Brief Facts
1. The petition dated 3 rd July 2023 and amended on 10 th July 2024 is supported by the petitioner’s affidavit in support of even date.
2. The petition challenges the kidney transplant by the 2 nd respondent from the 1 st interested party to the 1 st respondent without the alleged consent by the 1 st interested party.
3. On this premise, the petitioner seeks the following reliefs: -
a) An order of declaration declaring that the respondent’s actions are in breach of the law and he should therefore be sanctioned for the same.
b) An order of prohibition prohibiting the respondent, its agents, appointees, proxies or any one acting under the respondent’s instructions to forthwith stop any further operations and providence of legal services within all of its branches in Kenya.
c) An order of mandamus directed to the Kenya Medical Practitioners & Dentists Council to forthwith deregister the respondent and suspend its practicing license.
d) An order of mandamus compelling the 2 nd interested party to criminally investigate and if culpable, instruct the Director of Public Prosecutions (DPP) to criminally prosecute the respondent for his flagrant breach of the law.
e) An order directed to the 1 st respondent to take care of all the 1 st interested party’s medical bills and expenses.
f) That this Honourable Court gives any other orders required to advance the cause of justice and the rule of law in this case.
g) That the costs of this petition be borne jointly and severally by the respondents.
4. In opposition to the petition, the 2 nd respondent filed a replying affidavit dated 27 th July 2023, the 2 nd interested party filed grounds of opposition dated 19 th October 2023 and a replying affidavit dated 26 th January 2024 and the 1 st interested party filed a replying affidavit dated 24 th January 2024. The 1 st interested party filed an amended replying affidavit dated 17 th July 2024 in response to the amended petition.
The Petitioner’s Case
5. The petitioner is a Human Rights crusader under the aegis of Concerned Citizens of Kenya.
6. The 2 nd respondent is a medical facility offering medi-care within Kenya.
7. The 1 st respondent is a male adult to whom it is alleged a kidney was donated by the 1 st interested party.
8. The 2 nd interested party is vested with the mandate of undertaking criminal investigations and related acts in Kenya. It derives its mandate from Article 247 of the Constitution of Kenya and through the National Police Service Act 2011 which establishes the directorate as an organ of the NPS responsible to the Inspector General. Its mandate is further derived from Part IV Section 28 and 35 of the National Police Service Act 2011 which gives the core functions of the Directorate in the areas of detection, prevention and investigation of crime.
9. The petitioner reveals that he was informed by the 1 st interested party that he visited the respondent’s Parklands Hospital Branch wherein they conducted several tests on him to ascertain the fitness of his kidney. He was registered under hospital number 107066, and issued with a voucher number CH29/2019.CRV/1360 and his bill raised as number J30439/19 .
10. Upon conducting tests and confirming that his kidney was fit for the purpose, the 2 nd respondent proceeded to admit him at their Eldoret Branch on 21 st May 2019 and discharged him on 7 th June 2019 . The petitioner asserts that during the 1 st interested party’s admission, the 2 nd respondent perpetuated illegalities by operating on him and, unlawfully and without colour of right, removed one of the 1 st interested party’s kidneys and transplanted it on the 1 st respondent.
11. The petitioner states that the purchase price of the 1 st interested party’s kidney was fixed at Kshs. 1.5 million which was promised would be paid to him upon transplanting his kidney to the 2 nd respondent’s patient.
12. The petitioner contends that the respondents conducted the said acts in total disregard of the Health Act 2017 which provides that organ donations be done for free. Further the actions by the respondents explain why there have been increased trafficking of persons for organ harvesting purposes.
13. The petitioner contends that despite the 1 st respondent receiving the donated kidney from the 1 st interested party, he has failed to take care of the ensuing medical bills and other expenses of the 1 st Interested Party. He contended that allowing the 2 nd respondent to continue with its hospital operations would encourage it to continue these unlawful, illegal and unconstitutional acts. The petitioner argues that the Directorate of Criminal Investigations has legal constitutional duty to step in and conduct the necessary investigations but have failed to do so.
The 2 nd Respondent’s Case
14. The 2 nd respondent states that it has numerous accredited hospital facilities within and without the country which are all specialized in different medical fields like tissue transplant services. Further they do not deal with organ donors directly as the recipient is required to go with the donor of choice after which the donor is subjected to rigorous legal and medical tests.
15. In the instant case, the 1 st interested party intimated to them that the 1 st respondent Gilbert Kariuki Gicheru was his cousin and the patient in need of a kidney and he wanted to assist him. On 4 th May 2019, the 1 st interested party visited their facility at mediplaza where several tests were conducted on him so as to ascertain if he was fit to be a viable kidney donor to the 1 st respondent. After tests were done, the 1 st interested party was successfully diagnosed as a healthy voluntary kidney donor as the Health Regulations dictates.
16. The 2 nd respondent avers that before the surgery, the 1 st interested party was keenly evaluated and tested for over 48 hours by experts and reported his body reactions. The 1 st interested party was admitted on 21 st May 2019 with IP number 21490 and the surgery to harvest his kidney was successfully done as he fully recovered and was discharged from the hospital on 7 th June 2019. The 2 nd respondent asserts that they drew a consent document from the 1 st interested party which form was given to him and its contents were explained to him so that the procedure was neither illegal nor unlawful. The 2 nd respondent further avers that the 1 st respondent was admitted at their facility on 15 th June 2019.
17. Prior to the surgery, the 1 st interested party executed a well drafted affidavit after his mental health was examined and reading the contents of the said affidavit sworn on 28 th June 2019. Further, prior to the surgery, the 1 st interested party made a statutory declaration indicating that he was going to voluntarily donate his kidney to his cousin, the 1 st respondent. He further swore that no payment referred to the Health Act had been made to him or any other person and submitted his copy of his identity card.
