[2022] KEHC 340 (KLR)

Chekoko v The Medical Practitioners and Dentists Board (Civil Appeal 376 of 2011) [2022] KEHC 340 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 340 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal 376 of 2011

JK Sergon, J

May 6, 2022

Between

Angela Muliro Chekoko

Appellant

and

The Medical Practitioners and Dentists Board

Respondent

(Being an appeal from the ruling, Decision of Medical Practitioners and Dentists Board made on 11th July 2011 in Medical Practitioners and Dentist Board, Tribunal Case no. 1 of 2010)

Judgment

1. Dr. Angela Muliro Chekoko, the appellant herein appeared before the Medical Practitioners and Dentists Board (now council) the respondent herein to face the following charges:i.That she failed to attend to a patient, Rahab Wambui Mbiyu, timeously or at all and thereby contributing to her death and that of her unborn child.ii.That she did not observe reasonable care and skill and acted unprofessionally in a manner in which he handled the family of the late Rabah Wambui posthumously.iii.That she disregarded the written and unwritten rules of the medical profession.

2. The respondent heard the complaint and delivered its decision on 11th July 2011 whereof it upheld the first charge and dismissed the second and third charges.

3. The Board’s decision is as follows:i.That Dr. Anglea Muliro Chekoko being the consultant obstetrician/ Gynaecologist on call at Kiambu District Hospital on 10th July 2007 failed to take charge of the management of the deceased by failing to attend to the patient personally despite knowledge that the condition was complicated.ii.That charge two cannot be sustained, therefore the charge fails.iii.That charge three against Dr. Angela Muliro Chekoko has no merit and it is not sustainable.”

4. The Board proceed to met out the following sentence:i.The practitioner, Dr. Angela Muliro Chekoko, be and is hereby suspended for six (6) months from the date hereof.ii.The practitioner, Dr. Angela Muliro Chekoko, shall do remedial training at Kenyatta National Hospital attached to the department of Obstetrics and Gynaecology of the University of Nairobi under the direct supervision of Professor Shadrack Booker Ojwang’ and professor Patrick Muia Ndavi for a period of six (6) months from the date hereof.iii.Professor Shadrack Booker Ojwang’ and professor Patrick Muia Ndavi do furnish the Board with progress reports on a monthly basis until lapse of the six (6) month’s period at the end of which they should give a comprehensive report of the aforesaid practitioner.iv.The reinstatement of the practitioner, Dr. Angela Murliro Chekoko shall depend on the comprehensive report by professor Shadrack Booker Ojwang’ and Professor Patrick Muia Ndavi.v.The practitioner, Dr. Angla Muliro Chekoko, shall pay kshs.200,000 being part-costs for the sitting of the tribunal within thirty (30) days from the date hereof.

5. The appellant being aggrieved preferred this appeal and put forward the following grounds:i.The decision is unconstitutional tainted with illegality, bias, opaqueness, arbitrariness, ultra vires and is a miscarriage of justice.ii.That the Board failed to dispassionately consider the totality of the evidence presented before it and evaluate the charge preferred against the appellant and erroneously on the facts and law and proceeded to legitimize the preconceived opinion of the role of a consultant repeatedly purveyed and rammed down to witnesses by the chairman of the board during the inquiry and which he invariably put in the mouths of the medical officers who testified.iii.That the findings of the Board substitute the charge of “failed to take charge of the management the deceased by failing to attend to the patient personally despite knowledge that the condition was complicated: in place of the written forwarded to and charge read to the appellant and upon which she was required to defend herself that “she failed to attend to a patient, Rahab Wambui Mbiyu timeously or at all” and this finding is contrary to the law.iv.That the evidence before the Board objectively assessed does not meet the standard of proof to support the finding that the appellant was guilty of infamous conduct as decided by the Board.v.That the Board erred in fact and in law in failing to give consideration to the evidence, submissions authorities cited by the appellant in their submissions hence resulted to the erroneous finding against the appellant.vi.That the Board’s ruling is contrary to the evidence that was presented at the inquiry and contrary to the charge preferred against the appellant.vii.That the Board glossed over and failed to contextualize why the hospital file with the treatment records of the subject patient disappeared and further declined despite the request of the appellant to summon safaricom ltd to furnish the cell-phone recording of the consultation that took place between the medical officer at the hospital and the appellant and which two evidential materials were at the heart of whether or not the charge laid against the appellant could or could not stand.viii.That the Board in its findings circumvents, avoids the documented and oral evidence of the appellant on what instructions she gave the medical officer on duty and chooses to go by the incoherent slanted evidence of the medical officer on duty who consulted the appellant and veracity of whether or not he complied with the appellant’s instructions could only be corroborated by the hospital medical treatment file which disappeared.ix.That the Board outright bias exhibited by members of the Board who had preconceived ideas about where the fault in the matter under inquiry ought to go to the “the consultant” vitiated any regard being given to the decisions made by the appellant to wit;i.That the patient sign that she did not wish to undergo an operation.ii.The patient to continue on hydralazine and be put on magnesium sulphate.iii.The patient be transferred to Kenyatta National Hospital.x.That the Board failed to appreciate that the medical officer at the hospital testified that he was comfortable to handle the patient and did not require at the material time or later the presence of the appellant and also that it did not find any fault with the appellant’s instructions to the medical officer that he:i.Obtains the patients signature that she did not wish to be operated.ii.Continue the patient on hydralazine and put her on magnesium sulphate.iii.Transfer the patient to Kenyatta National Hospitalxi.That the Board glossed over the evidence which was unchallenged that the deceased patient signed that the she did not wish to be operated and the appellant therefore could not have undertaken any treatment of the patient at Kiambu without her consent and hence her instructions that the patient be transferred to Kenyatta National Hospital.xii.That the Board’s decision was coloured by the disdain, dim view that the appellant did take the Board to the High Court in Judicial Review Case No. 600 of 2010 when the Board suspended her on the basis of the Preliminary Inquiry Committee Report and in breach of the Medical Practitioners and Dentists Act and the rules thereto and the fine imposed on the appellant fro costs is targeted at the judicial review proceedings though disguised as the costs of inquiry.xiii.That the Medical Practitioners And Dentists Act and the Medical Practitioners and Dentists (Disciplinary Proceedings) Procedure Rules do not anywhere vest jurisdiction in the Board to impose costs of their proceedings to be visited on any party and in this case the charge did not state that the appellant will be called to pay costs and she was not afforded any hearing before the costs were slapped on her and the order for costs is arbitrary high handed, oppressive, calculated to intimidate and without any legal foundation.xiv.That the Board erred in that it failed to find that the doctor who managed the patient did not carry out the full instructions given by the appellant hence the appellant cannot he held vicariously liable for the omissions of the said doctor, medical practitioner.xv.That the Board changed its advocate after the inquiry hearings and before the ruling, decision hence lacked the guidance of counsel who conducted the inquiry and this resulted in a miscarriage of justice.

