RULING.
Introduction.
1. This suit is premised on very unfortunate events that were allegedly occasioned upon the Plaintiff herein. The claim was first filed on the 8 th January 2024 and the claim amended on the 10 th March 2025 . In the amended Plaint, the Plaintiff seeks for the following reliefs:
a. General damages.
b. Special damages amounting to Kshs. 900,000.00 as particularized at paragraph 22 of the plaint.
c. Exemplary damages
d. Costs of the suit
e. Interest on (a) and (b) above.
f. Any other relief as the court deems fit .
2. Upon being served with the pleadings herein, the Defendants filed their respective defences to the claim, the 1 st and 3 rd Defendants represented by the firm of Markpeter M. Khisa Advocates and the 2 nd Defendant represented by State Counsel.
3. Counsel for the 1 st and 3 rd Defendant then filed the present application dated 18 th February 2026. In the application, the Applicants seek that the Plaintiff’s suit be struck out on the grounds that the court lacks original jurisdiction to hear and determine the present suit. The application is supported by the grounds set out on the face of the application and the Affidavit of Mafumbo M. Khisa Advocate sworn on the 18 th February 2026. The deponent has also annexed a letter dated 2 nd September 2024 from the Kenya Medical Practitioners & Dentist Council (KMPDC ).
4. The application is grounded on the provisions of section 20(9) of the Kenya Medical Practitioners & Dentist Act (KMPD Act). The Applicants and the Plaintiffs filed their respective submissions as directed by the court.
5. For context, it critical to cite here the provisions of section 20 of the KMPD Act and section 14 of the Health Act . It provides as follows:
“ Disciplinary proceedings
(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 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 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.
(10) 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 .
6. Section 14 of the Health Act on the other hand provide as follows:
“ Complaints
(1) Any person has a right to file a complaint about the manner in which he or she was treated at a health facility and have the complaint investigated appropriately.
(2) The relevant national and county governments shall establish and publish the procedure for the laying of complaints within public and private healthcare facilities in those areas of the national health system for which they are responsible.
(3) The procedures for laying complaints shall—
(a) be displayed by all health facilities in a manner that is visible for any person entering the establishment and the procedure must be communicated to users on a regular basis; and
(b) be primarily handled by the head of the relevant facility or any person designated by the facility as responsible for handling user complaints.
(4) Every complainant under subsection (1) has a right to be informed, in writing and within a period of three months from the date the complaint was lodged, of the action taken or decision made regarding the complaint.
(5) Where a health facility or a regulatory body fails to resolve a complaint to the satisfaction of the complainant, the Authority shall take necessary action ”.
7. I have had the benefit of reading the Affidavits of both the Applicants and the Respondents and the submissions of the respective counsel. I have also considered the cited authorities by both Counsel. The issues for the courts determination of the application are two. These are:
a. Does the court have original jurisdiction to hear and determine the suit herein?
b. Are the claims and reliefs sought at the KMPDC and the court complimentary or exclusive?
8. On the first issue, the court is guided by the direction given in the case of Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd , where the Court held that:
" Jurisdiction is everything. Without it, a court has no power to make one more step ."
9. Section 20 (1) of the KMPD Act and section 14 (1) of the Health Act both provide a that a person who is dissatisfied by the services offered by health facility or professional has a right to lodge a complaint with the KMPDC and section 14 (5) of the Health Act mandates the KMPDC to provide an outcome within 90 days.
10. Section 20 of the KMPD Act are in optional terms. The complainant is not constrained to only raise a complaint with the KMPDC to the exclusion of any other action they may wish to undertake in regard to the complaint. The preamble to the Act makes it clear that the Acts primary purpose if “ An Act of Parliament to consolidate and amend the law to make provision for the registration of medical practitioners and dentists and for purposes connected therewith and incidental thereto ”. It is clear that the Act neither makes provision for some of the reliefs sought by the Plaintiff neither does it expressly out the jurisdiction of the court in regard to those reliefs.
