https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1299

CMM & another v Sarita t/a Myra IVF Clinic & 3 others (Civil Application E159 of 2026) [2026] KECA 1299 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1299 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E159 of 2026 LK Kimaru, M Sila & JO Okello, JJA July 10, 2026 Between CMM 1st Applicant RM 2nd Applicant and Dr Sukhija Sarita t/a Myra Ivf Clinic 1st Respondent Office of the Director of Public Prosecutions 2nd Respondent Inspector General of Police 3rd Respondent Directorate of Criminal Investigations 4th Respondent (Being an application for stay of execution pending an intended appeal from the Judgment of the High Court of Kenya at Nairobi (Mwamuye, J.) dated 4th March, 2026inConstitutional Petition No. E556 of 2025) Ruling 1.The applicants have moved this Court by notice of motion dated 28th March, 2026, brought under Rule 5(2)(b) of the Rules of this Court. The applicants seek, inter alia, stay of execution of the judgment and decree of the High Court of Kenya at Nairobi (Bahati Mwamuye J.), delivered on 4th March, 2026, in Constitutional Petition No. E556 of 2025, and any other subsequent orders issued thereto. 2.The application is premised on grounds on its body, and a supporting affidavit sworn by the 1st applicant, on the even date. The applicants’ case before the High Court is that they engaged the 1st respondent for IVF and surrogacy services and, following the birth of a child through the arrangement in June 2025, they became concerned that the child shown to them shortly after birth, and the child subsequently handed over to them, was not the same child. Acting on that belief, they lodged a complaint with the Directorate of Criminal Investigations, prompting investigations into possible offences including child trafficking. However, in a judgment delivered on 4th March, 2026, the High Court quashed the criminal investigations, and since the dispute was before the Kenya Medical Practitioners and Dentists Council (KMPDC) for determination, the High Court restrained the investigative agencies from continuing with the impugned investigations pending the KMPDC’s determination. 3.Aggrieved by that decision, the applicants lodged a notice of appeal and filed the present application seeking orders of stay of execution and conservatory orders pending the hearing and determination of the intended appeal. 4.The applicants contended that the intended appeal is arguable on several grounds. They faulted the learned Judge for concluding that the impugned investigations lacked evidentiary foundation, despite the fact that the investigations extended beyond the 1st respondent to other persons and institutions, including one Dr. Bashir Dekow and Nairobi South Hospital, whose evidence had not been obtained or considered. They further contended that the learned Judge improperly relied on interrogatories answered solely by the 1st respondent to quash the investigations in their entirety, thereby extending the benefit of the orders to non-parties. 5.The applicants further asserted that the court failed to appreciate that the case did not fall within the recognized exceptions to Section 193A of the Criminal Procedure Code, and that no evidence had been presented to demonstrate abuse of process, ulterior motive or any improper purpose behind the investigations. They further faulted the learned Judge for treating the proceedings before the Kenya Medical Practitioners and Dentists Council (KMPDC) as capable of informing the appropriate course of action in respect of criminal liability, notwithstanding that KMPDC is a professional regulatory body, and not a criminal investigative agency. According to the applicants, the learned Judge had in the process usurped the constitutional mandate of the investigative agencies and reassigned it to KMPDC without any legal basis. 6.The applicants further challenged the findings that the requests for medical and administrative records were vague, overbroad, intrusive or violative of constitutional rights, arguing that the court failed to identify any specific summons or document request that was objectionable, and failed to consider less restrictive measures, including the use of confidentiality safeguards and directions under the Data Protection Act. Finally, the applicants contended that the learned Judge erred in finding violations of Articles 47 and 50 of the Constitution, despite the alleged violations not having been properly pleaded or crystallized by the 1st respondent, and in suspending the investigations in favour of proceedings before KMPDC, without prescribing timelines or supervisory mechanisms to ensure expeditious determination of the complaint. 7.On the nugatory aspect, the applicants asserted that the investigations against the 1st respondent concern a possible case of child trafficking, and therefore require urgent action. They explained that they reasonably believed that the child shown to them immediately after birth is different from the child later handed over to them, and that their biological child may presently be in the custody of unknown persons. They feared that, by the time the KMPDC determines their complaint, the child may have been removed from the jurisdiction of the court, and crucial medical, administrative and surveillance records destroyed, thereby frustrating any future investigations, and impairing both the child’s right to parentage and their right to know the whereabouts of their biological child. 