COR (Suing on his own Behalf and as the Personal Representative of the Estate of MAO - Deceased) & 2 others v Kenya Hospital Association (Trading as) The Nairobi Hospital & 2 others (Civil Suit 148 of 2015) [2023] KEHC 19500 (KLR) (Civ) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19500 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 148 of 2015

CW Meoli, J

June 29, 2023

Between

COR (Suing on his own Behalf and as the Personal Representative of the Estate of MAO - Deceased)

1^st Plaintiff

EOO

2^nd Plaintiff

JHO, JOO & MEAO (Minors Suing Through their Father and Next Friend COR)

3^rd Plaintiff

and

Kenya Hospital Association (Trading as) The Nairobi Hospital

1^st Defendant

Prof. Samson Wanjala

2^nd Defendant

Dr. Lucas Patrick Were

3^rd Defendant

Judgment

1.COR (a personal representative of the estate of MAO - Deceased) (hereafter the 1^st Plaintiff), EOO (hereafter the 2^nd Plaintiff) and JHO, JOO & MEAO (minors suing through next friend), (hereafter the 3^rd Plaintiff) sued the Kenya Hospital Association, Prof. Samson Wanjala and Dr. Lucas Patrick Were (hereafter the 1^st, 2^nd and 3^rd Defendant, respectively ) seeking various reliefs, including general damages under the Fatal Accident Act and under the Law Reform Act, special damages of Kshs. 5,415,403.58/- and costs of the suit.

2.It was averred that at all material times to the suit, the 2^nd and 3^rd Defendant were qualified medical practitioners carrying out their practice within the premises of the 1^st Defendant and in the alternative the 2^nd and 3^rd Defendant were at all material times to the suit, employees, servants and or agents of the 1^st Defendant who had full supervisory and direct control over them and who had engaged them as medical specialists on call to provide specialized diagnosis, treatment, care, attendance and advice at the hospital whenever required.

3.It was further averred on 21.04.2012 the Deceased was under the care of the Defendants when she was taken to the operating theatre in the labour ward of the 1^st Defendant for delivery by way of caesarian section during which operation, and subsequently thereafter, the Deceased suffered acute loss of blood, low blood pressure, and related which led to multiple severe cardiac arrests, brain damage and her untimely demise. That the death is entirely attributable to deliberate and negligent acts, omissions and or breach of duty of care by the Defendants.

4.On 09.07.2015 the 2^nd and 3^rd Defendant filed a statement of defence denying the key averments in the plaint and liability and averred in the alternative that, they did apply their professional skill, expertise and knowledge, in accordance with the professional standards required of them as duly qualified medical specialists, in providing medical care, advice, diagnosis and treatments to the Plaintiffs.

5.On 16.03.2016 the 1^st Defendant filed a statement of defence denying the key averments in the plaint and liability and averred that the 2^nd and 3^rd Defendants were at all material times independent consultants with admitting rights to the hospital. That the 1^st Defendant did not supervise or control the manner in which the consultants care for their patients ,hence if the Deceased suffered as alleged in the plaint, it was not in consequence of the 1^st Defendant’s actions.

6.The Plaintiffs filed reply to the Defendants statements of defence by joining issues with the Defendants and reiterating the averments in their plaint. The foregoing thus formed the state of pleadings prior to the hearing of the suit.

7.On 07.06.2022 a consent judgment on liability was recorded to the effect that “judgment on liability be and hereby entered at 100% for the Plaintiffs against the Defendants, with each Defendant bearing one third (1/3) of the decretal sum and costs.” On 18.10.2022 parties further adopted a consent dated 07.10.2022 whose net effect was that the issue of quantum was to be determined on the basis of witness statements, admitted documents and written submissions filed by the respective parties.

8.Thereafter, parties hereto filed and exchanged written submissions.

