained:
“We categorize Zero -3 as low, 4-6 moderately abnormal and 7-10 as reassuring. At moderately abnormal; score is done at different time interval, 1st minute, next five minutes and 10 minutes…Apgar score was 5 in one minute and 5 at 5 minutes. Baby was fairing at moderately abnormal.”
55. Asked to explain the extent to which vacuum delivery can be a predisposing factor to birth asphyxia, he disputed that theory and explained thus:
“A vacuum is not a predisposing factor to birth asphyxia. It is a tool to prevent birth asphyxia by quickening delivery. Vacuum entrance is allowed where a woman is fully dilated-meaning she has fully opened where baby has reached certain level in maternal canal. If you are able to establish the position of the baby and finally where indication is there-if there is risk to baby, mother is too tired to push… vacuum extraction can be abandoned if it has not reached delivery after three contractions, if it comes off about three times, number 3, if there is no progress with attempts.
56. Asked how long this vacuum assisted delivery took, he quipped:
“From discharge summary, vacuum was applied once…”
57. On re-examination, he reiterated that he did not have at his disposal progress nursing and investigations that are usually contained in the nurse file for the admission period between 21/4/2003 to 3/5/2003 as this matter was brought to his attention in March 2021 insisting that his assessment would have been better if the hospital records were available.
58. The Respondent also called DW 3, Daniel Kiage, an ophthalmologist working at Innovation Eye Centre in Kisii. He stated that he has worked for 34 years as a doctor and 26 years as a ophthalmologist. He examined Ali Nyahoro Ayub (2nd Petitioner) on 13/1/22 at his clinic -Innovation Eye Centre. He had been accompanied by the mother. He measured pressure of the eye which he found normal, vision was normal when corrected with spectacles. He performed five tests-ultra sound of the eye, visual eye feels, OCT of the eye which did not show that the 2nd Petitioner suffered glaucoma. He produced his medical report – D. exhibit 3. According to him, the only eye problem was short-sightedness and when put on glasses, his vision was restored.
59. He explained that glaucoma is a disease of the eye where the pressure of the eye increases causing damage to the optic nerve causing irreversible loss of vision.
60. On cross-examination, he was asked if glaucoma can be caused by insufficient oxygen or damage to vein to which he replied:
“Absolutely not”
61. Dr. Florence Nafula Oringe (DW 4) is a neural developmental pediatrician who runs a clinic along Kiambu Road called Beacon Children Centre besides practicing in several hospitals. Her specialty is assessing children neural development and their behaviour.
62. She assessed the 2nd Petitioner on 12th January, 2022 as a referral from Agha Khan Hospital and prepared the developmental assessment report dated 12/1/22 (D. exhibit 4). The history was that he suffered birth asphyxia and had global development delays. On physical examination, she found him to be healthy man whose only challenge was vision that could be corrected using lenses. He could also not stand on one leg but could walk, climb stair case.
63. On cognitive domain- thinking capacity and understanding this around his environment were affected.
64. She then explained that there may be several factors at play:
“Hormonal factors, e.g. low thyroid hormone, we always check for that when the child come with developmental delay. Genetics, play a role e.g. deficits can run genetically, the fact that you have birth asphyxia do not exclude you have something genetically. Genetic-you need family history or genetic testing to check if she has genetic reason to pre-dispose them to the picture we are saying…”
65. Told that the woes suffered by the 2nd Petitioner are traceable to birth asphyxia she said:
“it is not the only reason, it is part of the reason. If the child gets asphyxia birth insult will determine. Birth asphyxia happens to be common but, in our practice, we screen for other possibilities.”
Petitioner’s Submissions
66. The Petitioner’s Counsel, Kariuki Kiplang’at, Lesaigor and Associates Advocates filed submissions dated 5th September 2024.
67. On jurisdiction, it was submitted that it was dealt with by this Court in its Ruling dated 25th June 2020 in which the Court overruled the Respondent’s Preliminary Objection and found that the Petition raises pertinent constitutional issues that ought to be determined as such.
68. Counsel reiterating the Petitioner’s averments in her affidavit and oral testimony in Court submitted that it was clear that prior to the delivery of the 2nd Petitioner, the 1st Petitioner had attended all prenatal clinics at the Respondent and no complications were diagnosed throughout the 9 months. It was argued that the unfortunate injury that occurred thereafter was as a result of the negligent care that was given to the Petitioners when she was admitted on the 21st April 2003.
