The Notice of Motion before this court dated 24th March 2025 is filed pursuant leave granted by the court (Hon. Chigiti J, SC) on 24 th March 2025. The application is brought under Order 53 Rules 3 and 4 of the Civil Procedure Rules.
The application seeks the following orders:
CERTIORARI to bring to the High Court and quash the decision of the 1 st Respondent to issue warrants of search in Criminal Miscellaneous Application No. E1069 of 2025, Republic Through the Honorable Attorney General v The Nairobi Hospital & 13 Others for purposes of investigations into the affairs of Kenya Hospital Association and the Nairobi Hospital over matters contained in the affidavit of Chief Inspector Martin on 21 st March 2025.
PROHIBITION prohibiting the 2 nd , 3 rd and 4 th Respondents from executing/further execution of the warrants of search issued on 21 st March 2025 in Criminal Miscellaneous Application No. E1069 of 2025, Republic Through the Honorable Attorney General v The Nairobi Hospital & 13 Others and attendant undertaking/continuation of investigations in respect of matters listed in the affidavit of Chief Inspector Martin Munene sworn on 20 th March 2025.
MANDAMUS compelling the 2 nd and 3 rd Respondents to return documents, all computers, laptops, iPad, tablets, all digital devises, databases, cloud storage systems, and equipment’s belonging to the Nairobi Hospital as well as the interested parties cut away in furtherance of investigations pursuant to the warrant of search issued by the 1 st Respondent on 21 st March 2025 in Criminal Miscellaneous Application No. E1069 of 2025, Republic Through the Honorable Attorney General v The Nairobi Hospital & 13 Others and to unfreeze and unblock restrictions on the bank accounts, telephone numbers and bank accounts of the 2 nd to 10 th Interested Parties.
THAT costs of this suit be borne by the Respondents.
THAT this Honourable court be pleased to issue any such order as it deems fit.
The application is supported by a statutory statement dated 24 th March 2025 and the affidavit of Felix Osano sworn on 24 th March 2025.
The Ex parte Applicant’s case is that by a letter dated 12 th March 2025, the 4 th Respondent Attorney General demanded for documents from the Applicant on the latter’s membership and the status of its Board of Management from 2019 to date. That the 4 th Respondent withheld dispatch of the letter until the 18 th March, 2025 when service was effected on a few Board Members of the applicant between the 18 th March, 2025 and 20 th March, 2025.
It is averred in deposition that on 21 st March 2025,at night acting on the orders issued by the 1 st Respondent, the 2 nd Respondent executed warrants of search, to inter alia, carry away original/copies of documents, all computers, laptops, iPad, tablets, all digital devices, databases, cloud storage systems, and equipment’s belonging to the Nairobi Hospital as well as to the Interested Parties.
According to the Ex parte Applicant, the reason stated in the application for the issuance of warrants was that it had refused to tender the requested documents notwithstanding that the documents are voluminous and the Applicant was in the process of preparing them.
The Ex parte Applicant’s further case is that on 21 st March 2025 from the evening and throughout the night, acting on the order of the 1 st Respondent issued on the 21 st day of March 2025, officers from the 2 nd and 3 rd Respondent raided the Nairobi Hospital, premises operated by the Applicant and sought to indiscriminately obtain the aforementioned documents, all computers, laptops, iPads, tablets, all digital devises, databases, cloud storage systems and equipment’s belonging to the Nairobi Hospital.
That the said aforementioned documents, computers, laptops, iPad, tablets, all digital devices, databases, cloud storage systems and equipment’s belonging to the Nairobi Hospital are the documents responsible for the day to day running of the operations of the Hospital. Further, that the Applicant operates the Nairobi Hospital, a health facility, with an obligation to protect information and records of its patients. It is stated that the information contained in the documents/items/equipment’s and gadgets is privileged and confidential as it related to patient data as well as advocate-client communication.
It is also the Ex parte Applicant’s case that at the instance of the 2 nd and 3 rd Respondent, the bank accounts, telephone numbers, MPESA accounts of the 2 nd to 10 th Interested Parties have been frozen and/or blocked which has had immediate adverse effects as doctors among them cannot be reached by their patients, assistants and nurses thus exposing their patients to risk to their health and lives. The doctors are also said to be unable to communicate with healthcare facilities as far as healthcare of their patients is concerned.
That lecturers among the interested parties are further said to be unable to conduct their teaching duties including being unreached by faculty and delivery of online classes.
Further, that parents among them are unable to pay for the upkeep of their children, they are also unable to meet their rental and loan obligations as they fall due. It is also the Ex parte Applicant’s case that the interested parties are unable to meet the operational expenses of running their offices or even to meet their obligations and upkeep.
The Respondents it is averred, have demanded that the Interested Parties who are directors of the Applicant attend to requisitions to compel attendance under section 52 of the National Police Service Act in furtherance of the impugned investigations.
According to the Ex parte Applicant, the actions of the Respondents are unlawful, irrational and disproportionate for the reasons that the investigations are not an honest endeavour at enforcement of criminal law as there are ongoing disputes on directorship/leadership between various members/officers of the Applicant community to wit, HCCCOMM E233 of 2024, Kenya Hospital Association T/A The Nairobi Hospital vs. Dr. Edwin Kipngeno Rono & 9 Others; HCCOMM/E544/2024 Kenya Hospital Association T/A Nairobi Hospital v Becky Valarie Genga-Eyama & Others; HCCOMM 81 of 2025, Samwel Muchiri & Others v Board of Management of Kenya Hospital Association & Others.
It is claimed that it is at the behest of the Respondents that the investigations have been commenced with a view of having a collateral attack against the current directorship. Further, that the said investigations are unlawful and bare harassment of the Interested Parties and to intimidate them to forego their positions over HCCCOMM E233 of 2024, Kenya Hospital Association T/A The Nairobi Hospital vs. Dr. Edwin Kipngeno Rono & 9 Others.
