[2023] KEHC 27245 (KLR)

Pandya Memorial Hospital v Junju & another (Civil Appeal E139 of 2022) [2023] KEHC 27245 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27245 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E139 of 2022

DKN Magare, J

December 14, 2023

Between

Pandya Memorial Hospital

Appellant

and

Said Kobe Junju

1st Respondent

Steel Maker Limited

2nd Respondent

(Appeal arises from the Judgement and Decree of Trial Court delivered on August 4, 2022 by Hon. M. Nabibya, SRM in Mombasa CMCC No. 12 of 2015)

Judgment

1. This Appeal arises from the Judgement and Decree of Trial Court delivered on August 4, 2022 by Hon. M. Nabibya, SRMin Mombasa CMCC No. 12 of 2015.

2. The Memorandum of Appeal, however, is a classical study on how not to write a Memorandum of Appeal. The Appellant filed a prolitixious 12 - paragraph argumentative Memorandum of Appeal dated September 2, 2022. The grounds are argumentative, unseemly and do not please the eye to read.

3. Order 42 Rule 1 that requires that the Memorandum of Appeal be concise. The same provides as doth: -“1. Form of appeal –1. Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”

4. The Court of Appeal had this to say in regard to Rule 86 (which ispari materiawith order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020]eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny,J.) dated 19th September 2018 raise only two issues…”

5. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the Court of Appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross v Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

6. The Memorandum of Appeal therefore, raises only the following summarized grounds:a.The Trial Court erred in law and fact in failing to consider the issues submitted by the Appellant.b.The Trial Court erred in law and fact in failing to appreciate the evidence tendered by the Appellant in court.c.The Trial Court erred in law and fact in finding that the 2nd Respondent had by conduct confirmed the existence of a guarantee by paying partial fees of Kshs. 700,000/-.d.The Trial Court erred in law and fact in failing to find the 2nd Respondent liable.e.The Trial Court erred in law and fact in failing to properly analyse the tenure of the pleadings filed in Court.

7. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time.

Pleadings 8. In the Plaint dated December 15, 2014, it was pleaded that at all material times relevant to the suit, the 1st Defendant was a patient at the Plaintiff hospital while the 2nd Defendant was his guarantor having guaranteed to pay the Hospital Bill should the Plaintiff fail.

9. The Plaintiff thus claimed a sum of Ksh. 2,311,466/= being unpaid Hospital Bills for medical services.

10. The Defendant filed Defence dated February 15, 2015. Denying the averments in the Plaint.

Evidence 11. At trial, the Plaintiff called one, Rastus Ouma Okech who introduced himself as the Credit Controller of the Plaintiff. He relied on his witness statement and documents dated October 15, 2015.

12. It was his case that the 1st Defendant was an employee of the 2nd Defendant and that they did treat the Plaintiff on credit and raised the invoices after.

13. He confirmed that Ksh. 700,000/- was paid before the filing of the case and Kshs. 800,000/- paid after filing the case.

14. Further, that the balance on dispute was Kshs. 1,611,466/- and the total amount was Ksh. 2,311,466/=.

15. On the part of the Defendants, DW1, Johnston Simon testified that he was a General Manager at the 2nd Defendant. He relied on the Witness Statement and Bundle of Documents dated 20/6/2018 and testified that there was no agreement between the Plaintiff and the Defendants’ Company. He also stated that the Doctor’s fees was too high and it was the Doctor’s Medical Board to review the Doctor’s charges.

16. The Trial Court rendered its Judgement on August 4, 2022. In the Judgment, the Court dismissed the case against the 2nd Defendant and awarded the Plaintiff Kshs. 1,502,466/-.

17. Aggrieved, the Appellant, who was the Plaintiff lodged this Appeal.

Submissions 18. Parties filed written submissions.

19. It was the submission of the Appellant that the court misapprehended the evidence in the LPOproduced in court to the effect that the payment was made for the medical bills incurred by the 1st Respondent and which were payable by the 2nd Respondent up to default by the 1st Respondent.

20. The Appellant further submitted that the amount was liquidated and proved and there was no reason the court failed to award it as the owing medical bill. Counsel relied on Order 10 Rules 4,5,6,7 and 8 of theCivil Procedure Rules.

21. Counsel also cited authorizes which I have considered.

22. On the part of the Respondents, it was submitted that the Honourable court was correct in the verdict she arrived at.

23. It was submitted that the court correctly divested the 2nd Respondent of liability to pay as its liability was secondary and the amount had already been settled so that there was no justification to find the 2nd Respondent liable. Reliance was placed on the case of Robert Njoka Muthar v Barclays Bank of Kenya.

Analysis 24. This Court has considered the pleadings, evidence, submissions and authorities relied on by the parties in support and opposition to the Appeal. I would have reproduced all the submissions and authorities cited but for the limited space.

25. The issue that falls for this Court’s determination is whether the Trial Court erred in finding no liability on the part of the 2nd Respondent and awarding the Plaintiff Kshs. 1,502,466.

26. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy.

27. Except however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies.

28. In the case of Selle & Another v Associated Motor Board Company Ltd. [1968] EA123, the Court stated as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

29. I note from the record filed in Court that there was no dispute that the 1st Respondent was treated by the Appellant and medical bill on credit. The only point of divergence is the actual amount of debt that constituted the medical bill. It is also agreed by the parties that the 2nd Respondent would come in only if the 1st Defendant failed to meet the medical expenses.1. The Appellant’s case is that the Trial Court largely failed to appreciate the tenure of the pleadings and evidence tendered in court. The Appellant was the Plaintiff. It had the burden of proof. On this subject, Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

31. Further, inEvans Nyakwana v Cleophas Bwana Ongaro[2015] eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”

32. I note from the records filed in court that the Appellant pleaded and prayed for the relief in terms of Kshs. 2,311,466. This is a pecuniary damage. The Appellant had to prove. The Court of Appeal in Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1992] KLR 177 stated that:“… Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved. This court’s task thus entails whether the Trial Court failed to award special damages that were pleaded and proved.

