Bok (suing As Next Friend of Mao, Minor) v Homa Bay County Teaching & Referral Hospital & 5 others

RULING 1. 2. This Petition was filed on behalf of a minor, M A O, for the vindication of alleged violations and threatened violations of the minor’s constitutional rights to education, healthcare, access to justice, fair hearing and fundamental freedom from discrimination, among others. In response to the Petition, the 1st and 2nd respondents filed a Notice of Preliminary Objection dated 20th May 2025, contending that: (a) This Court is devoid of jurisdiction to entertain the present Petition, as it fails to disclose a justiciable constitutional issue and instead pertains to a dispute that properly falls within the ambit of statutory dispute resolution mechanisms expressly provided for under relevant laws. (b) The Petition offends the doctrine of constitutional avoidance, which counsels that constitutional interpretation should not be undertaken where an alternative statutory or administrative framework exists and remains unexhausted. (c) The Petition is premature, incompetent and offends the doctrine of exhaustion, having been instituted without the petitioner first invoking or exhausting the statutory dispute resolution mechanisms available under the Public Health Act, the Kenya Medical Practitioners and Dentists Act, and the Independent Policing Oversight Authority Act. (d) The Petition improperly seeks to constitutionalize a private dispute sounding in tort, particularly one grounded in allegations of medical negligence and professional malpractice, which fall squarely within the jurisdiction of ordinary civil courts and professional regulatory bodies. (e) The allegations of medical negligence levelled against the 2nd respondent, being a licensed medical practitioner, fall squarely within the jurisdiction of the Kenya Medical Practitioners and Dentists Council (KMPDC), whose disciplinary mechanisms are expressly provided for under Section 20 of the Medical Practitioners and Dentists Act. (f) In the alternative, the alleged acts or omissions of the 2nd respondent, if at all actionable, are properly justiciable as a civil claim in tort for professional negligence before a subordinate court of competent jurisdiction, and not through constitutional litigation. (g) The allegations of police inaction and/or misconduct as pleaded in the Petition ought, in the first instance, to be subjected to investigation and determination under the statutory framework of the Independent Policing Oversight Authority (IPOA) and do not of themselves confer immediate jurisdiction upon this Court. (h) The Petition is fatally defective for want of specificity, coherence, and legal foundation and fails to disclose a reasonable constitutional cause of action against the 1st and 2nd respondents. (i) No direct or actionable constitutional breach has been pleaded against the 1st, 2nd and 6th respondents. The continued inclusion of the said respondents is therefore unwarranted, vexatious, and amounts to an abuse of court process. In view of the foregoing, the 1st and 2nd respondents prayed that this Court be pleased to strike out the Petition in its entirety with costs for being premature, untenable in law, and a gross and manifest abuse of the due process of the Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4157/eng@2026-03-12 2

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3. Directions were given on the 16th June 2025 for the disposal of the Preliminary Objection by way of written submissions. Accordingly, the 1st and 2nd respondents (hereinafter, “the respondents”) relied on their written submissions dated 24th September 2025. Their main argument was that the Petition is incompetent for want of jurisdiction; and therefore ought to be struck out in its entirety. They relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd 1969 EA 696, and submitted that their Preliminary Objection raises jurisdictional and constitutional questions which, if upheld, is capable of disposing of the entire Petition without the necessity of calling evidence or interrogating contested facts. 4. Accordingly, the respondents proposed the following issues for determination: (a) Whether the Petition discloses any justiciable constitutional issue capable of invoking the constitutional jurisdiction of this Court. (b) Whether this Court has jurisdiction to entertain the Petition in light of the doctrines of constitutional avoidance and exhaustion of statutory remedies. (c) Whether the Petition improperly constitutionalizes a private dispute and is premature for failure to exhaust statutory and ordinary civil remedies. (d) Whether, in the circumstances of this case, the continued inclusion of the 1st respondent is unwarranted, vexatious, and amounts to an abuse of the court process. 5. On whether the petition discloses any justiciable constitutional issues, the respondents submitted that the threshold question in this Petition is whether it discloses a real, precise, and justiciable constitutional issue capable of invoking the constitutional jurisdiction of this Court. They contended that the mere citation of constitutional provisions does not, of itself, elevate an ordinary dispute into a constitutional cause of action. They added that constitutional litigation demands a higher pleading standard; and that a petitioner must demonstrate with reasonable precision the specific constitutional provisions allegedly violated, the manner of such violation, and the nexus between the impugned acts or omissions and the alleged constitutional infringement. In support of their arguments, the respondents relied on Anarita Karimi Njeru v Republic 1979 eKLR as reaffirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others 2013 eKLR. 6. According to the respondents, the petitioner merely cited multiple provisions of the Constitution, including Articles 25, 27, 28, 43, 48, 50, and 53, but failed to plead with clarity and precision how the actions of the 1st and 2nd respondents amount to distinct constitutional violations, as opposed to alleged negligence or professional error. They cited the case of Harrikissoon v Attorney General of Trinidad and Tobago 1980 AC 265, in which the Privy Council cautioned that constitutional relief should not be used as a general substitute for ordinary remedies. 7. Without prejudice to the foregoing, the 1st respondent submitted that its role in the matters complained of was purely institutional and administrative, being the employer of the 2nd respondent and the custodian of a public health facility. With respect to the 2nd respondent, it was argued that he is a licensed medical practitioner, whose professional conduct is regulated by the Medical Practitioners and Dentists Act and attendant regulations; and that the actions complained of were undertaken in the course of professional duty and therefore fall squarely within the realm of medical judgment and statutory professional regulation; not constitutional adjudication. 8. Hence, the 1st and 2nd respondents were of the conviction that the Petition does not meet the constitutional threshold and therefore ought to be struck out on that account alone. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4157/eng@2026-03-12 3

