Martha Wambui v Irene Wanjiru Mwangi & Registered Trustees Mater Hospital [2016] KEHC 5346 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO.  450 OF 2015

MARTHA WAMBUI..................................................APPELLANT/APPLICANT

VERSUS

IRENE WANJIRU MWANGI.................................................1ST RESPONDENT

THE REGISTERED TRUSTEESMATER HOSPITAL........2ND RESPONDENT

RULING

1. By an application dated 15th October  2015, the applicant Martha Wambui seeks  from this court  orders for  stay of  judgment delivered  on 13th  October 2015 and its subsequent  orders, pending  hearing and determination of the appeal ( sic) herein. She also prays for  status quo to be  maintained   in the burial dispute  in that the  body of  the deceased John Mwangi Kariuki  should continue to be kept at Mater  Hospital pending  hearing and determination  of this appeal plus  costs of  the application.

2. The application is predicated on the grounds that:

a. The effect of the judgment  delivered on 13th October  2015  is that  the appellant  herein  cannot  participate  in the burial  of the husband  whom they  have lived together  as husband  and wife  for  the last ten years.

b. The appellant herein has been condemned to bear the mortuary charges of well over kshs 1. 5 million yet she was dragged to court by the respondent.

c. That the learned  magistrate  demonstrated   open bias against the  appellant by condemning  her to pay  the entire  mortuary charges  yet she  had  in good faith  deposited  up to kshs   300,000 in court as security.

d. The appellant’s children have also consequently been barred from participating in the funeral of their father.

e. That the trial court has refused and or   rejected to grant stay of execution of its orders and judgment pending appeal.

f. Substantive justice has been a casualty in the end.

3. The application  is further supported  by the supporting  affidavit of  Martha Wambui the applicant herein  sworn on 16th October 2015  wherein she deposes that she  was the defendant in CMCC 2013/2014  wherein judgment  was on  13th October  2015  delivered by Honourable Kabaria  ordering that   the body of the deceased  John Mwangi Kariuki  be released to Irene Wanjiru  Mwangi for burial to the exclusion of the applicant.  That she is the wife   to the deceased John Mwangi Kariuki who died on 7th May 2014 at the Mater Hospital after the two living together for over 10 years.  That in the judgment and orders of 13th October 2015 the learned magistrate ordered the applicant to bear costs of  preservation of the deceased’s remain and the costs  of the suit.  That   in a burial dispute like this, each party ordinarily bears their own costs.  That she had in good faith deposited shs 300,000 in court as part of preservation costs of the deceased’s body.  That she has a meritorious appeal.  That she and her children had been barred from participating in the burial of the deceased which shall break her and her children as a family hence they should be allowed to participate.  That therefore the court should in the interest of justice stop the removal of the body from the morgue until the appeal is heard and determined.  The applicant also annexed draft Memorandum, of Appeal dated 15th October 2015.

4. Although the application was filed on behalf of the applicant by her advocates Billy Amendi & Company Advocates on 4th November 2015 the applicant filed notice of intention to act in person and proceeded with her application unrepresented.

5. The application  was opposed by  the 1st respondent Irene Wanjiru Mwangi who filed a replying  affidavit  sworn on 2nd November  2015  maintaining that the trial  court competently found that  the applicant   was not the  deceased’s wife and that the  order for costs  was a discretionary  one hence  the allegation that in burial disputes each party  bears their  own costs is unfounded. That the amount complained of was an integral part of the judgment of the trial court and there being no appeal filed, the orders of the trial court must be abided by. In addition, the respondent deposed that the deceased had already been buried hence there was nothing to be stayed.  Further,  that the applicant  had  not demonstrated  that she  deserved  the orders  sought  and that  her application  was intended  to frustrate  the respondent  and her children  from burying  the deceased. On 16th November  2015  the applicant  with leave of court  filed a  further  supporting  affidavit  annexing   judgment  in HCCA  286/2014 delivered  by myself on 9th  March  2015 and the mortuary  fee note from Mater  Hospital,  together  with a  Memorandum of Appeal  dated  15th October  with no Civil  Appeal number  2015. The applicant contended that the findings by the trial court on her status with the deceased was obiter dicta.  Further that the order for costs  is discretionary but the discretion must be exercised judiciously and that  in this regard  this court had by its judgment  in HCCA 286/2014  following an interlocutory appeal from the same lower court proceedings ordered  that each party bear  their own costs  of the appeal and of  review on the lower court ruling.