11. The provisions of section 20 (9) of the KMPD Act provides for where the party to proceedings before the KMPDC may lodge an appeal, in this case the High Court. The Act does not provide for the KMPDC to have the exclusive rights to deal with all the matters medical and professional negligence, compensation included.
12. Article 165 of the Constitution grounds the jurisdiction of the High Court. For the avoidance of doubt, the Constitution supersedes any other statute and where there was to be any inconsistency, then the Constitution shall prevail. In the present case, the court does not find any inconsistency between the Constitution and the KMPD Act or the Health Act. The provisions of Article 165 of the Constitution provide thus:
“( 3) Subject to clause (5), the High Court shall have—
(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 ”;
13. The matters specifically ousted from the jurisdiction of the High Court are set put at Article 165 (5) of the Constitution. These are:
“( 5) The High Court shall not have jurisdiction in respect of matters—
(a) 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)”.
The courts contemplated under Article 162 (2) of the Constitution are the matters Employment and Labour Relations and Environment and Land matters.
14. From the above, it is clear that the jurisdiction of this court to hear and determine the claims and offer the reliefs sought by the Plaintiff are not outside the mandate of the court. I thus decline to grant the orders of striking out as sought by the Applicants.
15. On the second issue, from the letters annexed to the Applicants Supporting Affidavit, it is evident that the complaint herein was filed in 2023. As at the time of the suit being filed and especially the filing of the present application, the KMPDC was yet to hear and determine the complaint by the Plaintiff filed with the KMPDC. That in itself is in violation of the provisions of section 14 (5) of the Health Act. To thus bring the application, when the KMPDC has filed to keep the statutory timelines is itself defeatist.
16. Related to the above, the reliefs sought by the Plaintiff in the complaint before the KMPDC are as set out under section 20 (6) of the KMPD Act. The reliefs sought do not include the reliefs sough in the present suit. The reliefs are thus exclusive and neither of the actions, the complaint before the KMPDC and the claim before the court, are not meant to defeat the other action.
17. The cases cited by the Applicant herein, being Speaker of the National Assembly v Karume (Civil Application 92 of 1992 ) and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others , are sound but not relevant in the current situation. As already stated, the two actions are not dependent on each other but are independent. The complaint before the KMPDC is not a mechanism that is required to precede the court action. The doctrine of exhaustion is thus not applicable in the present claim by the Plaintiff before the court. Indeed, the matter before the court is not an appeal from the KMPDC. That will only apply once the matter before the KMPDC is complete and either or both of the parties are unhappy with the outcome.
18. A similar situation has already been dealt with previously. In the decision cited by the Respondent being Kofuu v Board of Trustees St Marys Mission Hospital Mumias (Miscellaneous Civil Application 168 of 2023) [2025] KEHC 2674(KLR) 5th March, 2025 , the court stated thus in a similar circumstance:
“ The Applicant moved to this court to seek damages. She has maintained that she has sufficient evidence to prove her case and has expressed her unwillingness to have the complaint investigated and determined by the Council. The provisions of Section 20 of Cap 253 Laws of Kenya are not mandatory. A complainant has the option of lodging a complaint before the Board and can opt to pursue damages through the court. In the interest of justice, this court will allow the Applicant to have her day in court and a chance to be heard in order to prove her claim. She would be prejudiced if she was denied an opportunity to file her suit .”
