[2022] KEHC 11596 (KLR)

Mandieka v Kenya Veterinary Board (Petition E121 of 2021) [2022] KEHC 11596 (KLR) (Constitutional and Human Rights) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11596 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E121 of 2021

HI Ong'udi, J

May 19, 2022

Between

Josiah Machuki Mandieka

Petitioner

and

Kenya Veterinary Board

Respondent

Judgment

1. The Petition dated 9th April, 2021 arises from disciplinary proceedings conducted by the respondent. The petitioner takes issue with how the said proceedings were conducted and verdict issued and claims that the same were an affront of Articles 47, 27, 33, 48, 50 and 28 of the Constitution and Section 4 of the Fair Administrative Actions Act, 2015.

2. He therefore prays for the following reliefs:i.A declaration that the decision made by the respondent on 19th March 2021 in KVB Disciplinary Case No. 3 of 2020 (Kenya Veterinary Board v Josiah Machuki Mandieka) violated Article 47 of the Constitution on fair administrative action, and section 4 of the Fair Administrative Action Act.ii.A declaration that the said decision violated Article 33 of the Constitution on freedom of speech by purporting to punish the petitioner for comments made in exercise of his freedom of expression, and which comments were well within the confine of the Constitution.iii.A declaration that the aid decision violated Articles 48 and 50 of the Constitution on the right to access justice by unreasonably delaying the process and using trial by ambush against the petitioner, owing to the respondent’s aim to frustrate the petitioner’s rights to be allowed to prepare adequately before answering to the charges against him.iv.A declaration that the said decision violated Article 27 of the Constitution on equality and freedom from discrimination to the extent that, the respondent denied the petitioner the benefit of the rule of law and uniform application of rules.v.A declaration that the said decision violated Article 28 of the Constitution on the petitioner’s right to dignity, having been found guilty and reprimanded without being given an opportunity to defend himself, taunting his reputation as a veterinary doctor of 34 years in good standing.vi.A declaration that the said decision is unreasonable and disproportionate weighed against its intended consequences of regulating the veterinary profession.vii.A declaration that the said decision was made ultra vires the powers and mandate of the respondents in section 6 and 7 of the veterinary Surgeons and Veterinary Para- Professional Act, 2011, as far as it purports to punish for defamation/ libel and exercise of freedom of speech.viii.A declaration that the respondent acted in bad faith and in abuse of public trust, arising out of their unilateral decision to find the petitioner guilty and fine him without giving him an opportunity to be heard.ix.A declaration that the alleged disciplinary proceedings against the petitioner is sub-judice as the particulars of the charges are matters before court in Nairobi HCJR/86/2020. x.An order of certiorari bringing into the court the proceedings and decisions of 19th March 20211 in KVB Disciplinary Case NO. 3 of 2020 (Kenya Veterinary Board v Josiah Machuki Mandieka) and quashing any proceedings or actions taken subsequently or consequently in execution thereof.xi.An award of general and aggravated damages in favour of the petitioner for violation of his fundamental rights by the respondent.xii.Any other relief that the Honourable Court may deem just and fair in the circumstances.xiii.An order that the respondent bears the costs of the petition.

The Petitioner’s case 3. The petition is supported by the affidavits of the petitioner sworn on 9th April 2021 and 7th June 2021 respectively. He averred that on 29th September 2019, he received an invitation from the respondent for vetting on 11th October 2019 for membership of the Veterinary Medicines Directorate (VMD). He was however unable to attend the vetting on the said date and upon his request, the respondent rescheduled the date to 22nd October 2019. He attended and presented a memorandum to the respondent’s vetting committee raising a number of concerns against it touching on the procedure followed to find it necessary to vet a sitting member of the Veterinary Medicine Directorate.

4. On or about 20th April 2020 he received a letter from the respondent raising allegations that it was unprofessional of him to hand over the memorandum to the respondent’s vetting committee. Subsequently, he responded to the said letter on 3rd May 2020 informing them that they had not responded to his concerns. He further asked them to disclose the specific charges, the complainant, the evidence they intended to rely on and to also grant him an opportunity to be heard.

5. Pursuant to summons dated 16th October 2020, he appeared before the respondent on 30th October 2020 through his advocates and raised pertinent issues regarding the proceedings he had been summoned for and communicated in the letter received by the respondent on 30th October 2020. Consequently, the proceedings were adjourned until further communication from the respondent.

6. He received summons dated 9th March 2021 vide email which said summons were different from the initial ones requiring him to file his response in less than 48 hours. On 10th March 2021 through his counsel, he wrote to the respondent seeking clarification on the summons and sought for 14 days to prepare a response and appear before the respondent which was declined.

7. This necessitated another letter through his counsel dated 15th March 2021 and received by the respondent on 16th March 2021 when the petitioner appeared before the respondent seeking clarifications on the issues raised before. The respondent agreed to consider the concerns, communicate to the petitioner and grant him 14 days to file a response. To his surprise on 1st April 2021 he received a verdict dated 19th March via email from the disciplinary committee.

8. In his supplementary affidavit he denied violating regulation 12(1) (a), (c) and (d) of the Code of Ethics for Veterinary Surgeons and Veterinary Paraprofessionals and maintained that his memorandum did not in any way bring his profession to any kind of disrepute in the eyes of the public. The same could not give rise to any form of disciplinary proceedings. That there was also no evidence to prove the said violation of the law.

