Introduction
1. The Petition dated 6th March 2018 was amended on 23rd December 2019 is supported by the Petitioner’s affidavit in support of similar date.
2. The gist of this Petition is the claim that the 2nd Respondent unlawfully occasioned the detention of the Petitioner at the 2nd Respondent hospital from 24/2/2018 to 6/3/2018 because of an outstanding hospital bill. That the Petitioner was initially admitted into the 2nd Respondent’s medical facility to deliver a baby but due to medical complications which she blames the 1st Respondent for occasioning, she ended up undergoing a second surgery at the facility and further, as a result of the delayed discharge by the 2nd Respondent in an attempt to enforce the payment of the huge medical bill, she contracted another infection which led to continued hospitalization and escalation of the medical bill beyond the maternity package she had been booked on with the concurrence of the 3rd Respondent.
3. The Petitioner thus contends that her rights and fundamental freedoms particularly rights Article 29 (d) and 39 (1) were violated by the Respondents and thus seeks the following reliefs:
i. A declaration that the Petitioner and her baby have been subjected to torture, cruel, inhuman or degrading treatment or punishment by the Respondents herein contrary to the provisions of the Constitution, for the period between 24th February, 2018 to 6th March, 2018.
ii. A declaration that the Petitioner and her baby have been unlawfully detained by the Respondents contrary to Article 39(1)) of the Constitution for the period between 24th February, 2018 to 6th March, 2018.
iii. A declaration that the Petitioner and her baby are entitled to compensation by way of damages for the for the period between 24th February, 2018 to 6th March, 2018.
iv. Costs of the Petition.
v. Any other orders, writs and directions the Court considers appropriate and just to grant for the purpose of the upholding the Petitioner's constitutional rights.
Petitioner’s Case
4. This Petition was heard orally. The Petitioner, PW 1 -Naomi Wambui testified in Court on 26/2/2024 in which she adopted her written witness statement dated 23/10/2019 in her evidence in-chief as well as the affidavit and exhibits thereto.
5. The Petitioner stated that she was insured by the 3rd Respondent (AAR) under member No. AK023381-00 whose cover included a maternity benefit.
6. According to the Petitioner, the 2nd Respondent had advertised a maternity package which included Ksh.98,000 for normal delivery and Ksh.220,000 for caesarean section. She took up the package and began antenatal clinic sometime in 2017 under the management of 1st Respondent, Dr Brigit Monda. On 10/2/2018; she visited the 2nd respondent and on 12th February 2018 delivered a baby through caesarean section conducted by the 1st Respondent (Dr. Brigit Monda). The 3rd Respondent had committed to pay for the caesarean maternity bill an upper limit of Ksh.245,000/-.
7. The Petitioner contends that the 1st Respondent negligently conducted the caesarean operation and thus perforated her colon. The ensuing complication caused the 1st Respondent to seek the enlist the help of additional specialists among them, Dr. Dan Kiptoon (Consultant General Surgeon-PW 2) and Dr. Martin Wanyoike (Consultant Cardiologist) to manage her condition.
8. The Petitioner avers that in a report dated 24th February 2018, Dr. Wanyoike diagnosed that she had a gaseous abdomen and severe pneumoperitoneum indicating a perforated hollow viscus as per the CT scan that was conducted on 15th and 16th February 2018.
9. The Petitioner depones that the 1st Respondent proceeded to discharge them and instead indicated that she had Ogilvie’s syndrome that caused an acute colonic pseud obstruction avoiding to mention the fact that she had in fact perforated her colon during the caesarean section.
10. The Petitioner was told at the time of discharge that her total bill escalated to Ksh.1,761,536.64 and was required that she was required to clear before leaving the hospital.
11. The Petitioner contested the bill on 26th February 2018 insisting that she was not obliged to pay the excessive amount occasioned by the 1st Respondent’s acts of negligence during the caesarean section procedure. She claims that the 2nd Respondent in its response dated 27th February 2018 denied the negligent claims.
12. The Petitioner also stated that while at the hospital she contracted pneumonia spending a further 5 days in the hospital for treatment before she was subsequently discharged by Dr. Wanyoike on 5th March 2018.
13. According to the Petitioner, the final diagnosis was indicated as ‘caecum perforation, right hemi colectomy, emergency caesarian section and pneumonia’. The Petitioner states that this diagnosis did not indicate that she had Ogilvie’s syndrome as had been stated by the 1st Respondent previously.
14. The Petitioner depones that they were detained at the 2nd Respondent due to her inability to pay the now outstanding bill of Ksh.2,119,585. The Petitioner is aggrieved as she attributes the accrued to the negligent acts of the 1st and 2nd Respondent.
15. Nevertheless, the Petitioner has clarified that the essence of this suit is not the 1st and 2nd Respondents’ medical negligence as this was dealt with via different suit, Chief Magistrates’ Court in Nairobi CMCC No.3468 of 2018: Naomi Wangui Mwangi vs. Dr. B. Monda and the Nairobi Hospital.
16. The Petitioner asserts that this Petition is founded on her detention in hospital by of her and the baby by the 2nd Respondent from 24th February 2018 to 6th March 2018 as she was only released her on 6th March 2018 upon the filing of this suit.
17. The Petitioner (PW 1) produced various documents as exhibits in this case, they included the maternity package for Nairobi Hospital- P. exhibit 1, ultra sound dated 11/2/2018-P. exhibit 1b, the medical report by Dr. Wanyoike dated 24/2/2018-P. exhibit 1c, Discharge Summary by Dr. Brigit Monda dated 24/2/2018- P. exhibit 1d, Discharge Summary by Dr. Lengo dated 24/2/18- P. exhibit 1e, Hospital Bill for Kshs. 2.1 million dated 24/2/18-P. exhibit 1f.
18. Cross-examined by M/S Luchemo for the 1st Respondent, she confirmed the negligence suit filed was dismissed and asked why she sued Dr. Brigit Monda (1st Respondent) since the negligence claim was dismissed, the Petitioner explained:
“She did not cooperate with us when we were in hospital. She even to give us the medical report. After surgery, she just disappeared…If she did the right thing, I could not have accumulated that Bill. Whatever made me detained in hospital was the second surgery. She did not cooperate well with other doctors and was primary doctor who did the C-Section…”
19. On cross-examination by Mr. Mwihuri for the 2nd Respondent, the Petitioner conceded that indeed the judgment on negligence was delivered by the lower court on 26/2/2020 but she was appealing the same. On the allegation that the 2nd Respondent had detained her in hospital from 24/2/2018 -6/3/2018 she confirmed her position was based on the discharge notes made by the 1st Respondent-Dr. Brigit Monda on 24/2/18. She was however referred to the hospital notes made by Dr. Dan Kiptoon (PW 2) in which she conceded:
“25/2/2025-… It is 6:20 a.m. It says I started complaining of chest pain on 25/2/2018. Dr says it is hospital acquired pneumonia. It goes to page 83-4/3/2018 signed by Dr. Kiptoon. He says I can be discharged after medical review. I was discharged on 6/3/2018.”