The Ex parte Applicant’s position is that the scope of the warrants is so wide that no identifiable offence is actually sought to be investigated. Also, that the items and electronic equipment that have been confiscated contain patient information and the investigations are unlawful to the extent that they are in breach of the Health Act 2017 as well as patients’ privacy and confidentiality.
According to the Ex parte Applicant, some of the information sought and the documents that were taken away, contain confidential advocate-client protected information and conversations.
That therefor there is an urgent need that Applicant’s application be allowed in order to safeguard patient information/data which is at the risk of being divulged, that the investigations and the attendant taking away of equipment’s/data threaten to paralyze the operations of the hospital as well as its discharge of obligations towards its patients and also, that Advocate-client confidentiality stands the risk of being breached. Further, that it is in the interest of justice that the instant application be allowed and the orders sought herein granted.
Responses
In response, the Respondents filed an application dated 25 th March 2024 and the 4 th Respondent also filed a preliminary objection of even date.
The application by the respondents seeks for the court to set aside and vacate the orders of this Honourable Court given on 24 th March 2025 granting leave to the Applicant to commence judicial review proceedings against the Respondents as well as the leave operating as stay in respect of proceedings/decision to undertake/continue investigations over all matters listed in the affidavit of Chief Inspector Martin Munene in Milimani Chief Magistrate’s Court Criminal Miscellaneous Application No. E1069 of 2025. It also seeks for the court to down it’s tools and strike out the matter forthwith on account of want of jurisdiction to hear and determine the judicial review application.
The application by the 4 th respondent is supported by the affidavit sworn by Chief Inspector Martin Munene on even date.
The Respondents in the application contend that this court lacks jurisdiction under the Companies Act, and that any challenge to the warrants should have first been made through review, revision or appeal in the proper forum. They also state that the instant application is an appeal disguised as a judicial review application and as such, is outside this court’s mandate.
That the Applicant and the Interested Parties are engaging in forum shopping, which will ultimately embarrass the Court.
According to the Respondents, the investigations, triggered by whistleblower complaints over the hospital’s decline, led to the court warrants being issued on 21 st March 2025. Inspectors are said to have seized some equipment and documents but faced resistance, including removal of laptops and attempts to destroy evidence by dumping hospital documents in garbage bags.
It is the Respondents’ case that the recovered documents contained crucial information.
The Respondents further assert that the Applicants’ conduct which includes removing and destroying evidence shows they lack clean hands and are in contempt of court orders. It is deposed that investigations have already uncovered significant information and that the Respondents seek to continue with same.
The Respondents’ further case is that the order of 24 th March 2025 granting leave for judicial review and a stay of investigations was obtained without full disclosure, curtails statutory investigative powers, prejudices public interest and hampers ongoing inquiries. This Court is urged to review, vary, or set aside the order, as it was granted without hearing the respondents.
It is argued that courts should not interfere with investigative powers unless cogent reasons exist, that the warrants were lawfully issued to facilitate inquiries and that it is premature to halt investigations. The respondents maintain that the application is pre-emptive, presumptuous, and based on material non-disclosure.
The 4 th Respondent’s preliminary objection raises a similar issue contained in the application for setting aside the exparte order for leave and leave operating as stay of investigations into the affairs of the exparte applicant company trading as The Nairobi Hospital.
The 4 th respondent contends that the instant judicial review application is an appeal disguised as a judicial review application seeking a merit review of the impugned decision which jurisdiction this court lacks by dint of the provisions of The Companies Act as read together with practice directions issued by the Chief Justice on the 18 th November, 1997.
The 1 st ,2 nd , 3 rd ,4 th , 5 th ,6 th ,8 th ,9 th ,10 th ,11 th and 12 th Interested Parties filed a Replying Affidavit in response to the notice of motion dated 25 th March 2025. The contents of the Affidavit are similar to the depositions contained in the verifying affidavit supporting the application for leave. I will nonetheless summarize the same herein below.
The Interested Parties state that on 12 th March 2025, the 5 th Respondent requested membership and board records from the Applicant dating back to 2019, but that the letter was only served between 18 th and 20 th March 2025.
That on 21 st March 2025, the 1 st Respondent, on the 2 nd Respondent’s application, obtained wide-ranging search warrants authorising seizure of documents, computers and other digital devices from the Nairobi Hospital, despite the Applicant being in the process of compiling the requested records.
They contend that the seized items are essential for hospital operations and contain sensitive patient data and confidential advocate–client communication. They also allege that the 2 nd to 10 th Interested Parties’ bank accounts, phone lines, and M-Pesa accounts were frozen, severely disrupting their professional, personal, and financial obligations.
The Interested Parties argue that the investigations are unlawful, irrational and intended to harass and intimidate them in the context of ongoing leadership disputes in the Kenya Hospital Association. They claim that the warrants issued are overly broad (covering January 2019–March 2025), breach patient privacy under the Health Act 2017, and risk exposing privileged communication.
The 7 th Interested Party filed a Replying Affidavit opposing the Respondent’s application dated 25 th March 2025 and to the substantive motion dated 26 th March 2025.
According to Dr. Magdalene Muthoka, the Respondents have not met the threshold for review of the orders issued on 24 th March 2025 granting leave and stay of investigations as the respondents have failed to demonstrate that there was a mistake or error apparent on the face of record and/or any sufficient reason to enable this court set aside its decision.
According to the 7 th Interested Party, the High Court has over-arching powers to look into the lawfulness of a process by which a decision of a judicial or quasi-judicial body was arrived at and can set it aside if the process was flawed. This, according to the 7 th Interested Party, extends to decisions made by the 4 th Respondent in exercise of the powers granted under section 800 of the Companies Act.
Further, that the current proceedings are not meant in any way to curtail the investigative powers of the 2 nd and 3 rd Respondents but are meant to guard against abuse of investigative powers by the investigative authorities.
