https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1490

Achila v Aga Khan University Hospital & another (Constitutional Petition E057 of 2026) [2026] KEELRC 1490 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1490 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Constitutional Petition E057 of 2026 JW Keli, J May 22, 2026 IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE CONSTITUTION IN ARTICLES 2, 3 & 10 OF CONSTITUTION OF KENYA, 2010 THE AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS IN ARTICLES 20, 21, 22, 23, 27, 28, 35, 41, 47, 48, 50 (1) & 162 (2) (b) OF THE CONSTITUTION ARTICIES 20 21 E CON ITION OF KENYA, 2010 AND IN THE MATTER OF: THE EMPLOYMENT ACT, 2007 IN THE MATTER OF: SECTIONS 4, 7, 10(1), 11 AND 12 OF THE FAIR ADMINISTRATIVE ACTION OF 2015 Between Bob Otieno Achila Petitioner and Aga Khan University Hospital 1st Respondent Aga Khan University 2nd Respondent Ruling 1.The petitioner is an employee of the 2nd Respondent, the Agha Khan University, as a full-time faculty member in the Department of Obstetrics and Gynaecology as from 3rd February 2020. By virtue of his employment, the Petitioner has been granted privileges of practice under the 1ST respondent, Agha Khan University Hospital- Nairobi. The petitioner is undergoing disciplinary processes as regards his privileges to practice under the 2nd respondent. Being aggrieved with disciplinary process, the applicant filed before the court a petition dated 18th February 2026 seeking for the following reliefs-a.Declaration that the meeting scheduled and held on 18th September 2025 violated the Petitioner's constitutional rights and was therefore unlawful, null and void.b.A declaration that the Warning Letter dated 6th October 2025 was irregular, without any justifiable basis and therefore null and void.c.A declaration that the Peer Review process and its outcome dated 10th November 2025 by the Respondent was unlawful, irregular and violated the Petitioner's right to fair labour practices.d.A Declaration that the refusal by the Respondents to provide the Petitioner with material information relating to the purported out of scope procedures violated his right to access to information.e.A declaration that by requiring the Petitioner to respond to anonymous accounts, the Respondents violated the Petitioner's right to fair administrative action and right to fair hearing.f.An order of certiorari quashing the Warning Letter dated 6th October 2025, the Peerer Review Outcome dated 10th November 2025, the Finding of the Joint Staff Committee dated 28th January 2026, and the Appeal decision dated 3rd February 2026 in respect of the subject matter of this Petition.g.An order of prонівітion prohibiting the Respondents from instituting and pursuing disciplinary action ed to the on the basis of the unfounded allegations that resulted to the impugned Peer Review process.h.A conservatory order restraining the Respondents, its agents, servants or any other person acting for and or on their behalf from taking any disciplinary action against the Applicant or interfering with his employment in any manner whatsoever including retaliation, reprisal, or victimization on account of filing this petition.i.A Conservatory Order do issue restraining the Respondent, its agents, servants or any other person acting for and or on their behalf from commencing, proceeding, concluding or otherwise conducting any intended disciplinary action against the Petitioner. Communicating to any third party about the allegations in respect of the allegations leading to the unfair suspension and Peer Review process.j.An order for compensation of twelve (12) month's salary amounting to KShs.9,631,296.00 for 7 28 35 41 2d violation of the Petitioner's Constitutional Rights under Articles, 27, 28, 35, 41 and 47 of the Constitution of Kenya 2010 as outlined hereinabove.k.An Order for aggravated & exemplary damages for breach of constitutional rights including the right to fair administrative action, right to human dignity and self-worth.l.An Order for interest at 12% p.a. on prayer j & k above from the date of filing the Petition until payment in full. m. That the costs of this Petition be borne by the Respondents 2.Concurrently, the petitioner filed an application be way of notice of motion of even date seeking for the following substantive orders-A.That pending the hearing and determination of the Application inter partes, a conservatory order do issue restraining the Respondents' Board of Trustees from revoking the Petitioner/Applicant's staff membership.B.That pending the hearing and determination of the Application inter partes, a conservatory order do issue restraining the Respondent, their agents, servants or any other person acting for and or on their behalf from commencing, proceeding, continuing, concluding or otherwise conducting any intended disciplinary action against the Petitioner/Applicant.C.That pending the hearing and determination of the Application inter partes, an order do issue restraining the Respondents, their agents, servants or any other person acting for and or on their behalf from taking any action against the Petitioner/Applicant in interfering with his employment or as retaliation, threats, reprisal, or victimization on account of filing this Application and instant Petition.D.That pending the hearing and determination of the Application inter partes, an order do issue restraining the Respondents from revoking the Petitioner/Applicant's staff membership with the 1st Respondent.E.That pending the hearing and determination of the Petition, an order do