Kiprono & another (On their own behalf and on behalf of the Estate of the Late Annita Jepkorir Chirchir) v Moi Teaching & Referral Hospital & 5 others (Petition E016 of 2025) [2026] KEHC 13174 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E016 OF 2025** **IN THE MATTER OF ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLE 19, 20, 21(1), 22 & 165 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER ALLEGED VIOLATION OF RIGHTS AND FUNDMENTAL FREEDOMS UNDER ARTICLES 26(1), 28, 29(c) (d), (f), 32 (4), 43(1)(a), 46(1)(3), 47(1), 50(1) & 53(2) OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF ARTICLES 1 & 3 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, ARTICLE 4 OF THE AFRICAN CONVENTION ON HUMAN AND PEOPLES RIGHTS, ARTICLE 3 & 6 OF THE UN CONVENTION OF THE RIGHTS OF THE CHILD AND ARTICLES 6, 7 & 9 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS** **BETWEEN** **MERCY JEPCHIRCHIR KIPRONO** **1ST PETITIONER** **ISAAC KIPCHIRCHIR KANDIE** **2ND PETITIONER** *(On their own behalf and on behalf of the Estate of the late Annita Jepkorir Chirchir)* **=VERSUS=** **MOI TEACHING & REFERRAL HOSPITAL** **1ST RESPONDENT** **DR. ERNEST NSHOM BAH** **2ND RESPONDENT** **DR. ALFRED WANYONYI WANDEBA** **3RD RESPONDENT** **PROF. BARASA OTSYULA KHWA** **4TH RESPONDENT** **DR. STEPHEN OTSIENO ONDIGO** **5TH RESPONDENT** **KENYA MEDICAL PRACTITIONERS & DENTISTS COUNCIL……………………….……………………….……....... 6TH RESPONDENT** **Coram: Before Justice R. Nyakundi** **Mr. Mutai Oduor & Co. Advocates LLP for the Petitioners** **Mr. Josphat Mutuma Kirima for the 1st to 5th Respondents** **Mr. Thuge for the 6th Respondent** **JUDGMENT** *(On the Notice of Preliminary Objection to the Petition dated 24th September 2025)* # **Background** 1. This long protracted litigation is traceable to the proceedings which were held before the Disciplinary and Ethics Committee an organ created under the provisions of Medical Practitioners and Dentists in which the complainant Mercy Jepchirchir Kiprono on behalf of Annita Jepkorir Chirchir deceased filed a complaint against Dr. Ernest Nshom, Dr. Alfred Wanyonyi Wandeba, Prof. Barasa Otsyula Khwa, Dr. Stephen Otsieno Ondigo and Moi Teaching and Referral Hospital *(*MTRH). The complaint leading to an inquiry was heard on the merits by the Chairman of the Disciplinary Committee who processed the decision with the following findings on the resolution of the matter: 2. *The complaint of negligence made against Dr. Ernest Nshom, Dr Alfred Wanyonyi and Prof. Barasa Otsyula Khwa be and is hereby dismissed.* 3. *Dr. Stephen Ondigo and MTRH be and are hereby directed to mediate with the Estate of the Late Anita Jepkorir jointly and severally with a view of making restitution and thereafter inform the Council within Ninety (90) days from the date hereof.* 4. *Dr. Stephen Ondigo be and is hereby directed to pay a fine of Kenya shillings Two Hundred Thousand (Kshs. 200,00/-) within fourteen (14)days from the date hereof.* 5. *Moi Teaching and Referral Hospital be and is hereby directed to pay a fine of Kenya Shillings Three Hundred and Fifty Thousand Shillings(Kshs. 350,000/-) within fourteen days (14) from the date hereof* 6. *In the event of non-compliance with orders (ii), [iii) and (iv) above, the Council shall be at liberty to issue any such further orders as it deems fit*. 7. It is from this decision further proceedings were filed before this Court with regard to the petition dated 10th May 2025 seeking the following declarations: 8. *A declaration that the deliberate, negligent and reckless actions and omissions of the 1st to 5th Respondents were a direct cause of the Petitioners' daughter's death and thereby constituted a profound violation of her right to life.* 9. *A declaration that the totality of the conduct of the 1st to 6th Respondents in the aftermath of the Petitioners' daughter's demise amounted to a violation of the Petitioners' right to inherent dignity and to have that dignity respected and protected.* 10. *A declaration that the Respondents violated the Petitioners’ right to freedom and security of the person under Article 29 of the Constitution, and in particular, that the totality of the Respondents' actions following the death of the Petitioners' daughter had the effect of subjecting the Petitioners to psychological violence, mental torture and ultimately to cruel, inhumane and degrading treatment.* 11. *A declaration that the 1st to 5th Respondents' handling of the Petitioners' daughter’s health condition and the services rendered thereby was a violation of the Petitioners ‘and their daughter's rights as consumers of health services under article 46 of the Constitution.* 12. *A declaration that the 6th Respondent's conduct of Disciplinary Case No. 43 of 2021amounted to a violation of the Petitioners' right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.* 13. *A declaration that the acts and omissions of the 1st to 5th Respondents as related to the Petitioners' daughter's health condition was in violation of the best interests of the Petitioners' child contrary to article 53(2) of the Constitution and article 3 of the Convention on the Rights of the Child.* 14. *An order that the Petitioners are entitled to damages payable by the Respondents jointly and severally as assessed by the Court.* 15. *An order that costs of this Petition be paid by the Respondents jointly and severally.* 16. *Any such further orders as the Court may deem fit to grant.* 17. The objection is in answer to these remedies which flow from Articles of the Constitution. The duty of the Constitutional Court therefore would be to establish whether objectively proven facts fit into the picture of the issues ventilated before the tribunal or as they call it an inquiry into the complaint raised by the Petitioner on behalf of the estate of the deceased. It is now time to delve into the real issues which the parties have invoked the jurisdiction of this Court. 18. Before me for determination is the Notice of Preliminary Objection dated 24th September 2025 and filed on the same date by the 6th Respondent, the Kenya Medical Practitioners and Dentists Council ("the Council"), by which the Council invites the Court to strike out the Petition dated 10th May 2025 with costs. 19. The Petition arises out of the death of the late Annita Jepkorir Chirchir, a minor, following treatment at the 1st Respondent hospital. The Petitioners, who are the parents of the deceased and who sue both in their own right and on behalf of her estate, allege that the death was occasioned by the acts and omissions of the 1st to 5th Respondents, and that the conduct of those Respondents both before and after the death, and the conduct of the 6th Respondent in its handling of the complaint subsequently lodged with it, violated a number of rights guaranteed under the Bill of Rights. The Petitioners invoke, in particular, Articles 26, 28, 29, 46, 47 and 53(2) of the Constitution and seek declaratory relief together with damages. 