Additionally, that the orders of 24 th March,2025 were intended to preserve the status quo and to stop further breaches of fundamental rights and freedoms by the 2 nd and 3 rd Respondents and that there is no cogent reason why those orders should be disturbed.
Regarding the substantive motion, the 7 th Interested Party fully supports the prayers sought therein and states that the 2 nd and 3 rd Respondents have been ill-bent on harassing, intimidating and unlawfully interfering with the Board of Management of the Applicant under the guise of conducting criminal investigations. That the investigations are only meant to intimidate and force some of the Interested Parties to forego their leadership positions in the Board of Management of the Applicant.
That the freezing and/or blocking the bank accounts, telephone numbers and MPESA accounts of the Interested Parties without according them a fair administrative action makes their life unbearable and as such, this Court has no option other than to intervene.
The Ex parte Applicant’s Response to the 4 th Respondents’ application dated 25 th March 2025
In response to the 4 th respondent’s application dated 25 th March, 2025, the Ex parte Applicant filed grounds of opposition dated 2 nd April 2025. It contends that the Registrar of Companies is not a party to these proceedings and the instant suit is not about enforcement of the Companies Act but rather is about the exercise of administrative powers exercised by the 2 nd and 3 rd Respondents.
The Applicant also contends that the actions of the 1 st Respondent are within the supervisory jurisdiction of this Honourable Court. Additionally, that there is nothing to be stayed/set aside in respect to the impugned ex parte order already issued by the 1 st Respondent.
That the High Court has no appellate or revisionary jurisdiction over regulation of ex parte proceedings already completed. Further, that in any case, the instant application discloses illegality, irregularity and breaches of procedural aspects of law to deserve judicial review interventions.
Submissions
The application was canvassed by way of written and oral submissions made before the court on 12 th June 2025. In their submissions well summarised orally by Dr Okubasu, counsel for the Ex parte Applicant submitted that the basis for the reliefs sought is Pastoli v Kabale District Local Government Council & Others, (2008) 2 EA 300 and that the Ex parte Applicant seeks the orders on account of illegality as defined in the Pastoli Kabale case.
According to counsel, the Ex parte Applicant is a hospital, and that under paragraph 3 of the order of 21/3/2025 the 2 nd , 3 rd and 4 th Respondents are authorized to have full access to its ICT & digital devices and cloud storage systems.
He also submitted that as a hospital, that equipment contains patient information which cannot be accessed, and he relied on Article 31 of the Constitution. He also submitted that there was no Data Impact Assessment conducted as provided under Section 31 of the Data Protection. It was also his submission that under Section 11 of the Health Act, Prohibition of patient's information is subject to Regulations that may be published by Cabinet Secretary Health.
It was also submitted that warrants have to be cautious on what information to be accessed and that it cannot be indiscriminate access. According to the Ex parte Applicant, the Respondents compromised rights of third parties who were not subject of investigations. Counsel submitted that the order must be quashed.
Dr. Okubasu also submitted that under paragraph 4 of the order, the Respondents were allowed to access all documents and pleadings filed by all law firms who have acted for the Hospital from 2015 to date. This, it was submitted, is even though the offence being investigated was that of money laundering.
Counsel argued that under Section 18 of the Proceeds of Crime and Anti-Money Laundering Act, only a Judge of the High Court may issue an order of disclosure, directed to an advocate, not a client. That, the Magistrates court has no power to issue an order of investigations to a client and as such, the orders issued were ultra vires and unlawful.
Counsel also submitted that it mattered not that the application was allegedly filed under Section 815 of the Companies Act because the Proceeds of Crime and Anti-Money laundering Act was the inherent law leading to investigations. Further, that Section 815(1) of the Companies Act preserves the power to a court as defined under Section 2 of the Act to be the High court.
Dr. Okubasu submitted that it is only in respect of an offence not punishable by a fine not exceeding Kshs.500, 000 (Section 815(2)) that the Magistrate’s Court can issue a warrant under section 815 of the Companies Act. He also submitted that all the listed offences attract fines in excess of Kshs.500, 000/- hence the warrant issued was unlawful. He referred to the Pastoli vs Kabale (supra) case, where the court is said to have made it clear that procedural impropriety is failing to act fairly. It was his submission that proceedings which are impugned started on 12 th March 2025 where the Attorney General sought information from officials of the Ex parte Applicant. The information according to counsel, was for the period starting 2019-to date, and that the same was to be provided within 3 days.
Dr. Okubasu submitted that when the Ex parte Applicant did not comply within three (3) days is when the application for warrants was filed claiming that the information sought was denied. This, according to counsel, was unfair and unjust, considering the information sought was to cover a period of 6 years. It was his submission that there was no procedural fairness towards a subject of information.
He also submitted that the request for information vide letter of 12 th March 2025 had a limited scope seeking for an updated and verifiable list of membership from 2019 to date and providing the legal status of the current Board and financial statements for 10 years. However, that in paragraph 19 of the affidavit of Chief Inspector Munene, in support of the application to set aside the orders, he has an array of items.
Counsel submitted that there was no sufficient time to allow the Applicant to comply with the demand for information. Similarly, that there is a plethora of proceedings before the High Court between members/directors of the Applicant company since last year.
He also submitted that the investigators were being co-opted into the wrangles of directors to create an unfair advantage of some directors over others. This according to counsel, was improper motive. He relied on the case of R. vs Director of Criminal Investigations exparte Harrison Nyota Ngunyi [2017]e KLR a decision by Odunga J. (as he then was) and argued that the Judicial Review orders sought are merited.
He further submitted that the items taken should be returned because they were taken pursuant to an unlawful order issued by the Magistrate's Court.
In response, Mr. Odhiambo Counsel for the Respondents submitted that the instant application is an abuse of court process and that immediately after the orders were issued by the Magistrate's Court, the applicants obtained orders from Kibera Criminal Magistrate's Court.
