Karim v Naughten [2023] KEHC 26220 (KLR)

Karim v Naughten (Civil Appeal 672 of 2019) [2023] KEHC 26220 (KLR) (Civ) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26220 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 672 of 2019

JN Njagi, J

November 30, 2023

Between

Amer Yusuf Karim

Appellant

and

Andrian Peter Martin Jonathan Naughten

Respondent

(Being an appeal from the judgment and decree of Hon. A. M. Obura (Mrs), SPM, in Nairobi MCC Civil Case No. 8614 of 2016 delivered on 18/10/2019)

Judgment

1. The Respondent herein brought suit against the Appellant at the lower court claiming general damages for pain and suffering together with special damages of Ksh. 953,685/= for failure by the Appellant to carry out proper post-operative follow up after conducting a total right knee replacement surgery on the Respondent on 19th August 2013 at Agha Khan Hospital, Nairobi. The Respondent contended that as a result of inaction by the Appellant, he developed an infection which necessitated him to travel to South Africa for further surgery on recommendation by another specialist.

2. It was the case for the Respondent that the Appellant failed to enter appearance when served and interlocutory judgment was entered against him. That his application to set aside the interlocutory judgment was dismissed by the lower court. That the Appellant moved to the High Court and sought for stay of proceedings. That stay of proceedings was granted and the Appellant was granted leave to file an appeal within 30 days of the order of the High Court. That he did not comply with the orders and the stay orders granted by the High Court stood vacated. The case at the lower court then proceeded by way of formal proof.

3. During the formal proof counsel for the Appellant cross-examined the respondent at length. Both Counsels for the parties filed written submissions. The trial court in a judgment delivered on 18/10/2019 held the Appellant 100% liable by dint of interlocutory judgment having been entered against the appellant. The Magistrate awarded the respondent Ksh.4,000,000/= in general damages and special damages of Ksh.953,685/=. The Appellant was aggrieved by the judgment and filed the instant appeal.

4. The grounds of appeal are that:1. That the learned trial Magistrate erred in law and in fact in awarding the Respondent Kshs.4,000,000/- as general damages and Kshs953,685 as special damages which awards were inordinately high and without any merit despite having clear evidence that the Respondent’s incapacity was not caused by the Appellant but was due to the effects of undertaking a knee surgery procedure which effects had been clearly explained to the Respondent by the Appellant prior to conducting the surgery and the Respondent voluntarily elected to have the surgery.2. The learned trial Magistrate erred in law and in fact in failing to appreciate that the Respondent’s alleged injuries were never occasioned by the Appellant during the surgery process but were merely a manifestation of the resultant risks of undertaking a knee replacement surgery, which risks the Appellant had dutifully explained to the Respondent before conducting the surgery and the Respondent and the Respondent voluntarily elected to have the surgery.3. That the learned trial Magistrate erred in law and in fact by disregarding the Appellant’s submissions on quantum and wholly relying on the Respondent’s submissions in arriving at her decision.4. That the learned trial Magistrate erred in law and fact by considering irrelevant factors and leaving out relevant ones in arriving at his judgment.5. That the learned trial Magistrate’s judgment was arrived at in a cursory and perfunctory manner without properly analyzing evidence presented in the suit on quantum and the entire award against the appellant is unjustified, excessive and oppressive.

5. The appeal proceeded by way of written submissions.

Appellant`s submissions 6. Counsel for the Appellant submitted that the Respondent was already suffering from osteoarthritis prior to the knee replacement surgery. That the Appellant examined him and diagnosed him with severe knee osteoarthritis which was confirmed by x-rays that the Respondent tendered to the Appellant. He recommended surgery to which the respondent consented. That the Appellant explained to the Respondent the associated risks to the surgery that included possibility of infection after surgery. It was the argument for the Appellant that the Respondent cannot claim that the complications he developed post-operation were as a result of the Appellant`s action or inaction as the same was as a result of infection. That the Respondent cannot claim damages because of an infection which he had been warned about prior to the surgery. That the Respondent did not have issue with the surgery as he said that the same was done professionally. That x-ray conducted by the Respondent at Karen Hospital confirmed that the prosthesis fitted by the Appellant was in the correct place.