9. He averred that he was airing his views regarding the intended vetting, which were not offensive or unprofessional and the memorandum was justifiable being that the respondent is a public body and is not immune to positive scrutiny by the public or members of the profession. Hence the respondent was limiting his right under Article 33 of the Constitution. He denied snubbing the summons issued to him and stated that the respondent did not attach minutes of the meeting that took place on 16th March, 2021 which would reveal that he was indeed present with this advocates. The respondent went contrary to its word by failing to get back to him.

10. He further averred that Article 50 (2) (c) of the Constitution gives him the right to be given adequate time to prepare his defence, which said right cannot be limited by virtue of Article 25 (c) of the Constitution. The respondent had taken more than six months to communicate back to him and only afforded him 48 hours to respond to the second summons and this informed his reason for seeking clarification and more time to respond. He deponed that the respondent never gave him a chance to defend himself and never conducted a hearing in which he took part.

11. It is his averment that the respondent being a state agency is regulated by the Fair Administrative Actions Act, 2015 pursuant to section 3(1) of the said Act and Article 47 of the constitution and are therefore required to conduct themselves within the confines of the law.

12. He averred that his publication can only be accessed by the veterinary professions who have access to the portal and the allegation that the information is in the public arena is misleading.

The Respondent’s response 13. The respondent filed a replying affidavit and further affidavit by Dr. Indraph Mugambi sworn on 12th May 2021 and on 25th June 2021, respectively. He deposed that the Kenya Veterinary Body (KVB) is established under the Veterinary Surgeons and Veterinary Para professional Act, 2011 (VSVP) Act and operationalized through regulations of 2013. It is also guided by a robust code of ethics; the veterinary surgeons and veterinary para professional regulations 2015. The objects and purpose of the board under section 6 (2) (f) is to formulate the code of ethics for the veterinary professionals and veterinary paraprofessional and the said code of ethics is binding on all professionals regulated under the Act.

14. He deposed that pursuant to clause 8(2) of the Veterinary Medicines Directorate (VMD) Regulations as contained in legal notice No. 209 of 9th October 2015 KVB nominates three veterinary surgeons from a list five identified by the Kenya Veterinary Association (KVA) to be nominated as VMD Directors. Subsequently the petitioner’s name was forwarded to the KVB by KVA on 6th September 2019.

15. He deposed that the date when the petitioner was to appear before the KVB was rescheduled on the basis of bereavement. He further deposed that despite the contents of the letter dated 4th October 2019, KVB considered the petitioner’s request for rescheduling of the vetting exercise and a new date was set for 22nd October 19. On the said date, the petitioner appeared before the vetting panel but declined to be vetted and instead produced a memorandum accusing the vetting panel and the KVB of alleged bias without any evidence casting aspersions on its integrity. The contents of the said memorandum also violated the express provisions of clauses 12(1) (a), (c) and (d) of the Code of Ethics for Veterinary Surgeons and Veterinary Para Professions 2015 (VSVP Regulations).

16. He deposed that pursuant to clause 43 of the aforesaid code of ethics, the petitioner was informed that the contents of the memorandum were a breach of the Code of Ethics and that the respondent intended to institute disciplinary proceedings against him in accordance with Part VI of the Veterinary Surgeons and Veterinary Para Professions Act (VSVP). Subsequently the petitioner was summoned to appear before the KVB Inquiry and Disciplinary Committee (IDC) on 30th October 2020 and he was represented by an advocate. The petitioner further sought an adjournment which was granted and was summoned to reappear before the said committee on 16th March 2021.

17. He averred that the two summonses were not materially different only that the body of the latter summons sent also incorporated a mode of responding to the same. This was also a substantiation of the first summons as was requested by the petitioner.

18. He deposed that the disciplinary proceedings did not take place on 16th March 2021 and an extension of filing responses was further extended since the petitioner wrote to the KVB on 15th March 2021 raising similar issues as had been raised earlier in the letter dated 10th March 2021. He further denied that the petitioner was granted 14 days from the receipt of his letter dated 15th March 2021 rather that KVB was waiting for the response to the substance in the allegations contained in the summons. This would have enabled it to proceed with the inquiry. The consequences for snubbing the request or otherwise were clearly stipulated in the summons on 16th March 2021.

19. He averred that contrary to the petitioner’s assertion, he had ample time to file a response to the accusations against him. Further that in the absence of any written response after the petitioner had honoured the summons the IDC had no choice but deliberate on his conduct based on the material before them. They recommended to the KVB that the petitioner be reprimanded and tender an apology to the Board which said recommendation was adopted by the board.

20. He averred that in the absence of any statute stipulating time frames to conclude the disciplinary process, the Fair Administrative Action Act and the dictates of Articles 47, 48 and 50 of the constitution were adhered to and were fair. He further averred that the KVB like all other regulators of professionals, restrict their regulations to the laws and in this case sections 34, 35, 36 and 37 of the VSVP Act, VSVP Regulations and the Code of Ethics. In particular the petitioner’s rights are also set out in section 34(1) (10) of the VSVP Act which was incorporated in the summons sent by the board.

