Medical Negligence Claims in Kenya: What You Must Prove to Succeed

Medicine carries risk, and not every disappointing outcome means something went wrong. But when a patient is harmed because care fell below the standard they were entitled to expect, Kenyan law allows them, or their family, to claim compensation. Understanding what must be proved is the first step to knowing whether you have a claim.

The four elements of a claim

A medical negligence claim is a claim in the tort of negligence. The claimant must generally show:

• Duty of care: the doctor, nurse or facility owed the patient a duty, which is usually straightforward once treatment begins
• Breach: the care given fell below the standard of a reasonably competent practitioner in that field
• Causation: the breach caused, or materially contributed to, the injury
• Loss: the patient suffered harm that the law recognises, such as injury, additional treatment costs, lost earnings or, in fatal cases, loss to dependants

The standard of care

Kenyan courts have drawn on the test from the English case of Bolam v Friern Hospital Management Committee: a practitioner is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion in that specialty. Academic commentary has argued that Kenyan courts should go further and require that such opinion be logically defensible, as English law now does.

In practice, this means the outcome of most claims depends on independent expert evidence about what a competent practitioner would have done.

Hospitals can be liable too

A hospital may be directly liable for failings in its own systems, staffing or equipment, and vicariously liable for the negligence of doctors and staff acting in the course of their work. In a reported recent case, a court ordered a hospital and a doctor to pay KES 4.35 million for the misdiagnosis of a child, finding both owed a duty of reasonable care, skill and diligence.

Common types of claim

The claims we see most often involve:

• Misdiagnosis or delayed diagnosis, including cancer and infections
• Surgical errors and anaesthesia complications
• Birth injuries and failures in maternity care
• Medication errors
• Treatment carried out without informed consent

What to do now

Write down what happened while it is fresh, keep every prescription, receipt and discharge summary, and request your medical records. Then take advice promptly: limitation periods apply, and early investigation makes it far easier to obtain the evidence a claim needs.