7. The Appellant argued that the Respondent having developed the infection, the revision surgery undertaken in South Africa was inevitable as the same was not available in Kenya. He argued that since the Respondent had been warned of a resultant infection he cannot blame the appellant for undergoing further surgery.

8. The Appellant argued that he recommended physiotherapy after the surgery to which the respondent confirmed that he underwent. That the Appellant therefore rendered professional advice to the Respondent. That similar advice was given by doctors in South Africa after the surgery. Therefore, that the claim by the Respondent that he did not offer proper care post operatively is untenable.

9. Counsel for the Appellant submitted that though the Kenya Medical Practitioners and Dentists Board admonished the Appellant, the trial court was obligated to consider the case on merit applying independent assessment devoid of finding by the board as the same qualifies as an opinion which is not binding on the court. The Appellant in this regard cited the case of Stephen Kanini Wangondu v The Ark Limited (2016) eKLR where it was held that:“Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves; no more, no less. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is most obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess. However, there is nothing to prevent reports for court use being commissioned on any factual matter, technical or otherwise, provided it is deemed likely to be outside the knowledge and experience of those trying the case, and the court agrees to the evidence being called.While there are numerous authorities asserting that expert evidence can only be challenged by another expert, little has been said regarding the criteria a court should use to weigh the probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Four consequences flow from this:(a)Firstly, expert evidence does not ‘trump all other evidence’. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.(b)Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.(c)Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.(d)Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones.”

10. The Appellant also cited the case of Kimatu Mbuvi T/A Kimatu Mbuvi & Bros. v Augustine Munyao Kioko, Civil Appeal No. 203 of 2001(2007) 1EA 139 where the Court of Appeal held that:“Like other sciences, medicine is not an exact science and that is why expert medical opinion is no different from other expert opinions and such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”

11. The Appellant submitted that he was not the author of the Respondent`s misfortune. That he did all that he should have done in his capacity including recommending proper post-operative care in the form of physiotherapy. That he had advised on the risks of the surgery including infection. That he was not negligent or liable for what unfolded after the surgery.

12. The Appellant further submitted that the award of Ksh.4,000,000/= was unmerited, unsubstantiated and inordinately high. That there is nothing in the judgment to show the precedent the trial court relied on to arrive at the award. That if the court relied on the case of Hellen Kiramana v PCEA Kikuyu Hospital (2016) eKLR, that was cited by the Respondent then that case was not a proper guide because the Defendant in that case had implanted a wrong device in the Plaintiff which stayed in her body for 8 years following which she developed osteolysis as a result. That even then she was awarded Ksh.2,000,000/=. The Appellant submitted that in this case an award of Ksh.1,000,000/= would have been more appropriate.

13. On the award of special damages, the Appellant submitted that he should not be condemned to cater for treatment expenses for the infection after the surgery as the Respondent had been warned of the same. That he was well aware that an infection would occur and he would spend money to treat the same. That the Appellant did not cause the infection. That the claim has no merit and ought to be dismissed.

Respondent`s submissions 14. The advocates for the Respondent on the other hand submitted that the case proceeded by way of formal proof. That in a formal proof the court is limited to assessing quantum. In that respect, they cited the case of David Maina Njoroge v Gingalili Farm Limited (2011) eKLR where the court stated that:The role of this court in terms of Order 10 rule 6 aforesaid after judgment was entered was succinctly explained in the case of Kavindu & Another V. Mbaya & Another (1976) KLR 164, which was citied with approval in the case of Felix Mathenge V. Kenya Power & Lighting Company Limited, Civil Appeal No.215 of 2002. In the latter the court stated that:“The Respondent having failed to enter appearance within the prescribed time after the appellant had requested for it, it became mandatory upon the court to enter interlocutory judgment and for the appellant to set down the suit for assessment of damages. Having entered interlocutory judgment, it was not open once again for the same court in the instant case to state that the appellant had not proved liability against the respondent. The role of the court after entering the interlocutory judgment in such a case like this was only to assess damages since interlocutory judgment having been regularly obtained there can never be any doubt that judgment was final with regard to liability and was unassailable. It was only interlocutory with regard to quantum of damages.”

