( Being an Appeal from the Judgment of Hon. K. Cheruiyot ( SPM ) delivered on 7 th November 2024 in Civil case 124 of 2020)
Introduction
1. The Appeal arises from the judgement of Hon. Cheruiyot delivered on 7 th November 2024. The suit related to medical negligence, where the Appellant claimed that owing to the negligence of the Respondents, the minor was placed on ARV s for seven years, yet the minor was HIV Negative.
2. The suit was heard in the lower court and the court found that the Respondents were not negligent because the child had been tested and found to be HIV positive and that is why he was put on ARV s. The trial court found that the 2 nd and 3 rd Respodents only continued with refilling the medication because the patient went to the two facilities on a referral, tests having been done by the 1 st Respondent.
3. The trial court thus dismissed the Appellants case against the Respodents with costs.
4. The Appellant, dissatisfied with the judgment of the lower court has filed the instant Appeal with several grounds of Appeal all relating to the evaluation of evidence and the findings of the trial court. The grounds can be condensed into three (3) grounds as follows: -
a. Whether or not there was a HIV test that was done on the
minor and he was found to be HIV positive so as to be put on ARV drugs.
b. Whether or not the respondents were negligent in their duty of care by putting the minor on ARV drugs without carrying out continuous tests on the minor to determine his HIV status.
c. Whether or not the appellant was entitled to the reliefs sought.
Trial Court Evidence
5. The Appellant’s case was that the minor kept getting sick and he was taken to Ogra Foundation and underwent tests. The witness told court that the minor’s results came out positive according to the facility and he was therefore put on medication which is ARV s. At some point when the witness got a job in Kisumu, she requested for a transfer of the minor to a hospital in Kisumu so that she could continue with the refill of medicine from a facility near her.
6. The witness stated that she got a referral and minor continued with the ARV s. The patient was treated at St. Monica Hospital and Ahero Sub County Hospital where he continued with the refill of medicine. During this period, the minor would undergo the routine CD 4 count tests and the testimony of the witnesses was that he was doing well.
7. Sometimes in 2017, a HIV test was conducted on the minor during community testing and the test turned negative. The HIV test was repeated severally on 5 th May, 2017, 15 th June 2017 and 23 rd July 2017 and all the tests turned Negative. The final test was done by NASCOP and there is a Report dated 25 th September 2017 indicating that the minor was HIV Negative even after being off ARV s for several months.
8. That is when the suit in the lower court was filed for compensation for pain, suffering and trauma occasioned to the minor during the period when he had been declared HIV positive and continued with ARV s.
9. The Respondents on the other hand denied negligence. The first Respondent denied that they had ever dealt with a patient in the name of the minor. They denied negligence and denied ever having conducted any HIV test on the minor. They also denied that they had referred the minor to any hospital and stated that they are well equipped to deal with HIV Management.
10. The 2 nd Respondent confirmed that the minor was their patient and that he had come to the hospital upon referral from the 3 rd Respondent. They indicated that he had been diagnosed to be HIV positive, so they continued with treatment. That the only tests they conducted was the CD 4 count to determine the adherence level and at all times the minor had a good CD 4 count and the viral load was undetectable by the machine.
11. The 2 nd Respondent confirmed that they referred the patient
back to the 3 rd Respondent when the caregiver requested for the referral owing to distance.
12. The 3 rd Respondent also confirmed that they attended to the patient, who had been referred from Miwani Ogra foundation with a referral letter. According to the witness by the 3 rd Respondent, ordinarily when a patient is referred with test results and a referral letter, there is no need of conducting a confirmation test because the patient is already on treatment.
13. The 3 rd Respondent confirmed that later on, the patient was tested by NASCOP and the result was confirmed to be negative. The ARV’ s had been stopped for a while and the patient remained negative and the witness DW 3 had no explanation on how a HIV patient would turn negative. Her testimony is that the viral load can be undetectable but HIV cannot be cured.
Submissions by the Appellant
14. The Appellant submitted that the trial Magistrate erred in law and fact in finding that there were test results that shown that the minor was HIV positive. He submitted that the alleged results from Ogra Foundation, had not been produced in court. That the only results in the entire period that the minor remained on treatment are for the HIV tests done in 2017.
15. Counsel submitted that the Respondents evidence was that there is no need to repeat a test if there is already a test result together with the referral letter in cases of referral. That the Respondent witnesses had confirmed that there were no test results that accompanied the referral letter and to that extent the Appellant submitted that the hospitals were negligent in the manner they handled the patient.
