Silas Mugendi Nguru (suing as the legal Representative of the estate of Lucy Njoki Kithaka v Nairobi Women’s Hospital [2015] KEHC 7464 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE NO.  34 OF 2013

SILAS MUGENDI NGURU (suing as the legal Representative of the estate of LUCY NJOKI KITHAKA ………………………….…PLAINTIFF

-VERSUS-

THE NAIROBI WOMEN’S HOSPITAL…………......................................................................................................................................…...DEFENDANT

RULING

By an application dated 23rd April 2014, the applicant the Nairobi Women’s Hospital seeks from this Court orders:

Spent

The court be pleased to stay execution of the decision of the court against  the defendant, all proceedings and any consequential  orders  that may be issued  including  any warrants  of attachment  pending the hearing  and determination of this application  interpartes.

The court be pleased to set aside the default judgment entered against the defendant herein.

The defendant be given an opportunity to unconditionally defend the case on merit.

The costs of the application be provided for.

The application is predicated on the grounds that:

Failure to file a defence in time was neither deliberate nor callous.

The  defendant has a bona fide  good  defence to this action;

It is in the interest of justice and fairness for the defendant to be allowed to defend the suit.

The award is substantial and the defendant shall be highly prejudiced  if the application is not granted.

No undue prejudice will be visited on the plaintiff as they will have an opportunity to respond.

The application is further supported by the affidavit of Doctor Majid Twahir and annextures thereto.

In his supporting affidavit sworn on 23rd April 2014 Doctor Majid deposes  that he is  the Executive Director  of the defendant hospital  and admits  that indeed  Summons to Enter Appearance (STEA) in this case  were served  upon the  hospital  on 13th February  2013  through  their receptionist but unfortunately,  and  out of ignorance, the receptionist batched  the STEA  with  other incoming  documents  for the day  and  made no further reference  to the matter. That the procedure in the hospital administration is that such documents/processes involving claims would have been handed over to ICEA their insurers through the Pacific Insurance Brokers (EA) for instructing an advocate to act for the defendant but that that was not done in this case.

That in this case, the documents  were filed in the deceased/ patient’s  file and not  acted upon, which inaction  was also contributed  to by the ongoing restructuring, transfers  as well as  registration of some staff which default  culminated  in judgment  in this case being entered against the defendant  on 1st April 2014.

That  the plaintiff was also  negotiating with   the defendants’ insurers with a view to an out of  court settlement  of the claim hence  it was not expected that the plaintiff  would go to  court severally without notifying the defendants or their insurers.

That  the Executive Director only learnt  of the  judgment  herein when he came  across a headline  in the print  media  that there was judgment  against the hospital  for  9 million captioned “Hospital  to pay  man 9 million  for the wife  who bled to death,” after which he  reported to the insurance brokers   and on calling  for the patients’ file he also found the case  reported on Kenya Law Website  and constituted  a panel of doctors  to peruse  the judgment   who also perused  the patients’ file and found that the hospital has a good defence  to  the claim as shown by a draft  defence  annexed.

The deponent further avers that there are serious bona fide triable issues among them

Whether the defendant was negligent as alleged by the plaintiff.

Whether   the death of the deceased was as a result of the alleged negligence.

Whether the plaintiff is entitled to damages.

Who should bear the costs of the suit?

It was further deposed that the defendant shall be prejudiced if the matter  does not  go to full trial hence  judgment  entered  in default  of appearance  and or defence  should be set aside  and the defendant allowed  to file its defence  to the suit  as it is  in the interest of justice to have the  suit heard  interpartes  on merit.

The plaintiff/respondent filed a  replying affidavit  on 15th May 2014, sworn by  himself on the same date  opposing  the defendant’s  application and contending  that the judgment  entered against  the defendants was regular  and lawful and the  same should not  be disturbed  since the defendant and their insurance  company had  notice  to sue  as well as summons to enter appearance  and pleadings  served on 15th February 2013.

That upon service of STEA upon the defendant the defendant’s  insurers   did  write to  the plaintiff’s advocates  on 7th March 2013  seeking  for indulgence  as they  had instituted  investigations into the matter but the defendant went  quiet  even  after the plaintiff’s advocate  responded to that letter notifying  them that  suit had been instituted  against  their insurer.

That  the purported  defence is a  mere sham meant to  delay the enjoyment  of the plaintiff’s fruit  of his judgment  and that Doctor  Njue represented  the defendant  during the autopsy carried out  on the deceased’s body  and that  he did not object  to the findings hence  the application should not be allowed as the defendant  had many opportunities  to be heard  in defence  but they squandered  their opportunity.

In their supplementary affidavit  sworn on 4th July 2014  by Lucy Muriithi the  Deputy Manager, Legal  Department  of ICEA Lion General Assurance Company Limited, the defendant’s  insurers,  she  deposes  that the company  was neither served with letter or  court summons in the suit  as alleged .

