https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10132

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E238 OF 2026** **FRANCIS AWINO……………………………………………..PETITIONER** **VERSUS** **SIMON GICHARU…………………………………………..RESPONDENT** **AND** **THE COMMISSION FOR UNIVERSITY** **EDUCATION…………………………………….1ST INTERESTED PARTY** **THE KENYA MEDICAL PRACTITIONERS** **AND DENTISTS’ COUNCIL…………………..2ND INTERESTED PARTY** **RULING ON THE PRELIMINARY OBJECTION** 1. Vide a petition dated 8th April, 2026, the petitioner herein, Francis Awino describes himself as a Kenyan citizen of sound mind and bringing the petition under Articles 22 and 258 of the Constitution in the public interest and in vindication of constitutional rights and fundamental freedoms. 2. The sole respondent to the petition is on the other hand, is Simon Gicharu and is described as the founder and Chairman of the Board of Directors of Mount Kenya University, and is sued in his personal capacity for acts and omissions undertaken under his authority, direction and control, which are alleged to be unconstitutional, unlawful and in violation of statutory and regulatory frameworks governing higher education and healthcare training in Kenya. 3. The petitioner’s beef with the respondent is that in the respondent’s position as founder and Chairman of the Mount Kenya University, he bore the ultimate responsibility for ensuring that the University adheres to constitutional standards, statutory requirements and regulatory directives governing academic programmes, particularly those touching on public health. 4. The petitioner alleges that on or about the year 2026, Mount Kenya University (MKU) introduced and continued to offer a programme known as the Bachelor of Science in Oral Health, which programme was initiated, developed and implemented under the direct authority and or tacit approval of the respondent who exercised decisive control over the University’s strategic and academic undertakings. 5. That in February, 2026, the Cabinet Secretary for Health issued a directive ordering the immediate discontinuation of the impugned programme on grounds that it failed to meet established healthcare training and regulatory standards. According to the petitioner, the directive by the Cabinet Secretary was lawful, binding and issued pursuant to the constitutional and statutory mandate of the Ministry of Health to safeguard public Health and ensure proper regulation of medical training in Kenya. 6. The petitioner claims that despite the lawful directive by the Cabinet Secretary, the respondent has refused to comply with the said directive and instead, that he has continued to permit admission of students and provided training and graduation of students under the said programme yet the programme in question lacks proper accreditation, statutory underpinnings and recognition under the applicable legal framework governing medical and dental practice. 7. The petitioner claims that as a consequence, students have graduated from the University but with qualifications that lack recognition thereby exposing them to professional and academic uncertainty and thereby posing an imminent risk to public health. 8. The petitioner therefore alleges that the respondent’s actions violate Articles 43 of the Constitution which guarantees every person the right to the highest attainable standard of health, Article 46 on consumer rights, Articles 10 on national values and principles of governance Articles 2 and 3 on supremeacy of the Constitution, 21 on the fundamental duty to observe, respect and protect rights, 47 on fair administrative action wastage of careers and violation of legitimate expectation and breach of statutory framework as a constitutional violation. 9. The respondent opposes the petition through a preliminary objection notice dated 30th April, 2026 in which he contend that the respondent has been sued in his capacity as founder of the University yet the University is established via a Charter as a body Corporate with capacity to sue and be sued, with perpetual succession hence the respondent is sued with the intention of vexing and embarrassing him. That the petition and the application are an abuse of the court process instituted to extort and embarrass and malign the name of the respondent and finally, that the respondent is maliciously enjoined to the petition hence his name should be struck off from these proceedings. **Analysis and determination** 1. I Have considered the parties positions on the preliminary objection as pleaded and submitted on. The issue for determination is whether the respondent herein is a proper party to this petition and whether without the petition can survive without the sole respondent herein. 2. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines a respondent to mean a person who is alleged to have denied, violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom. 3. Rule 5(d) (i) (ii) on the other hand provides that: 4. ***The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—*** ***(i)order that the name of any party improperly joined, be struck out; and*** ***(ii)that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.*** 1. in the case of **Apex International Ltd and Anglo Leasing and Finance International Finance Ltd v Kenya Anti-Corruption Commission (2012) eKLR,** the Court cited the words of Mukhtar J. of the Supreme Court of Nigeria in **Goodwill and Trust Investment Ltd V Will and Bush Ltd (2011) LCN/B820 (SC)** as follows: ***“It is trite law that to be competent and have jurisdiction over a matter proper parties must be identified before the action can succeed, the parties must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the Court, the Court lacks jurisdiction to hear the suit and where the Court purports to excise jurisdiction which it does not have, the proceedings before it, and its judgment will amount to a nullity no matter how well reasoned.”*** 1. Applying the above decision to this petition, from the documents annexed to the supporting affidavit to the petition, the petitioner has adduced a letter dated 3rd February, 2026 addressed to Prof. Deohgratius Jaganyi the Vice Chancellor of Mount Kenya University and the subject is Bachelor of Science Oral Health. the letter authored by the Cabinet Secretary; Ministry of Health contends that the Bachelor of Science in Oral Health programme offered by the University is not aligned with the prevailing Oral Health population needs of the Country. That there is no clearly established service delivery gap that the programme seeks to address and that consequently, students enrolled in the programme risked expending time and financial resources without viable pathway to professional practice. 2. The University Vice Chancellor was advised to discontinue the programme and ensure that all health-related programmes offered at the University respond to identified health population health needs and service delivery gaps. he was also advised to, in consultation with KMPDC, to develop a transition plan for all students who had completed or were currently enrolled in the programme outlining clear transition arrangements in line with applicable regulatory requirements. 