Court declines to suspend ruling that halted IVF clinic probe over child trafficking

The Court of Appeal has refused to allow a couple to restart a criminal investigation into an IVF clinic accused of baby trafficking. 

In a ruling on Friday, Justices Luka Kimaru, Munyao Sila and Johnson Okello ruled that while their appeal has merit, the couple did not prove it would be worthless if they had to wait for the main case to be heard.

The dispute pitted C.M.M. and R.M. against Dr S.S. and an IVF clinic. 

C.M.M. and R.M. went to the IVF clinic hoping to have a child through surrogacy. 

“...following the birth of a child through the arrangement in June 2025, they became concerned that the child shown to them shortly after birth and the child subsequently handed over to them was not the same child,” the court heard.

Soon after the delivery, the couple started questioning the baby's parentage because of his skin colour. They later arranged their own DNA tests, which they say showed the child was not biologically related to them.

“Acting on that belief, they lodged a complaint with the Directorate of Criminal Investigations, prompting investigations into possible offences, including child trafficking.”

In response, Dr S.S. argued that the clinic was subjected to "extensive criminal investigations, summons and demands for confidential medical, financial and administrative records", which "amounted to harassment and an abuse of court process".

On March 4, High Court Judge Bahati Mwanuye stopped the criminal probes and sent the whole dispute to the Kenya Medical Practitioners and Dentists Council, which handles complaints against doctors. 

The judge ordered the police to hold off until the council made its decision.

The couple disagreed and filed an appeal. They also asked the Court of Appeal to suspend the High Court's order while they waited for their appeal to be heard. 

They argued that the judge based his decision solely on answers given by the clinic owner and challenged the court’s finding that their requests for medical records were too vague and intrusive, saying he should have considered ways to protect patient privacy under the Data Protection Act.

“They further faulted the learned judge for treating the proceedings before the Kenya Medical Practitioners and Dentists Council (KMPDC) as capable of informing the appropriate course of action in respect of criminal liability, notwithstanding that KMPDC is a professional regulatory body and not a criminal investigative agency.”

They further argued that the judge had overstepped his authority by taking over the job of the police and giving it to the KMPDC without any legal basis. 

The couple insisted the case was urgent because it involved a possible child trafficking crime. 

They feared that their biological child may be “in the custody of unknown persons", and by the time the KMPDC dealt with their complaint, "the child may have been removed from the jurisdiction of the court and crucial medical, administrative and surveillance records destroyed".

They also revealed police were investigating a separate case with similar allegations in the Children's Court involving another couple who used the same clinic. They said parents were given children who were not biologically theirs and that DNA results may have been faked.

The Office of the Director of Public Prosecutions supported the couple's request.

Dr S S contended that the whole issue was about professional conduct and medical practice, which is what the KMPDC is supposed to handle. 

Further, the couple's claim about another child was "speculative, unsupported by evidence and based on conjecture rather than fact".

"She argued that the High Court's judgement was sound and that the applicants, merely dissatisfied with the outcome, seek to re-litigate matters already determined by the High Court in the present application.”

The doctor also pointed out that the High Court's order simply told the police to stop investigating. Because it was a "stop" order, she argued, it could not be suspended, because suspending it would mean telling the police to start investigating again, which would effectively reverse the judge's decision before the appeal was even heard.

The three-judge bench agreed that the couple's appeal was not a waste of time. 

However, the judges were not convinced that the appeal would be pointless if the High Court order was not suspended. 

“We are of the opinion that if the appeal succeeds, the criminal investigation can be revived and will continue. Future investigation will not be rendered nugatory.

They noted that the High Court's ban on investigations was not permanent. It was linked to the KMPDC process, which, once concluded, the police could start again if needed.

The judges also found that the couple's fears about evidence being destroyed or people leaving the country were not backed by solid proof, as no actual evidence was presented to show a real and immediate risk.

Finally, the court said that granting the couple's request would restart the very investigations that the High Court had stopped. 

That, the judges said, would be like giving the couple the final victory they are seeking in their main appeal, even before that appeal has been heard, which would be premature.

The application was dismissed, and each side was ordered to pay its own legal costs.