18. The 2 nd respondent avers that the 1 st interested party was continuously examined as the experts tested and observed his renal angiography which appeared very normal. After surgery, the 2 nd respondent prepared a cumulative bill of the 1 st interested party and it was paid. The 2 nd respondent refutes any claim that the surgery between the 1 st respondent and interested party was transactional at Kshs. 1.5 million which was to be paid as the purchase price of the kidney. Further, the 2 nd respondent stresses that they are well versed with Section 80(4)(a) of the Health Act 2017 which criminalizes charging a fee for a human organ.
19. The 2 nd respondent avers that they are not aware of any malpractices committed by the hospital and the petitioner’s allegations are malicious and are aimed to defame them. Further, the petitioner has not annexed any documentation to prove his allegations indicating that his petition is baseless and a waste of the court’s time. Further, they were summoned and investigated by the 2 nd interested party vide letter dated 30 th May 2023 which they responded vide letter dated 8 th June 2023 and they were cleared of any medical malpractices.
20. The 2 nd respondent argues that the petitioner wrongly applied Article 232 (e) and (f) of the Constitution as they are not opaque in the administration of their work and because medical records are private documents and records that both parties to the kidney transplant were privy to.
The 1 st Interested Party’s Case.
21. The 1 st interested party avers that he visited the 2 nd respondent’s Parklands Hospital Branch where their staff conducted several tests on him to ascertain the fitness of his kidney. At the hospital he was registered under hospital number 107066, issued with a voucher number CH29/2019.CRV/1360 and his bill was raised as number J30439/19. Upon conducting tests and confirming that his kidney was fit for purpose, the 2 nd respondent proceeded to admit him at their Eldoret Branch on 21 st may 2019 where his kidney was removed and he was discharged on 7 th June 2019.
22. The 1 st interested party contends that the 2 nd respondent unlawfully and without colour of right removed one of his kidneys and it was transplanted on one of the 2 nd respondent’s patients, the 1 st respondent. The 1 st interested party stresses that he never consented to his kidney being transferred to anyone. He further avers that the purchase price of his kidney was fixed at Kshs. 1.5 million and was sold to the 1 st respondent leaving no doubt that the 2 nd respondent commercially benefited from the sale of his kidney to his detriment.
23. As a result of his kidney’s removal, he has been in and out of hospital, he can no longer pass urine normally and his reproductive health is at its worst. The 1 st interested party argues that the 2 nd respondent violated Article 43(1) of the Constitution which provides that every person has the right to the highest attainable standard of health, which includes the right to healthcare services including reproductive health.
The 2 nd Interested Party’s Case.
24. The 2 nd interested party states that on 17 th May 2023 a report was made by the petitioner at the DCI Headquarters of an allegation of illegal purchase and sale of human kidney organ contrary to Section 80 of the Health Act in respect of the patient by the name Ayub Kanyi Nyamu, the 1 st interested party herein which incident took place at the 2 nd respondent’s premises. The matter was assigned to three investigation officers namely C.I. Patience Mungere, Cpl Ariga Nickson and PC Walter Menjo who commenced investigations by writing to the respondent seeking clarification on the allegations.
25. Pursuant to Section 52 of the National Police Service Act, the 2 nd interested party has tried on numerous occasions to contact the petitioner and the 1 st interested party without success for further information through various means including calls, text messages and requisition to compel attendance. Further, the 2 nd interested party has made an effort of travelling to the 1 st interested party’s homestead but he was not present at home but the investigation officer managed to have the father of the 1 st interested party record a statement as the next of kin.
26. The 2 nd interested party contends that the lack of cooperation from the petitioner and the 1 st interested party have made investigations in the matter difficult as the 1 st interested party is not able to verify the authenticity of the allegations by the petitioner. Further, the deponent asserts that there are no records or evidence to support the petitioner’s allegations of trading of prohibited human organ by the respondent. The 2 nd interested party argues that the petitioner’s case is misconceived, actuated with rumours, speculations, hearsay, unfound fears with no factual evidence to back the allegations.
27. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
28. The petitioner submitted that the respondents violated the 1 st interested party’s constitutional rights under Articles 28, 29(f), 40, 43(1)(a) and 46. Further, the respondents violated international treaties such as the universal Declaration of Human Rights; the international Covenant on Civil and Political rights and the Palermo Protocol which prohibit human trafficking and organ harvesting.
29. The petitioner argued that victims of egregious human rights violations deserve full compensation to a position that the victim was in before the unlawful act. Reliance was placed in J .O.O vs Praxeda Akinyi Ochieng & Another [2017] eKLR where the court awarded damages for unauthorized medical procedures and D.K. Marete vs Teachers Service Commission [2020] eKLR where the court awarded damages for dignity violations.
The 1 st Interested Party’s Submissions .
30. The 1 st interested party identified and listed four issues for determination which include: whether the 1 st interested party’s kidney was removed without a valid, informed and voluntary consent; whether the respondent’s consent instruments (generic admission/consent forms, statutory declaration and a post dated affidavit) satisfy the Constitution, Health act and professional standards for a living organ donation; whether the respondent’s documentation gaps and contradictions warrant adverse inferences and shift the evidential burden and whether the 1 st interested party’s constitutional rights under articles 26,28,29,31,43,46,47&10 were violated.
31. On the first issue, the 1 st interested party submitted that the 2 nd respondent’s claim that he swore an affidavit prior to the surgery is refuted by its own date; 28 th June 2019 which is after the surgery and after discharge on 7 th June 2019. Thus the 1 st interested party argued that a post event affidavit is not contemporaneous consent and cannot cure the absence of pre-operative informed consent pursuant to Section 8 and 9 of the Health Act and the decision in Law & 2 Others vs Marura Maternity and Nursing Home & 3 Others; International Community of Women Living with HIV (ICW) (INTERESTED Party); Secretariat of the Joint United Nations Programme on HIV/AIDS & 2 Others (Amicus Curiae) (Constitutional Petition 606 of 2014) [2022] KEHC 17132 (KLR) (Constitutional and Human Rights) (16 December 2022) (Judgment) where the court examined the meaning of informed consent as follows:-
Drawing from the above discussion, it can be deduced that informed consent may be regarded as having been properly obtained upon the healthcare provider satisfying the following:
(i) Ascertains the age of the patient.
