REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION
MILIMANI LAW COURTS
CIVIL APPEAL NO. 671 OF 2017

ATHI RIVER SHALOM COMMUNITY HOSPITAL.………………………. APPELLANT

VERSUS

MARTHA NGENDO KIHITI .………………………………………………RESPONDENT

(An appeal from the Judgment of the HIV & AIDS Tribunal delivered on the 10th day of
November, 2017 in HAT Case No. 002 of 2017)

BETWEEN
MARTHA NGENDO KIHITI ……………………………………………………CLAIMANT

VERSUS

ATHI RIVER SHALOM COMMUNITY HOSPITAL…………………….. RESPONDENT

CERTIFICATE OF URGENCY

I, TESSY E. MARIENGA, an Advocate of the High Court of Kenya practicing as such under
the name and style of LUMUMBA & LUMUMBA ADVOCATES, 4 TH AVENUE TOWERS,
15TH FLOOR, SUITE NO. 3, 4TH NGONG AVENUE, P.O. BOX 10676 - 00400, NAIROBI
do hereby certify the application accompanying this certificate as urgent and deserving to be
placed before the duty Judge and heard on a priority basis on grounds THAT;

1. The matter herein has been fixed for Ruling of the Appeal on 7th November 2019 and the
Respondent wants to participate and file her written submissions for considerations
before the Court.
DATED at NAIROBI this ………. 10th ……………day of ……..September
……………….2019

LUMUMBA & LUMUMBA

ADVOCATES FOR THE RESPONDENT/APPLICANT

DRAWN AND FILED BY:-

Lumumba & Lumumba
Advocates
4th Avenue Towers, 15th Floor, Suite No. 3
4th Ngong Avenue
P.O.Box 10676-00400
NAIROBI
Page 1 of 13
Email: info@lumumbalaw.com
Tel: 0710409145
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MILIMANI LAW COURTS
CIVIL APPEAL NO. 671 OF 2017

ATHI RIVER SHALOM COMMUNITY HOSPITAL.………………………. APPELLANT

VERSUS

MARTHA NGENDO KIHITI .………………………………………………RESPONDENT

(An appeal from the Judgment of the HIV & AIDS Tribunal delivered on the 10th day of
November, 2017 in HAT Case No. 002 of 2017)

BETWEEN
MARTHA NGENDO KIHITI ……………………………………………………CLAIMANT

VERSUS

ATHI RIVER SHALOM COMMUNITY HOSPITAL…………………….. RESPONDENT

EX-PARTE CHAMBER SUMMONS

(Section 3A of the Civil Procedure Act, 2010, Section 10 of the Judicature Act, Part 1 Rule 3 of
the High Court (Practice and Procedure) Rules and all other enabling provisions of the law)
TAKE NOTICE that this Honourable Court will be moved on the ………….. day of
………………………………… 2019 at 9:00 o’clock in the forenoon or soon thereafter for the
hearing of an application by counsel for the Respondent/Applicant FOR ORDERS:-
a) The Respondent/Applicant’s Notice of Motion Application dated 10th September 2019
seeking leave to file written submissions for consideration be certified urgent and heard
during the Honourable court’s current vacation.
WHICH APPLICATION is based on the following GROUNDS:
1. The matter herein was scheduled for mention before the Honourable Court on 17th June
2019 for confirmation of filing of submissions by the parties. However on the said day,
the Court was not siting and parties were advised to take another date at the court
registry.

2. The Appellant/Respondent’s Advocates did served upon the Respondent/Applicant’s

Advocates a mention notice stating that the matter had been fixed for mention on 23rd
July 2019 before the Honourable Court.

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 3. However on the said date, 23rd July 2019 the Respondent/Applicant’s Advocates failed to
attend the said mention and the matter was given a Ruling date for 7th November 2019.

4. The failure to attend the mention scheduled on 23rd July 2019 by the
Respondent/Applicant’s Advocate was not intentional or intended to deny justice to
either of the parties or sabotage the judicial process.

5. The Respondent/Applicant’s Advocates failed to diarize the mention date and further the
offices were moving offices from ACK Garden House, 3 rd Floor, Wing A, 1st Ngong
Avenue to 4th Avenue Towers, 15th Floor, Suite No. 3, 4th Ngong Avenue off Bishop road
during the period of 22nd July 2019 till 28th July 2019.

6. During the process of moving many of the offices files were packed into boxes and the
mention notice was placed in a different file.

7. That sometime on 5th September 2019 the Respondent/Applicant’s Advocate came across
the said mention notice while perusing a different file and immediately directed the
Office Clerk to peruse the Court file.

8. The Respondent/Applicant’s Office Clerk attended the registry and was informed that the
matter had been scheduled for delivery of Ruling on 7th November 2019.

