Hellen Kiramana v PCEA Kikuyu Hospital [2016] KEHC 4184 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  254 OF 2013

HELLEN KIRAMANA ….……………………….PLAINTIFF/RESPONDENT

VERSUS

PCEA KIKUYU HOSPITAL …………………….DEFENDANT/APPLICANT

RULING

1. By an application  dated  8th June  2016 and filed in court on 5th July 2016, the defendant  applicant PCEA Kikuyu Hospital seeks   from this court orders for stay  of delivery of judgment  pending hearing and determination of  the application of  the defendant’s  intended  appeal in the Court of Appeal.

2. The application is premised on the  grounds that  there is a  ruling delivered  on 27th October  2015  by this court  which the applicant  was dissatisfied  with and  that the judgment   in this  suit is due  for delivery  on 12th July 2016.  That the applicant has filed  an  appeal which appeal is arguable  and if  stay is declined, then the  appeal shall be  rendered nugatory  and that no prejudice shall be  occasioned to the plaintiff but  that the  defendant  shall suffer  irreparably  if stay is not granted.  The application  brought under  certificate of  urgency is anchored on Article  159 of the Constitution, Sections  1, 1A, 1B, 3  and 3A  of the Civil Procedure Act  Cap 21, Order  42 Rule  6 of the  Civil Procedure  Rules and all other  enabling  provisions of the law.  The  said  application is also supported  by  the affidavit  sworn by Mr Patrick   Kimpiatu  the defendant’s  Chief Executive  Officer on 8th June  2016  annexing copy of Notice of Appeal dated  3rd November  2015  and two letters  dated 3rd November  2015  and  10th February  2016 asking for typed   proceedings in this matter, filed  with the Deputy  Registrar  of the High Court.  The supporting affidavit   mirrors the grounds upon which the application is predicated as reproduced above in this ruling.

3. The application by the defendant is  opposed by the plaintiff/respondent who swore a replying   affidavit  on 11th  July  2016  wherein she deposes  that  the application is intended  to delay  the delivery  of  judgment, and that  it lacks  merit.  It is also contended   that the application is made in  bad  faith  as it  was lodged   3 days  prior to  the date scheduled  for the delivery of  the judgment notwithstanding  the fact that  the application was  ready on 8th June  2016  hence  the application  must have  been necessitated  by the decision of the Medical Practitioners  and Dentists  Board  that the defendant  were indeed  professionally negligent  as  shown by  exhibit I,  the decision  of the Medical Practitioners and Dentists Board  delivered on 17th March  2016.  The plaintiff further deposes that it is only fair and just that the defendant’s application be dismissed with costs.

4. Before this  matter  was brought to my attention to determine, it  was  placed before Honourable  B. Thuranira Jaden  duty judge  of the Civil Division on 6th July 2016  who certified   the matter as urgent  and sent it to me for directions  on 11th July 2016  on account  that the original file  is pending before  me for judgment.

5. When the matter   was called out at 9. 00a.m on 11th July 2016 the applicant’s counsel was not in court.  Only  the plaintiff/respondent’s counsel  was present  so I directed   that the file be returned  to the registry since  the application was made on a skeleton file and  that judgment  in the main file  would be  delivered as scheduled  on 12th July  2016.  However, Miss Kabita holding brief for the Ms Opondo appeared shortly after I had pronounced myself on the matter and urged the court to recall the matter owing to its urgency and the court did recall the file and direct that the applicant’s counsel effects service of the application and date upon the plaintiff/respondent’s counsel for interpartes hearing today 12th July 2016.  I did not grant any interim orders in view of the fact that the plaintiff’s counsel Prof Wangai had already left the courtroom to attend to other matters elsewhere.

6. This morning, the two advocates, Miss Kabita for the applicant and professor Wangai for the respondent urged the application orally, relying on the grounds, supporting and replying   affidavits.  In Ms Kabita’s view the intended appeal is arguable hence delivery of judgment in this matter will render   the appeal nugatory.  She also  urged that  the application  was  filed on 5th July 2016   because they had to seek directions  from the Deputy Registrar  on whether  they should file   it  on a skeleton file and that it is in the interest  of justice that the application be allowed.

