Nyeri trader blocked from introducing new evidence in hospital negligence case

For more than 20 years, Nyeri businessman Cyrus Kanyi’s life has revolved around hospital corridors and courtrooms, a journey that began with a road accident in 1999 and has since evolved into one of the region’s most protracted medical negligence disputes.

On Friday, the Court of Appeal in Nairobi dealt him another legal setback after dismissing his attempt to introduce fresh medical evidence in an ongoing appeal against the Registered Trustees of the Archdiocese of Nyeri and a medical practitioner linked to his treatment and alleged negligence.

The ruling, delivered by Justices Gatembu Kairu, Jamila Mohammed and Weldon Korir, found that Kanyi had ample opportunity to present the fresh evidence during the High Court trial and failed to show why it could not have been obtained earlier.

"To the extent that the evidence proposed to be adduced relates to future medical expenses, it has not been shown that it could not have been obtained with reasonable diligence for use at the trial or that it “could not have been produced at the time of the suit. Consequently, the application fails and it is hereby dismissed," the three judge bench ruled.

The Appellate court decision deals a blow to his ongoing quest for additional compensation nearly two decades after the alleged botched surgery.

The decision comes as Kanyi continues to grapple with the devastating consequences of what began as a routine trip to purchase livestock in December 1999.

The 35-year-old trader from Othaya was traveling to Laikipia's Suguta Marmar area when his vehicle collided head-on with another along the Nyeri-Nyahururu road at Wiyumiririe.

Kanyi sustained serious fractures to both feet in the accident and was initially treated at Nyahururu District Hospital before being transferred to Consolata Hospital in Nyeri County, where he would spend the next year recuperating.

 It was during surgery at this mission hospital that his nightmare truly began.
According to court documents, surgeons allegedly left a broken surgical blade fragment inside Kanyi's right leg during the procedure.

The foreign object sparked a cascade of medical complications that would require dozens of corrective surgeries over the following years.

 At least five x-rays conducted during 27 subsequent operations confirmed the presence of the blade fragment, yet medical personnel struggled to locate and remove it.

The complications forced Kanyi to seek treatment at multiple facilities. After being discharged from Consolata Hospital in November 2000, his condition deteriorated. Doctors even suggested amputating his foot, a proposal he firmly rejected.

He subsequently underwent four operations during a five-month admission at Mt Kenya Hospital, followed by nine months at Outspan Hospital, where he endured seven more procedures.

A turning point came in 2008 when Kanyi's cousin, a nurse at Nyeri Provincial General Hospital, referred him to Kikuyu PCEA Mission Hospital.

There, Dr. King'ori successfully removed the blade fragment and treated the bone infection, eventually enabling Kanyi to walk unaided after 18 months of treatment.

In 2002, Kanyi filed a negligence lawsuit against the Registered Trustees of the Archdiocese of Nyeri and Dr. John Maganga in 2002.

In a judgment delivered on October 6, 2017, High Court Judge Sergon ruled in Kanyi's favor, finding that the respondents failed to exercise due diligence in handling his case.

The court awarded Kanyi Sh 3 million for pain and suffering, Sh 1.31 million in special damages, and Sh 500,000 for future medical expenses, plus interest and costs.

However, Kanyi disatisfied with the High Court's appeal, arguing that the awards for general and special damages were inadequate.

In August 2023, Kanyi filed an application seeking to introduce additional evidence in his appeal, including a recent medical report from Africa Medspa dated April 11, 2023, correspondence from Nyeri County Referral Hospital, and photographs of his leg.

His legal team argued that the evidence would demonstrate his continuing medical needs and that he now faces 35 percent disability requiring specialised treatment estimated at Sh 4.8 million and still owes nearly Sh 1 million to various medical facilities.

The application was vigorously opposed by Consolata Hospital through Fr. David Mutahi, who argued that the evidence was not genuinely new and could have been obtained through reasonable diligence during the original trial.

In their ruling, the appellate judges noted that throughout the High Court proceedings, Kanyi had amended his pleadings multiple times to reflect ongoing medical expenses and future treatment needs.

He produced medical reports spanning from 2001 to 2008 and called three medical doctors as witnesses during the trial, which concluded in January 2016.

The court found that Kanyi was aware of his continuing medical needs throughout the trial and had every opportunity to present updated evidence before the case concluded.

The judges determined that he had not satisfied the stringent legal test for admitting additional evidence on appeal, as established by the Supreme Court.

 The judges emphasised that appellate courts must exercise caution when asked to admit fresh material, noting that such evidence should not be used to “fill gaps” or rebuild a case that could have been fully presented earlier.

 "Additional evidence should not be utilised for the purpose of removing lacunae and filling gaps in evidence," the Justice Kairu-led bench stated.

“A party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case in appeal or patch up the weak points in his or her case," the bench added.

Consequently, appellate judges directed the appeal on the adequacy of damages awarded by the High Court to proceed for a full trial.