https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10773

Gugu & 2 others (Suing as Administrators and Personal Representatives of the Estate of Sophia Wanjiku Gathoni - Deceased) v Mwangi & 4 others (Civil Case E176 of 2023) [2026] KEHC 10773 (KLR) (Civ) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10773 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E176 of 2023 JN Mulwa, J July 16, 2026 Between James Mbogo Gugu 1st Plaintiff Esther Gathoni Gicimu 2nd Plaintiff Evelyn Mwara Moragia 3rd Plaintiff Suing as Administrators and Personal Representatives of the Estate of Sophia Wanjiku Gathoni - Deceased and Dr Francis Mburu Mwangi 1st Defendant The Aga Khan University Hospital 2nd Defendant Dr David Nguru Ndungu 3rd Defendant Dr George Fanuel Jumba 4th Defendant Dr Andrew Kanyi Gachii 5th Defendant (on motions dated 30/7/2025 and 18/8/2025) Ruling 1.Before the court for determination are two distinct interlocutory applications fundamentally seeking the summary striking out and dismissal of specific parties from these proceedings, being the Notice of Motion Application dated 30/7/2025 brought by the 2nd Defendant (The Aga Khan University Hospital) and the 5th Defendant (Dr. Andrew Kanyi Gachii), and the Notice of Motion Application dated 18/8/2025 brought by the 3rd Defendant (Dr. David Nguru Ndungu). In both applications, the Applicants seek similar orders, to be struck out from these proceedings. 2.Both applications are expressed to be brought under the provisions of Order 1 Rule 10 (2) of the Civil Procedure Rules, The Applicants here pray to be struck out from the suit with costs. By consent of the parties and direction of this Court, the two applications were consolidated for hearing and determination as they arise from the same clinical transaction and present overlapping questions of law. 3.The substantive action herein is a claim for damages under the Law Reform Act (Cap. 26) and the Fatal Accidents Act (Cap. 32) initiated by the Plaintiffs as the legal administrators of the Estate of the Late Sophia Wanjiku Gathoni (hereinafter the "Deceased"). 4.The record shows that on 1/11/2020, the Deceased underwent an elective Caesarean section at the 2nd Defendant Hospital (hereafter The hospital) where the 1st Defendant was the primary attending obstetrician. Post-operatively, the Deceased developed severe and persistent abdominal pain. It later emerged that she had sustained a perforation of the caecum, culminating in acute peritonitis. A corrective laparoscopic intervention was performed by the 4th Defendant on 5/11/2020. Regrettably, the Deceased's clinical state deteriorated, and she passed away on 7/11/2020. 5.Following the loss, the 1st Plaintiff filed a statutory disciplinary complaint before the Kenya Medical Practitioners and Dentists Council (hereinafter KMPDC) against all the five Defendants, and concurrently, the Plaintiffs filed the Plaint herein dated 17/10/2023. 6.The KMPDC’s Disciplinary and Ethics Committee heard the statutory complaint and delivered its decision on 7/2/2025, wherein the Council held the complaints against the 1st Defendant (Dr. Francis Mburu Mwangi) and the 4th Defendant (Dr. George Fanuel Jumba) to be substantiated. 7.Conversely, the Council dismissed the charges of professional misconduct against the 2nd Defendant, the 3rd Defendant, and the 5th Defendant. No statutory appeal was preferred against the Council's decision within the prescribed timelines. Application by the 2nd and 5th Defendants 8.By their Notice of Motion dated 30/7/2025, the 2nd and 5th Defendants seek to be struck out from the suit on grounds synthesized as follows;i.That, following the comprehensive investigations and statutory adjudication by the KMPDC, no professional culpability or negligence was established against either the 2nd or 5th Defendants, thereby rendering the substantive claims in the plaint legally hollow and devoid of a reasonable cause of action against them.ii.That continuous prosecution of the civil claim against the 2nd and 5th Defendants on identical clinical allegations constitutes a collateral attack on the final decision of a statutory tribunal, amounting to a vexatious, scandalous, and oppressive abuse of the judicial process.iii.That by virtue of their absolute exoneration by the professionally qualified regulator, the 2nd and 5th Defendants are no longer proper or necessary parties to the suit, and their continued presence in the pleadings serves only to unnecessarily delay the fair and final determination of the primary suit against the remaining culpable parties. 9.In their written submissions dated 23/2/2026, the 2nd and 5th Defendants argue that the KMPDC is the apex statutory body empowered by law under the Medical Practitioners and Dentists Act (Cap. 253) to determine matters of medical standards and malpractice. Elaborating on their submission, they contend that since a specialized tribunal established by Parliament has examined the clinical records and cleared them of any wrongdoing, a civil court cannot re-adjudicate the exact same professional standards. 10.Relying on the precedent in Oza & 2 others v. David Oluoch Olunya & another [2021] eKLR, they submit that a civil court must submit to and be guided by the findings of the professional regulator. Having been fully exonerated by the Council, they contend that any continuation of this suit against them lacks a legal leg to stand on and amounts to an abuse of court process. 