21. He deposed that the petitioner is abusing the process of court since the provision of section 37 of the VSVP Act provide for a procedure of appeal to the High Court against the decision of the board and not a fresh suit filed in the High Court. Further that the procedure complained of by the petitioner as set out in the VSVP Act, the regulations made thereunder and the code of ethics is not unique and the courts have affirmed the constitutionality of the same.

22. He further urged the court to lift the stay orders to allow the petitioner undergo disciplinary action by his regulator as mandated by the statute and regulations in order to maintain order among professional rank. In the further replying affidavit, he deposed that the reliefs sought if granted to the petitioner will foster indiscipline among professionals regulated by KVB since the contempt displayed by the petitioner to his regulator (KVB) is in the public arena in social media where veterinarians subscribe.

23. He deposed that the petitioner snubbed the KVB since he never responded to the substance of fact to the allegations, and instead concentrated on side shows with legal technicalities which only a court of law has jurisdiction to deal. The summons which the respondent was served with states clearly that failure to respond will lead to the proceedings being concluded without any further delay.

24. He averred that the assertion by the petitioner that he was given a short notice is not correct for the following reasons:i.The disciplinary proceedings need to put into context the sittings of the board which sits only four times a year.ii.The nature of the complaint was a letter authored by the petitioner himself, a fact not disputed and violated the code of ethics of veterinarians that did not necessitate calling of any witnesses or other extraneous evidentiary material and thus the time was reasonable in the circumstance of the case.iii.The summons had an express clause that stipulated that failure to respond to the allegations within the timeframe therein, would result in disciplinary proceedings in the petitioner’s absence.

25. Finally, he deponed that the petition is not an appeal as envisaged under section 37 of the VSVP Act and therefore should be disregarded as they touch on the merits of the disciplinary proceedings and the propriety or otherwise of the verdict rendered by the respondent as opposed to the process which the subject matter of the petition herein.

The Petitioner’s submissions 26. The petitioner filed submissions dated 20th December 2021, through Luchini & co. advocates. Counsel reiterated the contents of the petition and supporting affidavit and while relying on Coastal Bottlers Limited v Commissioner of Domestic Taxes[2008] eKLR, argued that the petitioner had legitimate expectation that the respondent will communicate to him, addressing the concerns he had raised, give him time to respondent to any charges against him and finally be given a chance to be heard. Thus, the failures by the respondent to accord him adequate time to prepare and answer to the charges was an infraction of Articles 47, 48 and 50 of the Constitution.

27. He relied on Halsbury’s Laws of England, 5th Edition 2010 Vo. 61 at para 639 quoted in Kenya Human Rights Commission v Non. Governmental Organization Co-ordination Board [2016] eKLR, Section 4(3) of the Fair Administrative Actions Act, 2015 for the proposition that the right to fair hearing is closely intertwined with fair administrative action. He argued that the respondent hoodwinked him with the aim of infringing and contravening his right to fair administrative action, access to justice and fair hearing. Further, that the respondent being a state agency is also regulated by the Fair Administrative Actions Act, 2015 pursuant to section 3(1) of the said Act and Article 47 of the Constitution.

28. He dismissed the allegation that the charges against him were never contested and that the petitioner snubbed the summons. He asserted that the respondent on its own motion and without giving him a chance to defend himself delivered a verdict sent to him via email on 1st April 2021.

29. Relying on sections 107, 109 and 112 of the Evidence Act, Cap. 80 Laws of Kenya and the cases of Jennifer Nyambura Kamau v Humphrey Mbaka Nandi NYR CA Civil Appeal No. 342 of 2010 [2013] eKLR and Isca Adhiambo Okayo v Kenya Women’s Finance Trust KSM CA Civil Appeal No.19 of 2015 [ 2016] eKLR, he argued that the respondent had no legal basis to dictate how he was supposed to conduct his defence, or how to respond to the allegations against him. Further that he had the right to seek for more time to prepare his defence if he felt the one given to him was insufficient.

30. In this case, he argues that there were two different summons as the respondent had not denounced the first one. He was only given two days to prepare his defence and this is why he sought for clarification from the respondent and sought for 14 more days after receiving the clarification. Counsel submitted that under Article 50(2) (c) of the Constitution he ought to have been given adequate time to prepare for his defence which cannot be limited pursuant to Article 25 (c) of the Constitution.

31. Counsel submitted that rights have inherent value and utility and their recognition, protection and preservation. He relied on Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR for that argument. Further, that the respondent was obligated to obey the law and grant the petitioner the right to be heard and adequate time to prepare his defence once it clarified which summons he was supposed to respond to. Consequently, a person whose rights and interests are likely to be affected by an administrative action has the reasonable expectation that they will be given an opportunity before any adverse action is taken and given reasons for the adverse administrative action as envisaged under Article 47(2) of the Constitution.

32. Relying on Local Government Board v Arlidge, De Smith , in his Judicial Review of Administrative Action and Ernest & Young LLP v Capital Markets Authority & Another [2017] eKLR he submits that the respondent is required to observe and accord persons under investigations and or any person likely to be affected by their decision a fair process. Further, while relying on Kenya Human Rights Commission v Non- Governmental Organizations Co-ordination Board [2016] eKLR, he submits that the court has a duty to look into, not only the merits and legality of the decision made due to the requirement of reasonable action under Article 47 of the Constitution, but also the process and procedure adopted following all precepts of natural justice under Articles 47 and 50(1) of the Constitution.

