Court suspends finding on teleradiology firm over privacy issue 

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The High Court suspended the operations of Rology Medical Kenya Limited, finding that the Kenya Medical Practitioners and Dentists Council (KMPDC) failed in its statutory and constitutional duty to register and regulate the teleradiology firm, thereby exposing thousands of patients to potential violations of their rights to health, privacy and consumer protection.

In a judgment delivered on Thursday, Lady Justice Patricia Mande Nyaundi held that KMPDC’s regulatory failure allowed the company to operate outside the country’s medical regulatory framework, creating what she described as a “real and avoidable risk” to more than 60,000 patients who had received services through the platform.

The court ordered the immediate suspension of Rology’s operations in Kenya until the company fully complies with the Kenya Medical Practitioners and Dentists Act, the Data Protection Act, the Digital Health Act and related regulations, including the Digital Health (Data Exchange Component) Regulations, 2025.

Justice Nyaundi also issued an order of mandamus compelling the Ministry of Health and KMPDC to cancel any licences, approvals or authorisations granted to the company concerning the administration of patients’ portable personal health records and health data through its digital platform.

The petition was filed by four radiologists Dr Gladys Mwango, Dr Brian Bwombuna, Dr Felister Wangari and Dr Leonard Gikera, in their capacity as officials of the Kenya Association of Radiologists (KAR).

They argued that Rology, a Kenyan affiliate of Egypt-based Rology Inc, had been transmitting radiological images outside Kenya for interpretation by foreign or unidentified practitioners without obtaining patients’ informed consent or disclosing the qualifications and identities of those preparing the reports.

The petitioners further challenged provisions contained in the firm’s service agreements, which disclaimed liability for the accuracy of information transferred through its platform and did not guarantee the completeness or correctness of diagnostic reports.

In her judgment, Justice Nyaundi ruled that Rology had admitted to serving more than 60,000 patients across 40 public health facilities, a scale of operation she said heightened the constitutional implications of the dispute.

“The figure underscores the magnitude of the operation and the breadth of its reach and heightens the constitutional stakes,” the judge ruled.

The court found that KMPDC’s failure to regulate the company violated Article 43(1)(a) of the Constitution on the right to health, Articles 46(1)(a) and (c) on consumer protection, and Article 41(1) on fair labour practices.

“The 2nd respondent cannot abdicate this constitutional and statutory responsibility on the basis of the regulatory vacuum occasioned by the delayed operationalisation of the Digital Health Act, 2023,” Justice Nyaundi stated.

“The obligation to ensure that all providers of health services are duly registered, licensed and subject to regulatory oversight flows directly from the Constitution.”

The judge further held that KMPDC’s inaction had created an uneven playing field within the medical profession by allowing Rology to operate without meeting the licensing, taxation and regulatory requirements imposed on locally registered radiologists.

“Such disparity offends the constitutional guarantee of fair labour practices and undermines the integrity of the regulatory framework governing the medical profession,” the court ruled.

Rology had raised a preliminary objection, arguing that complaints relating to personal data fell within the exclusive jurisdiction of the Office of the Data Protection Commissioner and that the Digital Health Act had already been declared unconstitutional.

However, the court said that the High Court decision invalidating the Act had been stayed by the Court of Appeal and therefore the legislation remains in force pending the determination of the appeal.

Justice Nyaundi dismissed the objection, finding that it involved contested factual issues that could not be resolved without a full hearing and examination of evidence.

The court subsequently awarded costs of the petition to the radiologists, to be borne jointly by KMPDC and Rology Medical Kenya Limited.