That, the warrants were issued pursuant to Section 815 of the Companies Act, the 1 st Respondent had jurisdiction to issue the warrants, and that the Attorney General is empowered to approach the court.
Counsel submitted that these are proceedings which were commenced under the Companies Act and that the Applicant is registered under the Companies Act. Counsel relied on Judicial Review No. E202/2024;Paul Masila Kimeru vs Registrar of Companies . He further submitted that it is a commercial dispute hence the parties could only go before the Commercial Division of the High Court and in line with the practice directions of the Chief Justice. Further, that the warrants issued under the Companies Act were not illegal.
Mr. Odhiambo submitted that these proceedings were brought under Order 53 but submissions relate to the Data Protection Act and Proceeds of Crime and Anti-Money Laundering Act which are not in the statements of facts in support of the application.
That this court should decline to consider submissions which are outside the statement of facts and to support this position, he relied on Khobech Agencies vs Ministry of Foreign Affairs [2013] eKLR . It was also counsel’s submission that the court in the said case at paragraphs 27, 28 and 29, stated that parties are not allowed to introduce new grounds not in the statement of facts. He submitted that the warrants have been fully executed hence there is nothing to be prohibited. He also relied on the Respondents’ application dated 25 th March 2025 in opposing the applicants' application.
Ms. Kwamboka counsel for all Interested Parties except the 7 th Interested Party submitted that her clients supported Dr. Okubasu's clients' position. That they only wished to add, on illegality that in as much as the warrants sought were under Section 815 of the Companies Act, Section 816 of the Act provides for the protection in certain disclosures regarding information sought by the Attorney General. Also, that Section 816(2) provides for limits to when the disclosure does not apply and that sub-section (3) lists disclosures.
She submitted that the Hospital has an obligation to keep patients' information in confidence. Also, that the gadgets seized had information on the patients' data held in confidence and protected under Article 31 of the Constitution.
In a rejoinder, Dr. Okubasu, counsel for the Ex parte Applicant submitted CIP Munene swore an affidavit on the various offences being investigated and, that the requisition ‘F0’compelled attendance of the interested parties. He submitted that ‘F3’ refers to offences of money laundering, and that those impugned proceedings were not initiated before the Commercial Division of the Magistrate's Court but in the criminal court meaning, the Respondent did not believe it was a commercial dispute. It was also submitted that the proceedings before the criminal court are subject to the supervisory jurisdiction of this court.
On the order obtained from Kibera Court, Counsel submitted that it was anticipatory bail granted to the Interested Parties not the Ex parte Applicant and that as such, it is not related to these proceedings. He argued that on execution of the warrants, the Attorney General's application sought to set aside the ex parte orders on account of partial execution of the warrants, hence the need for stay. Counsel also argued that the Respondents continue to pursue investigations on the basis of the said warrants and therefore the process is ongoing hence prohibition can issue.
He also submitted that this court exercises supervisory jurisdiction over subordinate courts and bodies, authorities or person exercising judicial or quasi-judicial authority. That these proceedings are about the procedure followed in decision making, and that this court is not sitting to make a declaratory order over a commercial dispute or whether the applicant should be investigated. That these proceedings are sui generis hence, the jurisdictions of this court is properly invoked.
Analysis and Determination
This Court has considered the application by the exparte applicant, the response by the respondent by way of a preliminary objection and an application to set aside the leave granted and the exparte stay orders issued by Justice Chigiti SC on the application for leave to apply, replying and further affidavits, annexures and submissions filed and argued by the respective parties’ counsel on record. The issues arising for determination are as follows, coupled with ancillary questions which this court will endeavour to resolve:
Whether the 4 th Respondents Preliminary Objection dated 25 th March 2024 is merited.
Whether the warrants issued on 21 st March 2025 were lawfully obtained and/or are so defective as to be set aside;
Whether, and to what extent, confidential material seized pursuant to the impugned warrants in particular patient records protected under the Health Act, 2017 and Article 31 of the Constitution, as well as advocate–client communications protected under the Evidence Act must be safeguarded from disclosure or use in the ongoing investigations.
Whether the freezing or blocking of the bank accounts, telephone lines, and M-Pesa accounts of several Interested Parties was lawful, procedurally fair, and proportionate in light of the rights and obligations of the parties affected.
Whether the period afforded to the Applicant to produce the documents requested by the investigative authorities was so unreasonably short as to render the subsequent application for, and execution of, the search warrants unlawful or procedurally improper.
What is the effect of the expiry of warrants issued under section 815 of the Companies Act?
What orders should this court make, including an order for costs, if any?
Whether the 4 th Respondents Preliminary Objection dated 25 th March 2024 is merited.
The 4 th respondent Attorney General filed a notice of preliminary objection dated 25 th March 2025 asserting in contention that this court lacks jurisdiction to preside over this matter and that the application is an appeal disguised as a judicial review application seeking merit review of the impugned decision which jurisdiction this Court lacks by dint of the provisions of the Companies Act as read together with the practice directions issued by the Chief Justice on 18 th November, 2017.
The exparte applicant and the interested parties on the other hand maintained that these proceedings are brought pursuant to the supervisory jurisdiction of this court over subordinate courts and bodies exercising judicial or quasi-judicial functions as stipulated in Article 165(6) of the Constitution and that the proceedings challenge the legality and procedural impropriety of the warrants issued by the 1 st respondent and the manner in which the 2 nd and 3 rd respondents executed those warrants.
Principles governing preliminary objections were restated in the landmark case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , where Law JA held that:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. ”
Sir Charles Newbold P added that:
“The first matter that a court has to consider is whether what is before it is a preliminary objection as understood in law. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
A valid preliminary objection must therefore raise a pure point of law, not require resolution of contested facts, and must be capable of disposing of the matter if upheld.
