[2022] KEHC 11885 (KLR)

Muyale v Kenya Veterinary Board (Petition E138 of 2021) [2022] KEHC 11885 (KLR) (Constitutional and Human Rights) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11885 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E138 of 2021

HI Ong'udi, J

May 19, 2022

Between

Nicholas Oduor Muyale

Petitioner

and

Kenya Veterinary Board

Respondent

(Arising from the decision of the Kenya Veterinary Board made on March 19, 2021 in KVB Disciplinary Case No 4 of 2020, Kenya Veterinary Board v Nicholas Oduor Muyale.)

Judgment

1. The petition dated April 16, 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(1), 33, 48, 50 and 28 of theConstitution and section 4 of the Fair Administrative Action Act, 2015.

2. He therefore prays for the following reliefs:i)A declaration that the decision made by the respondent on March 19, 2021 in KVB Disciplinary Case No 4 of 2020 (Kenya Veterinary Board v Nicholas Oduor Muyale) 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 theConstitution 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 confines of theConstitution.iii)A declaration that the said decision violated articles 48 and 50 of theConstitution 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 theConstitution 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 theConstitution on the petitioner’s right to dignity, having been found guilty and suspended from the register as a veterinary surgeon without being given an opportunity to defend himself, tainting his reputation as a veterinary doctor and the chairman of KVA.vi)A declaration that the said decision is unreasonable and disproportionate weighed against its intended consequence 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-professionals 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 suspend his registration without giving him an opportunity to be heard.ix)An order of compelling the bringing into the court the proceedings and decision of March 19, 2021 in KVB Disciplinary Case No 4 of 2020 (Kenya Veterinary Board v Dr Nicholas Oduor Muyale) and any proceedings or actions taken subsequently or consequently in execution thereof for suspending his registration as a veterinary surgeon for the next 12 months.x)An award of general and aggravated damages in favour of the petitioner for violation of his fundamental rights by the respondent.xi)Any other relief that the honourable court may deem just and fair in the circumstances.xii)An order that the respondent bears the costs of the petition.

The Petitioner’s case 3. The petition is supported by the petitioner’s affidavit and further affidavit sworn on April 16, 2021 and May 19, 2021 respectively. He avers that he has practiced as a veterinary doctor in Kenya for 33 years and has never had any disciplinary proceedings instituted against him. Further that he was a KVB Board member pursuant to his appointment letter dated September 10, 2018 and Kenya Gazette Notice Vol CXX- No 39 at page 826.

4. While sitting as a board member, vide minutes 2442/10/2019 he tendered an apology towards allegations raised against him which was accepted. A resolution was also passed at the board for him to be inquired as regards the contents of the letter.

5. He avers that the Registrar of the respondent and his fellow board members through a letter dated October 6, 2020 in the 349th Board meeting passed a judgment against him noting that he is not in good standing with the board due to a pending disciplinary case as a result of professional misconduct.

6. He deponed that on April 22, 2020, he received a letter from the Registrar of the respondent in respect of an inquiry on social media posts against them. Subsequently, he was summoned by the respondent via notice of summons dated October 15, 2020 to appear before the respondent on 4 allegations. He appeared before the respondent on October 30, 2020 and through his counsel, raised pertinent issues regarding the proceedings that he had been summoned for which were communicated vide letter received by the respondent on October 30, 2020. That the respondent agreed to respond to the issues raised in due course. Thus the proceedings of October 30, 2020 were adjourned awaiting further communication from the respondent.

7. He deponed that on March 9, 2021 he received another notice of summons dated March 9, 2021 which he noted were different from the initial ones granting him five days to file his response. On March 17, 2021, he appeared and through his counsel, raised pertinent issues regarding the summon to appear that were not the basis for not proceeding with the hearing. The said issues were communicated in the letter received by the respondent on March 15, 2021. He further sought clarification on the summons on how to answer and also sought an adjournment to prepare a response and appear before the respondent. The respondent agreed to consider the concerns raised by the petitioner, communicate to him and grant him 14 days to respond after clarifying the issues raised.

8. He deponed that on April 1, 2021 he was surprised to receive a verdict dated March 19, 2021 from the disciplinary proceedings suspending him from the register as a veterinary surgeon for 12 months.

9. (The contents of the supporting affidavit seem different from what is in the petition).