20. It is common ground that, prior to the institution of these proceedings, the 1st Petitioner lodged a complaint with the 6th Respondent, which was registered as Disciplinary Case No. 43 of 2021, and that the 6th Respondent’s Disciplinary and Ethics Committee heard and determined that complaint by a Ruling delivered on 5th May 2023 ("the Ruling of 5th May 2023"). That Ruling is annexed to the Petitioners’ Affidavit in Support of the Petition as annexure MJK 22. It is not in dispute that no appeal against, and no application for review of, that Ruling has been filed. 21. The 1st to 5th Respondents did not file a preliminary objection of their own. They have instead filed written submissions dated 13th February 2026 in which they wholly associate themselves with the 6th Respondent’s objection and urge the Court to dismiss the Petition. 22. The Petitioners oppose the objection. Their advocates, M/S Mutai Oduor & Company Advocates LLP, filed submissions dated 15th February 2026 in response to the objection, together with a bundle of authorities. 23. I have considered the Notice of Preliminary Objection, the written submissions filed by all parties, the authorities relied upon, and the pleadings on record. # **THE PRELIMINARY OBJECTION** 1. The Council’s objection is founded upon six grounds, which may be summarized as follows: 1. Ground 1 — Exhaustion. That the Court lacks jurisdiction because the Petitioners have failed to invoke and exhaust the internal and statutory appellate or review remedies available to them, namely an appeal to the High Court and a review before the Council, as prescribed under Section 20 of the Medical Practitioners and Dentists Act, Cap. 253, and Rules 37 and 38 of the Medical Practitioners and Dentists (Inquiry and Disciplinary Proceedings) (Procedure) Rules; and that the Petition accordingly offends the doctrine of exhaustion and the Fair Administrative Action Act, 2015. 2. Ground 2 — Improper joinder of the decision-maker. That joining the decision-maker as the 6th Respondent to a Constitutional Petition is not an exception to the appellate or review process under Cap. 253, and amounts to an illegal and unprocedural challenge to the Ruling of 5th May 2023 disguised as a Constitutional Petition. 3. Ground 3 — Relitigation. That the Petition is an attempt to re-litigate claims of medical professional negligence and restitution already heard and determined by the Council in the Ruling of 5 May 2023. 4. Ground 4 — Execution of the Ruling. That the Ruling of 5 May 2023 has already been executed, including payment of the ordered fines and the conduct (albeit unsuccessful) of mediation for restitution between the Petitioners and the 1st and 5th Respondents. 5. Ground 5 — Constitutional avoidance. That the pleaded causes of action are civil claims founded on medical negligence and wrongful death, being torts which ought to be pursued by way of ordinary civil suit before the Chief Magistrate’s Court or the High Court, and that the Petition is an attempt to circumvent that process. 6. Ground 6. That the Petition is incompetent and improperly before the Court and ought to be struck out with costs. 2. I record, for completeness, an inconsistency in the citation of the statutory appeal provision. The Notice of Preliminary Objection refers to "Section 20(6)" of Cap. 253, while the 1st to 5th Respondents refer to Section 20(9). The provision conferring a right of appeal to the High Court upon a person aggrieved by a decision of the Council is Section 20(9) of the Act. Nothing turns on the misdescription in the Notice, as the substance of the point was fully understood and addressed by all parties. I proceed on the basis that the appeal relied upon is that under Section 20(9), and the review relied upon is that under Rule 37 of the Medical Practitioners and Dentists (Inquiry and Disciplinary Proceedings) (Procedure) Rules, 2022 (Legal Notice No. 171 of 2022). # **C. SUMMARY OF THE SUBMISSIONS** ## ***The 6th Respondent*** 1. Learned Counsel for the Council submits that the facts material to the objection are undisputed and appear from the Petitioners’ own pleadings: that a complaint was lodged, that it was inquired into, that a Ruling issued on 5 May 2023, and that neither an appeal nor a review followed. On that footing, it is urged, the objection is one of pure law. 2. Further Learned Counsel for the 6th Respondent relies on the settled proposition that where the law provides a clear procedure for redress, that procedure ought to be followed. Reliance is placed on *Speaker of the National Assembly v Njenga Karume [1992] eKLR, Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1,756 others [2015] eKLR, Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others [2019] KESC 83 (KLR), Republic v Uasin Gishu Cooperative Commissioner; Kiplagat & 3 others [2024] KEHC 5885 (KLR), NARC Kenya v IEBC & others (Supreme Court Petition No. 1 of 2021)* and *Wachira v Disciplinary Tribunal established under the Advocates Act [2025] KEHC 19214 (KLR).* Section 9(2) of the Fair Administrative Action Act is invoked as the statutory embodiment of the doctrine. 3. It is further submitted that a party dissatisfied with a decision of a statutory regulator may not sue the regulator in a constitutional petition as a means of escaping the appellate route, and that the true purpose of the Petition is to reopen a concluded inquiry. ## ***The 1st to 5th Respondents*** 1. The 1st to 5th Respondents adopted the 6th Respondent objection in its entirety. They submit that the claim is "a medical negligence case merely framed in Bill of Rights language as pretext to gain entry to the Court," and that it is barred by both exhaustion and constitutional avoidance. 2. They submit further that the reliefs at paragraphs E(a) to E(f) at pages 13 and 14 of the Petition were already determined by the Council in the Ruling of 5 May 2023, and that what remains are prayers E(g) and E(h), for which remedies are provided under Section 20 of Cap. 253, the Health Act No. 21 of 2017, the Limitation of Actions Act and the law of torts. Significantly, they concede in terms that the Council has no mandate to award damages, and that parties claiming damages in medical negligence cases must move the Magistrate’s Court or the High Court under the Health Act, 2017 and the law of torts. 3. Similarly, reliance is placed *on Godfrey Paul Okutoyi & others v Habil Olaka & another [2018] eKLR, Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR, Abraham Kaisha Kanziku v Governor, Central Bank & others, and Mutyaene v KCB Bank Ltd & another [2023] KEHC 2205 (KLR),* for the proposition that rights conferred by statute are not fundamental rights, and that ordinary civil disputes ought not to be christened constitutional petitions. ## ***The Petitioners*** 1. The Petitioners raise, first, a threshold objection to the objection itself: that it does not raise a pure point of law within *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696* and *Oraro v Mbaja [2005] 1 KLR 141*, because it requires the Court to investigate contested facts — whether the Petitioners’ claims were fully determined by the Council; whether the remedies before the Council were adequate; whether and why mediation failed; and whether the Council’s own conduct forms part of the constitutional violations pleaded. 