[2021] KEHC 2458 (KLR)
The court found that although the Plaintiff had delayed the prosecution of the suit and had not previously attempted to refer the matter to the Medical Practitioners and Dentists Board, justice required that she be allowed to pursue the alternative remedy. The court exercised its discretion to stay the proceedings...
Source-derived case information.
- Citation
- [2021] KEHC 2458 (KLR)
- Parties
- Plaintiff: Elizabeth Ambale Amisi; Defendant: Siaya County Referral Hospital; Defendant: Dr. Allan
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5 of 2019
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Proceedings
- Outcome
- Application for stay of proceedings allowed; proceedings stayed for 45 days; costs and fees awarded to Defendants.
- Judges
- RE Aburili
- Legal Topics
- Stay of Proceedings, Medical Negligence, Alternative Dispute Resolution, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Ambale Amisi
Plaintiff
Siaya County Referral Hospital
Defendant
Dr. Allan
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Proceedings
Legal Issues
- 1 Whether the proceedings should be stayed to allow the Plaintiff to refer the complaint to the Medical Practitioners and Dentists Board.
- 2 Whether the Plaintiff has been diligent in prosecuting the suit.
- 3 Whether the court should exercise discretion to allow the stay despite delay.
Ratio Decidendi
The court found that although the Plaintiff had delayed the prosecution of the suit and had not previously attempted to refer the matter to the Medical Practitioners and Dentists Board, justice required that she be allowed to pursue the alternative remedy. The court exercised its discretion to stay the proceedings for a limited period of 45 days to allow the Plaintiff to refer the complaint to the Board. The court emphasized that the Plaintiff's delay was inordinate and that the court should not be used to create backlog, but ultimately allowed the stay in the interests of justice, subject to payment of costs and adjournment fees to the Defendants.
Court Disposition
Application for stay of proceedings allowed; proceedings stayed for 45 days; costs and fees awarded to Defendants.
Orders
- Proceedings in this suit are stayed for 45 days to allow the Plaintiff to refer the complaint to the Medical Practitioners and Dentists Board.
- Mention to report on progress scheduled for 20/12/2021.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CIVIL CASE NO. 5 OF 2019
ELIZABETH AMBALE AMISI..........................................................................PLAINTIFF
VERSUS
SIAYA COUNTY REFERRAL HOSPITAL............................................1ST DEFENDANT
DR. ALLAN................................................................................................2ND DEFENDANT
RULING
1. This suit was slated for hearing today having been certified as ready for trial on 12/7/2021. The hearing was to proceed on 6/10/2021 but the court got engaged in a three Judge Bench.
2. The hearing was fixed for today on 12/10/2021 by consent. Today, the Plaintiff is absent. Only her counsel is in court. The advocate has filed an application for stay of this suit generally to enable the Plaintiff refer the Complaint to the Kenya Medical Practitioner’s Council to determine the question of liability so that they can return to court to determine quantum.
3. The defendants are represented in court and are ready to proceed with the hearing. They have one witness.
4. I have considered the application by the Plaintiff’s counsel. I note that this is a very old matter of 2019 which was initiated out of time with leave of court.
5. The Plaintiff has generally not been keen on prosecuting this suit and it is the court which has been pushing for the prosecution of the suit and the court record shows that.
6. Nothing prevented the Plaintiff from referring her case before the Medical practitioners and Dentists Board, the pendence of this suit notwithstanding, or even before she filed this suit. There is obvious inordinate delay by the Plaintiff in prosecuting this suit. She has never attempted to prosecute it and failed.
7. This court abhors being used to archive pleadings for backlog to be created. Nonetheless, the Plaintiff was allegedly injured as a result of a surgery by the defendants. Despite the delay, she deserves justice.
8. This court therefore exercises discretion to allow the application for stay of proceedings in this case to allow the Plaintiff pursue the alternative remedy at the Medical Practitioners and Dentists Board.
9. These proceedings are stayed for a period of Forty Five (45) days only. Mention to report on the progress of the matter to be referred for an alternative remedy on 20/12/2021.
10. Today’s costs to the defendants.
11. The Plaintiff shall also pay court adjournment fees of Kshs. 3,500/= and witness expenses of Kshs, 1,500/= to the defence witness who is in court.
12. The application dated 8/10/2021 is therefore allowed and spent.
13. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 3RD DAY OF NOVEMBER, 2021
R.E. ABURILI
JUDGE