19. In addition, the Respondent has also cited the determination in Musyoka & Another -V- Mama Lucy Kibaki Hospital and 6 Others (2023) eKLR. In that case the court had this to say:
“ A look at the Petition reveals that most of the remedies sought by the Petitioners were indeed within the purview of the Council. However, the remedies under Section 20(6) of the Medical Practitioners Act do not include compensation in the nature of damages. The much the Council can do is to impose a fine, but it has no mandate to compensate for wrongs committed by a registered or licensed medical service provider. As such, the complaint lodged by the 2nd Petitioner before the Council seeking compensation must have suffered a false start. In this matter, therefore, the doctrine of exhaustion is voided in that the Council lacks the legal and adequate jurisdiction to grant compensatory reliefs. If the Petitioners are to be compelled to proceed with their dispute before the Council, then that will be tantamount to acting in vain on account of the Council lacking jurisdiction. This Court will also be denying the Petitioners their right to access justice under Article 48 of the Constitution since they will be rendered without any legal redress or forum or at all. It is on the basis of the foregoing that this Court finds and hold that, given the nature of remedies sought in the realm of compensatory damages, the doctrine of exhaustion does not apply in the unique circumstances of this case” .
20. From the two decisions, it is clear that the prayers sought by the Applicants are not well grounded. The court has jurisdiction to entertain the suit and the reliefs sought by the Plaintiff at the KMPDC and the court are exclusive and one action does not exclude the other. Both are independent mechanisms with clear outcomes and reliefs and need not be made dependent on the outcome of the other. To do so, and especially where the respondent has not been diligent in dealing with the complaint as required of it under the KMPD Act, would be to deny the Plaintiff their clear rights under the Constitution. This is a situation this court is not prepared to contemplate or acquiesce to.
21. Suffice to state that the application is not sustainable. The same cannot stand. I will thus in disposition give the following orders:
a. The application dated 18 th February 2026 is hereby dismissed with costs to the Respondent.
b. The parties to finalize on their compliances as required under Order 11 of the CIVIL Procedure Rules, 2010 within 21 days of this order.
c. Mention of the suit for directions on hearing of the suit on the 28 th September 2026 .
Dated, signed and delivered virtually via Microsoft Teams this 3 rd September 2026.
HCCC NO. E001 OF 2024 FELISTERS N. WALUNYWA VS KITALE COUNTY REF. HOSP.& 2 OTHERS RULING Pg. 10
Introduction.
1. This suit is premised on very unfortunate events that were allegedly occasioned upon the Plaintiff herein. The claim was first filed on the 8 th January 2024 and the claim amended on the 10 th March 2025 . In the amended Plaint, the Plaintiff seeks for the following reliefs:
a. General damages.
b. Special damages amounting to Kshs. 900,000.00 as particularized at paragraph 22 of the plaint.
c. Exemplary damages
d. Costs of the suit
e. Interest on (a) and (b) above.
f. Any other relief as the court deems fit .
2. Upon being served with the pleadings herein, the Defendants filed their respective defences to the claim, the 1 st and 3 rd Defendants represented by the firm of Markpeter M. Khisa Advocates and the 2 nd Defendant represented by State Counsel.
3. Counsel for the 1 st and 3 rd Defendant then filed the present application dated 18 th February 2026. In the application, the Applicants seek that the Plaintiff’s suit be struck out on the grounds that the court lacks original jurisdiction to hear and determine the present suit. The application is supported by the grounds set out on the face of the application and the Affidavit of Mafumbo M. Khisa Advocate sworn on the 18 th February 2026. The deponent has also annexed a letter dated 2 nd September 2024 from the Kenya Medical Practitioners & Dentist Council (KMPDC ).
4. The application is grounded on the provisions of section 20(9) of the Kenya Medical Practitioners & Dentist Act (KMPD Act). The Applicants and the Plaintiffs filed their respective submissions as directed by the court.
5. For context, it critical to cite here the provisions of section 20 of the KMPD Act and section 14 of the Health Act . It provides as follows:
“ Disciplinary proceedings
(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 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 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.
(10) 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 .
6. Section 14 of the Health Act on the other hand provide as follows:
“ Complaints
(1) Any person has a right to file a complaint about the manner in which he or she was treated at a health facility and have the complaint investigated appropriately.