16. The Appellant submitted that the Respondents were negligent for administering ARV ’s to a patient who was HIV negative for a duration of 7 years until tests conducted in 2017 shown that he was HIV Negative. That all the Respondents confirmed that ARV ’s are only administered to HIV Positive persons yet the minor was not positive.
17. Counsel further submitted that the Respondents were negligent for not conducting a HIV test on the minor because the minor had not been referred with the test results. He had only been allegedly referred with only a referral letter.
Respondents Submission
18. The first Respondent submitted that none of the documents produced in court related to their facility. They submitted that they had never attended to the minor and had never referred him to any facility for further management. It submitted that all the documents produced in court were in respect of the 2 nd and 3 rd Respondent. The 1 st Respondent urged the court to dismiss the Appeal against them.
19. The 2 nd and 3 rd Respondents submissions is that they were dealing with a referral case and in such circumstances, they were not required to test. That they only continued with the refill of medicine and monitoring which is by way of CD 4 count tests. That a retest is done upon request and none had been requested in the case.
20. The Respondents urged the court to uphold the finding of the trial Magistrate and dismiss the Appeal.
Analysis and Determination
21. This is being a first appeal, I am alive to the duty of the court as stated in by the Court of Appeal in Kenya Horticultural Exporters Ltd vs Julius Munguti Maweu Civil Appeal No. 9 of 2004, where it was held that: -
“On a first appeal the Court has the duty of re-evaluating the evidence, assess it and make its own conclusions without overlooking the conclusions of the trial court and bearing in mind that unlike the trial court it neither saw nor heard the witnesses.
22. The Court of Appeal echoed the same principles in Peters v Sunday Post Ltd [1958] EA 424, stating that: “An appellate court is not bound to follow the trial court’s findings of fact if it appears that the court failed to take into account particular circumstances or probabilities, or if the decision is plainly wrong.”
23. I have considered the Memorandum of Appeal, the submissions in support and in opposition to the appeal, the trial court’s evidence and the judgment of the trial court and I will frame the following issues for determination: -
a. Whether the 1 st Respondent had a doctor/patient relationship with the minor herein.
b. Whether the Respondents were under a duty to ascertain the HIV status of the minor before continuing with the administration of the ARV s.
c. Whether the Respondents breached that duty and were therefore negligent in the manner they handled the patient.
d. Whether or not the appellant was entitled to the reliefs sought.
Whether the 1 st Respondent had a doctor/patient relationship with the minor herein.
24. I have considered the evidence on record and the documents availed to the trial court in support of the claim by the Appellant. The only reference made to the 1 st Respondent is that the 1 st Respondent was the first to diagnose the minor with HIV in the year 2010. That the first Respondent is the one that transferred the minor to Ahero Subcounty Hospital and Ahero subcounty Hospital later transferred him to St. Monica Kisumu hospital.
25. However, from the trial court record and even the testimony of the Appellant, the transfer letter and the diagnosis (test results) showing that the minor was tested at the 1 st Respondent’s facility and found to be HIV were not availed to the court.
26. From the entirety of the Appellant’s evidence in court, there was no documentation whatsoever to link the 1 st Respondent, Ogra Foundation to the patient herein. Section 107 (1) of the Evidence Act, provides that; “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
27. Section 109 provides that t he burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person while Section 112 provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
28. The Appellant herein claims that she first went to Ogra Foundation. It was upon her to adduce evidence to prove that indeed the patient was attended to at Ogra and tests done, which tests indicated that the patient was HIV positive. As stated earlier, no such documentation was availed to the court and my finding is that the Appellant did not discharge the burden of proof placed upon her in respect of issue number 1 and no link has been demonstrated between the patient and the 1 st Respondent herein.
29. Based on this finding, I will find that the entire claim against the 1 st Respondent must fail.
Whether the Respodents were under a duty to ascertain the HIV status of the minor before continuing with the administration of ARV s and whether the Respondents breached that duty and were therefore negligent in the manner they handled the patient.
30. I will handle these two issues together, being the duty of care and whether there was breach of the duty.
31. I have considered the evidence on record, the Memorandum of Appeal and the submissions by the parties. The 3 rd Respondent submitted on the incompetency of the Appeal herein stating that the grounds of Appeal were vague, lacked proper particulars and do not cite the specific errors that the trial court is alleged to have committed.