10. He deponed that the respondent perpetuated unfair administrative actions in the past and continues to do so. According to him the said disciplinary cases were an abuse of his fundamental freedoms enshrined in theConstitution. To wit, the respondent has demonstrated that freedom of expression must be curtailed, and no single veterinarian should criticize the management of the Board. That the board can arrive at a verdict without hearing the accused and the wish to have the case adjourned is at the convenience of the respondent.

11. He averred that he has practiced for 16 years and not 33 years as earlier indicated. It was a typo error. He deponed that prior to the disciplinary proceedings, he was a member of the Board and that the membership of KVB was not limited to practicing veterinarians by dint of VSVSPAct section 4(1) (a) (b) (k) hence erroneous for the respondent to claim that the said members are governed by the code of ethics. Further, the Kenya Veterinary Board (KVB) does not have the code of ethics and conduct therefore could not undertake a disciplinary process against the board member.

12. He averred that it was irrelevant for the board to apply the code of ethics which is specifically on professional malpractice. He further wondered whether the respondent would use the same code of ethics to a board member who was not a veterinary surgeon and averred that by dint of article 27 (1) of theConstitution the laws are to be applied equally without double standards. He further averred that while the respondent admits that the Kenya Veterinary Association (KVA) only considers names of possible candidates to be forwarded to KVB, it failed to disclose that KVA never advertised the vacancy there was no application for consideration for the position, neither was there vetting of the candidates by way of interviews, for the process to be considered competitive.

13. He deponed that the whole process was riddled with a lot of loop holes and he wondered why he was being summoned for vetting. He averred that he acted following the denial of his right to be heard and defend himself. He therefore blew the whistle for everyone to know what was happening in the board. Further that the decision was a one man show. He further deponed that the respondent did not have whistleblower policy and conflict of interest policy as envisaged in the Mwongozo Guideline 2. 6. It was therefore absurd for it to claim that he was conflicted. It did not also have channels and safeguards for disclosures like the one he made. He had the right to express himself publicly in view of the circumstances.

14. He averred that he made an apology to Dr Wanga and Mr Pacho who were aggrieved by the social media post. The board members resolved to promote the image of the board only for him to find out that the respondent’s registrar made additional resolution outside the board meeting’s resolutions. He further reiterated that the code of ethics only applies to a member of the board who is a veterinary surgeon during his veterinary practice but did not cover those who are non-veterinarians.

15. He deponed that he saw no offence in being appointed as there is no offence he had committed. He further noted that the respondent admits to sending fresh summons and upon request for his counsel as to which summons he was to respond to, the respondent agreed to the need for adjournment to provide the clarification. According to him, the reason sought for adjournment was the short notice, which summons to respond to and that there was no time to prepare for hearing. He further provided reasons why he could not proceed.

16. He deponed that the respondent determined his case negating the disciplinary committee recommendations and without his presence contrary to article 50 (2) (f) of theConstitution. He averred that he responded to all allegations made. He was to clarify the rest during the hearing just to receive a verdict.

The Respondent’s Response 17. The respondent filed a replying affidavit sworn by Dr Indraph Mugambi Ragwa on May 12, 2021. He averred that this matter was subjudice since the petitioner had also filed Judicial Review Application No E047 of 2021 praying for similar orders over the same subject matter.

18. He deposed that the petitioner is not candid to the court when he says he has never had any disciplinary proceedings since he has two other disciplinary issues before the board where he was reprimanded and fined in the second instance .Further that contrary to his assertion he has only practiced for 16 years.

19. He averred that the Kenya Veterinary Body is established under the Veterinary Surgeons and Veterinary Para-professionals Act, 2011 (VSVP) Act and operationalized through Regulations of 2013. It is also guided by a robust of code of ethics; the Veterinary SurgeonsandVeterinary 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 professional regulated under the Act.

20. He averred that the Kenya Veterinary Board restricts its decisions to the law and sections 34, 35, 36 and 37 of the VSVP Act, VSVP Regulations and the Code of Ethics direct it. The petitioner’s rights are also set out in section 34 (1) (10) of the VSVP Actwhich is incorporated to the summons sent by the board. Further that deposed that the petitioner is abusing the process of the court since the provision of section 37 of the VSVP Act provides for a procedure of appeal to the High Court against the decision of the board and not for fresh suits being filed in the High Court.

