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

3. 4. 5. 6. 7. 8. 9. treatment disclose a breach of the legal duty of care owed to her and, if so, whether such breach is proved to have caused or materially contributed to her death. At its heart, therefore, is a question which is both legal and profoundly human: when does an adverse medical outcome become a legally actionable wrong? The Court is conscious that litigation arising from the death of a patient in circumstances such as these carries a dimension which extends beyond the legal dispute between the parties. A life has been lost, a family has been left behind, and the surviving members may understandably seek an explanation for what happened and whether the outcome could have been avoided. The deceased was a wife and a mother. The Plaintiff brings this suit as her legal representative and also as the person who survived her as her husband. The proceedings therefore concern not merely an alleged professional wrong but the consequences of the death of a member of a family. The Court must nevertheless determine the dispute according to law. Sympathy for the loss suffered, however genuine and understandable, cannot take the place of proof. Equally, the tragic nature of a death cannot by itself establish that a medical practitioner or hospital was negligent. Medical negligence occupies a distinctive field of civil liability. A medical practitioner is not required to guarantee a particular outcome. The law requires the exercise of reasonable skill, care and competence appropriate to the circumstances confronting the practitioner. At the same time, where the evidence establishes that the applicable standard of care was breached and that the breach caused the injury or death complained of, the law provides a remedy. The Court's task is to determine whether the Plaintiff has established the essential elements of his claim on a balance of probabilities, including the existence of a duty of care, breach of the applicable standard of care and a causal connection between the alleged breach and the death of the deceased. The suit has been pending for several years. The events giving rise to the claim occurred in August and September

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2016, while the present proceedings were instituted in the year 2019. The passage of time makes it particularly important that the Court examine the dispute comprehensively and bring it to a final determination based upon the pleadings, the evidence and the applicable law. 10. The proceedings have also involved issues extending beyond the substantive allegation of medical negligence. They include questions concerning the respective responsibilities of the medical practitioner and healthcare institutions, the doctrine of vicarious liability, the doctrine of res ipsa loquitur, the relationship between civil proceedings and professional disciplinary proceedings, the evidential significance of the Kenya Medical Practitioners and Dentists Board proceedings, and the assessment of damages should liability be established. 11. There is also a jurisdictional dimension arising from the fact that the matter has proceeded before a Principal Magistrate's Court. The Court must at all times exercise the jurisdiction conferred upon it by the Constitution and statute. The assessment of any damages, if liability were ultimately established, must therefore be undertaken within the limits prescribed by law. 12. The procedural history of the matter further includes proceedings before the High Court concerning the forum in which the dispute should proceed. The significance of those proceedings, together with the issue of exhaustion arising from the professional disciplinary process, will be addressed at the appropriate stage of this judgment. 13. The Court is also required to determine the claim within the framework of the pleadings filed by the parties. The Plaintiff has advanced specific allegations against each Defendant, while the Defendants have denied liability and put the Plaintiff to strict proof of the allegations made against them. 14. The 1st Defendant, Dr. Juliet Wanjiku Thitai, is sued in relation to the medical attention rendered to the deceased at the facility operated by the 2nd Defendant. 15. The 2nd Defendant, AAR Healthcare Limited, is sued both in relation to the treatment provided at its facility and on the basis of alleged vicarious liability for the acts or omissions of its employees, servants and/or agents.

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16. The 3rd Defendant, The Mater Hospital, is sued in relation to the subsequent medical management of the deceased after her condition deteriorated. 17. The Plaintiff alleges that the acts and omissions of the Defendants, considered individually and/or cumulatively, amounted to medical negligence and caused or materially contributed to the deceased's death. 18. The Defendants deny those allegations and maintain that the deceased's treatment was undertaken in accordance with the circumstances presented to the attending medical personnel and that the Plaintiff has not established the essential elements of negligence or causation. 19. The Court deliberately refrains, at this stage, from making findings on the merits of the competing accounts. Those findings will emerge only after the Court has considered the pleadings, evidence, submissions and applicable law. 20. Ultimately, the central question is whether the Plaintiff has proved, on a balance of probabilities, that the Defendants failed to discharge the duty of care owed to the deceased and that such failure caused or materially contributed to her death. 21. The determination of that question requires the Court to consider the case in its entirety, while maintaining the fundamental distinction between a tragic medical outcome and legally actionable medical negligence. 22. It is against that background that the Court now turns to the pleadings and procedural history before considering the evidence adduced by the respective parties. THE PLEADINGS 23. The Plaintiff's claim is contained in the Further Amended Plaint Amended on 30th April 2021. 24. The Plaintiff pleaded that on 31st August 2016, the deceased attended the 2nd Defendant's facility where she was attended to by the 1st Defendant. 25. It was alleged that the 1st Defendant failed to conduct an adequate clinical and neurological examination, failed to appreciate the significance of the deceased's symptoms and elevated blood pressure, failed to undertake or recommend appropriate investigations and failed to make a proper diagnosis.

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26. The Plaintiff further pleaded that the deceased's condition deteriorated in the early hours of 1st September 2016, whereupon he contacted the 2nd Defendant's emergency services and was advised to take her to the 3rd Defendant's hospital. 27. As against the 3rd Defendant, the Plaintiff alleged, inter alia, delay in investigations, inadequate monitoring, delay in undertaking the CT scan and MRI, inappropriate medication and failure to respond appropriately to the deceased's deteriorating neurological condition. 28. The Plaintiff further invoked the doctrine of res ipsa loquitur. 29. He sought damages under the Law Reform Act and Fatal Accidents Act, special damages, costs and interest. 30. The Defendants denied negligence and maintained that the deceased was assessed, investigated and managed in accordance with the clinical presentation and the applicable standards of medical care. 31. They further denied that any act or omission on their part caused or contributed to the deceased's death. PROCEDURAL HISTORY, JURISDICTION AND THE HIGH COURT PROCEEDINGS 32. Before considering the evidence, it is necessary to address the question of jurisdiction and the procedural history of this matter. 33. The record indicates that a complaint concerning the deceased's treatment was lodged before the Kenya Medical Practitioners and Dentists Board on 22nd March ,2017. 34. The present civil proceedings were subsequently instituted in 2019 while the professional disciplinary process was still pending. 35. The Board eventually determined the complaint on 7th October 2020 and dismissed it. 36. The existence of the proceedings before the professional regulatory body generated an issue as to whether the Plaintiff was entitled to institute and maintain civil proceedings while the complaint before the Board was pending. 37. There were subsequently proceedings before the High Court in Gerry Maende Waka v Juliet Thitai & 2

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Others, Miscellaneous Civil Application No. E1330 of 2025. 38. In its Ruling delivered on 19th March 2026, the High Court considered the proceedings pending before this Court and declined to transfer the matter to the High Court. The effect of the Ruling was that the matter pending before the Chief Magistrate's Court was to proceed to final determination before the Subordinate Court. 39. I must nevertheless emphasise that this Court's jurisdiction does not arise from the High Court Ruling. Jurisdiction is conferred by the Constitution and statute. The High Court Ruling is relevant because it addressed the jurisdictional history of these very proceedings and left the suit to proceed to finality before this Court. 40. The principle stated in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR remains applicable: “A Court may exercise only the jurisdiction conferred upon it by the Constitution or written law and cannot enlarge that jurisdiction by judicial craft”. 41. Similarly, in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court emphasised the foundational character of jurisdiction. 42. I am therefore satisfied that I am properly seized of the present dispute, subject at all times to the applicable statutory pecuniary jurisdiction . THE DOCTRINE OF EXHAUSTION 43. A related issue concerns the fact that the Plaintiff commenced these proceedings before the Board had finally determined his complaint. 44. Section 20 of the Medical Practitioners and Dentists Act provides a statutory mechanism for complaints relating to professional misconduct and professional standards. 45. That jurisdiction is fundamentally disciplinary and regulatory. A Civil Court, on the other hand, determines civil liability and may award compensatory damages where negligence is proved. 46. In Hellen Kiramana v PCEA Kikuyu Hospital [2016] eKLR, the High Court considered the relationship between proceedings under the Medical Practitioners and Dentists

