[2023] KEHC 25162 (KLR)

Onyancha v College of Surgeons of East Central and Southern Africa (COSECSA) & 11 others (Constitutional Petition E015 of 2023) [2023] KEHC 25162 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25162 (KLR)

Republic of Kenya

In the High Court at Nakuru

Constitutional Petition E015 of 2023

SM Mohochi, J

November 9, 2023

N THE MATTER OF ALLEGED ILLEGAL AND IRREGULAR SUSPENSION OF DR. ABEL ONYANCHA APIMA FROM COSECSA SURGERY TRAINING PROGRAMME AND MCS COSECSA EXAMINATION AND IN THE MATTER OF SECTION 9 OF THE FAIR ADMINISTRATION ACTION ACT NUMBER 4 OF 2015 AND IN THE MATTER OF RULE 4,10,11, 13 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL FREEDOMS) HIGH COURT PRACTICE AND PROCEDURE RULES 2013 AND IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 3,10, 19, 20,23 28,4143,47,50, 159,165,258 AND 259 OF THE CONSTITUTION OF KENYA 2010

Between

Dr. Apima Abel Onyancha

Petitioner

and

College of Surgeons of East Central and Southern Africa (COSECSA)

1st Respondent

Dr. Peter Oduor

2nd Respondent

Dr. Samuel Wanjara Wachera

3rd Respondent

Dr. Sitima Oruko Micheal

4th Respondent

Dr. Githiri Christine

5th Respondent

Dr Ondari Nyaribari Joshua

6th Respondent

Mucheru Elisha

7th Respondent

Dr. Mathenge Nduhiu

8th Respondent

Dr. Karen Mbaabu

9th Respondent

Nakuru Teaching and Referral Hospital

10th Respondent

Nakuru County Government

11th Respondent

County Attorney

12th Respondent

Judgment

Introduction 1. Dr. Apima Abel Onyancha - the Petitioner is a qualified medical practitioner trained as a medical Doctor with a Bachelor of Medicine and a Bachelor of Surgery, duly licensed by the Kenya Medical Practitioners and Dentists Council (KMPDC), to treat illnesses and perform surgical procedures anywhere within the Kenyan boundaries, who is currently enrolled in a certificate of competence in surgery, at General Medical Officer Grade (2 years training) towards acquiring a membership to the college of surgeons MCS(ESCA).

2. The Petitioner’s Training is being administered by the 1st Respondent in an accredited training facility the 10th Respondent, a facility run and controlled by the 11th Respondent.

3. The 1st Respondent herein, The College of Surgeons of East, Central and Southern Africa (COSECSA) is non-profit making professional body Established in 1999 with 14-member Countries, that fosters postgraduate education in surgery and provides surgical training throughout the East, Central and Southern Africa region. The College delivers a common surgical training programme with a common examination and an internationally recognized surgical qualification in its Membership programme in Basic Surgery and Fellowship Programme in Orthopedics; Pediatric orthopedics; Otorhinolaryngology; Urology; Pediatric Surgery; Neurosurgery; Cardiothoracic; Plastic Surgery and General Surgery.

4. The 2nd Respondent is, the 1st Respondent’s Program Director and an employee of the 10th and 11th Respondent holding the honorary post essentially with the role of overseeing trainers and expected to collate reports from trainers about the trainee(s) work and submit to the Registrar Office with copies to the Examinations Credentials and Education Scientific Research Committees (ECC/ESRC) in November of each year.

5. The 3rd 4th 5th 6th and 7th Respondents, are all public officers and were appointed by the 11th Respondent as members of a special human resource advisory committee on the 22nd June 2023 Vide HRAC/PGH/NKU/DISP/VOL.I/2023/2b, concerning the Petitioner’s professional conduct, with instructions to sit and give feedback within 2 weeks of the appointment.

6. The 8th Respondent is the COSECSA Country Representative for the 1st Respondent andrepresent the College in Kenya.

7. The 8th and 9th Respondents, are the 1st Respondent’s Country representative(s) whoat the August council meeting of each year, will hand over to the Examinations and Credentials Committee Panel head, a copy of the checklist together with copies of the Training post assessment form, Trainee assessment form and the final consolidation sheet (up to August) of all the candidates taking the examination that year and are enjoined by virtue of their office and role in the Petitioners training.

8. The 10th Respondent, is a county referral and teaching hospital and accredited training facility for the 1st Respondent pursuant to an MOU.

9. The 11th Respondent, is a County government within the meaning of Article 176 of the constitution.

10. The 12th Respondent is enjoined as the principal legal adviser to the county government and in this instance entered appearance for the 3rd, 4th, 6th, 7th,10th and 11th Respondents.

11. On the 10th July 2023, the special human resource advisory committee suspended the Petitioner from the 1st Respondent’s training program for three (3) months, vide a letter HRAC/PGH/NKU/DIS/VOL.1/2023/3 signed by the 2nd Respondent.

12. The Suspension was for 90 days was not the only sanction against the Petitioner, it came with, decision that, the Petitioner shall not sit for his end year examination, a condition precedent, that the Kenya Medical Practitioners and Dentist Council assesses the Petitioners fitness to practice and that the Petitioner should show readiness to resume the program by obtaining a mentor’s recommendation.

Petitioner’s Case 13. It is this suspension following a disciplinary committee hearing, that has given rise to a lengthy constitutional petition as filed, plus an interlocutory application for injunctive reliefs, to suspend and stay the effect of the suspension and enable the Petitioner undertake his examination commencing on the 6th of September 2023.