69. In particular, the alleged intern doctor induced her labour despite her not having any labour pains or contractions. It was argued that the Respondent’s officers did not even bother to check if she had dilated and if so by how many centimeters. Equally, no ultra sound was conducted to check the fetal heartbeat. When the induced labour seemed not to have worked, it is said that the Petitioner was given more drugs and not informed of the risks involved.
70. When the drugs failed, the Respondent’s officers proceeded to use obstetrical forceps to assist in the delivery of the 2nd Petitioner. Equally the risks of this procedure were not disclosed to the 1st Petitioner. When this option also failed,
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1. The Petition dated 21st January 2019 is supported by the 1st Petitioner’s affidavit in support of even date and a supplementary affidavit sworn on 17th May 2023.
2. The gist of this Petition is the alleged violation of the Petitioners rights and fundamental freedoms by the Respondents during labour by the 1st Petitioner and the subsequent delivery of the 2nd Petitioner at the Respondent’s medical facility. In particular, the Petitioners accused the Respondent of infringing their right to the highest attainable standard of health, including reproductive healthcare under Article 43 (1) (a), the right to inherent dignity under Article 28 and the right of access to information under Article 35 considering what the Petitioner underwent at the Respondent’s medical facility.
3. The Petitioners thus seek the following reliefs against the Respondent:
i. A declaration that the Respondent''s conduct and negligent handling of the Petitioners gravely violated the Petitioners'' right to the highest attainable standard of health care as provided for under Article 43(1)(a) Constitution.
ii. A declaration that the Respondent''s conducted and negligent handling of the Petitioners unjustifiable violated and or otherwise breached the Petitioner''s right to inherent dignity as provided for under Article 28 Constitution.
iii. A declaration that the Respondent''s negligent failure to inform the 1st Petitioner of available health services violated her right to information as provided for under Article 35(1)(b) Constitution.
iv. A declaration that the Respondent''s negligent failure to inform the 1st Petitioner of available medical service procedures violated the 1st Petitioner''s right to information as a consumer of medical services as provided for under Article 46(1) of Constitution.
v. A declaration that the Petitioners are entitled to award of general damages for breach of their constitutional right to highest attainable standard of health care provided under Article 43(1)(a) Constitution.
vi. Interest on (d) above calculated at the courts rates from the date of judgment until payment in full.
vii. Costs of this suit.
viii. Any other or further orders, writes and decrees this Court may deem just and fit to grant in the circumstances.
Petitioners’ Case
4. The 1st Petitioner testified that her maiden name was Gladwell Kaguu Ikinya (PW 1) which she changed to Mariam Kaguu Kinya after her marriage to Ayub Ali. Their marriage was blessed with the 2nd Petitioner. Afterwards they divorced, she to revert to her previous name. She exhibited her marriage certificate no. 020980 as part of exhibits P. exhibit 2 (a) & (b) and the Certificate of birth of the 2nd Petitioner = P. exhibit 3.
5. PW 1 stated that on 21st April 2003, she visited the 1st Respondent for a medical check–up. At the time she was expectant with the 2nd Petitioner. She stated:
“I felt I needed to be checked. I felt I needed to go and be checked. I needed to go and be checked about reduced featal beats. I was not in labour at all and my due date was not yet... the normal procedure that are usually performed was not administered. I was looking forward to have ultra sound to be done but it was not done even on request.”
6. Instead, she was informed that she was due for delivery and admitted. According to her, she was introduced to an intern doctor who told her he would attend to her because doctors were not in the hospital as the day was a public holiday.
7. Her request for ultra sound to confirm if the status of the 2nd Petitioner was okay was declined by the intern doctor who told her it was not necessary because she was just about to deliver yet her due date was on 22/4/2023. She was thus asked to go to the labour ward.
8. The 1st Petitioner was not experiencing any labor contractions hence the intern doctor and the nurse decided to induce labour. The assisting nurse then discovered that although her uterus was opening, the 2nd Petitioner’s head hence they kept on increasing medication throughout the night. All along she was not told what were the benefits of using the inducement method or given any alternatives or consulted. Notwithstanding the fact the father of the 2nd Petitioner was in the hospital, he too was never consulted. The inducement method did not succeed despite prolonged labour for 24 hours.
