Hospital ordered to pay couple Sh7m for holding babies over unpaid bill

A city hospital will have to pay a couple Sh7 million for detaining its newborn babies at birth over an unpaid bill.

Matters got complicated for Nairobi South Hospital after it failed in its appeal that sought to challenge a decision by the High Court that it pays Charles Kyalo and his wife Virginia Adhiambo for detaining their two babies over the Sh4 million bill.

On February 1, 2021, Kyalo and Adhiambo were excited to welcome quadruplets to their family. However, the boys were born prematurely and had to spend some days in a Neonatal Intensive Care Unit, resulting in a huge bill that the couple was unable to settle.

The boys were born prematurely, at 31 weeks.

A legal battle ensured as Kyalo and Adhiambo accused the hospital of turning their babies into prisoners at birth while the hospital. The health facility denied holding on to the infants as collateral and accused the two of making little effort to raise the balance of Sh3.5 million.

Hospital challenging

The Court of Appeal judge Ngenye Macharia has dismissed a case by the hospital challenging the Sh7 million award to the couple, for failing to adhere to the set timelines.

Justice Macharia dismissed the hospital’s application seeking a chance to appeal the judgement the High Court rendered in favour of Kyalo and Adhiambo. This was after the hospital failed to adhere to the strict timelines of the appeal process. It filed its intention to appeal on February 16, 2023, and only filed its papers on May 9, 2023, according to Justice Macharia.

“A three-month delay was definitely inexcusable. I say so because, although the applicant satisfactorily explained the delay in failing to file the notice of appeal outside the stipulated period, the applicant failed to give a reasonable explanation for the delay in correcting the error upon realizing its inadvertent mistake. The systemic indolence is inexcusable, which the court cannot countenance. Consequently, the applicant is undeserving of the court’s exercise of discretion in its favour,” ruled Justice Macharia.

Last year, High Court judge Hedwig Ong’udi ordered the hospital, owned by former National Health Insurance Fund CEO Hassan Mohamed Adam, to pay Kyalo and Adhiambo Sh 500,000 each.

Inhuman to detain

At the same time, she directed that the two minors be paid Sh3 million each for violation of their right to be with their parents after birth. She said it was inhuman to detain a child.

“The respondent (Nairobi South Hospital) denied the babies the right to be with their parents and in particular their mother for purposes of bonding and being breastfed. This obviously caused the petitioners psychological torture. The minors are not able to speak for themselves and that is why their parents are representing them,” said Justice Ong’udi.

In this case, the parents claimed the hospital released their two boys on February 26, 2021, but failed to discharge two on account that they were still being treated. They claimed that they were told that they would only be released if they cleared the bill.

“The illegal detention of the minors has exposed the petitioners and the minors to emotional and psychological torture and exposed the minors to inhuman and degrading treatment. The respondent’s act of holding onto the minors as lien directly infringes the minor’s rights to liberty and security of persons,” Kyalo and Adhiambo’s lawyer Alex Mola argued.

Kyalo claimed on March 15, 2021, he wrote to the hospital demanding that it releases the babies unconditionally. However, he said, the hospital demanded that he deposits Sh1 million and make a commitment on how he would clear the balance before the hospital’s directors met to decide whether to release the boys.

“In holding on to the minors as objects of lien to compel the petitioners to clear the outstanding bill, the respondent has demonstrated that it does not see the minors as human beings but rather as some objects of value that can be held as ransom for payment,” said Kyalo.

The hospital had a different account of what happened. In its reply, it claimed that the minors who have now been discharged were underweight. It further stated that the parents knew the babies had to remain at the hospital for medical reasons and were discharged on March 25, 2021.

It argued that they have not committed to settling the bill. In addition, the hospital asserted that the two came to the hospital, and they promised to pay.

Committed to pay

At the same time, their insurance allegedly committed to pay Sh 200,000. Nairobi South Hospital said it did not charge the couple any extra money.

“The respondent constantly demanded and reminded the petitioners to settle the accruing charges but the petitioners continued to assure the hospital that the bill would be settled in full. At no time did the petitioners inform the hospital that they would not be in a position to settle the said bill. To demonstrate the lack of good faith and reasonableness on the part of the petitioners, they demanded they be allocated a more expensive private room which greatly added to the overall cost of hospitalization,” the hospital administrator Stephen Ndulu replied.

Willingly sought

Ndulu argued that Kyalo and Adhiambo willingly sought to be treated at the private hospital and thus should have honoured their end of the bargain. He claimed that they would have gone to a public institution that would settle the bill if they are not able to raise the money.

“There was no emergency that would have stopped the first and second petitioners from seeking the services of government-owned medical facilities such as Kenyatta Hospital where there would have been an obligation on the part of the government to defray part of the cost… It does not sit well for dispensation of justice for the petitioners to seek treatment in a private hospital facility and expect to walk out without paying under the guise of constitutional protection and freedoms,” said Ndulu.

He said the bill, as of 2021, stood at Sh3.1 million.