issue restraining the Respondents' Board of Trustees whether by themselves, their officers, servants, agents or assigns, from convening, considering, approving, ratifying, implementing, or communicating any decision relating to the revocation of the Petitioner/Applicant's Medical Staff membership, including any reporting the same to the Kenya Medical Practitioners and Dentists Council, pending further orders of this Honourable Court.F.That pending the hearing and determination of the Petition, conservatory orders do issue restraining the Respondent, their agents, servants or any other person acting for and or on their behalf from commencing, proceeding, continuing, concluding or otherwise conducting any intended disciplinary action against the Petitioner/Applicant on account of the impugned Peer Review process.G.That pending the hearing and determination of the Petition, conservatory orders do issue restraining the Respondents, their agents, servants or any other person acting for and or on their behalf from taking any action against the Petitioner/Applicant by howsoever interfering with his employment or as retaliation, threats, reprisal, or victimization on account of filing this Application and instant Petition.H.That this Honourable Court issue any further order or relief that it may deem appropriate and expedient to meet the ends of justice.I.That costs occasioned by this application be borne by the Respondents. 3.On the 19th February 2026, this Honourable Court issued directions, including issuing an order that, "pending the hearing of the Application cation inter partes, a conservatory order is issued restraining the Respondents' Board of Trustees from revoking the Petitioner/Applicant's staff membership". 4.The Respondents filed a Preliminary Objection dated 3rd March 2026, challenging the propriety of the proceedings on the grounds that the Petition does not disclose any colourable constitutional violation to sustain these constitutional proceedings and further that the Petition is an abuse of process as any viable claim ought to be pursued under the Employment Act or by way of judicial review under the Fair Administrative Action Act. 5.The court directed the application and the preliminary objection be heard first by way of written submissions.The parties complied. The issue is whether the preliminary objection is merited. The applicant’s submissions 6.Whether this Honourable Court has jurisdiction to deal with this matter -it is a trite law that Jurisdiction is everything. Without it, a court has no power to make one more step. (See the holding of the Court of Appeal in Owners of the Motor Vessel "Lillian S” v Caltex Oil (Kenya) Ltd. (1989) Additionally, the Supreme Court pronounced itself in the case of Samuel Macharia Kamau KCB & Others (2012) eKLR as follows; "A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court can only exercise Jurisdiction as conferred by the Constitution or other written laws. It cannot arrogate to itself Jurisdiction exceeding that which is conferred upon it by law. The Court must operate within the constitutional limits. It cannot expand Jurisdiction through Judicial craft or innovation. We submit that this Court has the requisite jurisdiction to hear and determine this matter. The Respondents argue that the dispute ought to be pursued under the Employment Act, 2007. This argument ignores the nature of the Petitioner's grievance. The Petitioner is challenging the constitutionality of the entire process, including the Peer Review mechanism, the handling of his appeal, and the impending communication to the KMPDC. 7.Additionally, the petitioner is challenging violations and threats to violation of his rights and fundamental freedoms in this process. We submit that, on this basis, the Petitioner is correct to approach the Court by the instant Petition. Article 22 (1) of the Constitution of Kenya provides that: "Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened." 12. Article 23 of the Constitution of Kenya provides as follows: (1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. threat to a right or fundamental freedom in the Bill of Rights (2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. (3) In any proceedings brought under Article 22, a court may grant appropriate relief, including (a) a declaration of rights; (b) an injunction; (c) a conservatory order; d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review Furthermore, your Ladyship, Article 162(2) of the Constitution of Kenya provides as follows: "Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to- (a) employment and labour relations; and (b) ... 14. We submit that this Court has jurisdiction to hear and determine the question whether a right or fundamental freedom has been denied, violated, infringed, or threatened arising from an employment context. 