[2022] KEHC 3025 (KLR)

Muchibi v Kenya Veterinary Board (Petition E120 of 2021) [2022] KEHC 3025 (KLR) (Constitutional and Human Rights) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3025 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E120 of 2021

HI Ong'udi, J

May 19, 2022

Between

John Wilberforce Muchibi

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 to 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. 2 of 2020 (Kenya Veterinary Board v John Wilberforce Muchibi) violated Article 47 of the Constitution on fair administrative action, and section 4 of the Fair Administrative Action Act.ii.An order of certiorari bringing into the court the proceedings and decision of 19th March 2021 in KVB Disciplinary Case No. 2 of 2020 (Kenya Veterinary Board v John Wilberforce Muchibi) and quashing on proceedings or actions taken subsequently or consequently in execution thereof for quashing, to wit finding the petitioner guilty and fining him KShs.30,000/- and KShs.20,000/- from the 1st and third charge respectively.iii.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.iv.A declaration that the said 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.v.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.vi.A declaration that the said decision violated Article 28 of the Constitution on the petitioner is right to dignity, having been found guilty and fined without being given an opportunity to defend himself, taunting his reputation as a veterinary doctor of 33 years in good standing.vii.A declaration that the said decision is unreasonable and disproportionate weighed against its intended consequences of regulating the veterinary profession.viii.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.ix.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.x.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. xi.A declaration that the impugned disciplinary proceedings by the respondent and its subsequent decision of 19th Mach 2021 in KVB Disciplinary Case No. 2 of 2020 (Kenya Veterinary Board v John Wilberforce Muchibi) is unconstitutional, null and void ab initio and in violation of the law.xii.An award of general and aggravated damages in favour of the petitioner for violation of his fundamental rights by the respondent.xiii.Any other relief that the Honourable Court may deem just and fair in the circumstances.xiv.An order that the respondent bears the costs of the petition.

The Petitioner’s case 3. The petition is supported by the affidavit of the petitioner sworn on 9th April 2021 and supplementary affidavit sworn on 7th June 2021. It is his case that, on 25th September 2019, he received an invitation from the respondent for vetting on 11th October 2019 to be a member of the Veterinary Medicines Directorate. On 27th September 2019, he received another letter from the respondent informing him of the documents he would need to present in compliance with Chapter 6 of the Constitution, to wit tax compliance certificate from 2019, certificate of good conduct for 2019, clearance certificate from the Ethics and Anti-corruption Commission, clearance from the Higher Educations Loans Board and a clearance from a credit reference bureau which said documents would take more than the 14 days granted to procure.

4. On 11th October 2019, he appeared before the respondent’s vetting committee and presented a memorandum to the respondent’s vetting committee raising a number of concerns against it for their consideration and response.

5. On or about 20th April 2020 he received a letter reference KVB/IDC/VOL1/40 from the respondent raising allegations that through his memorandum, he cast aspersions on the respondent’s vetting committee.

6. On 21st April 2020 he was gazetted as a member of the council of the Veterinary Medical Directorate by the Cabinet Secretary for Agriculture, Livestock, Fisheries & Cooperatives vide Gazette Notice Number 3243. The said appointment is currently before Court of Appeal in Nairobi Judicial Review Application No. 86 of 2020, Republic v The Principal Secretary State Department of Livestock & 3 others exparte Dr. Elizabeth Ouko & 3 others. Despite this the respondent insisted on proceeding with the disciplinary proceedings.

7. Subsequently, he responded to the said letter on 4th May 2020 notifying them that they had not responded to his concerns and further requesting 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.

8. On 14th October 2020, he did a follow up letter to the respondent raising his concerns of getting a fair hearing considering the time his case was taking and their failure to respond to any of the correspondences. On 15th October six months after the inquiry commenced, he received a notice of summons having two allegations and granting him 14 days to respond to it.

9. Pursuant to summons, he appeared before the respondent on 29th October 2020 through his advocates and raised pertinent issues regarding the proceedings he had been summoned for. Consequently, the proceedings were adjourned until further communication from the respondent.

10. He received other summons dated 9th March 2021 vide email which 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.

11. 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 clarification 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. The verdict was to the effect that he issues an apology to the respondent within 30 days from 19th March 2021 and to pay a fine of KShs.30,000/- and KShs.20,000/- for the 1st charge and 2nd charge respectively within 60 days from the said date.

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

13. He deposed that the disciplinary proceedings were initiated against him due to his comments in relation to his refusal to be vetted upon his appointment as a member of the Veterinary Medicine Directorate which reasons he had raised in his memorandum. The same also gave rise to Judicial Review application No. 86 of 2020. Further that his right under Article 33 of the Constitution was being limited.