33. He argued that the decision was biased, as the petitioner was never given a chance to defend himself and the respondent never conducted a hearing or inquiry hence contravening Articles 47 and 50 of the Constitution. He relied on Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board [2016] eKLR to buttress this argument.

34. He maintained that the decision by the respondent on 19th March 2021 is an affront to Article 33 of the Constitution. His publication did not in any way foster indiscipline among veterinary professions and the allegations by the respondent were baseless and far-fetched. His publication could also only be accessed by veterinary professional who have access to the portal.

35. Counsel has argued that the petitioner’s comments were fair and the respondent being a public body was not immune to positive scrutiny by the public and members of the veterinary profession. He also refuted that the memorandum violated Clause 12(1) (a) and (d) of the Code of Ethics for Veterinary Surgeons and Veterinary Para- Professional, Regulations 2015.

36. He submitted that the right to freedom of expression is only limited under Article 33 (2) and (3) of the Constitution; the comments do not fall under the said section. Further, relying on Cyprian Andama v Director of Public Prosecutions & another; Article 19 East Africa ( Interested Party) [2019] eKLR he submitted that it was important for public officers to tolerate all manner of criticism in an open and democratic state as people usually exercise their- statute backed right granted to them by the Constitution in which case the legislation’s purpose should not suppress the said right. He thus by dint of Article 20(2) of the Constitution, had the right to exercise the right to freedom of expression to the greatest extent which may only be limited under Article 33 (2) and (3) of the Constitution.

37. He submitted that the decision by the respondent violated his right under article 28 of the Constitution as having been found guilty and fined by the respondent, portrayed a bad image among his fellow colleagues and the public at large and tainted his reputation as a veterinary doctor of good standing.

38. Counsel argued that pursuant to Article 22and 258 of the Constitution and Rule 4 of the Constitution of Kenya ( Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and the case of John Mining Temoi & another v Governor of Bungoma County & 17 others [2014] eKLR he was entitled to commence this petition.

39. He relied on Nanyuki Express Cabs Savings and Credit Society Limited v County Government of Marsabit [2020] eKLR, arguing that he was entitled to the orders sought.

The Respondent’s submissions 40. The respondent filed submissions dated 14th January 2022 through Mr. Thande Kuria for the Attorney General. He raised five issues for determination. On whether the jurisdiction of the High Court under section 37 of the VSVP Act has been properly invoked, he submitted in the negative. He submitted that by dint of section 37 of the VSVP Act, where a party is dissatisfied with the decision of the KVB, the recourse available is by way of appeal to the High court which should be filed within 14 days of the delivery of the respondent’s verdict. Counsel relied on Speaker of the National Assembly vs the Hon. James Njenga Karume, Civil Application No. NAI 92 of 1992 [NAI 40/92] (unreported), to buttress this point. He submits that the petition and the notice of motion offend the doctrine of exhaustion and contravenes section 9 (2) and (3) of the Fair Administrative Actions Act. He further relied onRepublic vs Kenya Revenue Authority, Commissioner Ex Parte Keycorp Real Advisory Limited ( 2019) eKLR and Republic vs JP Maiywo & 2 others sued as the Executive Director, Treasurer and Secretary respectively of Central Kenya Conference (CKC); Moses Nyankuru & 23 others (Interested Parties) Exparte Humphrey Nguma Macharia & another [2019] eKLR.

41. Counsel contends that the petitioner failed to apply for exemption from the obligation to exhaust internal remedies nor demonstrate exceptional circumstances for exemption to file an appeal to the High Court as envisaged in Dawda K. Jawara vs Gambia ACnMPR 147 /95- 149/96.

42. On whether the jurisdiction of the court has expired under the provisions of section 8 of the Fair Administrative Actions Act, he submitted that the petitioner’s case is predicated upon violation of Article 47(1) of the Constitution by the respondent. Relying on Section 8 of the Fair Administrative Actions Act, Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR; In the matter of the Interim Independent Electoral Commission (Applicant) , Constitutional Application Number 2 of 2011; and, Owners of Motor Vessel “ Lillian S” v Caltex Oil (Kenya) Ltd [1989] he argued that litigation founded on Article 47 is a time bound type of proceeding which the court must hear and determine within the timeframes set by statute. Hence the jurisdiction of this court has lapsed by effluxion of time and it must down its tools.

43. On whether the respondent’s disciplinary process adhered to Articles 47 and 50 of the Constitution as well as Section 35 of the VSVP Act, counsel submitted that the genesis of the proceedings before the disciplinary committee was the infraction of section 6(2) (g) of the VSVP Act, regulation 43 of the code of ethics and section 12(1) of the VSVP regulations. The petitioner was accorded a preliminary opportunity to respond to the allegations as detailed in the replying affidavit but declined to respond.

44. Counsel refuted the petitioner’s defence that he was exercising his right to freedom of expression and argued that the same could not be sustained and is not an absolute right but has limitation by dint of Article 33 (3) of the Constitution. He relied on the decision of Lord Coleridge CJ in Bernard & Another v Periman (189-4) ALL ER 965. The substance therein was the publication of information that was disparaging to the members of the board of KVB who are also members of KVA.