2. On the merits, the Petitioners’ central submission is that they are not appealing the Ruling of 5 May 2023 and do not challenge it. Their complaint against the Council is that its conduct *before, during and after* the disciplinary proceedings independently violated their rights: that the proceedings were delayed for over eight months without action; that email inquiries were ignored; that an Officer of the Council attempted to coerce the 1st Petitioner into withdrawing the complaint; that the matter was listed only after the 1st Petitioner resorted to social media; and that the Ruling was delivered some seven months after the hearing and close to two years after the complaint was lodged. 3. They submit that the Council has no jurisdiction to adjudicate upon its own violations, to award damages for constitutional violations, or to grant declarations concerning its own conduct, and that the exhaustion doctrine therefore cannot bar access to this Court. They rely on *William Odhiambo Ramogi & 3 others v Attorney General & 4 others* [2020] eKLR (five-judge bench) at paragraphs 60 and 62, *DKS v Ampath Centre* [2023] KEHC 17248 (KLR), and *Mabeya t/a Gynocare Women and Fistula Hospital v Kenya Power and Lighting Company* [2023] KEHC 18902 (KLR). 4. On *res judicata*, they submit that none of the requirements of Section 7 of the Civil Procedure Act is satisfied, the Council’s Disciplinary and Ethics Committee not being a Court of competent jurisdiction for that purpose. 5. On constitutional avoidance, they rely on *Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)* at paragraph 256, and submit that the pleaded wrongs — psychological torture, degradation of dignity through the manipulation of cultural practices, cruel and degrading treatment, violation of consumer rights and of the best interests of a child — are constitutional torts requiring remedies under Article 23 of the Constitution. 6. They distinguish the authorities relied upon by the Council on the footing that in each of them the statutory forum was competent to determine the dispute and no allegation was made against the forum itself. # **D. ISSUES FOR DETERMINATION** 1. Having considered the pleadings and submissions, the following issues arise: 2. Whether the objection qualifies as a preliminary objection properly so called; 3. Whether the doctrine of exhaustion, as codified in Section 9(2) of the Fair Administrative Action Act, 2015 and as reflected in Section 20(9) of Cap. 253 and Rule 37 of the 2022 Rules, bars the Court from entertaining the Petition, and if so, in what respect and against which Respondents; 4. Whether the Petition is *res judicata* or otherwise an abuse of the process of the Court; 5. Whether the Petition, or any part of it, offends the doctrine of constitutional avoidance; 6. Whether the 6th Respondent is properly joined; and 7. What orders, and what disposition as to costs, are appropriate. # **E. ANALYSIS AND DETERMINATION** ## ***(i) Whether the objection is a preliminary objection properly so called*** 1. The classic statement remains that of Law JA in *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* [1969] EA 696, that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit; and that of Sir Charles Newbold P, that a preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. In *Oraro v Mbaja* [2005] 1 KLR 141, Ojwang J (as he then was) explained that the point must be a "pure" point of law, unclouded by factual contest, and that anything else is not a preliminary objection at all. 2. Applying that test, I am satisfied that Grounds 1, 2, 3, 5 and 6 of the objection do raise points of law. They turn upon facts which are either expressly pleaded by the Petitioners themselves or are otherwise beyond controversy: that a complaint was lodged with the Council; that it was inquired into and determined by the Ruling of 5 May 2023, a copy of which the Petitioners have themselves annexed as MJK 22; that no appeal or review was preferred against that Ruling; and that the Petition pleads, among other things, negligence in the treatment of the deceased. On those settled facts, the questions whether exhaustion applies, whether the joinder of the decision-maker is competent, and whether the doctrine of constitutional avoidance is engaged are questions of law. 3. Ground 4 stands on a different footing. The assertion that the Ruling "has already been executed including payment of the ordered fines, and mediation for restitution — albeit failed" is a bare factual assertion. Whether the fines were paid, whether mediation was in fact convened, and whether and why it failed, are matters requiring proof. The Petitioners expressly join issue on them. Ground 4 is therefore not a pure point of law and I decline to entertain it as part of the preliminary objection. It is struck out from the objection, without prejudice to the Respondents’ right to plead and prove those matters at the hearing. 4. I should add that the Petitioners’ broader submission-that the objection as a whole must fail because the Court would have to determine whether the remedies before the Council were adequate - is not, with respect, persuasive. The adequacy of a statutory remedy is assessed by reference to the four corners of the statute conferring it. That is a question of statutory construction, and hence of law. It does not become a factual inquiry merely because it is contested. 5. The objection therefore survives the threshold challenge, save as to Ground 4. ## ***(ii) Jurisdiction and the doctrine of exhaustion*** 1. It is trite that jurisdiction is everything, and that a Court without jurisdiction must down its tools at the first opportunity: *Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1*. It is equally trite that jurisdiction flows from the Constitution, from legislation, or from both: *Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR.* 2. It is important, however, to be precise about what the exhaustion doctrine does and does not do. This Court’s jurisdiction to hear and determine an application for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights is conferred by Articles 22, 23 and 165(3)(b) of the Constitution. That jurisdiction cannot be taken away by an Act of Parliament. What the doctrine of exhaustion does is to require the Court, in a proper case, to *decline to exercise* a jurisdiction it undoubtedly has, until other available avenues have been pursued. As the five-judge bench observed in *William Odhiambo Ramogi & 3 others v Attorney General & 4 others* [2020] eKLR, the doctrine is one of judicial restraint and comity rather than of jurisdictional ouster. 3. The doctrine has statutory footing in Section 9(2) of the Fair Administrative Action Act, 2015, which provides that the High Court or a Subordinate Court shall not review an administrative action or decision under the Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Critically, however, Section 9(4) empowers the Court, in exceptional circumstances and on application by the Applicant, to exempt a person from the obligation to exhaust any remedy if the Court considers such exemption to be in the interest of justice. 