8.The applicants asserted that there exist separate Children's Court proceedings, in which the Directorate of Criminal Investigations is investigating another suspected similar case involving the 1st respondent. They deponed that the said investigations concern allegations that intended parents who engaged the 1st respondent for IVF and surrogacy services were given children bearing no biological relationship to them, and that DNA results may have been falsified to conceal the children's true parentage. According to the applicants, the circumstances of that case closely resemble their own, and involve another surrogacy arrangement facilitated by the 1st respondent, resulting in the birth of twins at Nairobi South Hospital within a similar period. The applicants contended that these similarities have led them to apprehend that one or both of the twins may be genetically related to the 2nd applicant. 9.The applicants further urged that their attempts to participate in the Children's Court proceedings and obtain DNA test of the children in question had been hampered by the broad terms of the impugned judgment, which has been interpreted as barring investigative steps connected to the quashed investigations. They expressed concern that the foreign nationals involved in the Children's Court proceedings may remove the children from the court’s jurisdiction before the complaint before the KMPDC is determined, thereby frustrating any future investigations should the intended appeal succeed. They also urged that the 1st respondent is a foreign national whose temporary specialist practice license expired on 31st December, 2025. They feared that she may close her practice and leave the country before the complaint is heard and concluded. 10.The applicants contended that the prejudice likely to be suffered by them and the minors involved, outweighs any prejudice that may be occasioned to the 1st respondent, whose privacy interests, they submitted, can adequately be protected through appropriate directions governing access to and handling of confidential medical and administrative records in compliance with the Data Protection Act. For those reasons, they contended that they stand to suffer grave and irreversible prejudice unless the operation of the impugned judgment is suspended pending hearing and determination of the intended appeal. 11.The application was opposed by the 1st respondent. He filed a replying affidavit sworn on 17th April, 2026. The 1st respondent deposed that she is a licensed fertility specialist and proprietor of Myra IVF Clinic. She stated that the applicants voluntarily engaged her clinic for an IVF and surrogacy arrangement. Following screening, a surrogacy agreement was executed and the embryo was implanted in a surrogate mother. The surrogate mother developed complications at 33 weeks’ gestation and underwent an emergency caesarean section at Nairobi South Hospital on 4th June, 2025, resulting in the birth of a male child. The child was subsequently transferred for specialized neonatal care and eventually discharged into the custody of the applicants. 12.The 1st respondent deponed that after the birth, the applicants raised concerns regarding the child’s parentage and reported the matter to investigative agencies. Consequently, she, her employees, and other persons connected to the clinic were subjected to extensive criminal investigations, summons, and demands for confidential medical, financial and administrative records. She deponed that these investigations, together with multiple civil suits and regulatory complaints filed by the applicants, amounted to harassment and an abuse of court process. 13.The 1st respondent maintained that the dispute between the parties is fundamentally one concerning professional conduct and medical practice, which properly falls within the jurisdiction of the Kenya Medical Practitioners and Dentists Council (KMPDC). She pointed out that the High Court, after considering the evidence and interrogatories filed by the applicants, found that the ongoing criminal investigations violated her constitutional rights and prohibited further investigations pending determination of the complaint before the KMPDC. She further deponed that the applicants continue to pursue multiple proceedings against her notwithstanding the impugned judgment. 14.The 1st respondent further deponed that the applicants’ intended appeal is not arguable. She argued that the High Court's judgment was sound, and that the applicants, merely dissatisfied with the outcome, seek to re-litigate matters already determined by the High Court in the present application. She further asserted that the applicants' principal contention regarding the existence of another genetically related child is speculative, unsupported by evidence, and based on conjecture rather than fact. According to her, the applicants have produced no probative evidence to support that allegation, and such speculation cannot form the basis of grant of an order of stay of execution. She also pointed out that the applicants continue to cast doubt on the ability of the KMPDC to determine the complaint despite having taken no meaningful steps to expedite those proceedings. Consequently, she maintained that the intended appeal does not disclose any bona fide or arguable ground deserving the Court's intervention. 15.The 1st Respondent further urged that the High Court's orders are predominantly negative and prohibitory in nature. They merely restrain the continuation of criminal investigations and enforcement of summonses and do not require the performance of any positive act. She therefore urged that the orders are incapable of being stayed because granting a stay would effectively amount to reversing the High Court's judgment before the appeal is heard on its merits. 