REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E249 OF 2025
BETWEEN
DR. NELSON MALENYA …………………………………………PETITIONER
AND
THE CABINET SECRETARY FOR HEALTH ……………..1 ST RESPONDENT
KENYA DENTAL ASSOCIATION (KDA)……………..…...2 ND RESPONDENT
KENYA MEDICAL PRACTITIONERS AND DENTISTS COUNCIL (KMPDC)………………………………………………………,3 RD RESPONDENT
DR. TIMOTHY THEURI KABAIKU………………………...4 TH RESPONDENT
THE ATTORNEY GENERAL………………………………..5 TH RESPONDENT
JUDGMENT
1. In his petition dated 5 th May 2025 the petitioner, Dr. Nelson Malenya, seeks the following reliefs:
a) A declaration be and is hereby issued that the appointment of the 4 th respondent as the representative of the 2 nd respondent to the 3 rd respondent is null and void ab initio due to non-compliance with section 3A (10) The Medical Practitioners and Dentists Act, Cap 253 Laws of Kenya.
b) A declaration be and is hereby issued that the 1 st and 2 nd respondents’ refusal to provide nomination records violates the petitioner’s rights to access information under Article 35 and section 4(1) of the Access to Information Act, 2016.
c) A declaration be and is hereby issued that the continued service of the 4 th respondent as a council member of the 3 rd respondent, despite the impending expiry of his term, constitutes an ongoing violation of the Constitution and Sections 3A (10) of the Medical Practitioners and Dentists Act, Cap 253.
d) An order barring the 4 th respondent from acting as a council member of the 3 rd respondent unless duly nominated and appointed in accordance with section 3A (10) and the Constitution.
e) An order be and is hereby made quashing the Gazette Notice No. 2877 dated 6 th March 2023 and taking effect on 10 th March 2023.
f) An order be and is hereby made compelling the 2 nd respondent to establish a monitoring mechanism to ensure that all future appointments under section 3A (1)) of the Medical Practitioners and Dentists Act, Cap 253 laws of Kenya, are made strictly in accordance with the statutory provisions, taking into account the criteria of ethnic diversity, gender, disability, skills mix, and regional balance.
g) The cost of the suit be awarded to the petitioner.
h) Any other order that the Court deems fit in the circumstances of this case.
2. The petition is premised on grounds on the face thereof and supported by an affidavit of the petitioner sworn on even date. The petitioner challenges the legality of the nomination and appointment process of the 4 th respondent as a council member of the 3 rd respondent.
3. The petitioner is a member of the Kenya Dental Association (KDA) and served as a member of the National Governing Council (NGC) of the 2 nd respondent from June 2021 to June 2023. It is stated than during the said period, no meetings were convened by the said Council to deliberate or approve the nomination of any person, including the 4 th respondent, for the appointment to the Kenya Medical Practitioners and Dentists Council (KMPDC).
4. It is stated that on or about 6 th March 2023, the 1 st respondent published Gazette Notice No. 2877, appointing the 4 th respondent as a council member of the 3 rd respondent. It is contended that consequently, despite formal requests made on 17 th September 2024, 24 th October 2024 and 4 th November to the 1 st and 2 nd respondents seeking for nomination records, none was provided.
5. The petitioner contends that the 4 th respondent was the President of the 2 nd respondent at the time of his nomination and appointment and therefore may have influenced or directly controlled the nomination process mandated under section 3A (1) of the Medical Practitioners and Dentists Act, thus raising serious concerns about impartiality and legality of his nomination.
6. It is asserted that the failure of the 2 nd respondent to provide any records of the nomination process, despite the 4 th respondent’s role, strongly suggests that the nomination may have been a self-serving act orchestrated by the 4 th respondent himself. This did not align with the dictates of Articles 10, 73 and 232 of the Constitution.
7. The petitioner believes that the 2 nd respondent submitted only one nominee for the appointment, contrary to section 3A (10). In addition, he acknowledges that the 4 th respondent’s term as a council member of the 2 nd respondent was set to expire in March 2026.
8. The petitioner asserts that in sum, the 1 st and 2 nd respondents’ actions violated the provisions of Articles 2(1) and (4), 3, 10 (2) (a), (c) and (d), 22, 27(1), 35 (1) (b), 48 and 232 (1) (d), (f) and (g) of the Constitution and sections 3A (10) of the Medical Practitioners and Dentists Act, Cap 253 Laws of Kenya.
Responses to the petition
9. The 1 st , 2 nd and 5 th respondents did not file formal response to the petition.
The 3 rd respondent’s response
10. The 3 rd respondent filed a replying affidavit sworn on 10 th July 2025 by Dr. David Kariuki in opposing the petition. It is contended that under section 3A (10) of the Medical Practitioners and Dentists Act, the role of the 3 rd respondent is strictly limited to the receipt of appointed members from the 1 st respondent. It is further contended that the nomination and appointment processes are undertaken by the 2 nd respondent and the 1 st respondent respectively.
11. The 3 rd respondent denies receiving any request for information from the petitioner under Article 35 of the Constitution and the Access to Information Act and therefore asserts that it cannot be faulted for non-disclosure. It is also denied that the 3 rd respondent exercises any discretion or influence over the choice of nominees by professional bodies and that neither does it supervise nor control the internal affairs or governance structure of bodies, including that of the 2 nd respondent.