4. In *William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR,* the Court distilled the principles governing departure from the requirement, holding in terms (at paragraph 60) that the High Court may in exceptional circumstances determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow a suit to proceed before it; and (at paragraph 62) that where a suit primarily seeks to enforce fundamental rights and freedoms, and it is demonstrated that the claimed violations are not mere "bootstraps" or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion — the more so because the enforcement of fundamental rights and freedoms is a question which can only be determined by the High Court. **The Doctrine of Exhaustion** 1. The Doctrine of Exhaustion in Kenya is a fundamental principle, influencing how disputes are resolved in various legal contexts. This principle mandates that before approaching the Courts, parties must exhaust all available administrative or alternative remedies. The doctrine of exhaustion, also known as the principle of exhaustion of remedies, requires that a party seeking judicial intervention must first utilize all available non-judicial remedies before turning to the Courts. This principle aims to ensure that administrative bodies and other designated authorities have the opportunity to address and resolve issues before they escalate to the judiciary. **Legal Basis** 1. The doctrine of exhaustion of reliefs is contained in Section 9 of the Fair Administrative Action Act 2015 which provides that: - *“(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate Court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.* *(2) The High Court or a subordinate Court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.* *(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).* *(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the Court considers such exemption to be in the interest of justice.”* 1. The doctrine of exhaustion was dealt with by a 5-Judge Bench of the Court in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 *William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights &* *2 others (Interested Parties)* (2020) eKLR wherein it was stated that: - *52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.* 1. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in *R v Independent Electoral and Boundaries Commission (I.EBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR,* where the Court opined thus: *-* *42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words: Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.* **Exceptions of the Doctrine of Exhaustion in Kenya** 1. The exceptions were discussed in the case of *William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR.*The Court stated as follows with respect to the exceptions: - *While, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved - including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional**value is at stake. See also Moffat Kamau and 9 Others v Aelous (K) Ltd and 9**Others.* 1. *As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.* 2. *The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.* **Doctrine of Exhaustion in Health Rights in Kenya** 1. Section 3 of the Medical Practitioners and Dentists Act establishes the Kenya Medical Practitioners and Dentists Council.The functions of the Council are set out in section 4 of the Act which states that The functions of the Council shall be to— *(a) establish and maintain uniform norms and standards on the learning of medicine and dentistry in Kenya; (b) approve and register medical and dental schools for training of medical and dental practitioners; (c) prescribe the minimum educational entry requirements for persons wishing to be trained as medical and dental practitioners; (d) maintain a record of medical and dental students; (e) conduct internship qualifying examinations, preregistration examinations, and peer reviews as deemed appropriate by the Council; (f) inspect and accredit new and existing institutions for medical and dental internship training in Kenya; (g) license eligible medical and dental interns; (h) determine and set a framework for professional practice of medical and dental practitioners; (i) register eligible medical and dental practitioners; (j) regulate the conduct of registered medical and dental practitioners and take such disciplinary measures for any form of professional misconduct; (k) register and license health institutions; (l) carry out inspection of health institutions; (m) regulate health institutions and take disciplinary action for any form of misconduct by a health institution; (n) accredit continuous professional development providers; (o) issue certificate of status to medical and dental practitioners and health institutions; and (p) do all such other things necessary for the attainment of all or any part of its functions.* Section 20 (1) of the Medical Practitioners and Dentists Act provides that: - *“Any person who is dissatisfied with any professional service offered, or alleges a breach of standards by a registered or licensed person under this Act, may lodge a complaint in the prescribed manner to the Council*. 1. **In *Wanjiku (Suing as the Next Friend and Mother to JM) v Kenyatta National Hospital & 2 others [2024] KEHC 13661 (KLR):*** The Court explicitly held that Section 20 of the Medical Practitioners and Dentists Act is not mandatory and there is no statutory requirement compelling a plaintiff to first lodge a complaint before the Board/Council before bringing a civil action in Court**.** Specifically, the Court stated as follows: - *In any event, if it were to be that the Appellant’s claim was premised on the provisions of The Act, from a clear reading of Section 20 (supra) it is apparent that the said provision is not couched in mandatory terms, and the Court has not come across any provision featuring in the said Act to indicate that the Appellant was obligated to first lodge a complaint pursuant to The Act, before seeking redress from the Courts. A similar position was held by the Court in the case of Hellen Kiramana v PCEA Kikuyu Hospital [2016] KEHC 4189 (KLR) cited in the Appellant’s submissions on appeal, as follows: -* *“...there is no mandatory requirement under the Medical Practitioners and Dentists Act for the plaintiff to lodge a complaint before the Board as established under Section 4 of the Act before she could bring action in Court. Consequently, that issue as framed by the defendant is superfluous. Furthermore, the defendant did not advance the said issue as being core to the determination of this case.”* **Rare Exceptions (When the Exhaustion Doctrine is Applied)** 1. Courts will only insist on prior referral or strike out a matter for failing to exhaust KMPDC remedies if the suit is framed strictly as an administrative/constitutional review of a professional dispute or privacy/data breach where the core issues directly challenge an ongoing or un-reviewed professional/quasi-judicial finding by the Council. For instance, in the case of *Savla v Okonji (Petition E039 of 2023) [2026] KEHC 9074 (KLR*), the claim against the respondent was a complaint touching on a professional lapse that should have been presented either before the Kenya Medical Professionals and Dentists Council under Section 20 of the Medical Practitioners and Dentists Act or by dint of Section 46 of the Mental Health Act to the Kenya Health Professions Oversight Authority or to Data Commissioner under Section 56 of the Data Protection Act. P. Nyaundi J held as follows: - *15. I find that these are avenues that were available to the Petitioner to address his grievance yet he elected to present the Petition. The doctrine of exhaustion has its underpinnings under Article 159 (2) of the Constitution which obligates parties and Courts to consider alternative forms of dispute resolution.* *17. It is evident that the Petitioner is aggrieved by the letter authored by the Respondent. They had a client patient relationship. There are clear processes provided under statute under which the Petitioner can proceed to have his grievances against the respondent addressed.* *18. On account of the foregoing, I find that the Petition herein is premature and it is accordingly struck out. The Petitioner should exhaust the available processes under the Mental Health Act, the Kenya Medical Practitioners and Dental Act and the Data Protection Act.* 1. To those principles I would add the elementary requirement that, for the doctrine to bite at all, the alternative remedy relied upon must be one that is (a) available to the party in question, and (b) capable of affording, in substance, the relief that party seeks. A remedy which cannot yield the relief claimed is not an alternative remedy; it is a different remedy for a different grievance. That, as I understand it, is the essence of the holding in *DKS v Ampath Centre* [2023] KEHC 17248 (KLR), where the Court held that a claim in negligence arising from misdiagnosis fell outside the jurisdiction of the HIV and AIDS Tribunal and could only be heard by the ordinary Courts. 2. With those principles in mind, I turn to the two limbs of this Petition, which must in my judgment be treated separately. ## ***(iii) Exhaustion as against the 6th Respondent*** 1. The remedies which the Council says ought to have been exhausted are two: an appeal to the High Court under Section 20(9) of Cap. 253, and a review by the Council under Rule 37 of the 2022 Rules. 2. Both remedies share a defining characteristic: each is directed at *the decision*. Section 20(9) confers a right of appeal upon a person aggrieved by the decision of the Council. Rule 37 permits a person dissatisfied with a decision of the Committee, against which no appeal has been preferred, to apply to the Council for review upon the discovery of new and important matter or evidence which could not with reasonable diligence have been produced earlier, or on account of an error apparent on the face of the record, or for any other sufficient reason. Both are, in their nature, mechanisms for correcting the outcome of the inquiry. 3. How has the law provided a forum of conveniens by any aggrieved party who is dissatisfied with the decision of the Disciplinary and Ethics Committee established under the provisions of the Medical Practitioners and Dentists. There are decisions on record which outlines the law in matters of this nature as demonstrated by the following dicta: * *Thagana v. Kenya Medical Practitioners and Dentists Council & 2 others [2025] KEHC 12976 (KLR): A civil appeal handling the specific re-evaluation of evidence, fairness of the disciplinary process, and proportionality of sanctions imposed by the Disciplinary and Ethics Committee.* * *Kenyatta National Hospital v. Kenya Medical Practitioners & Dentists Council [2025] KEHC 11202 (KLR): Outlines the principles applied by the High Court sitting as a first appellate Court when evaluating the legality of the disciplinary process and institutional corrective orders.* * *Aga Khan University Hospital v. Disciplinary & Ethics Committee of the KMPDC & Another [2025] KEHC 10266 (KLR): Addresses procedural challenges and applications related to the council's disciplinary inquiries.* * *Kenya Hospital Association t/a Nairobi Hospital v. Medical Practitioners and Dentists Board [2018] KEHC 7996: A foundational judicial review case defining the jurisdictional limits of the Board and its committees over corporate medical institutions versus individual practitioners.* 1. The legal framework governing procedural protocols include inter alia: * *Statutory Timeline: Under Section 20(9) of the Medical Practitioners and Dentists Act (Cap. 253), an aggrieved person may appeal a decision of the Disciplinary Committee to the High Court.* * *Exhaustion of Remedies: High Court jurisprudence consistently affirms that a party must exhaust internal regulatory and disciplinary procedures before launching judicial review or substantive appeals, except where excess of jurisdiction or illegality is demonstrated.* 1. That is the law in Kenya in so far as such kind of proceedings are concerned. One of the most common modes of constitutional interpretation is based on the structure of the Constitution 2010. Indeed, drawing inferences from the design our constitutional it gives rises to some of the most important relationships that everyone agrees with or a majoritarian class of our society that the so call separation of powers provides the checks and balances of our constitutional architecture. It is also true that the legislation covering various fields as enacted by Parliament draws its structural adherence to the Constitution. As it is evident the scheme of governance set out in the Medical Practitioners and Dentists saw it fit to enact distributive layers on dispute adjudication which touch on the medical profession and its health services facilities starting with the primary forum and all the way to the appeals Court. That is part of the contentious issues of this matter. The Disciplinary and Ethics Committee finalized its proceedings on 5th May 2023 and there was no explanation where there was avoidance of the appeal process to the High Court only in 2025 a Constitutional Petition came to be filed seeking interpretation of Articles 26(1), 28, 29(c) (d), (f), 32 (4), 43(1)(a), 46(1)(3), 47(1), 50(1) & 53(2) of the Constitution of Kenya 2010. 2. The Petitioners’ complaint against the 6th Respondent is not that the outcome was wrong. They say expressly, and repeatedly, that they do not challenge the Ruling of 5 May 2023 and acknowledge that findings were made against the 1st to 5th Respondents. Their complaint is directed at the *process*: unreasonable delay of over eight months before any action was taken; failure to respond to correspondence; an alleged attempt by an Officer of the Council to procure the withdrawal of the complaint; the listing of the matter only after the 1st Petitioner took to social media; and delivery of the Ruling some seven months after the hearing. Those allegations, if established, engage Article 47(1) of the Constitution, which guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 3. An appeal under Section 20(9) could not redress that grievance. An appellate Court sitting on appeal from the Ruling would be concerned with whether the Ruling was right, not with whether the Council’s Officers had behaved improperly in the course of reaching it. Nor could a review under Rule 37: a complaint of institutional delay and attempted coercion is neither "new evidence" nor "an error apparent on the face of the record." 4. There is a further and more fundamental difficulty with the 6th Respondent position on this limb. The 6th Respondent invites the Petitioners to seek redress, for wrongs allegedly committed by it traceable to the decision of the Disciplinary and Ethics Committee. That proposition offends the maxim *nemo judex in causa sua*. A statutory body cannot be an adequate or effective forum for the adjudication of allegations of constitutional impropriety levelled against that very body. A remedy is not "effective" merely because it exists on paper; it is effective only if it is objectively capable of vindicating the right asserted, taking into account the values of administrative justice in the Constitution and our law — a proposition captured in *Mabeya t/a Gynocare Women and Fistula Hospital v Kenya Power and Lighting Company* [2023] KEHC 18902 (KLR). 5. Finally, and decisively, the 6th Respondent has no power to award damages or to grant declaratory relief in respect of a violation of the Bill of Rights. Only this Court may grant the relief specified in Article 23(3). That is not a matter of contest: the 1st to 5th Respondents themselves submit, in terms, that the Council "has no mandate to award damages." 6. I therefore find that the exhaustion doctrine applies to this case in so far as the proceedings before the Chair of Disciplinary and Ethics Committee. Those are matters whose forum of conveniens and as per the law establish are to be litigated to the High Court and all the way to the other Apex Courts of Kenya. 7. I make clear the limits of this finding. It is a finding on jurisdiction only. I express no view whatever on whether the allegations of delay, coercion and unresponsiveness are true, or on whether, if true, they amount to a violation of Article 47, or on what relief (if any) should follow. Those are matters for the hearing. It is also a finding confined to the Petitioners’ complaint about the 6th Respondent’s *processes*. To the extent — if at all — that the Petition should on a proper reading be understood as seeking to disturb, set aside, vary or reopen the substantive findings or orders contained in the Ruling of 5th May 2023, such a claim would squarely be an appeal jurisdiction. There is nothing which stops the High Court during an appeal to be invited to make findings under Articles 26(1), 28, 29(c) (d), (f), 32 (4), 43(1)(a), 46(1)(3), 47(1), 50(1) & 53(2) of the Constitution of Kenya 2010 as read with Articles 1 & 3 of the Universal Declaration Of Human Rights, Article 4 of the African Convention On Human and Peoples Rights, Article 3 & 6 of the UN Convention of the Rights of the Child And Articles 6, 7 & 9 of the International Covenant on Civil and Political Rights. The question whether the Respondents jointly or severally have infringed anyone or more of these rights and the consequential question whether such infringement or violations can be justified under Article 24 of the constitution would be a matter to be considered by the High Court sitting on appeal after outlining the factual and legal context in which these constitutional issues have arisen. ## ***(iv) Res judicata and abuse of process*** 1. Ground 3 asserts that the Petition seeks to re-litigate what the 6th Respondent has already determined. In so far as this is put as *res judicata* under Section 7 of the Civil Procedure Act, it must fail. Section 7 requires, among other things, that the former matter have been heard and finally decided by a Court competent to try the subsequent suit. The 6th Respondent’s Disciplinary and Ethics Committee is a statutory disciplinary body. What set it apart to fit into the definition of a judicial quasi body it is in the manner of its Constitution, competence and capacity to undertake proceedings within the structure of the Evidence Act in which the complainant and witnesses are invited to tender the evidence on oath and also be a subject to cross examination. This is to test the probative value, veracity, truthfulness, and candidness on the chronology of events with regard to the treatment of the deceased at MTRH. This is not therefore an ad hoc kind of committee which does not fit into the provisions of Article 50 (1) and its attendant clauses on fair trial rights. This Court must also place emphasis on the presence and exercise of the right to legal representation during the proceedings before the committee. This forum for intents and purposes is a tribunal presided over by a Chairman and whose appeals are canvassed before the High Court of Kenya. 2. Further in my view, does the wider doctrine of abuse of process assist the Respondents on the facts as they presently appear. It is not an abuse to pursue in Court a claim which the earlier forum had no power to entertain and of more significance the core grievance to be first unpackaged on behalf of the estate of the deceased whether her right to life a guaranteed and protected under Article 26 of the Constitution was unlawfully caused by the acts of omission or commission by the agents, employees, or servants of the 1st Respondent being MTRH. Recognizing the fundamental right to life from the comparative perspective the Court *in S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)* it was observed that: *"The right to life is, in one sense, antecedent to all the other rights in the Constitution. Without life, in the sense of existence, it would not be possible to exercise rights or to be the bearer of them. But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity. This concept of human life is at the centre of our constitutional values. The Constitution seeks to establish a society where the individual value of each member of the community is recognized and treasured. The right to life is central to such a society. The right to life, thus understood, incorporates the right to dignity. So the rights to human dignity and life are entwined. The right to life is more than existence-it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity."* In the general rubric the question of medical negligence would be at the center of such an investigation by a Court of law duly constituted under Article 50(1) of the Constitution. On the face of it that was part of the discourse before the Disciplinary Committee. In the proper and appropriate forum of adjudication at the centre of it all the deceased estate would be anxious and desirous to know what was the proximate cause of the death of their beloved child whom they looked up to live a happy and fulfilling life within the prophetic declaration under Psalms 90:10 for every human being to number his/her days aright to 70 years and if by reason of strength they are 80 years. The psychological trauma and anxiety for the survivors of the deceased estate is how to find an influence justice to be done by taking certain steps in the litigation cycle for the benefit of the estate. Implicit in the provisions of our statute and tone of eth Constitution is that those fundamental rights being agitated can be infused and fashioned within the civil rights capable of being remedied under that branch of law with completeness. 