[1998] KEHC 88 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Civil Suit 63 of 1998

1. LUDINDI VENANT

2. JACKSON DAMIAN MSACHA................................ PLAINTIFFS

- Versus -

PANDYA MEMORIAL HOSPITAL............................. DEFENDANT

RULING

For the last 65 days, the body of one COSMAS MWASARU (thedeceased), a driver aged 52 years, has been lying at PANDYAMEMORIAL HOSPITAL (the Hospital), rotting away and deep freezing.It is not clear what the deceased was suffering from, but he wasalive when he was taken to the Hospital on 26. 12. 1997. He survivedfor only 16 days before he succumbed to the sickness on 11. 1.1998.

The Hospital is said to be owned and managed by a Societywhich is described as Charitable. That is not to say the Hospitaloffers charitable services. It offers much needed medical servicesto all and sundry in this country. They may be rich. They may bepoor. The Hospital has highly qualified Doctors who must be paid.They have employed all manner of medical and other staff for theeffective dispensation of the services. They have to be paid.They secure and provide drugs to their patients. These have to bepaid for. At the end of the day, I suppose it must also make someprofit. For all intents and purposes therefore, the Hospitalis a Commercial Institution.

And that is why they have drawn a legally binding document forexecution by persons who seek admission to the Hospital and inparticular the person who will be responsible for payment of themedical services rendered. In this particular case the person whotook the deceased to the Hospital was JACKSON MSAGHA (Msagha). Heis the second plaintiff in this suit. He gave his particulars andhis relationship to the deceased as his cousin and next of kin. Hegave his full consent, which was accepted by the hospital, for anyoperation which may be considered necessary on the deceased. Heauthorised the hire of any consultant that the hospital mayconsider necessary and undertook to pay his charges.

Although the agreement is drawn for execution by both the patient and the person who takes him to the hospital as a guarantor, the agreement in this case was only signed by Msagha and ended in these words:-

"I, the undersigned hold myself responsible tosettle the hospital account outstandingmyself/the above named patient on or beforethe date of discharge and also confirm theabove details to be correct.I also undertake to pay the initial deposit ofShs. 20,000, for General Ward, Shs. 40,000 forspecial Room and Shs. 70,000 for IntensiveCare Unit (ICU) on admission failing which, Iagree to be transferred from the Hospital. Ialso undertake to remit a further deposit of every 3 days in line with the bill incurred".

The hospital must have been satisfied with that agreement and theterms thereof since they admitted the deceased. In any event theyare the drawers of the agreement.

There is no provision in the agreement guaranteeing recoveryof the patient. Like Doctors would say, theirs is to provide thetreatment and trust the cure on God. Whatever the eventuality theHospital was entitled to payment.

Msagha went back to the hospital on 12. 1.98 to check on hispatient only to be given the shocking news that he had passed awaythe previous day. He asked for the body to arrange for burial butwas presented with a sobering Bill of Shs. 644,410/=. He criedfoul and said it was inflated and unrealistic. The hospitalrefused to release the body until the Bill was paid. The onlydetails given of that Bill were in the Bill itself and the hospitalgave no other details despite requests. Items charged forincluded:

Nursing for 17 days 57,100

Threatre 1. Fees 7,500

2. Materials 15,565

Laboratory 78,675

X-ray 6,255

Physiotherapy 25,600

Drugs 311,165

Admission Fee 250

Resident Doctor's Fees 2,300

Visiting Doctor's Fees 140,000

644,410

The hospital said it had a policy regarding patients who die there in the cause of treatment. Whether that policy is displayed anywhere for all to see before patients are admitted or whether it was communicated to Msagha in anyway before admission of the patient, it is not clear. What is clear is that it was not in the written agreement signed by Msagha. In the words of the Hospital Administrator the policy is this:

"5. That it is the hospital's policy that before adeceased body is released for burial, then alloutstanding bills have to be settled to avoidany misunderstanding or in the alternative thefamily members provide guarantors as suretiesfor payment. "

Msagha had no ready cash to defray the whole Bill. He managed to pay Shs. 133,540 on 13. 1.98. The hospital would not listen to his pleas that he would raise the balance later. So he took the alternative the hospital said was available. He consulted family members who provided as security a parcel of land valued at Shs, 850,000. The Title deed, Certificate of official search and valuation report were forwarded to the Advocates of the Hospital.

