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Rape victim sues a Nairobi hospital for missing test results

By Kamau Muthoni | Published Tue, March 21st 2017 at 00:00, Updated March 20th 2017 at 21:23 GMT +3

Nairobi Hospital is embroiled in a legal battle with a rape victim after claims that it lost crucial medical evidence that would have been used to net the perpetrator.

A 29-year-old woman named DNN wants the hospital, a member of the Kenya Hospital Association, to compensate her after the doctor who attended to her reportedly informed her that the swab sample got lost.

"The plaintiff inquired from the defendant's agents about the missing high vaginal swab test and was informed the sample was lost. This was so heart-breaking to me as I had heavily relied on the hospital to preserve the evidence," the court papers filed by Musyimi and Company Advocates read.

In 2014, DNN's family was attacked and members tortured by a gang that also killed their two dogs.

The gang of three, armed with AK-47 rifles and knives, first broke her mother's and father's hands before raping her.

They robbed the family of Sh3,000, three mobile phones, an ATM card, assorted household goods, and a number documents after ransacking the house.

The victim managed to drive her parents to hospital, where they were all admitted.

Court papers show that a suspect was arrested in connection with the robbery and the woman was required to produce the swabs for the investigators to compare the DNA. However, they were not forthcoming.

The case went, minus the DNA tests, and the suspect, identified as Edwin Misango, was released in August last year for lack of evidence.

Principal Magistrate P.O. Ooko, while releasing Misango, noted that there was no evidence to jail him. Also, the court found that it was not possible for the family to identify the attackers due to darkness.

The victim accused the hospital of negligence, which she said had caused her mental anguish.

In its reply, the hospital admitted that the specimen got lost but termed the loss as accidental. "The loss of the plaintiff's specimen was purely accidental and not as a result of negligence or default on the part of the defendant. The defendant at all times exercised reasonable skill and care while treating the plaintiff," the hospital said.

It added that the trauma the victim suffered was not as a result of the lost specimen but the rape. It insisted that there was no breach of contract and thus it cannot take the liability.

"Save as is expressly admitted, the defendant denies every allegation in the plaint," the reply read.

The hospital's senior registrar and gynaecologist Diana Ondieki denied that the victim was informed that the test would be used to identify the perpetrator. She said the swabs are only used for identification if there are sperms and not for DNA.

"The defendant does not have a DNA testing machine and cannot promise to conduct tests without the necessary equipment," Dr Ondieki said.

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