9. The Respondent/Applicant’s Advocate has since prepared the written submissions for
consideration and the same are ready for filing as soon as leave is granted for the same.

10. The Appellant/Respondent will not suffer any prejudice if the Respondent/Applicant is
allowed to file her written submissions for consideration.
.
11. It would be detrimental for the Respondent/Applicant to await the High Court vacation to
end in order to have the Application dated 10 th September 2019 heard and determined by
this Honourable Court.

AND WHICH APPLICATION is supported by the annexed Affidavit of TESSY E.

MARIENGA and on such other grounds and reasons as may be adduced at the hearing hereof.
DATED at NAIROBI this ………. 10th ……………day of ……..September
……………….2019

LUMUMBA & LUMUMBA

ADVOCATES FOR THE RESPONDENT/APPLICANT

DRAWN AND FILED BY:-

Lumumba & Lumumba
Advocates
4th Avenue Towers, 15th Floor, Suite No. 3

Page 3 of 13
4th Ngong Avenue
P.O.Box 10676-00400
NAIROBI
Email: info@lumumbalaw.com
Tel: 0710409145

TO BE SERVED UPON:
Magare Musundi & Company
Advocates
Princess Park, Flat No. 15
off Ngong Road, off Kabarnet Road
P.O.Box 38154-00100
NAIROBI
Email: musundib@yahoo.com

Page 4 of 13
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MILIMANI LAW COURTS
CIVIL APPEAL NO. 671 OF 2017

ATHI RIVER SHALOM COMMUNITY HOSPITAL.………………………. APPELLANT

VERSUS

MARTHA NGENDO KIHITI .………………………………………………RESPONDENT

(An appeal from the Judgment of the HIV & AIDS Tribunal delivered on the 10th day of
November, 2017 in HAT Case No. 002 of 2017)

BETWEEN
MARTHA NGENDO KIHITI ……………………………………………………CLAIMANT

VERSUS

ATHI RIVER SHALOM COMMUNITY HOSPITAL…………………….. RESPONDENT

SUPPORTING AFFIDAVIT

I, TESSY E. MARIENGA, an Advocate of the High Court of Kenya and of C/O Post Office
Box Number 10676-00400, Nairobi, practicing as such in the name and style of Messrs
Lumumba & Lumumba Advocates, and do hereby make oath and state as follows;

1. THAT I represent the Respondent/Applicant herein.

2. THAT I know that the matter herein was scheduled for mention before the Honourable
Court on 17th June 2019 for confirmation of filing of submissions by the parties. However
on the said day, the Court was not siting and parties were advised to take another date at
the court registry.

3. THAT the Appellant/Respondent’s Advocates did served upon the office a mention
notice stating that the matter had been fixed for mention on 23 rd July 2019 before the
Honourable Court.

4. THAT I know that the said mention date of 23 rd July 2019 was placed on my desk by the
office secretary; however I failed to diarize it immediately in the office diary.

5. THAT I completely forgot about the mention notice thereafter in light of the workload
that I was handling at the time.

6. THAT I failed to diarize the mention date and further the offices were moving offices
from ACK Garden House, 3rd Floor, Wing A, 1st Ngong Avenue to 4th Avenue Towers,

Page 5 of 13
 15th Floor, Suite No. 3, 4th Ngong Avenue off Bishop road during the period of 22 nd July
2019 till 28th July 2019.
7. THAT as a result of my failure to diarize the matter and the chaos in moving offices, I
failed to attend the mention scheduled on 23rd July 2019.

8. THAT my failure to attend the mention scheduled on 23 rd July 2019 was not intentional
or intended to deny justice to either of the parties or sabotage the judicial process.

9. THAT on 5th September 2019 while I was perusing one of the files in the registry, I came
across the said mention notice and immediately directed the Office Clerk to peruse the
Court file.

10. THAT I realized that during the process of moving many of the offices files were packed
into boxes and the mention notice was placed in a different file.

11. THAT the Office Clerk attended the registry and was informed that the matter had been
scheduled for delivery of Ruling on 7th November 2019.

12. THAT I have since prepared the written submissions for consideration and the same are
ready for filing as soon as leave is granted for the same.

13. THAT I would not want my actions to affect the Respondent’s case and I do apologise to
the Appellant and this Honourable court.

14. THAT I know that the Appellant/Respondent will not suffer any prejudice if the
Respondent/Applicant is allowed to file her written submissions for consideration.

15. THAT I am apprehensive that if the said submissions are not filed by leave of this
Honourable Court before the delivery of the Ruling on 7th November 2019 and
considered by this Honourable Court, the same would be detrimental for the
Respondent/Applicant and she will be denied a chance to participate and address the
grounds of Appeal raised by the Appellant/Respondent.

16. THAT I am apprehensive that the Applications herein would not await for the High
Court vacation to end in order to have the Application dated 10 th September 2019 heard
and determined by this Honourable Court.

