[2017] KEHC 3116 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION-MILIMANI LAW COURTS

MISCELLANEOUS CIVIL APPLICATION NO. 554 OF 2016

IN THE MATTER OF: AN APPLICATION BY JAMES RICHARD OPOLO FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF VIOLATION OF & ABUSE OF POWERS CONFERRED BY SECTIONS 42(3) & 23(7) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT, 2007

IN THE MATTER OF AND/OR THE VIOLATION OF ARTICLES 10, 22, 23, 47 and 50, OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF AND/OR BREACH OF SECTIONS 7(1), (2), 8, 9, 10, 11 AND 12 OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 5 OF 2015

AND

IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORMS ACT, CHAPTER 26, LAW OF KENYA

AND

IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010

BETWEEN

REPUBLIC……………….………................................………..….……...……………APPLICANT

VERSUS

DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH......................................RESPONDENT

EX-PARTE: JAMES RICHARD OPOLO

JUDGEMENT

Introduction

1. In his Motion brought on Notice dated 22nd November, 2016 the ex parte applicant herein, James Richard Opolo, seeks the following orders:

1. That the Honourable Court be pleased to issue an order of certiorari to remove and bring to this Honourable Courtthe letter dated19th October, 2016issued bythe Respondent revoking the Certificate of Authorization granted to the Petitioner,Mr. James Richard Opolo as Safety and Health Advisor OSH/DAV.042 for the period commencing 1st July, 2016 to 30th June, 2017for the purposes of quashing the same forthwith.

2. That the Honourable Court be pleased to issue an order of certiorari to remove and bring to this Honourable Courtthe letter dated24th October, 2016issued bythe Respondent revoking the Certificate of Authorization granted to the Petitioner,Mr. James Richard Opolo as Fire Safety Auditor OHS/FSA.018 for the period commencing 1st July, 2016 to 30th June, 2017for the purposes of quashing the same forthwith.

3. That the Honourable Court be pleased to issue an Order of Prohibition or injunction permanently restraining the Respondentfrom interfering with the Petitioner’s lawful operations of his profession of Safety and Health Advisor and Fire Safety Auditor granted to himpursuant toCertificates of Authorization dated 21st July, 2016 issued to him by the Respondent.

4. That the Honourable Court be pleased togrant an order of compensation for financialloss and damage in the amounts that shall be established and assessed to havebeen suffered by the Petitioner or hislawful agents as a direct and indirectconsequence of the Respondent’sactions.

5. Such further or other reliefs as this honorable court may deem just and expedient to grant in the circumstances.

6. That Cost of and incidental to the application be provided for.

Ex Parte Applicant’s Case

2. According to the ex parte applicant, he was issued with a certificate of authorization as a Fire Safety Auditor and Safety and Health Advisor by the Respondent on 21st July, 2016 for a period of one (1) year commencing from 1st July, 2016 to 30th June 2017.

3. By a letter dated 20th November, 2014, he received a copy of the said letter from Investment & Mortgages Bank, (hereinafter referred to as I & M Bank) addressed to the Director of Occupational Safety and Health appointing him as the Safety Health Advisor and Fire Auditor under his company name trading as Modern Interface to carry out statutory Safety Health and Fire Audit and Risk Assessment for I&M Bank, Kitale Branch pursuant to the Improvement Notice that had been issued by Paul K. Bett, an officer in the office of the Respondent in charge of Trans Nzoia, West Pokot and Turkana Counties. Upon receipt of the said Improvement Notices he proceeded and conducted the Audit and Risk Assessment at I&M Bank, Kitale Branch and has continued to conduct Safety Health and Risk Assessment and Fire Audits for I&M Bank for its main office in Nairobi and other branches country wide.