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9. The respondents further submitted, on the authority of Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others 2014 eKLR, that where a matter can be resolved on another legal basis, the same should not be converted into a constitutional issue. In the same vein, they submitted that litigants are duty bound to first pursue and exhaust available statutory remedies before approaching the courts. They relied on Speaker of the National Assembly v James Njenga Karume 1992 eKLR and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others 2015 eKLR for the proposition that courts ought to be fora of last resort, and that parties must exhaust alternative dispute resolution mechanisms before seeking judicial intervention. 10. The respondents enumerated the alternative dispute resolution mechanisms that were available to the petitioner for exhaustion as hereunder: (a) The disciplinary and regulatory framework under the Medical Practitioners and Dentists Act, administered by the Kenya Medical Practitioners and Dentists Council; (b) The complaints and investigative mechanism established under the Independent Policing Oversight Authority Act in respect of alleged police inaction or misconduct; and (c) The ordinary civil jurisdiction of the courts for claims sounding in medical negligence or vicarious liability in tort. 11. In the respondents’ submission, to allow such litigation as the present would further open the fioodgates for the constitutionalization of ordinary professional, administrative, and tortious disputes, thereby trivializing constitutional remedies and overburdening the constitutional jurisdiction of the Court. They prayed that the Petition be struck out with costs. 12. In response to the respondents’ submissions, the petitioner filed written submissions dated 21st September 2025. They were in agreement as to the issues for determination, namely: (a) Whether the Petition discloses justiciable constitutional issues that fall within the jurisdiction of this Court. (b) Whether the Petition offends the doctrine of Constitutional avoidance. (c) Whether the Petition offends the doctrine of exhaustion. (d) Whether the Petition is grounded on principles of tort and not constitutional values and principles. 13. It was the submission of the petitioner that their Petition discloses justiciable constitutional issues that fall within the jurisdiction of this Court. They pointed out that the Petition not only mentions the constitutional provisions that were violated but also the specific manner in which they were violated by the 1st and 2nd respondents and was therefore in accord with the principle laid down in the case of Anarita Karimi Njeru v Republic 1979 KECA 12 (KLR). They also relied on Articles 22, 23 and 165(3) of the Constitution and urged the Court to find that the Petition was pleaded with the requisite precision. 14. In response to the respondents’ contention that there are alternative dispute resolutions available which ought to have been exhausted first, the petitioner submitted that the alternatives proposed by the respondents involve disciplinary mechanisms which are incapable of addressing the pertinent issues raised in the Petition. By way of example, the petitioner pointed out that Section 20 of the Medical Practitioners and Dentists Act simply provides for the disciplinary proceedings and the recourse https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4157/eng@2026-03-12 4

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applicable in the event of professional misconduct, malpractice or breach of standards. He submitted that the fora suggested by the respondents cannot grant the reliefs sought by the petitioner. 15. In the same vein, the petitioner submitted, on the authority of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) (Mombasa High Court constitutional petition No. 159 of 2018 consolidated with constitutional petition No. 201 of 2019), that the doctrine of exhaustion is subject to certain exceptions; and that the acts complained of herein bring this Petition within the strictures of those exceptions. Consequently, he submitted that the that the Petition is indeed before the right forum and therefore ought to be heard and determined on the merits. 16. What amounts to a preliminary objection was aptly captured in Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors 1969 EA 696 thus: …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...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…” 17. Similarly, in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others 2015 eKLR the Supreme Court emphasized the point that: ...a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record…” 18. The petitioner purported to file a Replying Affidavit sworn by him on 21st September 2025 in response to the Preliminary Objection filed by the 1st and 2nd respondents. The averments therein must be ignored entirely. In Oraro v Mbaja 2005 1 KLR 141, Hon. Ojwang, J. (as he then was) held that: ...A "preliminary objection" correctly understood, is now well defined as, and declared to be, a 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, 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...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..." 19. I have therefore confined my consideration to the grounds raised in the Notice of Preliminary Objection dated 20th May 2025 and the written submissions filed in that regard by counsel. The Petition has been impugned on the following grounds: (a) Whether it was pleaded with the requisite specificity; (b) Whether the petitioners violated the doctrine of avoidance; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4157/eng@2026-03-12 5

