[2021] KEHC 3373 (KLR)
The court found that since the application for leave to file a supplementary affidavit was not opposed, it should be granted in the interests of justice. However, the extension of interim orders was declined because the ex parte orders had paralysed the operations of the 1st and 2nd defendants, and the plaintiff did...
Source-derived case information.
- Citation
- [2021] KEHC 3373 (KLR)
- Parties
- Applicant: Nairobi Outpatient Centre Gulf Ltd; Applicant: Grace Wangari Muthuma; Defendant: Nairobi Outpatient Centre; Defendant: Grace Wangari Muthuma; Defendant: The Kenya Medical Practitioners Dentist Union
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E214 of 2021
- Procedural Posture
- Civil Suit / Interlocutory Application—directions and Further Orders on Interim Relief and Affidavit Filing
- Outcome
- Leave to file and serve a supplementary affidavit granted; extension of interim orders declined; both applications to be heard together on the next hearing date.
- Judges
- JK Sergon
- Legal Topics
- Interim Orders, Supplementary Affidavit, Exparte Orders, Interpartes Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nairobi Outpatient Centre Gulf Ltd
Applicant
Grace Wangari Muthuma
Applicant
Nairobi Outpatient Centre
Defendant
Grace Wangari Muthuma
Defendant
The Kenya Medical Practitioners Dentist Union
Defendant
Procedural Posture
Civil Suit / Interlocutory Application—directions and Further Orders on Interim Relief and Affidavit Filing
Legal Issues
- 1 Whether the plaintiff should be granted leave to file and serve a supplementary affidavit in response to the replying affidavit of the 1st and 2nd defendants.
- 2 Whether the interim orders issued on 9th September 2021 should be extended pending the hearing of the applications.
Ratio Decidendi
The court found that since the application for leave to file a supplementary affidavit was not opposed, it should be granted in the interests of justice. However, the extension of interim orders was declined because the ex parte orders had paralysed the operations of the 1st and 2nd defendants, and the plaintiff did not deny this assertion. The court held that it would be fair and just not to further extend the interim orders until both parties are heard inter partes. The applications were directed to be heard together on the next scheduled date.
Court Disposition
Leave to file and serve a supplementary affidavit granted; extension of interim orders declined; both applications to be heard together on the next hearing date.
Orders
- The plaintiff is granted leave to file and serve a supplementary affidavit.
- The interim orders issued on 9th September 2021 are not extended.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. E214 OF 2021
NAIROBI OUTPATIENT CENTRE GULF LTD..........1ST APPLICANT
GRACE WANGARI MUTHUMA..................................2ND APPLICANT
VERSUS
NAIROBI OUTPATIENT CENTRE...........................1ST DEFENDANT
GRACE WANGARI MUTHUMA..............................2ND DEFENDANT
THE KENYA MEDICAL PRACTITIONERS
DENTIST UNION.....................................................3RD DEFENDANT
FURTHER ORDERS AND DIRECTIONS
1) When the motion dated 3rd September 2021 came up for intepartes hearing on 23rd September 2021, Miss Amadi, learned advocate holding brief for Mr. Faraji for the plaintiff sought for leave to file a supplementary affidavit in response to the replying affidavit filed by the 2nd respondent.
2) The plaintiff further applied for the interim orders issued on 9th September 2021 to be extended to last until the next hearing date.
3) Miss Wafula learned advocate who appeared as holding brief for Mr. Kounah for the 3rd defendant stated that he 3rd defendant does not intend to oppose the plaintiff’s application.
4) Miss Maina learned advocate for the 1st and 2nd defendants did not oppose the plaintiff’s application for leave to file a supplementary affidavit. The 1st and 2nd defendants however opposed the application for extension of the interim orders. They argued that the interim exparte orders has paralysed the operations of the 1st and 2nd defendants without them being given a chance to be heard. In response, the plaintiff argued that the 1st and 2nd defendants are actually using the plaintiff’s license and may pose danger to members of public thus damaging its reputation.
5) It is clear from the rival submissions that the plaintiff’s application for leave to file a supplementary affidavit in response to the 1st and 2nd defendants’ replying affidavit is not opposed. Therefore the plaintiff is therefore granted leave to file and serve a supplementary affidavit. The other contentious issue is whether or not to extend the interim orders issued by this court on 9th September 2021.
6) I have already considered the oral rival submissions. I have also perused the court record and it is apparent that the 1st and 2nd defendants have filed another application dated 20th September 2021 which is supported by an affidavit sworn by the 2nd defendant dated 17. 9.2021 in which they seek for the exparte orders issued on 9th September 2021 to be stayed and vacated.
7) It is stated that the exparte orders has had the effect of paralysing the operations of the 1st and 2nd defendant despite the plaintiff having given the 2nd defendant its licence to continue operating the health facility. The aforesaid application is scheduled for interpartes hearing on 27th September 2021.
8) The plaintiff does not deny the assertion made by the 1st and 2nd defendants that the exparte order has paralysed their operations.
9) I think it is only fair and just not to further extend the interim orders until both parties are heard. Consequently, I direct that the motion dated 3rd September 2021 be heard together with the motion dated 17/9/2021 on 27th September 2021 by any judge in the Civil Division. I decline to extend the interim orders issued on 9th September 2021.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2021.
..........................
J. K. SERGON
JUDGE
In the presence of:
…………………………………. for the Applicant
…………………………………. for the Defendant