14. He deponed that the respondent took more than six months to communicate back to him which period was inordinate and unjustified. He did not have sufficient time to prepare himself. He denied snubbing the summons issued to him and stated that together with his counsel, they attended the inquiry slated for 21st March 2021 which was adjourned by consent of both parties. He averred 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.

15. He averred that the Respondent on its own motion and without granting him a chance to defend himself, issued a verdict which was sent to him via email on 1st April 2021. Further that the charges were contested contrary to the respondent’s allegations. He averred that he never waived his right to be heard. He therefore filed this petition as a result of the violation of his rights.

16. According to him, his publication can only be accessed by the veterinary professions who have access to the portal and the allegation that the information was in the public arena was misleading.

The Respondent’s response 17. The respondent filed a replying and a further replying affidavit by Dr. Indraph Mugambi Ragwa sworn on 12th May 2021 and 25th June 2021 respectively. He deposed that the Kenya Veterinary Body 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 of 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 para professional and the said code of ethics is binding on all professionals regulated under the Act.

18. 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 of five identified by the Kenya Veterinary Association (KVA) to be nominated as VMD Directors. Subsequently the petitioner’s name was forwarded to the Kenya Veterinary Board by KVA on 6th September 2019.

19. He deposed that the petitioner appeared for vetting on 11th October 2019 and declined to be subjected to vetting. He also produced a memorandum addressed to KVB whose contents when considered wholesomely by the respondent herein, violated the express provisions of clause 12(1) (a) and (d) of the Code of Ethics for Veterinary Surgeons and Veterinary Para Professional, 2015 a contained in Legal Notice No. 194 of 18th September 2015.

20. He averred that the petitioner continued to demonstrate contempt and disregard for the respondent and the code of ethics in a publication regarding KVB’s deliberations on vetting nominees for the VMD Council. The publication dated and published on 15th October 2020 violated the express provisions of the code of ethics and in particular regulations 4 (c) and (d), 12 (1) (a), (b), (c) (d), 39 (3) (a) (c) and 40(1).

21. He deposed that the petitioner was not candid about when he received the first communication. He further deposed that the period between the publication of the material, the presentation of the impugned memorandum that constituted the substratum of the accusations by the KVB, the basis of the disciplinary inquiry and the time the petitioner was formally notified of the same did not prejudice the rights of the petitioner in any way to curtail his rights under the applicable statute and regulations.

22. He denied that the disciplinary issue the subject of litigation herein and Judicial Review No. 86 of 2020 (supra) are related as the latter is on the legality of the appointment of the petitioner to the membership of the VMD council.

23. He deposed that the petitioner had an opportunity to respond to the inquiry on the issues raised on his professional conduct and breach of the regulations. He did not address the issues when invited by KVB even after the KVB clarified the allegations clearly in the summons sent to the petitioner on 9th March 2021.

24. He deposed that the Board of Kenya Veterinary Board are not full time and only meet at least 4 times in a year to deliberate on their issues. That the allegations against the petitioner are from his own correspondence and social media postings which are straight forward and require factual response devoid of lengthy preparations. He deposed further that the committee presents its deliberations and recommendations to the Kenya Veterinary Board, which deliberates on all this at its meetings. Upon making its decisions, it communicates the same to the affected persons. The issue of delays does not arise.

25. He deposed that the matter was completed when the petitioner through his legal counsel snubbed the summon that would have offered him an opportunity to make a final presentation in addition to all the correspondences that had been shared with KVB. His response to the inquiry never addressed the substance of the allegations but addressed matters fully addressed by the statute. His failure to respond to the factual contents of the charge rendered the facts of the allegations uncontested.

26. He deposed that both summons issued to the petitioner were clear with no contradiction and further stipulated the repercussions for failure to respond. Thus the period given by KVB to respond was reasonable. He further deposed that the response time is not cast in stone especially when the allegations were an elaborated reminder of his own allegations. The summons dated 9th March 2021 were similar to those of 15th October 2020 notwithstanding the legal technicalities.

27. He averred that by virtue of the procedures set out in the VSVP Act, VSVP Regulations, Code of Ethics and disciplinary procedure communicated through the summons, the decision made on 19th March 2021 had to be communicated to the petitioner through his email address which was on record. He further averred that the procedures in the said statutes were complied with by KVB in arriving at its decision. He asserted that the Board’s mandate to investigate, prosecute and discipline is set out in the VSVP Act and the Board did not have any recourse beyond that set in the law. The same have also been recognised by the courts.

