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Legal pain for woman after surgical mishap

A woman who accused the Nakuru Provincial General Hospital of negligence but lost the court case has been granted a second chance to seek redress.

But Jane Njoki first has to raise Sh90,450 to file documents at the Court of Appeal failing which her case will fall through the cracks.

"I am unemployed and have no source of income and thus cannot raise the required court fees. Further, the minimal funds I manage to secure are applied to paying medical bills as I am under continuous treatment," says Njoki.

Last month, the Court of Appeal in Nairobi granted her leave to file and serve a memorandum of appeal and record of appeal from a High Court judgement delivered three years ago.

This was to be done within 30 days from the date of the ruling, which lapsed on August 10. But five days earlier, her lawyer, Owen Mutai, had filed an application seeking extension of the deadline.

Mutai also sought permission for Njoki to appeal as a pauper, saying she had depleted all her savings in the process of trying to manage her failing health.

In March 2009, Njoki was diagnosed with blocked fallopian tubes and admitted at the hospital for a tuboplasty – a procedure to open her tubes and allow for conception.

She underwent surgery on April 15 after which she said she developed complications. Njoki accused the hospital staff of failing to exercise due care and attention while performing the surgery, and negligently leaving a gauze inside her abdomen.

This, she said, resulted in a serious infection that saw puss oozing from her rectum.

In her lawsuit filed at the High Court, Njoki said she had to undergo two more operations that were also unsuccessful. She pleaded for general and special damages amounting to Sh1,832,000.

But in its defence, the hospital denied the claims of negligence and insisted that the surgery was carried out in a professional manner.

Case dismissed

On April 20, 2017, Justice Janet Mulwa dismissed the case. The judge noted that if she had found the hospital staff negligent and liable for damages, she would have awarded Sh3 million as general damages for pain and suffering.

"It is also my further finding that no satisfactory evidence was tendered that the alleged foreign body was left in the plaintiff's abdomen by the defendant's doctors or employees at the defendant's hospital and, therefore, I find that the defendant is not liable for the post-operative complications which the plaintiff has suffered,” read the judgement.

Two years after her case was dismissed, Njoki moved to the Court of Appeal where she sought to file a civil suit out of time.

In her application she claimed that despite having applied for typed court proceedings and the judgement for purposes of filing an appeal, the High Court dragged its feet on the matter.

The proceedings and judgement, she stated, were ready on December 4, 2018 and a certificate of delay was issued.