6. The applicant further deposed that she had filed Civil Appeal No. 496/2015 on 16th October 2015.  The applicant  further deposed that the 1st  respondent  had on 15th October  2015  after judgment by  the trial court  secretly paid mortuary  fees to the 2nd respondent and interred the deceased’s body on 15th October 2015 before 008 hours  unceremoniously despite the deceased’s social  standing in the society  as if he  was a criminal.

7. The applicant maintained that she has an arguable appeal which will be rendered nugatory unless stay on costs and status on marriage is stayed pending appeal.

8. The 1st respondent with leave of court filed supplementary affidavit sworn on 13th January 2016 rebutting the depositions of the applicant’s further supporting affidavit sworn on 12th November 2015.  She contended that the applicant’s reading of the court’s decision   was skewed.  That this court in its judgment   was dealing with security for costs and not party and party costs.  Further that stay is not absolute and that it was the first time a Memorandum of Appeal was being brought to her attention.  The  1st respondent further deposed  that she   was compelled  to pay mortuary  charges of over  1. 86 million as  well as legal  fees for Mater Hospital for  the hospital to release to her  the deceased’s body.  She also annexed certificate of search showing the ability of the applicant to pay costs since she had acquired a state of the art vehicle, a Land rover.

9. The parties agreed to file written submissions to dispose of the Notice of Motion dated 15th October 2015.  The 2nd respondent, Registered Trustees of the Mater Hospital did not, however participate in the proceedings.

10. In her detailed written submissions filed on 8th December 2015, the applicant reiterates the contents of her application, the grounds, and supporting affidavits   and gives   the background to the matter subject of this application.  She maintains that  her appeal  has high chances of success and that therefore  she should not be condemned  to pay costs  of preservation  of the deceased’s  body and of the suit  as the appeal shall be  rendered nugatory.  The applicant also relied  on decided  cases of Mary Wambui Munene V Peter Gichuki Kingara & 2  Others  SC Application 12/2014, EACJ decision  in Venant Masenge  V The Attorney General  of the Republic of Burundi  Application 5/2013 1st instance Division and CA Civil Application Nairobi 108/2013 Kenya Kazi Security Services Ltd V Kenya National Private Security Workers Union.

11. The  1st respondent’s submissions  were filed  on 15th January 2016  giving the  background  to the matter giving rise  to this application.  According to  the 1st respondent, the applicant  had not  fulfilled the conditions  under Order 42 Rule   6 of the  Civil Procedure  Rules for the  grant of stay of orders  pending  appeal.  Reliance  was placed  on several decisions  namely Halai & Another  V Thorntorn & Turpin [1963] Ltd [1990] KLR  365 where it  was held   that the court’s discretion to grant  stay is fettered  by three  conditions  under Order 42 Rule  6 (2)  of the Civil Procedure  Rules  which are: sufficient   cause being  established by the applicant’ the court being  satisfied that substantial  loss would  ensure  from a refusal  to grant a stay; and  that the applicant must furnish security and  that the application must be  made  without unreasonable  delay.

12. The  1st respondent submitted that  it had not been shown satisfactorily  that any substantial loss would   result if stay is not granted  and relied on the case of  Peter Ndungu Ngae & 2 Others Vs John Mungaro Karomo [2015] e KLR where  the court held that: “ Where  no pecuniary  or tangible loss is  shown to the  satisfaction of the court, the court will  not grant  a stay of execution.”On security for costs, it  was  submitted  relying on Kenya Tanzania Uganda Leasing Company Limited V Mukenya  Ndunda [2013] e KLR  that security  for  due performance   of decree must be  given to safeguard  the interests of  the successful litigant  who should  not be  denied the fruits of his  judgment   while balancing  that interest  with the interest of  the unsuccessful  litigant’s  undoubted right  of appeal so that his  appeal should not be rendered  nugatory. Consequently, that in a bid to balance  the two  competing interests  the courts  usually make an order for  suitable  security for the due performance  of the  decree as the parties wait  for the  outcome of the appeal.

