Abh (a Minor Suing Through The Next Friend and Mother Awg) & 1 other v Maureen Mukami Gitari & 3 others

3. The plaintiff argued that the objection was misconceived as it did not meet the minimum threshold as set out in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696. 4. It was the plaintiff’s case that the jurisdiction of this court, under Article 165 of the Constitution is unlimited. The Plaintiffs further submitted that the Court can handle the case while the case at Kenya Medical Practitioners and Dentists Council (KMPDC) is pending. Reliance was placed on the case of Wanjiku (Suing as the next friend and mother to JM - A Minor) v Kenyatta National Hospital & 2 others [2024] KEHC 13661 (KLR). They maintained the position that the mandate of KMPDC is quasi criminal. The KMPDC is investigating the conduct of the 3rd Defendant. Among the orders to be given by KMPDC, award of damages is not among them. Analysis 5. This is a preliminary objection without any point of law. The first question relates to the fact that the plaintiff has not sought a determination on the question of liability. The question is not a point of law. Whatever the plaintiff wishes to seek, is within their discretion. It is not a question of law worth discussion. In any event, a cursory glance at the plaint, I note a full claim is properly before the court. In any case, an incomplete claim is not a basis for dismissing a suit for lack of jurisdiction. The vexing question, even of disturbing pleadings on such technical issues was discussed in the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR). In that case the court of appeal [CB Madan, CHE Miller, KD Potter] posited as follows: Per Lord Pearson in Drummond-Jackson V.B.M.A. (1970) 1 W.L.R. 688 at p. 696. "A cause of action is an act on the part of the defendant which gives the plaintiff his cause of complaint." Words and Phrases,Vol, 1 p. 228. There is some difficulty in affixing a precise meaning to the term reasonable cause of action1..... In point of law, and consequently in the view of a Court of justice, every cause of action is a reasonable cause. But; obviously some meaning must be assigned to the term 'reasonable'..... a pleading will not be struck out unless it is demurrable and something worse than demurrable." per Chitty J. in Republic of Peru v. Peruvian Guano Company, 36 Ch.Div. 489 at pp. 495 and 496. "It has been said more than once that the rule is only to be acted upon in plain and obvious cases, and, in my opinion, the jurisdiction should be exercised with extreme caution." per Swinfen Eady, L.J. in Moore v. Lawson and Another,/31 ff.L.lf. 418 at p. 419... 31 T.L.R. 418 at p. 419. "It is a very strong power indeed. Itis a power which, if it not be most carefully exercised, might conceivably lead a court to set aside an action in which there might really, after all, be a right, and in which the conduct of the defendant might be very wrong, and that of the plaintiff might be explicable in a reasonable way. Unless it is a very clear case indeed, I think the rule ought not to be acted upon...... Therefore, unless the case be absolutely clear, I do not think the statement of claim ought to be set aside as not showing a reasonable cause of action. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13665/eng@2025-09-30 2

page 2 of 10

6. The second aspect is a preliminary question of there being a disciplinary case. This point is moot since in hearing a preliminary objection, this court and the court below have the same jurisdiction. They proceed on an understanding that what is pleaded in the plaint is true. It is what the English common law used to call a demurrer. The locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors Ltd [1969] E.A. 696, made this pertinent observation. It said: “ The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way preliminary objection. The improper raising of points of preliminary objection does nothing but unnecessarily increases costs and, on occasion, confuses issues. This improper practice should stop". 7. In a Tanzanian case of Hammers Incorporation Co. Ltd Versus The Board Of Trustees Of The Cashewnut Industry Development Trust Fund, the Court of Appeal, (Rutakangwa, N. P. Kimaro and S. S. Kadage JJA), sitting in Dar es Salaam in their decision given on 17/9/2015 regretted that the practice of raising preliminary objection that was frowned upon by the court of appeal in Kampala in the Mukisa Biscuit case (Supra) still persists. They stated as doth: “ It was hoping against hope. We believe that had that Court survived to this day it would have issued a sterner warning. This is because the "improper practice" never stopped. Neither did it ebb away. On the contrary, it is on the increase. This forced the Full Bench of this Court in Karata Ernest & Others V The Attorney General, Civil Revision No. 10 of 2010 (unreported) to mildly urge all parties in judicial proceedings to pay heed to what was aptly pronounced in the Mukisa Biscuit case (supra). The late call appears to be falling on deaf ears as this ruling will demonstrate.” 8. In the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] eKLR, Justice Kiarie Waweru Kiarie, summarized the preliminary objection nicely as seen from two of the judges in Mukisa Biscuit Manufacturing Co. Ltd (supra): “ A preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969)EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say: ....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. At page701 paragraph B-C Sir Charles Newbold, P. added the following: A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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....” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13665/eng@2025-09-30 3

