https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12785

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO: HCCHRPET- E 499 OF 2026** **IN THE MATTER OF: Articles 2, 10, 22, 23, 43, 46, 47, 73, 159 and 165 of the Constitution of Kenya, 2010** AND **IN THE MATTER OF: The Fair Administrative Action Act, 2015** AND **IN THE MATTER OF: The Health Act, 2017** AND **IN THE MATTER OF: The Medical Practitioners and Dentists Act, 1978** BETWEEN **DR. KAHURA MUNDIA, DR ARNOLD MALIT, DR. MILDRED MAVINDU** **(Suing as Officials of KENYA DENTAL, ASSOCIATION) …………………PETITIONERS** VERSUS **KENYA MEDICAL PRACTITIONERS** **AND DENTIST COUNCIL……………………………………...RESPONDENT** AND **CABINET SECRETARY,** **MINISTRY OF HEALTH...........................................1ST INTERESTED PARTY** **LAW SOCIETY OF KENYA………………………....2ND INTERESTED PARTY** **RULING** 1. On 30th July 2026, I delivered an *ex tempore* determination of the applications dated 26th July 2026, 27th July 2026 and 29th July 2026. This ruling sets out the analysis and reasons for the orders issued on that date. 2. The Petitioners application is dated 29th July 2026 and seeks the following orders- 1. Spent 2. Pending the hearing and determination of this application, a conservatory order be issued suspending the implementation, enforcement or operation of the Respondent's publication dated 21st July 2026 and placed on the website www.kmpdc.go.ke/scope-of-practice/ purporting to expand the scope of practice for non-dentists community oral health officers to provide advanced dental care services reserved for general dentists and specialists dentists. 3. Pending the hearing and determination of this application, a conservatory order be issued suspending the publication placed on the website www.kmpdc.go.ke/scope-of-practice/ purporting to expand the scope of practice for non-dentists community oral health officers to provide advance dental care services reserved for general dentists and specialists dentists.. 4. Pending the hearing and determination of the Petition, a conservatory order be issued restraining the Respondent, its officers, agents or any person acting under its authority from implementing, enforcing or relying upon the impugned publication placed on the regulator website. 5. pending the hearing and determination of the Petition, the Respondent be restrained from authorizing, licensing or recognizing persons who are not qualified dentists to undertake advanced dental procedures under the impugned publication of scope of practice for non-dentists community oral health officers. 6. The Court be pleased to issue an order preserving the existing legal and regulatory framework governing the practice of dentistry pending the determination of the Petition.7. 7. Costs of this application be provided for. 3. The application is premised on the grounds of the application and supported by the affidavit of Dr. Kahuria Mundia sworn on 26th July 2026. The applicant seeks conservatory orders suspending the implementation, enforcement or operation of the respondent’s publication dated 21st July 2026 and contends that the said publication purports to expand the scope of practice for non- dentists community oral health officers to provide advance dental care services reserved for general dentists and specialists dentists. 4. The application dated 29th July 2026 is presented by the Oral Health Association of Kenya. It is supported by the affidavit of Daniel Ndunu Chege and seeks the following orders- 5. THAT the Oral Health Association of Kenya be and is hereby joined and enjoined to these proceedings as the 2nd Respondent; and that the Petition and the Notice of Motion both dated 26th July 2026 be amended accordingly. 6. THAT upon such joinder, the Replying Affidavit of DANIEL NDUNU CHEGE sworn on the 29th day of July 2026, together with the annexures thereto, be deemed as duly filed and served and be treated as the response of the 2nd Respondent both to the Petition and to the Notice of Motion dated 26th July 2026. 7. THAT pending the inter partes hearing and determination of this Application, this Honourable Court be pleased to decline to grant any conservatory order, injunction or other interim relief which touches upon the scope of practice, the registration or the licensing of Community Oral Health Officers and Oral Health Officers. 8. THAT Ground 4 of the Notice of Motion dated 26th July 2026, together with every allegation founded upon contempt of the orders issued in High Court Judicial Review No. 74 of 2020, be struck out for being res judicata, alternatively for being an impermissible collateral attack upon a file which stands closed. 9. THAT this Honourable Court be pleased to give directions consolidating this Petition with High Court Constitutional Petition No. E482 of 2026, Dr Silas Toka v Moses Kiptanui, Kenya Medical Practitioners and Dentists Council & another, the two matters raising substantially the same questions between substantially the same interests. 10. THAT this Honourable Court be pleased to direct that no order affecting the scope of practice, the registration or the licensing of Community Oral Health Officers and Oral Health Officers shall issue in these proceedings without the 2nd Respondent first being heard. 11. THAT the Petitioners be condemned to pay the costs of this Application, of the Notice of Motion dated 26th July 2026 and of the Petition. 12. THAT this Honourable Court be pleased to make such further or other orders as it may deem just and expedient. 13. The application dated 27th July 2026 is presented by Consumer Federation of Kenya and is supported by the Affidavit of Stephen Mutoro. The application seeks the following orders- 1. Spent 2. This Honourable Court be pleased to join the Consumers Federation of Kenya (COFEK) as the 3rd Interested Party in these proceedings. 3. Upon joinder, this Honourable Court be pleased to grant leave to the Applicant/3rd Interested Party to file and serve its Replying Affidavit, Grounds of Opposition, List of Authorities and Written Submissions in response to the Notice of Motion dated 26th July 2026 and the Petition within such time as it may direct. 4. This Honourable Court be pleased to direct that the present Petition be consolidated with, or in the alternative be heard together with, **HCCHRPET/E409/2026, Consumers Federation of Kenya v Commission for University Education & 3 Others,** both matters raising substantially overlapping constitutional, statutory and regulatory questions concerning the legality of the training, accreditation, professional recognition and expanded scope of practice of Community Oral Health Officers. 5. Pending the hearing and determination of this Application, this Honourable Court be pleased to defer the hearing and determination of the Petitioners' Notice of Motion dated 26th July 2026 until this Application for joinder and consequential directions have first been heard and determined. 