33. Similarly inJoseph Kipkorir Rono v Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, Kimaru, J held that:“In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…

34. Proceeding along this line, I note from the pleadings, proceedings and evidence in the Trial Court that the dispute is not entirely about whether the medical bills were incurred. Instead it is whether the medical bill was owing at Kshs. 2,311,466/- that the Appellant claimed.

35. The Appellant’s witness testified that the Defendants paid Kshs. 700,000/- before the Lower Court case was filed and Kshs. 800,000/- subsequently after filing the case. I note that this was good faith on the part of the Defendants. Many a party to the cases that come before courts do not continue to settle their liability after a case has been lodged following an alleged breach of obligation.

36. Inasmuch as the Appellant’s case is that the 2nd Defendant in paying Kshs.7000,000/= by conduct implied that they agreed to the existence of a guarantee. I am fortified by the pronouncement of the Court of Appeal in Robert Njoka Muthara & another v Barclays Bank of Kenya Limited & another [2017] eKLR as follows:23. A guarantee by definition is a pledge by a person (guarantor), other than a party upon whom the contractual or other legal obligation is imposed, to the effect that if the party so bound (principal) fails to perform the act in question, the guarantor, will either perform or make good any loss or claim arising from the non-performance. The pledge is ordinarily made to a creditor. The essence is that the guarantor agrees not to discharge the liability in any event, but to do so only if the principal debtor fails to honour his duty. Geraldine Andrews & Richard Millet succinctly described the nature of a guarantee in “The Law of Guarantees” (supra) at page 156 as herein under:-“A contract of guarantee is an accessory contract, by which the surety undertakes to ensure that the principal performs the principal obligations. It has been described as a contract to indemnify the Creditor upon the happening of a contingency namely the default of the principal to perform the principal obligation. The surety is therefore under a secondary obligation which is dependent upon the default of the principal and which does not arise until that point.” Emphasis added.24. By its very nature, a guarantee is distinct from the agreement which gives rise to the obligation guaranteed. The principal debtor is neither a party to the guarantee nor considered as one with the guarantor. See Moschi v Lep Air Services Ltd. [1972] ALL ER 393. Consequently, the rights and/or obligations of a guarantor as against the creditor accrue to him/her from the relationship created by the guarantee. See Halsbury?s Law of England, 4th Edition (reissue) Vol. 20(1) at paragraph 217.

37. In my view, the Local Purchase Order dated 6th February 2013 has nothing to express or even infer a contract of guarantee. However, the 2nd Defendant’s defence and witness were clear that the 2nd Defendant undertook to cater for the treatment of the 1st Defendant who was its employee. On this ground only, the Honourable Magistrate correctly dismissed the existence of a guarantee relationship but was wrong in dismissing the case against the 2nd Defendant.

38. In my view, the Plaintiff’s case against the 1st and 2nd Defendants was to exist since the 2nd Defendant had at no point disclaimed the obligation to meet the medical bill of its employee. It was such a magnanimous and noble consensus between the employer and employee that the court committed a reversible error of fact in disintegrating. I overturn the finding of the trial court on this count.

39. The Appellant’s claim was Kshs. 2,311,466/= and the Defendant had settled Kshs. 1,500,000/=. To the least, this was not in dispute. It was the Plaintiff to demonstrate by way of evidence why and how upon payment of Kshs. 1,500,000/-, the Defendants were still indebted.

40. The Appellant produced an invoice dated 7th February 2023 which the Respondents did not dispute save for the some projections on doctor’s fees. The Respondents even produced a fees guideline for Medical and Dental Practitioners. My task is to establish whether the Trial Court was in error in its finding that the Appellant failed to prove any outstanding amount. without doubt, the Appellant had the obligation to plead and particularized how the amount of Kshs. 2,311,466/= prayed for was arrived at.

41. The parties are bound to plead their cases fully. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth: -“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. v Stephen Mutinda Mule & 3 others (2014)eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLCSC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

42. In the case of Malawi Railways Ltd v Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”

43. In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others(2017)eKLRfound and held as follows in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

44. The court cannot act on evidence, even where it is established, in the absence of pleadings. In the recent presidential Election Petition, the Court of Appeal of Nigeria sitting as the election court, in Peter Gregory Obi & another versus Senator Bola Ahmed Tinubu &INEC & 3 others consolidated with Petitions No. 4 and 5 both of 2023, stated as doth: -“In Belgore Versus Ahmed(2013) 8 NWLR(Pt.1355) 60 the complaint against averments in the petition that were unspecific, generic, speculative, vague, unreferable(sic), omnibus and general in terms. The Apex court specifically held as follows: -“Pleadings in an action are written statements of the parties wherein they set forth the summary of material facts on which they rely on in proof of this claim or his defence as the case may be, and by means of which real matters [in] controversy between the parties are to be adjudicated are pleaded in a summary form. They must nevertheless be sufficiently specific and comprehensive to elicit the necessary answers from the opponent.

45. Therefore, like the trial court, I am unable to find for the Appellant.

Determination 46. In the upshot, I make the following Orders:a.The Appeal is dismissed.b.Each party to bear its costs.c.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA, VIRTUALLY ON THIS 14TH DAY OF DECEMBER, 2023. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Omolo for the RespondentNo appearance for AppellantCourt Assistant - Brian