12. The 3 rd respondent posits that the allegations against the 4 th respondent are speculative and do not demonstrate any constitutional or statutory violation on its part. It urges this Court not to interfere with the process unless demonstrated that there was impropriety.
The 4 th Respondent’s response
13. The 4 th respondent filed replying affidavit sworn on 14 th August 2025 in opposing the petition. He states that he is the immediate former President of the 2 nd respondent and that he was appointed as a council member of the 3 rd respondent on 6 th March 2023. He further asserts that his appointment was lawful and compliant with all statutory and constitutional requirements.
14. The 4 th respondent deposes that by a letter dated 16 th December 2022 addressed to him in his capacity as the President of the 2 nd respondent, the 1 st respondent requested the 2 nd respondent to forward the names of two nominees one of whom was to be appointed to the 3 rd respondent (KMPDC) under Section 3A (1) (c) iii) of the Medical Practitioners and Dentists Act.
15. The 4 th respondent claims that the letter requiring the nomination was received after they had closed for the year in December 2022 and that therefore, the earliest the next governing council meeting would have been held was in the third week of January 2023. That in view of the requirement that names ought to have been tendered by 3 rd January 2023, there was need to move with speed in order to comply with the timelines given.
16. Accordingly, that the National Executive Committee (NEC) of the 2 nd respondent convened and resorted to picking the immediate past President Dr Linus Ndegwa and the 4 th respondent, as the second name for consideration by the Cabinet Secretary.
17. It is deposed that NEC informed the NGC of this decision and no objection was noted in the meeting hence, the decision was deemed ratified in an NGC meeting held on 26 th January 2023. It is further deponed that by tabling the issue before the NGC, there was open room for discussion and, if necessary, a retraction of the names provided to the 1 st respondent.
18. The 4 th respondent acknowledges that the petitioner did not attend the meeting but pleads that the minutes of the meeting were available to all NGC members and that therefore the petitioner had access to the same. In addition, that the petitioner was present in the succeeding meeting held on 22 nd February 2023 in which he never raised any issue with the names presented to the respondent for appointment.
19. The 4 th respondent deposes that during this period of nomination and appointment, he served alongside the petitioner in the NGC of the 2 nd respondent and that therefore, his appointment to the 3 rd respondent was done during the petitioner’s term as a member of the NGC. Further, that the petitioner continued to serve the 2 nd respondent in his capacity as a member of the NGC even after the 4 th respondent’s appointment to the 3 rd respondent and never raised any questions, complaints or issues concerning the appointment.
20. The 4 th respondent is of the view that the petitioner therefore had the capacity and capability as a serving member of the 2 nd respondent’s NGC to verify the process of nomination and subsequent appointment and that having failed to do so, the allegations that the process was opaque and violative of Article 27 of the Constitution are unfounded.
21. It is further contended that the petition is filed two years after the fact and that contrary to the petitioner’s assertions, section 3A of the Medical Practitioners and Dentists Act, Cap 253 provides a criterion for nominations and appointment to the 3 rd respondent. It also contended that the Act does not prescribe a specific process to be followed by the organizations for the selection of the nominees. That on the contrary, it is the Cabinet Secretary who was tasked with considering ethnic diversity, gender, disability, skills mix and regional balance while compiling the final list of nominees for purposes of appointment.
The Petitioner’s submissions
22. The petitioner submits relying on his written submissions dated 18 th November, 2025, that contrary to the 4 th respondent’s assertions, in the minutes of 26 th January 2023, the only reference to the nominations appears under any other business where the President reported that two names had been forwarded to the Ministry of Health. That there is no record of motion, discussion, deliberation, voting, approval or collective decision-making authorising or ratifying the nominations.
23. It is submitted that in the subsequent KDA Council meeting held on 22 nd February 2023 there is no mention whatsoever of the nominations or any attempt to confirm or regularize the same, nor were the minutes of 26 th January 2023 presented for confirmation. The petitioner contends that such action where the President was himself one of the nominees, creates a clear conflict of interest and demonstrates procedural impropriety and abuse of office and that it violates both the statutory framework and the internal governance procedures of the 2 nd respondent.
24. It is submitted that the Cabinet Secretary’s letter of 16 th December 2022 expressly required one male and one female nominee yet both names forwarded were male, which led to a violation of section 3A (10) and constitutional principles of diversity, fairness and inclusivity under Articles 10 and 232(1)(g) of the Constitution.
25. According to the petitioner, section 3 A (10) requires a structured, participatory and representative nomination process and that the forwarding of names without a resolution of the NEC or NGC therefore amounted to an illegal, unreasonable and procedurally improper administrative action contrary to Article 47 of the Constitution and Section 4(1) of the Fair Administrative Action Act (FAAA). He argues that the Cabinet Secretary could not validly appoint a person whose nomination was procedurally defective.
26. The petitioner maintains that the 1 st and 2 nd respondent violated the provisions Article 35 of the Constitution and section 4(1) of the Access to Information Act by failing to respond to his letters requesting for information. Reliance is placed on Law Monthly Company v Kenya Electricity Generating Company [2013] eKLR; Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission [2016] eKLR and Katiba Institute v President’s Delivery Unit & 3 others [2017] e KLR to support this argument.