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Act and an ordinary civil claim founded on medical negligence. 47. The same distinction was subsequently addressed in Wanjiku (Suing as next friend and mother to JM, a Minor) v Kenyatta National Hospital & 2 Others [2024] KEHC 13661 (KLR). 48. The existence of the statutory disciplinary mechanism does not, without more, convert the Board into a Civil Court with jurisdiction to award the damages sought in an ordinary tortious claim for medical negligence. 49. I therefore find that the Plaintiff's commencement of the civil proceedings while the disciplinary complaint was pending did not, in the circumstances of this case, deprive this Court of jurisdiction to determine the civil claim. 50. The Board proceedings and the present suit served different, although related, legal purposes. THE PLAINTIFF'S EVIDENCE 51. PW1, Gerry Maende Waka, testified that he was the husband of the deceased, Irene Mbinya Kieti. 52. He testified concerning the events preceding the deceased's death and the treatment she received at the facilities of the 2nd and 3rd Defendants. 53. He stated that on 31st August 2016 the deceased attended the 2nd Defendant's facility and was attended to by the 1st Defendant. 54. He testified that her condition subsequently deteriorated and that in the early hours of 1st September 2016 she suddenly became unable to talk, walk or sit. 55. PW1 contacted the 2nd Defendant's emergency services and was advised to take the deceased to Mater Hospital. 56. He described the deceased's admission, investigations, treatment and deterioration while at Mater Hospital and the events preceding her death. 57. He also produced documentary evidence relating to the deceased and the expenses incurred. 58. During Cross-Examination, PW1 confirmed that he was not a medical practitioner. 59. He was questioned on the basis upon which he alleged that the treatment accorded to the deceased was negligent. 60. He was also questioned concerning the medical investigations, the cause of death recorded in the death

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certificate and the fact that no post-mortem examination had been conducted. 61. In Re-Examination, PW1 clarified the sequence of events which he had personally witnessed and the basis upon which he had lodged the complaint concerning the deceased's treatment. 62. PW2, Dr. Lawrence Kimutai Kogos, testified as the Plaintiff's Medical Expert and relied upon his medical report dated 18th November 2024. 63. He reviewed the medical records relating to the deceased's treatment. 64. He referred to the deceased's blood pressure reading of 152/101 mmHg during her attendance at AAR on 31st August 2016. 65. He testified concerning the neurological examination documented at the time and referred to the absence of documentation of certain neurological signs, including Kernig's sign. 66. PW2 also considered the deceased's condition on presentation at Mater Hospital on 1st September 2016. 67. He referred to a blood pressure reading of approximately 157/91 mmHg, the deceased's altered neurological state, the elevated white blood cell count of approximately 24.9, and the C-reactive protein level of approximately 282–285. 68. He testified that those laboratory results were, in his opinion, suggestive of a severe infective process and considered bacterial meningitis among the possible diagnoses. 69. He further addressed the timing of the CT scan and MRI, monitoring of the deceased and the administration of medication. 70. PW2 testified concerning the administration of Dormicum and the possible effects of sedation upon a patient with severe neurological compromise. 71. During Cross-Examination, PW2 was questioned extensively on the retrospective nature of his opinion, the factual and documentary foundation of his conclusions, whether the laboratory results were diagnostic of bacterial meningitis and the interpretation of the medication records. 72. He was also questioned concerning his interpretation of the Dormicum dosage and whether the records established the

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administration of the doses in the manner stated in his report. 73. In Re-Examination, PW2 clarified the medical basis upon which he had formed his opinion and maintained his conclusions. 74. PW3, Florence Nzuki, testified concerning the medical records produced in the proceedings. 75. She identified the relevant records and explained their custody and contents. 76. During Cross-Examination, she was questioned on the completeness and legibility of portions of the records, including the nursing and medical entries and the timing of some observations. 77. In Re-Examination, she clarified the nature of the records and her role in their production. THE DEFENCE EVIDENCE 78. DW1, Dr. Juliet Wanjiku Thitai, testified that she attended to the deceased at the 2nd Defendant's facility on 31st August 2016. 79. She stated that the deceased's principal complaint was right ear pain accompanied by a mild headache. 80. Upon examination, she noted inflammation involving the right tympanic membrane. 81. She stated that she referred the deceased for an urgent ENT review. 82. She was cross-examined concerning the deceased's blood pressure reading of 152/101 mmHg, the extent of the neurological examination undertaken and whether the deceased's presentation should have led to suspicion of meningitis or another serious neurological condition. 83. DW1 maintained that the deceased's clinical presentation at the time did not disclose the classical features that would have indicated meningitis. 84. In re-examination, she clarified the symptoms with which the deceased had presented and the reason for the ENT referral. 85. DW2, Dr. Kevin Rombosia, testified concerning the deceased's management at Mater Hospital on 1st September 2016.

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86. He stated that the history given was that at approximately 5.00 a.m. the deceased had suddenly become unable to talk, walk or sit. 87. She was assessed at the hospital in the morning and was found to be disoriented and unable to speak, with a reduced Glasgow Coma Scale of approximately 8–9. 88. Her blood pressure was approximately 157/91 mmHg. 89. Laboratory investigations disclosed a white blood cell count of approximately 24.9 and a markedly elevated CRP of approximately 282–285. 90. A CT scan was undertaken at approximately 10.30 a.m. 91. The CT scan disclosed diffuse cerebral oedema and intracranial abnormalities and further MRI/MRV imaging was recommended. 92. DW2 testified that the deceased was admitted for further management and was subsequently transferred to the ward. 93. He testified concerning the arrangements made for MRI imaging and the availability of the MRI machine. 94. He stated that the deceased was restless and was administered 10 mg of Dormicum before the MRI. 95. She was subsequently taken to radiology. 96. DW2 testified that the deceased's condition deteriorated during the evening. At approximately 6.00 p.m. she was gasping, resuscitative measures were commenced and she was transferred to the Intensive Care Unit. 97. The deceased was subsequently pronounced dead at approximately 7.00 p.m. 98. During Cross-Examination, DW2 was questioned on the timing of the CT scan and MRI, the monitoring of the deceased, the significance of the laboratory results, the administration of medication and sedation and the availability of MRI imaging. 99. In re-examination, he clarified the sequence of management and the clinical reasons for the steps taken. 100. DW3, Virginia Kimala Kyalo, testified as a nurse concerning the nursing care provided to the deceased at Mater Hospital. 101. She testified concerning monitoring, observations, administration of medication and the emergency response following the deceased's deterioration.