11.The application was opposed by the Plaintiffs via a Replying Affidavit sworn by James Mbogo Gugu on 28/10/2025, and through written submissions dated 3/2/2026. Counsel for the Plaintiffs submits that the KMPDC and the High Court operate in entirely separate spheres with distinct statutory and constitutional limits. They point out that the Plaint raises critical, independent issues of vicarious liability, institutional negligence, slow responses by nursing personnel, and failures in post-mortem disclosure protocols. The Plaintiffs contend that these private law grievances were not and could not be fully ventilated or compensated before a regulatory council, and can only be lawfully determined via cross-examination at a full trial. Application by the 3rd Defendant 12.The 3rd Defendant moved this court by way of a Notice of Motion dated 18/8/2025 seeking to be struck out from the suit on the following summarized grounds;i.That the allegations raised in paragraphs 51 and 52 of the Plaint regarding the 3rd Defendant's clinical conduct are identical in substance to the grievances that were heard, analyzed, and finally dismissed by the KMPDC on 7/2/2025, thereby hitting the legal wall of res judicata.ii.That requiring the 3rd Defendant to undergo a second lengthy trial and mount a defense on identical facts before this Court constitutes an impermissible double jeopardy, inflicting unjustifiable litigation expenses and professional anxiety upon him.iii.That the suit as against the 3rd Defendant meets the strict statutory thresholds under Order 2 Rule 15 (1) of the Civil Procedure Rules, as it is plain, obvious, and beyond doubt that the claim against him cannot possibly succeed in light of the final regulatory exoneration. 13.In its written submissions dated 23/3/2026, the 3rd Defendant focuses on paragraphs 51 and 52 of the Plaint, pointing out that the allegations of failing to manage post-operative pain and failing to properly document his involvement are identical word-for-word to the charges dismissed by the KMPDC, that the doctrine of res judicata applies to defeat the claim arguing that calling upon a medical professional to defend the exact same factual queries across multiple forums constitutes an impermissible double jeopardy and a clear abuse of the process of this Court. 14.The Plaintiffs filed a Replying Affidavit to this motion, sworn by James Mbogo Gugu and written submissions dated 3/2/2026. The Plaintiffs submit that an administrative clearance from professional sanctions does not automatically extinguish civil liability under the common law of tort. They further argue that the 3rd Defendant owed a separate civil duty of care to the Deceased, the breach of which must be tested against the civil standard of proof (balance of probabilities) rather than the disciplinary thresholds of a professional council. Issues for Determination 15.Having considered the twin applications, the parties’ respective affidavit material and the rival submissions of counsel, the primary issues crystallize as follows:i.Whether the statutory decision of the KMPDC ousts the jurisdiction of the High Court, or renders the civil action res judicata or an abuse of court process.ii.Whether the 2nd, 3rd and 5th Defendants are improperly joined as parties warranting summary striking out under Order 1 Rule 10(2) read with Order 2 Rule 15(1) of the Civil Procedure Rules. Analysis and Determination The Jurisdictional Boundary Between the KMPDC and the High Court 16.The core legal premise advanced by the 2nd, 3rd and 5th Defendants is that their exoneration by the KMPDC acts as a complete bar to civil litigation arising from the same facts. To determine this issue, the Court must examine the constitutional and statutory foundations governing both forums. 17.The starting point must always be Article 165(3)(a) of the Constitution of Kenya, 2010, which gives the High Court unlimited original jurisdiction in civil and criminal matters. This court's jurisdiction cannot be curtailed, impliedly ousted, or limited by ordinary legislation save where the Constitution itself provides. 18.Conversely, the Medical Practitioners and Dentists Act (Cap. 253) is an Act of Parliament meant to give the KMPDC a specific statutory mandate. Under Section 4 of the Act, the Council's role is to regulate medical practice and take disciplinary measures for professional misconduct, with penal and ethical framework for medical professionals. 19.With regard to the defence of res judicata, Section 7 of the Civil Procedure Act (Cap. 21) states:“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been first raised, and has been heard and finally decided by such Court." 20.The question of statutory jurisdiction was clarified in the locus classicus Court of Appeal decision in Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] KLR 1, where it was held:“Jurisdiction is everything. Without it, a court has no power to make one-step... Jurisdiction must be acquired before judgment is given. A court cannot arrogate to itself jurisdiction where the law denies it." 21.A cursory perusal of The KMPDC shows that the council has no jurisdiction to handle tortious claims or grant civil reliefs sought in this Court. The Court of Appeal in William Koross v. Hezekiah Kiptoo Komen & 4 others [2015] eKLR, observed that for the doctrine of res judicata to successfully bar a claim under Section 7 of the Civil Procedure Act, it is a strict prerequisite that the former forum must have been a court or tribunal of competent jurisdiction legally empowered to try the subsequent suit or grant the specific remedies sought therein. Because the KMPDC’s statutory mandate under the Medical Practitioners and Dentists Act (Cap. 253) is strictly confined to disciplinary and regulatory oversight, it lacks the legal and pecuniary competence to adjudicate private law torts or award compensatory damages under the Law Reform Act (Cap. 26) and the Fatal Accidents Act (Cap. 32). Consequently, its decision cannot operate as res judicata to defeat a civil claim for negligence before this Court. 