9. As a result, the 1st Petitioner was rushed to the theatre as a medical emergency.
10. During the surgical procedure, her legs were put on forceps (something between the legs to facilitate opening of uterus enable the baby to come out) but this procedure caused her pubic symphysis and sacroiliac joints that resulted in severe nerve damage. That procedure did not succeed and thus they resorted to vacuum delivery. All along, she was not consulted or asked to consent to any procedure.
11. Eventually, they pulled out the child on 22nd April, 2003 and they realized the umbilical cord had coiled around the 2nd Petitioner’s head and tightened. When came out, he did not cry and had a minimal heartbeat. He was thus rushed to the Intensive Care Unit (ICU) where one Dr. Ochieng was summoned to attend to him.
12. The 1st Petitioner avers that Dr. Ochieng who managed to resuscitate the 2nd Petitioner indicated that he may have suffered severe brain damage and was unlikely to live a normal life as he had celebral palsy. The 2nd Petitioner remained in the ICU up until 2nd May 2003.
13. Thereafter the 2nd Petitioner became dependent on epatunin syrup for epilepsy. A CT scan later showed that the extent of the brain damage was severe, an indication of cerebral atrophy. Dr. Ochieng concluded that the 2nd Petitioner would never live a normal life.
14. The 1st Petitioner subsequently lodged a complaint with the Respondent’s Chief Executive Officer, Ian Cripwell who informed her that since it was a breach of the doctor – patient relationship, they Respondent would waive the maternity fee (Ksh.30, 000) and hospital bill (Ksh.143,766).Furthermore vide a letter dated 23rd May 2003,she was informed that the matter would be investigated but has never been informed of the status of this investigation till date.
15. The 1st Petitioner argues that owing to the Respondent’s conduct aforesaid, they both son and herself suffered irreversible damage, namely:
Particulars of injury by 1st Petitioner
a) Torn and extensively damaged uterus wall lining for the 1st Petitioner.
b) Dangerous growth in the uterus that compromised 1st Respondent''s reproductive capacity.
c) Severe abdominal pain and vaginal discharge after delivery.
Particulars of injury by 2nd Petitioner
a) Loss of natural eyesight: 2nd Petitioner subjected to lifetime use of xalatan eye drops.
b) Inability of to read properly.
c) Suffering from glaucoma (high eye pressure) as a result of injuries sustained while at the ICU.
d) Delayed second stage and now has a delayed age group of 3 years.
e) Lack of proper coordination as a result of injuries caused to the brain during birth.
16. The 1st Petitioner stressed that this damage was solely caused by the Respondent’s negligence for the following reasons:
a) Allowing unqualified persons to attend to the Petitioners.
b) Failing to conduct ultra-sound as is the procedure.
c) Failing to conduct ultra-sound procedure despite having been requested by the 1st Petitioner.
d) Inducing labor/contractions without doing due diligence.
e) Misdiagnosis of the nature and gravity of the 1st Petitioner''s complications.
f) Failing to exercise reasonable care and skill while attending to the Petitioners.
g) Failing to offer reasonable standard of health care.
h) Failing to seek Petitioner''s consent before undertaking any operation despite there being no emergency care at the initial stages.
i) Failing to give the Petitioner sufficient information on the nature. advantages and or otherwise of the intended procedures so as to enable the 1st Petitioner make an informed decision.
17. She likewise depones that on 17th July 2020, her Counsel instructed Prof. Kiama Wangai who is a medico-legal expert to assess the cause, nature and extent of injury suffered and issue a medical legal report. To do so, she paid Ksh.50, 000 downpayment of the required Ksh.100,000. The opinion was subsequently issued on 19th October 2020.The conclusion was that the Petitioners harm had been caused solely by negligence of the Respondent.
18. The Petitioner avers therefore that ultimately owing to these negligent acts, their constitutional rights under Article 28, 35(1)(b), 43(1)(a) and 46(1)(b), of the Constitution were violated by the Respondent.
19. The 1st Petitioner informs that owing to the extent of the injuries afflicted on the 2nd Petitioner, she has had to place him in a special school and attend consistent hospital visits to monitor his condition. She says this has had a great financial burden on her. She as such seeks compensation of Ksh.65, 675, 712.80 from the Respondent.
20. On cross-examination, the Petitioner confirmed that at the point of discharge, she was only issued a discharge summary and all other reports were done later. She also confirmed that her complaint to the hospital was written though she had not retained a copy of what she wrote.