20. Other witnesses called to testify on behalf of the Petitioner included Dr. Dan Kiptoon (PW 2); the Petitioner’s husband, Mr. Amundi Nuru Ayub (PW 3) and Petitioner’s sister, Ann Njeri Mwangi (PW 4) whose gist of their testimonies is as captured in the next few paragraphs.
21. Dr. Dan Kiptoon (PW 2) a Consultant General Surgeon testified before this Court on 26/2/2024. He confirmed that he operated on the Petitioner on 16/2/2018. At the time, the Petitioner was 5 days-post caesarean and one, Dr. Kaisha who had already asked for the CT scan that was pending. Upon getting hold of the CT scan that he examined between 6.30- 6.40 P.M that day, he decided the patient needed immediate surgery. On examining the Petitioner, Dr. Kiptoon, testified that her breathing was faster than normal (tachypnea), she had faster heartrate (tachycardia), had abdominal distension (swollen abdomen-meaning the intestines were not working normally), she had peritonitis (irritation of the abdomen). In addition, the CT scan showed severe pneumo-peritoneum (free fluid within the abdomen) and also fluid in the chest cavity. He explained:
“Once you are told pneumo-peritoneum, it means it is outside. A little gas is expected after surgery, but severe, it means more than hence it means there was perforation or some leaking place in intestine and needed to be checked.”
22. Explaining the findings on operation, he stated:
“there was massive pneumoperitoneum – a lot of gas more than you would expect as in signifying pelvic purulent, it means there was gas in the abdomen, it meant there was infection. Infection was not expected in that environment. There was free fluid movement between bowel loops- (Seropurulent inter-loop ascites covering liver) it was liver trying to protect itself from what was in the abdomen, dusky, distended caecum-caecum is the first part of large intestine, the largest part-what happens is the caecum was extended and dusky and there were two small anterior perforations, that is, less than 0.5 millimeters, if they were larger, I would have been able to measure. The normal colour of the intestine is pink in colour but when it has purple with supply of blood, it gets darker and that is what I described as dusky. The caecum was distended by gas. Fifth finding- the holes were leaking intestinal feacal content from intestine into general peritoneal cavity, this is what was happening. The sixth finding, was that the uterus was healing well and back to its norma size.”
23. On the corrective procedure that he undertook he explained:
“First thing, we thoroughly cleaned the abdomen (through peritoneal) and we then removed the right hemicolectomy-colon is disposed from some parts… the caecum which was looking sickly is part of large intestine. We removed caecum and ascending colon and rejoined the small intestine the transverse colon. I repeated the wash out and closed the abdomen.”
24. He thus concluded:
“The diagnosis: acute necrotizing cellulitis with perforation and peritonitis”
25. He explained that necrotizing is associated with cell death while acute means short period.
26. Disputing the mechanical perforation theory, the witness PW 2 stated in his exam in chief by Prof. Wangai for the Petitioner as follows:
“Trauma to the colon is mechanical injury to the colon. The bacteria to the large intestine is very virulent and if there had been perforation six (6) days ago, what we would have found would have been very severe”
27. Further informed that the Petitioner had a problem immediately after the C-Section, he reiterated:
“If it was post caesarean, a minimum of six hours she would have been very sick…”
28. The witness produced the Medical Report as P. exhibit 3.
29. Cross-examined by Mr. Mwihuri on why the Petitioner had to remain in hospital even after the discharge on 24/2/2018; Dr. Dan Kiptoon explained:
“From my speciality, the client was good on 24/2/2018 at 9.00 a.m. On the same day, Dr. Wanyoike said she may be discharged and same day, at 6 P.M, Dr. Monda said patient may be discharged. On 25/2/2018, 6.00 a.m. it was indicated Naomi had been discharged but had acquired hospital acquired pneumonia. She was advised to take ‘Meropenem’. Meropenem is an extended broad spectrum anti-biotic used for serious/severe infection. It is given intravenously, through injection to the vain-IV medication. Typically, we don’t recommend you go home if you are on this type of medication, you have to be admitted between 7-14 days depending on your response…Hospital acquired pneumonia is acquired from pathogens that tend to be resistant to many antibiotics, we presume it is a bug within hospital so we start from top antibiotics first and we review the antibiotics based on patient response to treatment…”
30. Mr. Amundi Nuru Ayub (PW 3) the Petitioner’s husband was away on official trip to Arusha when his wife was admitted and operated upon. He came back on 14/2/2018. He found his wife who complained of bloating. At the time Dr. Kaisha was attending to her. On 16/2/18; he met Dr. Kiptoon and Dr. Wanyoike. She was taken for scan and was asked to sign the consent immediately so that she could be taken to the theatre. From the theatre she was taken to HDU for some days and then was transferred to a normal ward. She was discharged on 24/2/18 but the hospital bill was very high. He refused to pay and was informed that the wife would not be allowed to leave until the bill was cleared. He testified she contracted an infection was thus held in hospital even further.
31. Ann Njeri Mwangi (PW 4), the Petitioner’s sister is the one who accompanied the Petitioner to the 2nd Respondent facility on 10/2/18. She stated about what transpired after the caesarean surgery:
“On 12/2/18; the baby had not come and she was taken for C.S. At around 4.PM. after C.S. she was taken to the recovery ward. At 4.00 PM she complained of bloated stomach to the nurses. That was 12/2/18 after C.S was done. On 13/2/18, Dr. Monda referred her to Dr. by name Dr. Kaisha. She came, observed and read her file she went and never came back. On 14/2/2018, her stomach was so much bloated and was in so much pain. Dr. Monda came to check on her. She listened to her stomach and she said, ‘You know, Naomi I am avoiding to take you back to the theatre’ I was there in the ward… On 15/2/2018, she came with two doctors Dr. Kiptoon and Dr. Wanyoike. Dr. Kiptoon examined her and suggested a series of lab tests. The tests revealed perforation caused by sharp object. It is Dr. Kiptoon who told us after we asked him. He said it was a sharp object…”
32. Concerning the hospital bill, she said:
“Her insurance paid for maternity costs and they refused to pay for the other corrective surgery because it was due to negligence of the doctors. We got the report of Dr. Kiptoon. It is AAR which said that. We were at Nairobi Hospital when that was said. We came together, me, my brother-in-law and my cousin and see what could be done. We sought intervention of the lawyer because she was being detained…At the point the hospital said we cannot leave without clearing the bill…”
33. PW 4 was confronted by Ms. Luchemo for the 1st Respondent on her assertion that the Petitioner complained immediately of bloating on the day of surgery at around 4.00 PM, yet in her witness statement she wrote: “That when she was brought to the ward, she slept until morning”
34. She responded:
“It was 13th in the morning after the CS. CS was done on 12/2/2018 around midnight.
