1. By Notice of Motion Application dated 6th February, 2025 filed under a certificate of urgency of even date and supported by the affidavit of KELVIN AMUNYA ARAM sworn on 6th February, 2025; the Petitioner/Applicant seeks the following orders:
i) Spent
ii) That this Honourable Court be pleased to issue a conservatory order compelling the Respondent to release the Petitioner from the unlawful detention and discharge him forthwith pending the hearing and determination of this application.
iii) That this Honourable Court be pleased to issue a Conservatory order compelling the Respondent to release the Petitioner from unlawful detention and discharge him forthwith pending the hearing and determination of this Petition.
iv) That the OCS of Parklands Police Station to see to the enforcement of the said Court orders.
v) That the Costs of this Application be in the cause.
2. The grounds upon which the instant Notice of Motion is founded are set out on the face of the application and are further expounded in the supporting affidavit of KELVIN AMUNYA ARAM.
3. The Petitioner swore that he is Kenyan Citizen Holder of the Kenyan National Identity Card 35461827 and resides in Kibera within Nairobi County. He stated that on 10th January, 2025 he was walking to work along Kilimani area when he was knocked by motor vehicle registration number KCS 749C. He became unconscious and sustained injuries. At the time that he regained his consciousness, he found himself at the Respondent’s Medical facility in Parklands Avenue. The attending doctor informed him he was taken to the facility by the driver of the vehicle that had knocked him.
4. He thus continued receiving medical care at the facility from that day 10/1/2025 to 17/1/2025 when he had made significant progress towards recovery and was thus ready for discharge. He was informed that the he needed to clear the medical bill which stood at Kshs.281,670/- after discounting the Kshs.50,000/- that the driver of the vehicle that hit him deposited at the time of the Petitioner/Applicant’s admission at the Respondent facility.
5. The Petitioner stated that he could not raise the demanded amount since he only depended on casual jobs to meet his basic needs. He disclosed that barely a week before the accident is when he had secured a casual job at Jabson Enterprises as evidenced by the annexed copy of the Muster-Payroll to the affidavit and marked AKK-3. He deposed that he informed his family members who mobilized resources and raised Kshs. 50,000/- that they ready and willing to pay to secure his discharge and enter into an undertaking to clear the remainder by monthly instalments but the respondent has been adamant and has insisted deposit of security which must either be a logbook or title deed. That his family does not have access to the such security documents as the parents are peasants with no dependable income and no well-wisher has come forward to assist hence he remains detained in hospital without any certainty as to when he would be released.
6. He swore that his movement at the Respondent’s medical facility is highly restricted and is not allowed to leave the ward where any movement he makes is treated with suspicion of escape and even getting basic necessities itself a challenge as he is no longer considered a patient. That as a result, the continued confinement has subjected him to mental anguish, sleepless nights, agony, shame and self-pity which has left him wondering why he should face the treatment of a 2nd class citizen for such a period (21 days then) just because of his financial status.
7. That he has even offered an alternative proposal to the Respondent including following up on insurance claim from the insurer of the vehicle that knocked him and pay the whole amount using the compensation but this has also not been accepted by the Respondent.
8. He disclosed that the police visited him at the hospital recorded his statement and issued him with a P3 form that ought to be filled by an authorized medical officer in a government facility after examining him but this is not possible due to his continued detention.
9. He maintained that the Respondent is holding him against his wish yet he has not declined to pay the Bill and there are other alternatives that the Respondent can use to recover the outstanding Bill.
Respondent’s Response
10. The Respondent filed responded to the Petitioner’s application through the replying affidavit of DR. ABDULAH MOHAMED.
11. The Respondent disclosed that that the Petitioner/Applicant was attended at the facility on emergency basis where he was offered medical attention and treated professionally until he was ready for discharge.
12. He stated that the Petitioner/Applicant is not being held or detained illegally at the facility because all the Respondent wants and has requested is for the security and reasonable undertaking from the Petitioner or a guarantor which has not been done. That the Respondent is ready to enter into a contractual agreement with the Petitioner on payment proposal and surrender of security and/or suitable guarantor.
13. He maintained that the Petitioner’s rights ought to be weighed with those of the Respondents right to demand payment for services rendered considering that the Petitioner walked into a private medical facility where he has paid Kshs.50,000/- and the outstanding sum now stands at Kshs.269,350 as at the date of discharge per invoice ‘AM 1.’ The Respondent deposed that allowing the Petitioner to be released scot-free will jeopardize the Respondent’s right to civil recovery and lead to economic loss and even closure of the institution.
