' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO. E293 OF 2025
MR PETER WAINA & 7 OTHERS…………………………………..PLAINTIFFS
VERSUS
MR FELIX OSANO & 10 OTHERS……………………………....DEFENDANTS
AND
THE BOARD OF MANAGEMENT KENYA HOSPITAL
ASSOCIATION T/A THE NAIROBI HOSPITAL………1 ST AFFECTED PARTY
THE KENYA HOSPITAL ASSOCIATION T/A
THE NAIROBI HOSPITAL…………………………...…2 ND AFFECTED PARTY
RULING/DIRECTIONS
Background
This matter was auto-allocated by the CTS to Hon. Mr. Justice (Prof) (Dr.) Nixon Sifuna to consider and give directions in the Notice of Motion dated 4 th November 2025, filed under Certificate of Urgency of the same date. That application was filed together with a Plaint bearing the same date.
The Honourable Judge gave directions on the matter on the application on 5 th November 2025 with a further mention date on 18 th November 2025. On the latter date, the Honourable Judge issued further directions in the matter and scheduled a mention date on 24 th November 2025 to confirm compliance.
On 24 th November 2025 the Honourable Judge made orders forwarding this matter to the Presiding Judge of the Civil Division for mention on 25 TH November 2025 for purposes of giving formal directions in respect of the hearing and determination of this matter. This was necessitated after information reached the Honourable Judge from the Deputy Registrar of the Civil Division that other files related to this one had been transferred to the Commercial & Tax Division.
On 25 th November 2025, counsel briefly addressed the court on the matter in regard to whether this file should be transferred to the Commercial & Tax Division for hearing and determination alongside other matters related to the dispute involving the Nairobi Hospital and other parties. Mr. Kipkosgei for 1-4, 6, 7,9-11 Defendants and Mr. Okubasu for Affected Parties supported the idea of having the file transferred to the Commercial & Tax Division while Mr. Ligunya for the Plaintiffs held the view that any transfer of this matter to the Commercial and Tax Division would cause injustice to the parties given that the matter was pending compliance to directions/orders issued in the matter.
This Court referred the matter back to Hon. Mr. Justice Prof. (Dr.) Nixon Sifuna for mention on 27 th November 2025 for purposes of hearing the parties on the issues they were raising in respect of the transfer of this file.
In the intervening period, on 26 th November 2025, a Certificate of Urgency was filed alongside a Notice of Motion dated 25 th November 2025 by Mr. Okubasu, counsel for the 1 st and 2 nd Affected Parties seeking to have orders to have the file placed before the Principal Judge of the High Court for directions or alternatively, to have the file transferred to the Commercial & Tax Division of the High Court for hearing together with other related matters.
This Application was auto-allocated to this Court by the system. I directed that the matter be served and the parties to appear before this Court today, 27 th November 2025 for directions.
Directions from the Principal Judge
The directions of this court to transfer this matter to the Commercial & Tax Division were informed by an Internal Memo dated 5 th November 2025, from the Principal Judge of the High Court to the Presiding Judges of the Civil Division, Civil Appellate Division, Judicial Review Division and Constitutional & Human Rights Division directing that all pending files and any subsequent cases relating to The Nairobi Hospital, filed in those Divisions, were to be transmitted to the Presiding Judge, Commercial & Tax Division for directions.
Acting on the aforesaid Memo, I, in my capacity as the Presiding Judge of the Civil Division, called for all the files being handled by the Judges in the Civil Division in order to comply with that directive. On 18 th November 2025, I had received only four files. Through a letter dated 18 th November 2025, these four matters were transferred from the Civil Division to the Presiding Judge, Commercial & Tax Division. The current file was not one of them for the reasons that the Deputy Registrar was not able to access the file at the time.
In view of the Certificate of Urgency and the Notice of Motion mentioned under Paragraph 6 of this Ruling and following the directions issued in that Application this matter was placed before this Court today for directions.
This court disclosed to counsel present, as shown on the record of the Court in today’s proceedings, that I was not in a position to listen to the issues being raised in the application before the court for reasons that one of the Defendants in the dispute is related to me. I cautioned the parties that I was not in a position to determine any substantive issues raised in this matter for that reason.
Counsel who attended court addressed the court in submissions on what ought to be done. Among the applications (oral) made were that this matter be forwarded to the Hon. Chief Justice for directions on how this matter should proceed; arguments were made to have this matter placed before the Principal Judge of the High Court for transfer and consolidation of all matters related to Nairobi Hospital; other views were that this matter be placed before Hon. Mr. Justrice Prof. (Dr.) Sifuna for determination.