21. He deposed that pursuant to clause 8(2) of the Veterinary Medicines Directorate (VMD) Regulations as contained in Legal Notice No 209 of October 9, 2015 KVB nominates three veterinary surgeons from a list of five identified by the Kenya Veterinary Association (KVA) to be nominated by the Cabinet Secretary as Veterinary Medicine Council Members. Subsequently the petitioner’s name was shortlisted by the KVA as a candidate for possible nomination to the KVB from a list of 12 names.

22. He averred that during the identification VMD council board members, the KVA initially considered the list of names of possible candidates to be forwarded to KVB. After consideration they chose the suitable persons whose names were to be forwarded to KVB for vetting before appointment by the Cabinet Secretary. Therefore the name of the petitioner was not one of the names forwarded to KVB having failed the KVA process.

23. He averred that for the purpose of the aforesaid vetting the VMD council members, the Kenya Veterinary Board constituted an ad hoc committee of Chairpersons of various boards standing committee. The petitioner was one of such board members who qualified to sit in the Ad hoc committee but was disqualified since he had been shortlisted by KVA for posts subject of vetting and as such a conflict of interest would arise. It is the said decision that disgruntled the petitioner who went to the social media to discuss the said decision. The said issue was brought to the attention of the board by concerned members of the veterinary profession. It was deliberated upon and a resolution made where the matter was referred to the inquiry and disciplinary committee of the board. The petitioner was in attendance. No apology was tendered by him as asserted in his pleadings.

24. He further averred that the petitioner was duly informed in writing by the board of its intention to institute disciplinary proceedings against him as per the board’s resolutions. He reiterated that the code of ethics also applied to the petitioner irrespective of the position he was serving in. He was consequently required to step down for the inquiry by virtue of section 34 (11) of the VSVP Act. He deponed that the summons to appear before the IDC and answer to charges were served upon the petitioner on October 15, 2020 wherein he appeared with his counsel demanding a certificate specifying how the electronic evidence was acquired which necessitated fresh summons to issue accompanied by the demanded certificates.

25. He deposed that the petitioner responded to the summons but failed to address the contents of the charges against him. Further that during the hearing the petitioner requested for an adjournment through his counsel on very flimsy grounds.

26. Further that no committee of the KVB can make a decision on behalf of the board. It only makes recommendations for a final decision by the KVB including adjournment of inquiry proceedings as provided for in the VSVP Actand the VSVP Regulations under 12(1) (2) of the VSVP Regulations.

27. He deponed that the time granted to the petitioner was appropriate as he was expected to address issues of fact and arising from his own utterances. That the issues raised in the petition at paragraph 18 fall outside the scope of KVB which is limited to its mandate spelt out in the VSVP Act, VSVP Regulations and Code of Regulations. Further that the two sets of summonses sent were not materially different only that the body of the later summons sent also incorporated a mode of responding to the same.

28. He deponed that the board did not agree to grant the petitioner 14 days of the receipt of the letter dated March 15, 2020 to file a response to the summons. Further that the response time is not cast on stone especially when the allegations were not new but an elaborated reminder of his own allegations and both summonses were similar notwithstanding the legal technicalities. He further deponed that there was no denial of the right to fair hearing. This is confirmed by the adjournments granted to the petitioner at his request.

29. He deposed that the decision by KVB was rendered as a result of the petitioner and his counsel’s failure to address the allegations which rendered the facts uncontested. In their absence, the IDC had to make a decision on the conduct of the petitioner based on the material before it as at March 19, 2021. He further deposed that articles 47, 48 and 50 of theConstitution were adhered to and the timeframes were fair since the petitioner chose to honor the summons and was represented by counsel but did not respond to the allegations levelled against him. That the petitioner had not adduced evidence when the KVB committee agreed to adjourn after he failed to respond to the substance of the two sets of summons. The said summons further stipulated the repercussions of failure to respond.

30. He deposed that the KVB on March 19, 2021 resolved to suspend his registration for one year pursuant to the provisions of section 35 of the VSVP Act. That its decision was not unique and it applied to many regulators. He noted that the petitioner was a repeat offender.