16.She further deponed that the purpose of an order of stay is to preserve the status quo, whereas the applicants’ application seeks orders that would revive investigations which the High Court found to be unconstitutional. In her view, granting an order of stay would authorize continued violations of her constitutional rights and defeat the very purpose of the judgment. Additionally, it was her contention that the applicants' conduct after the impugned judgment demonstrates that they have suffered no prejudice, since despite alleging urgency, they have taken no steps to prosecute or expedite the complaint pending before the KMPDC. She therefore characterized the application for stay as a tactical attempt to continue harassing her through criminal investigations rather than a genuine effort to preserve the subject matter of the appeal. Accordingly, she maintained that the appeal will not be rendered nugatory if stay is refused, and that the application falls short of the threshold under Rule 5(2)(b) of this Court’s Rules. 17.The 1st applicant filed a supplementary affidavit dated 22nd April, 2023, in response to the 1st respondent’s replying affidavit. She maintained that the child born through the surrogacy arrangement was transferred from Nairobi South Hospital to Gertrude’s Children’s Hospital shortly after birth and that there are unresolved questions regarding the child’s parentage and the circumstances surrounding the surrogacy process. The 1st applicant disputed the 1st respondent’s assertion that the High Court proceedings only concerned the clinic and not Nairobi South Hospital or Dr. Bashir Dekow. She pointed out that the petition challenged investigations touching on Dr. Bashir, Nairobi South Hospital and other persons involved in the process, and that the High Court judgment effectively halted investigations into all those persons, despite them not being parties to the petition. 18.The 1st applicant further urged that her advocates repeatedly attempted to follow up the complaint with the KMPDC, only to discover that the Disciplinary and Ethics Committee was not operational. She therefore stated that the complaint before the KMPDC could not be heard within any ascertainable period, and that the High Court's assumption of an expeditious determination was misplaced. The 1st applicant denied any harassment or stalking of third parties particularly the couple having custody of the twins. She urged that any inconvenience suffered by the children’s custodians arose from the 1st respondent’s own conduct, and from unresolved questions concerning the surrogacy process. 19.The 1st applicant reiterated that unless a stay is granted, the impugned judgment will continue to suspend the operations of the investigative process and effectively prevent any meaningful inquiry into the complaint. She contended that because the KMPDC disciplinary process is currently dormant and incapable of proceeding, refusal of stay would leave the complaint in limbo, while simultaneously barring criminal investigations. 20.The 2nd respondent, (the Office of the Director of Public Prosecution) by a notice of non-opposition dated 5th June, 2026, supported the applicants’ notice of motion. 21.The application was canvassed through written submissions which were orally highlighted by the parties. The firm of O & M Law LLP was on record for the applicants. Mr. Wachira, learned counsel, reiterated the averments made in the application and affidavits in support thereof. Additionally, he rejected the contention that the impugned orders are incapable of being stayed because they are negative orders. It was his submission that this Court has jurisdiction under Rule 5(2)(b) to grant conservatory orders where necessary to preserve the substratum of an appeal. 22.It was the applicants’ submission that the matter transcends the private interests of the parties and raises important public interest concerns. Counsel argued that the public has a legitimate interest in the detection and prosecution of crime, particularly allegations of child trafficking. He further contended that this case concerns the practice of IVF and surrogacy in Kenya, an area that remains largely unregulated by statute, which made the matter one of considerable public importance. He therefore urged us to grant the order of stay of execution and/or conservatory pending the hearing and determination of the intended appeal. 23.The firm of Mogeni & Co. was on record for the 1st respondent. In rebuttal, learned counsel, Mr. Gitonga, reiterated averments made in the 1st respondent’s replying affidavit. He further urged that the impugned judgment did not shield the 1st respondent from accountability but merely directed that the complaint be dealt with by the appropriate statutory and professional body before any criminal process could be pursued. 24.It was his submission that the intended appeal cannot be rendered nugatory because the dispute remains active before other competent fora. Counsel explained that proceedings are pending before the KMPDC, and that there are also ongoing civil proceedings arising from the same surrogacy arrangement. According to him, the subject matter of the dispute has therefore been preserved and remains capable of determination. He further urged that the applicants are pursuing damages in the civil proceedings, and would be adequately compensated if their claims ultimately succeed. He maintained that the 1st respondent has submitted herself to the KMPDC process and is not seeking to evade accountability as alleged by the applicants. 25.Counsel for the 1st respondent further submitted that an order of stay cannot issue where its effect would be to reverse a final order of certiorari or prohibition. He maintained that the impugned prohibition orders are not executable positive orders capable of suspension, but rather negative orders restraining unlawful conduct. He therefore urged that the application is misconceived and ought to be dismissed with costs. 26.On behalf of the 2nd, 3rd and 4th respondents, Mr. Okemwa, learned prosecution counsel, supported the application. He aligned himself with the submissions made by the applicants. 