45. Counsel argued that disciplinary action taken against the petitioner was justified as he did not deny issuing the memorandum which constituted professional misconduct and attracted disciplinary proceedings. All these were admitted by the petitioner save for his contention that the board had no mandate to investigate and punish him for libel. There is also no evidence by the petitioner challenging the conviction for his wrong doing and punishment meted out on him by the Kenya Veterinary Board pursuant to section 35 of the VSVP Act.

46. It submitted that the petitioner’s contention that the inquiry and disciplinary committee acted without jurisdiction on the basis that he refused to tender exonerating evidence before it and at the same time, he was craving certain time dispensation from the committee without compliance. Counsel contends that the respondent, the petitioner had legal representation at the Committee’s sittings. He has not deponed to rebut the respondents assertion that they were accorded an opportunity to appear and tender written submissions in the form of affidavits. He has not proved that he and his advocate appeared before the board meeting of 19th March 2021 and were not admitted during the committee’s or the board’s proceedings. Accordingly, he was accorded a hearing and there was no requirement for natural justice to be upheld, as a party must not only be heard through viva voce evidence. He had both options and should have utilized them.

47. Relying on the Court of Appeal decision in Republic vs Kenya National Examinations Council ex parte Gathenji & others Civil Appeal No266 of 1996, counsel argued that the orders sought are orders of judicial review in nature and the court is entitled to issue them under the circumstances of this case for the reasons envisaged therein. Further while relying on Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001, he argued that the petitioner’s case does not conform to the said decision and cannot be sustained.

48. On whether the respondent’s disciplinary process envisaged in the VSVP Act met the constitutional muster, counsel submitted placing reliance on the provision of Section 42 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya that if the members who heard the disciplinary cause were the same persons who constituted the Tribunal this court cannot interfere with the said sections as the said decision is not rendered unlawful. The regulatory procedure complained of by the petitioner as set out in the VSVP Act, the regulations and the code of ethics is not unique to KVB functions and are applicable to many other regulators in Kenya. The courts have also affirmed their constitutionality in Alnashir Popat & 7 others v Capital Markets Authority[2020] eKLR.

49. Counsel referred to Section 42 of the interpretation and General Provisions Act which provides:“Where a written law confers a power or imposes a duty on the holder of an office as such, then, unless a contrary intention appears, the power may be exercised and the duty shall be performed by the person for the time being holding that office”.

50. Relying on Craig v South Australia (1995) HCA 58 he submitted that the respondent acted within its statutory mandate. That the petitioner has also failed to demonstrate that there was a jurisdictional error on the part of the respondent. Accordingly, there is evidence that the full board approved the decision as the law requires as a reading of the enabling statute, the rules and the code of ethics reveals that the final orders are anchored on the law. Further the petitioner has not demonstrated that the respondent’s decision was tainted with unreasonableness and irrationality.

51. Relying on Noratanman Courasia v M. R. Murali; P.J. Ratnam v. D. Kanikaram, [1964] 3 SCR 1; and, V.C. Rangadurai v. D. Gopalam [1979] 1 SCC 308 he urged the court to be persuaded and to refrain from interfering with the finding of facts of the respondent on issues of professional misconduct and to find that the Inquiry and Disciplinary Committee and the Kenya Veterinary Board applied the right standard in finding the petitioner herein guilty of professional misconduct under the circumstances of the case.

Analysis and determination 52. Having carefully considered the pleadings, affidavits, submissions, cited authorities and the law, I find the following to be the issues for determination:i.Whether the jurisdiction of this court has been properly invoked by dint of Section 37 of the VSVP Actii.Whether the court’s jurisdiction has lapsed by dint of Section 8 of the Fair Administrative Actions Actiii.Whether the petitioner’s rights under Articles 47 and 50, 27, 33, 48 and 28 have been violated by the respondentsiv.Whether the matter herein is sub judice in relation to HCJR 86 of 2020v.Whether the reliefs sought should be granted

i. Whether the jurisdiction of this court has been properly invoked by dint of Section 37 of the VSVP Act 53. Section 37 of the VSVP Act provides for an appeal against a disciplinary action. It provides;“37(1) any person aggrieved by-a.The removal of his name from the register;b.The suspension of or other adverse action in relation to his registration or annual license;c.The period of any such suspension;d.A refusal to restore his name on the register;e.Any other decision of the Board under that part,May appeal to the High Court against the decision of the Board.”

54. Section 9 of the Fair Administrative Actions Act, 2015 heavily relied upon by the respondent as the basis for this court’s jurisdiction being ousted provides as follows“9. Procedure for judicial review1. Subject to subsection(2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.2. The High Court or a subordinate Sunder sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.3. The High Court or a subordinate Court shall, if it not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).4. Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interested of justice.5. A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal. ”

55. The respondent is therefore submitting that the petition offends the doctrine of exhaustion. The 5- bench judge in the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)[2020] eKLR had this to say on where the question of exhaustion of administrative remedies arises. It stated;“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR.62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”

56. While the respondent has submitted that the petitioner has offended the doctrine of exhaustion and Section 9 (2) and (3) of the Fair Administrative Actions Act, 2015 on the premise that Section 37 of the VSVP Act states that a party aggrieved may appeal to the High Court against the decision of the Board, the said Act does not provide for an alternative forum. The Act does not state that the only remedy is an appeal to the High Court. The respondent has failed to point out to this court any internal mechanisms established by the said Act.

