REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL PETITION NO………..2025

-BETWEEN-

XXXXXXXXXXXXXXXXXXXX…………………………………………..PETITIONER
-VERSUS-

THE BOARD OF MANAGEMENT OF

THE KENYA HOSPITAL ASSOCIATION
T/A THE NAIROBI HOSPITAL ……………...…………………… 1ST RESPONDENT

THE CHIEF EXECUTIVE OFFICER ……………………………… 2ND RESPONDENT

AND
KENYA HOSPITAL ASSOCIATION
T/A THE NAIROBI HOSPITAL ………………..……………...INTERESTED PARTY

PETITION

TO THE HIGH COURT OF KENYA

NAIROBI

The humble petition of …………………………………., whose address of

service for purposes of this petition is care of Havi & Company
Advocates, Park Suites, 3rd Floor, Suite 4, Parklands Road.
Parklands, Nairobi. Kenya. Email: [email protected].
Tel: 0722-904905 is as follows: -

A. DESCRIPTION OF PARTIES

1. The Petitioner is a compos mentis adult, resident in the Republic of

Kenya. The Petitioner’s address of service for purposes of this suit
shall be c/o Havi & Company Advocates, Park Suites, 3rd
Floor, Suite 4 Parklands Road. Parklands, Nairobi. Kenya.
Email: [email protected]. Tel: 0722-904905.

2. The Respondent is the Board of Management of the Kenya Hospital

Association, a Company Limited by Guarantee, incorporated under
the provisions of the Companies Act, Chapter 486, Laws of Kenya.
(Service of summons shall be through the petitioner’s
Advocates' offices).

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3. The Interested Party is Company Limited by Guarantee,
incorporated under provisions of the Companies Act Chapter 486
Laws of Kenya. The Interested Party is a public Company, limited
by Guarantee and owns and manages the Nairobi Hospital, a
leading healthcare facility in the Republic of Kenya, providing
general and specialized healthcare services to citizens of Kenya
and Eastern Africa. The Company accordingly occupies a uniquely
critical and important role, though not a parastatal of the
Government, it is a national institution, whose operations resonate
with public interest. The Company’s optimal functioning is
accordingly a matter of great public interest.

B. BACKGROUND AND FACTS OF THE CASE

4. On the (insert the date), the Board of Management appointed Mr.

Felix Osano as the Chief Executive Officer of the Nairobi Hospital.

5. The Chief Executive Officer is responsible for overseeing the

execution of the Board’s directions and policies to ensure desirable
outcomes.

6. He therefore, serves as the link between the Board and the

Management. He supervises the day-to-day activities of the Hospital
and takes all necessary steps to maintain orderly and efficient
delivery of services and the general functioning of the Hospital.

7. Petitioner contests this appointment on the ground that the crucial

documents – Section 142 of the Companies Act, 2015, Article 1(b)
of the Articles of Association, and Section 3.1.6 of the HR Manual
were grossly and deliberately ignored.

8. It is not in dispute, and both the petitioners and the respondents

understand that the Board of Management of the Kenya Hospital
Association can only function under the “mandatory collaboration”
with the Medical Advisory Committee (herein MAC) elected by the
Admitting Staff Association (herein ASA).

9. Set forth in mandatory terms, the Board of Management cannot

properly function or purport to function without the required
“collaboration” with MAC as elected by the Admitting Staff
Association.

10. The Medical Advisory Committee is a constitutive organ of

the Admitting Staff Association of the Nairobi Hospital and is
composed of five division chairs, five members at large, and the
vice-chair, who are elected in the first meeting of the ASA at the
AGM.

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11. The chairman of MAC gets his mandate and direction from
the inclusive organ of MAC as mentioned above, and, therefore, in
the absence of the chair of divisions and members at large (as is
the situation in this case), MAC was improperly constituted to
function as required under Article 1(b) of the Articles of
Association.

12. Indeed, the letter dated 13th and 16th of May 2025 (herein
attached) written by the Board chairman addressed to the interim
chair and vice-chair of MAC, and another addressed to the Board of
Management members, indicated that the chairman of the Board
acknowledged that MAC was not constituted to carry out its
mandate as envisioned under Article 1(b) of the Articles of
Association.