27. It is submitted that an appointment tainted with illegality does not become cured merely by the effluxion of time. In this regard, the petitioner submits that the impending expiry of the 4 th respondent’s term in March 2026 did not sanitize the illegality. Reliance is placed on Trusted Society of Human Rights Alliance v Nakuru Water & Sanitation Services Co. [2013] eKLR . The petitioner further relies on Articles 22, 23 and 165 of the Constitution and urges that the orders sought be granted.
The 3 rd respondent’s submissions
28. The 3 rd respondent filed written submissions dated 4 th may, 2026. It is submitted that the import of section 3A (10) of the Medical Practitioners and Dentists Act, is that, the 3 rd respondent’s role is confined to the receipt of duly appointed members and that therefore, any alleged irregularity in the nomination or appointment process cannot be attributed to the 3 rd respondent.
29. Regarding violation of Article 35, it is reiterated that no request for information was made to the 3 rd respondent. It is argued that the right to access information is not self executing in the abstract but that it is triggered by a request hence, a party alleging violation must demonstrate that a request was made and that it was either declined or ignored.
30. The 3 rd respondent asserts that no violation has been imputed on it . That the petition makes broad references to constitutional provisions, including Articles 10, 27, 35, 73 and 232, but does not set out, with clarity, the manner in which those provisions have been infringed by the 3 rd respondent, which, according to the 3 rd respondent, militates against the dictates in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Othe rs which emphasises that allegations of constitutional violation must be supported by evidence and must clearly demonstrate the nexus between the impugned conduct and the alleged breach.
31. Further submission by the 3 rd respondent is that the allegations of conflict of interest against the 4 th respondent do not implicate the 3 rd respondent in any way since it has no role in vetting of the nominees and does not participate in the decision-making process leading to their appointment. It is argued that even if such allegations were to be considered, they would properly lie against the nominating or appointing authorities.
The 4 th respondent’s submission
32. The 4 th respondent filed written submissions dated 5 th March, 2026. He submits that the petitioner’s assertion regarding the conduct of the nomination is untenable. He asserts that he had given an outline of the process that was undertaken by the 2 nd respondent in submitting his nomination and also given the timelines within which the submission of the nominees was to be done and that the petitioner had not controverted those averments on oath, including the averment that the 2 nd respondent has two governing structures, the NEC and the NGC, nor does he dispute that the timelines for submitting the nominees were timebound hence the need for NEC to it and carry out the nomination.
33. The 4 th respondent further submits that the petitioner has in addition not disputed that the matter was tabled before the NGC and that no objection to the nominations was tabled. It is submitted that a cursory look at the minutes reflects that under the title A.O.B, members were able to raise questions and deliberate any other matters raised and where deliberated, with the record reflecting the nature of the deliberations. He argues that the fact that no member objected to the nominations as tabled by the 4 th respondent is proof that there was room to discuss, raise objections and deliberate but that no deliberation was deemed necessary by NGC.
34. It is submitted by the 4 th respondent that under section 3A of the KMPD Act, the responsibility for gender balance lies with the Cabinet Secretary. Further, that it has not been claimed that the 4 th respondent failed to consider gender balance in the ultimate composition of the 2 nd respondent’s council. He submits that there was also no statutory requirement or even a provision under the Constitution that prescribed that the 2 nd respondent ought to have nominated a man and a woman, hence, a nomination of two male dentists was not a contravention of the law as long as the final constitution of the Council was balanced.
35. It is submitted that section 3A (10) does not prescribe the internal mechanisms for nominations and that as such, this Court cannot impose requirements that do not exist in law. He submits that in the process of nominating the 4 th respondent, the 2 nd respondent, conducted its matters through the channels available to it through the NEC. Further, that the fact that a different decision could have been made is not sufficient to conclude that the nomination and subsequent appointment of the 4 th respondent was unconstitutional or shrouded in illegality.
36. The 4 th respondent relies on the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR to argue that section 3A does not require any of the professional bodies to nominate one man and one woman and that the proposal in the letter dated 16 th December 2022 that the 2 nd respondent nominate one man and one woman was therefore not a statutory requirement. Further reliance is placed on Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] KLR.
37. It is reiterated that the petition is undermined by inordinate, unexplained and prejudicial delay. That the petitioner was a member of NGC during the meeting of 26 th January 2023 when the nomination of the 4 th respondent was tabled before the Council and was still a member during the appointment, but did not object to the nomination, yet he has brought this petition over two years after the impugned process. Reliance is placed on the case of Mutai & 9 others v Attorney General [2019] KECA 125 (KLR) that the delay is not only inordinate but also prejudicial as it undermines certainty in public administration.
38. Regarding Article 35, the 4 th respondent submits that the petitioner has not demonstrated that he sought information from the 3 rd respondent. Reliance is further placed on Kenya Youth Parliament & 2 others v AG & Another Constitutional Petition NO. 101 of 2011 for the proposition that courts hesitate to enter into the arena of merit review of a constitutionally mandated function by another organ of State that has proceeded with due regard to procedure; and that the court’s intervention in the case would be of necessity, be pursuant to the petitioner meeting a high threshold of proof of illegality which the petitioner in this case has not demonstrated.