35. Further challenged to pin-point where she had stated in her written statement that Dr. Kiptoon had informed her that the perforation was caused by a sharp object, she said:
“I don’t seem to find it.”
36. On further prodding by Mr. Mwihuri for 2nd Respondent to confirm whether Dr. Kiptoon had told them that the perforation was due to a sharp object, she stated:
“When he said perforation, I thought perforation is to pierce. He did not use the word sharp object, yaah, yes, he did not.”
37. Further probed to explain her assertion that the sister was detained after discharge on 24/2/2018; she stated:
“The part of detention comes in because she was discharged during the day, later is when she complained of chest pain. Discharge was already done but they told me we cannot leave without clearing. It was message from accounts office.”
38. Cross-examined by Mr. Omuganda on allegations that AAR (3rd Respondent) refused to cover the hospital bill because of the doctor’s negligence, she responded:
“I have nothing written to that effect. It was verbal.”
Petitioner’s Submissions
39. The Petitioner through Prof. Kiama Wangai and Company Advocates filed submissions dated 25th February 2025.
40. Counsel reiterating the facts of this case submitted that the Petitioner and her baby had stayed at 2nd Respondent longer than expected because of the 1st Respondent’s negligent acts.
41. Counsel noted that the Petitioner as per the evidence adduced had been discharged three times. Counsel submitted that her first discharge was after the botched caesarean section that caused a serious injury to the Petitioner, being perforation of her intestines and whose injury could not allow her to leave the hospital. She was thereafter was subjected to a surgery to correct the injury caused by the 1st Respondent.
42. On the second discharge, it is argued that the Petitioner could not be released owing to the outstanding medical bill. This bill is argued to have accrued due to the 1st and 2nd Respondents’ actions. In addition, it was submitted that the Petitioner contracted pneumonia consequent to the detention by the 2nd Respondent, this necessitated cancelation of her second discharge to enable her commence the treatment. Counsel stressed that her discharge was finally secured after filing of this suit.
43. Counsel further argued that the 3rd Respondent declined to pay the hospital bill indicating that the same was over and above what it had agreed to pay for. Counsel pointed out that the 3rd Respondent had not explained why it could not pay the hospital bill noting that the Petitioner had a Ksh.10,000,000 inpatient cover, notwithstanding the maternity cover.
44. Counsel submitted that it is unjustifiable that although medical disputes flow from negligence, high standards have been placed to prove the same compared to other acts of negligence, as the complainant must find a medical practitioner who agrees with her. Counsel urged the Court to depart from this and especially where it is clear that Medical Practitioners caused such harm to their patients.
45. Counsel additionally stressed that the Court ought to take judicial notice that doctors would never be witnesses in a matter of medical negligence other than when supporting their own and hence hapless patients like the Petitioner suffer injury from the medical practitioners and have to live with the scars and the financial losses.
46. Counsel submitted therefore that being that the Petitioner was detained from 24th February 2018 to 6th March 2018, she ought to be compensated.
1st Respondent’s Case
47. The 1st Respondent in response, Dr. Brigit Monda, filed his Replying affidavit sworn on 13th September 2018 and a further affidavit sworn on 27th May 2020 in view of the amended Petition. She also testified orally in Court as (DW 1) on 27/2/2024. She also produced in evidence the annexures to her affidavits as D. exhibit 1 & 2.
48. The 1st Respondent (DW 1) stated that she is an obstetrician and gynecologist. She began attending to the Petitioner during her third trimester on 9th January 2018 at her private clinic. She states that prior to this, the Petitioner had been attending the antenatal clinic at the 2nd Respondent. She states that as per the scan, the Petitioner’s Estimated Date of Delivery was on 5th February 2018.
49. During the consultations, she informed the Petitioner that her baby felt big for gestation, a fact which was confirmed by an obstetric ultrasound. Due to this, she informed the Petitioner that she may end up having a caesarean section.
50. The 1st Respondent admitted the Petitioner on 10th February 2018 for induction labour at the 2nd Respondent. She states that the Petitioner checked in at around 10:00 pm and the routine checkups conducted before her admission. The cardiotocograph indicated that the baby’s heart beat was faster than usual prompting the attending nurse to contact the 1st Respondent.
51. She depones that this was an emergency hence required that the baby be delivered through an emergency caesarean section as the Petitioner was not yet in labour. While the Petitioner was reluctant to undergo the procedure, she explained the severity of the situation before her, her husband and sister. At the Petitioner’s request a repeat scan was conducted. The scan indicated that the baby’s heart beat had stabilized and was now normal. The Petitioner at this point requested that they proceed with the induction of labour instead of the caesarean section.
52. The 1st Respondent induced the labour on 11th February 2018 at around 2:15 am. She avers that by 11:00 pm the Petitioner had not progressed into full labour. As such the baby had to be delivered using the caesarean section. She had appraised the Petitioner of the progress throughout who then finally consented to the procedure being done.
53. She stated that she did emergency caesarean and delivered a large healthy female infant of 3600 grammes who was received by pediatrician called Dr. Lengo. The Petitioner faired well post operation. She indicates that by the second day, the Petitioner was on a normal diet, fully ambulant, breastfeeding and passing stool normally. Abdomen was a bit gassy had bowel sound meaning intestines were moving. She had not passed stool on the 1st post-operative day so she requested nurses to put her on suppositories to enable her pass stool and gas as it is normal for post-operative patients to get gas because anesthesia and pregnancy which slows gut gas. As such, she set out to discharge the Petitioner and the baby on 14th February 2018.
54. On 14th February 2018, the anesthesiologist who reviewed the Petitioner, Dr. Mutie, reported that she abdominal distension.
55. Due to this, she could not discharge the Petitioner. She at once requested for a consultant gastric surgeon, Dr. Kaisha Otsiani, to get a second opinion. In addition, the Petitioner was instructed not to eat anything in view of these tests. She asserts that the Petitioner failed to adhere to these instructions consistently thereby delaying carrying of further tests.