14. The Petitioner midstream abandoned the interluctory Application to pave way for the urgent hearing of this petition.

15. The Petitioner alleges that, his fundamental rights enshrined in the Articles specified in the title to this Petition, have been contravened by the Respondents thus seeking the following Seven (7) prayers:i.a declaration that, the purported suspension of the petitioner from cosecsa surgery training programme which was communicated vide a document and/or a letter dated 10th july 2023, with reference no. hrac/pgh/nkujdisp/vol.1/2023 to the extent that, it did not follow procedure of fairness, natural justice and fair hearing as enunciated in article 47 as read with fair administrative action act and other relevant statutes, is unconstitutional, null and void.ii.a declaration that, the purported suspension of the petitioner from cosecsa surgery training programme which communicated vide a document and/or a letter dated 10th july 2023 with reference no. hrac/pgh/nku/disp/vol.1/2023 is contrary to article 10,19,25,27,29,30,31,41,43,47 & 50 of the constitution (2010) and relevant laws hence illegal, unconstitutional, null and void.iii.The court is pleased to issue an order of judicial review by way of CERTIORARI, quashing the Respondent's letter dated 10th July 2023 with reference no. HRAC/PGH/NKỰ/DISP/VOL. 1/2023 and for any document purporting to suspend the petitioner from continuing with it's studies or examinations till certification and graduation unless in a lawful manner.iv.The Honorable Court is pleased to issue an order of judicial review by way of prohibition, prohibiting the Respondents Jointly and severally, from enforcing a suspension and any further disciplinary proceedings or any way barring the petitioner from completing his training. clinical work MCS Surgery and/or FCs, or in any way from continuing with his research and academic work and eventual graduation.v.the honourable court is pleased to issue an order of judicial review by way of an order of mandamus compelling the respondents to train and examine the petitioner and allow him to continue and complete his academic studies at college of surgeons of east, central and southern africa (cosecsa) for the course he is currently undertaking, that is, mcs surgery and/or fcs and if successful forward his name for graduation.vi.That any other order or/and modification of Petitioner's prayer(s) which this honourable court may deem fit so as to achieve objects of justice for the petitioner as a whole.vii.Costs of this Petition to be borne by Respondents.