39. It is submitted that the petitioner has failed to provide proof of violation of Articles 2, 10, 27, 48, 50 73 and 232 of the Constitution. The 4 th respondent relies on Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR and Orix Oil (Kenya) Limited v Paul Kabeu & 2 others [2014] eKLR and urges this Court to dismiss the petition with costs.
Analysis and Determination
40. I have considered the petition, the responses and the detailed submissions filed by each of the parties’ counsel. I find the following issues arising for determination:
a) Whether this court has jurisdiction in view of the doctrine of exhaustion and constitutional avoidance
b) Whether the petition is merited
Analysis
Whether this court has jurisdiction in view of the doctrine of exhaustion and constitutional avoidance
41. A cursory look at the petition reveals that the petitioner is raising two concerns. First, that the nomination and appointment of the 4 th respondent as a member of the 3 rd respondent was marred with illegality and second, that he sought information regarding the said nomination from the 1 st and 2 nd respondents but none was forthcoming. The 1 st , 2 nd and 5 th respondents did not file formal responses to the petition. However, the 3 rd respondent in its replying affidavit contended that no such information was sought from it and that evidence was not adduced to demonstrate that information was sought but was denied.
42. In my view, although as elucidated hereinabove, two issues can be gleaned from the petition, that is that of the nominations allegedly being illegal and the failure to provide information requested, the issue of access to information is paramount. The reason is that, while the petitioner imputes the process of nominating and appointing the 4 th respondent and claims that the same did not align with the dictates of section 3A(10) of the Act, in order to proof a substantive part of his case, the petitioner needs to rely on the information regarding the nominations from 1 st and 2 nd respondent.
43. The issue regarding jurisdiction has not been raised in the petition. However, the Court can on its own motion determine this issue. In Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR) the Supreme Court stated as follows;
41.This court’s jurisdiction flows from the Constitution and the applicable statutes. See Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others , SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.
44. In Vincent Mwanthi Kioko v Edward Sigei & 4 others [2021] KEHC 3947 (KLR) the court held that;
15. The Preliminary objection in this matter is founded on basis of the doctrine of exhaustion. The doctrine is a sound legal one which is applicable to constitutional petitions. In essence, except in instances where the exceptions to the doctrine apply to a matter, the doctrine of exhaustion presents a complete bar to proceedings in Court. Therefore, the objection is capable of wholly disposing the matter if successful. To that end, the objection passes the propriety test and is for consideration.
45. Furthermore, a jurisdictional issue can be raised by the Court on its own motion or by the parties, as was stated in the locus classicus on jurisdiction in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) that:
“30. With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given” See Words and Phrases Legally defined – Volume 3: I – N Page 113
31.It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited . Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.
32.I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.
[Paragraph omitted in the reported decision]
34.In I Congresso del Partido, [1978] 1 QB 500, the River Rima, Gatoi International Inc v Arkwright – Boston M. M. Insurance Co. & Others and The Evpo Agnic, the respective courts analysed the evidence before the court and upon that evidence the question of jurisdiction was immediately decided.”
46. Based on the foregoing authorities it is trite that a jurisdiction issue has to be determined first and that the issue of exhaustion and constitutional avoidance is a jurisdictional issue.
47. Article 35 (1) of the Constitution guarantees every citizen the right of access to information held by the State and held by another person and required for the exercise or protection of nay right or fundamental freedom.
48. The Access to Information Act, 2016 was enacted to give effect to the right of access to information. Section 4(1) of the Act mirrors the provisions of Article 35(1) of the Constitution. Subsection 2 makes it explicit that the right of information is not affected by any reason the person gives for seeking access or the public entity’s belief as to what the person’s reasons are for seeking access. Subsection 3 stipulates that the access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost. Subsection 4 provides that the Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.
49. Section 8 of the Act provides for application for access while section 9 provides for the processing of the application. It stipulates that subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty-one days or receipt of the application. Under subsection (2), where the information sought concerns the life or liberty of a person, the information officer shall provide the information within 48 hours of the receipt of the application. Subsection (3) provides for the circumstances where the information officer may extend the period of response in cases where the information sought concerns the life or liberty of a person.
50. Section 8(4) of the Act provides:
(4) As soon as the information access officer has made a decision as to whether to provide access to information, he or she shall immediately communicate the decision to the requester, indicating—
(a)whether or not the public entity or private body holds the information sought;
(b)whether the request for information is approved:
(c)if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and
(d)if the request is declined, a statement about how the requester may appeal to the Commission;
51. Section 8 subsection (6) provides that where the applicant does not receive a response to an application within the period stated in subsection (1) that is 21 days, the application shall be deemed to have been rejected.
52. Section 11 provides for access to information as follows:
(1) Where a decision is taken to provide the information applied for, an information access officer shall send to the applicant a written response within fifteen working days of receipt of the application, advising—
(a)that the application has been granted;
(b)that the information will be contained in an edited copy, where applicable;
(c)the details of any fees or further fees to be paid for access, together with the calculations made to arrive at the amount of the fee;
(d)the method of payment of such fees, if any;
(e)the proposed process of accessing the information once the payment if any is made; and
(f)that an appeal may be made to the Commission in respect of the amount of fees required or the form of access proposed to be provided.
(2) Subject to subsection (3), upon receipt of the fee payable, an information access officer shall provide the information to the applicant or permit the relevant inspection immediately but in any event not later than two working days from the date of receipt of the payment.