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102. During Cross-Examination, she was questioned on the timing and completeness of nursing observations, documentation, medication and monitoring. 103. In Re-Examination, she clarified the nursing records and the care provided. THE KMPDB PROCEEDINGS 104. The Plaintiff had lodged a complaint before the Kenya Medical Practitioners and Dentists Board on 22nd March 2017. 105. The Board considered the complaint together with the available patient records and responses. 106. The Board noted that on 1st September 2016 the deceased experienced a sudden deterioration manifested by inability to talk, walk or sit. 107. It considered the investigations undertaken at Mater Hospital, including the elevated white blood cell count and CRP, the CT findings of diffuse cerebral oedema, the reduced Glasgow Coma Scale, medication administered and the deceased's subsequent deterioration. 108. In relation to the deceased's attendance at AAR on 31st August 2016, the Board considered the symptoms documented at the time and the referral for ENT review. 109. The Board observed that the initial presentation was atypical and did not clearly exhibit classical features of meningitis such as photophobia, neck stiffness or a positive Kernig's sign. 110. The Board ultimately concluded that there was no sufficient basis for finding that the practitioners concerned had fallen below the applicable professional standard and dismissed the complaint on 7th October 2020. SUBMISSIONS 111. Upon conclusion of the hearing, the Court directed the parties to file and exchange their respective Written Submissions. 112. The Plaintiff filed his Written Submissions on 16th September 2026. The Court has considered the said submissions together with the pleadings, oral and documentary evidence, expert evidence and the authorities relied upon therein.

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113. The 3rd Defendant filed its Written Submissions dated 4th September ,2026 and urged the Court to dismiss the Plaintiff's claim. 114. The 1st and 2nd Defendants were directed by the Court to file their Written Submissions on or before 23rd September 2026. Their Written Submissions are dated 2nd October 2026 but were filed on 5th October 2026, outside the timelines stipulated by the Court. The Court has considered the circumstances of the matter and, in the interests of justice and for purposes of determining the dispute on its merits, accepts and admits the said submissions for consideration PLAINTIFF'S SUBMISSIONS 115. The Plaintiff submitted that the totality of the evidence demonstrated failures in diagnosis, investigation, monitoring and treatment which amounted to a breach of the duty of care owed to the deceased. 116. Counsel placed particular emphasis on the elevated blood pressure recorded when the deceased attended the 2nd Defendant's facility, the alleged inadequacy of the neurological examination, the deceased's subsequent rapid deterioration, the markedly elevated inflammatory markers, the timing of imaging at the 3rd Defendant's facility and the administration of Dormicum. 117. The Plaintiff relied substantially upon the expert evidence and opinion of PW2, Dr. Lawrence Kimutai Kogos, and submitted that his evidence established departures from the standard of care expected of the Defendants. 118. It was further submitted that the various acts and omissions complained of should be considered cumulatively rather than in isolation. According to the Plaintiff, the alleged failures formed part of a chain of events which ultimately caused or materially contributed to the deceased's death. 119. The Plaintiff further invoked vicarious liability against the institutional Defendants and urged the Court to find that the acts and omissions of their employees, servants and/or agents rendered the respective institutions liable. 120. On quantum, the Plaintiff's Written Submissions proposed Kshs.500,000/= for pain and suffering, Kshs.200,000/= for

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loss of expectation of life, Kshs.20,654,800/= for loss of dependency and Kshs.616,564/= as Special Damages. 1ST AND 2ND DEFENDANTS SUBMISSIONS 121. The 1st and 2nd Defendants submit that the Plaintiff’s case against them arises from the outpatient consultation undertaken by the 1st Defendant on 31st August 2016. They contend that the 1st Defendant acted within the accepted standard of medical practice and that no causal connection was established between the consultation and the deceased’s subsequent death on 1st September 2016. 122. On breach of duty, they submit that the deceased presented with right ear pain and a mild headache, without fever, neck stiffness, visual or neurological symptoms. The 1st Defendant examined her, noted inflammation of the right tympanic membrane and referred her urgently to an ENT specialist. They rely on the evidence of DW1, Dr. Juliet Wanjiku Thitai, and the KMPDB Ruling dated 7th October 2020, which found the presentation to be atypical, rapidly progressive and without reasonable indicators upon which meningitis could have been diagnosed at first contact. 123. The 1st and 2nd Defendants further submit that the Plaintiff failed to prove breach of the applicable standard of medical care. Relying on Pope John Paul’s Hospital & Another v Baby Kosozi [1974] EA 221 and Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, they contend that the 1st Defendant’s conduct ought to be assessed against the degree of care reasonably expected of a normally skilled practitioner in the circumstances existing at the time, and not with the benefit of hindsight. They also challenge the weight of PW2’s expert evidence and urge the Court to consider the KMPDB finding that there was no negligence, while acknowledging that the Board’s decision is not binding upon the Court. 124. On causation, the 1st and 2nd Defendants submit that, even if breach were established, the Plaintiff failed to prove that it was the direct or proximate cause of death. They rely on the failure to act upon the urgent ENT referral, the approximately 24-hour delay before the deceased was taken to hospital, her subsequent management exclusively at the 3rd Defendant’s facility, the absence of a postmortem examination and the KMPDB finding that the illness

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was atypical and rapidly progressive. They further submit that the doctrine of res ipsa loquitur cannot substitute for proof of negligence and causation in the circumstances of this medically complex case. 125. With regard to the 2nd Defendant, the 1st and 2nd Defendants submit that the claim is founded on vicarious liability and that, in the absence of negligence by the 1st Defendant or an independent negligent act by the 2nd Defendant, there is no basis upon which vicarious liability can arise. 126. On quantum, they challenge the claims for loss of dependency, lost years, pain and suffering, loss of expectation of life and special damages. They submit that loss of dependency was not pleaded, that the alleged dependants were not pleaded, that the evidence of the deceased’s earnings and the proposed multiplier were inadequate, and that special damages must be specifically pleaded and strictly proved. 127. Finally, the 1st and 2nd Defendants submit, in the alternative, that should liability be found, responsibility ought to be apportioned to the 3rd Defendant, under whose exclusive care the deceased deteriorated and died, and to the deceased herself for failing to act upon the urgent ENT referral. They consequently urge the Court to dismiss the Plaintiff’s claim against them with costs. 3RD DEFENDANT'S SUBMISSIONS 128. The 3rd Defendant filed Written Submissions and urged the Court to dismiss the claim. 129. Its position was, in substance, that the Plaintiff had failed to establish a departure from the applicable professional standard and, in any event, had failed to prove that any alleged departure caused or materially contributed to the deceased's death. 130. The 3rd Defendant submitted that the Plaintiff's case impermissibly sought to reason backwards from an adverse medical outcome to an inference of negligence. It was contended that the fact that the deceased died after receiving medical treatment could not, without more, establish breach of the applicable standard of care. 131. The 3rd Defendant submitted that the deceased's presentation at the 2nd Defendant's facility on 31st August,