15. Additionally, Article 23(3) of the Constitution explicitly empowers this Court, in any proceedings under Article 22, to grant appropriate relief, including an incidental one. The Constitution, therefore, expressly contemplates that judicial review remedies may be sought within the framework of a constitutional petition. The Petitioner is therefore entitled to seek both remedies within a single petition. That in Okiya Omtatah v Joseph Kinyua & Another [2018] eKLR, the issue arose as to whether that court had the jurisdiction to entertain a dispute involving the interpretation the Constitution, and it was held that: “...The preamble to the ELRC Act provides: “An Act of Parliament to establish the Employment and Labour Relations Court to hear and determine disputes relating to employment and labour relations and for connected purposes”. (underlining mine) 9. This preamble is wide enough and cannot, by any manner of interpretation, be understood to confine the jurisdiction of the court to only situations where there is in existence an employer-employee relationship. That would be a too-narrow is in existence an interpretation. This, therefore, means that the vesting of power on the Employment and Labour Relations Court to determine constitutional questions relating to employment and labour relations carries with it such implied power as is necessarily inherent in the nature n of the judicial power itself. Judicial Review is now a constitutional remedy and therefore, the Petitioner can seek redress at this Honourable Court by way of certiorari or otherwise. In Prof. Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR, it was held that the Employment and Labour Relations Court has the jurisdiction to entertain constitutional matters as well as matters ancillary thereto. It is our submission that such matters include applications for judicial review. The Court of The Court of Appeal expressed the following viewpoint in the above-mentioned case: "...we venture to put forth the position that as we have concluded that the Industrial Court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incidental to those matters, the same should go for the Environment & Land Court, when dealing with disputes involving environment and land with any claims of breaches of fundamental rights associated with the two subjects. . It is therefore our submission that this Court is rightly clothed with jurisdiction to hear and determine this matter since its powers are derived from the Constitution. 8.Whether the Petitioners have met the threshold to warrant the granting of Conservatory Orders? ii) 19. 20. We submit that this Honourable Court should grant the conservatory orders pending hearing and determination of the Petition as sought by the Petitioners. In the case of Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General, Nairobi High Court Petition No. 16 of 2011; [2011] eKLR, the Honourable Court noted the principles to be satisfied to warrant the grant of conservatory orders as follows; *At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution." (Emphasis added) The High Court in Martin Nyaga Wambora vs Speaker of the County Assembly of Embu and 3 Others, Petition No. 7 of 2014, the principles for the grant of conservatory orders were set out in the following terms: "(59) In determining whether or not to grant conservancy orders, several principles have been established by the courts. The first is that: '... ..[an applicant] must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution "[60] To those erudite words I would only highlight the importance of demonstration of "real danger”. The danger must be imminent and evident, true and actual and not fictitious; so much so that it deserves immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that is remote and unlikely will not attract the court's attention. 9.The second principle, which naturally follows the first, is whether a conservancy order is not granted, the matter will be rendered nugatory. the above precedents have set a two-pronged framework, a prima facie case with real danger of prejudice and the nugatory aspect. Based on the aforementioned precedents, we humbly submit as follows;- The Petitioners have demonstrated a prima facie case with a likelihood of success. We submit that a prima facie case in the context of conservatory orders does not require the Petitioner to establish his case beyond a reasonable doubt or even a balance of probabilities. It requires demonstration that the Petition raises serious constitutional questions and discloses arguable violations of fundamental rights. It is our submission that this Honourable Court in Shabdin v Mater Misericordiae Hospital [2025] KEELRC 966 (KLR), while granting a conservatory order restraining the Respondent from effecting the transfer of the Petitioner from Mater Misericordiae Hospital in Nairobi to Thika Medical Centre held as follows: "In the premises, having considered the pleadings, submissions, and applicable law, this Court finds that the Petitioner/Applicant has demonstrated a prima facie case with a likelihood of success. The Respondent's actions, particularly the unilateral transfer of the Petitioner without consultation or a hearing, raise serious questions regarding the violation of the Petitioner’s constitutional rights under Articles 41, 47, and 50 of the Constitution. The Respondent's failure to provide reasons for the transfer and to accord the Petitioner an opportunity to be heard before effecting the transfer contravenes the principles of fair administrative action and fair labour practices. The Court further finds that the Respondent's reliance on managerial prerogative does not override the Petitioner’s constitutional rights. While an employer has control over its workforce, such control must be exercised within the confines of the law and respect for due process. ………The Court is persuaded that the Petitioner has established a prima facie case warranting the grant of conservatory orders to prevent further prejudice pending the hearing and determination of the main petition. The argument that conservatory orders only apply in public law matters is not persuasive in this case, as the relief sought is to safeguard constitutional rights, which this Court has jurisdiction to enforce.” (Emphasis ours) We humbly submit that the evidence on record outlines an undeniable and blatant constitutional violation, which we will highlight hereunder. 