https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8617

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **HCCA NO. E1063 OF 2025** **EPHRAIM MWAURA KARUMBI…………………………..APPELLANT** **VERSUS** **NURSING COUNCIL OF KENYA (NCK)……………….RESPONDENT** ***(Being an appeal from the Ruling of the Inquiry Committee of the Nursing Council of Kenya into alleged professional malpractice at Ngara Road Medical Centre delivered by email on 22nd September 2025 but dated 2nd July 2025)*** **JUDGMENT** 1. Before the Court is a Memorandum of Appeal dated 19th October 2025 seeking orders that: 2. That the Appeal be allowed and the Nursing Council of Kenya Ruling dated 2nd July 2025 and delivered on 22nd September 2025, and its orders be annulled and/or set aside and/or varied. 3. That a fine of Kenya Shillings Three Hundred Thousand (Kshs 300,000) by the Nursing Council of Kenya be set aside and/or varied. 4. That the appellant be awarded costs of the Appeal. 5. The grounds of this Appeal are: 6. That the Nursing Council of Kenya (hereinafter referred to as NCK) erred in both law and fact by suspending the appellant’s practising certificate for a period of one year and fining him Kenya Shillings Three Hundred Thousand Shillings (Kshs 300,000) even after making a finding that he was not involved in an unlawful or unethical medical procedure and acts at Ngara Medical Centre where he had no affiliations or shareholding which was the subject of the complaint and inquiry before the NCK. 7. That NCK erred in law and in fact by basing its decision to suspend the appellant’s license and fining him on unfounded nursing matters of counselling and psychological support that it did not have jurisdiction and competency to deal with. 8. That NCK erred in law and in fact by suspending the appellant’s practising license and fining him on matters of counselling that were not within the subject of the inquiry, as they were not among the allegations against the appellant. 9. That NCK erred in law and in fact by holding that matters touching on the alleged conduct of a qualified professional counsellor fell within section 18A (f) of the Nurses and Midwives Act. 10. That NCK erred in law and in fact by not identifying the Specific Nursing Council of Kenya’s professional, technical or other standards breached by the appellant. 11. That NCK erred in law and in fact by suspending the appellant’s license on assumptions and speculations. 12. That NCK erred in law and in fact by making findings that did not flow from the evidence presented. 13. That NCK acted in an arbitrary and discriminatory manner by imposing a fine and suspending the appellant’s license without fining the other party, considering their alleged breaches in the same proceedings. 14. That NCK did not take into account the eight (8) months the appellant’s license had been submitted, between 22nd January 2025, when the trial before NCK began, and at the time the ruling was delivered (22nd September 2025). **Background to the Appeal** 1. The background, in summary, is that the appellant is an enrolled Community Health Nurse of ID Number 5356797. The appellant was charged with the offence of professional misconduct, contrary to sections 18A(f) and 18A(g) of the Nurses and Midwives Act, CAP 257, Laws of Kenya, before the Nursing Council of Kenya. 2. The particulars of the allegation were that the appellant had committed professional misconduct by procuring an abortion as well as supplying drugs related to the procedure. In light of the allegation of professional misconduct against the appellant herein, NCK constituted a committee of inquiry to investigate the allegations and determine appropriate regulatory action. 3. In response to the Directorate of Criminal Investigations' request for information about the appellant, NCK vide a letter dated 11th November 2024, indicated that the appellant is not qualified to handle patients. NCK indicated that the appellant is a Kenya enrolled Community Health Nurse but without a valid practice license. 4. The Kenya Medical Practitioners and Dentists Council vide a joint inspection report conducted on 27th November 2024 indicated that the facility in question was not licensed and registered, and that the personnel operating it lacked valid licenses. DCI made recommendations for the facility to be closed and NCK to commence investigations against the personnel. In addition, the Ministry of Health Pharmacy and Poisons Board vide a letter dated 26th November 2024, indicated that the appellant and Jonah Marori were neither registered nor enrolled with the Board. 5. It is on the basis of the presented investigative reports that the Nursing Council of Kenya scheduled an inquiry meeting and invited the appellant to file a response to the complaint dated 3rd February 2025. In his response, the appellant stated that he was neither the owner nor an employee of the implicated Clinic and urged the Nursing Council to dismiss the complaint against him for want of merit. The NCK Inquiry Proceedings commenced on 22nd January 2025, but an adjournment to 7th March was allowed after the charged nurses sought for more time to prepare for the hearing. 