7. In  a rejoinder,  Professor Wangai opposed the application for stay of delivery of  judgment  contending that there  has been substantial delay in  filing the application, that the ruling  which  is  being challenged  was delivered on 27th October  2015   while the application  for stay   was made in July  yet it is dated 8th June  2016. Further, Professor Wangai submitted that the said   ruling relates to an application for extension of time which relates to the direction of the court.  That this application seeks to stay the discretion of the court hence it is an abuse of court process and unmerited and presumptuous.  Professor Wangai further submitted that   all parties were heard in this suit on merit and therefore the court should not be barred from delivering its judgment.  It was further submitted  that in any case, the issue  of extension  of  time will be  considered in the judgment  and if the  applicant is  dissatisfied , it  can appeal against the  judgment.  Professor  Wangai  further submitted that  the applicant had not  demonstrated  which prejudice it  will suffer if  the application is declined and judgment  which is due is delivered  as scheduled since the  plaintiff too has a right to  a judgment being rendered  either way.  He also  submitted that on 17th March 2016  he  Medical Practitioners  and Dentists  Board found  the defendant  negligent  hence this  application is  an attempt  to frustrate  the plaintiff  and the  court.  Counsel urges the court to dismiss the application by the defendant and deliver the judgment as scheduled.

8. In brief rejoinder, Miss Kabita responded that parties were before   the court on 26th April 2016 when the judgment date was   reserved and were directed d to apply for stay.  She emphasized  that her  clients are not  seeking to challenge  the court’s discretion but that they have filed an arguable  appeal challenging   the ruling of  27th October  2016  and that the issue of  that appeal cannot be determined  in the judgment  pending before this court.  She urges   the court to apply Article 159 of the Constitution and balance   the interests of both parties.  She also stated that annexture 1 was only given to them today.

9. I have carefully considered the application by the defendant/applicant, the grounds, and supporting affidavit.  I have also considered the replying affidavit by the plaintiff/respondent and the oral rival submissions by both parties’ advocates.  In my humble  view, the only issue for determination  on the application before me is  whether the applicant has made  out a case  for stay of  delivery of  judgment  pending hearing  and determination of  ruling of  27th October 2015.

10. The applicable law is Order 42 Rule 6 of the Civil Procedure Rules which provides that:-

“ No appeal/or second appeal  shall  operate  as a stay of  execution or proceedings under a  decree  or order appealed  from except  in so far  as the court appealed from may  order but; the court appealed  from may for sufficient  cause order  stay of execution of such  decree  or order.

No order  of stay of execution shall  be made  with Sub Rule  (1) unless

The  court is satisfied   that substantial  loss may result  to the  applicant  unless  the order is  made  and that;

The application has been made without  unreasonable   delay; and

Such security  as the court orders  for the due performance  of  such decree  or order as  may ultimately  be binding  on him as  been given  by the applicant .”

11. From the above provision of the law, it is clear that the relief of stay of proceedings pending appeal is discretionary.  That discretion, nonetheless, must be exercised judicially, that it to say, upon defined principles of law, not capriciously or whimsically.  It therefore  follows that   stay of  proceedings   in this case, the proceedings being  delivery  of judgment  in the suit  that  was  heard with  full participation of  all the  parties, pending  an appeal arising from a ruling  delivered  by this court  on 27th October  2015, can only be granted  where sufficient  cause is shown  by the applicant.  In demonstrating  that sufficient  cause, the prerequisites  under Order  42 Rule  6 of the Civil Procedure  Rules; Article  159 and Sections  1,1A, 3 and 3A  of the Civil Procedure   Act are   useful.

12. First, is that under Order 42 Rule 6 of the Civil procedure Rules,  the applicant must show that the application was brought without unreasonable delay.  As to whether this application  was  timeously brought, the record is clear   that on  27th October  2015, this court  delivered a ruling in open court  and in the  presence  of Mr Mambiri advocate  holding brief  for Ms Opondo counsel  for the applicant herein/defendant.  The plaintiff’s counsel was absent.  Upon delivery of the said ruling, the file  was returned  to the registry and  parties  fixed  a mention date for 9th December  2015  but there is no record  as to what transpired  on 9th December  2015.  On   21st March 2016, the plaintiff’s counsel again fixed a mention date for 26th April 2016.  On the latter date, both parties counsel’s Ms Kabita and Professor Wangai were present in court when the latter sought for a judgment date.  In response, Ms Kabita informed the court that they had filed a Notice of Appeal and seeking for stay of proceedings so that the appeal be heard and determined first.  In response, Professor Wangai submitted that a Notice of Appeal was not stay and that no law bars this court from rendering a judgment where there was no stay.  The court then observed that there was no application for stay filed pending appeal against an interlocutory ruling hence judgment would be delivered on 12th July 2016 at 2. 3.  pm. Between 26th April  2016 and 5th July 2016  when this application  for stay  was  filed, the applicant  never filed  any application for  stay of proceedings  which  was  well over  2 months.  Equally, between 27th October 2015 and 26th April 2016 when judgment date was given, which is six months less one day, no application for stay of proceedings had been filed.  However, on 26th April  2016,  it is apparent  that the applicant sought stay orally which  was  opposed and the  court directed  that  since  there  was  no  formal application  for consideration, it would deliver  judgment on     12th July 2016.  In total, the applicant wasted far over 8 months before bringing this application for stay of proceedings and therefore stay of delivery   of judgment pending appeal.