In applying these principles to the present case, the Court finds that the pleadings and submissions reveal that the gravamen of the Applicant’s case is not an invitation to this Court to re-evaluat
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The application seeks the following orders:
CERTIORARI to bring to the High Court and quash the decision of the 1 st Respondent to issue warrants of search in Criminal Miscellaneous Application No. E1069 of 2025, Republic Through the Honorable Attorney General v The Nairobi Hospital & 13 Others for purposes of investigations into the affairs of Kenya Hospital Association and the Nairobi Hospital over matters contained in the affidavit of Chief Inspector Martin on 21 st March 2025.
PROHIBITION prohibiting the 2 nd , 3 rd and 4 th Respondents from executing/further execution of the warrants of search issued on 21 st March 2025 in Criminal Miscellaneous Application No. E1069 of 2025, Republic Through the Honorable Attorney General v The Nairobi Hospital & 13 Others and attendant undertaking/continuation of investigations in respect of matters listed in the affidavit of Chief Inspector Martin Munene sworn on 20 th March 2025.
MANDAMUS compelling the 2 nd and 3 rd Respondents to return documents, all computers, laptops, iPad, tablets, all digital devises, databases, cloud storage systems, and equipment’s belonging to the Nairobi Hospital as well as the interested parties cut away in furtherance of investigations pursuant to the warrant of search issued by the 1 st Respondent on 21 st March 2025 in Criminal Miscellaneous Application No. E1069 of 2025, Republic Through the Honorable Attorney General v The Nairobi Hospital & 13 Others and to unfreeze and unblock restrictions on the bank accounts, telephone numbers and bank accounts of the 2 nd to 10 th Interested Parties.
THAT costs of this suit be borne by the Respondents.
THAT this Honourable court be pleased to issue any such order as it deems fit.
The application is supported by a statutory statement dated 24 th March 2025 and the affidavit of Felix Osano sworn on 24 th March 2025.
The Ex parte Applicant’s case is that by a letter dated 12 th March 2025, the 4 th Respondent Attorney General demanded for documents from the Applicant on the latter’s membership and the status of its Board of Management from 2019 to date. That the 4 th Respondent withheld dispatch of the letter until the 18 th March, 2025 when service was effected on a few Board Members of the applicant between the 18 th March, 2025 and 20 th March, 2025.
It is averred in deposition that on 21 st March 2025,at night acting on the orders issued by the 1 st Respondent, the 2 nd Respondent executed warrants of search, to inter alia, carry away original/copies of documents, all computers, laptops, iPad, tablets, all digital devices, databases, cloud storage systems, and equipment’s belonging to the Nairobi Hospital as well as to the Interested Parties.
According to the Ex parte Applicant, the reason stated in the application for the issuance of warrants was that it had refused to tender the requested documents notwithstanding that the documents are voluminous and the Applicant was in the process of preparing them.
The Ex parte Applicant’s further case is that on 21 st March 2025 from the evening and throughout the night, acting on the order of the 1 st Respondent issued on the 21 st day of March 2025, officers from the 2 nd and 3 rd Respondent raided the Nairobi Hospital, premises operated by the Applicant and sought to indiscriminately obtain the aforementioned documents, all computers, laptops, iPads, tablets, all digital devises, databases, cloud storage systems and equipment’s belonging to the Nairobi Hospital.
That the said aforementioned documents, computers, laptops, iPad, tablets, all digital devices, databases, cloud storage systems and equipment’s belonging to the Nairobi Hospital are the documents responsible for the day to day running of the operations of the Hospital. Further, that the Applicant operates the Nairobi Hospital, a health facility, with an obligation to protect information and records of its patients. It is stated that the information contained in the documents/items/equipment’s and gadgets is privileged and confidential as it related to patient data as well as advocate-client communication.
It is also the Ex parte Applicant’s case that at the instance of the 2 nd and 3 rd Respondent, the bank accounts, telephone numbers, MPESA accounts of the 2 nd to 10 th Interested Parties have been frozen and/or blocked which has had immediate adverse effects as doctors among them cannot be reached by their patients, assistants and nurses thus exposing their patients to risk to their health and lives. The doctors are also said to be unable to communicate with healthcare facilities as far as healthcare of their patients is concerned.
That lecturers among the interested parties are further said to be unable to conduct their teaching duties including being unreached by faculty and delivery of online classes.
Further, that parents among them are unable to pay for the upkeep of their children, they are also unable to meet their rental and loan obligations as they fall due. It is also the Ex parte Applicant’s case that the interested parties are unable to meet the operational expenses of running their offices or even to meet their obligations and upkeep.
The Respondents it is averred, have demanded that the Interested Parties who are directors of the Applicant attend to requisitions to compel attendance under section 52 of the National Police Service Act in furtherance of the impugned investigations.
According to the Ex parte Applicant, the actions of the Respondents are unlawful, irrational and disproportionate for the reasons that the investigations are not an honest endeavour at enforcement of criminal law as there are ongoing disputes on directorship/leadership between various members/officers of the Applicant community to wit, HCCCOMM E233 of 2024, Kenya Hospital Association T/A The Nairobi Hospital vs. Dr. Edwin Kipngeno Rono & 9 Others; HCCOMM/E544/2024 Kenya Hospital Association T/A Nairobi Hospital v Becky Valarie Genga-Eyama & Others; HCCOMM 81 of 2025, Samwel Muchiri & Others v Board of Management of Kenya Hospital Association & Others.
It is claimed that it is at the behest of the Respondents that the investigations have been commenced with a view of having a collateral attack against the current directorship. Further, that the said investigations are unlawful and bare harassment of the Interested Parties and to intimidate them to forego their positions over HCCCOMM E233 of 2024, Kenya Hospital Association T/A The Nairobi Hospital vs. Dr. Edwin Kipngeno Rono & 9 Others.