57. Article 165 (3) (b) of the Constitution, makes it explicit that this court has the jurisdiction to handle matters on breach or violation of fundamental rights and freedoms. This was also echoed in court in Katiba Institute vs. Presidents Delivery Unit & 3 others [2017]eKLR where Chacha J, stated that,“… This Court has unlimited jurisdiction under Article 165(3) (b) to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. The respondents’ contention that the petition is premature is therefore unsustainable.”

58. The petition herein is premised on breach of fundamental rights and freedoms in Articles 47, 27, 33, 28 and 50 of the Constitution. The VSVP Act only talks about the aggrieved party appealing to the High court, it does not make mention of any other forum from within.

59. Article 165 (6) of the Constitution provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi- judicial function, but not over a superior court. The respondent was exercising a quasi- judicial function and therefore is amenable to the supervision by this Court by virtue of that Article.

60. It is also important to note Article 159 (2) (d) of the Constitution that provides that in exercising judicial authority, the courts and tribunals shall be guided by the following principles- (d) justice shall be administered without undue regard to procedural technicalities. This is clearly a procedural technicality. In my view, this court is clothed with the jurisdiction to handle this petition and the jurisdiction of this court has been properly invoked.

ii) Whether the court’s jurisdiction has lapsed by dint of Section 8 of the Fair Administrative Actions Act 61. The respondent has argued that the proceedings brought by the petitioner are purely on Article 47 of the Constitution as read with section 4 of the Fair Administrative Actions Act, 2015. That therefore by dint of Section 8 of the said Act, these are time bound proceedings which are supposed to be determined within ninety days of filing of the petition. That the jurisdiction of this court has lapsed by effluxion of time and the court must down its tools.

62. The case of Owners of Motor vessel Lillian S v. Caltex Oil (Kenya) Limited [1989] KLR1 is the locus classicus case on jurisdiction. The court therein stated that;“... Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited...”

63. Similarly, in Samuel Kamau Macharia & Another Vs Kenya Commercial Bank Limited and 2 Others [2010] eKLR, the Court held that: -“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of Law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of Law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a Court or tribunal by statute law”.

64. The petition herein is not a review or an appeal against a decision by an administrative body, the respondent herein. It is a matter that is premised on breach of fundamental rights and freedoms. Further, it is also important to note that the basis of the petition is not only on Article 47 of the Constitution as read with Section 4 of the Fair Administrative Actions Act, 2015. Should this court go by the respondent’s contention, what happens to Articles 27, 33, 48, 28 and 50 of the constitution which have been pleaded? Are these Articles also time bound? In my view that is not the case and the argument by the respondent on this is not sustainable as Section 8 of the Fair Administrative Actions Act, 2015 is not applicable.

iii) Whether the petitioner’s rights under Articles 47 and 50, 27, 33, 28 and 48 have been violated by the respond 65. I have considered all the issues raised by the petitioner in his petition and affidavits in respect of the disciplinary proceedings. I have equally considered the response by the respondent in its replying affidavit. It is a fact that the petitioner filed no response to the accusations. He was also not heard in the matter before the verdict was passed.

66. He was served on 16th October, 202 with summons by the respondent. He was to appear before it on Friday 30th October, 2020 at 10. 30 a.m. Another summons dated 9th March, 2021 was served on him for appearance on Tuesday 16th March, 2021 at 10. 00 a.m. He was to file his response by 11th March, 2021. (JMM 11 and 13). These summons were issued following his declining to be vetted and making utterances and statements against the respondent on social media.

67. His complaint is that he was not clear which summons to respond to and lack of sufficient time to prepare. He appeared before the respondent on 30th October, 2020 but not 16th March, 2021. There was an exchange of written communication between the petitioner’s counsel and respondent on clarifications. On 16th March, 2021 he says the respondent promised to respond to his raised concerns. As he waited he received the respondent’s verdict on the matter.

68. The Constitution provides, provides for the right to fair administrative action. Article 47(1) provides:“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

69. In Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another [2018] eKLR, the Court observed that:“35. The Constitution is the Supreme law of the Republic and decrees as such in Article 2(1). It binds all persons and all state organs in the course of performing their duties. The provisions in Article 47 to the extent that they require that an administrative action to be expeditious, fair, lawful and reasonable, and that where such an action adversely affect a person’s right or fundamental freedom, the affected person is entitled to be given written reasons for the action, is a constitutional control over administrative bodies to ensure that they do not abuse their power and that individuals concerned receive fair treatment when actions are taken against them. Failure to observe this constitutional decree, for all intent and purposes, undermines the rule of law and the value of Article `19(1) of the Constitution which states that the Bill of Rights is an integral part of Kenya’s democratic state as the framework for social, economic and cultural policies..”

70. See alsoPresident of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, Judicial Service Commission v Mbalu Mutava & another [2014] eKLR; Section 4 of Fair Administrative Actions Act.