56. An abdominal ultra sound conducted the next day showed that the Petitioner had a gaseous distension and fluid levels but no gut/intestinal perforation. She stated:
“The diagnosis we were working on was obstructed intestines. I cannot recall what Dr. Kaisha wrote…she opened her bowels, passed stool, passed gas. Dr Kaisha had travelled, she asked Dr. Kiptoon to step in for him. When we went to review the patient on 16th, we found she had shut down, intestines were paralytic again. Dr. Kiptoon said we do CT scan of the abdomen…”
57. A further CT scan was conducted on 16th February 2018.It showed that the Petitioner had severe pneumoperitoneum indicating a perforated hollow viscus. She stated:
“When CT scan was done, radiologist called me and told me there appeared to be acute perforation and it was an Ogilvie syndrome. At about 4.00 PM I called the patient and told her this was finding of CT scan. I texted the name of the condition and told her exactly what had been written. I called Dr. Kiptoon and revealed. I rushed to Nairobi Hospital to see the patient and explained to her what CT scan had showed and what it entailed. That was on 16/2/2018. Dr. Kiptoon came, explained findings to patient and what needed to be done. There was hostility towards me from relatives…Dr. Kiptoon was with the family for 2-3 hours. Ultimately, we needed to go to the theatre to confirm what CT scan had showed…Despite hostility, I told Dr. Kiptoon I would be in the theatre with him. I joined him in the surgery and we opened and what we found-there was no stool in peritoneal cavity. It means that perforation of intestine was an acute event…we also found two small holes in the large intestines-but not cut-edges were not clean. It was indication that perforation were not done by surgical knife, it was done by something different. We also found peritonitis, an inflammation of the lining of the abdomen…”
58. They further found an intact involuting and healing uterus with a clean pelvic area.
59. In addition, she states that the surgery revealed that the acute perforation of the abdomen had occurred within the last 24 hours. This indicated that they were dealing with the Ogilvie syndrome. This conclusion alongside the lab results of the specimen acquired during the surgery, confirmed this diagnosis in the histology report dated 26th February 2018.
60. She states that after the surgery the Petitioner was transferred to the High Dependency Unit on 17th February 2018 due to poor oxygen saturations. Dr. Wanyoike was then called in to attend to her. She stabilized within a few hours and discharged to the St. Andrews Ward.
61. The 1st Respondent avers that the Petitioner called her on 23rd February 2018 asking to be discharged. She informs that she was not in a position to do so as at that point the Petitioner was under the care of Dr. Kiptoon and Dr. Wanyoike and were the ones who could discharge her. Dr. Kiptoon confirmed that he had put the Petitioner on a 10-day treatment.
62. She asserts that the Petitioner did not want to hear this and continued to insist that she wanted to be discharged. After consulting the two doctors, the 1st Respondent discharged the Petitioner on 24th February 2018. She avers that she is a stranger to the events that occurred thereafter.
63. The 1st Respondent stresses that she did not conduct the caesarean section negligently as alleged by the Petitioner. She adds that in fact has done 20 other similar procedure successfully following the Petitioner’s procedure. She asserts that she took all the reasonable steps to ensure that the Petitioner and her baby’s wellbeing was proper and thus denies breaching her duty of care. She adds that despite her instructions the Petitioner consistently failed to adhere to them to her detriment. In sum, she claims that the Petition lacks merit and so should be dismissed.
64. In her further response, she argues that she was wrongly joined in this suit as the Petitioner admits that this Petition revolves around the alleged unlawful detention at the 2nd Respondent not the issue of medical negligence. Considering this, she states that this suit does not raise any reasonable cause of action against her and so should be struck off from these proceedings.
65. She further depones that the issue of medical negligence was dealt with by the Court in Nairobi CNCC No.3468 of 2018; Naomi Wangui Mwangi vs Dr.B. Monda & the Nairobi hospital and a judgment entered on 26th February 2020. She avers that this suit was dismissed with costs to the defendants therein.
66. Confronted by Prof. Wangai during cross-examination on the diagnosis of Ogilvie syndrome; the 1st Respondent Dr. Brigit Monda (DW 1) responded:
“The CT scan does not mention Ogilvie syndrome. (told she indicated the patient had suffered Ogilvie syndrome) Yes, and that is not disputed. It was the diagnosis I was working with. I called the patient and I told her I think she had what is called Ogilvie syndrome. Report of CT scan came out later that day at 4.00 PM. I had earlier discussed with Dr. Were to arrive at my earlier observation… my discussion with Dr. Were is not on the hospital notes, it was telephone conversation which is not in the record…”
67. (referred to Dr. Kiptoon’s surgical notes and asked to show mentioned Ogilvie syndrome anywhere, the witness (DW 1) stated:
“Dr Kiptoon did write it there. Ogilvie syndrome has several different names. Ogilvie syndrome can also be called acute colonic pseudo- obstruction which is the name Dr. Kiptoon used…my diagnosis of acute syndrome was confirmed by histology. There is no way of knowing if patient could have Ogilvie before surgery is done. It developed on 16/2/2018. That is why there was question mark in my notes…”
1st Respondent’s submissions
68. On 25th February 2025, the 1st Respondent through Mbai Waweru Advocates filed submissions.
69. On the onset, Counsel submitted that the crux of this Petition is the alleged detention of the Petitioner and her baby from 24th February 2018 to 6th March 2018. Counsel submitted that as per the 1st Respondent’s averments, the Petitioner was not under her care throughout this period as she had discharged her on 24th February 2018.
70. Counsel submitted that despite this, the Petitioner has throughout insisted that the 1st Respondent is culpable. Counsel submitted that the issue of medical negligence on the 1st Respondent’s part had been dismissed and claim considered to lack merit by the Medical Board in PIC Case No.14 of 2018, the Magistrate Court in Nairobi CMCC No.3468 of 2018 and the subsequent appeal of the decision in Nairobi HCCA No.148 of 2020.
71. Counsel recapping the 1st Respondent’s averments of the actions taken in attending to the Petitioner, submitted that the Petitioner is obliged to prove her allegations of negligence but had failed to do so.
72. Counsel also pointed out that even the scholarly articles adduced by the Petitioner, Ogilvie’s syndrome is also referred to as acute colonic pseudo-obstruction, the terminology that was used by Dr. Kiptoon in his notes which collaborated the 1st Respondent’s diagnosis.
73. In closing, Counsel maintained that the Petitioner had failed to render any credible reason as to why the case against the 1st Respondent should succeed.
2nd Respondent’s case
74. The 2nd Respondent, (The Nairobi Hospital) called two witnesses who testified orally besides filing the Replying affidavit of Maxwell Maina sworn on 10th July, 2018 and a further affidavit that had annexed various documents dated 18th March, 2019. The witnesses for the 2nd Respondent were Samuel Odede (DW 2), who is 2nd Respondent’s the Director of Medical Services and Research and a trauma orthopedic surgeon by profession. This witness testified before this Court on 18/10/2024.