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

32. He averred that in the absence of any statute stipulating timeframes to conclude the disciplinary process, the Fair Administrative Action Act and articles 47, 48 and 50 of the Constitution were adhered to and the said timeframes were fair since the petitioner chose not to honor the summons or respond to the allegations against him. He averred that the petitioner is improperly invoking the jurisdiction of this court by inviting it to investigate the merits of the decision by the board. The said decision was also carried out after thorough examination of the petitioner’s conduct and the petitioner should have presented his defence before the board but did not. He further averred that the relevant provisions of the VSVP Act, the regulations made thereunder and the code of ethics contain elaborative provisions to ensure that the rights of the person’s subject of disciplinary inquiry and procedure are safeguarded it also provides remedies which the petitioner failed to explore before filing this suit.

33. He deponed that the petitioner had not properly invoked the jurisdiction of this court by filing the petition. Further that he had not exhausted the legal remedies available. He implored this court not to grant 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 in the social media where veterinarians subscribe.

The Petitioner’s submissions 34. The petitioner filed submissions dated May 19, 2021 through Washika Wachira & Co Advocates who raised 8 issues. On whether there was a breach of the petitioner’s right to fair administrative action under article 47 of the Constitution, he submitted that he tendered an apology during the board meeting and it was resolved that he be inquired on the contents of the letter. Despite this the registrar of the respondent and the fellow board members of the petitioner through a letter dated October 6, 2020 in the 349th Board meeting, unilaterally passed a judgment against him. It was to the effect that he was not in good standing with the board due to a pending disciplinary case as a result of professional misconduct.

35. According to him, the respondent failed to distinguish between him as a board member and as a practitioner. He argued that Professional misconduct only arises in line with veterinary practice which was not the case here as he was being questioned on his conduct as a board member. Further that having been appointed a board member by the cabinet secretary, it is the cabinet secretary that could bar him from sitting. He argued that was denied a right to be heard. He asserted that it would amount to bias and against the rules of natural justice for a board member to try a fellow board member.

36. On breach of his right under article 27 of theConstitution, he submitted that despite responding to the letter from the respondent dated April 20, 2020 informing them about their failure to address his concerns raised the same was not responded to. On whether the right to justice under article 48 of theConstitution was contravened, he argued that on March 17, 2021 he sought clarification on the summons he was to answer to and further sought an adjournment on grounds of short notice to prepare a response and appear before the respondent.

37. Coming to section 4 of the Fair Administrative Action Act, he argued that the respondent did not comply with, the same. That the respondent delivered a verdict despite agreeing to adjourn the matter to grant him more time to prepare before putting in a response. The verdict was communicated on April 1, 2021. According to him, article 50 of the Constitution and section 4 of the FAA entitles everyone to a fair administrative process that includes timely communication of an intended action, provision in advance of evidence to be used, as well as reasonable scheduling of hearings and ability to adjourn where necessary for the fair hearing.

38. As to whether there was a violation of article 33 of theConstitution, he answered in the affirmative. He further submitted that he had the constitutional right to criticize the respondent which is a public office, as it is the only way to hold them accountable.

39. He submitted that his suspension for the next 12 months is not justified and only meant to frustrate and punish him further for exercising his right to freedom of expression and his career is also been tainted. This he submits is a violation to article 28 of theConstitution.

40. On the consequential orders, declarations and reliefs this court should grant, he submitted that this court is at liberty to grant the orders sought if it finds that there is a breach or a violation of a constitutional provision. He urged that he is entitled to the reliefs sought. Relying on Anarita Karimi Njeru v Republic (1976-1980) KLR 1272, he submitted that he has stated, enumerated with precision and specificity how the respondent’s actions and/or omissions have ultimately violated his fundamental rights and freedoms as enshrined under Articles 50 of theConstitution. He has shown that the respondent is purporting to deregister him as a veterinary surgeon, and that it is proceeding with the suspension of the registration in an unfair and unlawful manner and in the circumstance it is only fair for this court to intervene. He relied on Donald C Avude v Kenya Forests Service No 998 of 2014 and Petition No 404 of 2017- Kenya Human Rights Commission & another v Non- Governmental Organizations Co-ordination Board & another [2018] eKLR.

The Respondent’s Submissions 41. The respondent filed submissions dated January 14, 2022 through Learned Counsel Mr Thande Kuria for the Attorney Geneal. Counsel 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, and argued 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. The same should be filed within 14 days of the delivery of the respondent’s verdict. He relied on Speaker of the National Assembly v theHonJames Njenga Karume, Civil Application No NAI 92 of 1992 [NAI 40/92] (unreported). Thus he argues that the petition and notice of motion offend the doctrine of exhaustion and contravenes section 9 (2) and (3) of the Fair Administrative Action Act. He further relied on: Republic v Kenya Revenue Authority, Commissioner Ex Parte Keycorp Real Advisory Limited [2019] eKLR and Republic v 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.