13. It  was submitted that as the  applicant had not offered any security yet she is capable of raising  the same, it is  only  fair and  just that she deposits  the entire  sum paid by the 1st respondent  to the 2nd respondent  shs 1,186,842 in court before  being granted  a stay.

14. It was also submitted  that this application  was brought  after  unreasonable  delay and it  has been overtaken by events  because the  orders issued  on 13th October 2015  have already been implemented, and  the deceased  had already  been laid to  rest therefore  there  is nothing to be stayed pending  appeal.  Further, that the applicant does not deserve the orders sought herein to warrant the court exercising its discretion in her favour.

Determination

15. I have carefully considered the  application by the applicant Martha  Wambui  which application  was  prosecuted  by the applicant in person following  her filing of notice  of intention to act  on person on 4th November  2015.  The application was originally filed by the firm of Billy Amendi & Company Advocates on 16th October 2015.

16. Albeit the application seeks  for stay of execution of the judgment delivered on 13th October  2015 and its  subsequent  orders pending  hearing and determination of the  appeal herein; and that status  quo  be maintained  in the burial  dispute in that  the body of the  deceased should continue to be kept  at Mater Hospital pending  hearing and  determination of this appeal, no material  was placed before this court to show that an appeal  had been filed as  espoused d in Section 79G of the Civil Procedure Act.  Nonetheless, the applicant later submitted that she had filed an appeal vide HCCA 496 of 2015 which prompted this court to establish the existence of that appeal and indeed, the court has confirmed that the said appeal was filed in time as per the applicant’s further affidavit. Secondly, the court observes  that it is  not in dispute  that the subject matter  of the dispute  in Milimani CMCC 2923/2014  was the burial dispute  over the body of the deceased   John Mwangi Kariuki  and  by the judgment of Honourable L.W.Kabaria (MS)delivered on 13th October  2015, the said  body was released to Ms Irene  Mwangi  the 1st respondent   herein for  burial in conjunction  with the family of the deceased  led by Mr Kariuki  Ngotho the father of the deceased.

17. From the applicant’s own affidavit in support and her submissions, the deceased’s remains were interred on 15th October 2015.  It follows that there is no substance in the form of a dead body capable of being preserved or retained at the 2nd respondent’s facility until this appeal is heard and determined on merit however meritorious the appeal may be.  When  this issue  was brought to the attention  of the applicant   while this application  was pending, she changed  her position and sought for  stay of execution of costs of the suit and of execution of the order that she pays  the costs  of preservation of the deceased’s remains.  It is on the basis of the latter that this court did grant a temporary reprieve until delivery of this ruling.

18. The court also observes that the mortuary  preservation charges  have already been cleared  by the 1st defendant   and that  it  was that clearance  that facilitated  the execution of  the order No. 1  of the trial  court,  to have the remains of the deceased  John Mwangi Kariuki  released to the  1st  respondent for interment.

19. Accordingly, this court is of a very clear view that the  prayers regarding  the continued  preservation of the deceased’s  body at Mater Hospital  is overtaken by events  and it must  therefore  fail and   I hereby dismiss that prayer No. 3  of the Notice of Motion dated  15th October  2015  since courts cannot make  orders in a vacuum, which orders are  incapable of enforcement  and that   it would therefore  be a vain exercise of discretion.

20. What  remains on record being  capable of being stayed, therefore  is the order No. 2   and 2 wherein the trial court  ordered  the applicant herein to bear the  costs of preservation of the deceased’s  remains and that the shs  300,000 deposited  in court be part of what would be due to the  2nd respondent; and costs of the suit.

21. According to the applicant, she was dragged   to court by the 1st respondent and therefore she should not have been ordered to pay mortuary preservation costs.  Further, that in burial disputes, the lower court should have ordered that each party bear their own costs of the suit.  She   therefore  would pursue to challenge those  orders on appeal and seek for  their setting aside   because  she believes  she has an  arguable  appeal with high  chances  of success particularly on the  question  of whether or not she  was the deceased’s spouse.

22. My observation  on the issue  of who dragged the other to court between the applicant herein and the 1s respondent is that  the judgment in    CM CC 2923/14  is clear that  the applicant herein filed HCC 637/2014 seeking injunctive  orders against  the 1st respondent Irene Wangui and Mater Hospital to restrain  the removal or other dealing  with the body of John Mwangi  Kariuki and for the said body  to be released to the applicant herein and she even filed an application  simultaneously, seeking  similar orders.