28. Regarding freedom of expression, he averred that by dint of Articles 33(2) and 33(3) of the Constitution, the petitioners utterances fell within the limitation envisaged therein. The said issue was also not raised before the Kenya Veterinary Board for deliberation and decision.

29. He deposed that the Board acted within the confines of the law while reaching its decision and that it considered the recommendations by the IDC and approved recommendations and as a consequence fined the petitioner as stipulated in the petition. Further, the petitioner has also not exhausted his legal remedies available including filing an appeal as provided for under section 37 of the VSVP Act.

30. In his further affidavit, he reiterated the contents of his replying affidavit and added that KVB objects to the reliefs sought by the petitioner which if granted will foster indiscipline among professionals regulated by KVB since the contempt displayed by the petitioner is in the public arena and the social media where veterinarians subscribe.

31. He deposed that the contents of the petitioner’s memorandum and the social media post that necessitated the disciplinary proceedings were proof of violation of the law and the code of ethics. That the petitioner ignored to respond to a straight forward matter of fact concerning a letter he authored to KVB and certified social media posts. That he instead wants to hide behind legal technicalities on a matter of fact clearly understood by himself and peers. He further deponed that the petitioner did not defend the allegations as stated in his supplementary affidavit nor tendered any evidence to prove the assertion before court. He only appeared before the KVB to engage in legal technicalities effectively snubbing to respond to KVB.

The Petitioner’s submissions 32. The petitioner filed submissions dated 20th December 2021 through Luchini & Company advocates. Reiterating the contents of the petition and supporting affidavit and while relying on Coastal Bottlers Limited v Commissioner of Domestic Taxes [2008] eKLR, he argued that the Petitioner had legitimate expectation that the respondent would communicate to him, addressing the concerns he had raised, give him time to respond 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.

33. 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 the petitioner 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.

34. Counsel dismissed the allegation that the charges against the petitioner were never contested and that he snubbed the summons. He argued 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.

35. 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 the petitioner was supposed to conduct his defence and how to respond to the allegations against him. He submitted that the petitioner had the right to seek for more time to prepare his defence if he felt the one given to him was insufficient. In this case, 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. He submitted that Article 50(2) (c) of the Constitution gave him the right to be given adequate time to prepare for his defence which cannot be limited pursuant to Article 25 (c) of the Constitution.

36. 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 him the right to be heard and adequate time to prepare his defence once it clarified which summons he was supposed to respond to. Consequently, he argues that 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.

37. 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 submitted 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 submitted 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.

38. He argued that the decision by the respondent was biased, as the petitioner was never given a chance to defend himself and the respondent never conducted a hearing or inquiry 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 that argument.

39. He maintained that the decision by the respondent on 19th March 2021 is an affront to Article 33 of the Constitution. That the publication did not in any way foster indiscipline among veterinary professions and the allegations by the respondent were baseless and far-fetched. The publication could also only be accessed by veterinary professional who have access to the portal. Counsel contended 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 petitioner’s memorandum violated Clause 12(1) (a) and (d) of the Code of Ethics for Veterinary Surgeons and Veterinary Para- Professional, 2015.

40. He submitted that the limitation to the right to freedom of expression is only provided for under Article 33 (2) and (3) of the Constitution; the comments do not fall under the said limitation. 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. This is because 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. That the petitioner by dint of Article 20(2) of the Constitution, has 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.

41. He submitted that the decision by the respondent violated the petitioner’s right under article 28 of the Constitution and portrayed a tainted image of him among his fellow colleagues and the public at large. It was an attempt to destroy his reputation as a veterinary doctor of 33 years good standing.

42. Counsel argued that pursuant to Article 22 and 258 of the Constitution and Rule 4 of constitution 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 the petitioner was entitled to commence this petition.

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

Respondent’s submissions 44. 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 submits 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. He relied on Speaker of the National Assembly vs the Hon. James Njenga Karume, Civil Application No. NAI 92 of 1992 [NAI 40/92] (unreported). Thus he argues the petitioner’s petition and Notice of Motion offend the doctrine of exhaustion and contravenes section 9 (2) and (3) of the Fair Administrative Actions Act.

45. He further relied on the following cases: Republic 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.

46. Counsel argues 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.

47. 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, he submits 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 respondent to the allegations as detailed in the replying affidavit but declined to respond.

48. 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 (1891-4) 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.

49. Counsel argues that disciplinary action taken against the petitioner was justified as the petitioner 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. That 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.

50. He 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 petitioner had legal representation at the Committee’s sittings. He has not deponed to rebut the respondent’s 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 boards 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.