9.The parties complied. Counsel for the Plaintiffs by his submissions set out out the facts leading to the suit herein. Addressing the court on the claim under the Law Reform Act, and in urging an award of Kshs. 3,000,000/- for pain and suffering, counsel submitted that during the harrowing events between 21.04.2012 and 24.04.2012, the Deceased suffered prolonged unattended internal hemorrhage, prolonged hypoxia and hypotension triggering a cardiac arrest upon being abandoned in the labour recovery ward without close monitoring. Resulting in a cardiac arrest and her fall off a high hospital bed to the floor, the inconveniences of excruciating and highly intrusive medical procedures, lab tests, multiple surgeries including the unsuccessful subtotal hysterectomy, medical complications, organ failure and two successive cardiac arrests in the ICU.

10.The decisions in Prisca Njeri Kamau (Suing as administrator and personal representative of the Estate of Nicholas Gideon Kamau) v Raymond O. Oigara & 2 Others [2017] eKLR and Peter Mule Muthungu (suing as the administrator and personal representative of the Estate of Jane Mueni Ngui) v Kenyatta National Hospital [2020] eKLR were relied on in the foregoing regard.

11.On loss of expectation of life counsel called to aid the decision in Trustees Registered Maua Methodist Hospital v Penina Thirindi Koome [2021] eKLR, in urging an award of Kshs 200,000/-, asserting that the expectant Deceased mother was in good health looked forward to a safe delivery and expected to nurture her young family affectionately and raise her children to maturity.

12.Concerning the awards on loss of dependency, counsel anchored his submissions on the decisions in Haji Ashraf & Another v Sidi Masha Kalama & Another (legal representative of the estate of Kenga Fondo (Deceased) [2021] eKLR and Nguku Julius alias Julius Kioko Nguli v Stephen Musau Kilonzo & Another [2019] eKLR on the exercise of discretion in assessing quantum damage. It was further submitted that at the time of her untimely demises the Deceased was 47 years old, in good health, living a happy and vigorous life, being newlywed and expecting triplets and was employed by the United Nations Nation Children’s Fund (UNICEF) as a Communications Officer earning a salary of Kshs. 219,156.90/- and expected to retire on 30.04.2026. That subsequent to her demise, the 1^st Plaintiff had to solely take up both financial and social responsibilities in respect of the minors. Counsel therefore urged the court to award Kshs. 29,586,184.20/- calculated as follows 219,156.92 x 15 x 12 x ¾.

13.Submitting on the award for mental and emotional distress, counsel restated the chain of events leading to the Deceased’s untimely demise and cited the decision in Fida & 3 Others v Attorney General & 2 Others, East Africa Center for Law & Justice & 6 Others (Interested Parties) and Women Link Worldwide [2019] eKLR in urging the court to award of Kshs. 5,000,000/- under this head. In view of the tremendous pain and trauma suffered by the 1^st Plaintiff and the immediate role he played in the lives of and ensuring the upkeep, health, and general wellbeing of the triplets.

14.On loss of consortium, citing the decision in PBS & Another v Archdiocese of Nairobi Kenya Registered Trustee & 2 Others [2016] eKLR counsel submitted that an award of Kshs. 2,000,000/- would be reasonable compensation considering the peculiar circumstances herein, the plight of the elderly 1^st Plaintiff and the tender age of the triplets who lost their mother immediately after birth. Lastly, concerning the award of special damages, counsel placed reliance on the decisions in Jackson Onyango Aloo v Jumba Aggrey Idaho and 2 Others [2019] eKLR and Leli Chaka Ndoro v Maree Ahmed & S.M Lardhib [2017] eKLR to assert that incurred medical expenses are a definitive expense to the estate of the Deceased, out of contributions from the Deceased’s salary. Therefore, the Plaintiffs strictly proved the incurred pleaded special damages to the tune of Kshs. 5,415,403.58/-.