The Ex parte Applicant’s position is that the scope of the warrants is so wide that no identifiable offence is actually sought to be investigated. Also, that the items and electronic equipment that have been confiscated contain patient information and the investigations are unlawful to the extent that they are in breach of the Health Act 2017 as well as patients’ privacy and confidentiality.
According to the Ex parte Applicant, some of the information sought and the documents that were taken away, contain confidential advocate-client protected information and conversations.
That therefor there is an urgent need that Applicant’s application be allowed in order to safeguard patient information/data which is at the risk of being divulged, that the investigations and the attendant taking away of equipment’s/data threaten to paralyze the operations of the hospital as well as its discharge of obligations towards its patients and also, that Advocate-client confidentiality stands the risk of being breached. Further, that it is in the interest of justice that the instant application be allowed and the orders sought herein granted.
Responses
In response, the Respondents filed an application dated 25 th March 2024 and the 4 th Respondent also filed a preliminary objection of even date.
The application by the respondents seeks for the court to set aside and vacate the orders of this Honourable Court given on 24 th March 2025 granting leave to the Applicant to commence judicial review proceedings against the Respondents as well as the leave operating as stay in respect of proceedings/decision to undertake/continue investigations over all matters listed in the affidavit of Chief Inspector Martin Munene in Milimani Chief Magistrate’s Court Criminal Miscellaneous Application No. E1069 of 2025. It also seeks for the court to down it’s tools and strike out the matter forthwith on account of want of jurisdiction to hear and determine the judicial review application.
The application by the 4 th respondent is supported by the affidavit sworn by Chief Inspector Martin Munene on even date.
The Respondents in the application contend that this court lacks jurisdiction under the Companies Act, and that any challenge to the warrants should have first been made through review, revision or appeal in the proper forum. They also state that the instant application is an appeal disguised as a judicial review application and as such, is outside this court’s mandate.
That the Applicant and the Interested Parties are engaging in forum shopping, which will ultimately embarrass the Court.
According to the Respondents, the investigations, triggered by whistleblower complaints over the hospital’s decline, led to the court warrants being issued on 21 st March 2025. Inspectors are said to have seized some equipment and documents but faced resistance, including removal of laptops and attempts to destroy evidence by dumping hospital documents in garbage bags.
It is the Respondents’ case that the recovered documents contained crucial information.
The Respondents further assert that the Applicants’ conduct which includes removing and destroying evidence shows they lack clean hands and are in contempt of court orders. It is deposed that investigations have already uncovered significant information and that the Respondents seek to continue with same.
The Respondents’ further case is that the order of 24 th March 2025 granting leave for judicial review and a stay of investigations was obtained without full disclosure, curtails statutory investigative powers, prejudices public interest and hampers ongoing inquiries. This Court is urged to review, vary, or set aside the order, as it was granted without hearing the respondents.
It is argued that courts should not interfere with investigative powers unless cogent reasons exist, that the warrants were lawfully issued to facilitate inquiries and that it is premature to halt investigations. The respondents maintain that the application is pre-emptive, presumptuous, and based on material non-disclosure.
The 4 th Respondent’s preliminary objection raises a similar issue contained in the application for setting aside the exparte order for leave and leave operating as stay of investigations into the affairs of the exparte applicant company trading as The Nairobi Hospital.
The 4 th respondent contends that the instant judicial review application is an appeal disguised as a judicial review application seeking a merit review of the impugned decision which jurisdiction this court lacks by dint of the provisions of The Companies Act as read together with practice directions issued by the Chief Justice on the 18 th November, 1997.
The 1 st ,2 nd , 3 rd ,4 th , 5 th ,6 th ,8 th ,9 th ,10 th ,11 th and 12 th Interested Parties filed a Replying Affidavit in response to the notice of motion dated 25 th March 2025. The contents of the Affidavit are similar to the depositions contained in the verifying affidavit supporting the application for leave. I will nonetheless summarize the same herein below.
The Interested Parties state that on 12 th March 2025, the 5 th Respondent requested membership and board records from the Applicant dating back to 2019, but that the letter was only served between 18 th and 20 th March 2025.
That on 21 st March 2025, the 1 st Respondent, on the 2 nd Respondent’s application, obtained wide-ranging search warrants authorising seizure of documents, computers and other digital devices from the Nairobi Hospital, despite the Applicant being in the process of compiling the requested records.
They contend that the seized items are essential for hospital operations and contain sensitive patient data and confidential advocate–client communication. They also allege that the 2 nd to 10 th Interested Parties’ bank accounts, phone lines, and M-Pesa accounts were frozen, severely disrupting their professional, personal, and financial obligations.
The Interested Parties argue that the investigations are unlawful, irrational and intended to harass and intimidate them in the context of ongoing leadership disputes in the Kenya Hospital Association. They claim that the warrants issued are overly broad (covering January 2019–March 2025), breach patient privacy under the Health Act 2017, and risk exposing privileged communication.
The 7 th Interested Party filed a Replying Affidavit opposing the Respondent’s application dated 25 th March 2025 and to the substantive motion dated 26 th March 2025.
According to Dr. Magdalene Muthoka, the Respondents have not met the threshold for review of the orders issued on 24 th March 2025 granting leave and stay of investigations as the respondents have failed to demonstrate that there was a mistake or error apparent on the face of record and/or any sufficient reason to enable this court set aside its decision.
According to the 7 th Interested Party, the High Court has over-arching powers to look into the lawfulness of a process by which a decision of a judicial or quasi-judicial body was arrived at and can set it aside if the process was flawed. This, according to the 7 th Interested Party, extends to decisions made by the 4 th Respondent in exercise of the powers granted under section 800 of the Companies Act.
Further, that the current proceedings are not meant in any way to curtail the investigative powers of the 2 nd and 3 rd Respondents but are meant to guard against abuse of investigative powers by the investigative authorities.