32. I have considered this submission and my view is that the essence of grounds of appeal is to give reasonable and adequate notice of what grouse, attack or complaints are against the decision appealed from. I have looked at the grounds and it is clear what the Appeal is all about. It is about the finding by the trial court that the minor had been tested and found to be HIV positive which, the Appellant feels is challenging. The Appeal also touches on the fact that the minor had been put on ARV s for seven years, only for it to be discovered later that he has all along been HIV negative. I find no vagueness on the grounds of Appeal.
33. And now to the duty of care, there is no dispute that the 2 nd and 3 rd Respondents attended to the patient between 2016 and 2018 as there are documents from both facilities indicating that the patient was under their care. The 2 nd Respondent claims to have received the patient from the 3 rd Respondent and the 3 rd Respondent claims to have received the patient from the 1 st Respondent.
34. The 2 nd and 3 rd Respodents having been the professionals attending to the minor, owed him a duty of care, to ensure that whatever ailment they were continuing to treat was a confirmed ailment.
35. It is clear from the evidence on record that both the 2 nd and 3 rd Respodents did not conduct any HIV test when the patient went to their respective facilities, the argument being that the patient was already on treatment and had a referral letter with the history of treatment. To me a referral letter is not test results and the 2 nd and 3 rd Respondent cannot escape liability by stating that they acted on the referral letter. Even the very act of acting on a referral letter without any confirmation test is negligence in itself.
36. In the case of BS v Jonardan D. Patel [2019] e KLR , the court held as follows: -
“ It therefore follows that a duty of care arose once he agreed to diagnose and treat the plaintiff. This was the holding in the case of Ricarda Njoki Wahome (suing as an administrator of the estate of the late Wahome Mutahi (deceased) Vs. Attorney General & 2 others (2015) e KLR where the court held thus; “A duty of care arises once a doctor or other health care professional agrees to diagnose or treat a patient. That professional assumes a duty of care towards that patient. On the other hand, a hospital is vicariously liable for the negligence of the member of staff including the nurse and the doctors….”
37. My finding is that the 2 nd and 3 rd Respondents owed a duty of care to the minor as their patient, when they agreed to take over the treatment of the patient after his referral to the facilities. The patient attended to the facility to seek professional skills.
38. From the testimony of the Respondents witnesses, several facts come to the fore: -
a. That a health facility does not necessarily have to repeat a HIV test on a patient if the patient is referred with test results.
b. That if the patient doesn’t have test results, due diligence requires that a test be conducted to ascertain the HIV status of the patient before continuing with the administration of ARVs.
c. That a person who is not HIV positive should not be put on ARV s.
d. That an HIV positive person can return HIV Negative results if the viral load is low, hence undetectable by the machine. The viral load test is what is commonly known as CD 4 count and is the routine test for cases of confirmed HIV positive patients.
e. That the low viral load only indicates that the patient is adhering well to the ARV s. It does not mean that he is HIV negative.
f. That an HIV positive person does not get cured of the virus.
39. From the above testimony therefore, it is clear the patient herein did not present any test results to the 2 nd and 3 rd Respodents indicating that he had been tested and was HIV positive. It was therefore the responsibility of the 2 nd and 3 rd Respodents to conduct tests to ascertain the status of the patient before they continued with the administration of ARV s. The 2 nd and 3 rd Respondents did not.
40. In the case of Gabriel Mugai Njiri v Wanga Robert Hawi t/a R.H . Wanga & Co. Advocates [2018] e KLR . Justice L. Njuguna held as follows:-
“ Professional negligence will normally arise when a person does not exercise the degree of skill, duty and care of a reasonable person in that profession. An Advocate is not liable for any reasonable error of Judgment or for ignorance of some obscure point of Law, but is liable for an act of gross negligence or ignorance of elementary matters of law consistently arising in practice. What constitutes professional negligence was well stated by Justice M. Warsame in the case of NATIONAL BANK OF KENYA LIMITED v E. MURIU KAMAU & another [2009] e KLR where he states that, “The law places a responsibility on all professionals to exercise prudent and reasonable care for the safety, security and protection and preservation of the property/life entrusted on them. One cannot escape liability by asking for half payment or for saying that what he/she did was reasonable. The test is not what he endeavors or undertakes to do but that which can meet the test of reasonability. ”
41. So that in the instance case, the testimony of the witnesses was that it was a standard procedure that if a patient does not possess test results, then due diligence requires that tests be conducted to confirm the status of the patient. The 2 nd and 3 rd Respondents did not conduct the test despite them confirming that the patient did not have any test results and that he only had a referral letter from the 1 st Respondent, which in any case has not been produced in court.
