Peoples Movement For Human Rights v Bomu Hospital & 1 other

4. On or around 22 March 2021, the petitioner wrote to the 1st respondent, seeking, among other things, the details of the patients and the doctors who treated them. The petitioner, in particular, sought for information relating to the doctors’ professional qualifications. 5. It is alleged that in a scheme to cover up the respondents’ misconduct, the 1st respondent declined to provide the victims with the medical records for fear of being sued for medical negligence. The petitioner therefore wants this honourable court to compel the respondents to provide the information required. 6. The respondents opposed the petition and filed replying affidavits to that effect. Besides the replying affidavit, the 1st respondent also filed a preliminary objection objecting to the petition. The preliminary objection is on the grounds; that, the petitioner is a non-existent entity in law, thus lacks the locus standi to institute the petition against the respondent; that, there is no lawful basis for maintaining the petition filed by a non-existent entity as against the 1st respondent; and, that the entire petition is therefore incompetent, unsustainable, and an abuse of the Court process and ought to be dismissed. 7. Dr. Aabid Ahmed swore a replying affidavit on behalf of the 1st respondent and stated that he is the 1st respondent’s chief executive officer. He also swore that the 1st respondent is a social enterprise located in Mombasa whose purpose is to provide access to quality healthcare for all who need it, regardless of their economic status. It is licensed by the Kenya Medical Practitioners and Dentists Council pursuant to provisions of the Medical Practitioners and Dentist Act, cap. 253. 8. The 1st respondent established that contrary to the petitioner’s assertion, the petitioner is neither a nongovernmental organisation registered in Kenya nor a trust incorporated under the Trustees Perpetual Succession Act, cap. 164.The petitioner is said to be a non-existent entity in law and thus lacks the requisite locus standi to institute and maintain the present proceedings. There is no lawful basis for maintaining the petition filed by a non-existent entity against the respondent. 9. Dr. Ahmed has also sworn that the 1st respondent provides a wide array of medical services, including an outpatient department which has specialized clinics, an antenatal centre, a family planning, and reproductive health unit,and also offers diagnostic and therapeutic departments. However, ophthalmology services are not offered by the respondent, and there is no ophthalmologist or equipment available for patients requiring specialist eye care or treatment, including cataract assessment, cataract surgery and post-operative eye care. 10. Sometime in October 2020, the 1st respondent was approached by the Centres for Health and Education Programmes (CHEPs), a Non-Governmental Organisation (NGO) registered under section 10 of the Non-Governmental Organizations Co-ordination Act, Act No. 19 of 1990, to organise a medical camp. This camp was specifically intended to serve underprivileged patients afflicted with cataracts, with the objective of performing cataract surgeries as well as other surgical ophthalmic procedures. 11. CHEPs needed the 1st respondent's facilities to mobilise, screen, and schedule needy patients for cataract and other surgical ophthalmic procedures. Specifically, CHEPs would send its surgeons to perform the surgeries at the respondent's facility. Accordingly, the respondent’s involvement in the medical camp would be limited to providing screening and operating space within its premises as well as accommodation, meals, and transportation assistance for the surgeons from CHEPs. On the other hand, the program would be run by CHEPs who would provide equipment and medical expertise to carry out comprehensive diagnostic services and specialised treatment of patients, including cataracts surgeries as well as post-operative eye care. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18808/eng@2025-10-13 2