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(c) Whether the Petition is premature on account of failure by the petitioners to exhaust the alternative dispute resolution mechanisms available. A. On the Requirement for Specificity: 20. In the case of Anarita Karimi Njeru v Republic 1979 1 KLR 154 it was held that: …if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 21. The principle was reiterated by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others 2013 eKLR as follows: …the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today: “The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.” 22 And, in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others 2014 eKLR, the Supreme Court restated the position as follows: 34… 23. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…” Therefore, it is now trite that a person who alleges a violation of any constitutional right or freedom must plead such alleged violation with a reasonable degree of specificity. I have looked at the Petition dated 22nd April 2023 and noted that the petitioner has not only set out the provisions of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4157/eng@2026-03-12 6

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Constitution alleged to have been violated by the respondents at paragraphs 21 to 25 of the Petition, but that also supplied background information and the facts of the case at paragraphs 7 to 20. I am therefore satisfied that the Petition was drawn with sufficient specificity for purposes of Anarita Karimi Njeru v Republic (supra). B. On the Doctrines of Constitutional Avoidance and ripeness: 24. In the case of K K B v S C M & 5 others (Constitutional Petition 014 of 2020) 2022 KEHC 289 (KLR) (22 April 2022) (Ruling), Hon. Mativo, J. (as he then was) expressed himself on the doctrine or ripeness as hereunder: In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause…” 25. Similarly, in the case of Faraj & 3 others v Police & 2 others (Constitutional Petition 165 of 2020) 2022 KEHC 287 (KLR) (27 April 2022) (Judgment) the court held: 27. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.” … 29. 26. The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common-law remedies are part of the legal system…” The Supreme Court also had occasion to express itself on the doctrine in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others 2014 eKLR (29th September 2014) (Judgment). It held that: (256) …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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4157/eng@2026-03-12 7

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(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)). 27. In this instance, the respondents submitted that there are alternative dispute resolution mechanisms provided for under the Medical Practitioners and Dentists Act, administered by the Kenya Medical Practitioners and Dentists Council and the Independent Policing Oversight Authority Act. I have given due consideration to the provisions in question and find that they do not resonate well with the petitioner’s case as pleaded herein. For instance, Section 20 of the Medical Practitioners and Dentists Act states: (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. … (6) 30 . Where after an inquiry, the Council determines that a person is guilty, the Council may— (a) 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 practicing license of a medical practitioner or dentist for a period not exceeding twelve months; (e) suspend, withdraw or cancel the license 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.” Clearly, the reliefs sought in the present do not fall within the range of reliefs envisaged by Section 20 of the Medical Practitioners and Dentists Act. The same can be said of the Independent Policing Oversight Authority Act. It cannot therefore be said that the petitioner’s grievance could have been conclusively handled under the above provisions. C. On the Doctrine of Exhaustion: 31 . The principle was reiterated in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) 2020 eKLR, as follows: 52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4157/eng@2026-03-12 8

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outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution…” 32. The same argument was presented in support of this limb of the respondents’ Preliminary Objection. In Geoffrey Muthinja Kabiru & Others v Samuel Muguna Henry & 1756 others 2015 eKLR, the Court of Appeal made it clear that: It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 33. Nevertheless, it is also trite that there are exceptions to the rule. For instance, in National Assembly of Kenya v Kina & another (Civil Appeal 166 of 2019) 2022 KECA 548 (KLR) (10 June 2022) (Judgment), the Court of Appeal held: …On exhaustion of other legal relief or other constitutional remedies, where an alternative remedy would entail delay or uncertainty in providing a remedy, then such an alternative remedy is not available or effective and the doctrine of exhaustion does not apply. In addition, when the constitutionality of a statute is legitimately challenged, the only available remedy is to urge the court to nullify the offending provisions…” 34. Similarly, in Kenya Ports Authority v Threeways Shipping Services (K) Ltd 2019 eKLR, the Court of Appeal held (at paragraph 30) that: …We also bear in mind that access to justice as enshrined in Article 48 of the Constitution is a fundamental right, that cannot be derogated from. Whereas Alternative Dispute Resolution (ADR), such as arbitration, is crucial in expeditious disposal of disputes, by its very nature ADR is inferior to the principle of access to justice...” 35. The same positon was taken in Mohamed Ali Baadi and others v Attorney General & 11 others 2018 eKLR: While our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute (See The Speaker of National Assembly vs James Njenga Karume {1992} KLR 21 ), the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. Thus, in the case of Dawda K. Jawara vs Gambia it was held that: "A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint in its totality...the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case." 36. Lastly, in Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others 2017 eKLR, thus: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4157/eng@2026-03-12 9

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37. 46. What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. 47. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake…” The petitioner has brought the Petition on behalf of a minor and has cited various provisions of the Constitution in respect of which the alternatives proposed by the respondent are inappropriate. In the premises, I find no merit in the Preliminary Objection dated 20th May 2025. The same is hereby dismissed with costs. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 12TH DAY OF MARCH 2026 OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4157/eng@2026-03-12 10

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