26. The Petitioner's Constitutional right granted g in Article 27 (1) & (2) of the Constitution of Kenya 2010 on equality and freedom from discrimination was violated when the 1st and 2nd Respondents failed to accord him protection and equal benefit of the law by instituting and pursuing disciplinary action disguised as "Peer Review proceedings" under questionable circumstances. Furthermore, the Petitioner's right to human dignity guaranteed under Article 28 of the Constitution of Kenya 2010 was violated through the unwarranted Peer Review process, upon which the 1st and 2nd 2 Respondents have continued to characterize the Petitioner as an as incompetent practitioner by relying on issues that were outside the scope of Peer Review and that were unsupported by evidence. The Petitioner's right to access information as guaranteed under Article 31 of the Constitution of Kenya has further been violated since he was denied access to the 1st and 2nd Respondents' Meditech and to the alleged station tech platform to enable him to respond to the alleged documentation discrepancies in the said platform. That Article 41 of the Constitution of Kenya 2010 provides for fair labour practices. The 1st and 2nd Respondents, however, violated the said rights, as the Petitioner's clinical privileges have been unnecessarily suspended since 29th October 2025, and it is only after he sought legal intervention that the 1st and 2nd Respondents granted him access. 10.Additionally, during this period, his clinics were suspended indefinitely, and he has therefore been unable practice as a medical practitioner for four (4) months. to 30. Article 47 of the Constitution of Kenya 2010 guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. Section 4 of the Fair Administrative Action Act, 2015, elaborates on these requirements, mandating prior notice, disclosure of evidence, and an opportunity to be heard. mandating prior notice disclosure of evidence, a right to be heard & and 31. This Honourable Court in Gumbe v Vice Chancellor, The Technical University of Kenya another [2024] KEELRC 741 (KLR), while granting conservatory orders pending hearing determination of the petition, found that the Petitioner had established a prima facie having demonstrated violations of his fair administrative action rights. The court held as follows: "The court finds there is a prima facie case proved by the petitioner. It is prudent to note he was not given a hearing before b the University communicated ted their decision to start deducting his salary. This This was against the Constitution and right to fair Administrative Action Act. At least he should have been given opportunity to explain what he was upto for all that period. " We submit that the Respondents' process against the Petitioner was riddled with procedural irregularities that fundamentally violated Article 47 as hereunder outlined: The Respondents called a meeting on 15th September, dubbed "urgent meeting", scheduled for 18th September 2025. but neither sent a notice nor an agenda; It was only during the meeting that the Petitioner became aware that the meeting was aware organised pursuant to Dr. Charles Muteshi's allegations of "Workplace bullying and undermining'; He was given no opportunity for rebuttal. The minutes of this meeting (BA-1 at pages 34-37) confirm that the meeting was treated as an "intervention" on collegiality. Critically, the Committee found no misconduct and resolved that the issues were collegial and required policy clarification. Yet, inexplicably, this same meeting was later used as the foundation for disciplinary action. We submit that the right to fair administrative action under Article 47 includes the right to be given adequate notice of the case to be met and an opportunity to respond. The Respondents' failure to provide notice and an agenda violated this fundamental tenet. Furthermore, the Petitioner was sent a letter titled "Formal Warning for Professional Conduct, Bullying and Breach of Credential Procedures." This letter; Contradicted the findings of 18th September 2025 that no Unilaterally usurped the misconduct had occurred; usurped the Human Resource function in violation of the Respondent's internal policies as well as the Fair Administrative Action Act; Was issued by an unauthorised official; Failed to indicate how the Petitioner had purportedly subjected Dr. Charles Muteshi the alleged workplace bullying; Did not give the Petitioner had no chance to rebut the allegations; Failing to outline the specific act leading up to the warning, to Petitioner immediately appealed the Warning Letter on 13th October 2025 (ВA-1 at pages 35. The F 41-1-43) and requested a review. The Respondents never responded to this appeal. The warning therefore, remained under active appeal, yet it was used as the foundation for all subsequent actions. The Respondents' reliance on a Warning Letter that was under active appeal around subsequent suspension and peer review. To ground subsequent suspension and peer review proceedings was premature and procedurally unfair, therefore unlawful. We submit that there is clear evidence of bias on the part of the Respondents. The Peer Review convened on 10th November 2025 was marred by procedural irregularities that, standing alone, establish a prima facie case of constitutional violation: The Peer Review Committee included Prof. John Weru (who issued the suspension) and Prof. Elkanah Omenge (who issued the Warning Letter) as voting members. This Elkanah Omenge (who