6. The costs of this Application be in the cause 14. The applications were canvassed by way of oral submissions. The Petitioner opposed both applications for joinder and relied on the affidavit sworn by Dr. Kahuria Mundia on 28th July 2026. 15. I have considered the applications, the affidavits on record, and the rival submissions of the parties. 16. Rules 5 and 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 make provision for the joinder of parties and interested parties. Rule 5 provides, *inter alia*, as follows: **(d) 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 just—** **(i) order that the name of any party improperly joined, be struck out; and** **(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.** 1. In **Chavangi & another v National Assembly & 2 others; Swazuri (Interested Party) [2023] KEHC 19049 (KLR)** the Court had this to say- **[27] For a person to be joined as a respondent there must be allegations that such person has denied, violated, infringed, threatened to deny, violate, infringe a right or fundamental freedom.** **[28].Havelock, J. considered an application for joinder of parties in the case of Pizza Harvest Limited v Felix Midigo [2013] eKLR. The learned judge stated:** **I have also taken cognizance of the case of Amon v Raphael Tuck & Sons Ltd (1956) 1 All ER 273, in which Devlin, J held at p. 286-287:** **“What makes a person a necessary party? It is not of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately …the Court might often think it convenient or desirable that some of such persons should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it would be necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.”** 1. I begin with the application by the Oral Health Association of Kenya. Having regard to the applicable law, and in particular the definition of a respondent under Rule 2 of the Mutunga Rules, I am not persuaded that the Association meets the threshold for joinder as a respondent. A respondent is a person alleged to have denied, violated, infringed, or threatened to deny, violate, or infringe a right or fundamental freedom. The pleadings before the Court direct the claim against the existing respondent in its regulatory capacity. No allegation of violation or threatened violation of rights is made against the intended 2nd respondent. The legal basis for joining the Association as a respondent is therefore not established. 2. That, however, does not conclude the matter. The pleadings disclose that the outcome of the Petition may directly affect the Association’s members or the interests it seeks to advance. Its presence may therefore assist the Court in resolving the dispute fairly and completely. I accordingly join the Oral Health Association of Kenya, not as a respondent, but as the 2nd Interested Party. 3. I turn next to the application by the Consumers Federation of Kenya. COFEK seeks to be joined as an interested party on the basis that it is a consumer rights organisation with experience in public interest litigation touching on consumer protection. The governing principles for joinder as an interested party were stated by the Supreme Court in **Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR**, where the Court set out the following requirements: 1. **The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.** 2. **The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.** 3. **Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.** 4. The Supreme Court further emphasised that joinder as an interested party is neither automatic nor a matter of right. It is a discretionary power, to be exercised judiciously, with due regard to the interests of the principal parties and the need for the Court to resolve the real issues in controversy. 5. At the time COFEK moved the Court, the Law Society of Kenya had already been joined as an interested party. COFEK did not demonstrate, with sufficient particularity, how its proposed submissions would differ from, or add materially to, those already available to the Court through the existing parties and interested parties. I am therefore not satisfied that COFEK’s participation is necessary for the fair and complete determination of the Petition. I am fortified in that conclusion by the decision in **Gachoka & another v Cabinet Secretary, National Treasury & Economic Planning & 7 others [2026] KEHC 6853 (KLR)**, where the Court, in dismissing an application for joinder, observed as follows: **[57]…the instant Application for joinder as interested party does not meet the required threshold for want of demonstrating a clearly identifiable stake /interest and the direct prejudice that the Applicant is likely to suffer if joinder is denied. We reiterate that the issues intended to be addressed are already covered in the substantive petition and for the above reasons, the Applicant will not suffer any prejudice].** 1. I now consider the prayer for conservatory relief. The Petitioner’s position, as I understand it, is that the public interest requires the suspension of the impugned circular dated 21st March 2026, to the extent that it expands the scope of practice of non-dentist community oral health officers. The principles governing the grant of conservatory orders were settled by the Supreme Court in **Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR** and further elaborated by Onguto J. in **Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR** as follows: **In summary, the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. Further, the Court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether, to grant or deny a conservatory order.** 1. Applying those principles to the material before me, I am satisfied that a limited conservatory order is warranted. The dispute raises questions of public interest concerning the regulation of dental practice and the scope of professional authority pending determination of the Petition. In the circumstances, justice is best served by preserving the existing position, but only to the extent necessary to restrain implementation of the impugned publication in so far as it expands the scope of practice of non-dentist community oral health officers. 2. Accordingly, the following final orders issue in respect of the three applications: 1. The Application dated 27th July 2026 is disallowed. 2. The Application dated 29th July 2026 is disallowed. 3. Oral Health Association of Kenya is joined in the proceedings as 2nd Interested Party. 4. A conservatory order hereby issues, pending the hearing and determination of the Petition, restraining the Respondent, its officers, agents or any person acting under its authority from implementing, enforcing or relying upon the impugned publication placed on the regulator website to the extent that it expands the scope of practice of non- dentist community oral health workers. 5. Each party to bear their own costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11th AUGUST 2026.** **P. M. NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant No appearance by parties