71. Sections 6 and 7 of the VSVP Act provide for the objects and functions of the respondent. Among the functions Section 6 (f) and ( g) provide for the functions as to, formulate and publish a code of ethics which shall be binding on all registered persons, and to regulate the professionals conduct of registered persons and take such disciplinary measures as may be appropriate to maintain proper professional and ethical standards. On inquiries and discipline, section 34 of the VSVP Act, subsection (1) provides that Board may, either on its own motion or as a result of a complaint or charge or allegation lodged with it by any person, institute an inquiry into the conduct of a registered person for the alleged act or omission in a veterinary practice to which this Act applies or in contravention of this Act or regulations made thereunder.

72. The reason for setting out the said sections verbatim is that the petitioner has urged this court to declare that the acts of the respondent were ultra vires. Based on the foregoing, I do not agree that they were acting ultra vires.

73. On fair hearing, Article 50(1) of the Constitution provides “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal. Sub- Article (2) (c), (f), (j), and (k) provide for the right to have adequate time and facilities to prepare a defence; to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed; to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; and, to adduce and challenge evidence.”

74. The scenario in this case reveals that despite the petitioner being given hearing dates he came up with excuses which made it impossible for the matter to proceed. I have looked at the two summons and the only difference between them is that the second one is a bit detailed. Even at the time of service of the second one the petitioner had not responded to the first one. I find that the petitioner contributed to the delay and what was happening in this case.

75. A fair hearing entails there being an opportunity to be heard. The opportunity must be reasonable to enable both parties to prepare. See Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others. Supreme court of Kenya Pet. No.18 of 2014; Joseph Ndungu Kagiri v Republic [2016] eKLR; Sceneries Limited v National Land Commission[2017] eKLR.

76. The petitioner was notified of the need for vetting in 2019. The summons were issued in October, 2020 and March, 2021. He was issued with dates for appearance before the board. Every time he appeared with his counsel, they brought up issues making it difficult for the board to proceed with the hearing. This was despite the fact that the board had answered in writing all the issues raised by counsel.

77. In Union Insurance Co of Kenya Ltd v Ramzam Abdul Dhanji Civil Application No.Nai.170 of 1998 the Court of Appeal held:“whereas the right to be heard is a basic natural justice concept and ought not to be taken away lightly, looking at the record before the court, the court is not impressed by the point that the applicant was denied the right to defend itself. The applicants were notified on every step the respondents proposed to take in the litigation but on none of these occasions did their counsel attend. Clearly the applicant was given a chance to be heard and the court is not convinced that the issue of failure by the High Court to hear the applicant will be such an arguable point in the appeal. The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it.”

78. It is clear from all this that the respondent gave the petitioner opportunities to be heard. The petitioner had declined to be vetted. From the above Court of Appeal finding it is clear that the right to be heard is the opportunity to be heard. If one delays or makes it impossible to be heard, he cannot turn around and claim that the right has been violated. This is what the petitioner is doing in this matter. I therefore find that his right to be heard and his right to fair hearing were not violated.

79. Article 27 (1) of the Constitution provides for the right to equality and freedom from discrimination. In James Nyasora Nyarangi & 3others v Attorney General [2008] eKLR Nyamu J. while discussing discrimination stated:“Discrimination which is forbidden by the Constitution involves an element of unfavourable bias. Thus, firstly on unfavourable bias must be shown by a complainant. And secondly, the bias must be based on the grounds set out in the Constitutional definition of the word “discriminatory” in section 82 of the Constitution.Both discrimination by substantive law and by procedural law, is forbidden by the constitution. Similarly, class legislation is forbidden but the Constitution does not forbid classification. Permissible classification which is what has happened in this case through the challenged by laws must satisfy two conditions namely:-(i)it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and(ii)the differentia must have a rational relation to the object sought to be achieved by the law in question.(iii)the differentia and object are different, and it follows that the object by itself cannot be the basis of the classification.’’

80. In Reuben Njuguna Gachukia & another v Inspector General of the National Police Service & 4 others [2019] eKLR, while declining to find that the petitioner’s right under article 27 of the Constitution was trampled upon, Okwany J, cited with approval the case of John Harun Mwau v Independent Electoral and Boundaries Commission & Another [2013] eKLR, where the court made reference to Article 27 of the Constitution, thus;“[I] It must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the constitution.”

81. Based on the above cases, it is evident that for the petitioner to succeed on the issue of discrimination, he must prove unfavorable bias and the said bias must be based on the grounds set out in the Constitution. A point to note is that discrimination does not act in isolation; to prove it a comparison must have been made. In the case herein, the petitioner has not adduced any evidence to show that he was treated any different from other petitioners. I therefore do not agree that this right was contravened.