75. In brief, Mr. Samuel Odede refuted the claim that the Petitioner and h
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1. The Petition dated 6th March 2018 was amended on 23rd December 2019 is supported by the Petitioner’s affidavit in support of similar date.
2. The gist of this Petition is the claim that the 2nd Respondent unlawfully occasioned the detention of the Petitioner at the 2nd Respondent hospital from 24/2/2018 to 6/3/2018 because of an outstanding hospital bill. That the Petitioner was initially admitted into the 2nd Respondent’s medical facility to deliver a baby but due to medical complications which she blames the 1st Respondent for occasioning, she ended up undergoing a second surgery at the facility and further, as a result of the delayed discharge by the 2nd Respondent in an attempt to enforce the payment of the huge medical bill, she contracted another infection which led to continued hospitalization and escalation of the medical bill beyond the maternity package she had been booked on with the concurrence of the 3rd Respondent.
3. The Petitioner thus contends that her rights and fundamental freedoms particularly rights Article 29 (d) and 39 (1) were violated by the Respondents and thus seeks the following reliefs:
i. A declaration that the Petitioner and her baby have been subjected to torture, cruel, inhuman or degrading treatment or punishment by the Respondents herein contrary to the provisions of the Constitution, for the period between 24th February, 2018 to 6th March, 2018.
ii. A declaration that the Petitioner and her baby have been unlawfully detained by the Respondents contrary to Article 39(1)) of the Constitution for the period between 24th February, 2018 to 6th March, 2018.
iii. A declaration that the Petitioner and her baby are entitled to compensation by way of damages for the for the period between 24th February, 2018 to 6th March, 2018.
iv. Costs of the Petition.
v. Any other orders, writs and directions the Court considers appropriate and just to grant for the purpose of the upholding the Petitioner's constitutional rights.
Petitioner’s Case
4. This Petition was heard orally. The Petitioner, PW 1 -Naomi Wambui testified in Court on 26/2/2024 in which she adopted her written witness statement dated 23/10/2019 in her evidence in-chief as well as the affidavit and exhibits thereto.
5. The Petitioner stated that she was insured by the 3rd Respondent (AAR) under member No. AK023381-00 whose cover included a maternity benefit.
6. According to the Petitioner, the 2nd Respondent had advertised a maternity package which included Ksh.98,000 for normal delivery and Ksh.220,000 for caesarean section. She took up the package and began antenatal clinic sometime in 2017 under the management of 1st Respondent, Dr Brigit Monda. On 10/2/2018; she visited the 2nd respondent and on 12th February 2018 delivered a baby through caesarean section conducted by the 1st Respondent (Dr. Brigit Monda). The 3rd Respondent had committed to pay for the caesarean maternity bill an upper limit of Ksh.245,000/-.
7. The Petitioner contends that the 1st Respondent negligently conducted the caesarean operation and thus perforated her colon. The ensuing complication caused the 1st Respondent to seek the enlist the help of additional specialists among them, Dr. Dan Kiptoon (Consultant General Surgeon-PW 2) and Dr. Martin Wanyoike (Consultant Cardiologist) to manage her condition.
8. The Petitioner avers that in a report dated 24th February 2018, Dr. Wanyoike diagnosed that she had a gaseous abdomen and severe pneumoperitoneum indicating a perforated hollow viscus as per the CT scan that was conducted on 15th and 16th February 2018.
9. The Petitioner depones that the 1st Respondent proceeded to discharge them and instead indicated that she had Ogilvie’s syndrome that caused an acute colonic pseud obstruction avoiding to mention the fact that she had in fact perforated her colon during the caesarean section.
10. The Petitioner was told at the time of discharge that her total bill escalated to Ksh.1,761,536.64 and was required that she was required to clear before leaving the hospital.
11. The Petitioner contested the bill on 26th February 2018 insisting that she was not obliged to pay the excessive amount occasioned by the 1st Respondent’s acts of negligence during the caesarean section procedure. She claims that the 2nd Respondent in its response dated 27th February 2018 denied the negligent claims.
12. The Petitioner also stated that while at the hospital she contracted pneumonia spending a further 5 days in the hospital for treatment before she was subsequently discharged by Dr. Wanyoike on 5th March 2018.
13. According to the Petitioner, the final diagnosis was indicated as ‘caecum perforation, right hemi colectomy, emergency caesarian section and pneumonia’. The Petitioner states that this diagnosis did not indicate that she had Ogilvie’s syndrome as had been stated by the 1st Respondent previously.
14. The Petitioner depones that they were detained at the 2nd Respondent due to her inability to pay the now outstanding bill of Ksh.2,119,585. The Petitioner is aggrieved as she attributes the accrued to the negligent acts of the 1st and 2nd Respondent.
15. Nevertheless, the Petitioner has clarified that the essence of this suit is not the 1st and 2nd Respondents’ medical negligence as this was dealt with via different suit, Chief Magistrates’ Court in Nairobi CMCC No.3468 of 2018: Naomi Wangui Mwangi vs. Dr. B. Monda and the Nairobi Hospital.
16. The Petitioner asserts that this Petition is founded on her detention in hospital by of her and the baby by the 2nd Respondent from 24th February 2018 to 6th March 2018 as she was only released her on 6th March 2018 upon the filing of this suit.
17. The Petitioner (PW 1) produced various documents as exhibits in this case, they included the maternity package for Nairobi Hospital- P. exhibit 1, ultra sound dated 11/2/2018-P. exhibit 1b, the medical report by Dr. Wanyoike dated 24/2/2018-P. exhibit 1c, Discharge Summary by Dr. Brigit Monda dated 24/2/2018- P. exhibit 1d, Discharge Summary by Dr. Lengo dated 24/2/18- P. exhibit 1e, Hospital Bill for Kshs. 2.1 million dated 24/2/18-P. exhibit 1f.
18. Cross-examined by M/S Luchemo for the 1st Respondent, she confirmed the negligence suit filed was dismissed and asked why she sued Dr. Brigit Monda (1st Respondent) since the negligence claim was dismissed, the Petitioner explained:
“She did not cooperate with us when we were in hospital. She even to give us the medical report. After surgery, she just disappeared…If she did the right thing, I could not have accumulated that Bill. Whatever made me detained in hospital was the second surgery. She did not cooperate well with other doctors and was primary doctor who did the C-Section…”
19. On cross-examination by Mr. Mwihuri for the 2nd Respondent, the Petitioner conceded that indeed the judgment on negligence was delivered by the lower court on 26/2/2020 but she was appealing the same. On the allegation that the 2nd Respondent had detained her in hospital from 24/2/2018 -6/3/2018 she confirmed her position was based on the discharge notes made by the 1st Respondent-Dr. Brigit Monda on 24/2/18. She was however referred to the hospital notes made by Dr. Dan Kiptoon (PW 2) in which she conceded:
“25/2/2025-… It is 6:20 a.m. It says I started complaining of chest pain on 25/2/2018. Dr says it is hospital acquired pneumonia. It goes to page 83-4/3/2018 signed by Dr. Kiptoon. He says I can be discharged after medical review. I was discharged on 6/3/2018.”