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2016 was not diagnostic of meningitis or of the severe neurological condition which subsequently manifested itself. 132. It was further submitted that the rapid neurological deterioration which occurred on 1st September 2016 could not reasonably have been predicted from the symptoms presented during the earlier consultation. 133. The 3rd Defendant maintained that by the time the deceased arrived at Mater Hospital she was already seriously ill and that she was thereafter assessed, investigated and treated in accordance with the clinical circumstances presented to the attending medical personnel. 134. Counsel disputed the allegation of negligent delay in investigations and treatment and submitted that the medical records demonstrated that appropriate investigations were undertaken, including CT imaging, and that further MRI/MRV imaging was pursued when indicated. 135. With regard to the administration of Dormicum, the 3rd Defendant challenged the Plaintiff's contention that the medication constituted negligent treatment or that its administration caused or materially contributed to the deceased's death. 136. The 3rd Defendant therefore submitted that the Plaintiff had failed to establish both breach of the duty of care and causation and urged the Court to dismiss the suit. 137. The Court has considered the Plaintiff's Written Submissions dated and filed on 16th September 2026, the Written Submissions filed by the 3rd Defendant, the pleadings filed by all the parties, the evidence adduced at trial, the documentary and expert evidence and the authorities placed before the Court. 138. The Court shall therefore determine the issues arising from the pleadings and evidence, taking into account the respective submissions of the parties and without attributing to any party a case which was not pleaded or supported by the evidence. ANALYSIS AND DETERMINATION 139. Having considered the pleadings, oral testimony, documentary evidence, medical records, expert evidence, the proceedings and findings of the Kenya Medical

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Practitioners and Dentists Board, the parties' respective submissions and the authorities cited, I identify the following issues for determination: a) Whether the Plaintiff had the requisite capacity and locus standi to institute the proceedings; b) Whether the 1st Defendant owed the deceased a duty of care; c) Whether the 1st Defendant breached the applicable standard of medical care; d) Whether the 2nd Defendant is vicariously liable for the acts or omissions of the 1st Defendant or its employees, servants and/or agents; e) Whether the 3rd Defendant breached the duty of care owed to the deceased; f) Whether any proved breach by any of the Defendants caused or materially contributed to the deceased's death; g) Whether the doctrine of res ipsa loquitur applies; h) What evidential weight should be given to the KMPDB proceedings; i) Whether the Plaintiff has proved the damages pleaded and/or claimed in submissions; j) Who should bear the costs of the suit. Applicable burden and standard of proof 140. Before considering the individual issues, it is necessary to restate the burden which rests upon the Plaintiff. Under sections 107, 108 and 109 of the Evidence Act, the person who asserts the existence of a fact upon which a legal right or liability depends bears the burden of proving that fact. 141. In a claim founded on medical negligence, the Plaintiff must therefore establish, on a balance of probabilities, the essential elements of the tort. These ordinarily include the existence of a duty of care, breach of the applicable standard of care, and damage resulting from that breach. 142. The civil standard does not require proof beyond reasonable doubt. At the same time, the seriousness of the allegation does not lower the evidential threshold. The Plaintiff must place before the Court sufficiently cogent

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evidence from which the Court can conclude that the alleged negligence is more probable than not. 143. In Pope John Paul's Hospital & Another v Baby Kosozi [1974] EA 221, the East African Court of Appeal emphasised the need for clear proof in medical negligence claims and cautioned courts against treating every unfortunate result of medical treatment as negligence. 144. The principle remains important in the present case. The Court is not required to determine whether the deceased's treatment was perfect, nor whether another practitioner might have adopted a different course. The question is whether the treatment complained of fell below the standard reasonably expected of a competent practitioner in the circumstances existing at the material time. 145. The Court of Appeal in BJC v Mochache & Another [2025] KECA 60 (KLR) similarly considered a claim arising from the death of a patient following medical treatment and reiterated the need for proof of negligence and causation. The case is particularly instructive because it demonstrates that medical negligence must be determined from the totality of the evidence rather than from the mere fact that the patient died while receiving treatment. 146. I approach the present claim on that basis. The tragic outcome is not in dispute. What remains to be established is whether the law attributes that outcome to a breach of duty by any of the Defendants. a) Whether the Plaintiff had the requisite capacity and locus standi to institute the proceedings 147. The Plaintiff brought these proceedings as the legal representative of the estate of Irene Mbinya Kieti. 148. The documentary evidence before the Court establishes his authority to represent the estate. The Chief's letter dated 28th November 2016 identifies the deceased's surviving husband as Gerry Maende Waka, and identifies the two children, Jair Maende, then aged eight years, and Eliora Ayieta, then aged five years. 149. An Affidavit of Marriage was also produced evidencing the marital relationship between the Plaintiff and the deceased. 150. The Court is satisfied that the Plaintiff has established both the requisite representative capacity and his relationship with the deceased.

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151. I therefore find that the Plaintiff had the requisite capacity and locus standi to institute these proceedings. b) Whether the 1st Defendant owed the deceased a duty of care 152. There is no dispute that the 1st Defendant, Dr. Juliet Wanjiku Thitai, attended to the deceased at the 2nd Defendant's facility on 31st August 2016. 153. Once a Medical Practitioner undertakes to examine, diagnose or treat a patient, a professional relationship arises and a corresponding duty of care is imposed upon the practitioner. 154. In Ricarda Njoki Wahome (Suing as Administrator of the Estate of the Late Wahome Mutahi (Deceased) v Attorney General & 2 Others [2015] eKLR, the Court recognised that a duty of care arises once a Doctor or healthcare professional agrees to diagnose or treat a patient. That principle has also been applied in subsequent medical negligence decisions. 155. The duty is not a guarantee that treatment will succeed. Rather, it requires the practitioner to bring to the patient's care the degree of knowledge, skill and care reasonably expected of a competent practitioner in the relevant circumstances. 156. The Court of Appeal in BJC v Mochache & Another reaffirmed the importance of examining the standard of professional care applicable to the medical practitioner in the circumstances of the particular case. 157. In the present case, the 1st Defendant examined and treated the deceased. There was consequently a doctorpatient relationship and a corresponding professional duty. 158. I therefore find that the 1st Defendant owed the deceased a duty of care. c) Whether the 1st Defendant breached the applicable standard of medical care 159. The existence of a duty of care does not, by itself, establish negligence. The Plaintiff was required to prove that the 1st Defendant failed to exercise the degree of skill and care reasonably expected of a competent medical

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practitioner in the circumstances presented on 31st August 2016. 160. The traditional formulation in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 requires the conduct of a medical practitioner to be assessed against the standard of an ordinarily competent practitioner possessing the relevant skill. 161. The Bolam principle has been applied in Kenyan medical negligence jurisprudence, including Ricarda Njoki Wahome v Attorney General & 2 Others , where the Court recognised that a doctor is not negligent merely because another medical practitioner might have adopted a different course, provided the course adopted accords with a responsible body of professional opinion. 162. The principle does not mean that expert opinion automatically determines liability. The Court remains the ultimate arbiter of both fact and law. Expert evidence assists the Court because medical diagnosis and treatment involve specialised knowledge, but the Court must assess the reasoning, factual foundation and consistency of the expert opinion with the contemporaneous records. 163. This approach is also consistent with the reasoning in BJC v Mochache & Another, where the Court of Appeal examined the evidence as a whole in determining whether the alleged medical treatment amounted to negligence. 164. The Plaintiff principally relied upon the evidence of PW2, Dr. Lawrence Kimutai Kogos, who criticised the adequacy of the neurological examination undertaken by the 1st Defendant and placed significance on the recorded blood pressure of 152/101 mmHg and the absence of documentation of certain neurological signs. 165. I have considered that evidence carefully. The fact that PW2 identified aspects of the clinical documentation which, in his opinion, ought to have been more extensive does not, without more, establish that the 1st Defendant breached the applicable standard of care. 166. The Court must assess the conduct of the 1st Defendant against the information reasonably available to her at the time she examined the deceased, rather than with knowledge of the catastrophic neurological deterioration that occurred the following morning.