21. Prof. Kiama Wangai (PW 2) testified in the case as a medical expert in this case. He said his qualifications were Bachelor of Medicine and Surgery from the University of Nairobi, Bachelor of Law, University of Nairobi, Master of Medicine human pathology, Member of Royal College of Physicians UK, fellow faculty of forensic and legal medicine UK, fellow of College of Pathologists E. Africa and also holds bachelor of laws. He stated that he is a general practitioner, general pathologist and specialist in forensic medicine, has taught medicine for 15 years at Egerton University and has been in field of forensic medicine for 20 years.
22. He confirmed that he wrote the medical legal report dated 19/10/2020 in respect of the 2nd Petitioner which he produced as P. exhibit 5. It is necessary to set out the said report:
“Medical Legal opinion”
Name: Ali Nyahoro
History
When the minor was born on 22nd February, 2003, at Agha Khan University Hospital Nairobi, the mother Gladwell Ikinya had delayed second stage and hence prolonged labour.
At the time of admission to the hospital the foetal heart beats had reduced, the mother laboured for over 24 hours until she was tired and there was no foetal beats.
An emergency to remove the baby was done vide vacuum delivery.
The baby had an umbilical cord around his neck and the cord tightened around his neck as he was being pulled out.
Upon delivery the baby did not cry and had very minimal heart beats, the baby was rushed to the Intensive Care Unit.
The baby was resuscitated and the mother was informed by Dr. Ochieng that the child may have suffered severe brain damage, and to quote the doctor verbatim” and if the child will ever live he will never lead a normal life, she said the child had developed cerebral palsy and since I could not understand what it was, she told me that the child will be an imbecile”
The child suffers from:
1. Poor cognitive abilities
2. Poor eyesight
3. Poor learning abilities
4. Generally slow
The basis of the child clinical findings is that the child suffered asphyxia resulting from:
1. Prolonged maternal labour
2. The cord around the neck that was noticed late
The Child would have benefited from early intervention by way of caesarean section, which would have prevented the eventual birth asphyxia and damage to his brain.
He shall never fully recover brain functions and shall require regular neurological follow ups.
His cognitive functions shall always perform below what would have been expected of him had he not suffered the brain damage.”
23. During his testimony before this Court, he explained that the umbilical cord around the neck is not a problem when the baby is floating in the amniotic fluid and that whenever detected by ultra sound even during the normal at delivery, the midwife assisting the mother should upon noticing the baby’s head, put a hand around the neck of the featus and remove it as they are trained on how to it. He stated if that is not done, the child will suffer asphyxia for lack of oxygen.
24. He further explained that so as to prevent asphyxia, the mother’s labour progress is closely monitored using a partogram that relays vital information about the mother and the child during birth, for instance, if the baby is getting asphyxiated, one would notice increase in heartrate and it such a time that the option of plucking the baby using caesarian section is made because vacuum evacuation worsen the problem.
25. On effect of asphyxia, the witness explained in his evidence in chief thus:
“…The brain suffers from lack of oxygen. Brain cannot survive without oxygen for 2-3 minutes. Asphyxia results in brain damage. When the brain is damaged, it never recovers even as an adult. Once that happens, you cannot transplant brain. It is permanent.”
26. On 24 hours of labour, Prof. Kiama stated:
“This is gross negligence. ‘Hii ni mbaya’ (this is bad). You allow 24 hours of labour, this is bad. This baby was subjected to very bad state and the result came this way. They had time to intervene.”
27. On cross-examination, he was put to task that his report did not disclose the source of information such as the narration he gave on admission, vacuum delivery or the umbilical cord tied around the neck to which he replied:
“I got documents, hospital documents from the lawyer. It is from the documents they gave me, I think they are filed in Court.”
28. On his opinion regarding what the child presently suffers from; he stated:
“He was seen by other medical professionals which I relied on. I have said this patient had document they came with and I did my examination. Poor cognitive abilities, your clinical acumen can assess, which I did. Poor eyesight, I examined.”
29. He was challenged that there are child development specialists and for eyes, there are ophthalmologists who are specially trained in these areas and are able to assess using special equipment and international standards, to which he responded:
“There is nothing like international standards, they are medical protocols.”