15.Counsel for the 1^st Defendant while responding to the Plaintiffs submissions under the Law Reform Act, urged an award of Kshs. 350,000/- for pain and suffering citing the decision in PBS & Another v Archdiocese of Nairobi Kenya Registered Trustee & 2 Others [2016] eKLR. Pointing out that s the Deceased passed away on the 3^rd day after her caesarean section, having suffered 2 cardiac arrests followed by emergency surgery to remove her uterus. Concerning the award under loss of expectation of life, counsel placed reliance on the decision in Peter Ngwili Wambua (suing as legal representative of the Estate of Sammy Mboya Wambua (Deceased) v Ali Mwanzia Kelly [2021] eKLR in proposing an award of Kshs. 100,000/-

16.Submitting on damages for loss of dependency under the Fatal Accident Act, counsel in urging an award of Kshs. 13,341,300/- calculated as 158,825 x 14 * 12 * ½, relied on the decision PBS & Another (supra). He argued that the Deceased’s net earnings should be applied and that since both the Deceased and the 1^st Plaintiff were both employed, a dependency ratio of ½ was adequate.

17.Responding to the Plaintiffs submissions on loss of consortium, counsel called to aid the decision in Acceler Global Logistics v Gladys Nasambu Wasbwa & Another [2020] eKLR to argue that in the event of death, such an award was not available. Regarding the claim for mental and emotional distress it was argued that no professional evidence has been tendered in support. The decision in LWW (suing as the Administrator of the Estate of BMN (Deceased) v Charles Githinji [2019] eKLR was cited here.

18.On special damages it was contended that the hospital medical expenses were settled by the Deceased’s insurance company as such the Plaintiffs could not claim expenses not incurred by them. That from the Plaintiffs bundle of documents special damages that were specifically pleaded and proved was to the tune of Kshs. 2,393,900/-. In conclusion it was submitted that the total sum of damages awardable against the Defendants is Kshs. 16,185,200/-.

19.On the part of the 2^nd and 3^rd Defendants, in countering the Plaintiffs submissions under the Law Reform Act, urged an award of Kshs. 350,000/- for pain and suffering. Counsel relying on the decisions in Monicah Wairimu Maina v AIC Kijabe Hospital & Another [2020] eKLR and Karim Ashakala Sayani & Farin Ashakala Sayani (suing as legal representatives of Ashakali Kanji Karim Sayani) v Stephen Ngahu & Another [2019] eKLR contended that the Plaintiffs’ proposal in relation to pain and suffering for 3 days is excessive, pointing out that the Deceased was under strong medication before her untimely demise. For loss of expectation of life, counsel called to aid the decision in Prisca Njeri Kamau (supra) in urging the court to make and award of Kshs. 100,000/-.

20.Submitting on damages for lost dependency, counsel urged an award of Kshs. 9,529,500/- calculated as 158,825 x 10 x 12 x ½. Counsel relied on the decisions Isaac Kimani & Another v Hellena Wanjiru Rukanga [2014] eKLR and Leonard Nturibi Ambutu & Another v Rufus J.K Kihato & Another [2018] eKLR to contend that the Deceased was 47 years old at death and given the vicissitudes of life she may not have been in gainful employment until retirement age. Moreover, that her gross earnings were obviously subjected to taxation and that since the Deceased and the 1^st Plaintiff were both employed at the time, it was plausible to conclude that they jointly contributed towards expenses of their household.

21.Regarding the 1^st Plaintiff’s claim based on mental anguish, emotional distress and loss of consortium it was argued that other than the same not being ordinarily awardable by Kenyan courts, in the instant case, the claim was not specifically pleaded by the Plaintiffs and is not awardable. The decisions in Innocent Katie Makaya Denge v Peter Kipkore Cheserek & Another [2015] eKLR and Accelar Global Logistics (supra) were cited in support of the foregoing. Finally, on special damages, counsel reiterated the 1^st Defendant’s submissions and asserted that the total amount specifically proved by receipts is Kshs. 2,393,900/-. In conclusion, the court was urged to award damages to the tune Kshs. 12,373,400/- in total, subject to liability.

22.By way of supplementary submissions, counsel for the Plaintiffs while responding to the Defendants’ submissions on pain and suffering reiterated that the award of Kshs. 3,000,000/- is justified as longer admission was not synonymous with protracted pain and suffering. On loss of expectation of life counsel reiterated that the award of Kshs. 200,000/- is properly supported. Concerning loss of dependency, it was argued that the 1^st Plaintiff’s witness statement alongside the submissions amply support a dependency ratio of ¾.