13. In my humble view, the application was filed after an inordinate delay.  The explanation offered by  the applicant for the delay is that  on 26th April 2016  the court advised counsel to file  an application for stay  and that they  prepared  the application for stay dated 8th June  2016  but only  filed it  on 5th July  2016  after getting directions  as to the opening of  a skeleton file.

14. The applicant  has not  attempted to explain the reasons  for the delay  from 27th October  2015  when the ruling  was delivered  and  26th April 2016  when the date  for judgment    was fixed, yet they  had timeously  filed their Notice of Appeal on 5th November  2015  seeking to challenge the ruling   delivered on 27th October 2015.  In addition, there is no explanation given why between 26th April 2016 and 8th June 2016 no application was made.  The allegation that the  application  is dated  8th June  2016  but filed  on 5th July 2016  because  the applicant  was waiting for  directions from the  Deputy Registrar on whether  to open  a skeleton file flies in  the face of  this court for reasons  that all  along the  applicant’s  counsel knew  that the  main file   was with  the trial judge  pending  judgment,  could the  applicant  have drawn the application  on 8th June  2016  and waited for  directions for nearly  one month  on where to file it  without raising any issue  with the  trial  judge who  was  holding  the file for  purposes  of writing and delivery of  a judgment?   I am not persuaded that the applicant’s counsel is genuine in her submissions.  I am inclined to  believe the respondent/plaintiff’s counsel’s  submission that the reason why the application  was filed  belately is to frustrate  the court which  had retired on 26th April  2016  to write a  judgment only for the applicant to  appear last  minute to  arrest judgment  which  was ready for  delivery, and therefore   to delay justice.

15. The applicant  having filed  Notice  of Appeal on 5th November 2015  knew  or ought to have known that  this matter  had been heard  fully and  what remained   was a date  for judgment.  The plaintiff then fixed dates in the registry and served the applicant’s counsel with mention notices with a view to fixing a date for judgment.  The  applicant  cannot  feign  ignorance  of the provisions s of Order 42 Rule 6(1) of the  Civil Procedure  Rules  which speak in no unclear  terms that:

“ No Appeal or Second Appeal  shall operate as  a stay  of execution  or  proceedings  under a  decree or order  appealed  from except  in so far as  the court  appealed  from may for sufficient  cause  order…..”

16. In other words, the law is clear that an appeal perse does not operate   as automatic stay.  One has to seek and obtain an order of stay of proceedings. One has to seek and obtain an order of stay of proceedings. In this case,  the applicant  took over  8 month’s to come for  stay, 6 months  after  the case  was closed and the ruling  complained   of delivered.  In the absence of any sufficient cause or explanation, this court would not and is not inclined to exercise its discretion in favour of the defendant/applicant.

17. Even Article  159  of the Constitution which  was  cited  cannot come  to the aid  of a party  who  seeks to  delay justice  and who seeks for justice too late  for it is the same  Article  which abhors  delayed  justice  by providing  that  justice shall be administered without  undue delay.  Furthermore, the applicant did not even submit   on how Article 159 of the Constitution could be applied in its favour in the circumstances of this case.  In my humble view, Article 159 of the Constitution cannot just be hurled at the court. There must be material supplied to support its invocation. Article 159 of the Constitution, in my view,  was  not meant  to be the prescription  for all  manner of ills and, although the court’s authority  under the said Article  159  of the Constitution remains  unfettered, especially where procedural  technicalities  pose an  impediment  to the  administration of justice.

18. In the  present case, the applicant  did not  demonstrate  to this court  what  procedural  technicality  would  impede  its accessing  justice.  Neither did it demonstrate to the satisfaction of this court that despite the long delay, justice could still be done.  Neither  did  the applicant  attempt  to demonstrate  what purpose  and principles of the Constitution would  risk being  violated  if the court  considered  delay as a factor  to deny the applicant  the orders sought.

19. The applicant must also demonstrate that substantial loss will occur if stay is not granted and therefore, that the appeal as intended shall if successful shall be rendered nugatory.  Apart  from making that  common statement  that the applicant  shall suffer  irreparably and that  the appeal which is arguable  shall be  rendered  nugatory, the  applicant  did not  demonstrate  to court  what loss if any  it would suffer if  the application for stay is not granted. Order  42 Rule  6 speaks of ‘substantial loss.’  In Tropical Commodities Supplies Ltd and others v. International Credit Bank Ltd (in liquidation), (2004) EA the court held inter alia:

“……substantial loss does not represent any particular mathematical formula.  Rather, it is a qualitative concept.  It refers  to any loss, great  or small, that is  of real worth  or value as  distinguished  from a loss  without value   or a loss  that is merely nominal……..” See alsoJoseph Chege vs. Gikiru Heho (2008) eKLR, Ben Mukhwana Wepukhulu Vs. Tom David Wanyonyi, (2014)eKLR, and Butt vs. Rent Restriction Tribunal, Civil Application No. NAI 6 of 1979.