3. the above letter was written on 3rd February 2026 and on 9th April, 2026, after the petitioner got wind of the letter, he filed a petition against the founder of the University, Simon Gicharu. The letter was clearly addressed to the Vice Chancellor of the University and if there was breach or failure to enforce the directive, just about two months later, a period within which it would be expected that the University was now transitioning the admitted students, the petitioner was here in court. 4. In my humble view, although public interest litigation is encouraged and is appreciated, the petitioner should first have reported to the Cabinet secretary Ministry of Health and the Commission for University Education the non-implementation of the directive, before jumping to this Court. Not all solutions are found in court. And when one comes to court to seek a remedy, it must be demonstrated that there exists no other effective remedy. Secondly, the petition must be against the correct party against whom relief sought is capable of being enforced if granted. 5. In the case **David K Kaitany & 18 others v Head Teacher/ Secretary the School Management Committee Ng’onlong Primary School & 10 others [2022] eKLR** the Court stated: ***“5. The court has carefully considered the grounds on the application, affidavit evidence, grounds of opposition, submissions, superior courts decisions cited and come to the following conclusions;*** ***a. The question of joinder of parties is governed by Order 1 Rule 10 (2) of the Civil Procedure Rules which states that;*** ***“ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”[emphasis added].*** ***“b. That in the case of Sofia Muciku Jotham (Suing as the Legal Representative of the Estate of Jotham Gikunju Karu) v Lucy Waruguru (Sued as the Legal Representative of the Estate of Judy Kori Nyaga) & another [2021] eKLR, the court stated as follows on an application for joinder;*** ***“When the above principles are applied to the facts of these applications it is clear that the guiding principles when an intending party is to be joined are as follows:*** ***1. He must be a necessary party.*** ***2. He must be a proper party.*** ***3. In the case of a defendant, there must be a relief flowing from that defendant to the plaintiff.*** ***4. The ultimate order or decree cannot be enforced without his presence in the matter.*** ***5. His presence is necessary to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the suit.”*** ***“And in the case of*Meme Vs Republic, [2004] 1 EA 124*, the court observed that a party could be enjoined in a matter for the reasons that;*** ***(i) Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;*** ***(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;*** ***(iii) Joinder to prevent a likely course of proliferated litigation.”*** 1. In [**County Government of Kiambu & another v Senate & others [2017] KEHC 8375 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/8375/eng%402017-02-01) the Court held that: ***“The presence of opposing parties is one of the essential requirements of any civil suit. But all parties are not necessary for the suit to be adjudicated upon. Therefore, distinction should be made between necessary and non-necessary parties. ‘Necessary Parties’ are those parties from whom relief is claimed. ‘Non-necessary Parties’ are those parties who may be parties to the suit, but from whom no relief has been claimed. The presence of necessary parties is obviously required for the court to adjudicate and pass an effective and complete decree granting relief to the plaintiff. However, the same does not hold good for non-necessary parties. In the absence of necessary parties, the court may dismiss the suit, as it shall not be able to pass an effective decree. But a suit can never be dismissed due to absence of non-necessary-party. As Nambuye J (as she then was) held, ‘Necessary Parties’ are those parties in the absence of whom no effective decree can be passed by the court.*** ***In the Indian case of Benares* Bank Ltd. v. Bhagwandas *the court laid down the two tests for determining the questions whether a particular party is necessary party to the proceedings. The said tests were reiterated in the case of* Deputy Commissioner ofHardoi v. Rama Krishna. *The said tests are:-*** **i. There has to be a right of relief against such a party in respect of the matters involved in the suit.** **ii. The court must not be in a position to pass an effective decree in the absence of such a party.** ***“Generally, a party from whom no relief is sought is not a necessary party. Thus, the nature of relief claimed is important in deciding who is a necessary party. Necessary parties are essentially those parties from whom the plaintiff has claimed relief, not those parties from whom he may claim relief. Proper parties need not be impleaded. Therefore, if complete and effective relief can be claimed by the plaintiff from some parties, there is no need to join other parties since other parties are not necessary parties.”*** 1. The petitioner has brought the petition against the founder of the University, yet the University is an established corporate entity with perpetual succession and with the power to sue and be sued according to the charter establishing the University. There is no evidence that the founder of the University, to whom the Cabinet Secretary had addressed the letter, is the Vice Chancellor or that the respondent herein is responsible for making decisions that bind the University, which, though private, is governed by the charter as its constitution, and the law. 2. There is no material placed before this Court to show that the respondent is the person who with impunity, refused to implement the directive of the Cabinet Secretary and neither is there evidence that after 3rd February, 2026, the respondent personally or in any other capacity as founder of the University, directed that students be admitted into the University to undertake the programme which the Cabinet Secretary had advised to be discontinued. 3. I find the petition to be misplaced and an abuse of court process. As the respondent is the sole respondent against whom the petition was brought and despite the respondent raising the preliminary objection to his joinder, the petitioner did not accept to have the petition amended to remove the respondent and or substitute him with the correct party, I hereby strike the name of the respondent from the petition and as there is no respondent against whom the petition can stand, the petition is struck out for being incompetent. 4. I make no orders as to costs. 5. This file is closed. **Dated, Signed and Delivered virtually at Nairobi this 9th Day of June, 2026** **R.E. ABURILI** **JUDGE**