15. The advocates for the Respondent also cited the case of Kamau v Mwanthi & another, Civil Suit E006 of 2021 (2022) KEHC 3370 KLR (26 May 2022 (Judgment), Mary Kasango J. as she then was) adopted the above decision and held that:Following the entry of that judgment liability for the accident was determined in favour of the plaintiff. Having received the plaintiff’s evidence, this Court is called upon to assess the damages. See the case David Maina Njoroge vs. Gingalili Farm Limited (2011) eKLR.

16. It was submitted that the Respondent adduced sufficient evidence that demonstrated that the Appellant was a patient to the Appellant who found him with severe knee osteoarthritis. That as a result of patient/ doctor relationship, the Appellant owed the Respondent a duty of care. The Respondent cited the case of Ricarda Njoki Wahome (Suing as the administrator of the estate of the late Wahome Mutahi (Deceased) v Attorney General & 2 others (2015) eKLR where it was held the following on that duty of care:“A duty of care arises once a doctor or other health care professional agree to diagnose or treat a patient.”

17. That as a result of the diagnosis, the Respondent underwent a total knee replacement and thereafter underwent physiotherapy. That after the surgery the Appellant failed to carry out proper post-operation to confirm the Respondent`s healing process. That the Respondent received a swelling at the point of operation but when he visited the Appellant failed to physically examine him to confirm the extent of the healing. That as a result he had to undergo a revision surgery in South Africa where the surgeon conducted a biopsy that revealed that there was sepsis (infection) and he was required to have the sepsis cleaned.

18. It was submitted that the Respondent had been informed prior to the surgery of the risk of sepsis but had high expectation that the Appellant would heighten the care and attention during post-operative treatment which he never did.

19. The Appellant submitted that the duty of care expected of a medical person is as it was stated in the case of L.W.W. (Suing as the administrator of the estate of BMN (Deceased) v Charles Githinji (2019) eKLR where the court cited the decision in R v Bateman (1925) 94 EI KB791 that :“If a person holds himself as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge by a patient, he owes the duty to the patient to use due caution in undertaking treatment. If he accepts the responsibility and undertakes treatment and the patient submits to his direction and treatment accordingly he owes the duty to the patient and to use diligence, care, knowledge, skill and caution in administering the treatment.”

20. They also cited the book Medical Negligence by Michael A. Jones at pg.344 where the author highlights the following:A doctor has a duty to monitor the treatment given to the patient, particularly where the treatment carries a high risk of adverse reaction. This duty obviously extends to post-operative conditions which the patient may develop.

21. It was submitted that the Appellant failed to render the post-operative care he owed the Respondent causing the deterioration of the Respondent`s condition necessitating subsequent surgical and medical attention in South Africa.

22. Counsel for the Respondent submitted that the Respondent presented his complaint to the Kenya Medical Practitioners and Dentists Board regarding the Appellant`s conduct and the board admonished the Appellant for the failure to follow up the Respondent`s post operation. Counsel for the Respondent submitted that the Appellant was 100% liable and that the Respondent can recover damages from him.

23. On general damages, the Respondent submitted that he produced receipts to prove the pleaded sum which evidenced the costs incurred in South Africa. That special damages were therefore proved and the court should not interfere with the award.

Analysis and determination 24. This being a first appeal, it is trite law that the court ought to examine and re-evaluate the evidence on record, assess it and make its conclusion. This position was taken in Selle & Another –vs- Associated Motor Boat Co. Ltd.& others (1968) EA 123 where the court held that:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is and inconsistent with the evidence in the case generally.”

25. I have duly considered the grounds of appeal, the judgment of the trial court and the submissions by the respective advocates for the parties. The issues for determination are:1. Whether the court can revisit the issue of liability in view of entry of interlocutory judgment and the matter having proceeded by way of formal proof.2. Whether the award in general damages was inordinately high.3. Whether the award in special damages was tenable.