16. The petition is based on forty-three (43) grounds which to me would not constitute solid grounds but rather assertions. The court summarizes his grounds as follows: -i.That both Articles 22 and 258 of the Constitution provides that, every person has the right to institute court proceedings, claiming that this Constitution (a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened) has been contravened, or is threatened with contravention.ii.That the Petitioner has been illegally, irregularly against all rules of natural justice suspended from his COSECSA surgery training Programme, unprocedurally and unheard just 2 months to his final MCS examinations without being given chance to be heard essentially missing coursework and MCS final examination scheduled to be held on 6th September 2023. (notification of MC COSECSA examinations and list of MCS and FCS candidates marked annexure AO-2 AND AO-3 and produced as exhibits 2 and 3 respectively).iii.That the genesis of this conflict being, that the petitioner applied and was approved to join surgery training programme under the College of Surgeons of East, Central and Southern Africa (COSECSA) (hereinafter referred as "COSECSA SURGERY programme on 2022 2023 (copy of COSECSA entry approval note location, PGH-Nakuru marked as annexure AO.4, A05 & A0-6)iv.That the Petitioner diligently did his work with dedication seeing patients, doing clinics, surgeries, clinical work as required by the programme without any problems (copy of surgery rotations and duty rota marked annexure AQ-7 AND AO-8)v.That however, on 10th July 2023, the Respondent, unilaterally and without notice, suspended the petitioner from the COSECSA Surgery training programme, where he is undertaking his MCS (Member college of Surgeons, herein after referred as "MCS”} final year studies at the COSECSA Programme for a course leading to Member college of Surgeons, MCS -General Surgery remaining with 2 months to the final examination.vi.That the Respondents made final determination that the petitioner is unfit to continue with his MCS studies at this time, without giving him prior notice or hearing.vii.That the suspension was not without prior notification of any complaint against the petitioner nor any prior warning nor an opportunity to show cause but Just by ambush, he diligently did his course work, and was doing his final surgical rotation.viii.That the Petitioner worked and studied diligently for the last 2 years, before proceeding on annual leave on 20th June 2023 - 27th June 2023 which was duly approved by the Respondents.ix.That Immediately after leave on 29th June 2023 at around 8am he was called on phone by Dr. Wanjara Samuel, Deputy Medical Superintendent (3rd Respondent herein) to the boardroom informing him that there was a meeting he was supposed to attend at the medical superintendent boardroom. He asked Dr. Wanjara to tell him the agenda of the meeting, but Dr. Wanjara Samuel refused to disclose the agenda saying that he is to be informed of the agenda at the meeting. The Respondents later changed venue from medical superintendent boardroom, to the deputy medical superintendent office where the petitioner was told to wait outside.x.That, the petitioner was called to the meeting at around 8. 30am (30 minutes after being informed that there is a meeting) where he found an ad hoc "kangaroo committee court comprising of Dr. Oduor Peter, COSECSA Programme director (2nd Respondent herein), Dr. Wanjara Samuel-the deputy medical superintendent in charge of emergency (3rd Respondent herein), Dr. Sitima Michael Deputy superintendent administration(4th Respondent herein), Dr. Gathiri Christine, anesthesiologist (5Th Respondent herein), and human resource manager Mr. Mucheru Elisha(7th Respondent herein), all of the holding notebooks and pens. Dr. Ondari Joshua, orthopedic surgeon (6th Respondent herein) came in to the meeting about 20 minutes later. Mr. Mucheru Elisha was holding a file which he realized in the course of the meeting to be containing information about him since he (Mr. Mucheru) was reading the same while asking questions.xi.That, they introduced themselves and asked the Petitioner to do the same which he obliged, and was then asked if he knew why he was being called to the meeting, which he answered in the negative. Thereafter Dr. Oduor Peter (the 2nd Respondent herein) informed him, that they have received certain allegations about the petitioner’s conduct, being the reason of being summoned. This was done without any notice whatsoever. He Dr. Oduor Peter went ahead and read the Petitioner the accusations which were as follows;a.That during the petitioner Surgery on-call duty, he was reported to them that I had allowed strangers to operate on a patient while the petitioner was seated and unscrubbed. Specific details were not provided.b.That the petitioner went on leave and proceeded to do a different task to what he had given as reason for taking annual leave. Specific details were not providedc.That the petitioner operated on a patient in a private facility which is contrary to COSECSA rules and regulations as a trainee. Specific details were not provided.xii.That Dr. Odour asked the Petitioner to say something and the Petitioner asked for specific details of the allegations which were not provided. Further, he requested to be granted time to study the allegation and be given more time to reply, the same were denied and he was ordered to reply on the spot. Despite being ambushed and no exact details of allegations, the Petitioner nonetheless told them as follows.(a)That during one of his surgical on-call rights with Dr. Marjan(COSECSA resident MCS1) they performed two surgeries of subdural hematoma evacuation. Dr. Marjan did the 1st surgery while the petitioner did the 2nd one. At no point did the Petitioner allow strangers to operate and theatre and records can proof this.(b)That Secondly, the Petitioner applied for some days off for his annual leave to go for a family emergency which was approved by the hospital, the Petitioner told them that the annual leave having been approved, there was no requirement for him to report to the hospital all the activities he was doing while on leave and away from hospital.That thirdly, the petitioner is a qualified medical practitioner trained as a medical Doctor with a Bachelor of Medicine and a Bachelor of Surgery, duly licensed by the Kenya Medical Practitioners and Dentists Council (KMPDC)to treat illnesses and perform surgical procedures anywhere within the Kenyan boundaries. And that there is no guideline from COSECSA that has a contrary provision or a limitation whatsoever.xiii.That Dr. Oduor Peter (the 2nd Respondent herein) asked the Petitioner to tell him all the activities he was doing while in annual leave. The Petitioner told him of the bad financial problems of his parents. The Petitioner was then required to give the adhoc committee the personal information about him. The Petitioner found it unnecessary to tell them all his personal information.xiv.That nevertheless, the Petitioner told them that his father had been admitted to ICU the previous month and a "shylock" paid the bill and now the "shylock" were are coming to auction their items if they didn't pay. The family has been struggling to pay or find ways of repaying the "shylocks" the money they lent them. So the Petitioner went home and sold some items as part of ways of offsetting their liabilities to the creditors.xv.Thereafter, the Respondents said that they will communicate to the petitioner about their deliberations but advised to him continue working normally.xvi.That on 11th July 2023, without any notice whatsoever, the 2nd-7th Respondents, acting on behalf of the other Respondents Caused the Petitioner to be suspended by a letter dated 10/7/2023 but received on 11/7/2023. xvii.That on this day of 11th July 2023 at around 9am, Dr. Oduor Peter (the 2nd Respondent herein) In the presence of Dr. Wanjara Samuel (the 3rdRespondent herein) and Dr. Wachira Makanga (one of the general surgeons), handed over the above impugned suspension letter dated 10th July 2023 to the Petitioner and told him that he has been suspended for 3 months from the said date.xviii.That the Respondents further informed the Petitioner that, he will not be allowed to sit for his forthcoming COSECSA examination. They said that it was the committee final decision.xix.The Petitioner inquired whether he would appeal the said decision.? Dr. Oduor, the 2nd Respondent replied quote“to whom? No. There is no appeal as this is the final decision and you remain suspended till your suspension is over. Just get in touch with Dr. Wanjara for any guidance, guide line of clarification", end of quote.xx.That the Petitioner had no notice of any complaint and was ambushed.xxi.That the Petitioner was condemned unheard by the said "kangaroo committee court" with a predetermined outcome without following laid out procedures and is against Article 47 of the Constitution as read with section 9 of Fair Administrative Action Act 2015(FAAA).xxii.That the Respondents are capricious. irrational and unreasonable and infringed on right of privacy of the petitioner.xxiii.That the Respondents relied on malicious and anonymous complaint which had not notified to the Petitioner.xxiv.That Petitioner was denied a proper opportunity to properly defend himself.xxv.That the Petitioner was denied a right to education without due process of the law.xxvi.That the nature of the punishment meted-out is clearly arbitrary and is out of range with the alleged reasons.xxvii.That the Petitioner has been subjected to unfair, inhuman and degrading treatment and has been denied his inherent right to have dignity respected and protected.xxviii.That the petitioner has been illegally, irregularly against all rules of natural justice been suspended from his COSECSA surgery training programme, unprocedurally and unheard just 2 months from his final MCS examinations.xxix.That the Respondents herein are bound to apply the aforesaid values Principles that, the sovereign of the law of the land envisages a situation where everyone is equal before the law and not the Proverbial literary play of the Animal Farm', where some animals are more equal than others.xxx.That the petitioner was condemned unheard by the "ad hoc kangaroo committee court" without giving the petitioner sufficient notice and specific allegations with enough time to prepare and defend himself.xxxi.That actions of the Respondents are illegal, irregular and irrational to say the least and are and smirk of the abuse of public office. The respondents have abused their discretion and not following statutory requirements and procedures.xxxii.That Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: -a.That the respondents did not give the petitioner prior notice in the intended administrative action of suspending the petitioner contrary to article 47 of the Constitution.b.That the respondents đid not give the petitioner detailed allegations to enable prepare a defense, this is contrary to article 47 as read with section 9 of Fair Administrative Action Act (FAAA) NO.4 of 2015c.That the respondents in suspending the petitioner without following laid down procedures took away the right to education contrary to article 43(1), (f) of the Constitution.d.That by purporting to do a snap "kangaroo committee court where the committee is the accuser, prosecutor and judge all rolled up into one, the same is against rules of natural justice and against article 25, 47 and 50 of the Constitution on fair hearinge.That by virtue the respondents made the petitioner work as he trains and stops him from competing his course, which in effect will force him to work for another one year is servitude and against fair labour practices which is contrary to article 25, 30 & 41 of the Constitutionf.That Respondents stopping the completion and final examination and certification of the petitioner, the same has led to loss of livelihoods of the Petitioner contrary to article 43 of the Constitution on economic rightsg.That by Respondents exposing the Petitioner to tramped up charges and by ambush exposes the petitioner to degrading and inhuman treatment contrary to article 25 and 28 of the constitution.h.That by the Respondents stopping education of the petitioner unfairly, which is essentially stopping the enjoyment petitioner's rights contrary to article 20 and 43(1) (f) of the Constitution.