23.In respect of loss of consortium, it was submitted that the decision in PBS & Another (supra) was more relatable to the instant matter as it involved a question of medical negligence and that such claim need not be specifically pleaded as it is not a special damage claim. On mental anguish and emotional distress, it was argued that the very nature of the claim is a matter of evidence in this instance contained the 1^st Plaintiff witness statement and not necessarily requiring a medical report. It was similarly argued that the claim need not be specifically pleaded and is awardable under general damages. Finally regarding special damages, it was submitted that the undisputed sum was Kshs. 2,393,000/- and that the Defendant’s argument in resisting the claim for medical expenses lacks merit. In conclusion, counsel reiterated the Plaintiffs earlier submissions and urged the court to award under the various heads as submitted.

24.The court has considered the pleadings as well as the submissions filed by the respective parties. As stated earlier, the issue of liability was settled by way of the consent dated 08.03.2022 and endorsed by this court on 07.06.2022. Consequently, the sole question for determination relates to awardable damages. The award of damages is ordinarily based on evidential material and respective pleadings before the court, and upon due consideration of established principles.

25.The Court of Appeal in Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, stated that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”

26.The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. The Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say;-“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.” The above provision provides for the legal burden of proof.However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”

27.The Plaintiffs by their plaint averred at paragraph 16, 17 and 18 that: -“16.Particulars pursuant to the Fatal Accidents Act are as follows:-a.The names of the persons for whose benefit this action is brought are as follows:-Clifford Okello Rachuonyo–Widower–21.03.1956JHO –Son–21.04.2012JOO–Daughter–21.04.2012MEAO–Daughter–21.04.2012b.The nature of the claim in respect of which damages are sought are as follows:-At the time of her death, the deceased was 47 years of age. She enjoyed good health and lived a happy vigorous life. She was employed by UNICEF as a communication officer. He gross monthly income was Kshs. 208,379.25/-. She has prospects of considerable advancement in her career. He income was likely to increase progressively from time to time until retirement age of 62 years………17.The widower was dependent on the Deceased for support and the children would have as well depended on her for support, and by her death, they have lost this means of support and have suffered loss and damage.18.Further by reason of the matters aforesaid, the Deceased sustained grievous and fatal bodily injuries described above, and by her sudden death, her life was considerably shortened, in consequence whereof her estate has suffered loss and damage.Particulars of Special damagesMedical expert expenses – Kshs. 500,000.00Hospital medical expenses – Kshs. 2,451,503.58Funeral expenses – Kshs. 2,463,900.00Totals Kshs.5,415,403.58” (sic)

28.In the assessment of damages, the guiding principles were spelt out by the Court of Appeal in SJ v Francessco D. Nello & Another [2015] eKLR as follows: -“The guiding principle in the assessment of damages has been the subject of numerous authorities. For the purposes of this case, we refer to the Ossuman Mohammed & Another vs. Saluro Bundi Mohamud, CA 30/1997 (unreported) wherein the following passage, in the case of Kigaragari vs. Aya (1982 – 1988), KAR 768 is employed;“Damages must be within limits set out by decided cases and also within limits the Kenyan economy can afford. Large awards are inevitably passed on the members of the public, the vast majority of whom cannot afford the burden in the form of increased costs of insurance or increased fees. Over time, courts have held that damages should not be so inordinately low or so inordinately high as to be a wholly erroneous estimate of damage.”

29.With the foregoing dicta in mind, regarding general damages sought for pain and suffering, a perfunctory perusal of PExh.2, PExh.36, PExh.40, PExh.41, PExh.42, PExh.43, PExh.44 and PExh.49 illustrates that the Deceased sustained severe bleeding losing between 1.5 -2.0 litres of blood . PExh.49 stated that “…….the bleeding at the first surgery was not completely stopped. The continuation of the bleeding made the condition of the Deceased to deteriorate and to eventually suffer cardiac arrest. Due to the bleeding that was missed for a long period the deceased developed Disseminated Intravascular Coagulopathy (DIC).”