(ii) Ascertains if the patient is a minor or is under any disability that makes him/her unable to understand and consent, for instance, if one is too ill or mentally incapacitated.
(iii) In the event the patient is a minor or is under any disability that makes him/her unable to understand and consent, such consent be obtained from another person legally authorised to give such consent.
(iv) Ascertains the literacy level of the patient or the one legally authorised to give such consent, as the case may be.
(v) Ascertains the language the patient wishes to use. An interpreter may be availed if need be.
(vi) Ascertains, as much as possible, the background of the patient.
(vii) Discloses the patient’s health status as restrained by the law or a Court order.
(viii) Explains the range of promotive, preventive and diagnostic procedures and treatment options generally available to the patient.
(ix) Explains the benefits, risks, costs and consequences generally associated with each option.
(x) Explains the patient’s right to refuse the recommended medical options and the implications, risks, and legal consequences of such refusal.
(xi) Takes all reasonable steps and ensure that the patient, or the one giving the consent, is reasonably free and not under any form of compulsion, duress or coercion.
(xii) The explanations given to the patient to be, in as much as possible, in the nature of a dialogue with the aim of ensuring that the patient fully understands the seriousness of her/his condition, the anticipated benefits and risks of the proposed treatment and any reasonable alternatives so much so that the patient makes an informed decision. To a very great extent technical language be avoided.
(xiii) The patient ought to be accorded time, if need be, to enable him/her consider the information given and to decide except in cases where the procedure is an emergency.
(xiv) The consent must be in writing.
32. The 1 st interested party argued that a generic admission form is inadequate for a living donor nephrectomy which requires specialised counselling on the non therapeutic nature of the surgery, its material risks, available alternatives, the right to withdraw consent, confidentiality, follow up obligations and confirmation of no payment or inducement all of which were absent.
33. The 1 st interested party further argued that a hospital that undertakes living donor nephrectomy bears a primary, non delegable duty of care to the donor. Therefore by disclaiming direct responsibility, the 2 nd respondent undermines the very foundation of lawful transplantation, which is premised on safeguarding the donor’s autonomy, health and dignity. Reliance was placed in the case of HWK vs Rachel N. Kangethe & Karen Hospital Nairobi [2019] KEHC 1753 (KLR) where the court held as follows:-
From the onset, it is trite law that a doctor who operates without the consent of his patient is, save in cases of emergency or mental disability, is guilty of the civil wrong of trespass to the person and he is also guilty of the criminal offence of assault.
34. The court made further reference to the court’s holding in PBS vs Archdiocese of Nairobi Kenya Registered Trustees & 2 Others (2016) eKLR in which the court cited the medical journal as thus:-
Expectations of a patient are twofold. Doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly, they will not do anything to harm the patient in any manner either because of their negligence, carelessness or recklessness or attitude of their staff. Though a doctor may not be in a position to save his patient’s life at all times, he is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him. Therefore, it is expected that a doctor carryout a report from the patient. Furthermore, unless it is an emergency, he obtains informed consent of the parties before proceeding with any major treatment, surgical operation even invasive investigation. Failure of a doctor and hospital to discharge this obligation is essentially a tortious liability.
35. The 1 st interested party argued that the removal of his kidney was undertaken without valid, informed and voluntary consent and the 2 nd respondent’s reliance on the generic admission or consent form falls short of the constitutional, statutory and professional thresholds for living donor nephrectomy. Furthermore, the international and professional standards reinforce the said position. The World Health Organization Guiding Principles on Human Cell, Tissue and Organ Transplantation (2010) and the Declaration of Istanbul (2018) require: independent counselling; ethics committee oversight and protections against coercion and inducement.
36. Further, the 1 st interested party asserted that in April 2025, the Ministry of Health suspended all kidney transplant services at Mediheal Hospitals pending a multiagency investigation into the allegations of unethical organ harvesting and consent irregularities. The matter has been the subject of parliamentary inquiries and extensive media scrutiny underscoring that Mediheal transplant services are not isolated lapses but symptomatic of deeper institutional noncompliance.
37. The 1 st interested party cited Sections 107 – 109 of the Evidence Act and the case of St. Damiano Medical Centre vs Were (Suing on behalf of the Estate of the late Doris Nafula Palanga) (Civil Appeal E005 of 2020) [2022] KEHC 14094 (KLR) and argued that the burden of proof shifted to the 2 nd respondent as in hospital patient disputes, clinical notes, consent forms, theatre registers and audit trails are uniquely within the hospital’s possession and control and thus they are required to produce them. The court stated:-
Although the above decisions were made in road traffic accident claims, but the principles enunciated are applicable in claims of the tort of negligence and I have no hesitation in applying them to this suit, since the principles arises from the application of Section 112 of the Evidence Act Cap 80 Laws of Kenya which enacts that:-
In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
38. The 1 st interested party argued that the 2 nd respondent failed to answer whether valid consent was obtained before the incision; which risks were explained; what alternatives were canvassed; whether inducement/coercion was screened; which committee approved the donation; who verified the identity of the 1 st interested party which facts were exclusively within the 2 nd respondent’s knowledge and records. The 1 st interested party urged the court to find that the 2 nd respondent’s record gaps and contradictions warrant adverse inferences that no valid consent was obtained.
39. The 1 st interested party argued that his constitutional rights under Article 28, 29, 26 and 25 were violated as the surgery was non consensual. Further Article 31 was breached by contradictory recipient records and lack of proper documentation of consent, undermining medical confidentiality and personal autonomy, Article 43 for lack of specialised counselling, independent donor advocacy and psychological assessment, Article 46 for the 2 nd respondent’s reliance on post event declarations and Article 47 by denying the donor accurate information, quality service and fair processes. Additionally, the 2 nd respondent’s conduct violated Article 10 of the Constitution which values transparency, accountability and human dignity that bind private hospitals discharging a public function.