22.Further, in Medical Practitioners and Dentists Board & another v Yuaya [2015] eKLR, the High Court reiterated that regulatory board proceedings and civil standard-of-care litigation exist on different legal planes, the elements required to establish professional ethical misconduct before a regulatory panel differ fundamentally from proving actionable negligence in a civil suit. It added that a finding of "no professional misconduct" simply means the practitioner did not breach the professional code under Cap. 253; it does not automatically satisfy the objective common law test of the standard of care expected under the law of negligence. 23.It is this court's estimation therefore that the decision of the KMPDC dated 7/2/2025 does not create a res judicata situation, nor does it make this suit an abuse of process. It is an evidentiary document that may be used at trial, but it does not remove this Court’s jurisdiction under Article 165 of the Constitution. The Legal Threshold for Striking Out Parties Under Order 1 Rule 10(2) of the CPR 24.Order 1 Rule 10(2) clothes this Court with discretionary power to manage the joinder of parties to ensure the integrity of judicial proceedings and provides as follows;“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..." 25.This statutory discretion must be exercised in tandem with Order 1 Rule 9 of the Civil Procedure Rules, which explicitly mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties. The primary mischief these rules seek to prevent is the premature termination or fragmentation of litigation before the core dispute can be substantively heard on its merits. 26.To invoke the draconian remedy of striking out a parties from a suit at an interlocutory stage, the applicant bears the burden of demonstrating that they have been improperly joined. The threshold for determining whether a party is properly or improperly before the court has been clearly delineated by our courts through the distinct legal tests of a "necessary party" versus a "proper party". 27.A necessary party is a person who ought to have been joined because the court cannot fashion an effective decree or order in their absence. A proper party is a person whose presence before the court is necessary to enable the court to effectively, completely, and finally adjudicate upon and settle all the questions involved in the suit. This distinction was underscored by the Court of Appeal in Civicon Limited v. Kivuwatt Limited and 2 others [2015] eKLR, where it was observed that a party should not be struck out if their presence is required to provide a complete picture of the transaction in dispute. 28.The leading authority on the parallel issue of summary dismissal remains the decision in D.T. Dobie & Company (Kenya) Ltd v. Muchina [1982] KLR 1, where Madan JA warned against terminating actions early and held that the power to strike out a pleading is a draconian remedy, only to be used in plain and obvious cases. If a pleading discloses even an arguable case, or a triable issue, the matter should proceed to trial where evidence can be tested. 29.In the present case, the 2nd, 3rd and 5th Defendants contend that their statutory administrative clearance by the KMPDC effectively renders them strangers to any actionable wrongdoing, thereby making their continued joinder improper. This Court disagrees. In claims anchored on medical malpractice, clinical negligence, and subsequent statutory disclosures, the factual matrix is rarely isolated to a single actor. A review of the Plaint herein reveals that the causes of action pleaded against the Defendants disclose arguable cases, demonstrating that they are separate, distinct, and yet completely interdependent proper and necessary parties as seen hereunder:i.Against the 2nd Defendant (The Aga Khan University Hospital): The claim alleges independent institutional negligence regarding facility response times by nursing staff, alongside vicarious liability for its employees. An employer is an inherently necessary party when vicarious liability is pleaded, as no enforceable decree on that head of damage can be made in its absence.ii.Against the 3rd Defendant (Dr. David Nguru Ndungu): The claim addresses his direct post-operative management, pain assessment, and clinical monitoring. He is a proper party because his active clinical involvement forms an inseparable link in the chain of treatment. Striking him out would create an evidentiary vacuum that would prevent the court from completely settling the question of who bore or breached the immediate duty of care.iii.Against the 5th Defendant (Dr. Andrew Kanyi Gachii): The claim concerns his independent legal duties regarding post-mortem findings and subsequent statutory or professional disclosures. He is a proper party whose presence is required to fully adjudicate the questions surrounding the medical reporting and disclosures. 30.This court observes that to remove these parties from the proceedings at this early stage would run completely counter to the overriding objectives of the Civil Procedure Act. Where a plaintiff alleges joint negligence and concurrent tortfeasorship, the liabilities of the defendants are deeply intertwined. To remove any of them, in my view would result in a fragmented trial, a multiplicity of suits, and an inability on the part of this Court to comprehensively determine the true proximate cause of the Deceased's demise. They are proper and necessary parties, and the questions of their substantive civil liability must be left for determination upon the testing of expert evidence at a full trial. Final Disposition 31.In the upshot, this Court finds that the applications dated 30/7/2025 and 18/8/2025 lack merit.Accordingly, I make the following orders:a.The 2nd and 5th Defendants' Notice of Motion Application dated 30/7/2025 is hereby dismissed.b.The 3rd Defendant's Notice of Motion Application dated 18/8/2025 is hereby dismissed.c.Each party shall bear its own costs of their respective application.d.The suit shall proceed to case management for directions towards a full trial on the merits against all named Defendants.It is so ordered. DELIVERED DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF JULY 2026.……………………….JANET MULWA.JUDGE