30.The Deceased was admitted for elective (CS) on 19.04.2012, booked for surgery on 21.04.2012, underwent two (2) surgeries thereafter and succumbed on 24.04.2012. I have considered the decisions cited in support of and opposition to awards urged by the respective parties being Prisca Njeri Kamau (supra) and Peter Mule Muthungu (supra), PBS & Another (supra), Monicah Wairimu Maina (supra) and Karim Ashakala Sayani (supra) where the courts awards ranged from 2,000,000/- to 350,000/- for different durations of pain and suffering. I am satisfied that an award of Kshs. 500,000/- for pain and suffering would be adequate in this instance.

31.Regarding loss of expectation of life, the court has considered the Plaintiff’s proposal of Kshs. 200,000/- and the Defendant’s counter proposal of Kshs. 100,000/- alongside the decisions cited in support of the said proposals. Considering inflation trends over the years and the circumstances leading to the untimely demise of the Deceased, I would award the sum of Kshs. 150,000/= for loss of expectation of life (See;- Sitati J in Eshapaya Olumasayi & Another -Vs- Minial H. Lalji Koyedia & Anor. [2008] eKLR).

32.On lost dependency, the Plaintiffs pleaded that at the time of the Deceased’s untimely demise, she was an employee of UNICEF working as a communications officer; that she enjoyed good health and lived a happy vigorous life and had prospects of advancement in her career. She was 47 years old at the time of demise (See PExh. 2 & PExh.7) having delivered three healthy triplets (See PExh. 4, PExh. 5 & PExh.6). As proof of employment the Plaintiffs relied on PExh. 9, Pexh.10 & Pexh.50. The latter two documents appear to support different earnings in respect of the Deceased.

33.In the plaint, the income pleaded was Kshs. 208,379.25/- p.m which appears to agree with PExh.10 whereas PExh.50 captures the Deceased’s earnings as Kshs. 219,156.92/-, the former which seems to be a pay slip with the latter being a letter addressed to the 1^st Plaintiff. The Defendants challenged the Deceased’s earnings by arguing the applicable award under the same was the net salary of Kshs. 158,825/- and not the gross award as proposed by the Plaintiffs. The assessment of damages for lost dependency is not a precise science but an exercise based on settled principles and sensible estimates based on evidence.

34.The Court of Appeal in Sheikh Mushtag Hassan Vs Nathan Mwangi Kamau Transporters & 5 others (1985) eKLR cited with approval the decision in Gammel vs Wilson (1981) 1ALLER where it was held that;-“[ I]f sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach mathematical certainty, the court must make the best estimate it can. In civil litigation, it is the balance of probability which matters….”

35.The court has perused the documentary evidence in support of the Deceased’s income while also considering the respective parties’ submissions. The Plaintiffs seem to have based their submissions regarding the Deceased’s earnings on PExh.50 as opposed to PExh. 10. Reviewing PExh.10, no taxes are indicated therein. The court is at a loss as to the source of the Defendants’ suggested earnings of Kshs. 158,825/-. As an employee of UNICEF, United Nation Agency and by dint of Article II Section 7 of Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly of the United Nations 1946, and ratified by Kenya in 1965, the salaries, grants and allowances paid by the United Nations would be normally exempted from income tax. Hence Pexh.10 does not contain deductions by way of PAYE as expected for ordinary pay slips.

36.Consequently, the court finds that the applicable earning of Kshs. 208,379.25/- as pleaded in the plaint was proved on a balance of probabilities. Regarding the multiplier, the Plaintiffs proposes 15 years, with the 1^st Defendant and 2^nd & 3^rd Defendant countering with a figure of 14 and 10 years respectively. The Deceased passed on in April 2012 and from PExh. 50 she was expected to retire in the in April 2026. Given the foregoing if she has lived it was expected that she would have worked for another 14 years. The court is inclined to agree with the 2^nd and 3^rd Defendants that given the vicissitudes of life it is not certain that she would have worked until retirement age. Thus, in the court’s view given, a multiplier of 10 years appears more appropriate.