Analysis and Determination
40. Arising from the pleadings and the submissions of the Parties, the Court considers the following to be the issues for determination in this Petition:
a) Whether having regard to the factual matrix and the nature of allegations p in this Petition, the court should uphold the separation of powers principle and exercise judicial restraint and defer the issues to the mandated constitutional or statutory bodies
b) Whether the 1 st interested party’s rights under Articles 10, 26, 28, 29, 31, 43, 46 and 47 of the Constitution were violated.
c) Whether the 1 st interested party is entitled to the orders sought.
Whether having regard to the factual matrix and the nature of allegations in this Petition, the court should uphold the separation of powers principle and exercise judicial restraint and defer the issues to the mandated constitutional or statutory bodies
41. In adjudication of constitutional disputes, courts are guided by various judicial principles. The Court not only upholds the separation of powers principle but will also defer to other branches of government or bodies with specialised mandate and are best suited to deal with the matter, rather than entertaining court action unless there is clear abuse of power or violation of rights.
42. The core of this Petition is illegal organ transplantation. This is an offence punishable by fine not exceeding ten million shillings or ten years imprisonment or to both fine and imprisonment. Section 80 of the Health Act, Cap 241 provides as follows: 80. Human organs transplantation
(1) No person shall remove tissue or gametes from a human being for transplantation in another human being or carry out the transplantation of such tissue or gametes except—
(a) in a duly authorized health facility for that purpose; and
(b) on the written authority of—
i) the medical practitioner in charge of clinical services in that health facility or any other medical practitioner authorized by him or her; or
ii) in the case where there is no medical practitioner in charge of the clinical services at that health facility, a medical practitioner authorized by the person in charge of the hospital; or
(iii)the person from whom the tissue or gametes are removed, in the prescribed manner.
(2) The medical practitioner mentioned in subsection (1)(b) shall not be the lead participant in a transplant for which he or she has granted authorization under that subsection.
(3) The Cabinet Secretary shall prescribe through regulations—
(a) the criteria for the approval of organ transplant facilities; and
(b) the procedural measures to be applied for such approval.
4) a) Any person who contravenes the provision of this section or fails to comply therewith or who charges a fee for a human organ commits an offence.
b) Any person convicted of an offence under paragraph (a) is liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a period not exceeding ten years or to both a fine and imprisonment.
43. The National Police Service is established under Article 243 of the Constitution. The Constitution further mandates Parliament in Article 245 (8) to enact legislation to give full effect to this Constitutional provision. Accordingly, Parliament enacted the National Police Service Act No. 11 A of 2011 which under section 24 (e) empowers the Police to investigate crimes. In addition, the National Police Service Act creates the Directorate of Criminal Investigations (DCI), whose functions under Section 35 (b) include to ‘undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others’
44. It is manifest that the substance of this Petition implicates an offence under Section 80 (4) of the Health Act. Indeed, the Petitioner took the necessary step and lodged a criminal complaint with the Directorate of Criminal Investigations.
45. According to the 2 nd interested party (the Directorate of Criminal Investigation) , on 17 th May 2023 a report was made by the petitioner at the DCI Headquarters in regard to a complaint relating to illegal purchase and sale of human kidney organ contrary to Section 80 of the Health Act in respect of the patient by the name Ayub Kanyi Nyamu , (the 1 st interested party herein) which allegedly took place at the 2 nd respondent’s premises.
46. The matter was assigned three investigation officers namely Chief Inspector Patience Mungere, Corporal Ariga Nickson and Police Constable Walter Menjo who commenced investigations by writing to the respondent seeking clarification on the allegations.
47. Subsequently, and pursuant to Section 52 of the National Police Service Act, the 2 nd interested party on numerous occasions tried to contact the petitioner and the 1 st interested party without success through all means possible including making calls, text messages and requisition to compel attendance.
48. Finally, the 2 nd interested party made an effort and travelled to the 1 st interested party’s homestead but they did not find him at home, the investigation officer only managed find the father of the 1 st interested party who recorded a statement as the next of kin.
49. The 2 nd interested party thus attested that there was the lack of cooperation from the petitioner and the 1 st interested party which made investigations into this matter difficult as the 1 st interested party failed to avail himself to verify the authenticity of the allegations made by the petitioner. As such, the 2 nd Interested Party stated that it no evidence was provided to support the petitioner’s allegations of trading of prohibited human organ by the respondent.
50. Neither the Petitioner nor the 1 st Interested Party controverted this factual assertion by the 2 nd Interested Party, yet in one of the orders sought in this Petition, the Petitioner seeks
‘ An order of mandamus compelling the 2 nd interested party to criminally investigate and if culpable, instruct the Director of Public Prosecutions (DPP) to criminally prosecute the respondent for his flagrant breach of the law.’
51. The Petitioner has not in this Petition demonstrated by way of evidence a deliberate failure by the 2 nd Interested Party to investigate the matter or any bad faith or harassment or bias on the part of the 2 nd Interested Party in pursuing this matter. On the contrary, it is apparent that it is the Petitioner and the 1 st Interested Party that have been dodging the investigators and have demonstrated lack of willingness to cooperate with the 2 nd Interested party which has been ready and willing to get to the bottom of their complaint.
52. In my view, the Petitioner cannot run away from an institution that both the Constitution and the Statute has conferred the specific mandate of investigating such complaints by directly seeking to invoke the constitutional jurisdiction of this Court. This Court will exercise self-restraint and abstain from interfering in an active investigation before the DCI unless there is proof of any extra ordinary circumstances like bad faith or harassment, which is not the case here.