Additionally, that the orders of 24 th March,2025 were intended to preserve the status quo and to stop further breaches of fundamental rights and freedoms by the 2 nd and 3 rd Respondents and that there is no cogent reason why those orders should be disturbed.
Regarding the substantive motion, the 7 th Interested Party fully supports the prayers sought therein and states that the 2 nd and 3 rd Respondents have been ill-bent on harassing, intimidating and unlawfully interfering with the Board of Management of the Applicant under the guise of conducting criminal investigations. That the investigations are only meant to intimidate and force some of the Interested Parties to forego their leadership positions in the Board of Management of the Applicant.
That the freezing and/or blocking the bank accounts, telephone numbers and MPESA accounts of the Interested Parties without according them a fair administrative action makes their life unbearable and as such, this Court has no option other than to intervene.
The Ex parte Applicant’s Response to the 4 th Respondents’ application dated 25 th March 2025
In response to the 4 th respondent’s application dated 25 th March, 2025, the Ex parte Applicant filed grounds of opposition dated 2 nd April 2025. It contends that the Registrar of Companies is not a party to these proceedings and the instant suit is not about enforcement of the Companies Act but rather is about the exercise of administrative powers exercised by the 2 nd and 3 rd Respondents.
The Applicant also contends that the actions of the 1 st Respondent are within the supervisory jurisdiction of this Honourable Court. Additionally, that there is nothing to be stayed/set aside in respect to the impugned ex parte order already issued by the 1 st Respondent.
That the High Court has no appellate or revisionary jurisdiction over regulation of ex parte proceedings already completed. Further, that in any case, the instant application discloses illegality, irregularity and breaches of procedural aspects of law to deserve judicial review interventions.
Submissions
The application was canvassed by way of written and oral submissions made before the court on 12 th June 2025. In their submissions well summarised orally by Dr Okubasu, counsel for the Ex parte Applicant submitted that the basis for the reliefs sought is Pastoli v Kabale District Local Government Council & Others, (2008) 2 EA 300 and that the Ex parte Applicant seeks the orders on account of illegality as defined in the Pastoli Kabale case.
According to counsel, the Ex parte Applicant is a hospital, and that under paragraph 3 of the order of 21/3/2025 the 2 nd , 3 rd and 4 th Respondents are authorized to have full access to its ICT & digital devices and cloud storage systems.
He also submitted that as a hospital, that equipment contains patient information which cannot be accessed, and he relied on Article 31 of the Constitution. He also submitted that there was no Data Impact Assessment conducted as provided under Section 31 of the Data Protection. It was also his submission that under Section 11 of the Health Act, Prohibition of patient's information is subject to Regulations that may be published by Cabinet Secretary Health.
It was also submitted that warrants have to be cautious on what information to be accessed and that it cannot be indiscriminate access. According to the Ex parte Applicant, the Respondents compromised rights of third parties who were not subject of investigations. Counsel submitted that the order must be quashed.
Dr. Okubasu also submitted that under paragraph 4 of the order, the Respondents were allowed to access all documents and pleadings filed by all law firms who have acted for the Hospital from 2015 to date. This, it was submitted, is even though the offence being investigated was that of money laundering.
Counsel argued that under Section 18 of the Proceeds of Crime and Anti-Money Laundering Act, only a Judge of the High Court may issue an order of disclosure, directed to an advocate, not a client. That, the Magistrates court has no power to issue an order of investigations to a client and as such, the orders issued were ultra vires and unlawful.
Counsel also submitted that it mattered not that the application was allegedly filed under Section 815 of the Companies Act because the Proceeds of Crime and Anti-Money laundering Act was the inherent law leading to investigations. Further, that Section 815(1) of the Companies Act preserves the power to a court as defined under Section 2 of the Act to be the High court.
Dr. Okubasu submitted that it is only in respect of an offence not punishable by a fine not exceeding Kshs.500, 000 (Section 815(2)) that the Magistrate’s Court can issue a warrant under section 815 of the Companies Act. He also submitted that all the listed offences attract fines in excess of Kshs.500, 000/- hence the warrant issued was unlawful. He referred to the Pastoli vs Kabale (supra) case, where the court is said to have made it clear that procedural impropriety is failing to act fairly. It was his submission that proceedings which are impugned started on 12 th March 2025 where the Attorney General sought information from officials of the Ex parte Applicant. The information according to counsel, was for the period starting 2019-to date, and that the same was to be provided within 3 days.
Dr. Okubasu submitted that when the Ex parte Applicant did not comply within three (3) days is when the application for warrants was filed claiming that the information sought was denied. This, according to counsel, was unfair and unjust, considering the information sought was to cover a period of 6 years. It was his submission that there was no procedural fairness towards a subject of information.
He also submitted that the request for information vide letter of 12 th March 2025 had a limited scope seeking for an updated and verifiable list of membership from 2019 to date and providing the legal status of the current Board and financial statements for 10 years. However, that in paragraph 19 of the affidavit of Chief Inspector Munene, in support of the application to set aside the orders, he has an array of items.
Counsel submitted that there was no sufficient time to allow the Applicant to comply with the demand for information. Similarly, that there is a plethora of proceedings before the High Court between members/directors of the Applicant company since last year.
He also submitted that the investigators were being co-opted into the wrangles of directors to create an unfair advantage of some directors over others. This according to counsel, was improper motive. He relied on the case of R. vs Director of Criminal Investigations exparte Harrison Nyota Ngunyi [2017]e KLR a decision by Odunga J. (as he then was) and argued that the Judicial Review orders sought are merited.
He further submitted that the items taken should be returned because they were taken pursuant to an unlawful order issued by the Magistrate's Court.
In response, Mr. Odhiambo Counsel for the Respondents submitted that the instant application is an abuse of court process and that immediately after the orders were issued by the Magistrate's Court, the applicants obtained orders from Kibera Criminal Magistrate's Court.
