Mary Help of the Sick Mission Hospital v Kamau ((Administrator of the Estate of the Late Josephine Wanjiru Irungu)); Karanja & another (Interested Parties) (Miscellaneous Civil Application E403 of 2022) [2023] KEHC 3832 (KLR) (Civ) (3 May 2023) (Ruling)

Key Facts

Issues

• The court determined whether the Applicant's matron, Esther Wanjiru Thea, was authorized to swear the affidavits in the absence of a formal board resolution. It held that an officer's declaration of authorization is sufficient, citing Fubeco China Fushun v Naiposha and Premier Hospital v Meditec, and dismissed the Respondent's challenge as lacking merit.
• The court assessed whether a stay of the KMPD Council's ruling was warranted pending the appeal. It examined the Applicant's argument that execution of the ruling (e.g., license suspension) would cause substantial loss to patients. The court rejected the stay, concluding the Applicant failed to demonstrate irreparable harm and that the orders primarily served public interest.
• The court evaluated the Applicant's request for leave to appeal out of time against the KMPD Council's February 25, 2022 ruling. It considered the 30-day appeal period, the Applicant's explanation of delayed notice due to an incorrect email address, and the likelihood of appeal success. The court granted leave, finding the delay was not the Applicant's fault and the appeal raised arguable issues.

Holdings

• The court granted leave to appeal out of time, citing that the Applicant's delay (4 months) was satisfactorily explained by the Council's failure to serve the decision on the correct email address (info@maryhelphospital.org vs. info@maryhelphosital.org). The Applicant's chances of appeal success were deemed arguable, and no prejudice to the Respondent was found.
• The court found that the application was not defective for lack of authorization to swear the affidavits, as the deponent's position as the Applicant's matron and liaison was sufficient to establish authority under established jurisprudence (citing Fubeco China Fushun v Naiposha and Premier Hospital v Meditec Systems). The Respondent failed to provide evidence disputing this authority.
• The court denied a stay of execution pending appeal, determining the Applicant failed to demonstrate 'substantial loss' that would render the appeal nugatory. While the Applicant claimed risk of license suspension, the court held that the orders (reprimand, training requirements, etc.) were procedural and did not threaten irreparable harm to the hospital's operations.

Remedies

• The Applicant is directed to file the Memorandum of Appeal within seven days of this Ruling and the Record of Appeal within 45 days thereafter upon receiving the documents from the 2nd interested party.
• There shall be no stay of execution of the Ruling dated February 25, 2022 in PIC Case No. 29 of 2019.
• The Applicant is granted leave to appeal out of time against the Ruling of the KPMD Council dated February 25, 2022 in PIC Case No. 29 of 2019.
• The 2nd interested party (Kenya Medical Practitioners and Dentists Council) shall supply the applicant with a certified copy of the proceedings and any recordings within 14 days from the date of this Ruling.

Legal Principles

• The court applied the factors outlined in Leo Sila Mutiso v Rose Hellen Wangeri to determine whether to grant leave to appeal out of time. These factors included the length of the four-month delay, the satisfactory explanation (erroneous email address), the arguable success of the appeal, and the lack of prejudice to the respondent. The court found that the applicant had met the necessary criteria for the grant of leave.
• The court applied the substantial loss test under Order 42 Rule 6(2) of the CPR, as interpreted in James Wangalwa & another v Agnes Naliaka and Mukuma v Abuoga. The applicant argued that without a stay, it risked license suspension affecting its operations. However, the court found that the applicant failed to demonstrate substantial loss, as the orders primarily served public interest and the applicant could refund if needed.
• The court held that the deponent, Esther Wanjiru Thea, was authorized to swear the affidavits on behalf of the Applicant hospital as the matron and liaison person. The respondent did not adduce any evidence to challenge this authorization. Therefore, the burden of proof was satisfied, and the application was not defective for lack of authority.

Precedent Name

• Fubeco China Fushun v Naiposha Company Limited & 11 others
• Premier Hospital Limited v Meditec Systems Limited & another

Cited Statute

• Constitution of Kenya 2010
• Medical Practitioners and Dentists Act
• Civil Procedure Act

Judge Name

Passage Text

• Courts have consistently held that it is sufficient for an officer of a company to state in the affidavit has been authorised to swear the affidavit or that he or she has sworn the affidavit as part of the duties assigned to him or her by the subject company without the need to file a separate document of authorization passed by the Board of Directors.
• The court finds that the Applicant has not demonstrated the substantial loss it stands to suffer... these orders are mainly meant to help to protect the wider public interest which the applicant will continue to serve for as long as it remains operational.
• The court however notes that the Applicant has ably demonstrated that the said email was sent to the wrong email being info@maryhelphosital.org instead of its official email that had earlier been used to send all communications to the Applicant being info@maryhelphospital.org.