A payment plan for payment of the Bill within 6 months was also presented. The documents have not been returned to them. The hospital would still not release the body of the deceased as it felt it needed guarantees on top of the documents provided . A guarantee was drawn up by Msagha's Advocate and presented to the hospital through its Advocates. The hospital said it was an improper guarantee because it was misspelt with a "Q" to read "Guarantee" which is not a word known in the English language and also because it was not properly witnessed, the witness being shown as a Firm of Advocates instead of an individual Advocate. The hospital refused to release the body of the deceased despite all those efforts. In the meantime the hospital continued to charge fees for storage of the body at the rate of Shs. 700/= per day. Msagha saw malice and ill-motivation in the conduct of the Hospital. He was faced with the spectre of an escalating and indeterminate Bill and a dead body which may remain unburied for a long time.

So he came to this court to break the impasse and sought declaratory orders and a mandatory injunction as follows:

"1. An order compelling the defendant to releasethe body of Cosmas Mwasaru from its mortuaryimmediately.

2. A declaration that the continued detention ofthe body of the late Mwasaru is illegal.

3. A declaration that the security presented tothe defendant and/or its agents is good andthe body be released on its strength.

4. A declaration that the Bill is inflated and oron the higher side and the same be amended toa realistic margin.

5. Any other order which this Honourable Courtmay deem fit to grant."

In seeking those orders, he joined the uncle of the deceased as the 1st plaintiff.

Simultaneously with the main suit, he took out a Chamber Summons under Order 39 Rule 2 and 3 Civil Procedure Rules and Section 3A of the Act seeking a mandatory injunction in the words:

"The defendants by themselves their servants,workmen, Agents or otherwise be restrainedfrom retaining and/or holding the body of thelate Cosmus Mwasaru and the same be releasedto the plaintiffs jointly and severally forburial."

That this court has sought. But it is a discretion whichmust not only be exercised judicially but one that is onlysparingly used. That is because a mandatory injunction unlike aprohibitory injunction has a finality which may not be possible torecall if it turns out that the order was issued erroneously.

As was stated by Bosire J. (as he then was) in Belle Maison Ltd. -Vs- Yaya Towers Ltd. NAI HCCC 2226/92

"As was stated in the Despina Pontikos case(supra) it is a jurisdiction which must beexercised only in special circumstances.Special circumstances however depend on thefacts and circumstances of each case and thegood sense of the trial Judge."

And by Gicheru JA in summarising the law on mandatory injunctions in CA NAI 72/94 East African Fine Spinners Ltd. & Others -Vs- Bedi Investments Ltd (UR)

"I may summarise my conclusions as follows.First Lord Cairns statement of principle prima facie applies to Mandatory Injunctions, but itdoes not apply in its full width. The matteris tempered by a judicial discretion whichwill be exercised so as to withhold aninjunction more readily if it is mandatorythan if it is prohibitory. Even a blamelessplaintiff cannot as of right claim at thetrial to enforce a negative covenant by aMandatory Injunction.

Secondly, although it may not be possible tostate in an comprehensible way the groundsupon which the court will refuse to grant amandatory injunction in such case at the trialthey at least include the triviality of thedamage to the plaintiff and the existence of adisproportion between the detriment that theinjunction would inflict on the defendant andthe benefit that it would confer on theplaintiff. The basic concept is that ofproducing a "fair result" and this involvesthe exercise of a judicial discretion.Third, on Motion, as contrasted with thetrial, the court is far more reluctant togrant a mandatory injunction than it would beto grant a comparable prohibitory injunction.In a normal case the court must, inter aliafeel a high degree of assurance that at thetrial it will appear that the injunction wasrightly granted, and this is a higher standardthan is required for a prohibitoryinjunction."