The Respondents Case 17. The Application is opposed by the1st, 2nd, 5th, 8th and 9th Respondents arguing that the petition is premature for not exhausting all other available remedies, that the Petition is fatally incompetent for seeking reliefs not provided for in law, that the 1st Respondent enjoys diplomatic immunity and that the petition seeks injunctive reliefs rather than conservatory Orders thereby rendering the entire motion incompetent.

18. The 3rd, 4th, 6th, 7th, 10th and 11th Respondents entered appearance and filed their response to the petition sworn by Dr. Sitima Oruko Michael dated 2nd October 2023 in opposition to the petition.Contending that the issues for determination in the instant petition are:a.Whether the petition meets the set threshold for a petitionb.Whether Judicial Review Orders should issuec.Whether there is a misjoinder of partiesd.Who should bear the costs of this suit.e.Whether the petition meets the set threshold for a petition.

19. It is the 3rd, 4th, 6th, 7th, 10th and 11th Respondents assertion that, the petition as drafted has not met the threshold for a petition. For this to be considered a petition, the Petitioner must raise their grounds on constitutional issues that the 3rd, 4th, 6th, 7th, 10th and 11th Respondents have in one way or another infringed the Constitution of Kenya.

20. That a constitutional petition should set out with a degree of precision, the Petitioner's complaint, the provisions infringed and the manner in which they are alleged to be infringed in the body of the Petition, the Petitioner has not shown how his rights have been infringed by the 3rd, 4th, 6th, 7th, 10th and 11th Respondents and submit that the Petitioner has failed in what is the most basic ground rudimentary of requirements as there are no constitutional issue raised as was stated in the case of mape building & general engineering v attorney general & 3 others 20161 eklr where the court cited the case of anarita karimi njeru versus the republic (1976-1980) klr 1272 where it was held thot:“It is now well settled that parties coming to court and alleging violation of Constitutional rights must with reasonable precision spell out the relevant Articles of the Constitution and further particularize with reasonable precision the alleged violations as well as how the violations were committed".

21. In the case of anarita karimi and mumo matemu v trusted society of human rights alliance and 5 others (2013) eklr it was held that:"any Petitioner who seeks redress under the constitution must state his claim with precision by reference to the provisions of the constitution allegedly violated and explain how the provisions were violated".

22. The case of grays jepkemoi kiplagat v zakayo chepkoga cheruiyot [2021] eklr further emphasized on the threshold for a petition where it was held that:“it is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complaints".x

23. That it is trite law that the requirements prescribed by the law be adhered in petitions and this petition is not exempted. We urge the court to dismiss the same. The Petition is made up of generalities and devoid of essential particulars of the breaches complained of. It discloses no justiciable constitutional question (s) requiring the Honorable Court's intervention.

24. As to whether judicial review orders should issue? It is settled that in arriving at its decision the Honorable Court must satisfy itself that the Petitioner has demonstrated that the 3rd, 4th, 6th, 7th, 10th and 11th Respondents' action was marred with illegality, irrationality and procedural impropriety as restated in the case of Ernest B.M. Oranga v Kakamega County Commissioner of Cooperatives & 6 others [2016] eKLR where the court cited with approval the case of Council of Civil Servants Union vs Minister for the Civil Service [1985] 2 AC which stated as follows:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety, Illegality is when the decision making authority commits an error of law in the process of faking or making the act the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality [...].”

25. In specific reference to the prerogative writ of mandamus the pronouncement of the appellate court in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR lends itself useful where it was held inter alia as follows:an order of mandamus will compel the performance of a public duty of which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect The duty to be performed [...]".

26. Therefore, for the Petitioner to succeed in seeking the order of mandamus The Court must be satisfied that the 3rd, 4th, 6th, 7th, 10th and 11th Respondents were expected to be involved in the disciplinary process and they failed to perform their duty.