82. Article 33 of the Constitution provides:“1. “Every person has the right to freedom of expression, which includes;-a.Freedom to seek, receive, import information or ideas;b.Freedom of artistic, creativity and;c.Academic freedom and freedom of scientific research2. The right to freedom of expression does not extend to-a.Propaganda for war;b.Incitement to violencec.Hate speech ord.Advocacy of hatred thati.Constitutes ethnic incitement, vilification of others, or incitement to cause harm, or;ii.Is based on any ground of discrimination specified or contemplated in Article 27 (4)3. In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”

83. The court in the case of Robert Alai v The Hon. Attorney General & another [2017] eKLR, discussed at length Article 33 on the Freedom of expression as follows;“30. Kenya is a democratic state with a democratically elected leadership. The people of Kenya have a democratic right to discuss affairs of their government and leadership because of their right to freedom of expression guaranteed by Article 33 of the constitution. They cannot be freely expressing themselves if they do not criticize or comment about their leaders and public officers.31. Article 33(2) limits this freedom of expression and any expression that is not in accord with Clause (2) is limited……. Indeed a democratic society cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions…….33. More importantly, public officers have to tolerate criticism in an open and democratic state because people usually exercise the right granted to them by the constitution. A legislation’s purpose should not be to suppress this right.

84. Article 24 of the Constitution provides instances when a constitutional right may be limited. Article 24(1) provides:“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including- (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of limitation;(c) the nature and extent of limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purposes and whether there are less restrictive means to achieve the purpose”.

85. Article 24 (3) of the Constitution, makes it clear that the state or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied. It is thus evident that the onus of proving the limitation or the justification for the limitation is on the party who wants the fundamental right or freedom limited. This was well echoed in R vs. Oakes [1986].I R CS.

86. In the Malawian case of Harry Nakandawire & Another, Criminal case number 5 of 2010, the accused had been charged with the offence of being member of an unlawful society and publishing materials deemed to undermine the Government of Malawi. In acquitting the accused, the court stated;-“It must not be forgotten that our constitution guarantees freedom of speech/expression, opinion, conscious and association. Freedom of speech/expression should not, in our view, be restricted to speaking about only those things that delight the power that be. It must extend to the freedom to speak about even those things that have the capacity/potential to displease, indeed annoy. Persons, institutions should not therefore be barred from expressing themselves on any issue merely because doing so will discomfort certain quarters for the remedy in such instances, is not to bar expression but to allow those offended to pursue civil suits…People must be free to hold and impact even unpopular and for minority opinions…”

87. In conclusion I find that this issue of freedom of expression could have been well addressed had the matter been deliberated upon with the two parties participating. The respondent would have been expected to demonstrate how it had been prejudiced by the petitioner’s communication about it in the social media. On the other hand, the petitioner would have justified his reason for such conduct.

88. On Article 28 of the Constitution, it provides that every person has inherent dignity and the right to have that dignity respected and protected.

89. The court in the case ofMutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited[2021] eKLR it held that:“50. As regards the right to dignity, in Ahmed Issack Hassan vs. Auditor General[2015] the Court held that:“…the right to human dignity is the foundation of all other right and together with the right to life, forms the basis for the enjoyment of all other rights…put differently thereof, if a person enjoys the other rights in the Bill of rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated”. See Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) SCR (2) 516. ”

90. In Francis Mulomba Nguyo v Nation Media Group Limited & 2 others [2021] eKLR, Korir J, stated with regards to article 28 of the constitution;“47. In regard to the claim that the Petitioner’s right to human dignity was violated by the respondents’ actions, I rely on the statement inDawood v Minister of Home Affairs, [2000] (3) SA 936 (CC), as cited at paragraph 132 of the Supreme Court case of Martin Wanderi & 106 others v Engineers Registration Board & 10 others [2018] eKLR, that:“Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. . . dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”48. The Supreme Court interpreted the cited paragraph to mean that “the right to dignity [is] at the core of a violation of other fundamental rights and freedoms.” In other words, where it is established that a right under the Constitution has been infringed upon, then the infringement of the right to human dignity under Article 28 is highly likely to have also occurred. In this case, I have found that the Petitioner’s right to privacy was infringed upon by the actions of the respondents and it therefore follows that his right to human dignity was also violated

91. Human dignity is a right that is highly respected and protected by the Constitution. It is the base on which other rights are founded. The right complained of here is the right to be heard and right to fair hearing which I have already discussed. How then did this affect the petitioner’s right to human dignity?

92. The petitioner argued that his right to human dignity has been violated as a result of the respondent’s verdict. Further that his reputation will be affected among his peers. It is not enough to state so. Had the parties been heard they would have expressed themselves. I however do not see any evidence of the petitioner’s reputation having been affected negatively.

93. I think I have said enough in respect of the prayers sought by the petitioner. I have found that the petitioner’s right to be heard and to a fair hearing were not infringed due to his contribution to the delays and unnecessary issues. However, for the ends of justice to be achieved I find that it is only fair that the petitioner appears before the respondent board for the matter to be heard afresh. I make this finding well aware that this court on 19th April, 2021 issued conservatory orders in respect of the respondent’s decision of 19th March, 2021. So the petitioner has not suffered any loss. As a result thereof I issue the following orders:i.The respondent’s decision in KVB Disciplinary case No.3 of 2020 (KVB Dr. Josiah Machubi Mandieka) is hereby set aside.ii.The petitioner to file his response to both summons within 14 days before the Board.iii.Thereafter the respondent to hear the matter within 30 days upon service of the response by the petitioner. No adjournment requests to be entertained.iv.The conservatory orders issued herein are vacated.v.Each party to bear its own costs.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 19TH DAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT