Muraya v Chief Officer Health Services Nakuru County & 2 others (Constitutional Petition E009 of 2025) [2026] KEHC 13226 (KLR) (1 September 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CONSTITUTIONAL PETITION NO. E009 OF 2025** **MARGARET NJERI MURAYA ..……….……….…...….. PETITIONER** **VERSUS** **THE CHIEF OFFICER HEALTH SERVICES** **NAKURU COUNTY ………….............................. 1ST RESPONDENT** **THE MEDICAL SUPERINTENDENT RIFT VALLEY** **PROVINCIAL GENERAL HOSPITAL ………..….. 2ND RESPONDENT** **THE MANAGER, NATIONAL BANK OF** **KENYA LIMITED NAKURU BRANCH ……….….. 3RD RESPONDENT** **JUDGMENT** 1. **Margaret Njeri Muraya,** the petitioner herein filed the petition dated 5th February, 2025 whereof she sought for the following relief: 2. ***A declaration that the 1st, 2nd and 3rd Respondents are operating the accounts Rift Valley Provincial General Hospital in a manner that is unconstitutional and in breach of the various statutes meant to protect and prevent public funds from misuse.*** 3. ***A declaration that the control of accounts pertaining to Rift Valley Provincial General Hospital by the 3rd Respondent a person who was not a public servant that is unconstitutional and in breach of the various statutes meant to protect and prevent public funds from misuse.*** 4. ***An order that the 1st and 2nd Respondent be removed from their positions for gross misconduct by conning and colluding to divert/misuse public funds meant for the maintenance and provision of health services at the Rift Valley Provincial General Hospital*** 5. ***An order of prohibition was issued prohibit and or restrain the 3rd Respondent from acting or executing any mandate as a signatory of accounts associated with Rift Valley Provincial General Hospital.*** 6. ***Cost of this petition*** 7. ***Any other relief this court may deem fit to grant.*** 8. The Petitioner swore an affidavit she filed in support of the petition. The 1st and 2nd Respondents filed the replying affidavit sworn by James Waweru and grounds of opposition to oppose the petition. 9. The Respondent on its part filed the replying affidavit sworn by Benson Wagenye Mwaniki plus a preliminary objection to oppose the petition. This court gave directions to have the petition disposed of by written submissions. 10. I have considered the grounds stated on the face of the petition plus the facts deponed in the rival affidavits. I have further taken into account the grounds of opposition plus the preliminary objection. I have also considered the rival written submissions. I have already set out the orders the petitioner is seeking in the petition. 11. The petitioner’s case is stated in brief herein below. It is the petitioner’s submission that she had been a witness to widespread impunity on the part of the Respondents. She averred that the Respondents have ignored the Constitution and a myriad of laws meant to protect the Rift Valley Provincial General Hospital which is the county’s premier Health facility from wanton mismanagement thus necessitating the filing of the instant petition. 12. The Petitioner further argued that the petition is indeed a public interest litigation whose main aim is to ensure accountability when it comes to the use of public funds as regards the provision of health care. 13. The petitioner averred that it has come to her notice that the 1st, 2nd and 3rd Respondents are colluding to mishandle and mismanage public funds collected from the citizens of Nakuru County meant to enhance the quality of medical services provided by the Rift Valley Provincial General Hospital and enhance its infrastructure thereon. 14. The 1st and 2ndRrespondents were accused of acting as the sole signatories to accounts that hold all the revenue collected by the hospital in the financial facility managed by the 3rd Respondent which has control over disbursement of public funds yet he is a not a public servant. 15. It is the averment of the petitioner that the Respondent operate the said account without oversight, proper adherence to Public Procurement Policy and proper adherence to set accounting standards as a government run institution. It is said that as such, the above circumstances have led to pilfering of public coffers and running down of the Rift Valley Provincial General Hospital due to wanton abuse of their offices and with the tacit approval by the Nakuru County Government. 16. It is also argued by the petitioner that the Respondent have indulged in favaourism whilst hiring casuals as the process of doing so is opaque and not competitive thus turning the hospital into a cash cow and personal fiefdom of the Respondents to dole out favours to friends and acquaintances in terms of employment and procurement contracts. 17. The petitioner further accused the 1st and 2nd Respondents of engaging in blatant mismanagement of funds inclusive of unexplained interdepartmental funds transfers, irregular expenditures as the premier health facility lacks a substantive procurement plan and the budget making process is opaque, cloaked with secrecy and devoid of any iota of public participation. 18. It is further argued that unless the orders sought in the petition are granted and the illegal acts of the Respondents are stopped in their tracks, the County of Nakuru Health sector shall continue to suffer from wanton mismanagement. It is said that the Auditor General in her report on the county Executive of Nakuru for the year ended 30th June, 2022 an adverse opinion was made admonishing the monetary habits of mismanagement of the Rift Valley General Hospital. 19. The petitioner identified the alleged violation of various constitutional provisions. It is argued that the Respondents mismanaged funds that are meant to ensure provision of medical services and have caused the near collapse of Rift Valley Provincial General Hospital thus curtailing public access to quality medical services so far as the same is appropriate thus breaching Article 6(3) of the Constitution. 20. It is also argued that the Respondents have breached Article 35 of the Constitution on access to information. It is said that the Respondent’s capacity when it comes to the sharing of accounts and other information with regards to a public facility is a direct affront to the Constitution that states that every citizen has a right to access information held by the State. 21. The Respondents have also been accused of breaching Article 73 of the Constitution, in that in the exercise of their duties the Respondents should have demonstrated personal integrity, objectivity and sound decision making that should be devoid of nepotism, favourism and corrupt practices. The petitioners has stated that the 1st and 2nd Respondents in exercise of their duties have not complied with Article 226(2) and (5) of the Constitution in that being accounting officers of the County Public entity have not been accountable to the county Assembly for its financial management. 22. The petitioner further pointed out that under Article 227 on the procurement of public goods and services that states that when a state organ or any other public entity contracts for goods and services, it shall do so in accordance with a system that is fair, equitable, transparent competitive and cost effective. 23. The petitioner is of the submission that the 1st and 2nd Respondents lack high standards of professional ethics required for the high office they hold. It is also stated that the Respondents have contravened the Constitution in a manner meant to use, steal, divert and award public funds for personal gain thus contravening Articles 258 and 259 of the constitution. 24. It is the averment of the petitioner that the Respondents contravened various statutes to wit The County Government Act No. 17 of 2012. It is said that the Respondent contravened section 87(a) and (b) of the County Government Act in that it is alleged that they misused their mandate as county officers and public officers confound the citizenry’s right to public participation by ensuring that the public fails to have timely access to information, data and documents related to policy formulation and implementation and reasonable access to the process of formulating and implementing health policies and regulations. 25. It is further stated that the 1st and 2nd Respondents contravened section 104(4) of the County Government Act by failing to promote public participation. The petitioner have also argued that the 1st and 2nd Respondents breached S.109(2) of the Public Finance Management Act No. 18 of 2012 by operating different accounts thus failing to ensure that all monies raised or received by or on behalf of the County Government is paid into the County Revenue Fund. 26. The 1st and 2nd Respondents denied the allegations of fact, law and opinions made in the petition. It is submitted that the petition is incompetent speculative and devoid of any factual basis as it is founded on conjecture, assumptions and generalizations without verifiable evidence of misappropriation, illegality or misconduct on the part of the Respondents. They stated that contrary to the petitioner’s assertion, the collection, banking and utilization of funds at the Rift Valley Provincial General Hospital is conducted strictly in accordance with Public Finance Management Act, the Facility Improvement Financing Act and other relevant laws, Regulations and circulars issued by the National Treasury and the County Treasury. 27. The 1st and 2nd Respondents averred that the hospital collects revenue from medical services through approved cashless systems and such funds are duly receipted and deposited into an authorized Facility Improvement Fund Account (FIF Account) managed under the supervision of the County Treasury. 28. It is also averred that all collections are accounted for through monthly financial statements, quarterly reports to the County Department of Health and regular audits by the Office of the Auditor General and in strict adherence to the Public Audit Act therefore the allegation that there is collusion between 1st, 2nd and 3rd Respondents to mismanage public funds is false, malicious and defamatory and is designed to tarnish the reputation of the Respondent. 29. The Respondent further stated that the hospitals operations including procurement, recruitment and expenditure are subject to multiple layers of approvals, including from the County Department of Health, County Treasury, County Public Service Board and internal audit committees making personal misuse impossible. 30. The Respondent also argued that the petitioner’s reliance on the Auditor-General’s report for the year ended 30th June, 2022 is misleading as the report does not attribute individual liability or fault to the Respondent but instead provides general audit observations which have since been addressed by management responses ad oversighted actions. 31. It is also pointed out that the petitioner has failed to tender any evidence to prove specific sum of public money was lost, stolen or diverted by the Respondents. It is further the submission of the Respondents that public funds at the Rift Valley Provincial General Hospital held in the expenditure account held in National Bank (K) Ltd, Nakuru Branch, the 3rd Respondent are properly utilized for hospital operations, staff welfare and infrastructure improvement in accordance with the approved budgets and the County Integrated Development Plan. 32. Finally, the 1st and 2nd Respondent submitted that the allegation of nepotism favourism and employment malpractice are baseless and unsupported as all hiring and contracting processes are governed by County Public Service Board and where necessary their authority sought. This court was urged by 1st and 2nd Respondents to dismiss the petition. 33. On its part the 3rd Respondent Bank urged this court to dismiss the petition arguing that the petition was drawn by an unqualified person in that the advocate had not obtained a practicing certificate for the year 2025 hence the pleadings are a nullity ab initio. The 3rd Respondent further pointed out that the account held by all bank customers including the parties herein are governed by the set rules of operations and mandate as directed by the client and not at the whims of the bank. The bank is emphatic that the operations of Bank – customer accounts are guided by the Banking Law and Prudential Guidelines set by the Central Bank of Kenya. 34. The Bank further stated that the allegations leveled against it and the 1st and 2nd Respondent are false and baseless. It is the 3rd Respondent’s submission that it cannot be forced to disclose confidential financial accounts of a customer without the customer’s authority. The bank further stated that the bank has the mandate and authority to offer banking services to private, public, individuals and corporate institutions without discrimination and within the law. The bank also stated that the petitioner failed to provide evidence showing that the 3rd Respondent was in control of the 1st and 2nd Respondent’s bank accounts except as bankers in a bank-customer relationship. 35. After considering the grounds, the facts deponed in the rival affidavits, the grounds of opposition and the rival written submissions, I am persuaded that the following issues arose for determination: 36. ***Whether the petition meets the Constitutional threshold*** 37. ***Whether the Respondents violated the Constitutional and statutory framework governing procurement of goods and services for the Nakuru County Health Sector and the Hospital.*** 38. ***Whether the Respondents violated the Constitutional and statutory framework governing collection, custody, management and expenditure of public funds at the Rift Valley Provincial General Hospital.*** 39. ***Whether the petitioner is entitled to the declarations, prohibitory and other reliefs sought in the petition.*** 40. On the first issue as to whether the petition meets the Constitutional threshold, it is the submission of the 1st and 2nd Respondents that the petition does not meet the Constitutional threshold established in **Anarita Karimi Njeru Vs Republic [1979] eKLR.** 41. It is argued that the petition does not specify with precision the rights violated or the manner of violation. The Respondents further argued that the petition is speculative founded upon conjecture and generalities and is devoid of evidence of misappropriation, illegality or misconduct. The petitioner is of the submission that the petition is not founded upon bare assertion that public funds have been mismanaged. It is important from the outset to identify the holding in **Anarita Karimi Njeru Vs Republic [1977] KLR 154** where the court held inter alia as follows: ***“….. If a person is seeking redress from the High Court on a matter which involved a reference to the Constitution, it is important that be set out with a reasonable degree of precision that of which he complains the provisions, said to be infringed and the manner in which they are alleged to be infringed”*** 1. This court has already set out in brief the substance of the petitioner’s complaint(s). The question is whether it can be said that the petition lacks precision or that it does not state how the provisions were breached. I have carefully examined the petition and it is clear to me that the petitioner has clearly pointed out in the petition which constitutional provisions she alleges were breached. 2. It is also apparent from the petition and from the supporting affidavit that the petitioner has explained in detail the manner in which those provisions were allegedly breached. I am satisfied that the petition meets the constitutional threshold of precision and discloses the manner the breach occurred. The preliminary objection is overruled. 3. The second and third issues are whether the Respondents violated the constitutional and statutory framework governing procurement of goods and services for the Hospital and the Nakuru County Health sector and whether the Respondents also violated the Constitutional and Statutory framework governing the collection, custody, management and expenditure of public funds at the Rift Valley Provincial General Hospital. 4. The petitioner has made detailed submissions and averments in an attempt to show that the Respondents violated constitutional and statutory framework governing procurement. The Respondents have contended the petitioner’s assertion and submitted that he acted in accordance with the Constitution and the relevant statutes while performing their duties. 5. I have carefully considered the affidavit evidence tendered particularly by the 1st and 3rd Respondents and I am convinced that contrary to the assertion by the petitioner that the collection, banking and utilization of funds at the Rift Valley Provincial General Hospital in accordance with the Public Finance Management Act (Cap 412A Laws of Kenya), The Facility Improvement Financing Act (Cap 277 Laws of Kenya), Regulations and circulars by the National Treasury and the County Treasury. 6. The Respondents were also able to show that the Hospital collects revenue from Medical Services through approved cashless systems and that such funds were receipted and deposited into an authorized Facility Improvement Fund Account managed under the supervision of the County Treasury. This court therefore finds that there was no evidence of collusion between the 1st, 2nd and 3rd Respondents to mismanage public funds. 7. The other complaint or allegation which the Respondents were able to controvert relates to the hospital operations, procurement, expenditure and recruitment. The 1st and 2nd Respondents were able to respond to the complaint. The 1st and 2nd Respondents were able to show that the hospitals operations, recruitment, procurement and expenditure are subject to multiple layers of approvals say from the county Department of Health, County Treasury and County Public Service Board. It is clear that the petitioner has failed to lay a strong evidential basis of her petition. 8. The final issue is whether the petitioner is entitled to the orders sought in the petition. The petitioner was bound to tender evidence to establish the allegations and or complaints directed against the bank, the 3rd Respondent. Its unfortunate that the petitioner failed to discharge the burden of proof. 9. In the end the petitioner’s petition is found to be without merit. The same is dismissed. Since the petition is a public interest litigation this court is reluctant to award costs. A fair order on costs which I make is that each party should meet its own costs. **Dated, signed and delivered this 1st day of September, 2026 at Nakuru.** **J. K. SERGON** **JUDGE** **In presence of:** Rutoh C/A Kamonjo Kiburi for National Bank No Appearance for the Petitioner No Appearance for the 1st and 2nd Respondents