20. Other witnesses called to testify on behalf of the Petitioner included Dr. Dan Kiptoon (PW 2); the Petitioner’s husband, Mr. Amundi Nuru Ayub (PW 3) and Petitioner’s sister, Ann Njeri Mwangi (PW 4) whose gist of their testimonies is as captured in the next few paragraphs.
21. Dr. Dan Kiptoon (PW 2) a Consultant General Surgeon testified before this Court on 26/2/2024. He confirmed that he operated on the Petitioner on 16/2/2018. At the time, the Petitioner was 5 days-post caesarean and one, Dr. Kaisha who had already asked for the CT scan that was pending. Upon getting hold of the CT scan that he examined between 6.30- 6.40 P.M that day, he decided the patient needed immediate surgery. On examining the Petitioner, Dr. Kiptoon, testified that her breathing was faster than normal (tachypnea), she had faster heartrate (tachycardia), had abdominal distension (swollen abdomen-meaning the intestines were not working normally), she had peritonitis (irritation of the abdomen). In addition, the CT scan showed severe pneumo-peritoneum (free fluid within the abdomen) and also fluid in the chest cavity. He explained:
“Once you are told pneumo-peritoneum, it means it is outside. A little gas is expected after surgery, but severe, it means more than hence it means there was perforation or some leaking place in intestine and needed to be checked.”
22. Explaining the findings on operation, he stated:
“there was massive pneumoperitoneum – a lot of gas more than you would expect as in signifying pelvic purulent, it means there was gas in the abdomen, it meant there was infection. Infection was not expected in that environment. There was free fluid movement between bowel loops- (Seropurulent inter-loop ascites covering liver) it was liver trying to protect itself from what was in the abdomen, dusky, distended caecum-caecum is the first part of large intestine, the largest part-what happens is the caecum was extended and dusky and there were two small anterior perforations, that is, less than 0.5 millimeters, if they were larger, I would have been able to measure. The normal colour of the intestine is pink in colour but when it has purple with supply of blood, it gets darker and that is what I described as dusky. The caecum was distended by gas. Fifth finding- the holes were leaking intestinal feacal content from intestine into general peritoneal cavity, this is what was happening. The sixth finding, was that the uterus was healing well and back to its norma size.”
23. On the corrective procedure that he undertook he explained:
“First thing, we thoroughly cleaned the abdomen (through peritoneal) and we then removed the right hemicolectomy-colon is disposed from some parts… the caecum which was looking sickly is part of large intestine. We removed caecum and ascending colon and rejoined the small intestine the transverse colon. I repeated the wash out and closed the abdomen.”
24. He thus concluded:
“The diagnosis: acute necrotizing cellulitis with perforation and peritonitis”
25. He explained that necrotizing is associated with cell death while acute means short period.
26. Disputing the mechanical perforation theory, the witness PW 2 stated in his exam in chief by Prof. Wangai for the Petitioner as follows:
“Trauma to the colon is mechanical injury to the colon. The bacteria to the large intestine is very virulent and if there had been perforation six (6) days ago, what we would have found would have been very severe”
27. Further informed that the Petitioner had a problem immediately after the C-Section, he reiterated:
“If it was post caesarean, a minimum of six hours she would have been very sick…”
28. The witness produced the Medical Report as P. exhibit 3.
29. Cross-examined by Mr. Mwihuri on why the Petitioner had to remain in hospital even after the discharge on 24/2/2018; Dr. Dan Kiptoon explained:
“From my speciality, the client was good on 24/2/2018 at 9.00 a.m. On the same day, Dr. Wanyoike said she may be discharged and same day, at 6 P.M, Dr. Monda said patient may be discharged. On 25/2/2018, 6.00 a.m. it was indicated Naomi had been discharged but had acquired hospital acquired pneumonia. She was advised to take ‘Meropenem’. Meropenem is an extended broad spectrum anti-biotic used for serious/severe infection. It is given intravenously, through injection to the vain-IV medication. Typically, we don’t recommend you go home if you are on this type of medication, you have to be admitted between 7-14 days depending on your response…Hospital acquired pneumonia is acquired from pathogens that tend to be resistant to many antibiotics, we presume it is a bug within hospital so we start from top antibiotics first and we review the antibiotics based on patient response to treatment…”
30. Mr. Amundi Nuru Ayub (PW 3) the Petitioner’s husband was away on official trip to Arusha when his wife was admitted and operated upon. He came back on 14/2/2018. He found his wife who complained of bloating. At the time Dr. Kaisha was attending to her. On 16/2/18; he met Dr. Kiptoon and Dr. Wanyoike. She was taken for scan and was asked to sign the consent immediately so that she could be taken to the theatre. From the theatre she was taken to HDU for some days and then was transferred to a normal ward. She was discharged on 24/2/18 but the hospital bill was very high. He refused to pay and was informed that the wife would not be allowed to leave until the bill was cleared. He testified she contracted an infection was thus held in hospital even further.
31. Ann Njeri Mwangi (PW 4), the Petitioner’s sister is the one who accompanied the Petitioner to the 2nd Respondent facility on 10/2/18. She stated about what transpired after the caesarean surgery:
“On 12/2/18; the baby had not come and she was taken for C.S. At around 4.PM. after C.S. she was taken to the recovery ward. At 4.00 PM she complained of bloated stomach to the nurses. That was 12/2/18 after C.S was done. On 13/2/18, Dr. Monda referred her to Dr. by name Dr. Kaisha. She came, observed and read her file she went and never came back. On 14/2/2018, her stomach was so much bloated and was in so much pain. Dr. Monda came to check on her. She listened to her stomach and she said, ‘You know, Naomi I am avoiding to take you back to the theatre’ I was there in the ward… On 15/2/2018, she came with two doctors Dr. Kiptoon and Dr. Wanyoike. Dr. Kiptoon examined her and suggested a series of lab tests. The tests revealed perforation caused by sharp object. It is Dr. Kiptoon who told us after we asked him. He said it was a sharp object…”
32. Concerning the hospital bill, she said:
“Her insurance paid for maternity costs and they refused to pay for the other corrective surgery because it was due to negligence of the doctors. We got the report of Dr. Kiptoon. It is AAR which said that. We were at Nairobi Hospital when that was said. We came together, me, my brother-in-law and my cousin and see what could be done. We sought intervention of the lawyer because she was being detained…At the point the hospital said we cannot leave without clearing the bill…”
33. PW 4 was confronted by Ms. Luchemo for the 1st Respondent on her assertion that the Petitioner complained immediately of bloating on the day of surgery at around 4.00 PM, yet in her witness statement she wrote: “That when she was brought to the ward, she slept until morning”
34. She responded:
“It was 13th in the morning after the CS. CS was done on 12/2/2018 around midnight.