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12. Between the 13ᵗʰ day to 17ᵗʰ day of March 2023, several patients underwent screening at the respondent's clinics located in Changamwe, Alwalidayn, Timboni, Old Town, Wema, Mariakani, and Likoni. The screening process was overseen by Dr. Hassan, an ophthalmic clinical officer from the Coast Province General Hospital (CPGH) who was contracted by CHEPs. Upon completion of the screenings, Dr. Hassan compiled a list of patients deemed eligible for cataract surgery. 13. Between the 18ᵗʰ day to the 20ᵗʰ day of March 2023, CHEPs conducted cataract surgeries on twentynine patients at the 1st respondent’s facility. The surgeries are said to have been successful with seven patients experiencing complications following the procedure. CHEPS was meant to assist with post operative eye care. The allegations by the petitioner that eye surgery was performed on one hundred patients by the 1st respondent and that the same was done unprofessionally as a result of most of the patients ended up blind is not true. 14. It has been sworn on behalf of the 1st respondent that in the medical profession, it is not uncommon for patients undergoing cataract surgery to encounter complications, which can occasionally result in severe outcomes, including loss of vision. Such occurrences are not necessarily indicative of the surgeon's lack of professionalism or competence. As a matter of fact, despite meticulous surgical techniques and comprehensive pre-operative evaluations, unforeseen factors such as underlying health conditions can contribute to post-operative complications. 15. As far as the medical records are concerned, it has been sworn that contrary to the assertion by the petitioner, the 1st respondent has not received any requests from patients operated at its premises to provide them with medical reports following the medical camp. In, particular, the respondent did not receive the petitioner’s letter purportedly dated 7 August 2023 that is alleged to have been requesting for certain information. 16. As for the legal standing of the petitioner, it has been sworn on behalf of the 1st respondent that, Karanja Murai asserts that the petition is submitted on his own behalf and that of five other petitioners yet the alleged five petitioners have neither been named nor identified in the petition. Further, the petitioner has not furnished any evidence demonstrating authorisation from the purported “five (5) other petitioners” to initiate legal proceedings. There is also no evidence that the patients attended to during the medical camp have authorised the disclosure of their personal and, no doubt, confidential data. 17. According to the deponent, the unwarranted disclosure of the data held by the petitioner regarding patients attended to in their premises, without prior authorization or consent of the data subjects, would amount to breach of the right to privacy thus exposing the 1st respondent to possible penalties and sanctions under the provisions of the Data Protection Act and related legislation. 18. In any event, and to the extent that the petitioner seeks disclosure of full names and particulars of the patients who underwent surgery between 18 May and 20 May 2023, and noting that the petitioner has filed the instant petition, allegedly to represent the interest of the said patients, the petitioner could still obtain the names and requested details directly from the patients it claims to represent, without requiring the 1st respondent's assistance. 19. The doctors who performed the cataract surgeries together with the theatre staff were not employees of the 1st respondent but were brought by CHEPs who were in charge of conducting the eye surgeries. The 1st respondent is, therefore, not the right party to provide the particulars and registration certificates of the doctors involved in the surgeries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18808/eng@2025-10-13 3

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20. The 2nd respondent’s affidavit was sworn by Muhsin Habib Sherrif who deposed that he is the 2nd respondent’s chief executive officer. Like the 1st respondent, Sherrif has denied that the petitioner is a registered non-governmental organisation. 21. Sherrif has also sworn that the 2nd respondent regularly conducts eye camps in conjunction with partner institutions- an exercise that involves screening and mobilisation of needy patients for cataract and other surgical ophthalmic procedures at zero charges. Under this arrangement, the 2nd respondent has conducted 13,911 eye surgeries in various parts of the country. All these surgeries were conducted successfully making the impact on the ground visible. 22. From the 18th day to the 20th day of March 2023, the 1st respondent provided its facilities to the 2nd respondent to perform eye cataract surgeries for 31 patients only. The 2nd respondent’s team took all the necessary precautions to prevent infections and to ensure safety of all patients. The surgeries were conducted professionally and successfully. The 2nd respondent is not aware of any case where a patient has become permanently blind following the eye surgeries that were conducted on the material days. 23. The 2nd respondent has also denied declining to supply information relating to the eye surgeries that were performed at the 1st respondent’s facility at the material period. It has denied having been served with any demand letter for such information. 24. The record shows that on 4 March 2024, the court directed that both the petition and the preliminary objection be disposed of together by way of written submissions. However, the petitioner did not file any submissions in respect of the petition or the preliminary objection. 25. Rule 27(2) the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 says that a determination on the petition shall be made after the parties have been heard. It reads as follows: 27. (2) 26. The Court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effects of that decision. (Emphasis added). According to rule 20 of the same rules, the “hearing” may take the form of affidavits, written submissions or oral evidence. The rule reads as follows: 20. (1) The hearing of the petition shall, unless the Court otherwise directs, be by way of— (a) affidavits; (b) written submissions; or (c) oral evidence. 27. In this particular petition, the court was specific that the petition be heard by way of written submissions. Without the petitioner’s submissions, the court is entitled to proceed on the assumption that the petitioner did not prosecute its petition and, on that score alone, the petition ought to be dismissed for want of prosecution. 28. That said, I must mention at the very outset that the petition appears to be misconceived. It is misconceived because although the petitioner is purportedly seeking to obtain information from the respondents, no reason has been given why it has not invoked the provisions of the Access to Information https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18808/eng@2025-10-13 4