4. The applicant disclosed that in the year 2015-2016 he was once again engaged by I & M Bank to undertake Safety and Health, Risk Assessment and Fire Safety Audits for its Kitale Branch. In accordance with the mandate issued by the I&M Bank to execute his work as Safety and Health Advisor and Fire And Safety Auditor, the applicant proceeded and audited the Bank’s Kitale Branch and filed his audit reports aforestated including the data collection checklist. The said reports were also submitted to the Respondent in terms of rule 13 (2) of the Factories and Other Places of Work (Safety and Health Committees) Rules, 2004 (L.N.3/2004). However vide letter dated 10th October, 2016 signed by Mr. Andrew Muruka the applicant was informed that there were deficiencies in material particulars noted in his audit reports. The said letter however did not specify the contents which were considered inaccurate and deficient in material particulars. The said letter further required the applicant to show cause within seven (7) days why appropriate legal actions could not be taken against him and required him to appear before a committee that allegedly delves into matters of work place audits on the 13th day of October 2016 at 10. 00 a.m. before the lapse of 7 days granted to him to respond, which 7 days was to end on 17th day of October, 2016.

5. The applicant averred that on 13th day of October 2016 he presented himself before the said committee whose membership comprised the following persons;

a. Mr. Andrew Muruka Chairman

b. Mr. Nyakego

c. Mr. Nyongesa

d. Mr. Njuguna

e. Mr. Kirui

f. Mr. Gitonga

6. According to the applicant the said six (6) Committee Members subjected him to a barrage of questions flying from all over. The said committee members asked him questions specifically in relation to the audits he did for I&M Bank Kitale contrary to what was stated in the letter dated 10th October 2016 that required him to respond to other deficiencies noted in other audit reports.

7. The applicant averred that before the committee concluded interrogating him, they asked him to get out of the Board Room briefly to allow them have internal consultation. After fifteen (15) minutes, he was called back into the Board Room wherein the Committee Chairman Mr. Muruka confirmed to him that he had given satisfactory explanation and there was no need for further response from him as was stated in the letter dated 10th October, 2016. The Chairman of the Committee further stated that he should wait for the Director’s response in a week’s time.

8. The applicant contended that he has never violated any law, rules and regulations or code of practice on occupation, safety and health audits.

9. However by letters dated 19th October, 2016 the Respondent revoked the applicant’s certificate of authorization for Safety and Health Advisors, for the year 2016-2017 and by a letter dated 24th October 2016, the respondent proceeded and revoked the applicant’s certificate of authorization as fire, safety auditing OSH/FSH.018.

10. The applicant disclosed that after the revocation of his certificates of authorizations he later learnt that the Department of Occupational Safety and Health had preferred criminal charges against his client, I&M Bank, Kitale Branch being Criminal Case No. 2442 of 2016 in the Resident Magistrate’s Court, Kitale on various grounds.

11. It was the applicant’s case that the revocation of his certificates of authorization was done maliciously in an attempt to discredit his Audits thus an abuse of office by the Respondent. To him, the resultant effect of the revocation of his certificates affected him economically and socially in that all clients he had worked for stopped paying him and he could not work on the present audits which action affected him and his clients.

12. The applicant averred that the financial loss is enormous since he cannot even tender for work. Consequently, he was financially grounded in that the pending payments stopped by the revocation was estimated at Kshs. 7,000,000/.

13. It was the applicant’s case that there are only three committees established in the Act with various mandates in terms of sections 9, 27(1) and 30 (1). However, the committee he appeared before is not known to law hence its findings is a nullity both in law and fact. The applicant further contended that the Respondent does not have the power to revoke his certificate of authorization on the charge founded in terms of section 42(3) as such powers are to be executed by the Magistrate’s Court. Therefore the decision of the respondent is ultra vires that provided for under the Act.

14. The applicant therefore contended that the Respondent exceeded his mandate, and made prejudicial decisions of revoking his certificate of authorization without due process and in defiance of the provisions of the Occupational Safety and Health Act.

1st Respondents’ Case

15. In opposition to the application the respondent averred that it is responsible for administration of the Occupational Safety and Health Act, 2007 pursuant to section 23(1) of the same Act.

