The Nairobi Hospital.
Six board members of Nairobi Hospital, led by chairman Dr Barcley Onyambu, have accused State agencies of abuse of authority following their arrest and arraignment last week.
In a petition before the High Court, the officials said the systemic abuse of the criminal justice system was deployed not for the enforcement of law, but as an instrument of intimidation, coercion and control over a private institution and its members.
“The said actions have had and continue to have a chilling effect on the governance, operations and stability of the hospital and have exposed its directors, officers and members to unwarranted harassment, reputational damage and deprivation of liberty,” the petition stated.
The officials stated that their problem started following President William Ruto’s address on March 6, at a political rally in Western Kenya, where he declared that he was determined to save the Nairobi Hospital from what he described as conmen, fraudsters and charlatans.
The petitioners said the statements made by President Ruto were not general policy remarks but constituted specific, targeted pronouncements directed at identifiable individuals and governance structures within a private institution.
They said the cumulative effect of the public declarations and executive communications was to trigger and legitimise direct state involvement in the internal affairs of a private association, thereby ‘blurring the constitutionally mandated separation between public authority and private corporate governance’.
Dr Barcley Onyambu during a past interview.
They argue that President Ruto’s pronouncement directing their removal and prosecution constitutes interference with the Office of the Director of Public Prosecutions (ODPP’s) independence and the operational autonomy of investigative agencies.
“And after the pronouncement, and under the guise of addressing alleged governance concerns, Public Service Commission and Head of Public Service Felix Koskei commenced a series of actions that amounted to direct interference in the internal management and governance structures of Nairobi Hospital, including attempts to influence, alter and impose leadership and directorship positions within the institution,” the petition said.
The petition said Dr Onyambu, Samson Mbuthia Kinyanjui and Prof John Mwero were arrested and charged before a Milimani court.
They added that in a clear demonstration of the absence of any factual or evidentiary foundation, the said charges were withdrawn by the prosecution before plea could be taken, thereby confirming that the arrest and arraignment were premature, malicious and an abuse of the criminal process.
“The petitioners aver that the said conduct evidences a deliberate pattern by the Respondents of arrest first, investigate later, in total violation of constitutional safeguards and established principles of criminal justice,” stated the petition.
The Nairobi Hospital Accident and Emergency entrance.
In further escalation of the actions, the Assets Recovery Agency (ARA) issued caveats and prohibitory orders against motor vehicles and assets belonging to the directors, thereby restricting their proprietary rights without due process or lawful justification.
Further, the Kenya Revenue Authority (KRA) also commenced tax assessment and enforcement proceedings against them, purportedly arising from the same set of facts, thereby subjecting them to a parallel and duplicative process designed to intimidate, harass and exert undue pressure.
It is their case that the cumulative effect of criminal proceedings, asset recovery actions and tax enforcement measures constitutes a coordinated and oppressive use of state machinery, in violation of the constitution.
The state actions, they added, were not undertaken through any lawful statutory framework nor were they grounded in any enabling legal framework.
“Instead, they constituted ad hoc and extra-legal manoeuvres aimed at exerting State control over a private entity, justified solely based on alleged internal wrangles within the hospital community,” said the petition.
The main entrance at The Nairobi Hospital.
The board of management said that while the disagreements in the hospital existed, they were not exceptional or incapable of resolution within the existing legal frameworks.
“Indeed, some had already been subject to judicial determination, thereby rendering any parallel executive or coercive intervention unnecessary, premature and unconstitutional,” the petition added.
They have named Mr Koskei, the DPP Renson Ingonga, Inspector General of Police Douglas Kanja and the Director of Criminal Investigations (DCI) as respondents in the case.
Last year, the hospital management obtained a court order blocking a multi-agency team from probing claims of money laundering and abuse of office at a premier facility.
The hospital’s board obtained court orders blocking the investigations, alleging that the police officers carted away sensitive equipment and data, a move that might compromise patients’ confidentiality and a possible breach of the right to privacy.
The government said the probe was prompted by whistleblowers’ complaints on the dwindling state of affairs and the near collapse of Nairobi Hospital.
The court was told that a team of inspectors were appointed under section 800 of the Companies Act to investigate the matters pertaining to abuse of office, conspiracy to commit economic crimes and money laundering.
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