page 3 of 10

9. A Tanzania Court of Appeal sitting in Dar es Salaam, in Karata Ernest & Others vs Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30 (29 December 2010),( Luanda, J.A. , Ramadhani, C.J. , Rutakangwa, JJA), put the issue of preliminary objections in a more succinct manner: “ At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings. 10. Justice Prof J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro vs Mbaja [2005] eKLR: “ I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point. 11. It is therefore my view that a preliminary objection must be based on current law, and be factual in its Constitution. It cannot be based on disputed facts or facts requiring further enquiry. In determining a preliminary objection therefore only 3 documents are required in addition to the Constitution. The impugned law, the plaint and preliminary objection. If you have to refer to the defence, then the preliminary objection is untenable. 12. The fact that there are disciplinary proceedings pending is not a point of law but a matter of fact. They were not introduced or admitted in the plaint. Secondly, even if there were to be other proceedings, they must be introduced by way of an application for the court to know, if there are other proceedings. 13. Thirdly, even if the proceedings were continuing, these were disciplinary proceedings for professional misconduct, the discipline relates to peer review mechanism. Though they are not quasi criminal, they are related to the conduct falling short of what is required of a doctor or medical or dental practitioner. It is an enquiry on the medical or dental practitioner. 14. Whether the medical or dental practitioner is struck out, reprimanded or even suspended, the case has very limited outcome on the claim or breach of agreement. Even where there are criminal investigations of a criminal conduct of a medical or dental practitioner, the same does not stop the civil court hearing https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13665/eng@2025-09-30 4

page 4 of 10

the matter from proceeding in a civil court. Section 193A of the Criminal Procedure Code provides as follows: Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings. 15. The Section 20 of the Kenya Medical Practitioners and Dentists Act, Cap 253 provides as follows: 1. 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. 2. The Council may, or through a committee appointed for that purpose, inquire into any complaint of professional misconduct, malpractice or any breach of standards. 3. Upon an inquiry held by the Council to determine the complaint made under subsection (2), the person whose conduct is being inquired into shall be afforded an opportunity of being heard, either in person or through a representative. 4. For purposes of proceedings at any inquiry held under this section, the Council may administer oaths, enforce the attendance of witnesses and production of books and documents. 5. The Council shall regulate its own procedure in disciplinary proceedings. 6. Where after an inquiry, the Council determines that a person is guilty, the Council maya. issue a caution or reprimand in writing; b. direct a medical practitioner or dentist to undergo remedial training for a period not exceeding twelve months; c. direct the medical practitioner or dentist be placed on probation for a period not exceeding six months; d. suspend, withdraw or cancel the practising licence of a medical practitioner or dentist for a period not exceeding twelve months; e. suspend, withdraw or cancel the licence of a health institution or a section of the health institution for a period not exceeding twelve months; f. permanently remove the name of a medical practitioner or dentist from the registers under section 5(3); or g. in addition to the penalties stipulated in paragraphs (a), (b), (c), (d), (e) or (f), impose a fine which the Council deems appropriate in the circumstance. 7. A person or health institution whose licence has been withdrawn or cancelled under subsection (6), shall forthwith surrender the license to the Council. 8. A person or health institution whose name has been removed from the register under subsection (6)(f) shall forthwith surrender the registration certificate to the Council. 9. A person aggrieved by a decision of the Council made under subsection (6) may, within thirty days from the date of the decision of the Council, appeal to the High Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13665/eng@2025-09-30 5

page 5 of 10

10. 16. Notwithstanding the provisions of section 3A (5), the Council shall not remove the name of a person from the register under subsection (6) unless at least seven members of the Council are present in the inquiry. The relevancy of the section to the proceedings herein is still at large. I am in agreement with the decision of my sister, T. W. Ouya J as cited by the Plaintiff, in Wanjiku (Suing as the next friend and mother to JM - A Minor) v Kenyatta National Hospital & 2 others [2024] KEHC 13661 (KLR), where she stated as follows: Upon consideration of the provisions referenced hereinabove as relates to The Act, it is clear that the same become applicable in instances where a party wishes to pursue disciplinary proceedings against a medical practitioner. In the present instance; however; and contrary to the averments being brought forth by the Respondents, the Appellant’s claim against the Respondents is in the nature of a tort rather than the disciplinary process applicable under Section 20(1) and (2) (supra). Moreover, the reliefs being sought in the Appellant’s plaint which are in the nature of damages, do not fall within the ambit of reliefs listed and/or awardable under Section 20(6) (supra) or at all in the Act. In finding so, the court is persuaded by the court’s decision in the case of OZA (Minor suing through mother and next friend), Nana Ou & Robert Ouma v David Oluoch Olunya & Kenya Hospital Association t/a Nairobi Hospital [2021] KEHC 6732 (KLR) cited on appeal by the Appellant, thus: “ ...Therefore, the investigation and determination of the Council would not effectively settle the dispute before this court since the Plaintiffs/Respondents are seeking damages from the Defendants jointly and severally, which orders and directions the Medical Practitioners and Dentists Council cannot issue. It follows then that to transfer the dispute herein to the Medical Practitioners and Dentists Council for investigation will delay its hearing and determination before the court. The provisions of Cap 253 do not establish a dispute resolution mechanism which awards damages to complainants against members of the medical profession. The mechanism established under the Act and its Rules ultimately leads to sanctions against a member who is found culpable as provided under Rule 4A (3).” 17. Therefore, pendency of a disciplinary inquiry with a view to dealing with professional misconduct has no bearing on the filing of the civil case claiming for damages. This preliminary objection is a cry for the law schools to emphasise the lamentation injunctions given in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 (E.A.C.A.), where the court of appeal for the former Eastern Africa [Law JA, Newbold P, Duffus JA] per, Sir Charles Nebbold, P, made this pertinent observation: The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way preliminary objection. The improper raising of points of preliminary objection does nothing but unnecessarily increases costs and, on occasion, confuses issues. This improper practice should stop. 18. The problem of this preliminary objection appears more systemic than sporadic. A preliminary objection must not deal with disputed facts or require evidence to be ascertained. Assuming it is true that the pendency of a disciplinary proceedings were true in fact, how will a court hearing a preliminary objection deal with that fact without breaching rules governing a preliminary objection. Which point of law arises from proceedings that may or may not be pending elsewhere? The court must and should proceed on the basis that the facts stated in the plaint are true. Nowhere in the plaint is evidence of the status of the disciplinary proceedings set out. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13665/eng@2025-09-30 6