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Act, cap. 7 M in its quest. The preamble to this Act is clear that it is “an Act of Parliament to give effect to Article 35 of the Constitution.” 29. Section 8 of the Act provides that an application to access information must be made in writing to an information access officer who, under section 9 of the Act shall process the application and make a decision which he is to communicate to the applicant for the information, indicating: “ (a) whether or not the public entity or private body holds the information sought; (b) whether the request for information is approved: (c) if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and (d) if the request is declined, a statement about how the requester may appeal to the Commission; (see section 9(4) 30. According to section 9(6) of the Act, where a response to an application is not given within the prescribed time, the application is deemed to have been rejected. Where a decision is made that the information should be provided, the applicant is informed accordingly and whether any payment of fees should be made before the information is accessed. 31. Where access is denied, an applicant may apply to the Commission on Administrative Justice established by section 3 of the Commission on Administrative Justice Act cap. 7J, for review of the decision under section 14. According to section 23(2) the Commission may also order release of any information unlawfully withheld and any person dissatisfied with that order may appeal to this Honourable Court. 32. I have not found any reason in the petition why the petitioner chose to sidestep the provisions of the Access to Information Act in its quest to access the information it is seeking from the respondents. It is for this reason that I hold that the petition is misconceived. 33. While reiterating that where there is another basis for determination of a dispute, that basis should be invoked rather than file a constitutional petition, the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment) held that: “ “ (256) The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]: I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” (Emphasis added). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18808/eng@2025-10-13 5

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34. The Supreme Court then referred to a United States decision in which the conditions under which the doctrine of constitutional avoidance may be applied were outlined and held as follows: “ (257) Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936))”. 35. Taking cue from these decisions, I hold the view that the matter before court could have been properly disposed of on another basis and not through a constitutional petition. 36. Having so held, the question whether the petitioner has standing is as good as moot. But if I have to say anything about it, I reiterate a constitutional petition can only be filed by a defined person, an organisation or an association. Such is the essence of rule 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which reads as follows: 4. Contravention of rights or fundamental freedoms (1) Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules. (2) In addition to a person acting in their own interest, court proceedings under sub rule (1) may be instituted by— (i) a person acting on behalf of another person who cannot act in their own name; (ii) a person acting as a member of, or in the interest of, a group or class of persons; (iii) a person acting in the public interest; or (iv) an association acting in the interest of one or more of its members. 37. In the wake of this provision of the law, the burden on the petitioner was to demonstrate that it falls under any of the foregoing categories of persons or association. The question raised by the 1st respondent’s preliminary objection is whether it did. 38. In the petition, the description given to the petition is as follows: “ The petitioners are human rights activists. Their address of service for the purposes of this Petition is C/0 P.O.BOX 535-80100 MOMBASA.” 39. It is obvious here that although the named petitioner is some sort of association or organisation the description of the petitioner given in the petition is not of such an association or organisation. 40. Yet in the affidavit sworn by one Karanja Murai in support of the petition, the deponent describes himself as one of the five petitioners. To quote him; “ 1. That I am male adult of herein and one of the petitioners herein thus competent to swear this affidavit. 2. That I swear this affidavit on my own behalf and on behalf of the other five (5) Petitioners.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18808/eng@2025-10-13 6

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41. But only one petitioner is named and, as I have noted, even the named petitioner is not a human being capable of swearing an affidavit and neither has it been demonstrated that it is a legal person. Although Murai says that he is one of the petitioners, he is not, in any event, named in the petition as a petitioner. 42. To compound matters even further, in an affidavit sworn by Murai on 16 September 2024 in support of the application for amendment of the petition, he has sworn that he is “the executive director of the petitioner/applicant”. 43. By its letter dated 11 January2024, a copy of which is exhibited to the affidavit of Dr. Aabid Ahmed, the Non-Governmental Organisations Co-ordination Board denied that the petitioner is a registered Non-Governmental Organisation. 44. Against this background, there is no evidence that the entity purportedly named as the petitioner in this petition is a person of any sort, an organisation or an association. The purported petitioner does not fit into any of the categories of potential litigants described in rule 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 45. Thus, besides the petition being misconceived, the purported petitioner is non-entity. Inevitably, the only decision open to me is to strike out the petition. It is hereby struck out with costs to be borne by the deponent of the affidavit purportedly sworn in support of the petition. Orders accordingly. SIGNED, DATED AND DELIVERED ON 13 OCTOBER 2025 NGAAH JAIRUS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18808/eng@2025-10-13 7

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