51. Relying on the Court of Appeal decision in Republic vs Kenya National Examinations Council ex parte Gathenji & others Civil Appeal No.266 of 1996, counsel argues that the orders sought are orders of judicial review in nature and the court is not 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 argues that the petitioner’s case does not conform to the said decision and cannot be sustained.

52. On whether the respondent’s disciplinary process envisaged in the VSVP Act met the constitutional muster, counsel has 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. Section 42 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya 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”

53. Relying on Craig v South Australia (1995) HCA 58 counsel submits that the respondent acted within the statutory mandate. That the petitioner failed to demonstrate that there was a jurisdictional error on the part of the respondent. He contends that 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.

54. 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 55. Having carefully considered the parties pleading, submissions, cited authorities and the Law, I find the following issues falling for determination:i.Whether the jurisdiction of this court has been properly invoked by dint of Section 37 of the VSVP Actii.Whether the petitioner’s rights under Articles 47, 27, 33, 28, 47 & 50, and 48 have been violated by the respondentsiii.Whether the matter herein is sub judice in relation to HCRJ No.86 of 2020. iv.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 56. 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.”

57. 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. ”

58. In other words, the respondent is 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:

59. The court above however noted that there are exceptions to the doctrine of exhaustion as follows;59. "However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:……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.”

60. 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 give to this court any internal mechanisms established by the said Act.

61. 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 v 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.”

62. The petition herein is based on breach of fundamental rights and freedoms in Articles 47, 27(1), 33, 28 and 50 of the Constitution. The VSVP Act only talks about the aggrieved party appealing to the High court and does not make mention of any other agency for dispute resolution outside the courts.

63. 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 of this Court by virtue of that Article.

64. It is also important to note that Article 159 (2) (d) of the Constitution 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”. What the respondent raises is for sure is 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.

65. I have taken note of all the petitioner’s complaints as narrated in his petition and supporting affidavits in respect to his not being heard in the matter at hand. I have also considered the response by the respondent vide the replying affidavit. It is also undisputed that the petitioner did not file any response to the accusations raised against him by the respondent. It is also true that no physical hearing was conducted before the verdict was issued.

66. The summons served on 15th October, 2020 (JWM10) indicates that the petitioner was to appear before the board on Thursday, 29th October, 2020 from 2 p.m. The second summons dated 9th March, 2021 (JWM12) shows that the petitioner was to appear before the board on Tuesday 16th March, 2021, but was to file his response by 11th March, 2021.

67. The summons were issued as a result of the petitioner declining to be vetted by the respondent in respect of a pending appointment of the said petitioner. Between the issuance of the two summons there was written communication between the petitioner and respondent in respect of inquiries and issues raised by the petitioner which were responded to.

68. The petitioner’s complaint is on the two summons claiming that he did not know which one he ought to have responded to. Secondly he argues that the two days he was given to respond to the second summons was too short. Did he ever appear before the board as directed on 29th October, 2020 and on 16th March, 2021? He claims to have appeared on 29th October, 2020 through his counsel. He did appear on 16th March, 2021 before the respondent and sought clarifications on issues raised before. He sought for an adjournment which he claims was granted and he was given 14 days to prepare. He further says the respondent agreed to respond to his request. As he waited for the correspondence he received the verdict dated 19th March, 2021. It is not clear which request the respondent was to respond to.

ii. Whether the petitioner’s rights under Articles 47 & 50, 27, 33, 28, and 48 have been violated by the respondent 69. The right to fair administrative action is entrenched in Article 47 of the Constitution. Sub- Article (1) provides:“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

70. 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...”

71. Further in the above case the court cited with approval the case of Constitutional Court of South Africa in the case of President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, on the fact that the right to fair administrative action is a constitutional right as follows-“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”

72. Also see Judicial Service Commission v Mbalu Mutava & another [2014] eKLR and section 4 of the Fair Administrations Actions Act, 2015.

73. 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 the 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.

74. 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.

75. I however find that the petitioner contributed a lot to what was happening to him. Whenever he appeared before the respondent he brought up issues which made it impossible for the board to hear him on the matter. This is despite the answers given to him in writing over issues he had raised.

76. 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”.

77. What then is a fair hearing? For one to talk of fair hearing there must first of all be a hearing i.e. an opportunity to be heard. The opportunity must be reasonable. See Evans Odhiambo Kidero & 4 others v. Ferdinand Ndungu Waititu and 4 others Supreme Court of Kenya Petition No.18 of 2014; Joseph Ndungu Kagiri v Rep. [2016] eKLR; Sceneries Limited v National Land Commission [2017] eKLR. This is a matter that started in the year 2019 when the invitation for vetting was made. This first summons was issued in October, 2020 followed by another one in March, 2021. The second one was more detailed but the issues were just the same. As this court has already found the petitioner was not heard by way of viva voce evidence but opportunities for hearing had been availed to him.

