https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9514

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMMPET NO. E013 OF 2026** **OKIYA OMTATAH OKOITI.…..……………….….……1ST PETITIONER** **BERNARD MUCHIRI MUCHERE……………….…….2ND PETITIONER** **NAOMI NYAKERARIO MISATI………………….…….3RD PETITIONER** **VERSUS** **THE KENYA HOSPITAL** **ASSOCIATION AND 24 OTHERS………………………RESPONDENTS** **RULING** 1. The Petitioners filed the petition dated 3rd February 2026 in the Constitutional and Human Rights Division of the High Court and sought declaratory reliefs that: the land upon which The Nairobi Hospital sits is held by the Kenya Hospital Association under a Public Trust for the exclusive purpose of providing healthcare services, that The Nairobi Hospital is an institution of paramount public interest subject to heightened constitutional accountability, that the mismanagement and governance paralysis at the Hospital constitute a gross violation of the fiduciary duties of the Respondents and a direct threat to the right to health, and that the failure by the Respondent state urgencies to protect this public asset amounts to a dereliction of their positive constitutional duties. 2. Vide a Notice of Motion filed alongside the Petition, the Constitutional Court issued a conservatory order to restrain the 1st and 2nd Respondents, whether by themselves, or otherwise their representatives from convening, holding, conducting, facilitating or proceeding with the Annual General Meeting of the Kenya Hospital Association scheduled for 6th February 2026. 3. Thereafter the matter was handled in the said Division until 12th May 2026 when the Court directed that the same be transferred to the Commercial and Tax Division for directions as to the hearing and determination. According to the Court (Aburili, J.) the matter concerned the on-going governance issues at the Nairobi Hospital and several related matters were pending before the Commercial and Tax Division of the High Court. 4. On 16th June 2026 when the matter was mentioned before this Court, the 1st Petitioner raised an objection that case was in the wrong court and that there was nothing commercial in it. He contended that a similar attempt to have the matter transferred to this Division was rejected by Justice Lawrence Mugambi. 5. According to the 1st Petitioner, they would be comfortable that the case proceeds before the Constitutional and Human Rights Division of the High Court as the issues therein relate to grant of trust enjoyed by the Nairobi Hospital, an institution which has a public character. And more importantly, that was the reason the public entities including the 17th to 24th Respondents had been sued. The 1st Petitioner’s position was supported by the 2nd and 3rd Petitioners. 6. Most Respondents chose to await the directions of the Court as to which High Court Division was suited to hear and determine the petition. 7. Senior Counsel Ochieng Oduol submitted that the propriety on where the petition should be heard was an issue which ought to be addressed as a substantive issue upon a formal application being made. He further submitted that there is a governance issue at The Nairobi Hospital which need to be urgently attended to. 8. I hav e considered the record and the oral submissions of the Petitioners and counsel for the Respondents. The objection is grounded on the fact that the petition herein raises constitutional issues and there are no commercial interests. 9. No doubt under Article 165 of the Constitution, the High Court serves as a superior court with unlimited original jurisdiction in all civil and criminal matters. It holds authority to interpret the Constitution, enforce the Bill of Rights, supervise subordinate courts, and hear appeals from lower courts. 10. The administrative decision to create specialized units or divisions of the High Court is meant to accelerate case resolution. This allows judges to develop deep, subject-matter expertise, streamlining court procedures, and ensuring consistent, predictable rulings for the public and legal community. 11. In summary the Commercial and Tax Division of the High Court handles commercial contracts, insolvency, intellectual property, arbitration enforcement, and tax appeals. On the other hand, the Constitutional and Human Rights Division of the High Court handles matters regarding the interpretation of the Constitution and the enforcement of the Bill of Rights. It serves as a court of first instance for claims where fundamental freedoms and rights have been denied, violated, or threatened. 12. I am aware of a practice direction to congregate matters involving The Nairobi Hospital in the Commercial and Tax Division which has the bulk of such cases. The direction is meant to guard against the issuance of conflicting orders which would occasion confusion in an institution that is experiencing serious governance issues. 13. However, a glance at the reliefs sought by the petition shows that the petition is more about securing public rights and interests held by the Kenya Hospital Association under a public trust for the provision of healthcare services. I agree with the Petitioners that the petition is not about any monetary or commercial interests. 14. In the premises, I find that the proper Division of the High Court to handle this petition is the Constitutional and Human Rights Division and not this Court. 15. The petition is to be transferred back to the Constitutional and Human Rights Division of the High Court for hearing and determination. **RULING** delivered virtually, dated and signed at **NAIROBI** This **30th** day of **June** 2026. **PETER MULWA** **JUDGE** **In the presence of:** 1st Petitioner - *Sen. Okiya Omtatah Okoiti (in person)* *Mr. Mayiga* for 1st Respondent *Ms. Kwamboka & Mr. Ogejo* for 2nd – 8th & 13th Respondents *Ms. Mwaura* for 9th – 12th& 14th Respondents *Ms. Kinyua & Mr. Muganda* for 15th & 16th Respondents *Mr. Kagia* for 18th Respondent *Mr. Wambua* for 22nd Respondent Court Assistant*: Lispa*