53. The Court has an obligation to accord the 2 nd Interested Party deference in discharge its mandate. Such was the position echoed in the case of W
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1. The petition dated 3 rd July 2023 and amended on 10 th July 2024 is supported by the petitioner’s affidavit in support of even date.
2. The petition challenges the kidney transplant by the 2 nd respondent from the 1 st interested party to the 1 st respondent without the alleged consent by the 1 st interested party.
3. On this premise, the petitioner seeks the following reliefs: -
a) An order of declaration declaring that the respondent’s actions are in breach of the law and he should therefore be sanctioned for the same.
b) An order of prohibition prohibiting the respondent, its agents, appointees, proxies or any one acting under the respondent’s instructions to forthwith stop any further operations and providence of legal services within all of its branches in Kenya.
c) An order of mandamus directed to the Kenya Medical Practitioners & Dentists Council to forthwith deregister the respondent and suspend its practicing license.
d) An order of mandamus compelling the 2 nd interested party to criminally investigate and if culpable, instruct the Director of Public Prosecutions (DPP) to criminally prosecute the respondent for his flagrant breach of the law.
e) An order directed to the 1 st respondent to take care of all the 1 st interested party’s medical bills and expenses.
f) That this Honourable Court gives any other orders required to advance the cause of justice and the rule of law in this case.
g) That the costs of this petition be borne jointly and severally by the respondents.
4. In opposition to the petition, the 2 nd respondent filed a replying affidavit dated 27 th July 2023, the 2 nd interested party filed grounds of opposition dated 19 th October 2023 and a replying affidavit dated 26 th January 2024 and the 1 st interested party filed a replying affidavit dated 24 th January 2024. The 1 st interested party filed an amended replying affidavit dated 17 th July 2024 in response to the amended petition.
The Petitioner’s Case
5. The petitioner is a Human Rights crusader under the aegis of Concerned Citizens of Kenya.
6. The 2 nd respondent is a medical facility offering medi-care within Kenya.
7. The 1 st respondent is a male adult to whom it is alleged a kidney was donated by the 1 st interested party.
8. The 2 nd interested party is vested with the mandate of undertaking criminal investigations and related acts in Kenya. It derives its mandate from Article 247 of the Constitution of Kenya and through the National Police Service Act 2011 which establishes the directorate as an organ of the NPS responsible to the Inspector General. Its mandate is further derived from Part IV Section 28 and 35 of the National Police Service Act 2011 which gives the core functions of the Directorate in the areas of detection, prevention and investigation of crime.
9. The petitioner reveals that he was informed by the 1 st interested party that he visited the respondent’s Parklands Hospital Branch wherein they conducted several tests on him to ascertain the fitness of his kidney. He was registered under hospital number 107066, and issued with a voucher number CH29/2019.CRV/1360 and his bill raised as number J30439/19 .
10. Upon conducting tests and confirming that his kidney was fit for the purpose, the 2 nd respondent proceeded to admit him at their Eldoret Branch on 21 st May 2019 and discharged him on 7 th June 2019 . The petitioner asserts that during the 1 st interested party’s admission, the 2 nd respondent perpetuated illegalities by operating on him and, unlawfully and without colour of right, removed one of the 1 st interested party’s kidneys and transplanted it on the 1 st respondent.
11. The petitioner states that the purchase price of the 1 st interested party’s kidney was fixed at Kshs. 1.5 million which was promised would be paid to him upon transplanting his kidney to the 2 nd respondent’s patient.
12. The petitioner contends that the respondents conducted the said acts in total disregard of the Health Act 2017 which provides that organ donations be done for free. Further the actions by the respondents explain why there have been increased trafficking of persons for organ harvesting purposes.
13. The petitioner contends that despite the 1 st respondent receiving the donated kidney from the 1 st interested party, he has failed to take care of the ensuing medical bills and other expenses of the 1 st Interested Party. He contended that allowing the 2 nd respondent to continue with its hospital operations would encourage it to continue these unlawful, illegal and unconstitutional acts. The petitioner argues that the Directorate of Criminal Investigations has legal constitutional duty to step in and conduct the necessary investigations but have failed to do so.
The 2 nd Respondent’s Case
14. The 2 nd respondent states that it has numerous accredited hospital facilities within and without the country which are all specialized in different medical fields like tissue transplant services. Further they do not deal with organ donors directly as the recipient is required to go with the donor of choice after which the donor is subjected to rigorous legal and medical tests.
15. In the instant case, the 1 st interested party intimated to them that the 1 st respondent Gilbert Kariuki Gicheru was his cousin and the patient in need of a kidney and he wanted to assist him. On 4 th May 2019, the 1 st interested party visited their facility at mediplaza where several tests were conducted on him so as to ascertain if he was fit to be a viable kidney donor to the 1 st respondent. After tests were done, the 1 st interested party was successfully diagnosed as a healthy voluntary kidney donor as the Health Regulations dictates.
16. The 2 nd respondent avers that before the surgery, the 1 st interested party was keenly evaluated and tested for over 48 hours by experts and reported his body reactions. The 1 st interested party was admitted on 21 st May 2019 with IP number 21490 and the surgery to harvest his kidney was successfully done as he fully recovered and was discharged from the hospital on 7 th June 2019. The 2 nd respondent asserts that they drew a consent document from the 1 st interested party which form was given to him and its contents were explained to him so that the procedure was neither illegal nor unlawful. The 2 nd respondent further avers that the 1 st respondent was admitted at their facility on 15 th June 2019.
17. Prior to the surgery, the 1 st interested party executed a well drafted affidavit after his mental health was examined and reading the contents of the said affidavit sworn on 28 th June 2019. Further, prior to the surgery, the 1 st interested party made a statutory declaration indicating that he was going to voluntarily donate his kidney to his cousin, the 1 st respondent. He further swore that no payment referred to the Health Act had been made to him or any other person and submitted his copy of his identity card.