20. In BungomaHC  Misc 42/2011 James Wangalwa V Agnes  Naliaka  Cheseto it was held that:

“ The  applicant must establish  other factors  which show that  the execution will create a state  of affairs  that will irreparably affect  or negate  the very essential  core of the appeal……”

21. Thus, the applicant must demonstrate  that it  will be  reduced   to a mere pious explorer in the  judicial  process if  its application for  stay of delivery of judgment  is not  granted, and not  to merely  state that  the appeal shall  be rendered  nugatory  if successful  or that  substantial loss  shall  result,  where  no pecuniary  or tangible  loss is shown  to the satisfaction  of the court as is the case  here. Consequently, the court cannot exercise discretion   in favour of the applicant (See Machira & Co v EA Standard No. 2 (2002)  KLR  63.

22. This court would nonetheless go further to determine whether any prejudice would be suffered by the applicant if stay if not granted.  I note that  the ruling that  is being challenged   concerns a decision made on 27/10/2015 to the effect that  this suit  was  filed within the statutory  period of  3 years  from the date  when the  cause  of action  arose  and  or that even if that  were not the case, the applicant/plaintiff had satisfied  the court on her application that she deserved  orders for  extension of time within which the suit herein, allegedly filed  out of  time could  have been filed.  The court  notes that  the  defendant  did raise the  issue of  the suit   being statute  barred  in the defence  as filed  but never  sought to have that  issue determined  as a preliminary  point of law.  It participated in the full trial of the suit   by sending its advocate to cross examine the plaintiff and her witness.  Its advocate also filed submissions where the same issue was also raised.  The plaintiff, fearing that  the issue not having been raised substantively during the trial, might affect the outcome  of the suit, filed an application before  judgment, seeking for extension of time and the court determined that application in her favour.

23. In the above circumstances, I am satisfied that  whether  the pending judgment  turns out  to be  for the plaintiff, the applicant  herein has an  unfettered  right to challenge the decision by this court to the Court of Appeal and continue with its quest for a determination that the suit was statute barred.  In  other words, the  applicant herein stands  to suffer  no real  or perceived  prejudice  should the judgment  in this matter be  delivered  as scheduled, and  no such prejudice  has been demonstrated since it was given an opportunity to challenge the application for leave in the suit.

24. Order 42 Rule 6 also obliges the applicant in an application for stay pending appeal to deposit security for the due performance of decree or order, as may be ordered by the court and which would be binding on the applicant.  In the instant case, the applicant never offered to deposit any such security.  Nonetheless, this court would, if it found it necessary, order for deposit of such security. However, in view of  my findings  that the  application  was filed  with inordinate delay and that  no substantial  loss or prejudice has been demonstrated  to be likely to be  suffered  by the applicant  should stay be declined,  I do not find it necessary to order for deposit of any security for the due performance of the order.

25. The applicant’s counsel also argued that the appeal as intended is arguable.  However, in the instant  case, I do not find  that the real question  is that of measuring  the prospects  of the appeal itself; but  rather, whether  by declining to stay delivery  of judgment, the applicant  will become a pious explorer  in the  judicial process.

26. In my humble view,  the discretionary  order of stay of  proceedings  pending  appeal is  designed  on the basis   that no one  would be  worse off by  virtue  of  an order of  the court; as such order does  not  introduce  any disadvantages, but  administer the justice  that the case  deserves, in recognition that both parties   have equal rights of knowing  the outcome of  a  case they  have actively participated in its  trial to  the very end and  even filed  submissions  to assist  the court reach a determination.  I find that  the overriding  objectives of  the law  as stipulated  in Sections 1,1A of the Civil Procedure Act shall only  be served  if this court  proceeds  to  render  the judgment  in this matter  in a timely manner  as scheduled  and whoever   shall be aggrieved  by the judgment will have  an unfettered  right to challenge  the outcome.

27. For the  foregoing reasons,  I find that the applicant/defendant  has not  satisfied  the conditions for the grant of  stay of delivery of judgment  pending  hearing and determination of an intended  appeal challenging  the ruling of this  court made  on 27th October 2015.

28. Accordingly, the application dated 8th June 2016 and filed in court on   5th July 2016   is hereby dismissed with costs to the plaintiff/respondent.

Dated, signed and delivered at Nairobi this 12th day of July 2016.

Reasons given this 14th day of July, 2016 at 2. 30 PM.

R.E. ABURILI

JUDGE