42. The 2 nd and 3 rd Respodents having been aware that a test was required (because the patient had not provided any test results) failed to conduct the test and only continued with the administration of ARV s. My finding is that both 2 nd and 3 rd Respondents were negligent in failing to ascertain the HIV status of the minor before proceeding to administer the ARV s.
43. My further finding is that by putting the minor on HIV drugs without the test confirming that he was indeed HIV positive and the continuous administration of the drugs is evidence that the 2 nd and 3 rd Respondents did not exercise the degree of skill, duty and care expected of a reasonable person, who was a medical expert in the circumstances.
44. I find that the trial Magistrate erred in not finding that the 2 nd and 3 rd Respondent owed a duty of care to the minor and which duty they were in breach of by failing to conduct the HIV test and continuing to administer ARV s to the minor when he was HIV Negative.
Whether or not the Appellant was entitled to the reliefs sought.
45. Having found that the 2 nd and 3 rd Respondents had a duty of care to the minor and that they breached that duty, it then follows that the Appellant was entitled to the orders sought. I will therefore proceed and assess damages that the Appellant is entitled to.
46. The Appellant had sought general damages of pain, suffering and loss of amenities, general damages for stigma, Future Medical Expenses, interest on the general damages and Costs of the suit.
47. The general damages were justified in that the minor had been informed that he was HIV positive and lived from the year 2010 while aware he had a virus which in actual fact he did not have. Evidence by PW 1 was that the minor would never interact with other children and even in school, he would play alone. He had to be on ARV s for 7 years, for a disease that he did not have. Clearly the minor suffered pain and suffering and was stigmatized by the fact that he had been declared HIV positive.
48. In the case of Kenyatta National Hospital v MWN (Suing on Her Own Behalf and as the Mother and Next Friend of GN ) (Civil Appeal E128 of 2023) [2024] KEHC 5442 ( KLR ), Musyoka J in assessing damages for a wrong diagnosis of the minor and mother as a result of which they were put on ARV s, found an award of Kshs.7,500,000.00/=, to be on the higher side, and substituted it with an award of Kshs.4,000,000.00/=, being Kshs.2,000,000.00/= for the minor Respondent and Kshs.2,000,000.00/= for the major Respondent.
49. In RAO vs. Mediheal Group of Hospitals & 2 others [2021] e KLR (Ong’udi, J), an award of Kshs.2,000,000.00/= was made for conducting a HIV test without informed consent, failure to conduct the mandatory pre and post -test counselling therapy, disclosure of HIV status to 3 rd Parties without consent, and emotional and psychological distress as result of stigma.
50. Having considered the awards generally given by the courts in related cases, I will award the estate of the minor herein general damages of pain, suffering and stigma of Kshs.2,500,000/-.
51. The Appellant had sought future medical expenses but evidence on record is that the minor is now deceased having passed on 14/12/2021 and therefore there would not be such expenses.
52. In making this finding, I am alive to the incidences where interference with a trial courts discretion is permitted. In Govani v shah & Another, Jaff (Third Party) Civil Appeal 185 of 2019, the learned Judges of Appeal reiterated the finding in Mbogo v Shah (1968) EA the court stated follows:-
“ I think it is well settled that this court will not interfere with the exercise of discretion of the inferior court unless it is satisfied that its discretion is clearly wrong because it has misdirected itself or because it has acted on matters of which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so it arrived at a wrong conclusion. It would be wrong for this court to interfere with the exercise of trial Judges decision merely because this court’s decision would have been different ”.
53. I have already found that the trail court misdirected itself and erred in finding that the minor had been tested and was a confirmed HIV positive case.
54. The upshot of the matter herein is that the Appeal is allowed and the dismissal order of the trial court is set aside. In its place this court makes the following orders:-
a. The Appeal against the 1 st Respondent is dismissed.
b. Judgment is entered for the Appellant as against the 2 nd and 3 rd Respondents jointly and severally.
c. General Damages of Pain, Suffering and Stigma are assessed at Kshs.2,500,000/- (Two Million, Five Hundred Thousand Shillings Only)
d. The Appellant is awarded the costs of the suit at the lower court and on this Appeal to be borne by the 2 nd and 3 rd Respondents.
55. Orders Accordingly.
JUDGMENT delivered, dated and signed virtually at Nairobi
This 10 th day of July , 2026.
In the Presence of :
Leadys – Court assistant
N/A for the Appellant.
Mr. Rono for 1 st Respondent.
Odhiambo for Omondi for 2 nd Respondent.