42. He proceeded to submit 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 v Gambia ACnMPR 147 /95- 149/96.

43. On whether the respondent’s disciplinary process adhered to articles 47 and 50 of theConstitution 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 Codeof Ethicsand section 12(1) of the VSVPRegulations. The petitioner was accorded a preliminary opportunity to respondent to the allegations as detailed in its replying affidavit but declined to respond.

44. He refuted the petitioner’s defence that he was exercising his right to freedom of expression and argued that the same could not be sustained as it is not an absolute right by dint of article 33 (3) of the Constitution. Reliance was placed 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.

45. Counsel argued 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. The petitioner admitted his wrongdoing 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 by the board for his wrong doing and punishment meted out on him by the Kenya Veterinary Board pursuant to section 35 of the VSVP Act.

46. Counsel dismissed the petitioner’s contention that the inquiry and disciplinary committee acted without jurisdiction on the basis that he refused to tender exonerating evidence before the said committee and at the same time, he was craving certain time dispensation from that committee without compliance. Counsel contends that the petitioner did not adduce any evidence to show that he was not accorded an opportunity to appear before the committee to tender written submissions in the form of affidavits. Failure to do so confirms he was accorded a hearing.

47. Relying on Court of Appeal decision in Republic v Kenya National Examinations Councilex parteGathenji & othersCivil Appeal No 266 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 v 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 while placing reliance on the provision of section 42 of the Interpretation and General Provisions Act, cap 2 laws of Kenya submitted that if the members who heard the disciplinary cause were the same persons who constituted the tribunal this court cannot interfere with the said decision as it 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 is 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. Relying on Craig v South Australia [1995] HCA 58 counsel submitted that the petitioner has failed to demonstrate that there was a jurisdictional error on the part of the respondent. 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 that the petitioner has not demonstrated that the respondent’s decision was tainted with unreasonableness and irrationality.

50. Relying on Noratanman Courasia v MR Murali; PJ Ratnam v D Kanikaram [1964] 3 SCR 1; and, VC Rangadurai v D Gopalam [1979] 1 SCC 308 counsel urged the court to be persuaded and refrain from interfering with the finding of facts by 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. He urged the court to dismiss the petition with costs.

Analysis And Determination 51. Having carefully considered the parties pleadings, submissions, cited authorities and the law, I find the following issues to fall for determination:i)Whether the jurisdiction of this court has been properly invoked by dint of section 37 of the VSVP Act.ii)Whether the petitioner’s rights under articles 47, 27, 33, 48, 28 and 50 have been violated by the respondent.iii)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 52. 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.”

53. Section 9 of the Fair Administrative Action Act, 2015 heavily relied upon by the respondent as the basis for this court’s jurisdiction being ousted provides as follows“9. 9. Procedure for judicial review(1)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 theConstitution.(2)The High Court or a subordinate under 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. ”

54. 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 theConstitution and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (IEBC) 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.”

55. While the respondent has submitted that the petitioner has offended the doctrine of exhaustion and section 9 (2) and (3) of the Fair Administrative Action 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 the alternative forum. The Act does not state that the only remedy is an appeal to the High Court. The respondent has failed to prove to this court any internal mechanisms established by the said Act.

56. Article 165 (3) (b) of theConstitution, 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.”

57. The petition herein is premised 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, it does not make mention of any other agency outside the courts. By all means this is a petition premised on breach of fundamental rights and freedoms.

58. 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 be supervised by this court by virtue of that article.

59. It is also important to note that article 159 (2) (d) of theConstitution that provides that in exercising judicial authority, the courts and tribunals shall be guided by the following principle-(d) justice shall be administered without undue regard to procedural technicalities.This 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.

60. 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.

61. His complaint is that he apologized to the board of the statements he had made and they apology was accepted. He was however later on required to face disciplinary proceedings on the same matter. He admits having appeared before the respondent on October 30, 2020 and on March 17, 2021 with his counsel. The matter never proceeded because of the enquiries raised by him and his counsel.