35. Further challenged to pin-point where she had stated in her written statement that Dr. Kiptoon had informed her that the perforation was caused by a sharp object, she said:
“I don’t seem to find it.”
36. On further prodding by Mr. Mwihuri for 2nd Respondent to confirm whether Dr. Kiptoon had told them that the perforation was due to a sharp object, she stated:
“When he said perforation, I thought perforation is to pierce. He did not use the word sharp object, yaah, yes, he did not.”
37. Further probed to explain her assertion that the sister was detained after discharge on 24/2/2018; she stated:
“The part of detention comes in because she was discharged during the day, later is when she complained of chest pain. Discharge was already done but they told me we cannot leave without clearing. It was message from accounts office.”
38. Cross-examined by Mr. Omuganda on allegations that AAR (3rd Respondent) refused to cover the hospital bill because of the doctor’s negligence, she responded:
“I have nothing written to that effect. It was verbal.”
Petitioner’s Submissions
39. The Petitioner through Prof. Kiama Wangai and Company Advocates filed submissions dated 25th February 2025.
40. Counsel reiterating the facts of this case submitted that the Petitioner and her baby had stayed at 2nd Respondent longer than expected because of the 1st Respondent’s negligent acts.
41. Counsel noted that the Petitioner as per the evidence adduced had been discharged three times. Counsel submitted that her first discharge was after the botched caesarean section that caused a serious injury to the Petitioner, being perforation of her intestines and whose injury could not allow her to leave the hospital. She was thereafter was subjected to a surgery to correct the injury caused by the 1st Respondent.
42. On the second discharge, it is argued that the Petitioner could not be released owing to the outstanding medical bill. This bill is argued to have accrued due to the 1st and 2nd Respondents’ actions. In addition, it was submitted that the Petitioner contracted pneumonia consequent to the detention by the 2nd Respondent, this necessitated cancelation of her second discharge to enable her commence the treatment. Counsel stressed that her discharge was finally secured after filing of this suit.
43. Counsel further argued that the 3rd Respondent declined to pay the hospital bill indicating that the same was over and above what it had agreed to pay for. Counsel pointed out that the 3rd Respondent had not explained why it could not pay the hospital bill noting that the Petitioner had a Ksh.10,000,000 inpatient cover, notwithstanding the maternity cover.
44. Counsel submitted that it is unjustifiable that although medical disputes flow from negligence, high standards have been placed to prove the same compared to other acts of negligence, as the complainant must find a medical practitioner who agrees with her. Counsel urged the Court to depart from this and especially where it is clear that Medical Practitioners caused such harm to their patients.
45. Counsel additionally stressed that the Court ought to take judicial notice that doctors would never be witnesses in a matter of medical negligence other than when supporting their own and hence hapless patients like the Petitioner suffer injury from the medical practitioners and have to live with the scars and the financial losses.
46. Counsel submitted therefore that being that the Petitioner was detained from 24th February 2018 to 6th March 2018, she ought to be compensated.
1st Respondent’s Case
47. The 1st Respondent in response, Dr. Brigit Monda, filed his Replying affidavit sworn on 13th September 2018 and a further affidavit sworn on 27th May 2020 in view of the amended Petition. She also testified orally in Court as (DW 1) on 27/2/2024. She also produced in evidence the annexures to her affidavits as D. exhibit 1 & 2.
48. The 1st Respondent (DW 1) stated that she is an obstetrician and gynecologist. She began attending to the Petitioner during her third trimester on 9th January 2018 at her private clinic. She states that prior to this, the Petitioner had been attending the antenatal clinic at the 2nd Respondent. She states that as per the scan, the Petitioner’s Estimated Date of Delivery was on 5th February 2018.
49. During the consultations, she informed the Petitioner that her baby felt big for gestation, a fact which was confirmed by an obstetric ultrasound. Due to this, she informed the Petitioner that she may end up having a caesarean section.
50. The 1st Respondent admitted the Petitioner on 10th February 2018 for induction labour at the 2nd Respondent. She states that the Petitioner checked in at around 10:00 pm and the routine checkups conducted before her admission. The cardiotocograph indicated that the baby’s heart beat was faster than usual prompting the attending nurse to contact the 1st Respondent.
51. She depones that this was an emergency hence required that the baby be delivered through an emergency caesarean section as the Petitioner was not yet in labour. While the Petitioner was reluctant to undergo the procedure, she explained the severity of the situation before her, her husband and sister. At the Petitioner’s request a repeat scan was conducted. The scan indicated that the baby’s heart beat had stabilized and was now normal. The Petitioner at this point requested that they proceed with the induction of labour instead of the caesarean section.
52. The 1st Respondent induced the labour on 11th February 2018 at around 2:15 am. She avers that by 11:00 pm the Petitioner had not progressed into full labour. As such the baby had to be delivered using the caesarean section. She had appraised the Petitioner of the progress throughout who then finally consented to the procedure being done.
53. She stated that she did emergency caesarean and delivered a large healthy female infant of 3600 grammes who was received by pediatrician called Dr. Lengo. The Petitioner faired well post operation. She indicates that by the second day, the Petitioner was on a normal diet, fully ambulant, breastfeeding and passing stool normally. Abdomen was a bit gassy had bowel sound meaning intestines were moving. She had not passed stool on the 1st post-operative day so she requested nurses to put her on suppositories to enable her pass stool and gas as it is normal for post-operative patients to get gas because anesthesia and pregnancy which slows gut gas. As such, she set out to discharge the Petitioner and the baby on 14th February 2018.
54. On 14th February 2018, the anesthesiologist who reviewed the Petitioner, Dr. Mutie, reported that she abdominal distension.
55. Due to this, she could not discharge the Petitioner. She at once requested for a consultant gastric surgeon, Dr. Kaisha Otsiani, to get a second opinion. In addition, the Petitioner was instructed not to eat anything in view of these tests. She asserts that the Petitioner failed to adhere to these instructions consistently thereby delaying carrying of further tests.