N/A for the 3 rd Respondent.
Page 18 of 18
Introduction
1. The Appeal arises from the judgement of Hon. Cheruiyot delivered on 7 th November 2024. The suit related to medical negligence, where the Appellant claimed that owing to the negligence of the Respondents, the minor was placed on ARV s for seven years, yet the minor was HIV Negative.
2. The suit was heard in the lower court and the court found that the Respondents were not negligent because the child had been tested and found to be HIV positive and that is why he was put on ARV s. The trial court found that the 2 nd and 3 rd Respodents only continued with refilling the medication because the patient went to the two facilities on a referral, tests having been done by the 1 st Respondent.
3. The trial court thus dismissed the Appellants case against the Respodents with costs.
4. The Appellant, dissatisfied with the judgment of the lower court has filed the instant Appeal with several grounds of Appeal all relating to the evaluation of evidence and the findings of the trial court. The grounds can be condensed into three (3) grounds as follows: -
a. Whether or not there was a HIV test that was done on the
minor and he was found to be HIV positive so as to be put on ARV drugs.
b. Whether or not the respondents were negligent in their duty of care by putting the minor on ARV drugs without carrying out continuous tests on the minor to determine his HIV status.
c. Whether or not the appellant was entitled to the reliefs sought.
Trial Court Evidence
5. The Appellant’s case was that the minor kept getting sick and he was taken to Ogra Foundation and underwent tests. The witness told court that the minor’s results came out positive according to the facility and he was therefore put on medication which is ARV s. At some point when the witness got a job in Kisumu, she requested for a transfer of the minor to a hospital in Kisumu so that she could continue with the refill of medicine from a facility near her.
6. The witness stated that she got a referral and minor continued with the ARV s. The patient was treated at St. Monica Hospital and Ahero Sub County Hospital where he continued with the refill of medicine. During this period, the minor would undergo the routine CD 4 count tests and the testimony of the witnesses was that he was doing well.
7. Sometimes in 2017, a HIV test was conducted on the minor during community testing and the test turned negative. The HIV test was repeated severally on 5 th May, 2017, 15 th June 2017 and 23 rd July 2017 and all the tests turned Negative. The final test was done by NASCOP and there is a Report dated 25 th September 2017 indicating that the minor was HIV Negative even after being off ARV s for several months.
8. That is when the suit in the lower court was filed for compensation for pain, suffering and trauma occasioned to the minor during the period when he had been declared HIV positive and continued with ARV s.
9. The Respondents on the other hand denied negligence. The first Respondent denied that they had ever dealt with a patient in the name of the minor. They denied negligence and denied ever having conducted any HIV test on the minor. They also denied that they had referred the minor to any hospital and stated that they are well equipped to deal with HIV Management.
10. The 2 nd Respondent confirmed that the minor was their patient and that he had come to the hospital upon referral from the 3 rd Respondent. They indicated that he had been diagnosed to be HIV positive, so they continued with treatment. That the only tests they conducted was the CD 4 count to determine the adherence level and at all times the minor had a good CD 4 count and the viral load was undetectable by the machine.
11. The 2 nd Respondent confirmed that they referred the patient
back to the 3 rd Respondent when the caregiver requested for the referral owing to distance.
12. The 3 rd Respondent also confirmed that they attended to the patient, who had been referred from Miwani Ogra foundation with a referral letter. According to the witness by the 3 rd Respondent, ordinarily when a patient is referred with test results and a referral letter, there is no need of conducting a confirmation test because the patient is already on treatment.
13. The 3 rd Respondent confirmed that later on, the patient was tested by NASCOP and the result was confirmed to be negative. The ARV’ s had been stopped for a while and the patient remained negative and the witness DW 3 had no explanation on how a HIV patient would turn negative. Her testimony is that the viral load can be undetectable but HIV cannot be cured.
Submissions by the Appellant
14. The Appellant submitted that the trial Magistrate erred in law and fact in finding that there were test results that shown that the minor was HIV positive. He submitted that the alleged results from Ogra Foundation, had not been produced in court. That the only results in the entire period that the minor remained on treatment are for the HIV tests done in 2017.
15. Counsel submitted that the Respondents evidence was that there is no need to repeat a test if there is already a test result together with the referral letter in cases of referral. That the Respondent witnesses had confirmed that there were no test results that accompanied the referral letter and to that extent the Appellant submitted that the hospitals were negligent in the manner they handled the patient.