78. From my analysis it is clear that the petitioner was invited twice to appear before the board for hearing. It was at his instance that the disciplinary proceedings never took off. In the case of Union Insurance Co of Kenya Ltd. vs Ramzam Abdul Dhanji Civil Application No. Nairobi 179 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.”

79. The right to be heard is the opportunity to be heard. When a party causes unnecessary and uncalled for delays making it impossible to be heard he cannot claim that his right to be heard has been violated. I therefore find that the right to be heard and the right to fair hearing were not in respect of the petitioner infringed.

80. 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.’’

81. 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;“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.”

82. 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 persons who had issues before the board. I therefore do not agree that this right was contravened.

83. On Article 33 of the Constitution, 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.”

84. 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. It must be appreciated that only through public criticism do citizens make their leaders know that certain actions may not be in the interest of the nation, and such criticism helps public officers understand the feelings of the citizens and following this criticism, leaders may act to address the concerns the criticism is directed at. In the case of Edmonton journal Vs Alberta {1989} 45 CRR 1, the Supreme Court of Canada (Corey J), underlined the importance of freedom of expression when it state that; it is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democratic society cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. And again, in the case of Manika Ghandhi v Union of India {1978} 2 SCR 621, the Supreme Court of India stated that;-“Democracy is based essentially on a free debate and open discussion for that is the only corrective of government of actions in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential.”32. In another case, that of Rangrajam Vs. Jigjiram it was stated that in a democratic society it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means.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.

85. Article 24 of the Constitution provides instances when a constitutional right may be limited. It provides at Article 24(1) as follows:(1)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.

86. 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 v Oakes [1986] 1 R.CS.

87. In the Malawian case of Harry Nakandawire & Another, Criminal case number 5 of 2010, 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…”

88. This issue could only have been properly addressed if the matter had been deliberated upon with the two parties participating. The respondent would have been expected to demonstrate how it had been prejudiced by the petitioners communication in the social media. On the other hand the petitioner would have justified why he conducted himself in such a manner.

89. Article 28 of the Constitution, it provides that every person has inherent dignity and the right to have that dignity respected. 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 did this affect the petitioners’ right to human dignity? There are many decisions on this issue.

90. The court in the case of Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR it held that:“50. As regards the right to dignity, in Ahmed Issack Hassan v 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. ”

91. 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 in Dawood 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”

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 amongst his peers. My only issue is whether the violation of Article 28 is automatic based on the violation on any other right under the Constitution. Since the petitioner was not heard the position must be addressed and made to revert to the original. He has not shown how his reputation has been affected. What have his peers done to show that his reputation is affected or injured? It was his burden to prove that. I find that he has not.

iii. Whether the matter herein is sub judice in relation to HCJR 86 of 2020 93. One of the prayers sought by the petitioner is that the matter offends the doctrine of sub judice and that the disciplinary proceedings are before the HCJR 86 of 2020. The respondent on the other hand has denied the said allegation and asserted that HCJR 86 of 2020 is on the legality of appointment of the petitioner to the membership of the VMD council.Section 6 of the Civil Procedure Act, Cap. 21 Laws of Kenya provides for when a matter can be declared as offending the doctrine of sub judice. It provides that:“6. Stay of suit. No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceedings between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.Explanation:- The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.”

94. I have looked at the Judicial Review matter being referred to by the petitioner. I agree with the respondent that the same is not similar to the disciplinary proceedings instituted by the respondent. The subject matter in High Court Judicial Review No. 86 of 2020 is on the legality of the appointment of the petitioner among other veterinaries to the VMD by the Cabinet Secretary vide Gazette Notice Number 3243 dated 24th April 2020. It is seeking for orders that, the gazette notice be quashed; the Cabinet secretary gazettes them and appoints other persons to the VMD as recommended by the respondent; and a stay of implementation of the Gazette Notice. The disciplinary proceedings are therefore not sub judice as claimed by the petitioner.

iv. Whether the reliefs sought should be granted 95. 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 fir hearing were not infringed due to his contribution to the uncalled for 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 Board for the matter to be heard afresh. I make this finding well aware that this court on 12th April 2021 issued conservatory orders I respect of the respondent’s decision of 19th March, 2021 so the petitioner has not suffered any loss.

96. As a result thereof I issue the following orders:i.The respondent’s decision of 19th March, 2021 in KVB Disciplinary case No.2 of 2020 (KVB v John Wilberforce Muchibi) 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 on 12th April 2021 are vacated.v.Each party to hear its own costs.

Orders accordingly.

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