27.We have considered the application in light of the affidavits sworn in support and in opposition to the notice of motion, the rival submissions by the parties, the authorities cited and the law. 28.The principles for granting a stay of execution under Rule 5(2)(b) of this Court’s Rules are well settled. In the case of Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] KECA 11 (KLR) this Court delineated the jurisdiction of this Court in such an application as follows:“The jurisdiction of the Court under Rule 5(2)(b) aforestated, is original and discretionary, and it is trite law that to succeed an applicant has to show firstly, that his appeal or intended appeal is arguable, or put another way, it is not frivolous; and secondly, that unless he is granted a stay, the appeal or intended appeal, if successful, will be rendered nugatory. Those are the guiding principles but these principles must be considered against the facts and circumstances of each case…” 29.For an applicant to benefit from the discretion of this Court, he/she must demonstrate both limbs to the Court’s satisfaction. On the first principle, as to whether or not the appeal is arguable, we have to consider whether there is at least a single bona fide arguable ground that has been raised by the applicant in order to warrant ventilation before this Court. See Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] KECA 378 (KLR). 30.With regard to the first limb, we are satisfied that the applicants have demonstrated that their intended appeal is arguable. The proposed appeal raises bona fide questions regarding the extent to which the learned Judge was entitled to halt the impugned investigations, the relationship between criminal investigations and parallel regulatory proceedings before the Kenya Medical Practitioners and Dentists Council, the effect of the impugned orders on persons who were not parties to the petition, and whether the learned Judge properly exercised his discretion in the circumstances of the case. Without expressing any concluded view on the merits of those questions, we are satisfied that the intended appeal is not frivolous. 31.On whether the appeal, if successful, will be rendered nugatory, this Court in Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others (supra), observed that the applicable test is whether or not what is sought to be stayed is reversible if stay is not granted, and whether damages will reasonably compensate the aggrieved party. In this case, the gravamen of the applicants’ complaint is that the impugned judgment halted ongoing investigations and referred the dispute to the Kenya Medical Practitioners and Dentists Council. They contend that unless the impugned judgment is suspended, crucial evidence may be lost, investigations frustrated, and the issues surrounding the surrogacy arrangement and parentage may never be conclusively resolved. 32.While we appreciate the concerns expressed by the applicants, we are not persuaded that they have demonstrated that the intended appeal would be rendered nugatory if the orders sought are declined. First, we are of opinion that if the appeal succeeds, the criminal investigation can be revived and will continue. Future investigation will not be rendered nugatory. 33.Secondly, the prohibition against further investigations was not expressed as a permanent bar. The impugned orders were tied to the determination of the complaint before the KMPDC. The judgment therefore did not extinguish the possibility of future investigative action should circumstances warrant. In those circumstances, it cannot be said that a successful appeal would be rendered worthless or incapable of implementation if successful. 34.Thirdly, the applicants' apprehension that evidence may be lost, records destroyed, or persons connected to the dispute may leave the jurisdiction remains speculative. Apart from those apprehensions, no concrete material was placed before us to demonstrate an imminent risk of destruction of evidence or other events that would irreversibly defeat the intended appeal before it is heard and determined. The applicants have not demonstrated that the issues they seek to pursue would become incapable of investigation or adjudication merely because the impugned judgment remains in force pending hearing and determination of the intended appeal. 35.It is therefore our considered view that while the applicants maintain that the complaint before the KMPDC has not progressed as anticipated, the question before us is whether refusal of interim relief would destroy the subject matter of the appeal or render any eventual success hollow. On the material placed before us, we are unable to reach that conclusion. 36.We further hold the opinion that granting the orders sought would not preserve the status quo, but would effectively revive investigations which the High Court prohibited, and thereby reverse the judgment under challenge before the intended appeal is heard and determined. Such an order would go beyond preservation and would amount to granting, at an interlocutory stage, substantive relief substantially similar to that sought in the intended appeal. 37.Accordingly, while we are satisfied that the intended appeal is arguable, we are not persuaded that the applicants have demonstrated that it would be rendered nugatory absent the grant of stay or conservatory reliefs. As both limbs under Rule 5(2)(b) of the Court of Appeal Rules must be satisfied, the application fails. 38.The applicants’ Notice of Motion dated 28th March, 2026, is hereby dismissed. Given the nature of the case, we make no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.L. KIMARUJUDGE OF APPEAL.................................MUNYAO SILAJUDGE OF APPEAL.................................DR. J.O. OKELLOJUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.