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167. The contemporaneous records indicate that the deceased's principal complaints at that time involved right ear pain and a mild headache, and that inflammation of the right tympanic membrane was identified. 168. The 1st Defendant referred the deceased for ENT review. 169. The severe neurological symptoms relied upon by the Plaintiff, including the subsequent inability to speak, walk or sit, arose the following morning. 170. This temporal distinction is important. The law does not assess a doctor's conduct by hindsight. A diagnosis which becomes apparent only after a patient's condition changes dramatically cannot automatically be treated as one which ought necessarily to have been made when the patient initially presented with a materially different clinical picture. 171. The recorded blood pressure of 152/101 mmHg was undoubtedly a relevant clinical finding. However, the Plaintiff was required to demonstrate more than the existence of an elevated reading. He had to establish that, viewed together with the symptoms then presented, the reading ought reasonably to have led a competent practitioner to undertake particular investigations or treatment which the 1st Defendant negligently failed to undertake. 172. PW2's evidence raised legitimate questions concerning the extent of the neurological examination and documentation. Those questions, however, must be distinguished from proof that the clinical decision actually taken was outside the range of reasonable professional practice. 173. I have considered the expert evidence, the contemporaneous records, the evidence of DW1 and the subsequent progression of the illness. I am not satisfied that the Plaintiff has demonstrated, on a balance of probabilities, that the 1st Defendant's management of the deceased on 31st August 2016 fell below the standard expected of an ordinarily competent practitioner confronted with the presentation then documented. 174. The fact that the deceased deteriorated dramatically the following morning cannot retrospectively transform the earlier clinical assessment into negligence. 175. In Pope John Paul's Hospital v Baby Kosozi, supra the Court warned against judging medical practitioners solely

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by the eventual outcome. The principle applies with particular force where a patient's condition changes rapidly after an earlier presentation. 176. The Plaintiff has therefore not proved that the 1st Defendant breached the applicable standard of medical care. 177. I accordingly find that breach of duty against the 1st Defendant has not been established on a balance of probabilities. d) Whether the 2nd Defendant is vicariously liable for the acts or omissions of the 1st Defendant or its employees, servants and/or agents 178. The Plaintiff's claim against the 2nd Defendant is principally founded on vicarious liability. 179. The law recognises that a hospital or healthcare institution may be liable for negligent acts committed by its employees, servants or agents in the course of their employment. 180. In M (a Minor) Amulenga & Another [2001] KLR 420 , the Court recognised that hospital authorities owe a duty to patients and may be liable for negligent acts of members of their staff. 181. The same general principle was recognised in Cassidy v Ministry of Health [1951] 2 KB 343, which has been applied in Kenyan medical negligence jurisprudence. 182. More recently, the principle was applied by the Court of Appeal in BJC v Mochache & Another, where liability of the hospital was considered in the context of negligence committed by personnel providing treatment. 183. Vicarious liability, however, presupposes an actionable wrong committed by the employee or agent. It is not a separate species of negligence imposed merely because the defendant operates a hospital. 184. In the present case, I have found that the Plaintiff has not established negligence against the 1st Defendant. 185. The Plaintiff did not establish an independent negligent act by another identified employee or agent of the 2nd Defendant which caused or materially contributed to the deceased's death. 186. Consequently, the foundation upon which the claim for vicarious liability rests has not been established.

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187. I therefore find that the claim against the 2nd Defendant on the basis of vicarious liability has not been proved. e) Whether the 3rd Defendant breached the duty of care owed to the deceased 188. The position is different in chronology because by the time the deceased arrived at the 3rd Defendant's hospital on 1st September 2016, she was seriously ill and neurologically compromised. 189. The evidence shows that she was disoriented, unable to speak and had a significantly reduced level of consciousness. 190. The Plaintiff alleges that the 3rd Defendant failed to respond with sufficient urgency, delayed investigations and imaging, inadequately monitored the deceased and administered Dormicum in circumstances in which it was unsafe. 191. The Plaintiff relied substantially upon the evidence of PW2 in support of those allegations. 192. It is necessary, however, to distinguish between three separate questions: what was done; whether what was done fell below the applicable standard; and whether any such departure caused the death. 193. The evidence demonstrates that the deceased was clinically assessed upon arrival, laboratory investigations were undertaken and CT imaging was obtained. 194. The CT scan disclosed significant intracranial abnormalities, including diffuse cerebral oedema, and further MRI/MRV imaging was recommended. 195. The deceased was admitted and arrangements were made for further management and imaging. 196. I recognise that there were questions concerning the timing and availability of imaging and that the Plaintiff was entitled to invite the Court to scrutinise whether the response was sufficiently prompt. 197. However, a delay is not actionable merely because it is retrospectively possible to identify a faster course. The Plaintiff was required to establish that the particular delay constituted a departure from the applicable standard of care in the circumstances and that it materially contributed to the death.

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198. The Court must also consider the condition in which the deceased arrived at Mater Hospital. She was already suffering from severe neurological compromise. The medical evidence demonstrates that the condition was serious and rapidly evolving. 199. This is relevant because causation cannot be established simply by identifying a temporal sequence in which hospital treatment is followed by death. 200. The Supreme Court and Court of Appeal have repeatedly emphasised that jurisdiction and liability must be founded upon legal proof rather than assumption. In the medical negligence context, BJC v Mochache & Another is particularly instructive because the Court of Appeal considered the totality of the evidence rather than treating the patient's death as conclusive proof of negligent treatment. 201. The Plaintiff also criticised the documentation of monitoring. I accept that medical records are important in determining what care was rendered. However, a deficiency in documentation does not automatically establish that the underlying treatment was negligent. 202. The Court must distinguish between poor documentation, which may itself be undesirable, and proof that the actual clinical care departed from the required standard. 203. The criticism concerning Dormicum requires separate consideration. PW2 expressed concern about sedation in a patient who was neurologically compromised. 204. The Plaintiff was, however, required to establish the precise factual and medical foundation of that allegation: the dose actually administered, the clinical reason for its administration, whether its administration was contrary to accepted practice in those circumstances, and whether it caused or materially contributed to the death. 205. The Court has considered the medication records and the evidence of the witnesses concerning the administration of Dormicum. 206. I am not satisfied that the Plaintiff has established, on a balance of probabilities, that the administration of Dormicum constituted negligent treatment. 207. More importantly, even if one were to regard the use of the medication as a matter deserving greater caution, the

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evidence does not establish that the medication caused or materially accelerated the fatal deterioration. 208. The medical records demonstrate that the deceased was suffering from severe intracranial pathology before the MRI episode. The subsequent deterioration must therefore be assessed against the pre-existing severity of her condition. 209. Having considered the totality of the evidence, I am not satisfied that the Plaintiff has established that the 3rd Defendant breached the applicable standard of care. 210. I therefore find that breach of duty against the 3rd Defendant has not been proved on a balance of probabilities. f) Whether any proved breach by any of the Defendants caused or materially contributed to the deceased's death 211. Causation is a separate and indispensable element of the Plaintiff's case. 212. Even where a departure from an accepted standard of care is established, a plaintiff must still demonstrate that the departure caused or materially contributed to the injury or death complained of. 213. In BJC v Mochache & Another, the Court of Appeal considered the question whether the evidence established that the alleged negligent treatment caused the death and emphasised the need for a causal connection between the breach and the injury complained of. 214. In the present case, the death certificate records cardiac arrest as the cause of death. That description identifies the terminal event but does not, without further evidence, establish the underlying pathological process which resulted in the cardiac arrest. 215. No post-mortem examination was conducted. 216. The absence of a post-mortem is not, as a matter of law, fatal to a medical negligence claim. A plaintiff may establish causation through other cogent medical evidence. 217. This is demonstrated by BJC v Mochache & Another , where the Court of Appeal considered the available medical evidence in determining causation. The significance of the present case is that the medical evidence does not provide the Court with the same degree of certainty concerning the precise mechanism by which the deceased died.