issued the Warning Letter) was a clear violation of the principle nemo judex in causa sua. Section 4(3)(g) of the Fair Administrative Action Act requires disclosure of all relevant materials to be relied upon. The Respondents' conduct blatantly violated this provision. Despite repeatedly requesting documents and information relied on in relation to the accusations levelled against him in the investigation report, the respondent failed to reveal the purported reports and opinions which were relied on during the whole process. Throughout the whole disciplinary process, there has been evidence of bias and Throughout the whole disciplinary process. There has been evidence of bias and prejudice, evidenced by the fact that Professor John Weru and Professor Omenge Orango have been involved in the whole disciplinary process, from the peer review stage to the appellate stage. 11.Furthermore, the appeal process was procedurally invalid as highlighted -a) The Petitioner filed a comprehensive appеal on 3rd December 2025 (ВА-1 at pages 83-127) pursuant to Clause 4.8.2.1 of the Medical Staff By-Laws. The appeal raised 20 grounds of procedural irregularity. b) On 28th January 2026, the Joint Staff Committee purportedly met and upheld the Peer Review recommendation (BA-1 at pages 162-163). Critically, the Petitioner was not notified of this meeting and was not given an opportunity to be heard. c) On 3rd February 2026, the Respondents wrote to the Petitioner indicating that his first appeal had been considered and determined as a second appeal (BA-1 at page 164). This arbitrary reclassification violated the Respondents' own bylaws and denied the Petitioner the procedural safeguard of a genuine appellate review. The court in Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General, Nairobi High Court Petition No. 16 of 2011; [2011] eKLR, went ahead and found that the Petitioners had established a prima facie case based on a violation of Article facie case based on a violation of Article 27 as follows: "In view of the violations to the letter and spirit of the Constitution as shown hereinabove, even without considering other relevant provisions of the Constitution, like Article 10, which spells out national values and principles of governance, I am satisfied that the petitioners have demonstrated that they have a prima facie case with a likelihood of success. success" It is our submission that from the highlighted facts, the Petitioners have presented a prima facie case with a likelihood of success warranting the grant of the conservatory order. The respondent’s submissions 12.It is trite law that this Honourable Court is slow in interfering with a private body’s internal disciplinary/review process. It will do so exceptionally if and only if it is cogently shown that either the process has been breached or is evidently flawed and manifestly unjust- see for example- Mulwa Msanifu Kombo v Kenya Airways [2013] KEELRC 747 (KLR) : “The intervention in disciplinary process by employers will be entertained by the court rarely and in clear cases where the process is likely to result into unfair imposition of a punishment against the employee. The court will intervene in an administrative disciplinary procedure if it is established that the procedure relied on by the employer offends fairness or due process by not upholding the rules of natural justice, or, if the procedure is in clear breach of the agreed or legislated or employer’s prescribed applicable policy or standards, or, if the disciplinary procedure were to continue it would result into manifest injustice in view of the circumstances of the case.” . There is no such showing here. AKUH has meticulously followed the procedure prescribed in the Medical Staff By-Laws at every stage. The process has involved 7 no fewer than five distinct bodies: (i) the Department Chair; (ii) the Chief Medical Officer; (iii) the PRC; (iv) the Clinical Privileging and Credentialing Committee; and (v) the JSC – with the matter now pending before the Board of Trustees. There has been no manifest injustice, nor an abandon of rules of natural justice as to warrant the court’s intervention either as sought by the Petitioner or at all. 3.3. True it is, that the By-Laws grant a right to seek Court intervention at any stage of the process. However, such intervention is based on established legal principles. It is necessary for a party to establish that there is a basis for this Honourable Court to intervene- “jurisdiction is exercised within the laid down principles of law” as observed by Korir J in Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & another [2020] eKLR. No such basis has been established to warrant such intervention in this case. Constitutional Avoidance/ The Alleged Constitutional Violations 3.4. Courts have consistently cautioned against invoking the Constitution in cases that can be adequately dealt by statute, that is, the doctrine of constitutional avoidance. The doctrine is to the effect that where there is a prescribed statutory route for the adjudication of certain kinds of complaints, as in this case, the Employment Act, constitutional complaints will not and should not be tolerated- see Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court affirmed that: ‘256. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]: 8 “I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” 3.5. At is heart, despite its prolixity and the citation and majority of the provisions in the Bill of Rights as well as various provisions of the Fair Administration Act 2015, the real relief sought is seeking the maximum statutory damages available for unfair termination- see prayer (j) of the Petition. In other words, though dressed in the garb of glittering generalities of breaches of fair administrative action, right to human dignity and self-worth, the Petitioner’s case is for what can only be characterized as anticipatory unfair termination. The Employment Act provides a comprehensive code governing employment relations in Kenya including the mechanisms for the resolution of all employment related grievances, and it is therefore not open to the Petitioner to invoke the Constitution to seek additional relief over and above the prescribed statutory relief- see further, the holding of Mugambi J in Motiga v Lugalia & 4 others (Petition E328 of 2023) [2025] KEHC 275 (KLR) (Constitutional and Human Rights) (22 January 2025) (Ruling) where, in quoting the holding in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR she held: “Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation.…” Not that there is anything to the alleged constitutional violations as a simple run through them demonstrates just how unfounded Dr. Achila’s complaints are: a) Article 27 - The Petitioner alleges violation of Article 27 of the Constitution on the ground that he was not accorded “protection and equal benefit of the law.” This unparticularized allegation is, with respect as meaningless as it is wholly unsubstantiated. A claim of discrimination requires evidence of differential treatment of similarly situated persons on prohibited grounds. The Petitioner has failed to identify any comparator – that is, any other Medical Staff member in comparable circumstances – who was treated more favourably, on any of the prohibited grounds such as race, age, colour etc. See Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR. This has not been done. b) Article 28 The Petitioner alleges violation of his right to human dignity under Article 28 on the ground that the Peer Review process characterized him as an “incompetent practitioner.” We are unable to see how putting words in the mouth of the PRC amounts to violations of Dr. Achila’s right human dignity. Adverse findings that his conduct had fallen short in his professional findings, adverse findings made after hearing him and based on the evidence before it, do not and cannot impinge his right to human dignity otherwise each and every such finding in every context including those made by this Honourable Court would violate Article 28. All the someone has to say is that he was hurt by them. The findings of the PRC are related to clinical practice, not personal characteristics. The Committee's observations that the Petitioner “did not take the matter with the seriousness it deserved” and “fails to acknowledge the need for collaboration” are professional assessments, not attacks on personal dignity. Article 35 This is completely unsubstantiated and this Honourable Court only needs to look at the face of the record to see that the Petitioner was given the necessary information to enable him prepare a defence. In any case, this is an issue that can be adequately adjudicated upon in the Employment Court under employment law 10 which requires employers to give reasons why they are considering termination or any adverse action. c) Article 41 His allegations of violation of fair labour practices, while untrue, is quite literally the cornerstone of employment law, and the very reason employment courts were established. d) Article 47 The Petitioner’s primary complaint concerns alleged violations of Article 47 of the Constitution and the Fair Administrative Action Act, 2015. However, even accepting the Petitioner’s characterization of the facts (which is denied), such complaints are sound in judicial review, not constitutional petition. Furthermore, the court in Ndung’u & another v Wachira & another (Constitutional Petition E047 of 2025) [2025] KEHC 7265 (KLR) (Constitutional and Human Rights) (26 May 2025) (Ruling) stated in no uncertain terms: Article 50(2) of the Constitution (embodied in the Fair Administrative Act, 2015), codifies a limitation: judicial review may not be undertaken unless “internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.” e) Article 51 The Petitioner wrongly cites Article 51 of the Constitution which embodies the rights of detained person. We reckon that the Petitioner meant to cite article 50 (2) as he alleges that he was not accorded a fair and public hearing. The record shows that the Petitioner was in fact, accorded a fair hearing, and even accompanied by a representative of his choice in the hearing. In any case, this complaint is also an issue which the employment law is well equipped to deal with. We reiterate our submissions in (e) above, that this is a matter that can be determined using the employment law route and should not be a cause to invoke constitutional provisions. Evidently, for all the above reasons, the Petitioner, wrongly, and contrary to established principles, invokes the Constitution where statute is enough to address its complaints. We humbly submit that this Honourable Court uphold the Respondents’ PO. Petitioner’s Application . The High Court in Mwaniki v Ndiga & 3 Others (Constitutional Petition E020 of 2024) [2025] KEHC 9562 (KLR), after reviewing the established principles, summarized the test for conservatory orders as follows: a) The need for the applicant to demonstrate an arguable prima facie case with likelihood of success and to show that in the absence of the conservatory orders he is likely to suffer prejudice. b) The secondary principle is