(3) Any information to be
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E249 OF 2025
BETWEEN
DR. NELSON MALENYA …………………………………………PETITIONER
AND
THE CABINET SECRETARY FOR HEALTH ……………..1 ST RESPONDENT
KENYA DENTAL ASSOCIATION (KDA)……………..…...2 ND RESPONDENT
KENYA MEDICAL PRACTITIONERS AND DENTISTS COUNCIL (KMPDC)………………………………………………………,3 RD RESPONDENT
DR. TIMOTHY THEURI KABAIKU………………………...4 TH RESPONDENT
THE ATTORNEY GENERAL………………………………..5 TH RESPONDENT
JUDGMENT
1. In his petition dated 5 th May 2025 the petitioner, Dr. Nelson Malenya, seeks the following reliefs:
a) A declaration be and is hereby issued that the appointment of the 4 th respondent as the representative of the 2 nd respondent to the 3 rd respondent is null and void ab initio due to non-compliance with section 3A (10) The Medical Practitioners and Dentists Act, Cap 253 Laws of Kenya.
b) A declaration be and is hereby issued that the 1 st and 2 nd respondents’ refusal to provide nomination records violates the petitioner’s rights to access information under Article 35 and section 4(1) of the Access to Information Act, 2016.
c) A declaration be and is hereby issued that the continued service of the 4 th respondent as a council member of the 3 rd respondent, despite the impending expiry of his term, constitutes an ongoing violation of the Constitution and Sections 3A (10) of the Medical Practitioners and Dentists Act, Cap 253.
d) An order barring the 4 th respondent from acting as a council member of the 3 rd respondent unless duly nominated and appointed in accordance with section 3A (10) and the Constitution.
e) An order be and is hereby made quashing the Gazette Notice No. 2877 dated 6 th March 2023 and taking effect on 10 th March 2023.
f) An order be and is hereby made compelling the 2 nd respondent to establish a monitoring mechanism to ensure that all future appointments under section 3A (1)) of the Medical Practitioners and Dentists Act, Cap 253 laws of Kenya, are made strictly in accordance with the statutory provisions, taking into account the criteria of ethnic diversity, gender, disability, skills mix, and regional balance.
g) The cost of the suit be awarded to the petitioner.
h) Any other order that the Court deems fit in the circumstances of this case.
2. The petition is premised on grounds on the face thereof and supported by an affidavit of the petitioner sworn on even date. The petitioner challenges the legality of the nomination and appointment process of the 4 th respondent as a council member of the 3 rd respondent.
3. The petitioner is a member of the Kenya Dental Association (KDA) and served as a member of the National Governing Council (NGC) of the 2 nd respondent from June 2021 to June 2023. It is stated than during the said period, no meetings were convened by the said Council to deliberate or approve the nomination of any person, including the 4 th respondent, for the appointment to the Kenya Medical Practitioners and Dentists Council (KMPDC).
4. It is stated that on or about 6 th March 2023, the 1 st respondent published Gazette Notice No. 2877, appointing the 4 th respondent as a council member of the 3 rd respondent. It is contended that consequently, despite formal requests made on 17 th September 2024, 24 th October 2024 and 4 th November to the 1 st and 2 nd respondents seeking for nomination records, none was provided.
5. The petitioner contends that the 4 th respondent was the President of the 2 nd respondent at the time of his nomination and appointment and therefore may have influenced or directly controlled the nomination process mandated under section 3A (1) of the Medical Practitioners and Dentists Act, thus raising serious concerns about impartiality and legality of his nomination.
6. It is asserted that the failure of the 2 nd respondent to provide any records of the nomination process, despite the 4 th respondent’s role, strongly suggests that the nomination may have been a self-serving act orchestrated by the 4 th respondent himself. This did not align with the dictates of Articles 10, 73 and 232 of the Constitution.
7. The petitioner believes that the 2 nd respondent submitted only one nominee for the appointment, contrary to section 3A (10). In addition, he acknowledges that the 4 th respondent’s term as a council member of the 2 nd respondent was set to expire in March 2026.
8. The petitioner asserts that in sum, the 1 st and 2 nd respondents’ actions violated the provisions of Articles 2(1) and (4), 3, 10 (2) (a), (c) and (d), 22, 27(1), 35 (1) (b), 48 and 232 (1) (d), (f) and (g) of the Constitution and sections 3A (10) of the Medical Practitioners and Dentists Act, Cap 253 Laws of Kenya.
Responses to the petition
9. The 1 st , 2 nd and 5 th respondents did not file formal response to the petition.
The 3 rd respondent’s response
10. The 3 rd respondent filed a replying affidavit sworn on 10 th July 2025 by Dr. David Kariuki in opposing the petition. It is contended that under section 3A (10) of the Medical Practitioners and Dentists Act, the role of the 3 rd respondent is strictly limited to the receipt of appointed members from the 1 st respondent. It is further contended that the nomination and appointment processes are undertaken by the 2 nd respondent and the 1 st respondent respectively.
11. The 3 rd respondent denies receiving any request for information from the petitioner under Article 35 of the Constitution and the Access to Information Act and therefore asserts that it cannot be faulted for non-disclosure. It is also denied that the 3 rd respondent exercises any discretion or influence over the choice of nominees by professional bodies and that neither does it supervise nor control the internal affairs or governance structure of bodies, including that of the 2 nd respondent.