6. Upon considering the evidence presented, the oral testimonies and the written submissions, NCK vide a ruling dated 2nd July 2025 found the appellant culpable of professional misconduct and suspended his practicing license for a period of one year from the date of the ruling and a fine of Kenya Shillings Three Hundred Thousand (Kshs 300,000). 7. The appellant being dissatisfied with the ruling lodged this appeal. The appellant has faulted the ruling of NCK on the various grounds listed above and discussed in depth herein below. **Proceedings at the High Court** 1. After lodging the appeal, the appellant served the respondent; however, NCK did not file any submissions despite being afforded an opportunity so to do. In the circumstances, the court will proceed to determine the undefended appeal on merit in the interest of justice. 2. The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 23rd January 2026. The appellant submitted that NCK found out and indicated in their ruling that there was no evidence linking the appellant to any unlawful or unethical medical procedure at Ngara Road Medical Centre. The appellant submitted that in the circumstances of such a finding, NCK ought to have absolved him of the complaint but instead went ahead to suspend his practising license and fined him Kshs. 300,000/= (Kenya Shillings Three Hundred Thousand). 3. The appellant submitted that the issue of the appellant offering medical counselling while unlicensed was not part of the complaint before NCK and therefore could not form basis of his culpability of medical negligence. The appellant submitted that his counselling was a non- commercial community service focusing on drug use and awareness. The appellant submitted that it was prejudicial and unjustified of NCK finding him guilty of matters not before it. 4. The appellant submitted that he was neither the owner nor an employee of Ngara Road Medical Centre and that no witness presented by the respondent claimed that the appellant attended to him at the said clinic. The appellant submitted that matters of Counsellors are regulated under the Counsellors and Psychologists Act and therefore are not within the jurisdiction of the Nursing Council of Kenya. 5. In conclusion, the appellant urged this court to allow the appeal with costs as prayed. **Analysis** 1. The role of this Court, being a first appellate court was discussed in the matter of **Kamau versus Mungai (2006) eKLR**. The court established as follows: ‘*’This being the first appeal, it is the duty of the court to re- evaluate the evidence, assess it and reach its own conclusion remembering that it had neither seen nor heard the witnesses and hence making due allowance for that.’’* 1. Therefore, this Court is not bound to follow the trial tribunal’s findings of fact if it appears either that the tribunal has failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or the impression based on the demeanor of a witness is inconsistent. 2. In his submissions dated 23rd January 2026, the appellant identified the following issues for determination: 3. Whether NCK had jurisdiction to find the appellant culpable and fine him on unfounded nursing matters of counselling and physcological support? 4. Whether NCK erred in law and fact by not identifying the specific Nursing Council of Kenya Standards breached by the respondent? 5. Whether NCK erred in law and in fact by applying double standards in meting an excessive fine against the appellant? 6. Whether NCK erred in law and in fact by not taking into account the period of suspension suffered by the applicant pending the hearing and determination of the inquiry? 7. This Court, having perused the undefended appeal, has identified the following as the issues for determination: 8. Whether the allegation of professional misconduct against the appellant at Ngara Road Medical Centre was proven to the required standard? 9. Whether the appellant is entitled to the reliefs sought? ***Whether the allegation of professional misconduct against the appellant was proven to the required standard?*** 1. The appellant was charged with the offence of committing professional misconduct contrary to sections 18A(f) and 18A(g) of the Nurses and Midwives Act, CAP 257 Laws of Kenya. 2. The particulars of the allegation were that the appellant had committed professional misconduct by procuring an abortion as well as supplying drugs related to the procedure. 3. **Section 18A (f) of the Nurses and Midwives Act** states that a registered nurse is culpable of professional misconduct if such a nurse fails to observe and apply professional, technical, ethical or other standards prescribed by the council guidelines for practice by a registered nurse. **Section 18A (g)** provides that such a nurse is guilty of gross negligence in the conduct of his professional duties. 4. From the reading of the above provisions, the ingredients for the offence of professional misconduct under the said statute and specific sub clauses are: 5. The accused must be a registered nurse. 6. The accused nurse must have failed to observe and apply the practice standards prescribed by the council guidelines. 7. It is once the ingredients are proven on an intermediate balance that a nurse is guilty of gross negligence in his professional duties. The standard threshold required is intermediate, that is, above a balance of probabilities but below beyond a reasonable doubt. 8. The Nursing Council of Kenya’s statement of allegation in the Record of Appeal dated 19th October 2025 indicates that the appellant is a Kenya enrolled Community Health Nurse (KECHN 7154). Therefore, the appellant is a registered nurse. As such, the Nursing Council Guidelines on standard of practice are applicable to him and whose contravention amount to professional misconduct and gross negligence. 9. Vide a letter dated 11th November 2024 to the Directorate of Criminal Investigations; the Nursing Council indicated that the license of the appellant had expired on 31st October 2021. It is paramount to note that the expiration of the appellant’s practising license does not waive the professional and ethical standards expected of him in the course of discharging his duties as a nurse. Based on the evidence on record, the first element of the offence under section 18A (f) of CAP 257 has been established. 10. The court now turns to the second ingredient of the offence herein against the appellant. This court is called upon to determine whether the appellant failed to observe the practice guidelines in discharging his duties. 11. The allegation against the appellant was that he committed professional misconduct by procuring an abortion and supplying drugs and instruments used for the procedure. Based on this allegation, a joint inspection was conducted at Ngara Road Medical Centre on 27th November 2024, and the appellant was found culpable of professional misconduct. 12. **Section 107 of the Evidence Act** places the burden of proof on he who alleges. As such, it was upon the complainants to prove that the appellant procured an abortion and supplied medical drugs and instruments used for the procedure. Moreover, it was the duty of the complainants to bring witnesses to testify on the alleged abortion accusations. 13. From the record of appeal, it is clear that the appellant does not have a direct link with Ngara Road Medical Centre. The appellant was neither the owner nor an employee of the implicated facility. 14. In its ruling, NCK at Paragraph 91, page 147 of the record of appeal, indicated as follows: ‘*’That there is no evidence linking Mr Ephraim Mwaura (the appellant herein) to any unlawful or unethical medical procedure at Ngara Road Medical Centre*.’’ 1. The allegation of procuring an abortion and supplying drugs and instruments used in the procedure was never established based on the evidence on record. 2. It is trite law that parties are bound by their pleadings. In the case of **Daniel Otieno Migore v South Nyanza Sugar Company Limited (2018) eKLR**, the court held that: *‘’Parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from.’’* 1. The allegation against the appellant before the Nursing Council Inquiry Committee was on abortion and the supply of drugs related to the procedure. There being no evidence tendered to establish the guilt of the appellant on the issue, and the committee having rightly held in its ruling that there was no evidence linking the appellant to the unlawful medical procedure at Ngara Road Medical Centre, the appellant was rightly entitled to be discharged from the allegations. 2. The Nursing Council Inquiry Committee misdirected itself by investigating issues of counselling without a practising license, matters that had not been pleaded. I therefore, fault the Inquiry Committee for going over and beyond the pleadings before them. 3. The appellant pleaded and admitted that he conducted counselling activities as a non-commercial community service focusing on ethical drug use and awareness. 4. In the case of **George Mbugua v Nursing Council of Kenya (2022) eKLR,** the court held that the purpose of the statement of allegations is to make the person being investigated to know the charge and the evidence against him so as to enable him to prepare his defence. It is a cardinal principle of law that an accused can only be convicted of charges that have been brought to his attention. 5. Section 27 of the Civil Procedure Act provides that costs follow the event unless otherwise decided at the discretion of the court. In judiciously exercising the discretion in my hands, I shall order costs for the appeal. **Determination** 1. The upshot of the foregoing, I make the following orders:- 2. ***The appeal is merited and is accordingly allowed. The Ruling of the Nursing Council Inquiry Committee dated 2nd July 2025 and delivered on 22nd September 2025 is hereby set aside.*** 3. ***An order is hereby issued setting aside the fine of Kenya Shillings Three Hundred Thousand (Kshs 300,000) imposed against the appellant by the Nursing Council of Kenya.*** 4. ***Appellant awarded the costs of the appeal.*** ***Dated, signed and delivered virtually via MS Teams this 18th day of June 2026.*** **DAVID MBURU** **JUDGE**