Petitioner/Applicant Submissions
14. Mogaka Nyandika Muriuki & Company Advocates filed written submissions dated 12th February, 2025. Counsel reiterated the factual basis for the application.
15. It was submitted on behalf of the Petitioner/Applicant that he was being held in hospital for purposes of enforcing the payment of the outstanding medical bill which is contractual debt. Counsel while acknowledging that the hospital bill is not in dispute and that the Respondent has a right to own property under Article 40 of the Constitution, nevertheless argued that the Petitioner was equally entitled to the rights enshrined in Articles 27, 28, 29 and 39 of the Constitution. Reference was also made to Article 11 of the Convention on Civil and Political Rights which states no one shall be imprisoned merely on ground of inability to fulfil a contractual obligation as this has a bearing to right to equality, freedom against discrimination, human dignity and freedom and security of the person and movement.
16. Relying on the two authorities of Sonia Kwamboka Rasugu v Sandalwood Hotel & Resort Limited T/A Paradise Beach Resort & Leon Muriithi Ndubai (2013) eKLR; and, Christine Kidha v Nairobi Women’s Hospital (2016) eKLR; Counsel submitted that Courts have held detention of a person cannot be lawful if it is caried out by an unlawful authority, and also, even if done by a lawful authority, it must be in conformity with the procedural law.
Respondent’s Submissions
17. Mandala and Company Advocates filed written submissions dated 19th February, 2025 on behalf of the Respondent. Counsel began by submitting that the Respondent is opposed to the unconditional release of the patient as the Court has a duty to balance both the rights of the Petitioner under Article 29 and those Respondent under Article 40 of the Constitution in arriving at its decision. Counsel underscored that the Respondent is still willing to release the Patient on condition that suitable security/guarantor and or clear written undertaking is agreed upon with the intent of safeguarding the Respondent’s right to property and manage its business competitively and ensuring other patients receive medical care.
18. Counsel relied on the case of Emmah Muthoni Njeri v Nairobi Women Hospital where he submitted that the Court allowed for conditional release.
Analysis and Determination
19. There are is only one issue for determination in this application, that is:
Whether the applicant has satisfied the threshold for grant of conservatory order
20. The power of the Court to grant conservatory order is provided is provided for in Article 23(2) (c) of the Constitution as read with Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which state as follows:
Conservatory or interim orders.
i. Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.
ii. Service of the application in sub rule (1) may be dispensed with, with leave of the Court.
iii. The orders issued in sub rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court.
21. Enunciating the guiding principles in an application for a conservatory order, the Court in Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court (2016) eKLR held as follows:
“a. An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
b. Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and
The public interest must be considered before grant of a conservatory order.”
22. Similarly, in the case of Board of Management of Uhuru Secondary School v. City County Director of Education & 2 Others [2015] eKLR the Court held:
“25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice….
26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….
28. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….
29. Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….
30. The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.
31. Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless.”
23. In instant case, the issue at hand is the detention of the Petitioner in hospital to secure the payment of the medical bill. The Respondent insists that the Petitioner cannot be released unless there is deposit of appropriate security to guarantee the payment of the outstanding bill.
24. The Petitioner deponed that he does casual jobs for a living and that his parents are peasants who do not have a land title deed or a log-book which are the security documents the Respondent has been insisting on in order to allow him leave the hospital. He stated that the family has tried to find well-wishers to chip in but none has come forward so far. He thus fears that in his current situation, unless this Court intervenes it uncertain when he will ever leave the hospital even after being treated was due for discharge on 17th January, 2025.
25. Jurisprudence pertaining to this issue is now firmly settled. Courts have consistently held that detaining of persons without a lawful order so as to compel the payment of a debt is unlawful. In Sonia Kwamboka Rasugu v Sandalwood Hotel & Resort Limited T/A Paradise Beach Resort & Leon Muriithi Ndubai 2013] eKLR the Court observed that:
“…any form of detention not sanctioned by the law that seeks to procure performance of contractual debt is a violation of the right to liberty…”
26. The fact the facts demonstrate that despite the Petitioner having been fully treated and recovered, he is being held in the hospital against his will but because of the medical bill that he has not been able to clear and of which, he is unable to provide a guarantee for payment by way of depositing the security desired by the Respondent. In my view, the facts demonstrate a prima facie case for the alleged violation of his right to liberty and movement.
27. The next question is whether if the conservatory order is not granted, the Petitioner will suffer prejudice. That is an obvious consequence. Already, the petitioner’s is right of movement and liberty is severely restricted and monitored and the situation subjected severe mental stress and sleepless nights.