Liability 26. It is not in dispute that the matter at the lower court proceeded by way of formal proof after attempts by the Appellant to set aside the interlocutory judgment failed at the High Court. The Appellant all the same submitted that he was not liable for what unfolded after the surgery as he gave the respondent professional advice and that he was not the author of the Respondent`s misfortune. That he did all that he could have done in his capacity including recommending proper post-operative care in the form of physiotherapy. The Respondent on the other hand submitted that the issue of liability is closed as the court in formal proof proceedings is only limited to assessment of damages.

27. The trial court in its judgment agreed with the submission by the Respondent that as there was interlocutory judgment entered in the case, the role of the court was only limited to assessment of damages. The court relied on the decision in the case of Felix Mathenge V. Kenya Power & Lighting Company Limited (supra) where it was held that the role of the court where interlocutory judgment has been entered is limited to assessment of damages. I am in entire agreement with that view as it represents the correct legal position on the issue. The issue of liability was closed when interlocutory judgment was entered. This court therefore cannot re-visit the issue in this appeal. The issue of liability was only relevant as far as assessment of damages was concerned when taken together with the admissions made by the Respondent during cross-examination. The finding on liability by the trial court therefore stands.

Whether the award of general damages was inordinately high 28. The complaint by the Respondent was that the Appellant did not give him professional post-operation care after the surgery. He contended that he continued to experience tightness and discomfort on the knee after the surgery. However, that the Appellant did not at any time during the period of recuperation enquire as to the Respondent`s progress. That he saw the Appellant on the 10th October 2013 but the Appellant did not examine him despite his complains of soreness and stiffness.

29. It was the case for the Respondent that on the 12th December 2013, he and his wife went for their annual holiday to Malindi. That on 14th December 2013, the knee swelled up to an alarming degree and could hardly walk. That he called the Appellant who dismissed the issue. That on returning to Nairobi he saw the Appellant on 23rd December. That the Appellant only looked at the knee and did not ask him to do any movement. The Appellant then prescribed a blood test to be taken and did not prescribe anything for the swelling.

30. The Respondent continued to state that being dissatisfied with the Appellant`s inaction, he went to his general practitioner in Karen, Dr. Renu Patel, who prescribed steroids for the swelling and advised him to take an x-ray at Karen Hospital which showed the prothesis to be in correct place. The blood tests showed no infection but high inflammation. That the test results were emailed by Karen Hospital to the Appellant who emailed them to the Respondent on 28/12/2013. That in his email, the Appellant said that everything was okay and there was nothing to worry about. There was no further communication from the Appellant.

31. The Respondent stated that following the cavalier attitude by the Appellant towards him, Dr. Patel suggested that he gets a second opinion from Dr. Neeraj Krishnan who is an orthopedic surgeon at M.P. Shah Hospital. That he saw the said doctor on 20/1/2014 who gave him a thorough examination and advised him to see a specialist knee revision surgeon in South Africa. That following that advice he flew to Cape Town, South Africa on the 3/2/2014. He had a consultation with Dr. Pieter Erasmus on 4/2/2014. That the doctor did an arthroscopic biopsy that revealed an infection (deep knee sepsis). The doctor advised that he needed to be operated on quickly. That his wife flew to South Africa to take care of him. He was admitted at Mediclinic on 20th February and remained there for 5 days. He underwent surgery to clean the prosthesis and have antibiotic implants inserted. He remained around for observation and returned to Nairobi on 4/3/2014.

32. He said that he returned to South Africa together with his wife for further surgery on 22/4/2014. He underwent a second surgery where the original prosthesis was removed and a new and longer one inserted. He remained in hospital for a further 5 days. He remained around for physiotherapy and observation and returned to Nairobi on 20/5/2014.

33. It was thus the position of the Respondent that the Appellant failed to carry out proper post-operative follow up. That the pain and discomfort experienced by the Respondent should have alerted the Appellant as to the risk of infection and the need for a detailed examination and investigation as well as effective and prompt treatment. That if the Appellant had taken appropriate action, the infection could have been diagnosed at an earlier stage thus avoiding the time and costs expended in South Africa. That as a result of the foregoing, he has undergone considerable pain and suffering, trauma and worry. That he is unable to play golf, drive his car in comfort, walk up and down stairs easily or lead a normal life.