30. Asked to precisely state when he actually examined the 2nd Petitioner if he actually did it, he stated:
“The report is dated 19/10/2020, is when I did the report after assessment.”
31. On what he exactly relied on to prepare a report of the 2nd Petitioner over the incident of birth that had taken place years before, he explained:
“Baby was born 171/2 years after delivery. This baby was born 17 years ago, we were reviewing circumstances of birth of the child, so I relied on history about birth of the child.”
32. Prof. Kiama was confronted that the 1st Petitioner did not have any hospital or medical document relating to the 2nd Petitioner apart from the discharge summary dated 3/5/2003 until again the year 2015) to which he replied:
“She the one to deal with that”
33. On being challenged that the discharge summary dated 3/5/2003 only indicated that ‘the child was discharged having delivery twitches but now ok’ The witness replied:
“A discharge summary is a summary of the management of the patient. It does not tell you what caused the twitch.”
Respondent’s Case
34. The Respondent filed an amended response to the Petition dated 27th April 2023. In addition, it called Dr. James Muriungi Kaburia (DW 2) and Dr. Mukaindo Abraham Mwaniki (DW1) as witnesses.
35. The Respondent denied the Petitioners were attended at its facility on 21st April 2003 as alleged in the Petition explaining that even names that appeared in the hospital records did not match those that were cited in the Petition and thus put the Petitioners to strict proof.
36. The Respondent also denied the claim made in the Petition that there was no doctor at its facility on the said date allegedly because it was a holiday and maintained that there is always a doctor on call at its facility because the hospital provides essential services.
37. The Respondent further asserted that the admission, diagnosis and delivery procedure carried out in respect of the Petitioners was done in line with the best medical practices and in a professional manner as is done for every patient.
38. The Respondent further faulted the instant Petition pointing out that it is disguised as a constitutional petition yet it is a claim under tort law hence time barred by the Statute of Limitation and is thus an abuse of the Court process.
39. The Respondent called two witnesses. Through its witness Dr. James Muriungi Kaburia (DW 2); he explained that in 2018, a request was made through the Respondent’s Legal Department to retrieve documents in relation to ‘ALI NYAHORO AYUB’ who was born on April 22, 2003 to ‘Gladwel Ikinya’ but none of these names were in their medical records.
40. However, he searched electronic records (Electronic Management Register-EMR) using the hospital identification number showing on the document as AK No. 701586 and was able to trace the name ‘Miriam K Ikinya’ while he also used registration number AK No. 426605 and found the name ‘Ali Ayub’. He further expanded the search into the dispatch register for 22nd April, 2022 which was being used to capture births and notifications submitted to the Registrar of births and discovered the names of MARIAM K IKINYA and AYUB G. ALI.
41. That efforts to trace physical files and electronic records relating to the two individuals were futile because though the hospital retains inpatient maternity and pediatric medical records in optical media, only information relating to registers such as registration of birth is archived because the hospital adheres with the policy of destroying outpatient records after five years from the period of last encounter while inpatient records are retained for only seven years from the period of last encounter with the patient.
42. He produced the bundle of documents relating to the above information as D. Exhibit 1 (a)& (b) and the document containing the Respondent’s medical records retention procedure policy – D. exhibit 2.
43. Dr. Mukaindo Abraham Mwaniki (DW 1), testified that he is an Assistant Professor and Consultant Obstetrician at the Agha Khan University Hospital. He explained that he trained as a medical doctor and graduated as a medical doctor with degree in medicine and surgery in 2004 and then pursued a master’s degree in obstetrics and gynecology which completed in 2010. He testified that he is registered with the Medical Council as a gynecologist and has been practicing and teaching since the year 2012. He said he specifically runs an out-patient clinic in which he deals daily with reproductive health matters which include-antenatal clinic, maternity care and delivery. Additionally, he has worked at Agha Khan Hospital since 2007. According to the witness, he has performed a couple of thousands of deliveries.
44. Concerning the instant Petition, he stated around March, 2021, the hospital’s legal department forwarded some documents that had emanated from the petitioner for him to give a professional assessment. He only restricted himself to the documents as provided because he did not have first-hand recollection of care nor the complete medical file of their care while at the facility. He nevertheless was required to address the issues raised about obstetrics and gynaecological care given to the petitioner.