In a rejoinder, the plaintiff  filed a  further affidavit  on 11th August  2014  asserting  that  his advocates maintain writing  letter dated 15th March 2013  to ICEA Lion Insurance which letter was received on the same date as  shown by exhibit SM5 copy of the said letter  with an  acknowledgment  stamp and signature.

The parties were encouraged by the court to attempt a negotiated settlement but they could not agree prompting a hearing to determine   the application on merit. Both parties filed authorities supporting their respective positions and appeared before me for oral submissions on 5th February 2015.

In support of the application, the defendant’s counsel Mr Mwai  submitted, relying on the grounds, supporting and further  affidavits  referred to above and cited authorities   filed on 7th July 2014 and 2nd February 2015  respectively and annextures  to the supporting  affidavits.

He submitted that the defendants  admit being  served with STEA but  that the court  should accept  the explanation given for failure  to enter appearance and file defence  and set aside  judgment  in default as such failure  to defend  the suit was  not deliberate.

Further,  that the defendant  has a bona fide  defence that  raises  triable  issues  and being  a hospital that offers charitable  services  and not for profit, it stands  to suffer substantially as the award of over 9 million  in favour  of the plaintiff is substantial.

He urged  the court to find that  there was excusable  mistake, relying  on the case  of Pharmaceutical  Products  Limited vs Development  Bank of Kenya  & 2 others (2004) eKLR.

Further, that the  court in the  above  case after  finding that there  was excusable mistake set aside  default  judgment  and ordered thrown away costs  and costs of  the application which this court  can order the defendant to pay the plaintiff  and that the plaintiff shall in no way be prejudiced  if judgment  is set aside  and  the defendant  is granted leave to  defend the suit.

Relying on the case of DT Dobie vs Joseph Rading Wasambo CCA 38/98, Mr Mwai submitted that the inconvenience caused to the plaintiff can be compensated by an award of costs since the draft defence raises triable issues.  The same argument was advanced in reliance on the case of Josam Ltd vs Mary Wanjiru & another (2014)e KLR.

Mr Mwai prayed for the orders sought  pledging to have the matter fast tracked  and heard  expeditiously.

In opposition, Mr Midikira  advocate  for the plaintiff relied on his client’s replying  and supplementary affidavits and annextures thereto and the authorities filed contending  that the defendant’s application  had no merit  as it had not  satisfied  conditions  for setting  aside  judgment  in default .  First, that it had not been shown that there was  an excusable mistake and or a  defence  on merit.  That the defendants  and their insurers deliberately  refused to defend  the suit and even  after being  notified  severally prior  to the filing  of suit, they  deliberately ignored to respond hence could not now be  heard to  plead excusable  mistake since  the judgment  as entered  was  regular.  That this court should examine the draft defence and find that it raises no triable issues as is premised on matters which were not challenged i.e. the post mortem report of the deceased.  Mr Midikira  relied  on the decision  filed in HCC 2919/96 – Manju Patel vs  Express (k) Ltd, HCC 40/2013 Sameer  Africa Ltd vs Aggrawal & sons Ltd CA/15/2010  Amanyi  Okumo Kasiala  & Zolles  vs Moses Okware Opau & another (2013) e KLR;which decisions  the courts analyzed the issue of  whether  there was  defence  that raised triable issues.  He  further submitted  that the plaintiff shall be highly prejudiced  if  judgment which is  regular is set  aside owing to the defendant’s don’t care  attitude and that if they  are allowed to defend the suit they  must  deposit security.  He urged the court to dismiss the defendant’s application with costs.

In a brief rejoinder, Mr Mwai maintained that the  letters  referred  to by Mr Midikira and  his client  were not  written to  the defendant  and that this  court should examine  the plaint  and draft defence to establish  what triable  issues are  since the claim is not admitted and if  allowed to adduce evidence  the defendant  would demonstrate  that it has a good defence  to  the claim.  He dismissed authorities relied on by the plaintiff as not being  relevant  as the courts found that the defence  did not raise  triable issues  and that the  cause  of action  in the cited  cases is different  from this case  which is  premised on professional medical negligence where experts have to be called to testify.  He urged the court to allow the application as prayed.

Analysis  and determination of issues.

I have carefully considered the defendant’s application for setting aside the exparte judgment in default of appearance and defence and the opposition thereto by the plaintiff.  The main issue for determination  in the application is whether the  defendant  has made  out a case  for the setting aside  of the exparte  judgment  which was  regularly entered  in default  of appearance  and or defence  and if so, on what terms.

The applicable law on the setting  aside  of exparte judgment  in default  of appearance and or defence  is  order  10 Rule  10 and 11 of the Civil Procedure  Rules which provides:

“Where  judgment  has been entered under  this order the court may set side  or vary such  judgment  and any consequential decree  or order upon  such terms as are just.”