The major assault on the application was from two fronts:-

Firstly that the plaintiffs lack locus standi and secondly that it does not satisfy the standards set out in Giella -Vs- Cassman Brown& Co. Ltd. (19731 EA 358, to wit a prima facie case with aprobability of success; one that is in compensable in damages, and if there is any doubt on those two, an order that would stand on abalance of convenience.

On the first objection Mr. Ouma, counsel for the hospitalcontended that the plaintiffs are mere busybodies intermeddling inmatters which do not concern them. They have no right to come tocourt and this court should not listen to them if they do. Theonly person who is entitled to come to court to represent theestate of the deceased is his personal representative; that is theexecutor of his will or the Administrator of his estate. None ofthe two plaintiffs has produced any grant of probate or Letters ofAdministration and until they do so, they cannot come to court, andthe body of the deceased stays put at the hospital. In support ofthat proposition, he cited the Court of Appeal case of TROUSTIKUNION INTERNATIONAL & ANOTHER -Vs- MBEYU CA 145/90 (Apalloo CJ,Kwach, Cockar, Omolo & Tunoi JJA). There the full Bench of theCourt restated the law on representation of the estates of deceasedpersons and,.in the process, overruled an earlier decision of thesame court which had permitted persons without Grant ofrepresentation, to act on behalf of the estate - Hintz -Vs- Mwakima(1988) 1 KAR 482.

Mr. Odiaga, counsel for the Applicants did not have anyquarrel with the authority cited or the principle of law stated therein. He submitted however that the authority is not applicablein this case to deprive the plaintiffs of locus standi. Theauthority cited was in respect of a claim for damages for thebenefit of the estate of the deceased under the Law Reform Act. Itwas a cause of action which was vested in the deceased in that casebefore he died. And the only person who can agitate such cause ofaction is the deceased's personal representative. Not so in thecase before us.

The cause of action is on a contract made between the hospitaland the 2nd plaintiff. He questions the quantum of the Bill servedon him. He questions the validity of the detention of thesubjectmatter of that contract. It has nothing to do with anybenefit accruing to the estate of the deceased on his death. Theplaintiffs need no grant of representation to pursue the matterspleaded in the main suit. They have sufficient interest andtherefore the Locus Standi to urge the case.

I add my voice to the submissions of counsel for theApplicants. The authority cited, though at first deceptivelypersuasive, has no application in this suit and is distinguishable;and certainly so, as respects the plaintiff Msagha. He is theperson who entered into a written contract with the hospital. Thehospital could have demanded, as there is provision for it, thatthe patient (now deceased) sign the contract. In that event thehospital would have had a right against the estate of the deceasedon the basis of such contract. But the contract was with Msagha.

He is responsible for payment of the debt however long it takes.He is the one who would have walked home with the patient if he hadrecovered and had been discharged. It is not clear whether thehospital would have refused to discharge the patient despite hisrecovery until the Bill was paid. But the issue does not arisebecause the patient died. Msagha the contracting party would havecollected the body if he had paid the outstanding Bill in full on13. 1.98. There is no indication that the hospital would haveinsisted on production of Letters of Administration on that date.The storage Bill for the body continues to escalate as the bodystays in the mortuary. These are part of the expenses Msaghacontracted to settle. He says there is no basis for detaining thebody and therefore loading such expenses on him. In suchcircumstances can it be said that Msagha is a busybody and has nosufficient interest and therefore the locus standi to plead andagitate the matter of the contract in court? I do not think so,and I would overrule the objection, at any rate as relates to theplaintiff Jackson Damian Msagha. The 1st plaintiff appears to bea superfluity, but there are provisions for striking out parties tosuits.

As for the second objection Mr. Ouma saw no possibility of themain suit succeeding. He relied on the universal principle offreedom of contract or Laissez Faire, between two consenting andlegally qualified persons. Among the terms agreed on by those whoseek the services of the hospital is the policy cited verbatim above, that outstanding debts be cleared before bodies of deceasedpersons are collected. No payment has been made and thereforethere is no cause of action. He saw no irreparable harm beingcaused if the order is not granted and also submitted that thebalance of convenience tilted towards the hospital retaining thebody until the debt is paid. The plaintiffs should have come tocourt after paying the debt as failure to do so means coming tocourt without clean hands and they are not entitled to anyequitable remedy. Instead of paying the debt, the plaintiffs havebeen pressing for release of the body through the press and throughtheir Member of Parliament. The application should not thereforebe granted, as it seeks to circumvent the obligations under the contract.