16. According to the Respondent the Ex-Parte Applicant was issued with a certificate of authorization to serve as a fire safety auditor by the Respondent on 21/7/2016. The said certificate of authorization had conditions on its face under which the Ex-Parte Applicant agreed to serve and adhere to by appending his signature on the certificate on 01/08/2016. It was further averred that the Ex-Parte Applicant was issued with a certificate of authorization to serve as a safety and health adviser by the Respondent on 21/7/2016 which certificate similarly had conditions on its face under which the Ex-Parte Applicant agreed to serve and adhere to by appending his signature on the certificate on 01/08/2016.

17. According to the Respondent the improvement notice referred to by the Ex-Parte Applicant was issued pursuant to section 36 of the Occupational Safety and Health Act, 2007 by an officer with powers conferred under section 32 of the same Act requiring remedy of deemed contraventions, where applicable, by authorized persons.

18. It was however averred that ‘Modern Intersafe’ was not, and has not been authorized under the provisions of the Occupational Safety and Health Act, 2007 to carry out Safety & Health Audits and Fire Safety Audits. Further, neither the certificates of authorization to serve as Fire Safety Auditor; OSH/FSA018 and Safety and Health Advisor; OSH/ADV042 nor the provisions of Legal No.31 of 2004 and the Occupational Safety and Health Act, 2007 gave authority to the Ex-Parte Applicant to trade using another name (‘Modern Intersafe’) different from the name of the holder of the certificate of authorization.

19. It was therefore the Respondent’s case that the audit mentioned in the Ex-Parte Applicant’s affidavit was not serving the purpose of the Occupational Safety and Health Act, 2007 and the improvement Notice DOSHS/P/INC/078/14 dated 5th November 2014 because it was conducted by a party, ‘Modern Intersafe’, which was not authorized to conduct such audits. It was the Respondent’s case that the Ex-Parte Applicant proceeded and conducted an audit at I & M Bank, Kitale Branch without first notifying the Respondent’s office within 14 days prior to the date of audit as required and as outlined on the face of certificate of authorization; a condition which the Ex-Parte Applicant had agreed by signing to adhere to. Similarly, the Ex-Parte Applicant had continued to conduct Safety and Health and Fire Safety Audits for I & M Bank for its main office in Nairobi and other branches countrywide in total disregard of conditions on the face of the certificates of authorization by failing to send prior notification to the Respondent about the audits and by using unauthorized name of ‘Modern Intersafe’.

20. It was averred that the Ex-Parte Applicant was mandated to conduct Fire Safety Audits and Safety & Health Audits under section 23(5) of the Occupational Safety and Health Act, 2007. However any other mandate allegedly issued by I&M Bank Ltd, Kitale Branch as expressed in the Ex-parte Applicant’s affidavit was not for the purpose of Occupational Safety and Health Act, 2007 because the said I&M Bank Ltd has no powers to issue mandates under the said Act.

21. It was the Respondent’s case that the reports of audit referred to in the Ex-Parte Applicant’s affidavit were submitted to the Respondent but not within the prescribed period of time required for submission of audit reports in the Occupational Safety and Health Act, 2007, Fire Risk Reduction Rules, Legal Notice No.59 of 2007, Safety & Health Committees Rules, Legal Notice No. 31 of 2004 and conditions on the face of certificates of authorization respectively.

22. It was averred that on 28/9/2016 at 3. 00 p.m. the Ex-Parte Applicant visited the office of the Respondent for the purpose of being furnished with details of anomalies in his reports of audit having been informed on telephone two days earlier that there were anomalies in his reports of audit. On 28/9/2016 at 3. 00 p.m. the Ex-Parte Applicant was furnished with printed copies of details of anomalies found in his reports of audit submitted to the Respondent’s office since the 1st July 2015 to 28/9/2016. On 28/9/2016 at 3. 00 p.m. the Ex-Parte Applicant read through the details of anomalies in the presence of with Mr. Justus Nyakego, an Occupational Safety and Health Officer and Mr. Andrew Muruka an Assistant Director at which instant the Ex-Parte Applicant admitted having made the anomalies.

