Gerry Maende Waka (Legal Representative suing on behalf of the deceased Irene Mbinya Kieti) v Juliet Wanjiku Thitai & 2 Others

The court assessed the 1st Defendant's conduct against information reasonably available at the time, not with hindsight. The presentation (right ear pain, mild headache, inflamed tympanic membrane) lacked classical meningitis features; the elevated blood pressure alone did not compel particular investigations. PW2's criticisms raised documentation questions, not proof of a decision outside reasonable professional practice.

Vicarious liability is derivative and presupposes an actionable wrong by the employee or agent. Having found no negligence by the 1st Defendant and no independent negligent act by another identified employee of AAR, the foundation of the vicarious liability claim collapsed.

The deceased arrived already severely neurologically compromised. Assessment, laboratory investigations and CT imaging were undertaken. Delay is not actionable merely because a faster course is retrospectively identifiable; documentation deficiencies do not prove negligent care; and Dormicum's administration was not shown to be below standard or to have caused or accelerated the fatal deterioration.

The death certificate recorded cardiac arrest (a terminal event only); no post-mortem was conducted. The absence of a post-mortem is not fatal per se, but the medical evidence did not establish that failure to diagnose meningitis, imaging timing, or Dormicum probably caused or contributed to death. Possibility of a diagnosis is not proof of negligent failure to diagnose it or that earlier diagnosis would probably have prevented death.

The doctrine is evidential only and permits an inference of negligence where the occurrence is of a kind that ordinarily does not happen without negligence. Here the rapid deterioration had possible medical explanations not involving negligence, so the doctrine cannot shift the burden of proving breach and causation.

The Board is a specialist regulatory body whose assessment of the same treatment is relevant, but its findings do not bind a civil court determining liability. The court independently evaluated all evidence and reached a conclusion consistent with the Board's finding that actionable negligence was not established, without substituting the Board's decision for its own assessment.

The disciplinary mechanism does not extinguish civil jurisdiction; the two serve different functions. The mathematical dependency assessment of Kshs.15,697,648 exceeded the Principal Magistrate's pecuniary ceiling, and jurisdiction cannot be enlarged by dividing damages into heads or by admitting additional evidence of earnings.