Mr. Odiaga for his part reiterated that the terms of thecontract were in issue and will remain so until the matter isdecided by the court. The plaintiffs have a prima facie case witha probability of success. The plaintiffs will be bound to paywhatever the court ultimately determines as the valid debt. Thedetention of the body of the deceased, if it be for 100 years willnot amount to payment of the debt. Such detention has no basis inlaw and should be declared illegal. It is infact malicious sincethe hospital has not even issued a certificate to show that thedeceased is dead. The bill submitted on 13. 1.98 shows instead thathe was "discharged" on 12. 1.98.

I have considered these submissions. The matter of validity or otherwise of the contract signedbetween the hospital and Msagha and the terms thereof shallobviously be determined with finality when the matter is fullyheard in due course. So will the validity or otherwise of the billserved on Msagha by the hospital on 13. 1.98 which he nowchallenges. Msagha has questioned the quantum but the hospitaldoes not appear to have given him full details of the charges or tojustify them in any way. On the face of it they appear phenomenaland it is not unreasonable for him to seek justification. He maywell succeed in having them reduced. The charges however continueto escalate daily. That is on account of some policy pleaded bythe hospital which does not appear to be part of the contractsigned by Msagha. It may or may not be binding on him. If it isnot, he should not be burdened indefinately by such charges. If itis, then the hospital should be able to enforce the contract.

What concerns me at this stage is not so much the respective rights and obligations of the parties, for those shall in good time be determined. It is a matter referred to as "Public Policy" and was adumbrated by the hospital in one paragraph of the Affidavit sworn by the Hospital Administrator, one ANTONY ALEXIS. It was also stressed by their counsel Mr. Ouma with a rider that although public policy is said to be. an unruly horse, this one should be considered. It is this:

"12. That should the court find that the bodyought to be released to the plaintiffs thensuch finding should consider the wider interest of the society as not to jeorpadiseany future cases of impecunious persons beingadmitted to the hospital."

Simply put, there is a veiled threat by the hospital that if it is forced to release the body of the deceased, it will not in future admit and treat poor persons in this country. As a private Commercial Institution, there is nothing to stop the hospital from making good such threat. And there is no denying that the effect would be devastating since the majority of the citizens of this country live below the poverty line and can hardly afford good medical services although they deserve them no less than the rich. I am not oblivious to such consequences. But my judicial conscience is troubled.

For I think, with utmost respect to the hospital, that on anyview it would be equally repugnant to public policy to sanction theuse of dead bodies as objects in the game of Commercial ping-pong.

Dead bodies are for interment or cremation or other disposalwithout delay unless there is a dispute on where to dispose of themor who should do it. The dead ought to "REST IN PEACE" while thosewho are left alive struggle with the realities of life such aspayment of debts.

In this particular case there is no dispute as to who shouldbury the deceased or where he should be buried. The dispute is ona debt for medical services solicited for by someone who is stillalive, not the deceased, and there are legal ways of binding suchperson to pay the debt owed. The dead body of the deceased ought not be part of that equation. For it is trite law that there is noproperty in a dead body. It cannot be offered or held as securityfor payment of a debt. It cannot be auctioned if there is adefault. It cannot be used to earn rental income in a cold-room.In sum,here is no legal basis for detaining it, and it would becallous and sadistic to hold otherwise.

I am persuaded that the order for mandatory injunction shouldissue. It shall issue as prayed subject to the plaintiffs filingin this court forthwith an undertaking in damages limited to Kshs.600,000/= pending the hearing and determination of this suit.

Costs in the cause.

Dated at Mombasa this 17th day of March 1998.

P.N. WAKI

JUDGE