23. According to the Respondent, on 6/10/2016 at 10. 00 a.m. a meeting was held at the Directorate of Occupational Safety and Health Services (DOSHS) headquarters to deliberate about anomalies by authorized persons, Ex-Parte Applicant inclusive, in reports of audit at which it was agreed that a letter be written to the Ex-Parte Applicant inviting him to appear before a panel and requiring him to respond to the letter in writing within seven (7) days from the date of the letter. Accordingly the letter dated 10/10/2016 signed by Mr. Andrew Muruka on behalf of the Respondent requiring the Ex-Parte Applicant to show cause why appropriate action could not be taken against him and requiring appearance before a panel as well as response in writing in seven (7) days was in the light of the Ex-Parte Applicant having been furnished with and being fully made aware of details of anomalies found in reports of audit made by him. On 13/10/2016, the Ex-Parte Applicant appeared before a panel to respond to allegations occasioned by noted anomalies in the audit reports.

24. It was the Respondent’s case that the panel conducted its business in an orderly manner as per the order of proceedings and did not subject the Ex-Parte Applicant to a ‘barrage of questions flying from all over’ as alleged and at the end of question-answer session of the proceedings, the Ex-Parte Applicant was given a break outside the boardroom to allow the panelists to deliberate on the way forward. Upon return from break, the chairman of the panel allowed the Ex-Parte Applicant to make remarks on the noted anomalies in his reports of audit which he did by saying that “errors are to human and that he be pardoned for noted errors”. It was however contended that towards the end of the proceedings, neither was the Ex-Parte Applicant hinted about way forward nor was he told not to respond to the letter signed by Mr. Andrew Muruka dated 10/10/2016 alleged. It was the Respondent’s position that before the meeting adjourned at 12. 56 p.m., the chairman of the panel asked the Ex-Parte Applicant to leave and await communication from the Respondent in 14 days from the date of the proceedings.

25. The Respondent contended that on the 14/10/2016, a memo was done by the Secretary of the panel before whom the Ex-Parte Applicant had appeared, to the Respondent advising him to revoke certificates of authorization as resolved during the proceedings. Thereafter, seven (7) days lapsed on 17/10/2016 without the Ex-Parte Applicant responding in writing as requested in the letter dated 10/10/2016 signed by Mr. Andrew Muruka. Accordingly on the 19/10/2016 and 24/10/2016, the Respondent, acting on the advise of the panel and pursuant to powers conferred under section 23(7) of the Occupational Safety and Health Act, 2007, revoked certificates of authorization for Safety and Health Auditing and Fire Safety Auditing respectively, in respect of the Ex-Parte Applicant. To the Respondent, it had power vested upon him under section 23(7) of the Occupational Safety and Health Act, 2007 to revoke the certificates of authorization of the Ex-Parte Applicant, Mr. James Richard Opolo, as Safety & Health Advisor and Fire Safety Auditor. The said revocation of certificates of authorization were occasioned by considering violations cited in the reports of audit in respect of various workplaces; I&M Bank Ltd – Kitale Branch being among them. In the Respondent’s view there was no malice in revoking certificates of authorization whatsoever and no abuse of office was apparent as the Respondent acted within powers conferred by law; section 23(7) of the Occupational Safety and Health Act, 2007.

26. It was further contended that with no prejudice and pursuant to section 23(7) of the Occupational Safety and Health Act, 2007, the Respondent had and still has powers to revoke certificates of authorization and does not, has not and will not exceed his mandate by doing so.