whether the denial of the conservatory order will enhance the constitutional values and objects of the specific right or freedom in the bill of rights. c) The court should consider whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. d) Whether the public interest would be prejudiced by a decision to exercise discretion to grant or deny conservatory order. Applying these principles to the present case, AKUH submits that the Petitioner has failed to satisfy any of the requirements for the grant of conservatory orders. First, Dr. Achila has not established a prima facie case with a likelihood of success. For the reasons already advanced in these submissions, the Petition does not disclose any genuine constitutional violation. The Petitioner’s complaints relate to internal governance processes that do not engage constitutional rights as is evident from the record (as outlined in 2.3 above) the Peer Review process was conducted in accordance with the Medical Staff By-Laws, 2023 and by any measure was and remains objectively fair. The Petitioner was afforded notice, an opportunity to be heard, the right to nominate a peer to sit in on the Committee, and rights of appeal. Critically, the Petitioner’s own nominee, Dr. Evans Sequeira, participated in the PRC and voted unanimously with the other members for revocation of the Petitioner's medical staff membership. This fact alone fundamentally undermines any suggestion that the process was unfair, biased or predetermined. Furthermore, these proceedings are premature as the Board of Trustees has not yet made a final decision on the recommendation for the revocation of Dr. Achila’s privileges. There is, at present, no extant decision adverse to the Petitioner that is capable of being challenged. AKUHN has demonstrated the basis as well as the procedure followed in suspending his clinical privileges which was in conformity with the 2023 By-laws. The issues of the AKU’s disciplinary processes are not properly before this Honourable Court. These are red herrings designed to sow confusion. No action is yet to be taken by AKU on Dr. Achila’s possible violations of his contract of employment as well as the relevant policies. The Petitioner was accorded every right required of such a process, and therefore no prima facie case has been established. Absent this, at this stage, Petitioner’s application for conservatory orders must fail. The Petitioner has not demonstrated any real danger of prejudice. He alleges that he will suffer irreparable harm if conservatory orders are not granted. Not only is it that this claim is speculative but also, if it was indeed harm, it is not irreparable. Should any unfair termination result, it is compensable in money up to 12 months payment as sort in prayer (j). Most importantly, the court in Wambora v Speaker of the County of Assembly of Embu & 3 others [2014] KEHC 7498 (KLR) emphasized the importance of real danger and held that: “I would only highlight the importance of demonstration of “real danger”. The danger must be imminent and evident, true and actual and not fictitious; so much so that it deserves immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that is remote and unlikely will not attract the court’s attention.” The matter remains pending before the Board of Trustees, and no final decision has been made. The Petitioner retains his faculty appointment and continues to receive his salary while the clinical privileges suspension awaits the outcome of the appeal process despite not working since, he is suspended- a continuing cost to the Respondents. Any alleged prejudice is contingent upon future events that may never occur. The danger alleged by the Petitioner is neither imminent nor true and actual; it is, at best, hypothetical and speculative. Contrary to what the Petitioner alleges, the Petition would not be rendered nugatory if conservatory orders are not granted. Even if the Board of Trustees were to make a decision adverse to the Petitioner, this Honourable Court would retain full jurisdiction to review that decision and grant appropriate remedies including, if warranted, an order setting aside the decision and restoring the Petitioner’s clinical privileges. Finally, the balance of convenience and public interest favour the Respondents. The Peer Review process identified serious concerns about the Petitioner’s clinical practice, including practice outside his approved scope and discrepancies between pre-operative and post-operative documentation. The Theatre Manager’s email dated 31st October 2025 confirmed that procedures performed by the Petitioner had independent CPT codes but were booked under unrelated codes, and that discrepancies existed between proposed procedures, and actual procedures performed. These, which the Petitioner did not deny, are matters of patient safety and clinical governance of the highest importance. In terms of the scale of importance, Dr. Achila private interests do not and cannot compare. The public interest in maintaining patient safety must be weighed against the Petitioner’s private interest in continuing to exercise clinical privileges pending determination of the Petition. If the conservatory orders remain in place and the Petition ultimately fails, the Respondents will have been prevented from acting to protect patients and the institution’s reputation for an extended period – prejudice that cannot be remedied by damages, yet far outweighing the inconvenience to the Petitioner, whose employment remains intact and whose clinical privileges may yet be restored through the internal appeal process. Permitting