Medical Negligence in Kenya: Legal Liability for Healthcare Providers

Medical negligence in Kenya arises when a healthcare provider, whether a doctor, nurse, clinical officer or hospital, falls below the standard of care expected of a competent professional and a patient is harmed as a result. Claims are civil actions in tort, so the practical questions are what the claimant must prove, who can be sued, how long the claimant has, and what defences are open. This guide sets out the position using the statutes and a reported High Court decision we have checked.

Medical negligence in Kenya: the standard of care

A negligence claim against a healthcare provider requires the claimant to show a duty of care, a breach of that duty, causation and resulting loss. A poor outcome on its own does not establish negligence. For professionals, Kenyan courts measure breach by reference to the standard of the profession. In Odero v Aga Khan Hospital Kisumu [2024] KEHC 3408 (KLR), the High Court at Kisumu (Aburili J) cited authority that a medical professional must act in accordance with the practice accepted at the relevant time by a responsible body of medical opinion, and referred to the Court of Appeal for Eastern Africa’s statement in Pope John Paul’s Hospital v Baby Kasozi that the law requires the degree of care a normally skilful member of the profession would exercise, not insurance against accidental slips. We cite the case only for that general statement of the standard, and not for its outcome. In that appeal, counsel for the appellant relied on the English Bolam test, so the exact formulation applied depends on the facts and the expert evidence.

Where claims are brought

Under Article 165(3)(a) of the Constitution of Kenya, the High Court has unlimited original jurisdiction in civil matters. Claims of lower value may be filed in the subordinate courts, whose pecuniary limits you should check at the time of filing. A claim against a private hospital is brought against the hospital as a corporate entity, and individual practitioners may also be named. Claims against public facilities raise limitation issues that are covered below.

Common categories of claim

Reported claims commonly fall into the following groups:

• surgical errors, including wrong-site surgery and retained instruments;
• medication errors, such as the wrong drug or dose;
• obstetric failures during labour and delivery;
• delayed or missed diagnosis; and
• treatment without valid consent.

Informed consent

Section 9(1) of the Health Act, 2017 provides that no specified health service may be provided to a patient without the patient’s informed consent, subject to listed exceptions. These include where the patient cannot consent and a person mandated in writing or authorised by law or court order consents, where the next of kin consents in the absence of such a person, where the patient is being treated in an emergency, and where delay might result in death or irreversible damage to health. The Act defines informed consent as a process of getting permission before conducting a healthcare prevention on a person. Providing treatment without valid consent can therefore ground a claim, and providers should keep clear written records of what the patient was told and agreed to.

Limitation periods

Time limits are where many claims fail, so they deserve care:

• Section 4(2) of the Limitation of Actions Act bars an action founded on tort after three years from the date the cause of action accrued.
• Section 27 of that Act can displace the three-year bar for negligence claims that include damages for personal injuries, but only with the leave of the court and only where material facts of a decisive character were outside the claimant’s knowledge, actual or constructive, until a date after the limitation period or not earlier than one year before it ended. In either case that date must be not earlier than one year before the action was brought.
• The Public Authorities Limitation Act provides that proceedings founded on tort may not be brought against the Government or a local authority after twelve months from accrual.

A claim against a public hospital may therefore be subject to the shorter twelve-month limit, depending on the identity of the defendant, so claimants should take advice early and not wait to see how their condition develops. We have not confirmed how the Public Authorities Limitation Act applies to county governments, and that point needs case-specific advice.

Defences

A provider can answer a claim by showing that it met the accepted standard of care, that the claimant’s own conduct contributed to the harm, or that the claim is out of time. Contributory negligence, for example failing to disclose relevant history or follow treatment advice, goes to the amount of damages. Expert evidence is usually decisive on breach and causation, and each side should expect to call it.

Damages and death claims

A successful claimant can recover general damages for pain, suffering and loss of amenity and proven special damages such as medical expenses and lost earnings. Where the patient dies, the provision on the effect of death in the Law Reform Act provides that causes of action subsisting for the deceased survive for the benefit of the estate, subject to the limits stated in that section. Dependants’ claims are a separate matter and need specific advice.

Professional discipline and risk management

A complaint to the Kenya Medical Practitioners and Dentists Council is a separate track from a civil claim. Section 20 of the Medical Practitioners and Dentists Act allows anyone dissatisfied with a professional service, or alleging a breach of standards, to lodge a complaint with the Council, which may inquire into professional misconduct, malpractice or breach of standards and must give the practitioner an opportunity to be heard. The civil claim and the disciplinary complaint ask different questions, so the outcome of one does not decide the other. Providers should maintain clinical governance, careful records, a documented consent process and adequate indemnity cover.

Vicarious liability

A hospital will generally answer for the negligence of employees acting in the course of their employment, which is why claimants normally join the institution. The position for independent consultants depends on the contract and the facts, and institutions should address it in engagement agreements and insurance.