18. The 2 nd respondent avers that the 1 st interested party was continuously examined as the experts tested and observed his renal angiography which appeared very normal. After surgery, the 2 nd respondent prepared a cumulative bill of the 1 st interested party and it was paid. The 2 nd respondent refutes any claim that the surgery between the 1 st respondent and interested party was transactional at Kshs. 1.5 million which was to be paid as the purchase price of the kidney. Further, the 2 nd respondent stresses that they are well versed with Section 80(4)(a) of the Health Act 2017 which criminalizes charging a fee for a human organ.
19. The 2 nd respondent avers that they are not aware of any malpractices committed by the hospital and the petitioner’s allegations are malicious and are aimed to defame them. Further, the petitioner has not annexed any documentation to prove his allegations indicating that his petition is baseless and a waste of the court’s time. Further, they were summoned and investigated by the 2 nd interested party vide letter dated 30 th May 2023 which they responded vide letter dated 8 th June 2023 and they were cleared of any medical malpractices.
20. The 2 nd respondent argues that the petitioner wrongly applied Article 232 (e) and (f) of the Constitution as they are not opaque in the administration of their work and because medical records are private documents and records that both parties to the kidney transplant were privy to.
The 1 st Interested Party’s Case.
21. The 1 st interested party avers that he visited the 2 nd respondent’s Parklands Hospital Branch where their staff conducted several tests on him to ascertain the fitness of his kidney. At the hospital he was registered under hospital number 107066, issued with a voucher number CH29/2019.CRV/1360 and his bill was raised as number J30439/19. Upon conducting tests and confirming that his kidney was fit for purpose, the 2 nd respondent proceeded to admit him at their Eldoret Branch on 21 st may 2019 where his kidney was removed and he was discharged on 7 th June 2019.
22. The 1 st interested party contends that the 2 nd respondent unlawfully and without colour of right removed one of his kidneys and it was transplanted on one of the 2 nd respondent’s patients, the 1 st respondent. The 1 st interested party stresses that he never consented to his kidney being transferred to anyone. He further avers that the purchase price of his kidney was fixed at Kshs. 1.5 million and was sold to the 1 st respondent leaving no doubt that the 2 nd respondent commercially benefited from the sale of his kidney to his detriment.
23. As a result of his kidney’s removal, he has been in and out of hospital, he can no longer pass urine normally and his reproductive health is at its worst. The 1 st interested party argues that the 2 nd respondent violated Article 43(1) of the Constitution which provides that every person has the right to the highest attainable standard of health, which includes the right to healthcare services including reproductive health.
The 2 nd Interested Party’s Case.
24. The 2 nd interested party states that on 17 th May 2023 a report was made by the petitioner at the DCI Headquarters of an allegation of illegal purchase and sale of human kidney organ contrary to Section 80 of the Health Act in respect of the patient by the name Ayub Kanyi Nyamu, the 1 st interested party herein which incident took place at the 2 nd respondent’s premises. The matter was assigned to three investigation officers namely C.I. Patience Mungere, Cpl Ariga Nickson and PC Walter Menjo who commenced investigations by writing to the respondent seeking clarification on the allegations.
25. Pursuant to Section 52 of the National Police Service Act, the 2 nd interested party has tried on numerous occasions to contact the petitioner and the 1 st interested party without success for further information through various means including calls, text messages and requisition to compel attendance. Further, the 2 nd interested party has made an effort of travelling to the 1 st interested party’s homestead but he was not present at home but the investigation officer managed to have the father of the 1 st interested party record a statement as the next of kin.
26. The 2 nd interested party contends that the lack of cooperation from the petitioner and the 1 st interested party have made investigations in the matter difficult as the 1 st interested party is not able to verify the authenticity of the allegations by the petitioner. Further, the deponent asserts that there are no records or evidence to support the petitioner’s allegations of trading of prohibited human organ by the respondent. The 2 nd interested party argues that the petitioner’s case is misconceived, actuated with rumours, speculations, hearsay, unfound fears with no factual evidence to back the allegations.
27. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
28. The petitioner submitted that the respondents violated the 1 st interested party’s constitutional rights under Articles 28, 29(f), 40, 43(1)(a) and 46. Further, the respondents violated international treaties such as the universal Declaration of Human Rights; the international Covenant on Civil and Political rights and the Palermo Protocol which prohibit human trafficking and organ harvesting.
29. The petitioner argued that victims of egregious human rights violations deserve full compensation to a position that the victim was in before the unlawful act. Reliance was placed in J .O.O vs Praxeda Akinyi Ochieng & Another [2017] eKLR where the court awarded damages for unauthorized medical procedures and D.K. Marete vs Teachers Service Commission [2020] eKLR where the court awarded damages for dignity violations.
The 1 st Interested Party’s Submissions .
30. The 1 st interested party identified and listed four issues for determination which include: whether the 1 st interested party’s kidney was removed without a valid, informed and voluntary consent; whether the respondent’s consent instruments (generic admission/consent forms, statutory declaration and a post dated affidavit) satisfy the Constitution, Health act and professional standards for a living organ donation; whether the respondent’s documentation gaps and contradictions warrant adverse inferences and shift the evidential burden and whether the 1 st interested party’s constitutional rights under articles 26,28,29,31,43,46,47&10 were violated.
31. On the first issue, the 1 st interested party submitted that the 2 nd respondent’s claim that he swore an affidavit prior to the surgery is refuted by its own date; 28 th June 2019 which is after the surgery and after discharge on 7 th June 2019. Thus the 1 st interested party argued that a post event affidavit is not contemporaneous consent and cannot cure the absence of pre-operative informed consent pursuant to Section 8 and 9 of the Health Act and the decision in Law & 2 Others vs Marura Maternity and Nursing Home & 3 Others; International Community of Women Living with HIV (ICW) (INTERESTED Party); Secretariat of the Joint United Nations Programme on HIV/AIDS & 2 Others (Amicus Curiae) (Constitutional Petition 606 of 2014) [2022] KEHC 17132 (KLR) (Constitutional and Human Rights) (16 December 2022) (Judgment) where the court examined the meaning of informed consent as follows:-
Drawing from the above discussion, it can be deduced that informed consent may be regarded as having been properly obtained upon the healthcare provider satisfying the following:
(i) Ascertains the age of the patient.