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218. The medical records point to a severe and rapidly evolving neurological condition. The CT findings disclosed diffuse cerebral oedema and further imaging was recommended. The subsequent imaging reportedly demonstrated serious intracranial pathology. 219. PW2 considered meningitis to be a significant possible underlying diagnosis, relying principally upon the elevated inflammatory markers and the neurological deterioration. 220. The possibility of a particular diagnosis, however, is not equivalent to proof that the Defendants negligently failed to diagnose it or that an earlier diagnosis would probably have prevented death. 221. The Court must identify the alleged negligent act with sufficient precision and then determine whether that act probably caused or materially contributed to the death. 222. The Plaintiff has not established that the alleged failure to diagnose meningitis on 31st August 2016 probably caused the death. 223. Neither has the Plaintiff established that the timing of the CT or MRI probably caused the death. 224. Nor has the Plaintiff established that the administration of Dormicum probably caused or materially accelerated the fatal deterioration. 225. The Court is therefore left with competing possibilities concerning the underlying pathology and the progression of a rapidly evolving illness. 226. It is not sufficient for the Plaintiff to demonstrate that the deceased might have had a better prospect of survival had another course been followed. The evidence must establish, on a balance of probabilities, that the negligent act complained of caused or materially contributed to the death. 227. In Pope John Paul's Hospital v Baby Kosozi, the Court's approach to medical negligence similarly demonstrates the importance of separating an unfortunate outcome from legally attributable negligence. 228. Applying that principle to the present case, I am not satisfied that the causal chain has been established. 229. There is insufficient evidence upon which the Court can conclude that, but for an identified negligent act or omission of any particular Defendant, the deceased would probably have survived.

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230. I therefore find that causation has not been proved on a balance of probabilities. g) Whether the doctrine of res ipsa loquitur applies 231. The Plaintiff pleaded the doctrine of res ipsa loquitur. 232. The doctrine permits an inference of negligence in appropriate circumstances where the occurrence is of a kind which ordinarily does not happen in the absence of negligence and where the circumstances are such that the Defendant is called upon to provide an explanation. 233. The doctrine is, however, an evidential principle. It is not a substitute for proof of negligence where the circumstances are capable of detailed medical explanation. 234. In a medical negligence case, the mere occurrence of death during or after treatment does not automatically activate the doctrine. 235. The present case involves a rapidly evolving illness, competing medical explanations, laboratory investigations, imaging, medication and expert evidence. 236. The circumstances are therefore not analogous to a case in which an unexplained event, by its very nature, ordinarily points irresistibly to negligence. 237. There are possible medical explanations for the deceased's deterioration which do not necessarily involve negligence. 238. The Plaintiff cannot therefore rely upon the mere fact that the deceased deteriorated and died after receiving medical attention to shift the substantive burden of establishing breach and causation. 239. I accordingly find that res ipsa loquitur does not establish liability in the circumstances of this case. 240. The doctrine does not relieve the Plaintiff of proving the essential elements of his claim where, as here, the circumstances are medically complex and the evidence discloses competing explanations. h) What evidential weight should be given to the KMPDB proceedings 241. The proceedings before the Kenya Medical Practitioners and Dentists Board form an important part of the evidential background to this case.

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242. The Board is a specialist statutory professional body charged with regulating medical practitioners and professional standards. Its consideration of a complaint involving the same medical treatment is therefore relevant. 243. The Board's findings are not, however, binding upon this Court in determining civil liability. The Court must make its own findings based on the evidence and the applicable law. 244. In JOO & 2 Others v Praxedes P. Mandu Okutoyi & 2 Others [2018] eKLR, the High Court recognised the relevance of professional medical regulatory material in assessing questions concerning professional conduct and medical standards. The decision is useful in demonstrating that the expertise of a professional body may assist the Court without displacing the Court's own adjudicative function. 245. More recently, BJC v Mochache & Another is particularly instructive on this point. The Court of Appeal considered the professional Board material alongside the other evidence rather than treating the Board's conclusions as automatically determinative. 246. I have adopted that approach in the present case. 247. The Board considered the medical records and the circumstances surrounding the deceased's treatment. It considered, among other matters, the deceased's presentation at AAR, the referral to ENT, her subsequent acute deterioration, her neurological state at Mater Hospital, the laboratory findings, the CT findings, the administration of medication and the events preceding her death. 248. The Board ultimately found that the initial presentation was atypical and did not clearly disclose the classical features which would necessarily have required a definitive diagnosis of meningitis at the first consultation. It further concluded that the care rendered fell within accepted standards. 249. I have not treated that conclusion as determinative. 250. I have independently considered the evidence of PW1, PW2 and PW3, the evidence of DW1, DW2 and DW3, the medical records, the expert opinion, the chronology of events and the competing explanations advanced by the parties.

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251. The fact that my conclusion is consistent with that reached by the professional Board does not mean that the Board's decision has been substituted for the Court's own assessment. 252. Rather, the consistency is significant because the specialist body's assessment provides an independent professional perspective which accords, in material respects, with the conclusion reached after this Court's own evaluation of the evidence. 253. I therefore find that the KMPDB proceedings are relevant and probative but not binding upon this Court. Preliminary issue: jurisdiction disciplinary proceedings and the professional 254. The question of jurisdiction has arisen in the course of the proceedings and requires brief clarification. 255. The Plaintiff's civil claim was instituted while the professional disciplinary proceedings before the KMPDB were pending. 256. The existence of a statutory professional disciplinary mechanism does not, without more, extinguish the ordinary civil jurisdiction to determine a claim for damages founded upon negligence. 257. The disciplinary process and the civil claim perform different functions. The professional body is concerned principally with professional regulation and discipline, whereas the civil court determines whether a tortious duty was breached and, where liability is established, the damages recoverable. 258. The Court therefore does not consider the pendency of the KMPDB proceedings, by itself, to have deprived the civil court of jurisdiction over the Plaintiff's claim for damages. 259. This conclusion must also be understood against the procedural history of the matter. 260. The High Court, in Miscellaneous Civil Application No. E1330 of 2025, Gerry Maende Waka v Juliet Thitai & 2 Others, delivered its ruling on 19th March 2026. The High Court declined to transfer the proceedings and left the substantive dispute to proceed to finality before the subordinate court.