27. The Respondent contended that criminal case No.2442 of 2016, Republic versus I&M Bank Ltd – Kitale Branch, before Resident Magistrate Kitale Law Courts was instituted based on evidence gathered in support of charges raised against the accused and not on the basis of anomalies found in reports of audit audit done by the Ex-Parte Applicant. To the Respondent the Ex-Parte Applicant is deemed to have violated section 42 (3) of the Occupational Safety and Health Act, 2007 for making deficiencies in material particulars while auditing the various workplaces. In respect thereof, the Ex-Parte Applicant is deemed to have violated Rule 13(2) & 14 (1) of Legal Notice No.31 of 2004 for making safety and health audit reports that were devoid of and non-compliant to the provisions of the said rules in respect of enlisted workplaces in paragraph 36 above. Further, the Ex-Parte Applicant is deemed to have violated conditions of certificate of authorization, which he agreed to adhere to by appending his signature, by conducting safety and health audits using an unauthorized party/person namely ‘Modern Intersafe’, by submitting reports to the Respondent out of prescribed time and by not notifying the Respondent of impending audits.

28. It was further contended that the Ex-Parte Applicant is deemed to have violated the provisions of Rule 38(c) of the Fire Risk Reduction Rules Legal Notice No.59 of 2007 by submitting reports of fire audit later than prescribed time of 14 days in respect of various workplaces. Apart from that, the Ex-Parte Applicant is deemed to have violated the conditions on the face of his certificate of authorization OSH/FSA 018 by submitting of audit reports out of prescribed period of time to the Respondent and by delegating audit work to an unauthorized party/person with regards to audit reports made in respect of enlisted workplaces.

29. It was the Respondent’s case that it is not permitted by law for a holder of certificates of authorization to make deficiencies in material particulars of audit reports in the pretext of making either financial, economic and social gain or winning of tenders for audit work.

30. The Respondent’s case was that the Ex-Parte Applicant is not correctly informed regarding committees established under the Occupational Safety and Health Act, 2007. To it, section 9 of the said Act establishes existence of the Safety and Health Committees, and section 27(1) does NOT establish a committee but establishes a council namely the National Council for Occupational Safety and Health and lastly section 30(1) establishes a technical advisory committee constituted by the Respondent from time to time, thus bringing the total to two committees as opposed to three expressed in the Ex-Parte Applicant’s affidavit. In the Respondent’s view, the committee before whom the Ex-Parte Applicant appeared had lawfully been constituted by the Respondent pursuant to section 30(1) of the Occupational Safety and Health Act, 2007 and had powers to conduct proceedings pursuant to section 31(1) of the same Act and come up with findings in respect to the proceedings.

31. It was the Respondent’s position that section 42(3) of the Occupational Safety and Health Act, 2007 provides for penalty meted on advisors who make false audit reports or whose audit reports are deficient in material particulars or who fail to send copies of audit reports to the Director (Respondent) within prescribed time. The said section does not state if revocation of certificates of authorization is a penalty and therefore the revocation was not anchored upon the said section.

32. It was the Respondent’s case that the revocation of certificates of authorization was NOT in breach of the provisions of article 47 of the Constitution of Kenya because the Ex-Parte Applicant was expeditiously, efficiently, lawfully, reasonably and fairly treated by being made aware, by the Respondent, of anomalies in the audit reports done by him as Safety & Health Advisor and Fire Safety Auditor; being made aware, by the Respondent, of his malpractices in auditing as Safety & Health Advisor and Fire Safety Auditor; and being invited by the Respondent for the purposes of being heard. It was further averred that the revocation of certificates of authorization was NOT in breach of the provisions of article 50 of the Constitution of Kenya because the Ex-Parte Applicant was accorded a chance to be heard before a committee lawfully constituted under section 30 of the Occupational Safety and Health Act, 2007.

33. It was contended that the Ex-Parte Applicant was given proper and sufficient opportunity of being heard prior to the revocation of certificates of authorization. That adequate opportunity was given to the Ex-Parte Applicant by way of a letter dated 10/10/2016 by the Respondent to show cause why revocation of the applicant’s certificates of authorization should not be made, to which no response was made.