27. As already indicated, the 10th Respondent offered its facilities for use by the students undertaking the surgery training programme that was being offered by the 1st Respondent.

28. The 10th and 11th Respondents have their own disciplinary procedure for handling disciplinary cases amongst their employees as well laid down in the Human Resource Policies and Procedure Manual for the Public Service (2016), the Employment Act and the Discipline Manual (Revised 2022). The Petitioner is not an employee of the 10th and 11th Respondents and therefore not subject to their disciplinary process.

29. Further in specific reference to the prerogative writs of Certiorari and Prohibition, the pronouncement of the appellate court in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others[1997]eKLR lends itself useful as was held inter alia as follows: -“[...] Only an order of certiorari can quash a decision already made and an order of certiorari will issue if fhe decision is made without or in excess of jurisdiction, or where The rules of natural justice are not complied with or for such like reasons. [..J".And that: -"That is why it is said prohibition looks to the future so that if a tribunal were to announce in advance that if would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice an order of prohibition would not be efficacious against the decision so made"

30. Reliance has been placed on the case of Republic v National Employment Authority & 3 others Ex parte Middle East Consultancy Services Limited [2018] eKLR the court called attention to various instances where the courts may be reluctant to grant the prerogative writs of mandamus, prohibition and certiorari and held that:“The discretionary nature of the Judicial Review remedies sought in this application means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples or where discretion will be exercised against an applicant may include Where the applicant's own conduct has been unmeritorious of Unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review, where the applicant has nor acted in good faith. or where a remedy would impede the authority's ability to deliver fair administration, orw where the judge considers that an alternative remedy could have been pursued. [..] The grant of the orders of Certiorari, Mandamus and Prohibition is discretionary. The Court is entitled to take into account the nature of the process against which Judicial Review is sought and satisfy itself that there is reasonable basis to justify the orders sought. In this regard, it is important to mention that a serious issue arises, namely, whether or not the ex parte applicant is using Court processes to avoid the statutory laid down process. Applying the above tests to the facts and circumstances of this case, I find and hold that the applicant has not satisfied the above conditions. It follows that there is no basis at all for the Court to grant the Judicial Review orders of Certiorari and Mandamus.

31. It is the 3rd, 4th, 6th, 7th, 10th and 11th Respondents submission that, it is quite clear that the Petitioner has not acted in good faith and is using the court process to propagate his own interest. He should not be allowed to have his day. That, the 3rd, 4th, 6th, 7th, 10th and 11th Respondents have not acted in contravention of the rules of natural justice and the judicial review orders are unnecessary.

32. As whether there is a misjoinder of parties, it is the 3rd, 4th, 6th, 7th, 10th and 11th Respondents submission that, they ought to not have been included in this suit. It is the contention of the foregoing Respondents that they were not involved in the admission process of the Petitioner into the surgery training programme and neither are they versed with the mandate to oversee and administer the examinations that the Petitioner is expected to sit. There is also no specific prayer or remedy that the Petitioner seeks against the 3rd, 4th, 6th, 7th, 10th and 11th Respondents.

33. It is the 3rd, 4th, 6th, 7th, 10th and 11th Respondentssubmission that, the court is clothed with jurisdiction to strike out the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.

34. That, in determining the question of who is a necessary party in a suit It was established by the court in the case of Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) [2022] eKLR while making reference to the case of Kingori vs. Chege & 3 Others [2002] 2 KLR 243 the Honorable Court noted the principles required for a party to be considered necessary in a suit as follows:1. He must be a necessary party.2. He must be a proper party.3. In the case of the defendant there must be a relief flowing from that defendant to the plaintiff.4. The ultimate order or decree cannot be enforced without his presence in the matter.5. His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.

35. That, the question that begs is whether the 3rd, 4th, 6th, 7th, 10th, 11th and 12th Respondents meet the foregoing principles and they answer in the negative. They are not necessary parties, there is no relief flowing from them to the Petitioner and the decree can be enforced without their presence in the suit.

36. That the Petitioner Is a student who is bound by the rules, process and procedures of the institution that enrolled him in this Case the 1st Respondent. In the event that he is aggrieved by the decisions of the 1st Respondent, he was to approach the 1st Respondent and not the 3rd, 4th, 6th, 7th, 10th, 11th and 12th Respondents.

37. That the 3rd, 4th and 6th Respondents are doctors employed by the 11th Respondent and working for the 10th Respondent. By virtue of their employment, they supervised the Petitioner at some point during the surgery training programme. That the 3rd, 4th and 6th Respondents may at best be witnesses for the 1st Respondent.

38. That, there is no mention of any role that was played by the 10th, 11th and 12th Respondents to have their presence in this suit. As indicated in the pleadings of the 3rd, 4th, 6th, 7th, 10th, 11th and 12th Respondents, That, the 11th Respondent entered into a Memorandum of Understanding with the 1st Respondent to offer its facility for the purposes of the surgery training programme.

39. Reliance was placed on the case of Boniface Omondi Vs. Mathare Youth Sports-Association & another [2021] eKLR that;This application is on joinder or rather the alleged misjoinder of a party. In the case of Werrot and Company Ltd & Others V Andrew Douglas Gregory & Others (supra) it was held that "For determining the question of who is a necessary party there are two tests: (1) there must be a right to some relief against such a party in respect of the matter involved in the proceeding in question and (ii) it should not be possible to pass an effective decree in the absence of such a party."Other than the mention in the descriptive part of the claim, there is no mention of the 2nd Respondent. In a suit, the parties who are necessary for the adjudication of the dispute are what is deemed a necessary party. The pleadings do not reveal a right to some relief against the 2nd Respondent and it is possible to pass an effective decree in the absence of the 2nd Respondent. As no specific allegation is made in the memorandum of claim against the 2nd Respondent his name ought to be struck out as he is not a necessary party to the suit and from material before the court may at best be a witness for the Respondent - Mathare Youth Sports Association.