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261. That ruling forms an important part of the procedural history of this case. It does not, however, create the jurisdiction of this Court. 262. As the Supreme Court explained in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, jurisdiction flows from the Constitution or legislation and a court cannot arrogate to itself jurisdiction beyond that conferred by law. 263. The significance of the High Court ruling is therefore that the jurisdictional question raised in those proceedings was considered by the superior court and the matter was left to proceed before this Court to finality. The jurisdiction exercised in this judgment nevertheless derives from the Constitution and statute. i) Whether the Plaintiff has proved the pleaded and/or claimed in submissions damages 264. I have found that liability has not been established. Strictly therefore, no damages are payable. 265. Nevertheless, it is appropriate to undertake an alternative assessment of damages for completeness and to demonstrate how the Court would have approached the claim had liability been established. 266. This assessment is strictly ALTERNATIVE and does not constitute an award. I. Pain and suffering 267. The Plaintiff initially proposed a higher figure for pain and suffering. In determining the appropriate conventional award, the Court must consider the period and nature of suffering established by the evidence. 268. The deceased did not die immediately upon the onset of her acute deterioration. 269. She was taken to Mater Hospital on 1st September 2016, underwent clinical assessment and investigations and remained under medical care for several hours. 270. Her condition subsequently deteriorated significantly in the evening. At approximately 6.00 p.m., she was reported to be gasping, resuscitative measures were commenced

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and she was transferred to ICU. She was pronounced dead at approximately 7.00 p.m. 271. The Court must therefore take into account the period between the acute deterioration, admission, investigations, subsequent deterioration and death. 272. In BJC v Mochache & Another [2025] KECA 60 (KLR) , the Court of Appeal awarded Kshs.100,000/= for pain and suffering in a medical negligence claim. 273. Taking into account the period during which the deceased was conscious and under medical management before the terminal deterioration, I consider Kshs.100,000/= to be a reasonable conventional award under this head. II. Loss of expectation of life 274. The deceased was 41 years old at the time of her death. 275. Loss of expectation of life is intended to compensate the estate for the shortening of the deceased's normal expectation of life. 276. Taking into account the deceased's age and the conventional awards applicable to this head, I assess damages for loss of expectation of life at Kshs.100,000/=. 277. This assessment is consistent with the Plaintiff's revised position and is within the range of conventional awards applicable to the circumstances. III. Loss of Dependency 278. The Plaintiff also sought damages for loss of dependency. 279. The evidence concerning dependency is materially different from the position in the earlier draft because additional documentary evidence concerning the deceased's earnings was subsequently admitted. 280. The Chief's letter dated 28th November 2016 identifies the deceased's survivors as: a) Gerry Maende Waka – husband/widower; b) Jair Maende – son, then aged 8 years; and c) Eliora Ayieta – daughter, then aged 5 years.

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281. The Plaintiff also produced an Affidavit of Marriage evidencing his marital relationship with the deceased. 282. I am therefore satisfied that the deceased left behind a husband and two minor children who were capable of constituting dependants for purposes of the claim. 283. During the pendency of the proceedings, the Plaintiff filed an Application dated 5th August 2026 seeking, inter alia, to introduce additional documentary evidence relating to the deceased's earnings. 284. The Application was allowed. 285. Pursuant to that order, the Plaintiff produced a payslip relating to the deceased. 286. The payslip records that the deceased was employed by Emirates Skycargo Nairobi as a Senior Cargo Assistant. 287. It records her gross monthly earnings at Kshs.145,120/= and her net monthly earnings at Kshs.103,274/=. 288. The additional evidence is important because it provides documentary proof of the deceased's actual earnings at the material time rather than requiring the Court to speculate as to her income. 289. In assessing dependency, I consider the net monthly salary of Kshs.103,274/= to be the appropriate multiplicand, as that represents the amount available after the deductions reflected in the payslip. 290. The deceased was aged 41 years. Having regard to her age, employment and the ordinary vicissitudes of life, I consider a multiplier of 19 years reasonable. 291. The deceased left a husband and two young children, aged eight and five years respectively. In those circumstances, a dependency ratio of two-thirds (2/3) is reasonable. 292. The mathematical calculation is therefore: Kshs.103,274 × 12 × 19 × 2/3 = Kshs.15,697,648/= 293. On the evidence, therefore, the mathematical loss of dependency is assessed at Kshs.15,697,648/=. 294. The above assessment raises an important jurisdictional question which must be clearly distinguished from the mathematical assessment of damages. 295. I sit in this matter as a Principal Magistrate.

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296. Section 7(1)(c) of the Magistrates' Courts Act prescribes a pecuniary jurisdiction of Kshs.10,000,000/= for civil proceedings before a Principal Magistrate. 297. The principle that jurisdiction is conferred by statute is fundamental. In Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR , the Supreme Court held that a court's jurisdiction flows from the Constitution or legislation and that a court cannot arrogate to itself jurisdiction exceeding that conferred by law. 298. The application dated 5th August 2026, by which the payslip was introduced, merely enabled the Court to receive additional evidence of the deceased's earnings. It did not amend the statutory jurisdiction of the Court. 299. The distinction is therefore between the loss mathematically demonstrated by the evidence and the monetary jurisdiction which the Court is legally empowered to exercise. 300. The mathematical dependency calculation produces Kshs.15,697,648/=. 301. That calculation does not, however, confer jurisdiction upon this Court to enter an enforceable decree for that amount. 302. It would equally be incorrect to award Kshs.10,000,000/= under loss of dependency and then add the awards for pain and suffering, loss of expectation of life and special damages, because that would result in an aggregate decree exceeding the statutory pecuniary jurisdiction of a Principal Magistrate. 303. Jurisdiction cannot be enlarged merely by dividing the damages into separate heads. 304. Accordingly, had liability been established, any aggregate monetary decree entered by this Court would have had to remain within the applicable statutory ceiling of Kshs.10,000,000/=. 305. The mathematical assessment of dependency at Kshs.15,697,648/= is therefore recorded as an assessment of the loss demonstrated by the evidence. It is not an award and does not authorise the Court to enter a decree beyond its statutory jurisdiction. SPECIAL DAMAGES

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306. The Plaintiff pleaded special damages of Kshs.616,564/=. 307. The law is settled that special damages must be specifically pleaded and strictly proved. 308. In Hahn v Singh [1985] KLR 716 , the Court of Appeal reaffirmed that special damages must not only be specifically claimed but must also be strictly proved. The degree of particularity required depends upon the nature of the particular claim. 309. The Court has examined the documentary evidence and receipts produced in support of the pleaded special damages. 310. I find that the amount strictly proved is Kshs.468,754/=. 311. Had liability been established, I would therefore have awarded Kshs.468,754/= as Special Damages. SUMMARY OF ALTERNATIVE ASSESSMENT 312. Had liability been established, the assessment would therefore have been: mathematical Pain and suffering......................................................Kshs.100,000.00 Loss of expectation life..........................................Kshs.100,000.00 of Loss of dependency.............................................Kshs.15,697,648.00 Special Damages ......................................................Kshs.468,754.00 Total.......................................................................Kshs.16,3 66,402.00 313. The sum of Kshs.16,366,402/= is an assessment only and is not a Judgment or Decree. 314. Had liability been established, the Court would nevertheless have been constrained by its statutory pecuniary jurisdiction and could not lawfully have entered an aggregate monetary decree exceeding Kshs.10,000,000/=.