1. The disciplinary jurisdiction of the 6th Respondent is regulatory and protective of the public; it is directed at the fitness and ethical conduct of medical professionals duly licensed to practice medicine in Kenya. It is not compensatory to look at various limbs of medical negligence and the violation of the health rights in so far as the deceased is concerned. That interrogation would require a forum which looks at the medical facilities in which the deceased was admitted, the service level standard, the professional competencies of the surgeons and other medical personnel involved in the diagnostic and medical dispensation during the survivorship of the deceased. This Court has not been told that this the best forum of conveniens in comparison with the High Court sitting as a civil or as an appeal’s Court. I am of the considered view, that the issues before the Disciplinary Committee can form as part of the judgment or decision in the value chain of justice before a Civil Court. However, I think it is not in my space to shut the door for the complainant to seek redress within the letter of the four corners of the Constitution. To that extent I can only state that a complainant who has invoked the disciplinary jurisdiction is not thereby disabled from pursuing such civil remedies as the law affords: see, to similar effect, the observation that proceedings before the committee and proceedings in the Civil Courts occupy separate jurisdictional fields. ## ***(v) Constitutional avoidance as against the 1st to 5th Respondents*** 1. The position as against the 1st to 5th Respondents is, in my judgment, materially different, and it is here that the objection has real force. 2. The doctrine of constitutional avoidance was stated by the Supreme Court in *Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 Others [2014] KESC 53 (KLR)* at paragraph 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. The doctrine has a long pedigree. In *Harrikissoon v Attorney General of Trinidad and Tobago* [1980] AC 265, the Privy Council warned that the mere allegation that a fundamental right has been infringed does not of itself entitle an Applicant to invoke the constitutional jurisdiction, and that the value of that jurisdiction would be diminished if it were allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. 3. Kenyan Courts have applied the principle consistently. In *Bernard Murage v Fineserve Africa Limited & 3 others* [2015] eKLR, the Court held that a constitutional issue must be a substantial one, and that where a claim is in substance a private law claim for which the ordinary law provides a remedy, the party ought to pursue that remedy rather than dress the claim in constitutional garb. In *Godfrey Paul Okutoyi & Others v Habil Olaka & Another* [2018] eKLR, Chacha Mwita J observed that a breach of rights conferred by an ordinary statute is redressed through a Court of law in the manner allowed by that statute or in an ordinary suit, and that not every failure to act in accordance with a statutory provision gives rise to a constitutional petition. In *Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot* [2021] eKLR, Mutungi J deprecated the increasing practice of filing matters that are essentially civil and christening them constitutional petitions, holding that where an alternative remedy of filing an ordinary civil suit exists, a party ought not to invoke the jurisdiction of the constitutional Court. 4. Applying those principles, and reading the Petition as a whole, the substance of the claim against the 1st to 5th Respondents is a claim in negligence arising from the medical management of the deceased, and a claim for the losses flowing from her death. The Petitioners themselves plead the standard of care, its breach, causation and consequent loss. Whatever constitutional label is attached, the legal wrong asserted is the tort of negligence, and the injury asserted is a wrongful death. 5. The Kenyan legal order provides a complete, established and adequate framework for such a claim. A claim on behalf of the estate lies under the Law Reform Act, Cap. 26. A claim for the benefit of dependants lies under the Fatal Accidents Act, Cap. 32. The Health Act, No. 21 of 2017 makes further provision in relation to health services and the liability of health institutions and providers. Damages for pain and suffering, loss of expectation of life, loss of dependency and special damages are all recoverable in an ordinary civil suit. The Petitioners do not suggest, and could not credibly suggest, that these remedies are unavailable in principle or inadequate to compensate the loss of a child through negligent treatment. 6. In Article 26 of the Constitution guarantees the right to life, but the constitutional right to life is not, and was never intended to be, a substitute for the law of negligence in every case of death occasioned by a want of care. If it were, every fatal accident claim, every clinical negligence claim and every industrial death would be triable as a constitutional petition, and the constitutional jurisdiction of this Court would be swamped by claims for which Parliament has long provided a settled procedure. That is precisely the mischief against which *Harrikissoon*, *Bernard Murage*, *Okutoyi* and *Kiplagat* warn. 7. I have anxiously considered the Petitioners’ submission that the wrongs pleaded against the 1st to 5th Respondents transcend tort — that the threats and intimidation attributed to the 2nd and 3rd Respondents amount to psychological torture contrary to Article 29; that the alleged manipulation of cultural practices by the 5th Respondent to procure withdrawal of the complaint violated dignity under Article 28; and that the refusal to admit the deceased’s body for some twelve hours violated the family’s dignity. These are grave allegations and I do not diminish them, but grave allegations of misconduct between private parties do not, without more, become constitutional claims. Intimidation, harassment, the infliction of emotional distress, and the wrongful interference with a family’s dealings with the body of a deceased relative are all wrongs which the common law and statute recognized and remedy in an ordinary civil suit, in which the full range of the Petitioners’ evidence - including the medical evidence relating to the 1st Petitioner’s diagnosis of Prolonged Grief Disorder - can properly be received and assessed. To characterize them as "constitutional torts" is to state a conclusion, not to establish one. 8. Similarly, does the availability of a constitutional claim against the 6th Respondent operate to draw the claims against the 1st to 5th Respondents into the constitutional jurisdiction. The claim against the Council concerns the exercise of *public* regulatory power and engages Article 47 directly. The claim against the 1st to 5th Respondents concerns the standard of clinical care and the conduct of individuals, and is fully answerable in private law. The two do not stand or fall together. 9. I therefore find that the claims against the 1st to 5th Respondents offend the doctrine of constitutional avoidance and are not properly brought as a Constitutional Petition. Ground 5 of the objection succeeds to that extent. 