The  1st respondent on the other  hand filed CMCC 2923/2014  and which  latter  suit  was  by consent  of the parties  recorded  on 27th May  2014  consolidated  with the  HCC 637/2014.  Accordingly, the idea of the applicant having been dragged to court does not arise, and I would dismiss that assertion.

23. The issue   for determination therefore is whether the applicant is entitled to  a stay  of execution  for costs  of preservation of the deceased’s body and costs of the suit in the lower court pending   appeal. In determining that issue, the court   must answer  the question of whether   the applicant has satisfied  this court on the conditions  necessary for the grant  of  stay pending  appeal and  if so, what orders should  this court  make.  Further who should bear the costs of this application?  On whether  the applicant  has satisfied  the court on the  conditions  necessary for  grant of stay  of  recovery of costs  pending appeal, the  applicant has maintained  in her submission that this being  a burial dispute, the court below should not  have ordered  her to pay costs  of the suit.  She cited  the decision of  this court  on the interlocutory  appeal wherein  I  ordered  that each party  bear their  own costs.  However, each case has to be considered on its own facts and circumstances.  In the  earlier  decision  by this court, albeit  the subject matter  was the  same burial dispute, costs  are in the discretion of the court  hearing  the case and  in any event, to the successful party.  In awarding costs, the court need not necessarily give reasons since the award of costs is dictated by Section 27 of the Civil Procedure Act Cap 21 Laws of Kenya.  However, it is  when exercising the  discretion  to deny the successful litigant  costs that a  court of  law must of necessity  give  reasons for  such exercise of discretion to deny  such successful litigant  costs.

24. In the instant  case, it is  worth  noting that  the applicant herein  had caused  the body of  the deceased  to be preserved  at Mater Hospital pending  hearing  and determination of the suit and the interlocutory appeal wherein she   was partially successful.  She had also sought for mandatory injunction which the High Court declined to grant her at the interlocutory stage.  She had claimed that she was the deceased’s wife, which fact the trial court found was not proved to the required standard of balance of probabilities.

25. To order for stay of execution  for recovery of costs of the suit and costs  of preserving the deceased’s  remains at Mater Hospital pending hearing  and determination  of the intended  appeal, the applicant must satisfy the court on the conditions  set out in Order  42  Rule  6(2)  of the Civil Procedure Rules that:

1. The application is filed timeously and without undue delay.

2. That the applicant shall suffer irreparable/substantial loss unless stay is granted and that the appeal, if successful shall be rendered nugatory.

3. That the applicant has deposited security fir the due performance of decree.

26. On the  first  condition  of whether  the application  herein  was filed without  undue delay, the judgment  of   the lower court  in Milimani CMCC 2923/2014  was delivered on 13th October  2015.  The application for stay   was filed under certificate of urgency   on 16th October 2015, just three days after delivery of the judgment.  That being the case, I have no difficulty in finding that the application  was filed timeously and without  undue delay.

27. On whether  failure to grant  stay will occasion the applicant  substantial loss, what the applicant  concentrated  on in her  application is  for stay of removal of  the deceased’s  body from the morgue  for burial  which prayer  has been overtaken by events  following the release  of the deceased’s remains to the 1st respondent for interment  about  2 days  after the judgment  in the lower court  was delivered.  In  her submissions, the applicant has dwelt on how her appeal  has prima facie  high chances  of success and that  therefore   she should not  have been ordered  to pay costs  of preservation which are  discretionary and that the  trial court ignored the  decision of this court on the interlocutory  appeal that   since it   was a burial dispute   between two alleged windows, each party bears its own costs.  However, she has not demonstrated what substantial loss she will suffer if the order of stay is declined.  It should also be  noted that  costs for preservation of the deceased’s body in the  morgue  had to be paid  anyway, whether by the 1st respondent  or any other party interested  in the body of the deceased, for causing the delay  in its removal for burial without any probable cause.  There could have been no  discretion to be exercised in such a case  to the  detriment   of the 2nd  respondent who  was only retaining the body for preservation as the real interested parties  battled it out  in the  court corridors  for justice.  It therefore  follows that  in all fairness, there  in no way the trial court  could have  ordered  that each  party bear their own costs  of preserving  the deceased’s  remains  in the  2nd respondent’s morgue  for all the over one year.