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315. The admission of the payslip following the application dated 5th August 2026 does not alter that jurisdictional position. 316. Since liability has not been established, no damages are payable. The foregoing assessment is consequently academic and is included only for completeness. j) Who should bear the costs of the suit 317. Section 27 of the Civil Procedure Act provides that costs are in the discretion of the Court, although the general principle is that costs follow the event. 318. The Plaintiff has not succeeded in establishing liability against any of the Defendants. 319. Ordinarily, that would lead to an award of costs in favour of the successful Defendants. Costs, however, remain a matter of judicial discretion and must be considered in the circumstances of each case. 320. This litigation arose from the death of the Plaintiff's wife in circumstances which understandably caused the Plaintiff and the deceased's family considerable concern. 321. The case involved complex medical questions, expert evidence, professional disciplinary proceedings and difficult issues concerning causation. The Plaintiff pursued the claim as legal representative of the deceased's estate and placed before the Court evidence which required serious consideration. 322. In those particular circumstances, and having regard to the age and nature of the proceedings and the manner in which the matter was prosecuted to conclusion, I consider it just that each party bears its own costs of the suit. FINDINGS 323. Drawing together the foregoing analysis, I make the following findings: a) The Plaintiff had the requisite capacity and locus standi to institute these proceedings as the legal representative of the estate of the deceased. b) The 1st Defendant owed the deceased a professional duty of care arising from the doctor-patient relationship.

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c) The Plaintiff has not proved, on a balance of probabilities, that the 1st Defendant breached the applicable standard of medical care. d) The Plaintiff has not established an actionable negligent act or omission by an employee or agent of the 2nd Defendant. The claim against the 2nd Defendant on the basis of vicarious liability therefore fails. e) Although the deceased was seriously ill when she presented at the 3rd Defendant's hospital and although the timing of investigations, monitoring and treatment properly required careful scrutiny, the Plaintiff has not established that the 3rd Defendant breached the applicable standard of care. f) Independently of the findings on breach, the Plaintiff has not established the necessary causal connection between any alleged act or omission of the Defendants and the deceased's death. g) The doctrine of res ipsa loquitur does not, in the circumstances of this case, relieve the Plaintiff of the obligation to prove breach and causation. h) The findings of the Kenya Medical Practitioners and Dentists Board are relevant and probative but are not binding upon this Court. Having independently evaluated the evidence, I have reached a conclusion consistent with the Board's ultimate finding that actionable medical negligence was not established. i) The pendency of the professional disciplinary proceedings did not, in the circumstances of this case, deprive the Civil Court of jurisdiction to determine the Plaintiff's tortious claim for damages. j) The High Court Ruling delivered on 19th March 2026 in Miscellaneous Civil Application No. E1330 of 2025, Gerry Maende Waka v Juliet Thitai & 2 Others, forms an important part of the procedural history of the matter. The High Court declined to transfer the proceedings and left the substantive dispute to proceed to finality before the subordinate court. The jurisdiction exercised by this Court nevertheless derives from the Constitution and statute and not from the High Court ruling. k) The payslip admitted pursuant to the Application dated 5th August 2026 establishes the deceased's earnings for purposes of the Alternative Assessment of dependency. It

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does not, however, enlarge the statutory pecuniary jurisdiction of a Principal Magistrate. l) The mathematical assessment of loss of dependency based upon the deceased's net monthly earnings, a multiplier of 19 years and a dependency ratio of two-thirds is Kshs.15,697,648/=. That is an assessment of the evidence and not an award. m) The alternative mathematical assessment of all heads of damages is Kshs.16,366,402/=, but no damages are payable because liability has not been established. In any event, any enforceable aggregate monetary decree of this Court would have been subject to the statutory pecuniary ceiling applicable to a Principal Magistrate. CONCLUSION 324. The central question in this case has been whether the unfortunate death of Irene Mbinya Kieti is, in law, attributable to negligent medical care by any of the Defendants. 325. The Court has carefully considered the evidence of the Plaintiff and his witnesses, the medical practitioners and nursing witness called by the Defendants, the medical records, the expert evidence, the KMPDB proceedings, the pleadings and the submissions. 326. The evidence establishes that the deceased suffered a rapid and serious deterioration in her health and died within a short period of time. That fact is tragic and the Court does not minimise its significance. 327. The legal question, however, requires proof that the treatment complained of fell below the applicable standard of care and that the departure caused or materially contributed to the death. 328. The Plaintiff's expert evidence raised matters which deserved careful consideration, particularly concerning the adequacy of the neurological assessment, the interpretation of the inflammatory markers, the timing of investigations and the use of Dormicum. 329. Those criticisms, however, must be weighed against the contemporaneous medical records, the clinical circumstances presented at the relevant times, the evidence of the treating practitioners, the rapid progression of the deceased's condition, the competing medical

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explanations and the absence of a post-mortem examination. 330. Having considered the evidence in its totality, I am not satisfied that the Plaintiff has proved, on a balance of probabilities, that any of the Defendants breached the applicable standard of care. 331. I am equally not satisfied that the Plaintiff has established that any particular act or omission of the Defendants caused or materially contributed to the deceased's death. 332. The Court must distinguish between a course of treatment which might, with the benefit of hindsight, have been different and a course of treatment which the law regards as negligent. 333. The evidential burden cannot be discharged merely by demonstrating that another investigation, diagnosis or treatment decision might have been preferable. 334. Neither can liability be founded solely upon the fact that the deceased deteriorated rapidly and died after receiving medical treatment. 335. The Court has therefore reached the conclusion that the threshold for actionable medical negligence has not been established. DISPOSITION 336. Having considered the evidence as a whole, the pleadings, the submissions and the applicable law, I find that the Plaintiff has not established, on a balance of probabilities, that any of the Defendants breached the duty of care owed to the deceased or that any act or omission on their part caused or materially contributed to her death. 337. The Court recognises the profound loss occasioned by the death of Irene Mbinya Kieti and extends its sincere sympathy to the Plaintiff and the family of the deceased. The outcome of these proceedings should not be understood as diminishing the reality or seriousness of that loss. 338. The Court is, however, required to determine liability on the basis of the evidence presented and the applicable legal principles. Sympathy, however genuine, cannot substitute for proof of the essential elements of negligence. 339. In medical negligence claims, the fact that a patient dies following medical treatment does not, without more,

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establish negligence or liability. The Plaintiff was required to prove the requisite duty of care, breach and causation to the required standard. Upon consideration of the evidence, including the medical records, expert evidence and material arising from the proceedings before the Kenya Medical Practitioners and Dentists Board, I am not satisfied that this threshold has been met. 340. Accordingly, the Plaintiff’s suit against the 1st, 2nd and 3rd Defendants is hereby dismissed. 341. Each party shall bear its own costs of the suit. 342. Before concluding, I place on record the Court’s appreciation to learned counsel for all the parties for their assistance in the conduct and determination of this matter. The Court appreciates the preparation undertaken, the examination and cross-examination of witnesses, the extensive medical and professional material placed before it, and the written and oral submissions made in support of the respective cases. 343. The Court also acknowledges the participation of the parties throughout the proceedings. The determination herein has been made upon a careful consideration of the evidence and in accordance with the applicable law. 30 Days Right of Appeal. __________________ L. A. MUMASSABBA PRINCIPAL MAGISTRATE 7.10.2026 JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 7TH DAY OF OCTOBER ,2026 In the Presence of: Mr.Allan Kibet Holding Brief for M/s Eunice Lumallas for the Plaintiff Mr.Mbichire for the 1st and 2nd Defendant 3rd Defendant :Absent Court Assistant: Phoebe.

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