17. THAT this application has been brought without unreasonable delay.

18. THAT it is only fair and just that this application be allowed as prayed.

19. THAT what is deponed hereinabove is true to the best of my knowledge and belief, save
on matters of information sources whereof I have disclosed

Page 6 of 13
SWORN by the said
TESSY E. MARIENGA ……………………………

At Nairobi this day of 2019 DEPONENT

BEFORE ME

COMMISSIONER OF OATHS

DRAWN AND FILED BY:

Lumumba & Lumumba
Advocates
4th Avenue Towers, 15th Floor, Suite No. 3
4th Ngong Avenue
P.O.Box 10676-00400
NAIROBI
Email: info@lumumbalaw.com
Tel: 0710409145

Page 7 of 13
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MILIMANI LAW COURTS
CIVIL APPEAL NO. 671 OF 2017

ATHI RIVER SHALOM COMMUNITY HOSPITAL.………………………. APPELLANT

VERSUS

MARTHA NGENDO KIHITI .………………………………………………RESPONDENT

(An appeal from the Judgment of the HIV & AIDS Tribunal delivered on the 10th day of
November, 2017 in HAT Case No. 002 of 2017)

BETWEEN
MARTHA NGENDO KIHITI ……………………………………………………CLAIMANT

VERSUS

ATHI RIVER SHALOM COMMUNITY HOSPITAL…………………….. RESPONDENT

NOTICE OF MOTION
Under:
(i) Section 1A, 1B, and 3A of the Civil Procedure Act;
(ii) Articles 159 (2) (d) of the Constitution 2010 and
(iii) All enabling provisions of Law.

TAKE NOTICE that this Honourable court will be moved on the _______ day of
_____________, 2019 at 9.00 O’clock or so soon thereafter as Counsel for the
Respondent/Applicant will be heard upon this application for ORDERS THAT:

a) This application be certified urgent.

b) The Honourable Court be pleased to grant leave to the Respondent/Applicant to file her
written submissions out of time for consideration by the Honourable Court before the
Ruling fixed for 7th November 2019.
c) Costs of this application be in the cause.

WHICH APPLICATION is based on the following GROUNDS:

1. The matter herein was scheduled for mention before the Honourable Court on 17th June
2019 for confirmation of filing of submissions by the parties. However on the said day,
the Court was not siting and parties were advised to take another date at the court
registry.

2. The Appellant/Respondent’s Advocates did served upon the Respondent/Applicant’s

Advocates a mention notice stating that the matter had been fixed for mention on 23rd
July 2019 before the Honourable Court.

Page 8 of 13
 3. However on the said date, 23rd July 2019 the Respondent/Applicant’s Advocates failed to
attend the said mention and the matter was given a Ruling date for 7th November 2019.

4. The failure to attend the mention scheduled on 23rd July 2019 by the
Respondent/Applicant’s Advocate was not intentional or intended to deny justice to
either of the parties or sabotage the judicial process.

5. The Respondent/Applicant’s Advocates failed to diarize the mention date and further the
offices were moving offices from ACK Garden House, 3 rd Floor, Wing A, 1st Ngong
Avenue to 4th Avenue Towers, 15th Floor, Suite No. 3, 4th Ngong Avenue off Bishop road
during the period of 22nd July 2019 till 28th July 2019.

6. During the process of moving many of the offices files were packed into boxes and the
mention notice was placed in a different file.

7. That sometime on 5th September 2019 the Respondent/Applicant’s Advocate came across
the said mention notice while perusing a different file and immediately directed the
Office Clerk to peruse the Court file.

8. The Respondent/Applicant’s Office Clerk attended the registry and was informed that the
matter had been scheduled for delivery of Ruling on 7th November 2019.

9. The Respondent/Applicant’s Advocate has since prepared the written submissions for
consideration and the same are ready for filing as soon as leave is granted for the same.

10. The Appellant/Respondent will not suffer any prejudice if the Respondent/Applicant is
allowed to file her written submissions for consideration.

11. The Respondent should not be penalized for the mistake of her Advocates herein to
diarize the mention date and file their written submissions.

AND WHICH APPLICATION is supported by the annexed Affidavit of TESSY E.

MARIENGA and on such other grounds and reasons as may be adduced at the hearing hereof.

DATED at NAIROBI this ………. 10th ……………day of ……..September

……………….2019

LUMUMBA & LUMUMBA

ADVOCATES FOR THE RESPONDENT/APPLICANT

DRAWN AND FILED BY:-

Lumumba & Lumumba
Advocates

Page 9 of 13
4th Avenue Towers, 15th Floor, Suite No. 3
4th Ngong Avenue
P.O.Box 10676-00400
NAIROBI
Email: info@lumumbalaw.com
Tel: 0710409145

TO BE SERVED UPON:
Magare Musundi & Company
Advocates
Princess Park, Flat No. 15
off Ngong Road, off Kabarnet Road
P.O.Box 38154-00100
NAIROBI
Email: musundib@yahoo.com

NOTE: If any party served does not appear at the time and place abovementioned, such order
will be made and proceedings taken as the court may think just and expedient.