37.The Deceased was married (See PExh.3) and at the time of her untimely demise has just given birth to three healthy triplets (PExh. 4, PExh. 5 & PExh.6). But for her demise, the Deceased would likely have a substantial part of her earnings toward supporting her family. However, the dependency ratio of 3/4 proposed by the Plaintiffs appears unrealistic in the circumstances especially given the undisputed fact that the 1^st Plaintiff was an advocate with his own law practice at the material time. Hence, in the court’s view a dependency ratio of 1/2 as suggested by the Defendants appears reasonable. Thus, general damages for lost dependency would work out as follows: 10 years x 12 x Shs 208,379.25 x 1/2 = Shs 12,502,755.00/=.

38.In respect of the claim for damages for mental anguish, emotional distress and loss of consortium, the Plaintiff proposed a cumulative award of Kshs. 7,000,000/-. The Defendants, in addition to disputing the applicability of the awards argued that the awards proposed were not specifically pleaded by the Plaintiffs. The court having taken the liberty of perusing the Plaint and concurs with the Defendants that the said claims were not pleaded in the plaint. In declining these claims, the court is guided by the wisdom of the Court of Appeal in North Kisii Central Farmers Limited v Jeremiah Mayaka Ombui & 4 others [2014] eKLR where in was stated that; -“The complaint running through the submissions by the learned counsel for the appellant in this appeal was that the learned judge wrote and delivered a judgement on issues that were not pleaded in the plaint and which were therefore not be before the learned judge for determination.……One of the issues for determination on appeal in the case of Abdul Shakoor Sheikh v Abdul Najeid Sheikh Civil Appeal No. 161 of 1991 (ur) was the complaint that the trial judge dealt with an issue which was not properly before him as it had not been pleaded in the plaint. It was also contended in that appeal that in making this part of the order dependent on a non-existent appeal the judge grossly erred in that he granted a relief which had not been sought. This court differently constituted agreed and held that a plaintiff is not entitled to reliefs which he has not specified in his statement of claim as pleadings play a very pivotal role in litigation. The court cited a quote from the authors Bullen and Leake (12^th edition) page 3 under the rubric Nature of Pleadings:-“The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which the parties can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the two fold purposes of informing each party what is the case of the opposite party which he will have to meet before and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial.”

39.The Court proceeded to state that:-It was held in the case of Galaxy Paints Co. Limited v Falcon Guards Limited [2000] 2EA 385 that the issues for determination in a suit generally flowed from the pleadings and a trial court could only pronounce judgement on the issues arising from the pleadings or such issues as the parties framed for determination. It was further held that unless pleadings were amended parties were confined to their pleadings. This position had been taken in the earlier case of Gandy v Caspair [1956] EACA 139 where it was held that unless pleadings were amended parties must be confined to those pleadings. It was further held that to decide against a party on matters which do not come within the issues arising from the dispute as pleaded clearly amounts to an error on the face of the record.In a judgement delivered recently by this Court on 14^th February, 2014 in Romanus Joseph Ongombe & others v Cardinal Raphael Ochieng Otieno & others (Kisumu) Civil Appeal No. 20 of 2011 (ur) it was held that a judgement whose basis was on issues not founded on the pleadings was a nullity. This Court proceeded in that case to remit the matter to the High Court for retrial.

40.The Court concluded by stating that:The position flowing from all the previous judgements we have considered herein is that a judgement must be based on issues arising from the pleadings and the trial judge is not at liberty, as the trial judge in the case leading to this appeal did, to depart from the pleadings or the case before the court to write and deliver a judgement on issues that are not before the court. The difference would of course be where the parties introduce an unpleaded issue in the course of the trial and leave that issue for the court to decide. The court would in that event be entitled to make a necessary finding - See Odd Jobs Mubia [1970]EA 476 where it was held that a court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for a decision.The appellant’s complaint in this appeal is basically that the learned judge delivered a judgement on issues that were not pleaded and which were not before the court. We agree. The learned judge adopted a path of doing what she perceived to be “justice” to the parties but in the event she erred by departing from the general rule that issues for determination in a suit generally flowed from the pleadings and the learned judge could only pronounce judgment on the issues arising from the pleadings.” (Emphasis added).