28. The third consideration is if the conservatory order is not granted the substratum of the Petition will be rendered nugatory. The gist of this is the Petitioner regaining his liberty. If the conservatory order is not granted and the Respondent is granted its wish to continue detain him until such a time as he would pay the medical bill or is able to deposit the security desired by the Respondent, this Court will have sanctioned indeterminate detention as there is no guarantee of when he would raise the outstanding amount or be able to provide the security the Respondent desires. Granting an order of this nature will thus defeat the very essence of this Petition.
29. This therefore leads me to the Respondent’s concern. The Respondent argues that if the Petitioner is released from the hospital, the medical bill will not be paid and this will cripple the hospital in providing services and remaining competitive and could even lead to closure. That the Court should equally balance the hospital rights under Article 40.
30. Undeniably, the Court has to strike a balance between the guarantees of liberty and the respondent’s right to property. However, I do not think that the contractual obligation to pay the hospital would dissipate just because the petitioner has been discharged. Holding him there does not guarantee payment either as is clear from 17th January, 2025 to date, a period of almost one month so far.
31. Weighing one against the other, I believe an ascertained sum of money that owed is much easier to compensate than one’s loss of freedom and psychological well-being getting violated. The liberty and well-being of the individual ranks higher. A debt that is legally incurred and acknowledged as in this case may be recovered by other means provided for in law without holding another human being captive.
32. In the affidavit of the Petitioner, he states that the family has already raised Kshs.50,000/- which it is willing to pay and is ready to enter into a written agreement to pay the remainder in monthly instalments. I would urge that this Kshs.50,000/- be paid as the hospital bill is not in dispute.
33. Nevertheless, the Court will does not and shall not sanction any further detention of the Petitioner either because he has not paid the entire amount or has not provided suitable security. The hospital has to adopt legally authorized means for recovery of the debt incurred which does not include detention of a human being as was held in Gideon Kilundo & Daniel Mwenga v Nairobi Women’s Hospital (2018) eKLR.
34. This Court thus finds the conditions for grant of conservatory order have been fulfilled and grants the following orders:
a) Pending the hearing and determination of this Petition, a conservatory order is hereby issued compelling the Respondent to immediately release the Petitioner from the hospital.
b) Costs shall be in the cause.
Dated, signed and delivered virtually at Nairobi this 25th day of February, 2025.
……………………………………..
L N MUGAMBI
JUDGE
i) Spent
ii) That this Honourable Court be pleased to issue a conservatory order compelling the Respondent to release the Petitioner from the unlawful detention and discharge him forthwith pending the hearing and determination of this application.
iii) That this Honourable Court be pleased to issue a Conservatory order compelling the Respondent to release the Petitioner from unlawful detention and discharge him forthwith pending the hearing and determination of this Petition.
iv) That the OCS of Parklands Police Station to see to the enforcement of the said Court orders.
v) That the Costs of this Application be in the cause.
2. The grounds upon which the instant Notice of Motion is founded are set out on the face of the application and are further expounded in the supporting affidavit of KELVIN AMUNYA ARAM.
3. The Petitioner swore that he is Kenyan Citizen Holder of the Kenyan National Identity Card 35461827 and resides in Kibera within Nairobi County. He stated that on 10th January, 2025 he was walking to work along Kilimani area when he was knocked by motor vehicle registration number KCS 749C. He became unconscious and sustained injuries. At the time that he regained his consciousness, he found himself at the Respondent’s Medical facility in Parklands Avenue. The attending doctor informed him he was taken to the facility by the driver of the vehicle that had knocked him.
4. He thus continued receiving medical care at the facility from that day 10/1/2025 to 17/1/2025 when he had made significant progress towards recovery and was thus ready for discharge. He was informed that the he needed to clear the medical bill which stood at Kshs.281,670/- after discounting the Kshs.50,000/- that the driver of the vehicle that hit him deposited at the time of the Petitioner/Applicant’s admission at the Respondent facility.
5. The Petitioner stated that he could not raise the demanded amount since he only depended on casual jobs to meet his basic needs. He disclosed that barely a week before the accident is when he had secured a casual job at Jabson Enterprises as evidenced by the annexed copy of the Muster-Payroll to the affidavit and marked AKK-3. He deposed that he informed his family members who mobilized resources and raised Kshs. 50,000/- that they ready and willing to pay to secure his discharge and enter into an undertaking to clear the remainder by monthly instalments but the respondent has been adamant and has insisted deposit of security which must either be a logbook or title deed. That his family does not have access to the such security documents as the parents are peasants with no dependable income and no well-wisher has come forward to assist hence he remains detained in hospital without any certainty as to when he would be released.