13. It is also important to note that, for quite some time, the
management of the Nairobi Hospital has been under persistent
controversy, pitting the Board of Management against members
and sometimes, the Board of Management against itself.

14. This prompted the patron of the Nairobi Hospital (His

Excellency the president of the Republic of Kenya) to step in
through Hon. Felix Kosgei EGH. Chief of Staff and Head of The
Public Service. The arrangement was to the effect that the
management of the Nairobi Hospital was to be broad-based,
reached between the two contending factions.

15. According to this arrangement, it was agreed that two

members of the Medical Advisory Committee, representing the
Admitting Staff Association, would be part of the Board of
Management, three more were to fill casual vacancies, and two
were to be co-opted from the larger membership of the Kenya
Hospital Association. The Head of Public Service witnessed this
same agreement.

16. Based on this agreement, and during its tenure under this
“broad-based” arrangement, the Hon. Dr. Bichage (the former
Board chairman) resigned. This left one faction of the contending
parties of the Board of Management with six members.

17. The filling of this casual vacancy left by the said Dr. Bichage
(together with the necessary qualifications for the position) was, as
a matter of procedure, to be discussed at the Board meeting.

18. During the meeting (a meeting that is hereby impugned), the

Board proceeded to elect and confirm the acting Chief Executive

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 Officer, Mr. Felix Osano as the Chief Executive Officer of the
Nairobi Hospital.

19. At the time of this meeting, and indeed, as a matter of

procedure, the chairman and the entire Board members understood
that improper composition of MAC will inevitably affect and impugn
the outcome of such a meeting, but the chairman proceeded to
declare MAC’s presence null and void under unclear circumstances
(Letter is hereby enclosed).

20. The vice-chairman of MAC was also not allowed to attend the
meeting due to allegations that the term of MAC ended on the 12 th
of May 2025. As the records will show, this is not the proper
position, the term should have ended on the 26 th of May 2025 which
would have given MAC necessary time to properly constitute itself
before BoM could take such a hurried and drastic move to appoint
the CEO.

C. PARTICULARS OF VIOLATION

i. Unprocedural appointment of the Chief Executive

Officer of the Nairobi Hospital in disregard of Section
142 of the Companies Act, 2015, contrary to Article 10
(1) (b) of the Constitution of Kenya

21. Article 10(1)(b) of the Constitution of Kenya was violated

when the Board of Management deliberately ignored section 142 of
the Companies Act, 2015 which requires that in discharging their
mandate, the directors shall “act in accordance with the
constitution of the company;” and “only exercise powers for the
purposes for which they are conferred.”

22. The Memorandum and Articles of Association of the Kenya

Hospital Association and the Human Resource Manual (HR
Manual) provide provides for the procedure of appointment of the
Senior Management Chief Executive Officer of the Nairobi
Hospital.

23. The Board should have considered these two foundational

documents (HR Manual and the Articles of Association) when it
comes to the recruitment of a senior position belonging to Grade
M1.

24. HR Manual requires that all vacancies in the Senior

Management Team positions in Grade M1 and above shall be filled
competitively with candidates drawn from both internal and
external recruitment sources.

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25. Even in situations where there is consideration for
“promotions,” “re-designation,” or “absorption” of internal
candidates, the HR Manual requires that such persons shall be
subjected to a competitive or suitability selection process
coordinated by the HR Department as considered appropriate.

26. In evaluating the candidates for such a Grade M1 position,

the “affected employees” are required to possess the requisite
knowledge, skills, and abilities as well as experience.

27. The only scheme with which the Board could have
appreciated the competence of the person for the position of CEO
could have been through a competitive recruitment where all
interested staff could have been given an equal opportunity to
apply for and be considered for through a selection process.

28. The HR Manual contemplates that the appointment to Grade

M1 positions (whether through external or internal sourcing), shall
go through the process of advertisement, where the information
about the job is circulated together with job descriptions and
specifications, and directions on how to apply for the position.

29. To be competitive, advertisements must be followed by

Longlisting and Shortlisting, interview panels, interview sessions,
selection tests, post-interview engagements with the qualified
candidates, and lastly background check and offer of appointment.

