Nyaga v Ibaya & 3 others (Civil Appeal E064 of 2021) [2025] KECA 2086 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a medical negligence award, ruling doctors are judged by the standards of an averagely skilled practitioner, not perfect outcomes.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge erred in law by failing to consider the appropriate standard of professional care required in determining a doctor's professional negligence
- 2.Whether the appellant and the 4th respondent/cross-appellant were jointly and severally liable for the death of the deceased and the unborn child
Key legal issues
#Standard of care in medical negligence claims
The applicable standard is that of an averagely skilled medical practitioner, per the Bolam test, and the burden of proving negligence is on the claimant on a preponderance of evidence, not higher than in ordinary cases.
The Court adopted the Bolam formulation and Pope John Paul's Hospital v. Baby Kasozi, holding that negligence means failure to act in accordance with the standard of a reasonably competent medical practitioner at the time, and that courts must not construe everything that goes wrong during treatment as negligence.
Whether the 4th respondent/cross-appellant was negligent
He was not negligent; failure to answer a patient's calls when the pregnancy was normal at the last examination and where he redirected the patient to the on-call doctor did not amount to medical negligence or proximate cause of death.
The Court found there was no evidence his antenatal treatment or advice was negligent; he was off duty, had handed over to the on-call doctor, and the Medical Board found he had acted reasonably. His failure to answer calls was not established as the proximate cause of death.
Whether the appellant was negligent
She was not negligent; upon arrival at the hospital she did all she could as a doctor, and the alleged delay was not shown to have caused the deaths.
The chronology showed she attended, tried to insert IV lines, arranged blood and theatre; the foetus was already dead on examination. The 'chain of events' from the delay was unexplained and no expert evidence showed the 30-minute delay contributed to the deaths.
Legal principles established
#- On a second appeal, the Court confines itself to matters of law and does not interfere with findings of fact unless the courts below considered matters they should not have, or failed to consider matters they should have, or the decision is perverse.
- The standard of care in medical negligence is that of an averagely skilled practitioner, applying the Bolam test, not that of a reasonable man on the street.
- Courts must not confuse medical negligence with misadventure; something going wrong during medical treatment is not in itself evidence of negligence.
Court orders
#- 1.Judgment of H.C.C.A. Nos. 101 & 102 of 2017 set aside
- 2.Judgment of C.M.C.C. No. 190 of 2016 set aside
- 3.Each party to bear its own costs
- 4.Judgment delivered under Rule 34(4) of the Court of Appeal Rules following the death of the Hon. Mr. Justice Fred Ochieng
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- HCCA Nos. 101 & 102 of 2017 (Meru)
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on points of law); Rule 34(4) of the Court of Appeal Rules (delivery of judgment after death of a bench member)
Relief refused
#1st respondent's award of damages for wrongful death
Medical negligence was not proved to the required standard; failure to distinguish negligence from misadventure
Costs
Each party bears its own costs - 'We order that each party bears its own costs.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered
In allegations of medical negligence, the standard to be considered cannot be that of a reasonable man on the street. The standard to be applied is that of an averagely skilled practitioner in the field of medicine.
In cases charging medical negligence, a court should be careful not to construe everything that goes wrong in the course of medical treatment as amounting to negligence.
As a consequence, we set aside the judgment of the H.C.C.A. Nos. 101 & 102 of 2017 and C.M.C.C. No. 190 of 2016.
We order that each party bears its own costs.
Issues in the judgment
#The trial court's judgment as summarised found personal responsibility of the 4th respondent partly for attending the deceased in his private clinic, but the Court of Appeal's narrative elsewhere records that the 4th respondent attended the deceased in his private clinic for antenatal care; the account of the High Court's findings appears inconsistent with the evidence narrative.
The judgment contains typographical errors (e.g. 'sufiering', 'afiected', 'difiicult') consistent with a scanned copy, and the certificate signature block appears irregular, but no internal contradiction on the disposition.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaga v Ibaya & 3 others (Civil Appeal E064 of 2021) [2025] KECA 2086 (KLR)", Case Analysis (2025). HCCA Nos. 101 & 102 of 2017 (Meru) appeal; second appeal from C.M.C.C. 190 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2086/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.