56. An abdominal ultra sound conducted the next day showed that the Petitioner had a gaseous distension and fluid levels but no gut/intestinal perforation. She stated:
“The diagnosis we were working on was obstructed intestines. I cannot recall what Dr. Kaisha wrote…she opened her bowels, passed stool, passed gas. Dr Kaisha had travelled, she asked Dr. Kiptoon to step in for him. When we went to review the patient on 16th, we found she had shut down, intestines were paralytic again. Dr. Kiptoon said we do CT scan of the abdomen…”
57. A further CT scan was conducted on 16th February 2018.It showed that the Petitioner had severe pneumoperitoneum indicating a perforated hollow viscus. She stated:
“When CT scan was done, radiologist called me and told me there appeared to be acute perforation and it was an Ogilvie syndrome. At about 4.00 PM I called the patient and told her this was finding of CT scan. I texted the name of the condition and told her exactly what had been written. I called Dr. Kiptoon and revealed. I rushed to Nairobi Hospital to see the patient and explained to her what CT scan had showed and what it entailed. That was on 16/2/2018. Dr. Kiptoon came, explained findings to patient and what needed to be done. There was hostility towards me from relatives…Dr. Kiptoon was with the family for 2-3 hours. Ultimately, we needed to go to the theatre to confirm what CT scan had showed…Despite hostility, I told Dr. Kiptoon I would be in the theatre with him. I joined him in the surgery and we opened and what we found-there was no stool in peritoneal cavity. It means that perforation of intestine was an acute event…we also found two small holes in the large intestines-but not cut-edges were not clean. It was indication that perforation were not done by surgical knife, it was done by something different. We also found peritonitis, an inflammation of the lining of the abdomen…”
58. They further found an intact involuting and healing uterus with a clean pelvic area.
59. In addition, she states that the surgery revealed that the acute perforation of the abdomen had occurred within the last 24 hours. This indicated that they were dealing with the Ogilvie syndrome. This conclusion alongside the lab results of the specimen acquired during the surgery, confirmed this diagnosis in the histology report dated 26th February 2018.
60. She states that after the surgery the Petitioner was transferred to the High Dependency Unit on 17th February 2018 due to poor oxygen saturations. Dr. Wanyoike was then called in to attend to her. She stabilized within a few hours and discharged to the St. Andrews Ward.
61. The 1st Respondent avers that the Petitioner called her on 23rd February 2018 asking to be discharged. She informs that she was not in a position to do so as at that point the Petitioner was under the care of Dr. Kiptoon and Dr. Wanyoike and were the ones who could discharge her. Dr. Kiptoon confirmed that he had put the Petitioner on a 10-day treatment.
62. She asserts that the Petitioner did not want to hear this and continued to insist that she wanted to be discharged. After consulting the two doctors, the 1st Respondent discharged the Petitioner on 24th February 2018. She avers that she is a stranger to the events that occurred thereafter.
63. The 1st Respondent stresses that she did not conduct the caesarean section negligently as alleged by the Petitioner. She adds that in fact has done 20 other similar procedure successfully following the Petitioner’s procedure. She asserts that she took all the reasonable steps to ensure that the Petitioner and her baby’s wellbeing was proper and thus denies breaching her duty of care. She adds that despite her instructions the Petitioner consistently failed to adhere to them to her detriment. In sum, she claims that the Petition lacks merit and so should be dismissed.
64. In her further response, she argues that she was wrongly joined in this suit as the Petitioner admits that this Petition revolves around the alleged unlawful detention at the 2nd Respondent not the issue of medical negligence. Considering this, she states that this suit does not raise any reasonable cause of action against her and so should be struck off from these proceedings.
65. She further depones that the issue of medical negligence was dealt with by the Court in Nairobi CNCC No.3468 of 2018; Naomi Wangui Mwangi vs Dr.B. Monda & the Nairobi hospital and a judgment entered on 26th February 2020. She avers that this suit was dismissed with costs to the defendants therein.
66. Confronted by Prof. Wangai during cross-examination on the diagnosis of Ogilvie syndrome; the 1st Respondent Dr. Brigit Monda (DW 1) responded:
“The CT scan does not mention Ogilvie syndrome. (told she indicated the patient had suffered Ogilvie syndrome) Yes, and that is not disputed. It was the diagnosis I was working with. I called the patient and I told her I think she had what is called Ogilvie syndrome. Report of CT scan came out later that day at 4.00 PM. I had earlier discussed with Dr. Were to arrive at my earlier observation… my discussion with Dr. Were is not on the hospital notes, it was telephone conversation which is not in the record…”
67. (referred to Dr. Kiptoon’s surgical notes and asked to show mentioned Ogilvie syndrome anywhere, the witness (DW 1) stated:
“Dr Kiptoon did write it there. Ogilvie syndrome has several different names. Ogilvie syndrome can also be called acute colonic pseudo- obstruction which is the name Dr. Kiptoon used…my diagnosis of acute syndrome was confirmed by histology. There is no way of knowing if patient could have Ogilvie before surgery is done. It developed on 16/2/2018. That is why there was question mark in my notes…”
1st Respondent’s submissions
68. On 25th February 2025, the 1st Respondent through Mbai Waweru Advocates filed submissions.
69. On the onset, Counsel submitted that the crux of this Petition is the alleged detention of the Petitioner and her baby from 24th February 2018 to 6th March 2018. Counsel submitted that as per the 1st Respondent’s averments, the Petitioner was not under her care throughout this period as she had discharged her on 24th February 2018.
70. Counsel submitted that despite this, the Petitioner has throughout insisted that the 1st Respondent is culpable. Counsel submitted that the issue of medical negligence on the 1st Respondent’s part had been dismissed and claim considered to lack merit by the Medical Board in PIC Case No.14 of 2018, the Magistrate Court in Nairobi CMCC No.3468 of 2018 and the subsequent appeal of the decision in Nairobi HCCA No.148 of 2020.
71. Counsel recapping the 1st Respondent’s averments of the actions taken in attending to the Petitioner, submitted that the Petitioner is obliged to prove her allegations of negligence but had failed to do so.
72. Counsel also pointed out that even the scholarly articles adduced by the Petitioner, Ogilvie’s syndrome is also referred to as acute colonic pseudo-obstruction, the terminology that was used by Dr. Kiptoon in his notes which collaborated the 1st Respondent’s diagnosis.
73. In closing, Counsel maintained that the Petitioner had failed to render any credible reason as to why the case against the 1st Respondent should succeed.
2nd Respondent’s case
74. The 2nd Respondent, (The Nairobi Hospital) called two witnesses who testified orally besides filing the Replying affidavit of Maxwell Maina sworn on 10th July, 2018 and a further affidavit that had annexed various documents dated 18th March, 2019. The witnesses for the 2nd Respondent were Samuel Odede (DW 2), who is 2nd Respondent’s the Director of Medical Services and Research and a trauma orthopedic surgeon by profession. This witness testified before this Court on 18/10/2024.
75. In brief, Mr. Samuel Odede refuted the claim that the Petitioner and h
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