6. He swore that his movement at the Respondent’s medical facility is highly restricted and is not allowed to leave the ward where any movement he makes is treated with suspicion of escape and even getting basic necessities itself a challenge as he is no longer considered a patient. That as a result, the continued confinement has subjected him to mental anguish, sleepless nights, agony, shame and self-pity which has left him wondering why he should face the treatment of a 2nd class citizen for such a period (21 days then) just because of his financial status.
7. That he has even offered an alternative proposal to the Respondent including following up on insurance claim from the insurer of the vehicle that knocked him and pay the whole amount using the compensation but this has also not been accepted by the Respondent.
8. He disclosed that the police visited him at the hospital recorded his statement and issued him with a P3 form that ought to be filled by an authorized medical officer in a government facility after examining him but this is not possible due to his continued detention.
9. He maintained that the Respondent is holding him against his wish yet he has not declined to pay the Bill and there are other alternatives that the Respondent can use to recover the outstanding Bill.
Respondent’s Response
10. The Respondent filed responded to the Petitioner’s application through the replying affidavit of DR. ABDULAH MOHAMED.
11. The Respondent disclosed that that the Petitioner/Applicant was attended at the facility on emergency basis where he was offered medical attention and treated professionally until he was ready for discharge.
12. He stated that the Petitioner/Applicant is not being held or detained illegally at the facility because all the Respondent wants and has requested is for the security and reasonable undertaking from the Petitioner or a guarantor which has not been done. That the Respondent is ready to enter into a contractual agreement with the Petitioner on payment proposal and surrender of security and/or suitable guarantor.
13. He maintained that the Petitioner’s rights ought to be weighed with those of the Respondents right to demand payment for services rendered considering that the Petitioner walked into a private medical facility where he has paid Kshs.50,000/- and the outstanding sum now stands at Kshs.269,350 as at the date of discharge per invoice ‘AM 1.’ The Respondent deposed that allowing the Petitioner to be released scot-free will jeopardize the Respondent’s right to civil recovery and lead to economic loss and even closure of the institution.
Petitioner/Applicant Submissions
14. Mogaka Nyandika Muriuki & Company Advocates filed written submissions dated 12th February, 2025. Counsel reiterated the factual basis for the application.
15. It was submitted on behalf of the Petitioner/Applicant that he was being held in hospital for purposes of enforcing the payment of the outstanding medical bill which is contractual debt. Counsel while acknowledging that the hospital bill is not in dispute and that the Respondent has a right to own property under Article 40 of the Constitution, nevertheless argued that the Petitioner was equally entitled to the rights enshrined in Articles 27, 28, 29 and 39 of the Constitution. Reference was also made to Article 11 of the Convention on Civil and Political Rights which states no one shall be imprisoned merely on ground of inability to fulfil a contractual obligation as this has a bearing to right to equality, freedom against discrimination, human dignity and freedom and security of the person and movement.
16. Relying on the two authorities of Sonia Kwamboka Rasugu v Sandalwood Hotel & Resort Limited T/A Paradise Beach Resort & Leon Muriithi Ndubai (2013) eKLR; and, Christine Kidha v Nairobi Women’s Hospital (2016) eKLR; Counsel submitted that Courts have held detention of a person cannot be lawful if it is caried out by an unlawful authority, and also, even if done by a lawful authority, it must be in conformity with the procedural law.
Respondent’s Submissions
17. Mandala and Company Advocates filed written submissions dated 19th February, 2025 on behalf of the Respondent. Counsel began by submitting that the Respondent is opposed to the unconditional release of the patient as the Court has a duty to balance both the rights of the Petitioner under Article 29 and those Respondent under Article 40 of the Constitution in arriving at its decision. Counsel underscored that the Respondent is still willing to release the Patient on condition that suitable security/guarantor and or clear written undertaking is agreed upon with the intent of safeguarding the Respondent’s right to property and manage its business competitively and ensuring other patients receive medical care.
18. Counsel relied on the case of Emmah Muthoni Njeri v Nairobi Women Hospital where he submitted that the Court allowed for conditional release.
Analysis and Determination
19. There are is only one issue for determination in this application, that is:
Whether the applicant has satisfied the threshold for grant of conservatory order
20. The power of the Court to grant conservatory order is provided is provided for in Article 23(2) (c) of the Constitution as read with Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which state as follows:
Conservatory or interim orders.
i. Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.
ii. Service of the application in sub rule (1) may be dispensed with, with leave of the Court.
iii. The orders issued in sub rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court.