16. The Appellant submitted that the Respondents were negligent for administering ARV ’s to a patient who was HIV negative for a duration of 7 years until tests conducted in 2017 shown that he was HIV Negative. That all the Respondents confirmed that ARV ’s are only administered to HIV Positive persons yet the minor was not positive.
17. Counsel further submitted that the Respondents were negligent for not conducting a HIV test on the minor because the minor had not been referred with the test results. He had only been allegedly referred with only a referral letter.
Respondents Submission
18. The first Respondent submitted that none of the documents produced in court related to their facility. They submitted that they had never attended to the minor and had never referred him to any facility for further management. It submitted that all the documents produced in court were in respect of the 2 nd and 3 rd Respondent. The 1 st Respondent urged the court to dismiss the Appeal against them.
19. The 2 nd and 3 rd Respondents submissions is that they were dealing with a referral case and in such circumstances, they were not required to test. That they only continued with the refill of medicine and monitoring which is by way of CD 4 count tests. That a retest is done upon request and none had been requested in the case.
20. The Respondents urged the court to uphold the finding of the trial Magistrate and dismiss the Appeal.
Analysis and Determination
21. This is being a first appeal, I am alive to the duty of the court as stated in by the Court of Appeal in Kenya Horticultural Exporters Ltd vs Julius Munguti Maweu Civil Appeal No. 9 of 2004, where it was held that: -
“On a first appeal the Court has the duty of re-evaluating the evidence, assess it and make its own conclusions without overlooking the conclusions of the trial court and bearing in mind that unlike the trial court it neither saw nor heard the witnesses.
22. The Court of Appeal echoed the same principles in Peters v Sunday Post Ltd [1958] EA 424, stating that: “An appellate court is not bound to follow the trial court’s findings of fact if it appears that the court failed to take into account particular circumstances or probabilities, or if the decision is plainly wrong.”
23. I have considered the Memorandum of Appeal, the submissions in support and in opposition to the appeal, the trial court’s evidence and the judgment of the trial court and I will frame the following issues for determination: -
a. Whether the 1 st Respondent had a doctor/patient relationship with the minor herein.
b. Whether the Respondents were under a duty to ascertain the HIV status of the minor before continuing with the administration of the ARV s.
c. Whether the Respondents breached that duty and were therefore negligent in the manner they handled the patient.
d. Whether or not the appellant was entitled to the reliefs sought.
Whether the 1 st Respondent had a doctor/patient relationship with the minor herein.
24. I have considered the evidence on record and the documents availed to the trial court in support of the claim by the Appellant. The only reference made to the 1 st Respondent is that the 1 st Respondent was the first to diagnose the minor with HIV in the year 2010. That the first Respondent is the one that transferred the minor to Ahero Subcounty Hospital and Ahero subcounty Hospital later transferred him to St. Monica Kisumu hospital.
25. However, from the trial court record and even the testimony of the Appellant, the transfer letter and the diagnosis (test results) showing that the minor was tested at the 1 st Respondent’s facility and found to be HIV were not availed to the court.
26. From the entirety of the Appellant’s evidence in court, there was no documentation whatsoever to link the 1 st Respondent, Ogra Foundation to the patient herein. Section 107 (1) of the Evidence Act, provides that; “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
27. Section 109 provides that t he burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person while Section 112 provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
28. The Appellant herein claims that she first went to Ogra Foundation. It was upon her to adduce evidence to prove that indeed the patient was attended to at Ogra and tests done, which tests indicated that the patient was HIV positive. As stated earlier, no such documentation was availed to the court and my finding is that the Appellant did not discharge the burden of proof placed upon her in respect of issue number 1 and no link has been demonstrated between the patient and the 1 st Respondent herein.
29. Based on this finding, I will find that the entire claim against the 1 st Respondent must fail.
Whether the Respodents were under a duty to ascertain the HIV status of the minor before continuing with the administration of ARV s and whether the Respondents breached that duty and were therefore negligent in the manner they handled the patient.
30. I will handle these two issues together, being the duty of care and whether there was breach of the duty.
31. I have considered the evidence on record, the Memorandum of Appeal and the submissions by the parties. The 3 rd Respondent submitted on the incompetency of the Appeal herein stating that the grounds of Appeal were vague, lacked proper particulars and do not cite the specific errors that the trial court is alleged to have committed.