the Petitioner to continue exercising clinical privileges while serious concerns about his practice remain unresolved would undermine these objectives and potentially expose patients to risk. As such, the balance of convenience tilts in favour of the Respondents. We wish to highlight that conservatory orders carry more weight and should not be treated like interlocutory injunctions. The court in Wambora v Speaker of the County of Assembly of Embu held that: “Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private party issues as ‘the prospects of irreparable harm’ occurring during the pendency of a case; or ‘high probability of success’ in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values and the proportionate magnitudes, and priority levels attributable to the relevant causes” For all these reasons, the Respondents respectfully submit that the Petitioner has failed to satisfy any of the requirements for the grant of conservatory orders. The orders issued on 19th February 2026 ought to be discharged, and the February Application 2026 ought to be dismissed with costs. DECISION 13.Whether the Notice of Motion application was merited and whether the preliminary objection had merit. 14.The respondents filed notice of preliminary objection as follows- ‘The Petition does not disclose any or any colourable constitutional violation to sustain these constitutional proceedings.The Petition is premature as:2.1. On the Petitioner’s own admission, the question of the revocation of his medical privileges with the 1st Respondent, Aga Khan University Hospital (“AKUH-N”) is still pending the decision of its Trustees.2.2. No disciplinary actions have been initiated against the Petitioner by the 2nd Respondent, Aga Khan University (“AKU”), which would well be within rights to do so in case of any established misconduct.2.3. The Petition is an abuse of the process of this Honourable Court as any viable claim the Petitioner may have against AKUH-N (none being admitted), could and ought to be pursued by civil proceedings under the Employment Act, 20072.4. The Petition is further an abuse of this Honourable Court as the Petitioner has failed to pursue the only authorized process for seeking relief under the Fair Administrative Actions Act 2015 i.e. judicial review.2.5. In any event, the Petition is to all intents and purposes an ill-disguised claim for what can only be characterised as anticipatory unfair termination.’’ 15.Upon careful evaluation of the material placed before the court by the parties, I find the gist of the application is the withdrawal of privileges afforded to the petitioner by the employer. The court found that it was not in dispute that the employer of the petitioner, the 2nd respondent, had communicated to the petitioner that, as the ongoing disciplinary process continues, his employment remains intact. The court found that there was no allegation that the ongoing process was not provided for in the policies of the respondents. The process is incomplete and pending before the Board of Trustees. I find it is premature for the court to stop the disciplinary process being carried out pursuant to the human resources policies and practices of the respondents. It is trite that employee discipline is a management prerogative, and the court should intervene sparingly. I upheld the decision in Mulwa Msanifu Kombo v Kenya Airways [2013] KEELRC 747 (KLR) : “The intervention in disciplinary process by employers will be entertained by the court rarely and in clear cases where the process is likely to result into unfair imposition of a punishment against the employee. The court will intervene in an administrative disciplinary procedure if it is established that the procedure relied on by the employer offends fairness or due process by not upholding the rules of natural justice, or, if the procedure is in clear breach of the agreed or legislated or employer’s prescribed applicable policy or standards, or, if the disciplinary procedure were to continue it would result into manifest injustice in view of the circumstances of the case.” 16.In the instant case, the court found it prudent to exercise judicial restraint and allow the employer to conclude the processes in compliance with its procedures. It is the opinion of the court that the medical profession to which the petitioner is subject is regulated and, for good reasons, to protect the right to health and life of patients. The petitioner’s conduct as a medical practitioner is one of the issues raised by the respondent. The court, for lack of prima facie evidence of a violation of the respondent's procedures, restrains itself from intervening in the process on an interim basis. The court, for the foregoing reasons, upheld the preliminary objection and held the petition as premature for non-exhaustion of the processes before the respondents. The court was of the opinion that on a prima facie basis the petition did not disclose constitutional issues outside the employment contract. The court, for the foregoing reason, set aside the interim conservatory order in place. The court invoked Rule 56 of its rules and held in abeyance the petition pending the conclusion of the ongoing process before the respondents. The matter will be mentioned on 13th July, 2026 to confirm the status of the internal process, with a view to taking a hearing direction on the petition. Costs in the cause. 17.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 22nd DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.IN THE PRESENCE OF:Court Assistant: OtienoPetitioner-absentRespondents: Amoko