IN THE COURT OF APPEAL AT NAIROBI(CORAM: MUSINGA (P), MUMBI NGUGI & ODUNGA, JJ.A.)CIVIL APPEAL NO. 28 OF 2020BETWEENTHE AGA KHAN UNIVERSITY HOSPITAL APPELLANTANDSYLVESTER MUSYOKI KISONZO 1ST RESPONDENTBERIAH WANGARE WARUE 2ND RESPONDENTDR. DONALD OYATSI …………………………….…. 3RD RESPONDENT(Being an appeal from the judgment and decree of the High Court of Kenya at Nairobi (Sergon, J.) delivered on 12th April 2018inH.C.C.C. No. 496 of 2010)************************* JUDGMENT OF THE COURTIn the dispute culminating in this appeal, the High Court at Nairobi (Sergon, J.) found the Aga Khan University Hospital (the Hospital) and Dr. Donald Oyatsi (Dr. Oyatsi) liable jointly and severally for the death of Nina Ngina Kisonzo (the deceased)and awarded damages in the sum of Kshs. 4,350,000/- together with costs and interest at court rates.The background to this appeal is that Sylvester Musyoki Kisonzo and Beriah Wangare Warue (the 1st and 2nd respondents respectively), the administrators and personal representatives of the estate of the the deceased, instituted suit against Dr. Oyatsi and the Hospital (sued as the 1st and 2nd respondents respectively), vide a Plaint dated 25th October 2010, which was subsequently amended on 20th July 2015. They contended that the deceased, their minor daughter aged 9 years and previously in good health, fell ill and was admitted for treatment at the Hospital. They asserted that during the course of her admission and treatment at the said Hospital, her condition was improperly assessed and managed by the attending medical practitioners, including Dr. Oyatsi, thereby setting in motion a chain of negligent acts and omissions that culminated in her death.In particular, the respondents alleged that Dr. Oyatsi and the Hospital failed to properly and timeously diagnose the deceased’s condition and to undertake appropriate medicalinvestigations. They further contended that the deceased was misdiagnosed and subjected to inappropriate psychiatric evaluation which diverted attention from her true medical condition and delayed proper treatment. It was also alleged that the deceased’s condition was not adequately monitored, and that the standard of care, skill, and diligence expected of competent medical practitioners was not met, leading to her deterioration and eventual death.On that basis, they brought the claim under the Law Reform Act and the Fatal Accidents Act, seeking damages for pain and suffering, loss of expectation of life, and loss of dependency, together with special damages particularised at Kshs. 466,000/- incurred in relation to funeral expenses, post- mortem charges, medical processes, and legal representation.In response, Dr. Oyatsi, in his Amended Statement of Defence dated 7th August 2015, denied that the deceased was under his direct care, or that he misdiagnosed her condition. He contended, in the alternative, that his involvement, if any, arose two days after the deceased’s admission and was limited to a review based on clinical notes prepared by an earlier team ofdoctors and information provided by the 1st and 2nd respondents. He maintained that he exercised all reasonable skill and care expected in the circumstances, and denied any negligence or liability.Similarly, the Hospital, in its Amended Defence dated 23rd July 2015, denied all allegations of negligence, and asserted that the deceased was at all times treated professionally and in accordance with accepted medical standards. The Hospital further contended that the doctors involved were independent practitioners over whom it exercised no control, and it therefore denied vicarious liability. In the alternative, it attributed any alleged injury or loss to the 1st and 2nd respondents’ own conduct, including failure to follow medical advice and lack of cooperation, and denied the applicability of the doctrine of res ipsa loquitur as pleaded in the amended plaint.At the hearing before the trial court, the 1st respondent testified as PW1. He said tha