62. I have considered all the issues raised by the petitioner in his petition and affidavit 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 leveled against him. He was also not heard in the matter before the verdict was passed.

63. The petitioner was prior to this incident a member of the board (KVB). He had even been floated for nomination to the Veterinary Medicines Board (VMB) and had to be vetted alongside other candidates. He declined the vetting.

64. The scenario in this case reveals that the petitioner was a member of the Kenya Veterinary Board (the respondent, and was to lead by example. He does not deny making the statement complained of. That is why he apologized to the board. Since October, 2020 he was aware of the accusations against him by the respondent. He did not file any response to the 1st and 2nd summons. He was given two dates on which to appear before the respondent. He appeared with his counsel but on each occasion they raised issues which made it difficult for the respondent to hear him. The board was always ready to hear him.

65. Would this court then say the petitioner was denied the right to be heard? Is this right to be heard absolute? What happens when a party abuses this process by making it difficult for the case to proceed to hearing as happened in this case? It becomes an abuse of the process. An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It reveals the existence of an ulterior purpose or motive underlying the use of process. In this case it can be clearly seen that the petitioner herein largely contributed to the deliberate delay in the hearing of the complaint against him. That led to the action taken up by the respondent as the petitioner never responded to the accusations against him.

66. The petitioner wasted the opportunity to be heard by forever raising issues on matters already communicated to him by the board. He has himself to blame for that. In Union Insurance Co of Kenya Ltd v Ramsam Adbul Dhanji Civil Application No Nairobi 179 of 1998 (unreported) 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.”

67. Relying on the above, I find that the circumstances in this case resonate well with the said holding. The petitioner elected to take the board in circles instead of addressing the issues at hand. He indeed was given an opportunity to be heard and he squandered the same. I therefore find that his right to be heard was not violated.

68. 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 Ltd v National Land Commission [2017] eKLR. The petitioner was notified of the need for vetting in 2019. As already found, the petitioner was not heard despite the opportunities availed. This was upon his own request. This right was therefore not violated.

69. TheConstitution 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.”

70. In Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another [2018] eKLR, the court observed that;“35. TheConstitution 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 theConstitution 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. 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. Article 27 (1) of theConstitution provides for the right to equality and freedom from discrimination. In James Nyasora Nyarangi & 3 others 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 theConstitution.Both discrimination by substantive law and by procedural law, is forbidden by theConstitution. Similarly, class legislation is forbidden but theConstitution 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.’’

74. 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 theConstitution 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 theConstitution, thus;“[I] It must be clear that a person alleging a violation of article 27 of theConstitution 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 theConstitution.”

75. Based on the above case, it is evident that for the petitioner to succeed on the issue of discrimination, they must prove unfavorable bias and the said bias must be based on the grounds set out in theConstitution. 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.

76. On Article 33 of theConstitution, 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.”

77. 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 theConstitution. 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 v 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 Vs 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 v 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.

78. Article 24 (1) of theConstitution provides instances when a constitutional right may be limited. It provides:(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.

79. Article 24 (3) of theConstitution, 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 SCR 103.

80. In the Malawian case of R v 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…”

81. Despite raising so much storm about article 33 of the Constitution the petitioner has not come out to explain how his right of freedom of expression has been curtailed. He knows the confidential information he is said to have released to through social media which he admitted and apologized to before the board. This issue could have been well addressed had the petitioner been ready for hearing.

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

83. In Francis Mulomba Nguyo v Nation Media Group Limited & 2 others [2021] eKLR, Korir J, stated with regards to article 28 of theConstitution;“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.

84. Human dignity is a right that is highly respected and by theConstitution. 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?

85. 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. The petitioner squandered this opportunity.

86. I think I have said enough in respect of the prayers sought by the petitioner.

V. Whether The Reliefs Sought Should Be Granted: 87. 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 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 respondent board for the matter to be heard afresh. I make this finding well aware that this court on April 19, 2021 issued conservatory orders in respect of the decision by the respondent dated March 19, 2021. The petitioner has therefore not suffered any loss. As a result thereof, I make the following orders:(i)The respondent’s decision of March 19, 2021 in KVB Disciplinary Case No 4 of 2020 (KVB v Nicholas Oduor Muyale) 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 April 19, 2021 are vacated.(v)Each party to bear its own costs.

Orders accordingly.

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