That, the warrants were issued pursuant to Section 815 of the Companies Act, the 1 st Respondent had jurisdiction to issue the warrants, and that the Attorney General is empowered to approach the court.
Counsel submitted that these are proceedings which were commenced under the Companies Act and that the Applicant is registered under the Companies Act. Counsel relied on Judicial Review No. E202/2024;Paul Masila Kimeru vs Registrar of Companies . He further submitted that it is a commercial dispute hence the parties could only go before the Commercial Division of the High Court and in line with the practice directions of the Chief Justice. Further, that the warrants issued under the Companies Act were not illegal.
Mr. Odhiambo submitted that these proceedings were brought under Order 53 but submissions relate to the Data Protection Act and Proceeds of Crime and Anti-Money Laundering Act which are not in the statements of facts in support of the application.
That this court should decline to consider submissions which are outside the statement of facts and to support this position, he relied on Khobech Agencies vs Ministry of Foreign Affairs [2013] eKLR . It was also counsel’s submission that the court in the said case at paragraphs 27, 28 and 29, stated that parties are not allowed to introduce new grounds not in the statement of facts. He submitted that the warrants have been fully executed hence there is nothing to be prohibited. He also relied on the Respondents’ application dated 25 th March 2025 in opposing the applicants' application.
Ms. Kwamboka counsel for all Interested Parties except the 7 th Interested Party submitted that her clients supported Dr. Okubasu's clients' position. That they only wished to add, on illegality that in as much as the warrants sought were under Section 815 of the Companies Act, Section 816 of the Act provides for the protection in certain disclosures regarding information sought by the Attorney General. Also, that Section 816(2) provides for limits to when the disclosure does not apply and that sub-section (3) lists disclosures.
She submitted that the Hospital has an obligation to keep patients' information in confidence. Also, that the gadgets seized had information on the patients' data held in confidence and protected under Article 31 of the Constitution.
In a rejoinder, Dr. Okubasu, counsel for the Ex parte Applicant submitted CIP Munene swore an affidavit on the various offences being investigated and, that the requisition ‘F0’compelled attendance of the interested parties. He submitted that ‘F3’ refers to offences of money laundering, and that those impugned proceedings were not initiated before the Commercial Division of the Magistrate's Court but in the criminal court meaning, the Respondent did not believe it was a commercial dispute. It was also submitted that the proceedings before the criminal court are subject to the supervisory jurisdiction of this court.
On the order obtained from Kibera Court, Counsel submitted that it was anticipatory bail granted to the Interested Parties not the Ex parte Applicant and that as such, it is not related to these proceedings. He argued that on execution of the warrants, the Attorney General's application sought to set aside the ex parte orders on account of partial execution of the warrants, hence the need for stay. Counsel also argued that the Respondents continue to pursue investigations on the basis of the said warrants and therefore the process is ongoing hence prohibition can issue.
He also submitted that this court exercises supervisory jurisdiction over subordinate courts and bodies, authorities or person exercising judicial or quasi-judicial authority. That these proceedings are about the procedure followed in decision making, and that this court is not sitting to make a declaratory order over a commercial dispute or whether the applicant should be investigated. That these proceedings are sui generis hence, the jurisdictions of this court is properly invoked.
Analysis and Determination
This Court has considered the application by the exparte applicant, the response by the respondent by way of a preliminary objection and an application to set aside the leave granted and the exparte stay orders issued by Justice Chigiti SC on the application for leave to apply, replying and further affidavits, annexures and submissions filed and argued by the respective parties’ counsel on record. The issues arising for determination are as follows, coupled with ancillary questions which this court will endeavour to resolve:
Whether the 4 th Respondents Preliminary Objection dated 25 th March 2024 is merited.
Whether the warrants issued on 21 st March 2025 were lawfully obtained and/or are so defective as to be set aside;
Whether, and to what extent, confidential material seized pursuant to the impugned warrants in particular patient records protected under the Health Act, 2017 and Article 31 of the Constitution, as well as advocate–client communications protected under the Evidence Act must be safeguarded from disclosure or use in the ongoing investigations.
Whether the freezing or blocking of the bank accounts, telephone lines, and M-Pesa accounts of several Interested Parties was lawful, procedurally fair, and proportionate in light of the rights and obligations of the parties affected.
Whether the period afforded to the Applicant to produce the documents requested by the investigative authorities was so unreasonably short as to render the subsequent application for, and execution of, the search warrants unlawful or procedurally improper.
What is the effect of the expiry of warrants issued under section 815 of the Companies Act?
What orders should this court make, including an order for costs, if any?
Whether the 4 th Respondents Preliminary Objection dated 25 th March 2024 is merited.
The 4 th respondent Attorney General filed a notice of preliminary objection dated 25 th March 2025 asserting in contention that this court lacks jurisdiction to preside over this matter and that the application is an appeal disguised as a judicial review application seeking merit review of the impugned decision which jurisdiction this Court lacks by dint of the provisions of the Companies Act as read together with the practice directions issued by the Chief Justice on 18 th November, 2017.
The exparte applicant and the interested parties on the other hand maintained that these proceedings are brought pursuant to the supervisory jurisdiction of this court over subordinate courts and bodies exercising judicial or quasi-judicial functions as stipulated in Article 165(6) of the Constitution and that the proceedings challenge the legality and procedural impropriety of the warrants issued by the 1 st respondent and the manner in which the 2 nd and 3 rd respondents executed those warrants.
Principles governing preliminary objections were restated in the landmark case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , where Law JA held that:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. ”
Sir Charles Newbold P added that:
“The first matter that a court has to consider is whether what is before it is a preliminary objection as understood in law. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
A valid preliminary objection must therefore raise a pure point of law, not require resolution of contested facts, and must be capable of disposing of the matter if upheld.
In applying these principles to the present case, the Court finds that the pleadings and submissions reveal that the gravamen of the Applicant’s case is not an invitation to this Court to re-evaluat
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