30. These well-born and upstanding procedures (outlined in the

HR Manual) were never considered by the Board of Management in
its appointment of Mr. Felix Osano as the CEO of the Nairobi
Hospital.

31. It was more or less like a pre-negotiation pact between the

impugned “candidate” and the Board so that his confirmation to the
said position could happen without competition from his peers.
Such an anomaly can be overlooked in a middle-level company, but
it becomes incurable and inexcusable when it comes to such a
significant institution as the Nairobi Hospital.

32. It is so ironic that the position was advertised, but

subsequent procedures as listed in and contemplated under the HR
Manual were never followed. The reason for such an anomaly
cannot be termed as laxity, but gross “dereliction of duty’ and
penchant appetite disregard of laid down simple rules governing
the Nairobi Hospital.

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33. This was a blatant breach of Article 10 (1)(b) of the
Constitution, which provides that the “national values and
principles of governance… bind all State organs, State officers,
public officers and all persons whenever any of them … interprets
any law.” (emphasis added).

34. It is plain that the Fair Administrative Action under Article 47

was disregarded through the unlawful appointment of the CEO; the
making of administrative decisions that affected the Petitioner,
without providing him any reasons thereof.

35. The making of administrative decisions based on malice and

personal interests rather than legitimate interests of the Company
or the Public. The making of administrative decisions without
following due process; and, failing to comply with the rule of law in
making administrative decisions affecting the rights and interests
of the petitioner.

36. Additionally, the very fact that the Board of Management

proceeded to conduct its meeting without the presence of the MAC
membership and at a time that MAC was improperly constituted,
was a gross violation of the Companies Act contrary to Article 10(1)
(b) of the Constitution of Kenya.

37. The Board meeting that led to the appointment of the

impugned CEO was, therefore, null and void and illegal—any
resolution passed in that meeting is therefore null and void and
should be invalidated, including the appointment of the CEO.

38. This position is even confirmed and buttressed by a section of

the Board of Management as indicated by their letter of protest as
herein attached.

39. Accordingly, members of the Kenya Hospital Association have

impugned the composition of the Board that led to the appointment
of the said Mr. Felix Osano. Attached herein are their SMS
detailing their level of refusal and disgust, and their feeling that
MAC and BoM were not properly constituted at the time these
resolutions were passed.

40. In addition to these procedural irregularities (during this

particular meeting), the chairman introduced a non-Board Member
(by the name Wanjiku) into the meeting contrary to the provisions
of the Articles of Association governing proceedings of Board
meetings.

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 41. This appetite for disregard of rules did not go well with the
members of the Kenya Hospital Association, and the doctors who
have appended their signatures to the attached Letter of Protest
detesting such a low and rustic conduct of the Board of
Management in their recruitment of Mr. Felix Osano as the CEO.
42. Accordingly, the Board failed to provide effective leadership
in the manner it unconstitutionally, and in utter disregard of the
laid down rules, proceeded to appoint the said Mr. Felix Osano as
the Chief Executive Officer of the Nairobi Hospital.

YOUR PETITIONERS, therefore, humbly pray for the following

orders:

a. An order preventing the 2nd Respondent from assuming office

as a substantive Chief Executive Officer of the Nairobi
Hospital.

b. Additionally, an order quashing the Resolution that led to the

appointment of the 2nd Respondent as the CEO of the Nairobi
Hospital.

DATED AT NAIROBI THIS ___ ……..DAY OF ___ ……2025

HAVI AND COMPANY

ADVOCATES FOR THE PETITIONER

DRAWN AND FILED BY:

Havi & Company Advocates,
Park Suites, 3rd Floor,
Suite 4 Parklands Road. Parklands,
Nairobi. Kenya
Email: [email protected]
Tel: 0722-904905

TO BE SERVED UPON:

The Board of Management

The Nairobi Hospital. Main Hospital
Argwings Kodhek Road
P. O. Box 30026
NAIROBI
[email protected]

Chief Executive Officer

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Mr. Felix Osano
The Nairobi Hospital,
P. O Box 30026,
Nairobi – Kenya.
[email protected]

The Kenya Hospital Association

The Nairobi Hospital. Main Hospital
Argwings Kodhek Road
P. O. Box 30026
NAIROBI
[email protected]

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