(2) The relevant national and county governments shall establish and publish the procedure for the laying of complaints within public and private healthcare facilities in those areas of the national health system for which they are responsible.
(3) The procedures for laying complaints shall—
(a) be displayed by all health facilities in a manner that is visible for any person entering the establishment and the procedure must be communicated to users on a regular basis; and
(b) be primarily handled by the head of the relevant facility or any person designated by the facility as responsible for handling user complaints.
(4) Every complainant under subsection (1) has a right to be informed, in writing and within a period of three months from the date the complaint was lodged, of the action taken or decision made regarding the complaint.
(5) Where a health facility or a regulatory body fails to resolve a complaint to the satisfaction of the complainant, the Authority shall take necessary action ”.
7. I have had the benefit of reading the Affidavits of both the Applicants and the Respondents and the submissions of the respective counsel. I have also considered the cited authorities by both Counsel. The issues for the courts determination of the application are two. These are:
a. Does the court have original jurisdiction to hear and determine the suit herein?
b. Are the claims and reliefs sought at the KMPDC and the court complimentary or exclusive?
8. On the first issue, the court is guided by the direction given in the case of Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd , where the Court held that:
" Jurisdiction is everything. Without it, a court has no power to make one more step ."
9. Section 20 (1) of the KMPD Act and section 14 (1) of the Health Act both provide a that a person who is dissatisfied by the services offered by health facility or professional has a right to lodge a complaint with the KMPDC and section 14 (5) of the Health Act mandates the KMPDC to provide an outcome within 90 days.
10. Section 20 of the KMPD Act are in optional terms. The complainant is not constrained to only raise a complaint with the KMPDC to the exclusion of any other action they may wish to undertake in regard to the complaint. The preamble to the Act makes it clear that the Acts primary purpose if “ An Act of Parliament to consolidate and amend the law to make provision for the registration of medical practitioners and dentists and for purposes connected therewith and incidental thereto ”. It is clear that the Act neither makes provision for some of the reliefs sought by the Plaintiff neither does it expressly out the jurisdiction of the court in regard to those reliefs.
11. The provisions of section 20 (9) of the KMPD Act provides for where the party to proceedings before the KMPDC may lodge an appeal, in this case the High Court. The Act does not provide for the KMPDC to have the exclusive rights to deal with all the matters medical and professional negligence, compensation included.
12. Article 165 of the Constitution grounds the jurisdiction of the High Court. For the avoidance of doubt, the Constitution supersedes any other statute and where there was to be any inconsistency, then the Constitution shall prevail. In the present case, the court does not find any inconsistency between the Constitution and the KMPD Act or the Health Act. The provisions of Article 165 of the Constitution provide thus:
“( 3) Subject to clause (5), the High Court shall have—
(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 ”;
13. The matters specifically ousted from the jurisdiction of the High Court are set put at Article 165 (5) of the Constitution. These are:
“( 5) The High Court shall not have jurisdiction in respect of matters—
(a) 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)”.
The courts contemplated under Article 162 (2) of the Constitution are the matters Employment and Labour Relations and Environment and Land matters.
14. From the above, it is clear that the jurisdiction of this court to hear and determine the claims and offer the reliefs sought by the Plaintiff are not outside the mandate of the court. I thus decline to grant the orders of striking out as sought by the Applicants.
15. On the second issue, from the letters annexed to the Applicants Supporting Affidavit, it is evident that the complaint herein was filed in 2023. As at the time of the suit being filed and especially the filing of the present application, the KMPDC was yet to hear and determine the complaint by the Plaintiff filed with the KMPDC. That in itself is in violation of the provisions of section 14 (5) of the Health Act. To thus bring the application, when the KMPDC has filed to keep the statutory timelines is itself defeatist.
16. Related to the above, the reliefs sought by the Plaintiff in the complaint before the KMPDC are as set out under section 20 (6) of the KMPD Act. The reliefs sought do not include the reliefs sough in the present suit. The reliefs are thus exclusive and neither of the actions, the complaint before the KMPDC and the claim before the court, are not meant to defeat the other action.