12. The 3 rd respondent posits that the allegations against the 4 th respondent are speculative and do not demonstrate any constitutional or statutory violation on its part. It urges this Court not to interfere with the process unless demonstrated that there was impropriety.
The 4 th Respondent’s response
13. The 4 th respondent filed replying affidavit sworn on 14 th August 2025 in opposing the petition. He states that he is the immediate former President of the 2 nd respondent and that he was appointed as a council member of the 3 rd respondent on 6 th March 2023. He further asserts that his appointment was lawful and compliant with all statutory and constitutional requirements.
14. The 4 th respondent deposes that by a letter dated 16 th December 2022 addressed to him in his capacity as the President of the 2 nd respondent, the 1 st respondent requested the 2 nd respondent to forward the names of two nominees one of whom was to be appointed to the 3 rd respondent (KMPDC) under Section 3A (1) (c) iii) of the Medical Practitioners and Dentists Act.
15. The 4 th respondent claims that the letter requiring the nomination was received after they had closed for the year in December 2022 and that therefore, the earliest the next governing council meeting would have been held was in the third week of January 2023. That in view of the requirement that names ought to have been tendered by 3 rd January 2023, there was need to move with speed in order to comply with the timelines given.
16. Accordingly, that the National Executive Committee (NEC) of the 2 nd respondent convened and resorted to picking the immediate past President Dr Linus Ndegwa and the 4 th respondent, as the second name for consideration by the Cabinet Secretary.
17. It is deposed that NEC informed the NGC of this decision and no objection was noted in the meeting hence, the decision was deemed ratified in an NGC meeting held on 26 th January 2023. It is further deponed that by tabling the issue before the NGC, there was open room for discussion and, if necessary, a retraction of the names provided to the 1 st respondent.
18. The 4 th respondent acknowledges that the petitioner did not attend the meeting but pleads that the minutes of the meeting were available to all NGC members and that therefore the petitioner had access to the same. In addition, that the petitioner was present in the succeeding meeting held on 22 nd February 2023 in which he never raised any issue with the names presented to the respondent for appointment.
19. The 4 th respondent deposes that during this period of nomination and appointment, he served alongside the petitioner in the NGC of the 2 nd respondent and that therefore, his appointment to the 3 rd respondent was done during the petitioner’s term as a member of the NGC. Further, that the petitioner continued to serve the 2 nd respondent in his capacity as a member of the NGC even after the 4 th respondent’s appointment to the 3 rd respondent and never raised any questions, complaints or issues concerning the appointment.
20. The 4 th respondent is of the view that the petitioner therefore had the capacity and capability as a serving member of the 2 nd respondent’s NGC to verify the process of nomination and subsequent appointment and that having failed to do so, the allegations that the process was opaque and violative of Article 27 of the Constitution are unfounded.
21. It is further contended that the petition is filed two years after the fact and that contrary to the petitioner’s assertions, section 3A of the Medical Practitioners and Dentists Act, Cap 253 provides a criterion for nominations and appointment to the 3 rd respondent. It also contended that the Act does not prescribe a specific process to be followed by the organizations for the selection of the nominees. That on the contrary, it is the Cabinet Secretary who was tasked with considering ethnic diversity, gender, disability, skills mix and regional balance while compiling the final list of nominees for purposes of appointment.
The Petitioner’s submissions
22. The petitioner submits relying on his written submissions dated 18 th November, 2025, that contrary to the 4 th respondent’s assertions, in the minutes of 26 th January 2023, the only reference to the nominations appears under any other business where the President reported that two names had been forwarded to the Ministry of Health. That there is no record of motion, discussion, deliberation, voting, approval or collective decision-making authorising or ratifying the nominations.
23. It is submitted that in the subsequent KDA Council meeting held on 22 nd February 2023 there is no mention whatsoever of the nominations or any attempt to confirm or regularize the same, nor were the minutes of 26 th January 2023 presented for confirmation. The petitioner contends that such action where the President was himself one of the nominees, creates a clear conflict of interest and demonstrates procedural impropriety and abuse of office and that it violates both the statutory framework and the internal governance procedures of the 2 nd respondent.
24. It is submitted that the Cabinet Secretary’s letter of 16 th December 2022 expressly required one male and one female nominee yet both names forwarded were male, which led to a violation of section 3A (10) and constitutional principles of diversity, fairness and inclusivity under Articles 10 and 232(1)(g) of the Constitution.
25. According to the petitioner, section 3 A (10) requires a structured, participatory and representative nomination process and that the forwarding of names without a resolution of the NEC or NGC therefore amounted to an illegal, unreasonable and procedurally improper administrative action contrary to Article 47 of the Constitution and Section 4(1) of the Fair Administrative Action Act (FAAA). He argues that the Cabinet Secretary could not validly appoint a person whose nomination was procedurally defective.
26. The petitioner maintains that the 1 st and 2 nd respondent violated the provisions Article 35 of the Constitution and section 4(1) of the Access to Information Act by failing to respond to his letters requesting for information. Reliance is placed on Law Monthly Company v Kenya Electricity Generating Company [2013] eKLR; Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission [2016] eKLR and Katiba Institute v President’s Delivery Unit & 3 others [2017] e KLR to support this argument.