32. I have considered this submission and my view is that the essence of grounds of appeal is to give reasonable and adequate notice of what grouse, attack or complaints are against the decision appealed from. I have looked at the grounds and it is clear what the Appeal is all about. It is about the finding by the trial court that the minor had been tested and found to be HIV positive which, the Appellant feels is challenging. The Appeal also touches on the fact that the minor had been put on ARV s for seven years, only for it to be discovered later that he has all along been HIV negative. I find no vagueness on the grounds of Appeal.
33. And now to the duty of care, there is no dispute that the 2 nd and 3 rd Respondents attended to the patient between 2016 and 2018 as there are documents from both facilities indicating that the patient was under their care. The 2 nd Respondent claims to have received the patient from the 3 rd Respondent and the 3 rd Respondent claims to have received the patient from the 1 st Respondent.
34. The 2 nd and 3 rd Respodents having been the professionals attending to the minor, owed him a duty of care, to ensure that whatever ailment they were continuing to treat was a confirmed ailment.
35. It is clear from the evidence on record that both the 2 nd and 3 rd Respodents did not conduct any HIV test when the patient went to their respective facilities, the argument being that the patient was already on treatment and had a referral letter with the history of treatment. To me a referral letter is not test results and the 2 nd and 3 rd Respondent cannot escape liability by stating that they acted on the referral letter. Even the very act of acting on a referral letter without any confirmation test is negligence in itself.
36. In the case of BS v Jonardan D. Patel [2019] e KLR , the court held as follows: -
“ It therefore follows that a duty of care arose once he agreed to diagnose and treat the plaintiff. This was the holding in the case of Ricarda Njoki Wahome (suing as an administrator of the estate of the late Wahome Mutahi (deceased) Vs. Attorney General & 2 others (2015) e KLR where the court held thus; “A duty of care arises once a doctor or other health care professional agrees to diagnose or treat a patient. That professional assumes a duty of care towards that patient. On the other hand, a hospital is vicariously liable for the negligence of the member of staff including the nurse and the doctors….”
37. My finding is that the 2 nd and 3 rd Respondents owed a duty of care to the minor as their patient, when they agreed to take over the treatment of the patient after his referral to the facilities. The patient attended to the facility to seek professional skills.
38. From the testimony of the Respondents witnesses, several facts come to the fore: -
a. That a health facility does not necessarily have to repeat a HIV test on a patient if the patient is referred with test results.
b. That if the patient doesn’t have test results, due diligence requires that a test be conducted to ascertain the HIV status of the patient before continuing with the administration of ARVs.
c. That a person who is not HIV positive should not be put on ARV s.
d. That an HIV positive person can return HIV Negative results if the viral load is low, hence undetectable by the machine. The viral load test is what is commonly known as CD 4 count and is the routine test for cases of confirmed HIV positive patients.
e. That the low viral load only indicates that the patient is adhering well to the ARV s. It does not mean that he is HIV negative.
f. That an HIV positive person does not get cured of the virus.
39. From the above testimony therefore, it is clear the patient herein did not present any test results to the 2 nd and 3 rd Respodents indicating that he had been tested and was HIV positive. It was therefore the responsibility of the 2 nd and 3 rd Respodents to conduct tests to ascertain the status of the patient before they continued with the administration of ARV s. The 2 nd and 3 rd Respondents did not.
40. In the case of Gabriel Mugai Njiri v Wanga Robert Hawi t/a R.H . Wanga & Co. Advocates [2018] e KLR . Justice L. Njuguna held as follows:-
“ Professional negligence will normally arise when a person does not exercise the degree of skill, duty and care of a reasonable person in that profession. An Advocate is not liable for any reasonable error of Judgment or for ignorance of some obscure point of Law, but is liable for an act of gross negligence or ignorance of elementary matters of law consistently arising in practice. What constitutes professional negligence was well stated by Justice M. Warsame in the case of NATIONAL BANK OF KENYA LIMITED v E. MURIU KAMAU & another [2009] e KLR where he states that, “The law places a responsibility on all professionals to exercise prudent and reasonable care for the safety, security and protection and preservation of the property/life entrusted on them. One cannot escape liability by asking for half payment or for saying that what he/she did was reasonable. The test is not what he endeavors or undertakes to do but that which can meet the test of reasonability. ”
41. So that in the instance case, the testimony of the witnesses was that it was a standard procedure that if a patient does not possess test results, then due diligence requires that tests be conducted to confirm the status of the patient. The 2 nd and 3 rd Respondents did not conduct the test despite them confirming that the patient did not have any test results and that he only had a referral letter from the 1 st Respondent, which in any case has not been produced in court.