40. The 3rd, 4th, 6th, 7th, 10th, 11th and 12th Respondents Pray that, this Court finds that, they are not necessary parties in this suit and dismiss the case against them urging that, the Court has at its discretion the power to decide on the awarding of costs as per Section 27(1) of the Civil Procedure Act 2010, praying that the court awards the costs in favor of the 3rd, 4th, 6th, 7th, 10th, 11th and 12th Respondents.

Determination 41. From the pleadings, dispositions and submissions, I have framed the following issues for my determination:1. Whether the Court has jurisdiction to entertain the petition?2. Whether the purported suspension of the petitioner from COSECSA surgery training programme which was communicated vide a document and/or a letter dated 10th July 2023 with reference no. HRAC/PGH/NKUJDISP/VOL.1 /2023 was lawful and constitutional?3. Whether an order of judicial review by way of certiorari, quashing the respondent's letter dated 10th July 2023 with reference no. HRAC/PGH/NKỰ/DISP/VOL. 1/2023 purporting to suspend the petitioner from continuing with his studies or examinations till certification and graduation should issue?4. Whether an order of judicial review by way by way of prohibition, prohibiting the respondents jointly and severally, from enforcing a suspension and any further disciplinary proceedings or any way barring the petitioner from completing his training. clinical work MCS Surgery and/or FCs, or in any way from continuing with his research and academic work and eventual graduation should issue?5. Whether an order of judicial review by way of an order of mandamus compelling the Respondents to train and examine the petitioner and allow him to continue and complete his academic studies at College of Surgeons of East, Central and Southern Africa (COSECSA) for the petitioner’s, MCS Surgery and/or FCS and if successful forward his name for graduation should issue?

42. Article 2 of the Constitution which provides that:(1)This Constitution is the Supreme law of the Republic and binds all persons and all state organs at both levels of government.(2)No person may claim or exercise state authority except as authorised under this Constitution.

43. 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.

44. The issue of prematurity of or mootness of petition was dealt with in the case of Wanjiru Gikonyo and Others v National Assembly of Kenya and 4 Others Petition No. 453 of 2015 [2016] eKLR Onguto J held as follows:27. Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension, hence the principle of ripeness. An issue before the court must be ripe, through a factual matrix, for determination.28. Conversely, the court is also prevented from determining an issue when it is too late. When an issue no longer presents an existing or live controversy, then it is said to be moot and not worthy of taking the much-sought judicial time.35. It is however to be noted that the court retains the discretion to determine whether on the circumstances of any matter before it still ought to be determined.

45. With regard to the Respondents assertion that the Petitioner is yet to exhaust the dispute resolution existing within the Kenya medical practitioners and dentist Act and Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979. This has scrutinized the Act and rules.

46. Rule 20 never envisioned a situation such as the Petitioner’s and that the penalties prescribed and that the disciplinary council does not have jurisdiction to determine “suitability to practice” as is alleged by the 10th and 11th Respondents.

47. Rule 20 of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979 provides for Disciplinary proceedings to include;1. Any person who is dissatisfied with any professional service offered, or alleges a breach of standards by a registered or licensed person under this Act, may lodge a complaint in the prescribed manner to the Council.2. The Council may, or through a committee appointed for that purpose, inquire into any complaint of professional misconduct, malpractice or any breach of standards.3. Upon an inquiry held by the Council to determine the complaint made under subsection (2), the person whose conduct is being inquired into shall be afforded an opportunity of being heard, either in person or through a representative.4. For purposes of proceedings at any inquiry held under this section, the Council may administer oaths, enforce the attendance of witnesses and production of books and documents.5. The Council shall regulate its own procedure in disciplinary proceedings.6. Where after an inquiry, the Council determines that a person is guilty, the Council may—a.issue a caution or reprimand in writing;b.direct a medical practitioner or dentist to undergo remedial training for a period not exceeding twelve months;c.direct the medical practitioner or dentist be placed on probation for a period not exceeding six months;d.suspend, withdraw or cancel the practising licence of a medical practitioner or dentist for a period not exceeding twelve months;e.suspend, withdraw or cancel the licence of a health institution or a section of the health institution for a period not exceeding twelve months;f.permanently remove the name of a medical practitioner or dentist from the registers under section 5(3); org.in addition to the penalties stipulated in paragraphs (a), (b), (c), (d), (e) or (f), impose a fine which the Council deems appropriate in the circumstance.7. A person or health institution whose licence has been withdrawn or cancelled under subsection (6), shall forthwith surrender the license to the Council.8. A person or health institution whose name has been removed from the register under subsection (6)(f) shall forthwith surrender the registration certificate to the Council.9. A person aggrieved by a decision of the Council made under subsection (6) may, within thirty days from the date of the decision of the Council, appeal to the High Court.10. Notwithstanding the provisions of section 3A (5), the Council shall not remove the name of a person from the register under subsect

48. In Re the Matter of the Interim Independent Electoral Commission Advisory Opinion No.2 of 2011The Supreme Court reasserted role of the court to intervene where a state organ steps outside the law by holding that:“The effect of the constitution's detailed provision for the rule of law in the process of governance, is that the legality of executive or administrative actions is to be determined by the courts, which are independent of the executive branch. The essence of separation of powers, in this context, is that in the totality of governance-powers is shared out among different organs of government, and that these organs play mutually-countervailing roles. In this set-up, it is to be recognized that none of the several government organs functions in splendid isolation.”