Under Order 10 Rule 9:

“ subject to Rule 4, in all suits not otherwise specifically provided  for by this order where any party served does not  appear the plaintiff may set down the suit for hearing.”

The power of the court to set aside judgment in default is a discretionary one, albeit that discretion should be exercised judiciously.

In the instant case, it is not in dispute that the defendant was served   with summons to enter appearance on 15th February 2013 as it is readily admitted by the defendant.  The only issue  is whether  the failure to enter  appearance and or file defence  giving rise to exparte interlocutory  and final judgment after formal  proof  hearing by Waweru J on 1st April 2014 was  by “mistake” or inadvertence and whether that “mistake” is excusable.

In the exercise of the unfettered judicial discretion to set aside exparte judgment the court must look at all circumstances of the case, bearing in mind that concern to do justice to the parties.  Injustice to a party arising out of accidental slip, inadvertence or excusable mistake or error must be avoided.  In addition, that discretion is not intended to aid a party who deliberately seeks to obstruct or delay the court of justice.

The court  must also consider  whether  the draft intended defence  raised triable  issues  and whether  an award  of costs would  be reasonable  compensation to the plaintiff for the delay, trouble or inconvenience  occasioned .  Finally, the court  must also  remember that to shut a litigant out of the court should be the court’s last resort (see  HCC 572/2003- Pharmaceutical  Products Ltd vs Development  Bank of  Kenya  & 2 others Waweru J on 27th October 2014.

The defendant  herein has gone  to great lengths to explain the circumstances under  which they  received STEA & pleadings and  mistakenly filed them away and  only learnt  of the judgment  after the same was  reported  in the media.  Further, that they have a defence which raises triable issues.  On the other hand, the plaintiff  maintains that the defendant  and their  insurers  deliberately ignored  notices  before and  after  institution of suit, an indication that they  were  not interested  in defending  or settling  the matter  but to delay and deny the plaintiff  his lawfully obtained  judgment and that in any case the defendant  has  no defence  on merit  as the suit  is predicated  on a post mortem report which was  witnessed  by their representative  Doctor Njue  who never  contested the cause of the  deceased’s  death as  a result  of medical negligence.

I have  anxiously considered the parties  respective  positions  as deposed  and  submitted and I am  satisfied that  the defendant’s  failure to enter appearance  and or file  defence was  due to  an excusable  mistake  and  which mistake  occurred when  the receptionist  who received  the STEA and pleadings  filed them away in the patient’s  file instead  of bringing  them to the  attention  of the management  responsible  for legal processes. I am also  satisfied that  the mistake  was discovered after  judgment  was placed  in the media  and Doctor Majid  read about it, prompting  action to set it aside.

I note  that albeit  the defendant  and their  insurers  were notified of the intention  to institute  legal proceedings  and that  they did not  pay heed, nonetheless they have been  awakened  by a regular judgment  on record and they have shown  a genuine  interest  to defend the suit as  shown by  their filing of draft defence.  As to what constitutes a mistake, the case of Belinda Murai & others vs Amos Wainaina (1978 ) KLR 278 per Madan JA with approval by Nyeri CA 18/2013 Richard Ncharpi Leiyagu vs IEBC & 2 Others – Visram, Koome & Odek JJA is instructive that a party  ought not to be denied an opportunity  to ventilate  his  grievances  as that would  oust them from the judgment seat.

In the Belinda Murai & Others (Supra) case, Madan JA held:

“A mistake is a mistake. It is no less a mistake because it is  committed by Senior Counsel .  Though in the case of junior counsel the court  might  feel compassionate  more readily.  If  a blunder  on a point  of law can be  a mistake, the door to justice is not closed because a mistake  has been made by a lawyer  of experience  who ought to know  better.  The court may not condone it but it ought to certainly to do whatever   is necessary to rectify it if the interests of justice so dictate.”

The leaned Judge of Appeal further went on to state that:-

“ It is  well known that courts of law themselves  make mistakes which  is politely  referred to as erring  in their interpretation  of laws  and adoption of  legal point of view which courts  of appeal sometimes overrule………”

In Phillip Chemwolo & Another vs Augustine Kubende (1982-1988) KAR at 1040, Apallo J (as he then was)  and cited with approval Nyeri CA 18/2013 Richard Ncharpi vs IEBC (Supra)  the Court of Appeal posited that:

“Blunderswill continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having   his case heard on merit.  I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs.  The court as is often said exists for the purpose of deciding rights of the parties and not the purpose of imposing discipline.”