27. It is submitted that an appointment tainted with illegality does not become cured merely by the effluxion of time. In this regard, the petitioner submits that the impending expiry of the 4 th respondent’s term in March 2026 did not sanitize the illegality. Reliance is placed on Trusted Society of Human Rights Alliance v Nakuru Water & Sanitation Services Co. [2013] eKLR . The petitioner further relies on Articles 22, 23 and 165 of the Constitution and urges that the orders sought be granted.
The 3 rd respondent’s submissions
28. The 3 rd respondent filed written submissions dated 4 th may, 2026. It is submitted that the import of section 3A (10) of the Medical Practitioners and Dentists Act, is that, the 3 rd respondent’s role is confined to the receipt of duly appointed members and that therefore, any alleged irregularity in the nomination or appointment process cannot be attributed to the 3 rd respondent.
29. Regarding violation of Article 35, it is reiterated that no request for information was made to the 3 rd respondent. It is argued that the right to access information is not self executing in the abstract but that it is triggered by a request hence, a party alleging violation must demonstrate that a request was made and that it was either declined or ignored.
30. The 3 rd respondent asserts that no violation has been imputed on it . That the petition makes broad references to constitutional provisions, including Articles 10, 27, 35, 73 and 232, but does not set out, with clarity, the manner in which those provisions have been infringed by the 3 rd respondent, which, according to the 3 rd respondent, militates against the dictates in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Othe rs which emphasises that allegations of constitutional violation must be supported by evidence and must clearly demonstrate the nexus between the impugned conduct and the alleged breach.
31. Further submission by the 3 rd respondent is that the allegations of conflict of interest against the 4 th respondent do not implicate the 3 rd respondent in any way since it has no role in vetting of the nominees and does not participate in the decision-making process leading to their appointment. It is argued that even if such allegations were to be considered, they would properly lie against the nominating or appointing authorities.
The 4 th respondent’s submission
32. The 4 th respondent filed written submissions dated 5 th March, 2026. He submits that the petitioner’s assertion regarding the conduct of the nomination is untenable. He asserts that he had given an outline of the process that was undertaken by the 2 nd respondent in submitting his nomination and also given the timelines within which the submission of the nominees was to be done and that the petitioner had not controverted those averments on oath, including the averment that the 2 nd respondent has two governing structures, the NEC and the NGC, nor does he dispute that the timelines for submitting the nominees were timebound hence the need for NEC to it and carry out the nomination.
33. The 4 th respondent further submits that the petitioner has in addition not disputed that the matter was tabled before the NGC and that no objection to the nominations was tabled. It is submitted that a cursory look at the minutes reflects that under the title A.O.B, members were able to raise questions and deliberate any other matters raised and where deliberated, with the record reflecting the nature of the deliberations. He argues that the fact that no member objected to the nominations as tabled by the 4 th respondent is proof that there was room to discuss, raise objections and deliberate but that no deliberation was deemed necessary by NGC.
34. It is submitted by the 4 th respondent that under section 3A of the KMPD Act, the responsibility for gender balance lies with the Cabinet Secretary. Further, that it has not been claimed that the 4 th respondent failed to consider gender balance in the ultimate composition of the 2 nd respondent’s council. He submits that there was also no statutory requirement or even a provision under the Constitution that prescribed that the 2 nd respondent ought to have nominated a man and a woman, hence, a nomination of two male dentists was not a contravention of the law as long as the final constitution of the Council was balanced.
35. It is submitted that section 3A (10) does not prescribe the internal mechanisms for nominations and that as such, this Court cannot impose requirements that do not exist in law. He submits that in the process of nominating the 4 th respondent, the 2 nd respondent, conducted its matters through the channels available to it through the NEC. Further, that the fact that a different decision could have been made is not sufficient to conclude that the nomination and subsequent appointment of the 4 th respondent was unconstitutional or shrouded in illegality.
36. The 4 th respondent relies on the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR to argue that section 3A does not require any of the professional bodies to nominate one man and one woman and that the proposal in the letter dated 16 th December 2022 that the 2 nd respondent nominate one man and one woman was therefore not a statutory requirement. Further reliance is placed on Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] KLR.
37. It is reiterated that the petition is undermined by inordinate, unexplained and prejudicial delay. That the petitioner was a member of NGC during the meeting of 26 th January 2023 when the nomination of the 4 th respondent was tabled before the Council and was still a member during the appointment, but did not object to the nomination, yet he has brought this petition over two years after the impugned process. Reliance is placed on the case of Mutai & 9 others v Attorney General [2019] KECA 125 (KLR) that the delay is not only inordinate but also prejudicial as it undermines certainty in public administration.
38. Regarding Article 35, the 4 th respondent submits that the petitioner has not demonstrated that he sought information from the 3 rd respondent. Reliance is further placed on Kenya Youth Parliament & 2 others v AG & Another Constitutional Petition NO. 101 of 2011 for the proposition that courts hesitate to enter into the arena of merit review of a constitutionally mandated function by another organ of State that has proceeded with due regard to procedure; and that the court’s intervention in the case would be of necessity, be pursuant to the petitioner meeting a high threshold of proof of illegality which the petitioner in this case has not demonstrated.