45. According to Dr. Mukaindo, the 1st Petitioner presented at the hospital at 39 weeks and 6 days, one day shy to her due date with complaints of reduced featal movements. Assessment was done and she was offered induction of labour to be able to proceed to the delivery. According to Dr. Mukaindo, that is standard care of women with concerns about reduced featal movements at term for it reduces risk of child birth. After induction, delivery took long than anticipated due inadequate pushing effort prompting the use of vacuum assisted delivery after which the baby was born with one application of the vacuum meaning it was uncomplicated vacuum delivery.
46. Post delivery, 1st Petitioner was stated to have developed leg blood clot (deep vein thrombosis, DVT) which was confirmed on ultra sound examination. According to the doctor, pregnancy and especially post-partum period increases the risk of DVT in pregnant women at least four-fold as opposed to those that are not.
47. The 1st Petitioner was managed on physiotherapy and warfarin for the DVT. She was discharged on pain killer (olfen) and anti-acid (omeprazole) and the blood thinner (warfarin). She was to turn up for review at the gyneacological clinic in weeks’ time but there was no record that she went back.
48. On the allegation that she requested for ultra sound but it was denied, he stated that the document he reviewed does not have that information. He explained that the for ultra sound is indicated if there has been slowed growth of the baby which is usually picked during antenatal period or a patient who comes with reduced movement beyond the first time and usually, there are 4-8 antenatal clinics. The third time is when there are other complications during pregnancy such as blood sugar. He thus observed that it was not unusual that no ultra sound was taken.
49. On the issue of the baby born with a cord around the neck, he explained:
“Cord around the neck is a common occurrence. Most- 10-20% most baby born vaginally are born with cord around the neck. The evidence collected by many studies has shown that cord around the neck is not in and of itself a predictor of poor outcome in babies after delivery e.g. study published in 2020 in one of the journals which looked at experience of 240,000 deliveries with about 34,000 with cord around the neck and looked at risk of them on babies with those who had cord those who had no nuchal cord (cord around the neck) is not associated with higher rate of perinatal mortality or long respiratory liability. Therefore, cord around the neck is not what we routinely look for…even when a baby is born with a cord around the neck, and the head is born, initially old school was grab the neck and undo the knot. That has been discarded, the reversal somersault maneuver- you hold the baby in place -the head that has been born, allow birth then undo the loop once the baby has been born.”
50. On the existence of only the mother’s discharge summary, he explained that once the baby is born, it gains its own identity and hospital number and also their own discharge summary which he did not find to collate as it would have shown the defaults of condition at birth and care that was taken of the baby and the assessment at discharge as well as follow up plans.
51. Concerning the claim that the 2nd Petitioner developed cerebral palsy due to complications experienced at birth, Dr. Mukaindo testified:
“There are other causes of cerebral palsy besides asphyxia but it is documented that majority of cerebral palsy may be initiated by factors beyond birth.”
52. On the claim that the petitioner suffered injury to the uterus, Dr. Mwaniki Mukaindo (DW 1) disputed that assertion indicating that there was no evidence of big scar in the womb (uterine rupture) which is an obstetric emergency as it would have led to massive bleeding requiring blood transfusion and emergency repair in the theatre and such should have been reflected in the discharge summary of the mother. Further, the patient would have needed close follow ups and anti-biotics which claims are not even supported by discharge summary.
53. On cross-examination, he was asked if the reverse somersault procedure was administered on the 1st petitioner to which he replied that this was not documented.
54. Cross-examined on Apgar score, he explained that it is a quick assessment of a baby’s health at one and five minutes after its birth using the parameters of skin colour, heartrate or breathing of the baby, whether the baby reacts to provocation-reflex responses, tone of their muscles where each element is scored from 0, 1 or 2 with total being between 0 to 10. He explained:
“We categorize Zero -3 as low, 4-6 moderately abnormal and 7-10 as reassuring. At moderately abnormal; score is done at different time interval, 1st minute, next five minutes and 10 minutes…Apgar score was 5 in one minute and 5 at 5 minutes. Baby was fairing at moderately abnormal.”
55. Asked to explain the extent to which vacuum delivery can be a predisposing factor to birth asphyxia, he disputed that theory and explained thus:
“A vacuum is not a predisposing factor to birth asphyxia. It is a tool to prevent birth asphyxia by quickening delivery. Vacuum entrance is allowed where a woman is fully dilated-meaning she has fully opened where baby has reached certain level in maternal canal. If you are able to establish the position of the baby and finally where indication is there-if there is risk to baby, mother is too tired to push… vacuum extraction can be abandoned if it has not reached delivery after three contractions, if it comes off about three times, number 3, if there is no progress with attempts.