Page 10 of 13
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MILIMANI LAW COURTS
CIVIL APPEAL NO. 671 OF 2017

ATHI RIVER SHALOM COMMUNITY HOSPITAL.………………………. APPELLANT

VERSUS

MARTHA NGENDO KIHITI .………………………………………………RESPONDENT

(An appeal from the Judgment of the HIV & AIDS Tribunal delivered on the 10th day of
November, 2017 in HAT Case No. 002 of 2017)

BETWEEN
MARTHA NGENDO KIHITI ……………………………………………………CLAIMANT

VERSUS

ATHI RIVER SHALOM COMMUNITY HOSPITAL…………………….. RESPONDENT

SUPPORTING AFFIDAVIT

I, TESSY E. MARIENGA, an Advocate of the High Court of Kenya and of C/O Post Office
Box Number 10676-00400, Nairobi, practicing as such in the name and style of Messrs
Lumumba & Lumumba Advocates, and do hereby make oath and state as follows;

1. THAT I represent the Respondent/Applicant herein.

2. THAT I know that the matter herein was scheduled for mention before the Honourable
Court on 17th June 2019 for confirmation of filing of submissions by the parties. However
on the said day, the Court was not siting and parties were advised to take another date at
the court registry.

3. THAT the Appellant/Respondent’s Advocates did served upon the office a mention
notice stating that the matter had been fixed for mention on 23 rd July 2019 before the
Honourable Court.

4. THAT I know that the said mention date of 23 rd July 2019 was placed on my desk by the
office secretary; however I failed to diarize it immediately in the office diary.

5. THAT I completely forgot about the mention notice thereafter in light of the workload
that I was handling at the time.

6. THAT I failed to diarize the mention date and further the offices were moving offices
from ACK Garden House, 3rd Floor, Wing A, 1st Ngong Avenue to 4th Avenue Towers,

Page 11 of 13
 15th Floor, Suite No. 3, 4th Ngong Avenue off Bishop road during the period of 22 nd July
2019 till 28th July 2019.

7. THAT as a result of my failure to diarize the matter and the chaos in moving offices, I
failed to attend the mention scheduled on 23rd July 2019.

8. THAT my failure to attend the mention scheduled on 23 rd July 2019 was not intentional
or intended to deny justice to either of the parties or sabotage the judicial process.

9. THAT on 5th September 2019 while I was perusing one of the files in the registry, I came
across the said mention notice and immediately directed the Office Clerk to peruse the
Court file.

10. THAT I realized that during the process of moving many of the offices files were packed
into boxes and the mention notice was placed in a different file.

11. THAT the Office Clerk attended the registry and was informed that the matter had been
scheduled for delivery of Ruling on 7th November 2019.

12. THAT I have since prepared the written submissions for consideration and the same are
ready for filing as soon as leave is granted for the same. (Annexed and marked TEM-1 is
a copy of the Respondent’s Written Submissions and List of Authorities)

13. THAT I would not want my actions to affect the Respondent’s case and I do apologise to
the Appellant and this Honourable court.

14. THAT I know that the Appellant/Respondent will not suffer any prejudice if the
Respondent/Applicant is allowed to file her written submissions for consideration.

15. THAT I am apprehensive that if the said submissions are not filed by leave of this
Honourable Court before the delivery of the Ruling on 7th November 2019 and
considered by this Honourable Court, the same would be detrimental for the
Respondent/Applicant and she will be denied a chance to participate and address the
grounds of Appeal raised by the Appellant/Respondent.

16. THAT I am apprehensive that the Applications herein would not await for the High
Court vacation to end in order to have the Application dated 10 th September 2019 heard
and determined by this Honourable Court.

17. THAT this application has been brought without unreasonable delay and I filed it as soon
as I realised the error and the urgency of the matter.

18. THAT it is only fair and just that this application be allowed as prayed.

Page 12 of 13
19. THAT what is deponed hereinabove is true to the best of my knowledge and belief, save
on matters of information sources whereof I have disclosed

SWORN by the said

TESSY E. MARIENGA ……………………………

At Nairobi this day of 2019 DEPONENT

BEFORE ME

COMMISSIONER OF OATHS

DRAWN AND FILED BY:

Lumumba & Lumumba
Advocates
4th Avenue Towers, 15th Floor, Suite No. 3
4th Ngong Avenue
P.O.Box 10676-00400
NAIROBI
Email: info@lumumbalaw.com
Tel: 0710409145

Page 13 of 13