[2022] KEHC 15306 (KLR)

Eldoret Hospital Limited v Muchiri (Petition E024 of 2021) [2022] KEHC 15306 (KLR) (15 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15306 (KLR)

Republic of Kenya

In the High Court at Eldoret

Petition E024 of 2021

RN Nyakundi, J

November 15, 2022

Between

Eldoret Hospital Limited

Applicant

and

Alice Muchiri

Respondent

Ruling

1. The applicant approached this court vide a Notice of Motion Application date 24th October 2022 seeking the following orders;a)Thatthis application be certified urgent and be heard ex-parte in the first instance.b)Thatthere be interim orders of stay of execution and/or further execution of the decree herein pending the hearing and determination of this application inter-partes.c)Thatthere be a stay of execution and/or further execution of the decree and/or the decision of this court pending the hearing and determination of the intended appeal to the Court of Appeal.d)Thatcosts of the application be in the cause.

2. The application is premised on the grounds set out therein and the contents of the supporting affidavit.

Applicant’s Case 3. The applicants’ case is that on 4th October, 2022, this Honourable Court delivered its judgment allowing the

4. Petitioner/Respondent’s petition to the effect that the Respondent/Applicant releases the medical documents/records for one Peter Kiiru Chomba (deceased). The Respondent/Applicant being aggrieved with the said judgment filed a Notice of Appeal and the letter requesting proceedings on 17/7/2022. the appeal to the Court of Appeal raises very serious and weighty legal issues for determination by the Court of Appeal.

5. The Applicant's position that it cannot release medical documents/records which are not in its possession. Further, That the Respondent/Applicant informed the court that the deceased had a private doctor who used to operate within Eldoret Hospital Medical Plaza and as such, the Respondent was not privy to the deceased's medical records. At the time of the delivery of the judgment, the Honourable Court ordered that should the Respondent/Applicant fails to release the medical documents/records the court would proceed to assess damages.

6. Unless this court grants the order sought the Respondent/Applicant stands to suffer substantial loss should the court proceed to assess the damages as ordered hence the need to issue the orders sought by the Respondent/Applicant in the pendency of the appeal. The Respondent/Applicant is ready and willing to abide by any conditions that may be imposed by this Honourable court for grant of the orders sought pending the hearing and determination of the appeal.

Respondent’s Case 7. The respondent opposed the application and submitted that that the Applicant has not demonstrated an arguable appeal that has high chances of success. The principal argument is that the Respondent does not have the said information in its custody yet the Court made a determination on that question based on the material supplied by the Petitioner that demonstrated that the deceased was treated at the Respondent’s facility. Further, that the Respondent has not demonstrated how it would suffer substantial loss if stay is granted. Based on the material that led to the judgment, there is no sufficient material to lead to the conclusion that it will suffer substantial loss that cannot be adequately compensated by way of damages.

8. In a demonstration of their intent not to comply with the judgment of the Court, the Respondent has not even written to the Petitioner to inform them of what information is in their custody. Even the tests attached in the Petition, which clearly bear the Respondent’s letter head have not been furnished to the Petitioner. The applicant is not keen on complying with the terms of the judgment and is out to frustrate the petitioner.

9. According to the respondent the Application is premature for the sole reason that even the decree has not been extracted in the instant case. There is no impending threat of execution to warrant a stay of execution at this stage. In the circumstances, the application is premature and is devoid of merit.

Issues for Determination Whether the orders for stay of execution should issue 10. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:“No order for stay of execution shall be made under sub rule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

11. I have perused the orders of 4th October 2022 that the applicant seeks to stay and they are in no way shape or form money decrees. Further, the allegation that the trial court ordered that if the applicant failed to release the documents the court would proceed to assess damages is unfounded. The question that arises therefore is, are there orders capable of being stayed? I think not. The impugned orders declared that there was a violation of the respondents’ right to access to information and there was an order for mandamus to provide the respondent with the information sought in her letters dated 19/8/2021 and 23/9/2021.

12. There is no order for damages and therefore the provisions of Order 46 would not apply. If the court was to apply the principles considered when granting stay of execution, the applicant has still not provided any evidence that there would be any substantial loss suffered if the orders sought are not granted. Further, the security to be issued is indeterminable in the circumstances as there is no money decree. The applicant will not suffer any prejudice of the orders sought are not granted.

13. In the premises, the application fails on all limbs. Costs to the respondent.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 15TH DAY OF NOVEMBER, 2022. ...........................R. NYAKUNDIJUDGE