49. This Court finds that, the Petition presents a real and live issue in the Suspension of the Petitioner of 90 days from the 11th June 2023 without any assurance of his continuing his training even after serving the suspension and that his resumption is predicated on a recommendation of the Kenya Medical Practitioner Disciplinary Council and a fresh mentor recommendation the entire disciplinary process has been called into question and this court thus finds its jurisdiction.

50. The 10th and 11th Respondent not only created the special human resource advisory committee at the instigation of the of the 1st & 2nd Respondents but distanced itself from the decision resultant to this committee arguing that the 1st Respondent had its own 9undisclosed) disciplinary procedures.

51. The Decision of the special human resource advisory committee is absolutely without any justification.

52. In the Constitutional quest to entrench the culture of justification, this court is entrusted with inter alia, the jurisdiction under Article 165(d)(ii) to determine the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in accordance with the Constitution.

53. A failure to justify an administrative action by a public body implies that that administrative action is “unreasonable”.

54. In the case of Selvarajan vs. Race Relations Board [1976] 1 ALL ER 12 in which Lord Denning held that:“…it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on the persons affected by it. The fundamental rule is that, if a person may be subjected to pains and penalties, or be exposed to prosecution or proceedings or be deprived of remedies or redress, or in some way adversely affected by the investigation and report, then he should be told the case against him and be afforded a fair opportunity of answering it. The investigating body is however the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only.”

55. The 1st Respondent is bound by the constitutional values and principles and is properly enjoined by virtue of the MOU with the 10th and 11th Respondents to undertake trainings in the 10th Respondents facilities.

56. This Court recalls case of Mercy Muhandia v Razor Tara [2018] eKLR while quoting Wasilwa J in Lucy Muingo Kusewa & Another –Versus- Embasy of Sweden, Nairobi (2017) eKLR, where it was held that;“the doctrine of absolute immunity is no longer viable and further considered the cited cases on whether the diplomatic immunity affords the party invoking it absolute or restricted immunity. The Court has revisited the Constitution and the submission as made for the claimant on work without benefits or pay. The Court has particularly considered Article 25 of the Constitution which provides that despite any other provision in the Constitution, the following rights and fundamental freedoms shall not be limited, thus, freedom from torture and cruel, inhuman or degrading treatment or punishment; freedom from slavery or servitude; the right to a fair trial; and the right to an order of habeas corpus. The Court considers that the listed rights as they obtain in employment situations based on individual cases would automatically render unnecessary the discussion of whether the diplomatic immunity under the Privileges and Immunities Act (Cap. 179 of the Laws of Kenya) as read with the Vienna Convention on Diplomatic Relations, 1961 absolutely or restrictively limited the right of an employee to work and thereafter any of such unqualified or unlimited rights or rights that cannot be derogated from are shown or established to have been violated. Such is an issue as raised for the claimant that needs to be investigated at the full hearing in cases such as the present case and therefore, the preliminary objection would fail”.

57. The Constitution of the special human resource advisory committee by the 10th Respondent as is evidenced by the 4th Respondents response dated 2nd October 2023, and subjecting of the Petitioner to a disciplinary procedure away from the existing human resource policies and procedures within the 10th Respondent arguing that, he was not an employee of the 10th and 11th Respondent and the 1st Respondent had its own disciplinary procedures and for the 1st Respondent to distance itself from the resultant impugned decision suspending the Petitioner, claiming it was a decision of the said special human resource advisory committee is indicative of the mismanagement of the entire process.

58. This Court exceptionally considered that the Petitioners training was time-bound and that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the Petition to proceed before it. To expect the Petitioner to utilize the Fair Administrative Action Act would have been an effort in futility having been assured by the 2nd Respondent of there being no room to Appeal the 2nd Respondent was categorical when asked by the Petitioner if there was an appellate mechanism his response was, “ to whom? No. There is no appeal as this is the final decision and you remain suspended till your suspension is over. Just get in touch with Dr. Wanjara for any guidance, guide line of clarification".

59. That the Respondents did not give the petitioner prior notice in the intended administrative action of suspending the petitioner contrary to article 47 of the Constitution.

60. That the Respondents did not afford the Petitioner detailed allegations to enable him prepare a defense, this I find to be in contravention of article 47 as read with section 9 of Fair Administrative Action Act (FAAA) no 4 of 2015.

61. That the act by the Respondents, of suspending the Petitioner based on unknown disciplinary procedures, depriving him the right to appeal, escalating the same to the Kenya Medical Practitioner Disciplinary Council purporting that even after serving his three month suspension, the Petitioner shall only resume upon the recommendation of the Kenya Medical Practitioner Disciplinary Council and a fresh mentor recommendation infringed on the Petitioner’s right to education contrary to article 43(1), (f) of the Constitution.

62. This Court finds that, the constitution of and there being of, a special human resource advisory committee was ultra vires and without any color of the law.

63. The Court would have expected the 1st, 10th and 11th Respondents to locate the creation of a special human resource advisory committee, operations and decision making of, procedures of discipline by, all in a law, rule(s) administrative rules, guidelines, protocols and policy and this was clearly lacking.