I have considered all the arguments made and the views of counsel present before this court. It is factual that a number of files relating to the dispute or disputes emanating from Nairobi Hospital, especially matters filed in the Civil Division, have been transferred to the Commercial & Tax Division vide my letter dated 18 th November 2025.
It is my considered view, and with tremendous respect to all counsel who appeared before this court this morning, that it is prudent to transfer this file, HCCC E293 of 2025 to the Commercial & Tax Division for necessary action as directed in the Internal Memo dated 5 th November 2025.
I am alive to the issues raised by the parties in their brief arguments this morning. Given my disclosure regarding the reasons behind my incapacity to handle substantive issues being raised in this matter, and in obedience to the Constitutional command under Article 159(2) (b) of the Constitution of Kenya and the Overriding Objective under Section 1A of the Civil Procedure Act, it is my considered view that this matter be placed before the Presiding Judge of the Commercial & Tax Division, expeditiously, to allow parties a chance to ventilate the issues they are raising to enable determination of those issues and directions on the way forward.
For the above reasons, I decline the invitation to place this matter before the Hon. Chief Justice for reasons that basis has not been laid for doing so. I further decline to grant the request to place the file before the Hon. Principal Judge of the High Court for reasons that he has already issued directions on how to proceed with all matters related to this instant matter.
For good order and for expediency, the orders of this court issued on 25 th November 2025 referring the matter to Hon. Mr. Justice Prof. (Dr.) Nixon Sifuna for determination on the issue of transferring this file to the Commercial & Tax Division, cannot stand. Consequently, I hereby vary the orders issued on 25 th November 2025.
It is so ordered.
Any party is at liberty to apply.
Dated, signed and delivered this 27 th day of November 2025.
S. N. MUTUKU
JUDGE
In the presence of:
Mr. Ligunya, Mr. Oduol, for the Plaintiffs
Mr. Kipkosgei and Mr. Kiragu Kimani for 1-4, 6, 7, 9-11 Defendants
Mr. Mareba for 5 th Defendant
Ms Onsare for 8 th Defendant
Mr. Okubasu for Affected Parties
'
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO. E293 OF 2025
MR PETER WAINA & 7 OTHERS…………………………………..PLAINTIFFS
VERSUS
MR FELIX OSANO & 10 OTHERS……………………………....DEFENDANTS
AND
THE BOARD OF MANAGEMENT KENYA HOSPITAL
ASSOCIATION T/A THE NAIROBI HOSPITAL………1 ST AFFECTED PARTY
THE KENYA HOSPITAL ASSOCIATION T/A
THE NAIROBI HOSPITAL…………………………...…2 ND AFFECTED PARTY
RULING/DIRECTIONS
Background
This matter was auto-allocated by the CTS to Hon. Mr. Justice (Prof) (Dr.) Nixon Sifuna to consider and give directions in the Notice of Motion dated 4 th November 2025, filed under Certificate of Urgency of the same date. That application was filed together with a Plaint bearing the same date.
The Honourable Judge gave directions on the matter on the application on 5 th November 2025 with a further mention date on 18 th November 2025. On the latter date, the Honourable Judge issued further directions in the matter and scheduled a mention date on 24 th November 2025 to confirm compliance.
On 24 th November 2025 the Honourable Judge made orders forwarding this matter to the Presiding Judge of the Civil Division for mention on 25 TH November 2025 for purposes of giving formal directions in respect of the hearing and determination of this matter. This was necessitated after information reached the Honourable Judge from the Deputy Registrar of the Civil Division that other files related to this one had been transferred to the Commercial & Tax Division.
On 25 th November 2025, counsel briefly addressed the court on the matter in regard to whether this file should be transferred to the Commercial & Tax Division for hearing and determination alongside other matters related to the dispute involving the Nairobi Hospital and other parties. Mr. Kipkosgei for 1-4, 6, 7,9-11 Defendants and Mr. Okubasu for Affected Parties supported the idea of having the file transferred to the Commercial & Tax Division while Mr. Ligunya for the Plaintiffs held the view that any transfer of this matter to the Commercial and Tax Division would cause injustice to the parties given that the matter was pending compliance to directions/orders issued in the matter.
This Court referred the matter back to Hon. Mr. Justice Prof. (Dr.) Nixon Sifuna for mention on 27 th November 2025 for purposes of hearing the parties on the issues they were raising in respect of the transfer of this file.