28. In Charles Gichina Mwangi V Henry Mukora Mwangi [2000] e KLR  the Court of Appeal  held that where there  was evidence  that the order  sought  to be stayed  had been complied  with, then it would be superfluous to stay execution  pending appeal.  The court stated:

“………..in the circumstances there is nothing   t stay.  That being the position, the application for stay must be, as it hereby is, dismissed with costs…..”

29. In this case, having found that  the nature of the orders sought to be stayed  include  the stay or removal  for interment  of the body of the deceased  which body  has already been removed  and buried; and therefore what   remains is the issue of   costs of preservation of the deceased’s  body at the 2nd  respondent’s  facility  and costs of the suit, I find that it has not been demonstrated that  the applicant  shall suffer  any substantial  loss if she  pays the costs  for mortuary charges  and costs of the suit and  that therefore if the appeal succeeds  then  the said appeal shall be rendered  nugatory. It   has also not  been shown that should the applicant settle  the costs as  ordered  which include  shs 300,000/- earlier deposited   as security  for costs  then she shall be unable to recover the same from the 1st respondent  who is the deceased’s widow.  The 1st respondent swore an affidavit showing that   the applicant was a person of means and that she had acquired   a Land rover station wagon KCA O80B and that therefore it follows that her earlier allegation that she was unemployed and unable to raise security for shs 500,000 costs is no longer   the factual position.  The trial court ordered for the security for costs of shs 300,000/- to be part of the mortuary charges.  The applicant has offered that the shs 300,000 deposited in court be retained as sufficient security for the due performance of decree.

30. From the above exposition, it is clear that there is no demonstration that the appeal shall be rendered nugatory if stay is declined.  It has however been shown that the application was filed timeously and that the applicant is willing to deposit security for the due performance   of decree. In any event, the issue of deposit of security for the due performance of decree is not a matter of willingness by the applicant, but for the court to determine. In this case, although the 1st respondent maintained that all the conditions under Order 42 Rule 6(2) of the Civil procedure Rules must be fulfilled before stay is granted, this court finds it otherwise. Grant of stay being a discretionary order, and the fact the court is expected to balance out the interests of the successful litigant and the applicants’ unfettered right to file an appeal to fully ventilate her grievances  means that the court has discretion to consider other factors such as good cause being shown why stay should be granted. And  in order not to oust the applicant from the judgment seat  on her  appeal challenging the order for payment  of costs  of preserving the deceased’s  body in the morgue and  costs of the  suit in the court  below, I make the following orders:

a. That there   shall be  stay of execution for recovery of costs  of the suit in the court below and costs of preserving the deceased’s body at the Mater Hospital as ordered  by the trial  court pending  hearing and  determination of the appeal as filed  conditional upon the  applicant  depositing  into court  an additional  sum of shs one million ( shs 1,000,000) within 60 days  from the date  hereof). This is in addition to the shs 300,000/- earlier on deposited in court as security for costs. These sums shall be security for the due performance of decree making a total of 1,300,000.

b. In default of (a) above, the sum of shs 300,000 as deposited  in court to be released  to the 1st respondent  as part of costs for preservation of the deceased’s body and the  1st respondent be at liberty  to execute  for recovery of the balance  of the mortuary charges  and costs of the suit.

c. The applicant to compile, file and serve a complete record of appeal within 90 days from the date hereof. In view  of the revelation that there  is an appeal HCA 496 of  2015  I direct that this file  be kept together  with HCA 496/2015 and be kept by the Deputy Registrar  in the strong  room for  safe custody.

d. This matter to be mentioned before the deputy Registrar on 14th July, 2016 to confirm compliance with orders No.  (a)  and (c) above.

e. Costs of this application shall be in the appeal.

Dated, signed and delivered in open court at Nairobi this 12th day of April 2016.

R.E. ABURILI

JUDGE

Ruling read and pronounced in open court as scheduled in the presence of:

Ms Martha Wambui the applicant in person

Miss Wambugu holding brief for Mr Mukele for the 1st respondent

N/A for 2nd respondent

Court Assistant: Henry

R.E.ABURILI

JUDGE