42. The 2 nd and 3 rd Respodents having been aware that a test was required (because the patient had not provided any test results) failed to conduct the test and only continued with the administration of ARV s. My finding is that both 2 nd and 3 rd Respondents were negligent in failing to ascertain the HIV status of the minor before proceeding to administer the ARV s.
43. My further finding is that by putting the minor on HIV drugs without the test confirming that he was indeed HIV positive and the continuous administration of the drugs is evidence that the 2 nd and 3 rd Respondents did not exercise the degree of skill, duty and care expected of a reasonable person, who was a medical expert in the circumstances.
44. I find that the trial Magistrate erred in not finding that the 2 nd and 3 rd Respondent owed a duty of care to the minor and which duty they were in breach of by failing to conduct the HIV test and continuing to administer ARV s to the minor when he was HIV Negative.
Whether or not the Appellant was entitled to the reliefs sought.
45. Having found that the 2 nd and 3 rd Respondents had a duty of care to the minor and that they breached that duty, it then follows that the Appellant was entitled to the orders sought. I will therefore proceed and assess damages that the Appellant is entitled to.
46. The Appellant had sought general damages of pain, suffering and loss of amenities, general damages for stigma, Future Medical Expenses, interest on the general damages and Costs of the suit.
47. The general damages were justified in that the minor had been informed that he was HIV positive and lived from the year 2010 while aware he had a virus which in actual fact he did not have. Evidence by PW 1 was that the minor would never interact with other children and even in school, he would play alone. He had to be on ARV s for 7 years, for a disease that he did not have. Clearly the minor suffered pain and suffering and was stigmatized by the fact that he had been declared HIV positive.
48. In the case of Kenyatta National Hospital v MWN (Suing on Her Own Behalf and as the Mother and Next Friend of GN ) (Civil Appeal E128 of 2023) [2024] KEHC 5442 ( KLR ), Musyoka J in assessing damages for a wrong diagnosis of the minor and mother as a result of which they were put on ARV s, found an award of Kshs.7,500,000.00/=, to be on the higher side, and substituted it with an award of Kshs.4,000,000.00/=, being Kshs.2,000,000.00/= for the minor Respondent and Kshs.2,000,000.00/= for the major Respondent.
49. In RAO vs. Mediheal Group of Hospitals & 2 others [2021] e KLR (Ong’udi, J), an award of Kshs.2,000,000.00/= was made for conducting a HIV test without informed consent, failure to conduct the mandatory pre and post -test counselling therapy, disclosure of HIV status to 3 rd Parties without consent, and emotional and psychological distress as result of stigma.
50. Having considered the awards generally given by the courts in related cases, I will award the estate of the minor herein general damages of pain, suffering and stigma of Kshs.2,500,000/-.
51. The Appellant had sought future medical expenses but evidence on record is that the minor is now deceased having passed on 14/12/2021 and therefore there would not be such expenses.
52. In making this finding, I am alive to the incidences where interference with a trial courts discretion is permitted. In Govani v shah & Another, Jaff (Third Party) Civil Appeal 185 of 2019, the learned Judges of Appeal reiterated the finding in Mbogo v Shah (1968) EA the court stated follows:-
“ I think it is well settled that this court will not interfere with the exercise of discretion of the inferior court unless it is satisfied that its discretion is clearly wrong because it has misdirected itself or because it has acted on matters of which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so it arrived at a wrong conclusion. It would be wrong for this court to interfere with the exercise of trial Judges decision merely because this court’s decision would have been different ”.
53. I have already found that the trail court misdirected itself and erred in finding that the minor had been tested and was a confirmed HIV positive case.
54. The upshot of the matter herein is that the Appeal is allowed and the dismissal order of the trial court is set aside. In its place this court makes the following orders:-
a. The Appeal against the 1 st Respondent is dismissed.
b. Judgment is entered for the Appellant as against the 2 nd and 3 rd Respondents jointly and severally.
c. General Damages of Pain, Suffering and Stigma are assessed at Kshs.2,500,000/- (Two Million, Five Hundred Thousand Shillings Only)
d. The Appellant is awarded the costs of the suit at the lower court and on this Appeal to be borne by the 2 nd and 3 rd Respondents.
55. Orders Accordingly.
JUDGMENT delivered, dated and signed virtually at Nairobi
This 10 th day of July , 2026.
In the Presence of :
Leadys – Court assistant
N/A for the Appellant.
Mr. Rono for 1 st Respondent.
Odhiambo for Omondi for 2 nd Respondent.
N/A for the 3 rd Respondent.
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