10. Two qualifications are necessary. First, in striking out those claims I am not dismissing them on the merits. The Petitioners retain their right to pursue them by way of ordinary civil suit in the appropriate Court, and nothing in this Ruling is to be read as a finding on the merits of any such suit. Second, I am conscious that questions may arise as to limitation, given the passage of time since the death and since the Ruling of 5 May 2023. Limitation is not before me, it was not argued, and cannot be determined on a preliminary objection. It will be for the Court seized of any civil suit to determine, on evidence and on argument, whether any claim is time-barred and whether any extension or exemption is available under the Limitation of Actions Act, Cap. 22, or otherwise. I say no more about it than that this Ruling neither creates nor extinguishes any such argument. ## ***(vi) Joinder of the 6th Respondent*** 1. Key legal principles on joinder of parties in Kenya: * *Governing Law: Applications for adding, removing, or substituting parties are primarily anchored under Order 1 Rule 10(2) of the Civil Procedure Rules, which grants Courts discretionary power to join any person whose presence is necessary to completely adjudicate all questions involved in the suit.* * *Test for Necessary Parties: A party seeking joinder (or an existing party applying to enjoin someone) must prove that the individual has a direct, identifiable, and proximate stake in the matter—not a peripheral or altogether new cause of action.* * *Stage of Proceedings: Joinder of parties can be requested and allowed at any stage of the proceedings (before or during the trial), provided it does not prejudice other litigants or introduce confusing new issues.* * *Proper party: A person whose presence enables the Court to adjudicate the matter completely and finally, though an effective order can technically be passed even in their absence.* 1. This is what the Court spoke about in the following case in *Florence Nafula Ayodi & 5 others v John Tabalya Mukite & another and Benson Girenge Kidiavai & 67 others (applicants/intended interested parties) [2021] eKLR*, it was observed that: *“The above notwithstanding, it is common sense to expect that for one to be enjoined in certain proceedings, those proceedings have to be pending before the Court. In Leonard Kimeu Mwanthi v Rukaria M’twerandu M’iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties) [2021] eKLR, Justice L. Mbugua stated that “A party claiming to be enjoined in proceedings must have an interest in the pending litigation…” In other words, the proceedings should still be alive in the Court: they could be at the nascent or other stages but must be alive. In Central Kenya Ltd. V. Trust Bank & 4 Others, CA NO. 222 of 1998 the Court, in discussing the issue of joinder of parties, held that “We would however agree with the respondent that Order 1 Rule (10) (2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court.”* 1. Given the background of this case and the facts surrounding it, there is no prejudice of miscarriage of justice as being demonstrated by the 6th Respondent if joinder of party is effective against it as one of the main actors on matters of medical practice in Kenya including the level of services offered in the various health institutions both at the National, County government and the regime of private hospitals. That argument and submissions finds no favour with the law. For those reasons given at paragraphs 35 to 40 above, the Council is joined here not as an appellate target but as an alleged wrongdoer in its own right. The joinder is competent. Ground 2 fails, subject always to the limitation expressed at paragraph 40. ## ***(vii) A note on pleading*** 1. I have already spoken extensively on the issue of the doctrine of exhaustion and whether indeed the complainant is at liberty to avoid the appeal process or the forum of conveniens as established under the hierarchy of Courts to adjudicate civil rights so as to pursue an alternative forum in the form a constitutional petition. Having in mind the preamble of our constitution which provides inter alia that we the people of Kenya are COMMITTED in to nurturing and protecting the well-being of the individual, the family, communities and the nation: and RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law and as read with Article 3 which further states; that *every person has an obligation to respect, uphold and defend this Constitution*, I say no more as to the justifiability of the petition in its present format or at an amended state. 2. I think it is right to record the following. The requirement stated in *Anarita Karimi Njeru v Republic (No. 1)* *[1979] KLR 154* and reaffirmed by the Court of Appeal in *Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others* *[2013] eKLR* is that a Petitioner must set out with reasonable precision the provision said to be infringed and the manner of the infringement. Given the narrowed compass in which this Petition will now proceed, the Petitioners would be well exercise her *locus standi* to consider whether to take directions to canvass the issues as pleaded or proceed to invoke the alternative forum of conveniens under our hierarchy of Courts in the legal system # **DISPOSITION** 1. As a consequence of all this and drawing the threads together the following orders abound: 1. *That the objection is a proper preliminary objection as known in law on matters of this Court being a Non-Forum of Conveniens with regard to the doctrine of exhaustion, constitution avoidance in view of comprehensive adjudicatory Forums to redress the infringement and violations being alleged by the Petitioner on behalf of the estate of the deceased.* 2. *That the Petition is not res judicata in consonant with Section 7 of the CPA.* 3. *That the 6th Respondent is properly joined in respect of this petition it were to see the legal light of the day.* 4. *That the claims against the 1st to 5th Respondents jointly and severally are, in substance, claims in medical negligence and for wrongful death of the deceased for which the ordinary law provides adequate and appropriate remedies. They therefore run Foul the doctrine of constitutional avoidance and exhaustion and are improperly before this Court in their present form.* 5. *THAT the Petition dated 10th May 2025, in so far as it is brought against the 1st, 2nd, 3rd, 4th and 5th Respondents, is struck out, with liberty to the Petitioners to institute such civil proceedings as they may be advised in a Court of competent jurisdiction; and for the avoidance of doubt, nothing in this Ruling constitutes a determination on the merits of any such claim.* 6. *THAT for the avoidance of doubt, the Petitioners shall not be at liberty in these proceedings to challenge, reopen, vary or set aside the substantive findings or orders contained in the Ruling of the 6th Respondent dated 5th May 2023.* 7. *That on costs each party to bear their own costs of this litigation.* 8. *That each party to be at liberty to apply.* Orders accordingly. **DATED, SIGNED AND DELIVERED AT ELDORET THIS 31ST DAY OF AUGUST 2026** **………………………………** **R. NYAKUNDI** **JUDGE**