34. The Respondent made a complain to the Medical Practitioners and Dentists Board. The Appellant responded to their summons. That it was the ruling of the Preliminary Enquiry Committee of the Board that the Appellant had failed to appropriately follow up the Respondent post operatively despite the Respondent severally complaining of pain. That the committee further found that the Appellant had failed to review the Respondent so as to do a proper physical examination. The committee admonished the Appellant for failing to follow up the patient appropriately post-operatively.

35. The Committee delivered its ruling on 11th March 2016 and held as follows:The committee has carefully reviewed the patient’s file and the reports therein and finds that the Respondent’s treatment was within the applicable and acceptable standards and he cannot be held culpable for the development of deep knee sepsis. It is further noted that the Respondent did what is expected of him to mitigate implant infection. However, the committee finds that the Respondent failed to appropriately follow up the patient post-operatively despite the patient severally complaining of pain. The committee further finds that the Respondent failed to review the patient so as to do a proper physical examination.

36. The committee in its ruling stated that it had considered an extract of Medical Negligence by Michael A. Jones at page 344 wherein the author states that:A doctor has a duty to monitor the treatment given to the patient particularly where the treatment carries a high risk of adverse reaction……This duty obviously extends to post-operative conditions which the patient may develop.

37. The committee cited the case of Bayliss v Blagg (1954) 1B.M.J.709 where the Defendant was held negligent for failing to do anything about a marked deterioration in the condition of the patient`s leg following the application of a plaster cast.

38. The committee consequently found the Respondent`s complaint to be merited and ordered that he be admonished for failing to follow up the patient appropriately post operatively and to pay Ksh.100,000/= to the Board as part of the costs for the committee`s sitting.

39. It is clear from the evidence adduced before the lower court that the Appellant owed the Respondent a duty of care as a patient. The Halsbury’s Law of England, Vol. 26 at page 17 states thus on that duty of care;“A person who holds himself as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment and a duty of care in his administration of that treatment.”

40. Similarly, in the case of Ricada Njoki Wahome vs. Attorney General & 2 others (Supra)…. It is trite law that a medical practitioner owes a duty of care to his patients to take all due care, caution and diligence in the treatment.

41. The author in Medical Negligence by Michael A. Jones (supra) states that this duty extends to post-operative conditions which the patient may develop. In the premises, the Appellant herein was under duty to monitor the Respondent after conducting an operation on him so as to ensure that the healing process went on well. The fact that there was possibility of the Respondent getting an infection after surgery called for extra vigilance on the part of the Appellant in monitoring the Respondent after surgery. The Respondent failed in this duty as he did not review the patient so as to do a proper examination on him even when the patient developed a swelling on the point of operation.

42. It is however to be noted that the Medical Committee absorbed the Appellant from blame for the sepsis infection. After reviewing the evidence of the Respondent and the ruling of the medical committee produced before the lower court, I find no evidence that the inaction by the Appellant did in any way contribute to the deep knee infection. The Appellant admitted that the Appellant had explained to him prior to the operation that one of the risks for the knee replacement was possibility of infection after surgery. The Respondent consented to the operation well knowing the risks that he was undertaking. I am in agreement with the finding of Medical Committee that the Appellant was not culpable for the sepsis. The Appellant`s fault was professional negligence in not making proper follow up of the patient. Though the Respondent claimed that if the infection had been noted earlier he may not have undergone the suffering that he did, there was no medical evidence to back up that assertion.

43. The grounds under which an Appellate court may interfere with the assessment of damages by a lower court were stated in the case of Butt v Khan 1982 -1988 1 KAR to be as follows:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.