39. It is submitted that the petitioner has failed to provide proof of violation of Articles 2, 10, 27, 48, 50 73 and 232 of the Constitution. The 4 th respondent relies on Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR and Orix Oil (Kenya) Limited v Paul Kabeu & 2 others [2014] eKLR and urges this Court to dismiss the petition with costs.
Analysis and Determination
40. I have considered the petition, the responses and the detailed submissions filed by each of the parties’ counsel. I find the following issues arising for determination:
a) Whether this court has jurisdiction in view of the doctrine of exhaustion and constitutional avoidance
b) Whether the petition is merited
Analysis
Whether this court has jurisdiction in view of the doctrine of exhaustion and constitutional avoidance
41. A cursory look at the petition reveals that the petitioner is raising two concerns. First, that the nomination and appointment of the 4 th respondent as a member of the 3 rd respondent was marred with illegality and second, that he sought information regarding the said nomination from the 1 st and 2 nd respondents but none was forthcoming. The 1 st , 2 nd and 5 th respondents did not file formal responses to the petition. However, the 3 rd respondent in its replying affidavit contended that no such information was sought from it and that evidence was not adduced to demonstrate that information was sought but was denied.
42. In my view, although as elucidated hereinabove, two issues can be gleaned from the petition, that is that of the nominations allegedly being illegal and the failure to provide information requested, the issue of access to information is paramount. The reason is that, while the petitioner imputes the process of nominating and appointing the 4 th respondent and claims that the same did not align with the dictates of section 3A(10) of the Act, in order to proof a substantive part of his case, the petitioner needs to rely on the information regarding the nominations from 1 st and 2 nd respondent.
43. The issue regarding jurisdiction has not been raised in the petition. However, the Court can on its own motion determine this issue. In Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR) the Supreme Court stated as follows;
41.This court’s jurisdiction flows from the Constitution and the applicable statutes. See Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others , SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.
44. In Vincent Mwanthi Kioko v Edward Sigei & 4 others [2021] KEHC 3947 (KLR) the court held that;
15. The Preliminary objection in this matter is founded on basis of the doctrine of exhaustion. The doctrine is a sound legal one which is applicable to constitutional petitions. In essence, except in instances where the exceptions to the doctrine apply to a matter, the doctrine of exhaustion presents a complete bar to proceedings in Court. Therefore, the objection is capable of wholly disposing the matter if successful. To that end, the objection passes the propriety test and is for consideration.
45. Furthermore, a jurisdictional issue can be raised by the Court on its own motion or by the parties, as was stated in the locus classicus on jurisdiction in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) that:
“30. With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given” See Words and Phrases Legally defined – Volume 3: I – N Page 113
31.It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited . Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.
32.I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.
[Paragraph omitted in the reported decision]
34.In I Congresso del Partido, [1978] 1 QB 500, the River Rima, Gatoi International Inc v Arkwright – Boston M. M. Insurance Co. & Others and The Evpo Agnic, the respective courts analysed the evidence before the court and upon that evidence the question of jurisdiction was immediately decided.”
46. Based on the foregoing authorities it is trite that a jurisdiction issue has to be determined first and that the issue of exhaustion and constitutional avoidance is a jurisdictional issue.
47. Article 35 (1) of the Constitution guarantees every citizen the right of access to information held by the State and held by another person and required for the exercise or protection of nay right or fundamental freedom.
48. The Access to Information Act, 2016 was enacted to give effect to the right of access to information. Section 4(1) of the Act mirrors the provisions of Article 35(1) of the Constitution. Subsection 2 makes it explicit that the right of information is not affected by any reason the person gives for seeking access or the public entity’s belief as to what the person’s reasons are for seeking access. Subsection 3 stipulates that the access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost. Subsection 4 provides that the Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.
49. Section 8 of the Act provides for application for access while section 9 provides for the processing of the application. It stipulates that subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty-one days or receipt of the application. Under subsection (2), where the information sought concerns the life or liberty of a person, the information officer shall provide the information within 48 hours of the receipt of the application. Subsection (3) provides for the circumstances where the information officer may extend the period of response in cases where the information sought concerns the life or liberty of a person.
50. Section 8(4) of the Act provides:
(4) As soon as the information access officer has made a decision as to whether to provide access to information, he or she shall immediately communicate the decision to the requester, indicating—
(a)whether or not the public entity or private body holds the information sought;
(b)whether the request for information is approved:
(c)if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and
(d)if the request is declined, a statement about how the requester may appeal to the Commission;
51. Section 8 subsection (6) provides that where the applicant does not receive a response to an application within the period stated in subsection (1) that is 21 days, the application shall be deemed to have been rejected.
52. Section 11 provides for access to information as follows:
(1) Where a decision is taken to provide the information applied for, an information access officer shall send to the applicant a written response within fifteen working days of receipt of the application, advising—
(a)that the application has been granted;
(b)that the information will be contained in an edited copy, where applicable;
(c)the details of any fees or further fees to be paid for access, together with the calculations made to arrive at the amount of the fee;
(d)the method of payment of such fees, if any;
(e)the proposed process of accessing the information once the payment if any is made; and
(f)that an appeal may be made to the Commission in respect of the amount of fees required or the form of access proposed to be provided.
(2) Subject to subsection (3), upon receipt of the fee payable, an information access officer shall provide the information to the applicant or permit the relevant inspection immediately but in any event not later than two working days from the date of receipt of the payment.
(3) Any information to be
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