6. Learned counsels appearing in this appeal recorded a consent to have the appeal disposed of by written submissions. At the time of writing this judgment, the appellant was the only party which had filed its submissions.

7. I have re-evaluated the evidence that were presented before the Medical Practitioners and Dentists Board (now council). I have also considered the written submissions filed by the appellant. Though the appellant put forward a total of fifteen (15) grounds, those grounds can be determined by three broad grounds vizly:a.Whether the respondent had jurisdiction to substitute the charge in the decision and whether in so doing, it violated the appellant’s right to a fair hearing.b.Whether the first charge was proved against the appellant (infamous conduct in a professional respect)c.Whether the Board was biasedd.Whether the respondent had jurisdiction to impose costs.

8. On the first issue as to whether the Board is substituting the charge in the decision violated the appellant’s right to a fair hearing. It is the submission of the appellant that the respondent convicted her of a charge that she had not been informed prior to the hearing to enable her prepare a response.

9. The appellant is of the further submission that the Board breached the rules of the natural justice. It is also argued by the appellant that the Board had no jurisdiction to substitute the charge. It is apparent from the record that the first charge framed as follows:“failing to attend to the patient, Rahab Wambui, timeously or at all and thereby contributing to her death and that of her unborn child.”

10. In its verdict, the Board stated that on 10th July 2007, the appellant failed to take charge of the management of the deceased by failing to attend to the patient personally despite knowledge that the condition was complicated.

11. The appellant is of the submission that she was convicted on a new charge which had not been brought to her attention.

12. I have critically examined the charge and what the appellant referred to as a substituted charge and I find that the respondent (Board) did not substitute the charge. It is clear that the Board merely reframed the charge but did not substantially alter the meaning of the charge.

13. The Board did not therefore introduce a new charge as claimed by the appellant. It is therefore not true that the Board denied the appellant a right of hearing. The appellant was given a fair chance to defend herself over the charge.

14. The second issue is whether the first charge was proved against the appellant. The record shows that the Board summoned several witnesses to establish this particular charge. It is apparent from the evidence of Dr. Patrick Amoth, the Medical Superintendent at Kiambu District Hospital that the appellant was required to personally manage and or attend to the patient and not the junior doctors.

15. It is also the evidence of Dr. David kiragu that the condition of the patient required personal attention by the consultant on call to review and that the appellant should not have given instructions through a phone call.

16. Having re-evaluated the relevant evidence presented before the board I am satisfied that the 1st charge was proved against the appellant and therefore the respondent did not err in finding the appellant guilty.

17. In the third ground the appellant argued that the Board was biased. The appellant pointed out that the chairman of the Board in probing Dr. Ndolo insinuated that Dr. Ndolo was not up to the task thus exhibiting bias. I have reviewed the evidence find no iota of bias on the part of the Board.

18. The last ground is whether the Board has jurisdiction to make an order on costs. It is the appellant’s submission that the respondent does not have power to impose costs which are punitive, arbitrary and intended to harass the appellant.

19. A careful perusal of Section 20(6) (g) of the Medical Practitioners and Dentists Act, will reveal that the Board is mandated to make orders on fines. There was no express provision giving the Board power to award itself costs. This lacuna was cured the amendments done on the aforesaid Act in the year 2013. With respect, I agree with the appellant that the amended law cannot operate retrospectively.

20. In the end, the appeal is hereby ordered dismissed. However the appeal against the award of costs succeeds. Consequently, the order awarding costs of ksh.200,000/= issued by the Board is set aside. In the circumstances of this appeal, a fair order on costs is order, which I hereby do, that each party bears its own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. ..........................J. K. SERGONJUDGEIn the presence of:……………………………… for the Appellant……………………………… for the Respondent