44. In the case of Kemfro Africa Limited t/a “Meru Express Services [1976]” & another v Lubia & another (No. 2) [1987] KLR 30 the Court of Appeal held: -“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held to be that; it must be satisfied that either that judge in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

45. In this case the trial court awarded the sum of Ksh.4,000,000/= while blaming the Appellant for deep knee infection for which he was not to blame. A stated above, the Appellant`s liability was only limited to not making a proper follow up of the patient after surgery. His failure to do so however did not contribute to the Respondent suffering deep knee sepsis as this was one of the resultant risks in undergoing that type of surgery. The trial court in my view misapprehended the evidence when it held the Appellant liable for the deep knee sepsis. This led the court to award a figure that was inordinately high. That is sufficient reason for this court to interfere with the award.

46. I have looked at the authorities relied on by the Respondent in this appeal and in the lower court. I do note that in the case of Rosemary Wanjiru Kungu v Elijah Macharia Githinji & another [2014] eKLR where the Plaintiff sustained compression fracture of the T12 and L1 causing irreversible spinal cord damage at that level as a result of which she was completely paralyzed and would remain paralyzed permanently and would never recover function. As a result of being paraplegic, her life had changed a great deal and to get around she would have to use a wheelchair as well as diapers for her personal hygiene. The court awarded Ksh.3, 000,000 as general damages. The claim in that matter arose from a road traffic accident. The case in my view was not relevant as it did not involve professional negligence.

47. The Respondent also cited the case of James Njau Kariuki v Mary Goreti Wakwibubi & another [2007] eKLR, which I find still not to relevant as it also arose from a road traffic accident and did not involve professional negligence.

48. The Appellant submitted that an award of Ksh.1,000,000/= would have been more appropriate in this case. He however did not tender any authorities to support the proposal.

49. The trial court in making the award of Ksh.4,000,000/= in general damages cited the case of Hellen Kiramana v PCEA Kikuyu Hospital [2016] eKLR, where the Defendant negligently implanted a wrong metal implant on the Plaintiff’s knee and the Plaintiff stayed with the implant for about 8 years before she was operated on. The Court awarded the plaintiff Kshs. 2,000,000 for pain and suffering and 1,500,000 for aggravated damages.

50. I have also looked at other cases where damages were made for professional negligence committed by doctors. In the case of Hilda Atieno Were Vs Board of Trustees Aga Khan Hospital-Kisumu & Another [2011] eKLR the Court awarded the Plaintiff Ksh.1,500,000/= general damages for pain and suffering wherein the Plaintiff was subjected to an unnecessary operation which the court found that it must have not only caused her pain but the trauma of being confined to a hospital and undergoing an operation and post operation pain and inconvenience.

51. In BO (a minor suing through his next friend DOO v Nathan Khamala & another [2020] eKLR, the claimant was awarded Ksh.1,500,000/= for injuries caused on his hand by tight application of plaster of par

52. The Appellant herein did not blunder in his operation on the Respondent. The Respondent admitted that the surgery was done professionally. An x-ray taken some months after the surgery confirmed that the prothesis was in its correct place. I have considered that the Appellant`s fault was only limited to professional negligence for failure to take appropriate follow up of a patient after surgery. I am persuaded that a sum of Ksh. 1,000,000/= is sufficient compensation to the Respondent in general damages for the anguish and mental torture he underwent for failure by the Appellant to act appropriately.

Special damages 53. The Respondent claimed special damages of Ksh.953,685/= spent in South Africa during the revision surgery on his knee. As stated earlier in this judgment the Medical Committee did not blame the Appellant for the deep knee infection that the Respondent suffered after surgery by the Appellant. Having agreed with that finding of the committee, I find no basis for upholding the trial court`s award on special damages. The award on special damages is therefore set aside.

54. The upshot is that the award in general damages of Ksh.4,000,000/= is set aside and substituted with an award of Ksh.1,000,000/= (one million). The court finds that the Respondent was not entitled to the award on special damages and the same is set aside.

55. Orders accordingly. The Appellant to have the costs of the appeal.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 30THDAY OF NOVEMBER, 2023J. N. NJAGIJUDGEIn the presence of:Mr. Waweru for AppellantMs Mulindi for RespondentCourt Assistant – Amina30 days Right of Appeal.