In the intervening period, on 26 th November 2025, a Certificate of Urgency was filed alongside a Notice of Motion dated 25 th November 2025 by Mr. Okubasu, counsel for the 1 st and 2 nd Affected Parties seeking to have orders to have the file placed before the Principal Judge of the High Court for directions or alternatively, to have the file transferred to the Commercial & Tax Division of the High Court for hearing together with other related matters.
This Application was auto-allocated to this Court by the system. I directed that the matter be served and the parties to appear before this Court today, 27 th November 2025 for directions.
Directions from the Principal Judge
The directions of this court to transfer this matter to the Commercial & Tax Division were informed by an Internal Memo dated 5 th November 2025, from the Principal Judge of the High Court to the Presiding Judges of the Civil Division, Civil Appellate Division, Judicial Review Division and Constitutional & Human Rights Division directing that all pending files and any subsequent cases relating to The Nairobi Hospital, filed in those Divisions, were to be transmitted to the Presiding Judge, Commercial & Tax Division for directions.
Acting on the aforesaid Memo, I, in my capacity as the Presiding Judge of the Civil Division, called for all the files being handled by the Judges in the Civil Division in order to comply with that directive. On 18 th November 2025, I had received only four files. Through a letter dated 18 th November 2025, these four matters were transferred from the Civil Division to the Presiding Judge, Commercial & Tax Division. The current file was not one of them for the reasons that the Deputy Registrar was not able to access the file at the time.
In view of the Certificate of Urgency and the Notice of Motion mentioned under Paragraph 6 of this Ruling and following the directions issued in that Application this matter was placed before this Court today for directions.
This court disclosed to counsel present, as shown on the record of the Court in today’s proceedings, that I was not in a position to listen to the issues being raised in the application before the court for reasons that one of the Defendants in the dispute is related to me. I cautioned the parties that I was not in a position to determine any substantive issues raised in this matter for that reason.
Counsel who attended court addressed the court in submissions on what ought to be done. Among the applications (oral) made were that this matter be forwarded to the Hon. Chief Justice for directions on how this matter should proceed; arguments were made to have this matter placed before the Principal Judge of the High Court for transfer and consolidation of all matters related to Nairobi Hospital; other views were that this matter be placed before Hon. Mr. Justrice Prof. (Dr.) Sifuna for determination.
I have considered all the arguments made and the views of counsel present before this court. It is factual that a number of files relating to the dispute or disputes emanating from Nairobi Hospital, especially matters filed in the Civil Division, have been transferred to the Commercial & Tax Division vide my letter dated 18 th November 2025.
It is my considered view, and with tremendous respect to all counsel who appeared before this court this morning, that it is prudent to transfer this file, HCCC E293 of 2025 to the Commercial & Tax Division for necessary action as directed in the Internal Memo dated 5 th November 2025.
I am alive to the issues raised by the parties in their brief arguments this morning. Given my disclosure regarding the reasons behind my incapacity to handle substantive issues being raised in this matter, and in obedience to the Constitutional command under Article 159(2) (b) of the Constitution of Kenya and the Overriding Objective under Section 1A of the Civil Procedure Act, it is my considered view that this matter be placed before the Presiding Judge of the Commercial & Tax Division, expeditiously, to allow parties a chance to ventilate the issues they are raising to enable determination of those issues and directions on the way forward.
For the above reasons, I decline the invitation to place this matter before the Hon. Chief Justice for reasons that basis has not been laid for doing so. I further decline to grant the request to place the file before the Hon. Principal Judge of the High Court for reasons that he has already issued directions on how to proceed with all matters related to this instant matter.
For good order and for expediency, the orders of this court issued on 25 th November 2025 referring the matter to Hon. Mr. Justice Prof. (Dr.) Nixon Sifuna for determination on the issue of transferring this file to the Commercial & Tax Division, cannot stand. Consequently, I hereby vary the orders issued on 25 th November 2025.
It is so ordered.
Any party is at liberty to apply.
Dated, signed and delivered this 27 th day of November 2025.
S. N. MUTUKU
JUDGE
In the presence of:
Mr. Ligunya, Mr. Oduol, for the Plaintiffs
Mr. Kipkosgei and Mr. Kiragu Kimani for 1-4, 6, 7, 9-11 Defendants
Mr. Mareba for 5 th Defendant
Ms Onsare for 8 th Defendant
Mr. Okubasu for Affected Parties
'