(ii) Ascertains if the patient is a minor or is under any disability that makes him/her unable to understand and consent, for instance, if one is too ill or mentally incapacitated.
(iii) In the event the patient is a minor or is under any disability that makes him/her unable to understand and consent, such consent be obtained from another person legally authorised to give such consent.
(iv) Ascertains the literacy level of the patient or the one legally authorised to give such consent, as the case may be.
(v) Ascertains the language the patient wishes to use. An interpreter may be availed if need be.
(vi) Ascertains, as much as possible, the background of the patient.
(vii) Discloses the patient’s health status as restrained by the law or a Court order.
(viii) Explains the range of promotive, preventive and diagnostic procedures and treatment options generally available to the patient.
(ix) Explains the benefits, risks, costs and consequences generally associated with each option.
(x) Explains the patient’s right to refuse the recommended medical options and the implications, risks, and legal consequences of such refusal.
(xi) Takes all reasonable steps and ensure that the patient, or the one giving the consent, is reasonably free and not under any form of compulsion, duress or coercion.
(xii) The explanations given to the patient to be, in as much as possible, in the nature of a dialogue with the aim of ensuring that the patient fully understands the seriousness of her/his condition, the anticipated benefits and risks of the proposed treatment and any reasonable alternatives so much so that the patient makes an informed decision. To a very great extent technical language be avoided.
(xiii) The patient ought to be accorded time, if need be, to enable him/her consider the information given and to decide except in cases where the procedure is an emergency.
(xiv) The consent must be in writing.
32. The 1 st interested party argued that a generic admission form is inadequate for a living donor nephrectomy which requires specialised counselling on the non therapeutic nature of the surgery, its material risks, available alternatives, the right to withdraw consent, confidentiality, follow up obligations and confirmation of no payment or inducement all of which were absent.
33. The 1 st interested party further argued that a hospital that undertakes living donor nephrectomy bears a primary, non delegable duty of care to the donor. Therefore by disclaiming direct responsibility, the 2 nd respondent undermines the very foundation of lawful transplantation, which is premised on safeguarding the donor’s autonomy, health and dignity. Reliance was placed in the case of HWK vs Rachel N. Kangethe & Karen Hospital Nairobi [2019] KEHC 1753 (KLR) where the court held as follows:-
From the onset, it is trite law that a doctor who operates without the consent of his patient is, save in cases of emergency or mental disability, is guilty of the civil wrong of trespass to the person and he is also guilty of the criminal offence of assault.
34. The court made further reference to the court’s holding in PBS vs Archdiocese of Nairobi Kenya Registered Trustees & 2 Others (2016) eKLR in which the court cited the medical journal as thus:-
Expectations of a patient are twofold. Doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly, they will not do anything to harm the patient in any manner either because of their negligence, carelessness or recklessness or attitude of their staff. Though a doctor may not be in a position to save his patient’s life at all times, he is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him. Therefore, it is expected that a doctor carryout a report from the patient. Furthermore, unless it is an emergency, he obtains informed consent of the parties before proceeding with any major treatment, surgical operation even invasive investigation. Failure of a doctor and hospital to discharge this obligation is essentially a tortious liability.
35. The 1 st interested party argued that the removal of his kidney was undertaken without valid, informed and voluntary consent and the 2 nd respondent’s reliance on the generic admission or consent form falls short of the constitutional, statutory and professional thresholds for living donor nephrectomy. Furthermore, the international and professional standards reinforce the said position. The World Health Organization Guiding Principles on Human Cell, Tissue and Organ Transplantation (2010) and the Declaration of Istanbul (2018) require: independent counselling; ethics committee oversight and protections against coercion and inducement.
36. Further, the 1 st interested party asserted that in April 2025, the Ministry of Health suspended all kidney transplant services at Mediheal Hospitals pending a multiagency investigation into the allegations of unethical organ harvesting and consent irregularities. The matter has been the subject of parliamentary inquiries and extensive media scrutiny underscoring that Mediheal transplant services are not isolated lapses but symptomatic of deeper institutional noncompliance.
37. The 1 st interested party cited Sections 107 – 109 of the Evidence Act and the case of St. Damiano Medical Centre vs Were (Suing on behalf of the Estate of the late Doris Nafula Palanga) (Civil Appeal E005 of 2020) [2022] KEHC 14094 (KLR) and argued that the burden of proof shifted to the 2 nd respondent as in hospital patient disputes, clinical notes, consent forms, theatre registers and audit trails are uniquely within the hospital’s possession and control and thus they are required to produce them. The court stated:-
Although the above decisions were made in road traffic accident claims, but the principles enunciated are applicable in claims of the tort of negligence and I have no hesitation in applying them to this suit, since the principles arises from the application of Section 112 of the Evidence Act Cap 80 Laws of Kenya which enacts that:-
In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
38. The 1 st interested party argued that the 2 nd respondent failed to answer whether valid consent was obtained before the incision; which risks were explained; what alternatives were canvassed; whether inducement/coercion was screened; which committee approved the donation; who verified the identity of the 1 st interested party which facts were exclusively within the 2 nd respondent’s knowledge and records. The 1 st interested party urged the court to find that the 2 nd respondent’s record gaps and contradictions warrant adverse inferences that no valid consent was obtained.
39. The 1 st interested party argued that his constitutional rights under Article 28, 29, 26 and 25 were violated as the surgery was non consensual. Further Article 31 was breached by contradictory recipient records and lack of proper documentation of consent, undermining medical confidentiality and personal autonomy, Article 43 for lack of specialised counselling, independent donor advocacy and psychological assessment, Article 46 for the 2 nd respondent’s reliance on post event declarations and Article 47 by denying the donor accurate information, quality service and fair processes. Additionally, the 2 nd respondent’s conduct violated Article 10 of the Constitution which values transparency, accountability and human dignity that bind private hospitals discharging a public function.