41.Concerning special damages, it is trite that they must be specifically pleaded for and strictly proved. The undisputed sum on special as submitted by the Defendants seems to be Kshs. 2,393,900/- however the Plaintiffs have argued that the undisputed sum ought to be Kshs. 2,493,900/-. From the plaint the latter figure was pleaded by the Plaintiffs as funeral expenses. The court having taken the liberty to review PExh.18 – PExh.28 is convinced that the Plaintiffs specifically pleaded and proved funeral expenses in the sum of Kshs. 2,493,900/- on a balance of probabilities and the same is awarded as funeral expenses.

42.The medical expert expense of Kshs. 500,000/- despite being pleaded was not specifically proved.

43.Now moving on to the disputed hospital medical expense of Kshs. 2,451,503.58/-, the Defendants have argued having been settled by the Deceased’s insurance, this amount is not recoverable by the estate of the Deceased. The Plaintiff vehemently argued to the contrary. In the past superior courts have held before those medical expenses covered by an insurer, cannot be recovered by the insured. The decision in Jackson Onyango Aloo (supra)while only of persuasive force is not adopted by this court while the decision in Leli Chaka Ndoro (supra) was sound to the effect that doctrine of subrogation does not apply to personal injuries claims. Similarly, the decision therein may have only been persuasive and not binding on this court.

44.In the instant matter, it is the court’s understanding that the Plaintiffs claim for Kshs. 2,451,503.58/- was essentially invoked pursuant the principles of insurance of subrogation on account of indemnity. The latter decision and present issue were recently addressed by the Court of Appeal in Forwarding Company Limited & another v Kisilu; Gladwell (Third party) (Civil Appeal 344 of 2018) [2022] KECA 96 (KLR) wherein it was observed in extenso that;-“67.On whether the respondent was entitled to the sums paid to offset the medical bills by the insurance company, the respondent appears to be invoking the doctrine of subrogation. The word subrogation is defined by Black’s Law Dictionary 9th Edition at page 1563 as follows:“The substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies or securities that would otherwise belong to the debtor.”68.The principle of subrogation applies where there is a contract of insurance. If the “insured risk” takes effect and the insurer settles the insured’s claim, then the insurer is entitled to diminish the loss suffered by its insured by seeking compensation from the party who caused the loss. See Leli Chaka Ndoro v. Maree Ahmed & S.M. Lardhib [2017] eKLR.69.In “General Principles of Law” 6th edition (E.R. Hardy Ivamy), the author states as follows at page 493: -“In the case of all policies of insurance which are contracts of indemnity the insurers, on payment of the loss, by virtue of the doctrine of “subrogation’ are entitled to be placed in the position of the assured, and succeed to all his rights and remedies against third parties in respect of the subject-matter of insurance.Thus, subrogation applies to marine insurance policies and to many non-marine policies, e.g. a fire, motor, jewelry, contingency insurance providing cover against non-receipt of money within a given time, fidelity, burglary, solvency, insurance of securities, and an export credits guarantee policy. But it does not apply to life insurance nor to personal accident insurance, for these are not contracts of indemnity.”70.In “Bird’s Modern Insurance Law” (7th edition) - John Birds, the author states as follows in chapter 15 under“subrogation”: -“This chapter is concerned with the fundamental correlative of the principle of indemnity, namely, the insurer’s right of subrogation. Although often in the insurance context referred to as a right, it is really more in the nature of a restitutionary remedy. The “fundamental rule of insurance law” is “that the contract of insurance contained in a marine or fire policy is a contract of indemnity, and of indemnity only, and this contract means that the assured, in the case of a loss against which the policy has been made, shall be fully indemnified, but shall never be more than fully indemnified”. A number of points arise simply from that oft-cited dictum and the doctrine of subrogation has many ramifications that must be examined. It is convenient first, though, to consider some general points-: subrogation applies to all insurance contracts which are contracts of indemnity, that is, particularly to contracts of fire, motor, property and liability insurance. It does not apply to life insurance nor prima facie to accident insurance.”71.In this case, the respondent’s father (PW2) testified that that his insurer paid a sum of Kshs.5,318,755.00 towards the doctor’s fees and hospital bill for the respondent. PW2 testified that he was claiming this money as the respondent’s father and that he was entitled to the same although the money was paid was by his insurance company. The trial court after in its judgment stated as follows:“In this case the plaintiff did not pay any premiums for the medical insurance, it was his father, PW2 who claimed that his insurance company paid some medical expenses and therefore PW2 or Catherine Kisenga under whose name some bills were issued should have been enjoined to this suit to claim for such reimbursement of special damages incurred on their dependant/son-the plaintiff herein and settled by the insurance company.”72.We agree with the finding of the trial court on this issue. It is PW2 who paid premiums to the insurance company and not the respondent and therefore it is PW2 who could have claimed for reimbursement of the same. PW2 was not a party to the suit but a witness of the respondent. Therefore, there could not have been any basis for the trial court to award the entire sum of Kshs.5,318,755.00 paid by PW2’s insurer.73.We have looked at the Ndoro case (supra) cited by the respondent and note that the circumstances therein are distinguishable from those in the instant case. In the Ndoro case, it was the appellant who had taken out an insurance policy and paid for the premiums. In this case, it is not the respondent but his father who took out the insurance and paid the relevant premiums. Therefore, in the present case even if the respondent’s father would have been entitled to any form of reimbursement, the court could not have had any legal basis of awarding the same as he was not named as a party to the suit. We accordingly make the finding that the respondent is not entitled to the sum of Kshs.5,318,755.00 paid by his father’s insurance company.”