64. The failure by 1st, Respondent to locate its actions in the law, but rather to point a finger at the 10th and 11th Respondents insisting the hers is only to; take train and retain only the best both intellectually and morally. And that the 10th and 11th Respondent were responsible for disciplinary procedure for handling disciplinary cases amongst their employees as well laid down in the Human Resource Policies and Procedure Manual for the Public Service (2016), the Employment Act and the Discipline Manual (Revised 2022)and that, the Petitioner not being an employee of the 10th and 11th Respondents was therefore not subject to their disciplinary process, is a fallacious and self-defeatist argument by the Respondents it cannot pass and should not be allowed.

65. I am unpersuaded that, by virtue the Respondents compelling the petitioner to work as he trains, and stops him from competing his course, in effect constituted servitude and was against fair labor practices contrary to article 25, 30 & 41 of the Constitution no discernable evidence was laid in this regard and the petition fails on this ground.

66. The creation or constitution of, and there being of, a special human resource advisory committee, applicable to the 1st Respondents and its trainees including the Petitioner operating without any known rules and with disciplinary procedures and punishment(s) that neither exist and remain unknown while operating in a public institution bound by the Constitution is an explanation that cannot pass.

67. Article 232(1) provides for the values and principles of public service, applicable to all State organs in both levels of government, and all State corporations, which include--(a)high standards of professional ethics;(b)efficient, effective and economic use of resources; responsive, prompt, effective, impartial and equitable(c)provision of services;(d)involvement of the people in the process of policy making;(e)accountability for administrative acts;(f)transparency and provision to the public of timely, accurate information;(g)subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;(h)representation of Kenya’s diverse communities; and (i) affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of--(i)men and women;(ii)the members of all ethnic groups; and(iii)persons with disabilities.

68. Public institutions such as the Nakuru County Referral and Teaching Hospital should lead by the front in promoting, respecting, upholding and defending the Constitution and that this is non-negotiable to the Kenyans accessing services but also the petitioner undertaking training at the facility.

69. I am unpersuaded that the action by Respondents, suspending, stopping the petitioner from completion and undertaking of his final examination and certification in an ultra-vires forum, against no known procedure, constitute a contravention of the Petitioner’s rights as is enshrined in article 43 (1) (f) of the Constitution.

70. I am unpersuaded that the alleged act by Respondents, exposing the Petitioner to tramped-up charges and by way of an ambush, constituted torture, cruel degrading and or inhuman treatment contrary to article 25 and 28 of the constitution the same fails.

71. This Court finds that, the special human resource advisory committee as constituted by the 1st, 10th and 11th Respondentswith opaque terms of reference, procedures and sanctions was ultra-vires the law and the constitution.

72. This Court finds that, the special human resource advisory committee recommendation for suspension of the Petitioner plus, decision that, the Petitioner shall not sit for his end year examination, a condition precedent, that the Kenya Medical Practitioners and Dentist Council assesses the Petitioners fitness to practice and that the Petitioner should show readiness to resume the program by obtaining a mentor’s recommendation was not located in any known disciplinary procedure and was ultra-vires the law and the constitution.

73. This Court is convinced that, the Petitioner has made out a case against the Respondents for the judicial review orders of certiorari and mandamus mainly on the ground of illegality as expounded by Lord Diplock in Council of Civil Service Unions versus Minister for the Civil Service [1985] AC 374,410 where he stated as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. (Emphasis added).

74. For the reasons I have stated above and in the issues for determination framed, I find in favor of the Petition as follows;i.The 3rd, 4th, 6th, 7th, 10th and 11th Respondents are public officers and/or public institutions, bound by the constitution and with the obligation to promote, respect, uphold and protect the constitution of Kenya and cannot be heard to be pushing the buck or pointing elsewhere and are thus well enjoined herein;ii.The1st, 2nd, 5th, 8th and 9th Respondents are by virtue of the Bilateral arrangement with the 10th and 11th Respondents are bound by the constitutional principals and values and are not diplomatically immune, hence properly enjoined.iii.The constitution of, and there being of, a special human resource advisory committee applicable to the 1st Respondents and its trainees, including the Petitioner, operating without any known rules and with disciplinary procedures and punishment(s) that neither exist and remain unknown while operating in a public institution bound by the Constitution is an explanation that cannot pass.iv.The impugned suspension of the petitioner from COSECSA surgery training programme, which was communicated vide a document and/or a letter dated 10th July 2023, with reference No. HRAC/PGH/NKUJDISP/VOL.1/2023, was unlawful and unconstitutional;v.An Order of judicial review, by way of certiorari, quashing the respondents letter dated 10th july 2023, with reference no. hrac/pgh/nkự/disp/vol.1/2023, purporting to suspend the petitioner from continuing with his studies or examinations, till certification and graduation, is hereby issued.vi.An Order of judicial review, by way of mandamus compelling the respondents to, forthwith continue- to train and examine, the petitioner, and allow him to continue and complete his academic studies at College of Surgeons of East, Central and Southern Africa (COSECSA), that is, MCS Surgery and/or FCS and if successful forward his name for graduation.vii.Should there be need to subject the Petitioner to a fresh disciplinary procedure, then the Respondents must ensure that the Constitutional guarantees of fair hearing are engrained therein.viii.The Orders are applicable and binding to all the Respondents jointly or severally.ix.The parties shall bear their own costs.

It is so ordered.

SIGNED, DELIVERED VIRTUALLY ON TEAMS PLATFORMON THIS 9THNOVEMBER 2023Mohochi S.MJUDGE