When Mercy Jepchirchir Kiprono and Isaac Kipchirchir Kandie took their daughter, Annita Jepkorir Chirchir, to Moi Teaching and Referral Hospital (MTRH) five years ago, they were seeking medical care.
Instead, they lost their child and embarked on a long and painful search for answers. Their quest took them from the hospital to the Kenya Medical Practitioners and Dentists Council (KMPDC), and eventually to the High Court, where they accused the hospital, doctors and medical regulator of failing them.
The respondents named in the case were MTRH, Dr Ernest Nshom Bah, Dr Alfred Wanyonyi Wandeba, Prof Barasa Otsyula Khwa, Dr Stephen Otsieno Ondigo and the KMPDC. The parents accused the hospital and the four doctors of responsibility for their daughter's death, while separately challenging the conduct of the medical regulator in handling their complaint.
On August 31, 2026, Eldoret High Court Judge Reuben Nyakundi struck out the parents' constitutional case against MTRH and the doctors, but gave them permission to pursue their allegations through an ordinary civil case.
The decision does not determine whether the hospital ouhyuyr doctors were negligent. Justice Nyakundi made it clear that the High Court had not examined the evidence needed to establish whether medical negligence caused Ms Annita's death. Instead, the judge found that the parents had used the wrong legal route for the claims.
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The case dates back to 2021, when the parents lodged a complaint with KMPDC over the treatment of their daughter. The complaint was registered as Disciplinary Case No. 43 of 2021, and was eventually heard by the council's Disciplinary and Ethics Committee.
On May 5, 2023, the committee dismissed the negligence allegations against Dr Ernest Nshom Bah, Dr Alfred Wanyonyi Wandeba and Prof Barasa Otsyula Khwa, but ordered Dr Stephen Otsieno Ondigo and MTRH to enter mediation with Ms Annita's estate for restitution and report back to the council within 90 days. Dr Ondigo was fined Sh200,000, while MTRH was fined Sh350,000.
The parents, however, were unhappy with how their complaint was handled. They told the High Court that the Council delayed acting on their complaint for more than eight months, alleging that their emails were ignored and that an officer pressured them to withdraw it. They further claimed that their case was only listed after pressure mounted on social media, and that after the hearing, the committee took about seven months to deliver its decision, by which time nearly two years had passed since they first lodged the complaint.
The parents insisted they were not appealing the committee's May 2023 decision; their complaint before the High Court, they said, was about how KMPDC had handled their case.
Justice Nyakundi agreed that there was a difference between challenging the outcome of the disciplinary case and complaining about the conduct of the regulator. An appeal, he found, would primarily deal with the decision made by the disciplinary committee, and would not necessarily address allegations that the council delayed the case, ignored correspondence or pressured a complainant to withdraw it.
The judge also found that KMPDC could not be expected to provide an effective remedy for allegations of wrongdoing against itself. The parents had sought declarations and damages under the Constitution, but the judge said the medical regulator did not have the power to grant the constitutional remedies they were seeking.
Question of negligence and death
The Moi Teaching and Referral Hospital (MTRH) in Eldoret, Uasin Gishu County.
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The situation was different when it came to their allegations against MTRH and the doctors. Justice Nyakundi said the central issue was whether Ms Annita had received negligent medical treatment and whether that negligence caused her death. Those questions, he said, belonged in an ordinary civil case. He pointed out that Kenyan law already provides remedies for families who lose relatives because of wrongful acts or negligence.
"Kenya has established civil remedies under the Law Reform Act, Fatal Accidents Act, Health Act and the law of tort for damages including pain and suffering, loss of expectation of life, loss of dependency and special damages," the judge said.
This meant the parents did not need to rely on a constitutional petition to pursue compensation for alleged medical negligence.
Justice Nyakundi also rejected the idea that every death allegedly resulting from poor medical care automatically becomes a constitutional case simply because the right to life is protected by the Constitution.
"Article 26 right to life is not a substitute for negligence law in every death caused by want of care," he said.
The judge found that the parents' claims against MTRH and the doctors were, at their core, allegations of medical negligence and wrongful death. He said dressing such claims in constitutional language did not change their basic nature.
"The claims against the 1st to 5th respondents offend the doctrine of constitutional avoidance and are improperly before this court in the present form," Justice Nyakundi said.
The result was that the parents lost the constitutional route against the hospital and doctors. But the judgment did not close the door on their allegations. Instead, the judge expressly allowed them to pursue the matter through a civil claim.
"The Petition dated 10 May 2025, insofar as it is against the 1st to 5th respondents, is hereby struck out, with liberty to the Petitioners to institute civil proceedings in a competent court," the judge ordered.
The court did not rule that MTRH or any of the doctors were not responsible for Ms Annita's death. Neither did it find that the medical treatment she received was appropriate. The court simply declined to determine those questions in the constitutional petition.
The judge also placed limits on what the parents can challenge regarding the earlier KMPDC proceedings. They cannot use the present constitutional case to reopen the disciplinary committee's substantive decision of May 5, 2023.
"The Petitioners may not in these proceedings challenge, reopen, vary or set aside the substantive findings and orders in the 5th May 2023 ruling of the 6th Respondent," Justice Nyakundi said.