Analysis and Determination
40. Arising from the pleadings and the submissions of the Parties, the Court considers the following to be the issues for determination in this Petition:
a) Whether having regard to the factual matrix and the nature of allegations p in this Petition, the court should uphold the separation of powers principle and exercise judicial restraint and defer the issues to the mandated constitutional or statutory bodies
b) Whether the 1 st interested party’s rights under Articles 10, 26, 28, 29, 31, 43, 46 and 47 of the Constitution were violated.
c) Whether the 1 st interested party is entitled to the orders sought.
Whether having regard to the factual matrix and the nature of allegations in this Petition, the court should uphold the separation of powers principle and exercise judicial restraint and defer the issues to the mandated constitutional or statutory bodies
41. In adjudication of constitutional disputes, courts are guided by various judicial principles. The Court not only upholds the separation of powers principle but will also defer to other branches of government or bodies with specialised mandate and are best suited to deal with the matter, rather than entertaining court action unless there is clear abuse of power or violation of rights.
42. The core of this Petition is illegal organ transplantation. This is an offence punishable by fine not exceeding ten million shillings or ten years imprisonment or to both fine and imprisonment. Section 80 of the Health Act, Cap 241 provides as follows: 80. Human organs transplantation
(1) No person shall remove tissue or gametes from a human being for transplantation in another human being or carry out the transplantation of such tissue or gametes except—
(a) in a duly authorized health facility for that purpose; and
(b) on the written authority of—
i) the medical practitioner in charge of clinical services in that health facility or any other medical practitioner authorized by him or her; or
ii) in the case where there is no medical practitioner in charge of the clinical services at that health facility, a medical practitioner authorized by the person in charge of the hospital; or
(iii)the person from whom the tissue or gametes are removed, in the prescribed manner.
(2) The medical practitioner mentioned in subsection (1)(b) shall not be the lead participant in a transplant for which he or she has granted authorization under that subsection.
(3) The Cabinet Secretary shall prescribe through regulations—
(a) the criteria for the approval of organ transplant facilities; and
(b) the procedural measures to be applied for such approval.
4) a) Any person who contravenes the provision of this section or fails to comply therewith or who charges a fee for a human organ commits an offence.
b) Any person convicted of an offence under paragraph (a) is liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a period not exceeding ten years or to both a fine and imprisonment.
43. The National Police Service is established under Article 243 of the Constitution. The Constitution further mandates Parliament in Article 245 (8) to enact legislation to give full effect to this Constitutional provision. Accordingly, Parliament enacted the National Police Service Act No. 11 A of 2011 which under section 24 (e) empowers the Police to investigate crimes. In addition, the National Police Service Act creates the Directorate of Criminal Investigations (DCI), whose functions under Section 35 (b) include to ‘undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others’
44. It is manifest that the substance of this Petition implicates an offence under Section 80 (4) of the Health Act. Indeed, the Petitioner took the necessary step and lodged a criminal complaint with the Directorate of Criminal Investigations.
45. According to the 2 nd interested party (the Directorate of Criminal Investigation) , on 17 th May 2023 a report was made by the petitioner at the DCI Headquarters in regard to a complaint relating to illegal purchase and sale of human kidney organ contrary to Section 80 of the Health Act in respect of the patient by the name Ayub Kanyi Nyamu , (the 1 st interested party herein) which allegedly took place at the 2 nd respondent’s premises.
46. The matter was assigned three investigation officers namely Chief Inspector Patience Mungere, Corporal Ariga Nickson and Police Constable Walter Menjo who commenced investigations by writing to the respondent seeking clarification on the allegations.
47. Subsequently, and pursuant to Section 52 of the National Police Service Act, the 2 nd interested party on numerous occasions tried to contact the petitioner and the 1 st interested party without success through all means possible including making calls, text messages and requisition to compel attendance.
48. Finally, the 2 nd interested party made an effort and travelled to the 1 st interested party’s homestead but they did not find him at home, the investigation officer only managed find the father of the 1 st interested party who recorded a statement as the next of kin.
49. The 2 nd interested party thus attested that there was the lack of cooperation from the petitioner and the 1 st interested party which made investigations into this matter difficult as the 1 st interested party failed to avail himself to verify the authenticity of the allegations made by the petitioner. As such, the 2 nd Interested Party stated that it no evidence was provided to support the petitioner’s allegations of trading of prohibited human organ by the respondent.
50. Neither the Petitioner nor the 1 st Interested Party controverted this factual assertion by the 2 nd Interested Party, yet in one of the orders sought in this Petition, the Petitioner seeks
‘ An order of mandamus compelling the 2 nd interested party to criminally investigate and if culpable, instruct the Director of Public Prosecutions (DPP) to criminally prosecute the respondent for his flagrant breach of the law.’
51. The Petitioner has not in this Petition demonstrated by way of evidence a deliberate failure by the 2 nd Interested Party to investigate the matter or any bad faith or harassment or bias on the part of the 2 nd Interested Party in pursuing this matter. On the contrary, it is apparent that it is the Petitioner and the 1 st Interested Party that have been dodging the investigators and have demonstrated lack of willingness to cooperate with the 2 nd Interested party which has been ready and willing to get to the bottom of their complaint.
52. In my view, the Petitioner cannot run away from an institution that both the Constitution and the Statute has conferred the specific mandate of investigating such complaints by directly seeking to invoke the constitutional jurisdiction of this Court. This Court will exercise self-restraint and abstain from interfering in an active investigation before the DCI unless there is proof of any extra ordinary circumstances like bad faith or harassment, which is not the case here.
53. The Court has an obligation to accord the 2 nd Interested Party deference in discharge its mandate. Such was the position echoed in the case of W
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