Watatua v Avenue Hospital Limited [2022] KEHC 13874 (KLR) | Interlocutory Applications | Esheria

Watatua v Avenue Hospital Limited [2022] KEHC 13874 (KLR)

Full Case Text

Watatua v Avenue Hospital Limited (Civil Case E164 of 2022) [2022] KEHC 13874 (KLR) (Civ) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13874 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E164 of 2022

JN Njagi, J

October 12, 2022

Between

Arthur Watatua

Plaintiff

and

Avenue Hospital Limited

Defendant

Ruling

1. The applicant has filed a Notice of Motion dated August 31, 2022 under the provisions of section 3A of the Civil Procedure Act seeking for orders that the respondent deposits an amount of Ksh 5 million as security to cater for the applicant`s future medical expenses during the dependency of this suit.

2. The application is based on grounds on the face of the application and supported by the affidavit of the applicant. The background to the application is that the applicant has sued the respondent in the instant suit claiming damages after the respondent allegedly carried out a bogged operation on the applicant that resulted to him experiencing kidney failure. The applicant has as a consequence to undergo renal dialysis two days in a week. The suit is yet to be heard. The applicant has in the meantime filed the instant application seeking for the prayers stated above.

3. The application was opposed by the respondent vide the replying affidavit of his advocate, Mr Christopher Chengecha, who deposes that the matters complained of in the application are matters of fact and evidence that can only be ventilated upon full hearing and that the same cannot be determined at interlocutory stage of the proceedings. That it is trite law that special damages must be specifically pleaded and proved and cannot be the subject of speculation and cannot be awarded at interlocutory stage. That the application is thus an abuse of the court process.

4. The application proceeded by way of oral arguments by the respective advocates for the parties. Miss Njoroge while holding brief for Mr Mereka for the applicant submitted that the court has powers to make the orders sought under the provisions of setion 3A of the Civil Procedure Act which section gives the court power to make any orders so as to meet the ends of justice. That the respondent made an undertaking to meet the claim but has not done so. Therefore, that the respondent should be ordered to deposit the money to take care of the medical expenses of the applicant.

5. Mr Chengecha for the respondent on the other hand argued that the orders sought cannot be granted at interlocutory stage. That the application assumes that there is liability on the part of the respondent while there was no admission on liability. That the claim is based on negligence which has to be proved. That there was no undertaking to pay. That the respondent has a right of being heard and cannot be held liable before he is heard.

6. Counsel further submitted that the figure being claimed is speculative and they do not know how it has been arrived at as the court is yet to assess the damages.

7. I have considered the grounds raised in the application and the grounds in opposition thereto. I take note of the fact that the claim by the applicant is based on medical negligence. The applicant is basically seeking for payment before judgment and before the issue of liability is determined. The court takes the view that negligence has to be proved. Whereas the appellant contends that there was admission of liability on the part of the respondent, the respondent takes the position that there was no such admission. Neither is there an admission that there was an undertaking by the respondent to pay the claim. The suit is therefore being hotly contested by the respondent. To order the respondent to meet the claim at this stage would amount to condemning them unheard which would amount to a travesty of justice. The court therefore agrees with the submission by the respondent that the orders sought cannot be made at interlocutory stage and that the application is an abuse of the court process.

8. The upshot is that I do not find merit in the application dated August 31, 2022. The same is dismissed with costs to the respondent.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF OCTOBER 2022. J. N. NJAGIJUDGEIn the presence of:Miss Njoroge holding brief Mr. Mereka for Applicant.Mr. Ngechecha for Respondent.Court Assistant: Ubah.30 days R/A.