The High Court has struck out a petition against Moi Teaching and Referral Hospital over claims of negligence following the death of a patient at the facility in 2021.
Justice Reuben Nyakundi found that the claims against the hospital and five medical practitioners were basically about medical negligence and wrongful death for which his court lacked jurisdiction.
The court allowed the petition to proceed only against the Kenya Medical Practitioners and Dentists Council.
The dispute arose from the death of Annita Jepkorir Chirchir, a minor, following treatment at the MTRH.
Her parents, Mercy Jepchirchir Kiprono and Isaac Kipchirchir Kandie, filed a complaint with the council in 2021.
On May 5, 2023, the council's disciplinary and ethics committee dismissed the complaint against Dr Ernest Nshom, Dr Alfred Wanyonyi Wandeba and Prof Barasa Otsyula Khwa.
It directed Dr Stephen Ondigo and the hospital to mediate with the estate and to pay fines of Sh200,000 and Sh350,000 respectively.
No appeal was lodged against that ruling.
Instead, the petitioners filed a constitutional petition on May 10, 2025, seeking declarations that the respondents had violated their rights.
Among the reliefs sought was "a declaration that the deliberate, negligent and reckless actions and omissions of the first to fifth respondents were a direct cause of the petitioners' daughter's death and thereby constituted a profound violation of her right to life”.
They also asked the court to determine that they were entitled to compensation.
The council asked the court to dismiss the case, arguing that the parents had gone to court too early. It said they should have appealed the disciplinary ruling first.
The hospital and the four doctors agreed with this argument.
The parents argued that they were not trying to overturn the disciplinary ruling but that their complaint was about how the council handled their case.
They pointed to an eight-month delay before anything was done, ignored letters and an alleged attempt by a council officer to pressure the mother into dropping the complaint.
Justice Nyakundi agreed with the hospital and doctors that the parents failed to exhaust the remedies available to them.
“This principle mandates that before approaching the courts, parties must exhaust all available administrative or alternative remedies. The doctrine of exhaustion, also known as the principle of exhaustion of remedies, requires that a party seeking judicial intervention must first utilise all available non-judicial remedies before turning to the courts,” Nyakundi said.
The parents had argued that the council could not judge its own conduct or award compensation for constitutional violations.
Justice Nyakundi agreed with that reasoning, saying an appeal or review of the disciplinary ruling would not address allegations of institutional delay or coercion.
He explained that a remedy that does not provide the relief a party seeks is not a true alternative but a different remedy for a different grievance.
He also observed that a statutory body cannot be a fair forum for deciding claims of constitutional wrongdoing against itself.
However, the judge drew a sharp distinction between the claim against the council and the claim against the hospital and doctors.
In his view, the substance of the parents' case against the medical respondents was a claim of negligence, not a constitutional matter.
He held that the constitutional right to life was never meant to replace the ordinary law of negligence in cases where death results from a lack of care.
To allow otherwise, he cautioned, would overwhelm the constitutional court with claims that Parliament had already provided a clear legal path for.
While striking out the petition against MTRH and the doctors, the judge allowed the petitioners to pursue ordinary civil suits and retained KMPDC as a respondent to answer process-related administrative allegations.
The court struck out the petition against the first to fifth respondents, with liberty to the petitioners to institute civil proceedings in a court of competent jurisdiction.
The judge emphasised that nothing in the ruling constituted a determination on the merits of any such claim.