page 6 of 10

19. The court is aware that it cannot by itself, take away the jurisdiction it has or take up jurisdiction it does not have. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the supreme court stated as doth: “ This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the Constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 20. The court will therefore assume jurisdiction where it has and eschew jurisdiction where none exists. The effect of lack of jurisdiction is to down tools. Where there is jurisdiction, the court must hear the case. In the case of In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA, as he then was stated as doth; “ With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. 21. What then is the jurisdiction of this court? The jurisdiction is defined in Article 165 of the Constitution as follows: 1. There is established the High Court, whicha. shall consist of the number of judges prescribed by an Act of Parliament; and b. shall be organised and administered in the manner prescribed by an Act of Parliament. 2. There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves. 3. Subject to clause (5), the High Court shall have- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13665/eng@2025-09-30 7

page 7 of 10

a. unlimited original jurisdiction in criminal and civil matters; b. jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; c. jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144. d. jurisdiction to hear any question respecting the interpretation of this Constitution including the determination ofa. The question whether any law is inconsistent with or in contravention of this Constitution; b. The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution; c. Any matter relating to Constitutional powers of State organs in respect of county governments and any matter relating to the Constitutional relationship between the levels of government; and d. A question relating to conflict of laws under Article 191; and e. any other jurisdiction, original or appellate, conferred on it by legislation. 4. Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice. 5. The High Court shall not have jurisdiction in respect of mattersa. reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or b. falling within the jurisdiction of the courts contemplated in Article 162(2). 6. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. 7. For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. 22. The jurisdiction of the High Court is original, unlimited and also residual. To state that the High Court has no jurisdiction, you must point out a court having jurisdiction. In most cases, it is the Supreme Court, and courts of equal status. The jurisdiction is not ousted by a disciplinary mechanism. It will be different if the doctor is challenging the decision of the KMPDC. In this case, the plaintiffs are not subject to the jurisdiction of KMPDC. Their recourse for damages is this court. 23. This court’s jurisdiction extends to the breadth of the entire territory of Kenya from South of Diua Damasciaca Island and Kiungamwina Island, through to Ras Jimbo, the entire territorial waters and exclusive economic zone waters parts of Lake Victoria and all the land of Kenya all the way to the Elmi triangle in north western Kenya and to El Wak and Mandera to the North Eastern part. There is https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13665/eng@2025-09-30 8

page 8 of 10

nothing in the case ousting the jurisdiction of the High Court of Kenya. The High Court shall hear the case and make determination as it should while the KMPDC should make its decision as it should. The two processes are parallel to each other and one does not subsume the other. 24. 25. In the end, the preliminary objection is misconceived and is accordingly dismissed. The next question is costs. The issue of costs is governed by Section 27 of the Civil Procedure Act, which provides as follows: (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 26. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: 18] 27. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs, that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The defendant raised a baseless objection meant not to achieve anything, but only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs. For the foregoing, a sum of Ksh. 20,000/= will suffice. This amount is an adequate deterrence to forestall any resort to chicanery, duplicity, subterfuge or other stratagems aimed at thwarting the cause of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13665/eng@2025-09-30 9

page 9 of 10

28. The 4th Defendant did not participate in the preliminary objection, saying they had no dog in the fight and wisely so. They shall neither have a bone or a cane. Consequently, they shall bear their own costs. 29. Directions on the main suit will be issued shortly. Determination 30. In the circumstances, I make the following orders: a. The preliminary objection dated 4.4.2025 lacks merit and is accordingly dismissed. b. The plaintiff shall have costs of Ksh. 20,000/= payable within 30 days, in default execution to issue. c. The matter shall proceed for directions on Pretrial Conference after the ruling. d. The other defendants shall bear their own costs. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 30TH DAY OF SEPTEMBER, 2025. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Mr. Waweru Macharia for the Plaintiff No appearance for the 1st and 2nd Defendants Ms. Ndeto for the 3rd Defendant Mr. Ochieng for the 4th Defendant Court Assistant – Michael https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13665/eng@2025-09-30 10

page 10 of 10