[2020] KEHC 5417 (KLR)
The court held that the provisions of Section 20 of the Medical Practitioners and Dentists Act and the related disciplinary rules do not oust the jurisdiction of the High Court to hear and determine claims for damages arising from alleged medical negligence. The court found that the preliminary objection raised by...
Source-derived case information.
- Citation
- [2020] KEHC 5417 (KLR)
- Parties
- Plaintiff: Peterson Mwangi; Defendant: Marie Stopes Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 125 of 2014
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- BT Jaden
- Legal Topics
- Medical Negligence, Preliminary Objection, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peterson Mwangi
Plaintiff
Marie Stopes Kenya
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine a claim for medical negligence in light of Section 20 of the Medical Practitioners and Dentists Act and related rules.
- 2 Whether the provisions cited by the defendant oust the jurisdiction of the court.
Ratio Decidendi
The court held that the provisions of Section 20 of the Medical Practitioners and Dentists Act and the related disciplinary rules do not oust the jurisdiction of the High Court to hear and determine claims for damages arising from alleged medical negligence. The court found that the preliminary objection raised by the defendant did not meet the threshold for a pure point of law, as the facts in the case were disputed and yet to be ascertained. Consequently, the preliminary objection could not be upheld and was dismissed with costs to the plaintiff.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO.125 OF 2014
PETERSON MWANGI..................PLAINTIFF
VERSUS
MARIE STOPES KENYA.........DEFENDANT
RULING
1. The Plaintiff herein instituted this suit against the Defendant claiming damages for alleged medical negligence. The Defendant filed Preliminary Objection dated 7th July, 2014 on the grounds that this honourable court has no jurisdiction to hear and determine this case with particular reference to Section 20 of the Medical Practitioners and Dentists Act, Cap 253 laws of Kenya and Rule 5 of the Medical Practitioners and Dentists (Disciplinary proceedings) (Procedure) Rules.
2. The Preliminary Objection was canvassed by way of written submissions which I have considered.
3. Section 20 (1) of the Medical Practitioners and Dentists Act cap 253 Laws of Kenya provides for disciplinary proceedings: Section 20 (1) provides as follows:
“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 counsel.”
4. Rules 5 of the Medical Practitioners and Dentists Act (Disciplinary proceedings) provides for disciplinary proceedings.
5. There is nothing in the said provisions that ousts the jurisdiction of this court.
6. As stated in the celebrated case of Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors (1969) EA 696:
“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
Sir Charles Newbold P. added as follows at page 701:
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
7. It is submitted by the Defendant’s counsel that Cap 253 of the Laws of Kenya gives the medical Practitioners and Dentists Board the statutory duty to carry out inquiries in cases involving Medical Practitioners and dentists. The Defendant relied on the case of Dr. JagdishSonigra v Medical Practitioners and Dentists Board & 2 other [2008] eKLRwhere it was held, inter alia, that the said Board had the duty to carry out inquiries to keep it’s professionals in check. The court then proceeded to hold that it could not stop the inquiry.
8. In the case at hand, whether the Plaintiff will discharge the burden of proof is a question of facts. The facts herein are in dispute and are yet to be ascertained. The preliminary objection herein cannot therefore be upheld.
9. With the foregoing, the Preliminary Objection is dismissed with costs.
Date, signed and delivered at Nairobi this 29thday of May, 2020
B. THURANIRA JADEN
JUDGE