45.No authority has been tendered to demonstrate that the estate of a deceased insured is entitled to recover monies paid by his insurer to settle medical claims incurred during his treatment. In this case, the Deceased had been initially admitted for a delivery and after complications was put under surgical and other interventions. It is not immediately possible to separate and assign the related expenses. Consequently, it seems at best that, the Deceased’s insurer was probably the proper party to claim reimbursement of the settled sum Kshs. 2,451,503.58/- by dint of the doctrines of indemnity and subrogation. And therefore this court is inclined to agree with the Defendants submissions that the amount is not awardable in this instance. The same is denied.

46.In the result, judgment ought to be entered in favour of the Plaintiffs against the Defendants subject to the requisite liability as follows: -a.General damages for:i.Pain and Suffering - Kshs.500,000/-ii.Loss of Expectation of life – Kshs.150,000/-iii.Loss of Dependency – Kshs. 12,502,755/-iv.Loss of Consortium – NILv.Mental & Emotional Distress – NILvi.Special damages – Kshs.2,493,900/-Total - Kshs.15,646,655/-

47.The Plaintiffs also ought to be awarded the costs of the suit and interest Liability in respect of the sums awarded will be subject to the liability ratio settled between the Defendants pursuant to the consent recorded on 7.06.2022.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 29^TH DAY OF JUNE 2023. C.MEOLI JUDGEIn the presence of:For the Plaintiffs: Mr. KiuraFor 1^st the Defendant: Mr. WaweruFor the 2^nd and 3^rd Defendants: Ms. Koech h/b for Mr. MwihuriC/A: Carol

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COR (Suing on his own Behalf and as the Personal Representative of the Estate of MAO - Deceased) & 2 others v Kenya Hospital Association (Trading as) The Nairobi Hospital & 2 others (Civil Suit 148 of 2015) [2023] KEHC 19500 (KLR) (Civ) (29 June 2023) (Judgment)

COR (Suing on his own Behalf and as the Personal Representative of the Estate of MAO - Deceased) & 2 others v Kenya Hospital Association (Trading as) The Nairobi Hospital & 2 others (Civil Suit 148 of 2015) [2023] KEHC 19500 (KLR) (Civ) (29 June 2023) (Judgment)

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