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Judgmentpaul VS XALCO LTD T/A UJUZI FURSA AFRICA6 min read

paul VS XALCO LTD T/A UJUZI FURSA AFRICA

High Court at Milimani High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION MILIMANI

HCCCMISC.E080/2025

MONICA WAMBUI WAMAE Suing through Edwin Mwangi Wamae

Under the Power of Attorney registered as No. ULA71198/1………..PLAINTIFF

VESUS

XALCO LTD T/A UJUZI FURSA AFRICA……………………………….DEFENDANT

RULING

  1. By a Notice of Motion application dated 31st January 2025 brought under Certificate of Urgency, the Applicant seeks orders, inter alia, that this Honourable Court directs the Defendants/Respondents to allow the Applicant to get medical treatment pending the hearing of this application. The Applicant is also seeking to restrain the Respondent from further detaining the Plaintiff until she receives adequate medical treatment and is fit to be discharged and be re-admitted to the Defendant’s institution. The Applicant further seeks an order directing the Respondent to provide all medical facilities to the Applicant at her cost for the successful operation and back to the institution.
  2. The Application is based on the grounds on the face of it and in the Supporting Affidavit of Edwin Mwangi Wamae.
  3. The Applicant has stated in the Supporting Affidavit that the patient was admitted in the Respondent’s facility in 2022 at a cost of Kshs 150,000 per month. Due to complications the in-house doctor of the Respondent advised that the patient undergoes surgery which could not be performed at the Defendant’s institution and necessitated that the patient be taken to another facility with capacity to perform the operation. The Applicant claims that the Respondent has refused to discharge the patient for the transfer to the other facility because of a pending bill and accrued arrears.
  4. The Application is opposed through a Replying Affidavit of Jinit Shah sworn on 6th February 2025 in which it is deposed that the patient was admitted to the facility on 23rd August 2022; that the patient’s next of kin defaulted in paying the agreed monthly package amount thereby accumulating a bill of Kshs 1,087,282.55 as at 15th October 2024; that there has been numerous correspondences and negotiations towards having the Applicant give an undertaking  in the form of title deed or logbook or to provide guarantors to guarantee payment without success.
  5. The Respondent has stated that the bill currently stands at Kshs 2,116,217.64 and that despite the accumulated bill, the patient remains in the Respondents facility where she continues to be attended to and take care of. They have denied holding the patient illegally, asserting that demand for payment of the bill is not unlawful. They have claimed that they are justifiably apprehensive that if the patient leaves their facility for surgery at a different facility, she will no longer be under their custody and therefore there is no guarantee that the accumulated bill will be settled.
  6. I have considered the Application, the grounds in support and the Replying Affidavit in opposition. At this stage, this court is considering a singular issue: whether prayer 2 of the Application should issue, directing the Respondent to release the patient to enable her to receive the necessary medical treatment can issue.
  7. I attempted to have both counsel consult their clients towards reaching some favourable compromise. It did not work. Mr. Muchiri for the Applicant informed the court that his client is trying to sell a piece of land in Ruiru to offset the bill. On the other hand, Mr. Njoroge for the Respondent told the court that his client is asking for 50% payment of the bill before they could release the patient or alternatively the next of kin can provide security in the form of a logbook or title deed or even a banker’s guarantee. This was not acceptable to Mr. Muchiri who reiterated that once the piece of land is sold, then the bill can be settled.
  8. I have considered this matter. The Applicant claims that her right to medical treatment is being infringed by the Respondent in failing to release her for the purpose of surgery. The Respondent asserts that they are not holding the patient illegally. They want the bill, which has accumulated to a colossal amount, settled or security for payment of the bill provided.
  9. This court is being called upon to strike a balance between the parties. It is a delicate matter. At the centre of this dispute is a very sick elderly patient who requires urgent medical attention. On one side is her family who claim that she is being held illegally. On the other side is the Respondent whose case is that they are not holding the patient illegally but due to unpaid and accumulating bill. They have offered the family of the patient alternative ways a compromise can be reached: pay 50% of the bill or provide security for the payment of the bill in the form of a title deed, a logbook, a bankers’ guarantee or a guarantor to guarantee the payment. They have asserted that the family of the patient have not demonstrated that they are not able to provide some form of security.
  10. The patient has a right to medical treatment. Her family should understand that it is upon them to do all that is within their power to ensure that the patient gets that medical treatment. The Respondent has continued to take care of the patient despite the rising bill and accumulating arrears. They have proposed alternative methods of reaching a compromise. In my considered view, the Respondent has demonstrated goodwill which is not reciprocated by the family of the patient.
  11. This court has considered the apprehension of the Respondent. It is not a misplaced apprehension. It is a valid one and cannot be ignored. It is telling that despite the various alternatives to providing security by the family of the patient, they have not responded, sufficiently, to the proposals. They have only stated that they cannot offer the title deed of the land they plan to sell to offset the bill. They have not demonstrated that they do not have motor vehicles whose logbooks can be used to provide security. They have not demonstrated that they do not hold land titles, other than the one they plan to sell, whose title deed can be used as security. They have not demonstrated that they are incapable of providing a guarantor to guarantee payment of the bill. All the above modes of security are acceptable to the Respondent.
  12. It is my considered view, taking into account the delicate nature of this matter, that the family of the patient ought to understand the seriousness of the situation, appreciate the length the Respondent has gone into towards accommodating them, and meet the Respondent in the middle for the sake of the patient. Justice demands that no party should be prejudiced for the benefit of the other party. Both parties need protection of the law, and this court must strike a balancing act to ensure that no party to these proceedings suffers prejudice.
  13. For ends of justice to be met and to protect both parties before me, I make the following orders:
  14. The family (next of kin) of Monica Wambui Wamae is directed, with immediate effect, to provide payment of 40% of the accumulated bill to the Respondent.
  15. In the alternative, the family (next of kin) of Monica Wambui Wamae is directed to provide security in the form of a title deed, logbook or a guarantor.
  16. That the remaining issues of the Application including the issue surrounding the contested bill payable will be determined as directed by this court.
  17. This matter shall be mentioned on 11th February 2025 for further directions.
  18. Orders shall issue accordingly.

Dated, signed and delivered this 7th February 2025.

S. N. MUTUKU

JUDGE

In the presence of:

Mr. Maina Muchiri for the Applicant

Mr. Sherwin Njoroge for the Respondent

    paul VS XALCO LTD T/A UJUZI FURSA AFRICA paul VS XALCO LTD T/A UJUZI FURSA AFRICA