56. Asked how long this vacuum assisted delivery took, he quipped:
“From discharge summary, vacuum was applied once…”
57. On re-examination, he reiterated that he did not have at his disposal progress nursing and investigations that are usually contained in the nurse file for the admission period between 21/4/2003 to 3/5/2003 as this matter was brought to his attention in March 2021 insisting that his assessment would have been better if the hospital records were available.
58. The Respondent also called DW 3, Daniel Kiage, an ophthalmologist working at Innovation Eye Centre in Kisii. He stated that he has worked for 34 years as a doctor and 26 years as a ophthalmologist. He examined Ali Nyahoro Ayub (2nd Petitioner) on 13/1/22 at his clinic -Innovation Eye Centre. He had been accompanied by the mother. He measured pressure of the eye which he found normal, vision was normal when corrected with spectacles. He performed five tests-ultra sound of the eye, visual eye feels, OCT of the eye which did not show that the 2nd Petitioner suffered glaucoma. He produced his medical report – D. exhibit 3. According to him, the only eye problem was short-sightedness and when put on glasses, his vision was restored.
59. He explained that glaucoma is a disease of the eye where the pressure of the eye increases causing damage to the optic nerve causing irreversible loss of vision.
60. On cross-examination, he was asked if glaucoma can be caused by insufficient oxygen or damage to vein to which he replied:
“Absolutely not”
61. Dr. Florence Nafula Oringe (DW 4) is a neural developmental pediatrician who runs a clinic along Kiambu Road called Beacon Children Centre besides practicing in several hospitals. Her specialty is assessing children neural development and their behaviour.
62. She assessed the 2nd Petitioner on 12th January, 2022 as a referral from Agha Khan Hospital and prepared the developmental assessment report dated 12/1/22 (D. exhibit 4). The history was that he suffered birth asphyxia and had global development delays. On physical examination, she found him to be healthy man whose only challenge was vision that could be corrected using lenses. He could also not stand on one leg but could walk, climb stair case.
63. On cognitive domain- thinking capacity and understanding this around his environment were affected.
64. She then explained that there may be several factors at play:
“Hormonal factors, e.g. low thyroid hormone, we always check for that when the child come with developmental delay. Genetics, play a role e.g. deficits can run genetically, the fact that you have birth asphyxia do not exclude you have something genetically. Genetic-you need family history or genetic testing to check if she has genetic reason to pre-dispose them to the picture we are saying…”
65. Told that the woes suffered by the 2nd Petitioner are traceable to birth asphyxia she said:
“it is not the only reason, it is part of the reason. If the child gets asphyxia birth insult will determine. Birth asphyxia happens to be common but, in our practice, we screen for other possibilities.”
Petitioner’s Submissions
66. The Petitioner’s Counsel, Kariuki Kiplang’at, Lesaigor and Associates Advocates filed submissions dated 5th September 2024.
67. On jurisdiction, it was submitted that it was dealt with by this Court in its Ruling dated 25th June 2020 in which the Court overruled the Respondent’s Preliminary Objection and found that the Petition raises pertinent constitutional issues that ought to be determined as such.
68. Counsel reiterating the Petitioner’s averments in her affidavit and oral testimony in Court submitted that it was clear that prior to the delivery of the 2nd Petitioner, the 1st Petitioner had attended all prenatal clinics at the Respondent and no complications were diagnosed throughout the 9 months. It was argued that the unfortunate injury that occurred thereafter was as a result of the negligent care that was given to the Petitioners when she was admitted on the 21st April 2003.
69. In particular, the alleged intern doctor induced her labour despite her not having any labour pains or contractions. It was argued that the Respondent’s officers did not even bother to check if she had dilated and if so by how many centimeters. Equally, no ultra sound was conducted to check the fetal heartbeat. When the induced labour seemed not to have worked, it is said that the Petitioner was given more drugs and not informed of the risks involved.
70. When the drugs failed, the Respondent’s officers proceeded to use obstetrical forceps to assist in the delivery of the 2nd Petitioner. Equally the risks of this procedure were not disclosed to the 1st Petitioner. When this option also failed,
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