In this case, I note  that upon the  judgment  being delivered by Honourable Waweru J on 1st April 2014 after  formal proof hearing  on 5th February 2014, the media  picked it up  and published  it on 9th April 2014  and on  23rd February 2014  which was within 2 weeks, the defendant  filed  the application to set aside  the exparte  judgment.  In my view, the application  was filed timeously  and a hearing date was secured  under certificate of urgency  and the delay  in disposing  of the application  was caused by  the court urging  the parties to try a  negotiated amicable  settlement.  The parties did accept  the courts’ proposal and reported  to court  from time to time  on the progress  but when it became  apparent that they could not  agree, they were given a hearing  date expeditiously  and this ruling  has also been delivered on schedule  taking into account the  heavy workload held by this court.

I do not find any evidence that there was fraud or that the defendant deliberately intended to overreach or delay or obstruct the course of justice for the plaintiff.

I have also examined the draft intended defence and I am satisfied that it raises triable issues.  As to what triable issues constitute, In Lalji T/A Vakkep  Building Contractors vs Casousel Ltd  (1989) KLR Nyarangi,Platt JJA  and Kwach, Ag JA) held:

“……………A trial must be ordered if a triable issue is found or one which if fairly arguable is found to exist.”

In AAT Holdings Ltd vs Diamond  Shields , International Ltd (2014) e KLR the court in considering  principles to guide the exercise  of discretion  in determining  an application for summary judgment  and in deciphering whether  there were triable  issues in a defence held, inter alia that :

“…..2.  That a trial must be ordered if a bona fide triable issue is found or one which is fairly arguable is found to exist.  But a triable issue does not mean that which will succeed.  It means an issue which raises   a prima facie defence and which should go to trial for adjudication.  See the opinion of Duffus P and Sheridan J, in Patel vs EA Cargo Handling Services Ltd (1974) EA 75.

3. But a trial should not be ordered in a case where the court strongly feels  it is justified in thinking that the defence raised  is a sham……..”

Applying  the above principles  to the instant case, it is not in  dispute  that the plaintiffs claim against  the defendant  is general as well as  special damages arising from the  alleged medical negligence  by the  defendant  which led to the very  unfortunate death of the plaintiff’s wife  Lucy Njoki Kithaka (RIP).  The draft defence denies that the defendant was negligent in the manner in which it handled the deceased and or that she died as a consequence of the alleged negligence.

In my view, the above two opposing positions in themselves prima facie raise a triable issue which need not necessarily succeed after the full hearing.

This court employs  the principle that all parties to a dispute are  entitled to be heard to ventilate  their grievances arising  from the right to access justice  as  guaranteed  under Article  48  of the Constitution.  Thus, whereas the plaintiff may be  inconvenienced  by the mistake and delay  in enforcing  the regular lawful judgment  on record, on the  other hand, there is the defendant who  is eager to be accorded  an  opportunity  to be heard and therefore it should not be driven from the  judgment seat.

The novel and delicate balancing act of ensuring expeditious access to justice and the right to be heard by both parties is to exercise the unfettered discretion to allow the case to be heard and determined on merit.  The plaintiff, in my view, can be adequately compensated  by an award of costs of  the application and  thrown away costs, besides an order  for fast tracking of  the hearing of  his  case to ensure  expeditious, fair  and proportionate  and economical  disposal  of the case  herein.  This decision is arrived at with a view to protecting a guaranteed right to be heard, which is also the cornerstone of the rule of law and good governance.

I find all the authorities cited by the defendant, in addition to the ones I have cited above, are relevant an applicable to the circumstances herein. On the other hand, the plaintiff’s  authorities  cited are applicable  but in  circumstances  where the court  finds that  indeed  the draft defence  raises no triable  issue.  As I have stated, I find that  the draft defence  exhibited  raised  triable  issues  among them, whether  the defendant  was negligent  and whether  that negligence  was responsible  for the demise  of the deceased  Lucy Njoki Kithaka who was their patient.  It is an issue which will be determined only after calling expert evidence.

For the above reasons, I allow the defendant’s application dated 23rd April 2014 and set aside the exparte judgment delivered on 1st April 2014 by Honourable Waweru J.

I further order that the defendant shall within 7 days from the date hereof enter an appearance and file defence.  In addition, the  defendant shall bear the costs of the application herein and pay to the plaintiff thrown away costs  of kshs 35,000/- within  14 days  from the date  hereof.  In default of any  of  the orders  herein above  made, the order  setting  aside  an exparte regular judgment being a discretionary one, shall lapse  and the plaintiff shall  be at liberty  to execute decree.

Dated, signed and delivered in open court at Nairobi this 29th day of April 2015.

R.E. ABURILI

JUDGE

29. 4.2015

Coram Aburili J.

C.C. Kavata

Mr Rono for defendant/applicant

Miss Chepkurui holding brief for Mr Midikira for Plaintiff/Respondents.  COURT- Ruling read and delivered in open court this 29th April 2015 at 4. 15 p.m.

R.E. ABURILI

JUDGE

29. 4.2015