17. The cases cited by the Applicant herein, being Speaker of the National Assembly v Karume (Civil Application 92 of 1992 ) and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others , are sound but not relevant in the current situation. As already stated, the two actions are not dependent on each other but are independent. The complaint before the KMPDC is not a mechanism that is required to precede the court action. The doctrine of exhaustion is thus not applicable in the present claim by the Plaintiff before the court. Indeed, the matter before the court is not an appeal from the KMPDC. That will only apply once the matter before the KMPDC is complete and either or both of the parties are unhappy with the outcome.
18. A similar situation has already been dealt with previously. In the decision cited by the Respondent being Kofuu v Board of Trustees St Marys Mission Hospital Mumias (Miscellaneous Civil Application 168 of 2023) [2025] KEHC 2674(KLR) 5th March, 2025 , the court stated thus in a similar circumstance:
“ The Applicant moved to this court to seek damages. She has maintained that she has sufficient evidence to prove her case and has expressed her unwillingness to have the complaint investigated and determined by the Council. The provisions of Section 20 of Cap 253 Laws of Kenya are not mandatory. A complainant has the option of lodging a complaint before the Board and can opt to pursue damages through the court. In the interest of justice, this court will allow the Applicant to have her day in court and a chance to be heard in order to prove her claim. She would be prejudiced if she was denied an opportunity to file her suit .”
19. In addition, the Respondent has also cited the determination in Musyoka & Another -V- Mama Lucy Kibaki Hospital and 6 Others (2023) eKLR. In that case the court had this to say:
“ A look at the Petition reveals that most of the remedies sought by the Petitioners were indeed within the purview of the Council. However, the remedies under Section 20(6) of the Medical Practitioners Act do not include compensation in the nature of damages. The much the Council can do is to impose a fine, but it has no mandate to compensate for wrongs committed by a registered or licensed medical service provider. As such, the complaint lodged by the 2nd Petitioner before the Council seeking compensation must have suffered a false start. In this matter, therefore, the doctrine of exhaustion is voided in that the Council lacks the legal and adequate jurisdiction to grant compensatory reliefs. If the Petitioners are to be compelled to proceed with their dispute before the Council, then that will be tantamount to acting in vain on account of the Council lacking jurisdiction. This Court will also be denying the Petitioners their right to access justice under Article 48 of the Constitution since they will be rendered without any legal redress or forum or at all. It is on the basis of the foregoing that this Court finds and hold that, given the nature of remedies sought in the realm of compensatory damages, the doctrine of exhaustion does not apply in the unique circumstances of this case” .
20. From the two decisions, it is clear that the prayers sought by the Applicants are not well grounded. The court has jurisdiction to entertain the suit and the reliefs sought by the Plaintiff at the KMPDC and the court are exclusive and one action does not exclude the other. Both are independent mechanisms with clear outcomes and reliefs and need not be made dependent on the outcome of the other. To do so, and especially where the respondent has not been diligent in dealing with the complaint as required of it under the KMPD Act, would be to deny the Plaintiff their clear rights under the Constitution. This is a situation this court is not prepared to contemplate or acquiesce to.
21. Suffice to state that the application is not sustainable. The same cannot stand. I will thus in disposition give the following orders:
a. The application dated 18 th February 2026 is hereby dismissed with costs to the Respondent.
b. The parties to finalize on their compliances as required under Order 11 of the CIVIL Procedure Rules, 2010 within 21 days of this order.
c. Mention of the suit for directions on hearing of the suit on the 28 th September 2026 .
Dated, signed and delivered virtually via Microsoft Teams this 3 rd September 2026.
HCCC NO. E001 OF 2024 FELISTERS N. WALUNYWA VS KITALE COUNTY REF. HOSP.& 2 OTHERS RULING Pg. 10