Appeals court dismisses application on IVF and surrogacy arrangement

The Court of Appeal has dismissed an application by a couple seeking to suspend a High Court decision that stopped criminal investigations into an IVF and surrogacy arrangement, finding that although their intended appeal was arguable, they had failed to demonstrate that it would be rendered nugatory if the stay was not granted.

A three-judge bench comprising Justices Luka Kimaru, Munyao Sila and Johnson Okello ruled that the applicants, Carla Marcela Mendizabal and Rene Matthews, had not met the threshold for the grant of a stay pending appeal under Rule 5(2)(b) of the Court of Appeal Rules.

The dispute stems from an IVF and surrogacy arrangement involving Dr. Sukhija Sarita, the proprietor of Myra IVF Clinic.

The couple alleged that after the birth of a child through the arrangement in June 2025, the baby initially shown to them differed from the child later handed over to them, prompting them to report the matter to the Directorate of Criminal Investigations over suspected child trafficking.

However, in a judgment delivered on March 4, 2026, the High Court quashed the criminal investigations and referred the dispute to the Kenya Medical Practitioners and Dentists Council (KMPDC), holding that the professional regulator should first determine the complaint.

The court also restrained investigative agencies from continuing with the investigations pending the council’s determination.

Dissatisfied with that decision, the couple filed a notice of appeal and sought orders staying the execution of the High Court judgment.

They argued that the High Court improperly relied on evidence presented by the first respondent to terminate the investigations, failed to appreciate the scope of Section 193A of the Criminal Procedure Code, wrongly treated KMPDC proceedings as capable of determining criminal liability, and unlawfully interfered with the constitutional mandate of investigative agencies.

The applicants further contended that the investigations involved a possible case of child trafficking requiring urgent action.

They expressed fears that their biological child could be in the custody of unknown persons and might be removed from the country before the KMPDC concluded its proceedings.

They also argued that critical medical, administrative and surveillance records could be destroyed if investigations remained suspended.

They additionally pointed to separate Children’s Court proceedings involving the same clinic, where other intended parents allegedly received children with no biological relationship to them.

Dr. Sarita opposed the application, maintaining that the dispute concerned professional conduct and medical practice, matters that properly fall within the jurisdiction of the KMPDC.

She further argued that the High Court’s orders were negative in nature and therefore incapable of being stayed, adding that granting the orders sought would effectively overturn the judgment before the appeal was heard.

The court ruled that an applicant seeking relief under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if the orders sought are not granted.

The court agreed that the intended appeal raised bona fide issues worthy of consideration, including whether the High Court properly halted the investigations, the relationship between criminal investigations and regulatory proceedings before the KMPDC, the effect of the High Court’s orders on persons who were not parties to the proceedings, and whether the judge properly exercised judicial discretion.

However, the judges held that the applicants had failed to satisfy the second requirement.

The court held that the High Court judgment did not finally determine the dispute because proceedings before the KMPDC were still pending.

It further ruled that the suspension of investigations was temporary and tied to the outcome of the disciplinary proceedings, meaning future investigative action had not been permanently barred.

The judges also found that the applicants’ fears that evidence could be destroyed or individuals leave the country were speculative and unsupported by evidence.

The court further held that granting the orders sought would effectively revive investigations that had been halted by the High Court, thereby reversing the impugned judgment before the appeal itself had been heard.

“Accordingly, while we are satisfied that the intended appeal is arguable, we are not persuaded that the applicants have demonstrated that it would be rendered nugatory absent the grant of stay or conservatory reliefs. As both limbs under Rule 5(2)(b) of the Court of Appeal Rules must be satisfied, the application fails,” ruled the court.