21. Enunciating the guiding principles in an application for a conservatory order, the Court in Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court (2016) eKLR held as follows:
“a. An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
b. Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and
The public interest must be considered before grant of a conservatory order.”
22. Similarly, in the case of Board of Management of Uhuru Secondary School v. City County Director of Education & 2 Others [2015] eKLR the Court held:
“25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice….
26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….
28. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….
29. Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….
30. The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.
31. Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless.”
23. In instant case, the issue at hand is the detention of the Petitioner in hospital to secure the payment of the medical bill. The Respondent insists that the Petitioner cannot be released unless there is deposit of appropriate security to guarantee the payment of the outstanding bill.
24. The Petitioner deponed that he does casual jobs for a living and that his parents are peasants who do not have a land title deed or a log-book which are the security documents the Respondent has been insisting on in order to allow him leave the hospital. He stated that the family has tried to find well-wishers to chip in but none has come forward so far. He thus fears that in his current situation, unless this Court intervenes it uncertain when he will ever leave the hospital even after being treated was due for discharge on 17th January, 2025.
25. Jurisprudence pertaining to this issue is now firmly settled. Courts have consistently held that detaining of persons without a lawful order so as to compel the payment of a debt is unlawful. In Sonia Kwamboka Rasugu v Sandalwood Hotel & Resort Limited T/A Paradise Beach Resort & Leon Muriithi Ndubai 2013] eKLR the Court observed that:
“…any form of detention not sanctioned by the law that seeks to procure performance of contractual debt is a violation of the right to liberty…”
26. The fact the facts demonstrate that despite the Petitioner having been fully treated and recovered, he is being held in the hospital against his will but because of the medical bill that he has not been able to clear and of which, he is unable to provide a guarantee for payment by way of depositing the security desired by the Respondent. In my view, the facts demonstrate a prima facie case for the alleged violation of his right to liberty and movement.
27. The next question is whether if the conservatory order is not granted, the Petitioner will suffer prejudice. That is an obvious consequence. Already, the petitioner’s is right of movement and liberty is severely restricted and monitored and the situation subjected severe mental stress and sleepless nights.
28. The third consideration is if the conservatory order is not granted the substratum of the Petition will be rendered nugatory. The gist of this is the Petitioner regaining his liberty. If the conservatory order is not granted and the Respondent is granted its wish to continue detain him until such a time as he would pay the medical bill or is able to deposit the security desired by the Respondent, this Court will have sanctioned indeterminate detention as there is no guarantee of when he would raise the outstanding amount or be able to provide the security the Respondent desires. Granting an order of this nature will thus defeat the very essence of this Petition.
29. This therefore leads me to the Respondent’s concern. The Respondent argues that if the Petitioner is released from the hospital, the medical bill will not be paid and this will cripple the hospital in providing services and remaining competitive and could even lead to closure. That the Court should equally balance the hospital rights under Article 40.
30. Undeniably, the Court has to strike a balance between the guarantees of liberty and the respondent’s right to property. However, I do not think that the contractual obligation to pay the hospital would dissipate just because the petitioner has been discharged. Holding him there does not guarantee payment either as is clear from 17th January, 2025 to date, a period of almost one month so far.
31. Weighing one against the other, I believe an ascertained sum of money that owed is much easier to compensate than one’s loss of freedom and psychological well-being getting violated. The liberty and well-being of the individual ranks higher. A debt that is legally incurred and acknowledged as in this case may be recovered by other means provided for in law without holding another human being captive.
32. In the affidavit of the Petitioner, he states that the family has already raised Kshs.50,000/- which it is willing to pay and is ready to enter into a written agreement to pay the remainder in monthly instalments. I would urge that this Kshs.50,000/- be paid as the hospital bill is not in dispute.
33. Nevertheless, the Court will does not and shall not sanction any further detention of the Petitioner either because he has not paid the entire amount or has not provided suitable security. The hospital has to adopt legally authorized means for recovery of the debt incurred which does not include detention of a human being as was held in Gideon Kilundo & Daniel Mwenga v Nairobi Women’s Hospital (2018) eKLR.
34. This Court thus finds the conditions for grant of conservatory order have been fulfilled and grants the following orders:
a) Pending the hearing and determination of this Petition, a conservatory order is hereby issued compelling the Respondent to immediately release the Petitioner from the hospital.
b) Costs shall be in the cause.
Dated, signed and delivered virtually at Nairobi this 25th day of February, 2025.
……………………………………..
L N MUGAMBI
JUDGE