The High Court has cleared the way for the prosecution of six medical practitioners linked to the death of a mother who succumbed during childbirth at a private nursing home in Kiambu County, ruling that the medics failed to prove any illegality or procedural impropriety in the inquest proceedings that recommended their prosecution.
Justice Abigail Mshila dismissed an application by Dr Moses Waitimu Mwaura and five other medical professionals who had sought to quash both the inquest findings and the Director of Public Prosecutions' subsequent recommendation to charge them with manslaughter and negligence.
The case traces back to April 2019, when 34-year-old Hellen Wanjiru Ngure visited St Teresa Maternity & Nursing Home in Kikuyu for delivery. What should have been a moment of joy turned into tragedy when Ngure died during the birthing process, leaving behind a devastated family and a cloud of questions over the quality of care she received.
The court heard that Ngure's labour was induced on the instructions of Dr Mwaura, a registered surgeon with over two decades of experience who owns the facility. Despite a team of health officers attending to her, including a Caesarean section and subsequent hysterectomy, Ms Ngure passed away. A government post-mortem conducted by pathologist Dr Dorothy Njera attributed the death to irreversible shock caused by disseminated intravascular coagulopathy with uterine atony, cervical tears and vaginal tears.
The deceased's family alleged that excessive bleeding caused by negligence at the facility led to her death, sparking an investigation by the Directorate of Criminal Investigations.
Initially, the Office of the Director of Public Prosecutions (ODPP) charged Dr Mwaura with manslaughter in October 2021 at the Kikuyu Magistrates' Court. However, in an unusual turn of events, a senior ODPP official wrote an internal memo on December 10, 2021, arguing that the case amounted to professional negligence rather than manslaughter.
"The case is one of professional negligence. A charge of manslaughter does not suffice," read the letter from Mr Joseph Irungu, then Senior Assistant Director of Public Prosecution. Consequently, the criminal proceedings were withdrawn, and the matter was referred for an inquest before the Kikuyu Chief Magistrate's Court.
The inquest, designated as Kikuyu Inquest No. E012 of 2022, proceeded with the magistrate tasked under Section 387 of the Criminal Procedure Code to determine the cause of death and whether any person was criminally responsible.
On April 4, 2024, the magistrate delivered a judgment that found that an offence had indeed been committed by known persons who were adversely mentioned in the proceedings. While the magistrate did not directly fault Dr Mwaura for the clinical management of the patient, noting he could only be held vicariously liable as the proprietor of the hospital, the findings pointed to potential criminal culpability among his staff.
The court relied significantly on a disciplinary report from the Nursing Council of Kenya, a statutory body established under the Nursing Act, which had conducted its own proceedings into the matter. The magistrate was satisfied that the Council's findings met the evidentiary threshold under Section 34 of the Evidence Act.
Armed with the inquest findings, the DPP on July 19, 2024, wrote to the County Criminal Investigations Officer recommending that Dr Mwaura be charged with manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The other five medical practitioners – Teresia Wanjiru Waitimu, Carolyne Mosoti, Lucy Wanjiru Maruru Mugo, Magdaline Wanjiru Mugo, and Newton Thumbi Hungu – were to face charges of negligence contrary to Section 243(e) of the Penal Code.
The six rushed to the High Court, arguing that the DPP had abdicated its constitutional duty and unlawfully delegated the decision to charge to the magistrate. They pointed to earlier letters from the ODPP dated December 10, 2021, and February 21, 2022, which had concluded there was no basis for criminal prosecution, and claimed legitimate expectation that the matter would be handled through professional regulatory channels instead.
They also contended that the inquest was procedurally flawed because Wanjiru, Mosoti, Maruru Mugo, Wanjiru Mugo, and Newton Thumbi Hungu were never summoned as witnesses or given an opportunity to be heard before adverse findings were made against them. Furthermore, they argued that the Nursing Council report presented through a witness who was not its author violated Section 35 of the Evidence Act.
But Justice Mshila was not persuaded. In the ruling, the judge emphasized the limited scope of judicial review, citing the well-established principle that courts reviewing administrative actions are concerned with process, not merit.
"The ex-parte applicants have failed to establish any illegality, irrationality and procedural impropriety in the impugned inquest proceedings," Justice Mshila held a ruling delivered virtually on May 8, 2026. "By alleging that the evidence before the inquest court was insufficient or inadmissible to determine culpability or form a basis for criminal charges, the ex-parte applicants seem to be treating these judicial review proceedings as an appeal against the impugned inquest proceedings. This is beyond the purpose and import of judicial review."
On the DPP's discretion, the judge was equally categorical reiterating that it ought not to usurp the constitutional mandate of the DPP under Article 157(6) of the Constitution to institute and undertake criminal proceedings.
The court found that none of the recognized grounds for interfering with prosecutorial discretion existed, no abuse of discretion, no improper purpose, no breach of fair hearing obligations, no irrationality.
With the dismissal of the judicial review application, the path is now clear for the DPP to proceed with charging the six medical practitioners. The ruling effectively affirms that the inquest was properly conducted and that the DPP acted within its constitutional powers in reassessing the evidence and reaching a different conclusion than it had earlier.
For the family of Hellen Wanjiru Ngure who has waited seven years since her death for accountability, the ruling offers a measure of hope that justice may finally be forthcoming.