34. The Respondent insisted that the action of the Respondent was founded upon facts and negative impact as far as safety and health in workplaces are concerned, as can be determined from anomalies in reports of audit and averred that sections 23(5), 23(7), 30 and 31(1)(d) of the Occupational Safety and Health Act, 2007 sets legal prerequisite to the process of revoking the certificates of authorization. To it, the revocation was reasonable, non-oppressive and commensurate to anomalies noted in the Ex-Parte Applicant’s reports of audit and failure to respond to ‘show cause’ letter by the Respondent. The said revocation, it was averred was made for the purpose for which the powers spelt out in section 23(7) of the Occupational Safety and Health Act, 2007 have been given and no ideals of the Republic of Kenya were breached in the revocation of certificates of authorization and therefore the action was justified and within the rule of law. It was its view that the process of reaching the decision that the Ex-parte Applicant had failed to comply with the requirements of auditing was not entirely premised on section 42(3) of the Occupational Safety and Health Act, 2007 but also on the provisions of section 31(1)(d) of the same Act, the Factories and Other Places of Work (Safety and Health Committees) Rules, 2004, the Factories and Other Places of Work (Fire Risk Reduction) Rules, 2007 and conditions on the face of the Ex-parte Applicant’s certificates of authorization to which the Ex-parte Applicant was bound, having appended his signature to abide by.

35. The Respondent insisted that the decision to revoke Ex-parte Applicant’s certificates of authorization was not pegged to the interpretation of section 42(3) of the Occupational Safety and Health Act, 2007 but by considering identified anomalies made by the Ex-parte Applicant.

36. It was the Respondent’s case that within the precincts of section 42(3) of the Occupational Safety and Health Act 2007, the offence and penalty of an offender who is a holder of certificates of authorization to conduct Safety and Health Audits has been spelt out detailing the fine and jail term but does not spell out revocation of certificate of authorization as this is the mandate of Respondent in section 23(7) of the said Act.

Determinations

37. I have considered the application, the affidavits, the submissions and authorities cited herein.

38. The parameters of judicial review were set out by the Court of Appeal in Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996 as follows:

“Prohibition looks to the future so that if a tribunal were to announce in advance that it 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. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision...Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way...These principles mean that an order of mandamus compels the performance of a public duty 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. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done...Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”

39. In Municipal Council of Mombasa vs. Republic &Umoja Consultants Ltd Civil Appeal No. 185 of 2001 was held:

“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.”

40. In Republic vs. Kenya Revenue Authority Ex parteYaya Towers Limited [2008] eKLR it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power. See Halsbury’s Laws of England4th Edition Vol (1)(1) Para 60.

41. The broad grounds on which the Court exercises its judicial review jurisdiction were restated in the Uganda case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300. In that case the Court cited with approval Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 andAn Application by Bukoba Gymkhana Club [1963] EA 478 at479and held:

“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 taking 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. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...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...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

42. The first ground upon which the application is based is that on 13th October, 2016 when the applicant appeared before the six (6) Committee Members they subjected him to a barrage of questions in relation to the audits he did for I&M Bank Kitale contrary to what was stated in the letter dated 10th October 2016 that required him to respond to other deficiencies noted in other audit reports. At the conclusion of the meeting, he was asked to get out of the Board Room briefly to allow them to have internal consultation. After fifteen (15) minutes, he was called back into the Board Room wherein the Committee Chairman Mr. Muruka confirmed to him that he had given satisfactory explanation and there was no need for further response from him. The Chairman of the Committee further stated that he should wait for the Director’s response in a week’s time. However by letters dated 19th October, 2016 the Respondent revoked the applicant’s certificate of authorization for Safety and Health Advisors, for the year 2016-2017 and by a letter dated 24th October 2016, the respondent proceeded and revoked the applicant’s certificate of authorization for fire and safety auditing, OSH/FSH.018.

43. This contention was countered by the Respondent who averred that vide the letter dated 10/10/2016 signed by Mr. Andrew Muruka on behalf of the Respondent the Ex-Parte Applicant was required to show cause why appropriate action could not be taken against him and he was required to appear before a panel as well as respond in writing in seven (7) days to the details of anomalies found in reports of audit made by him. On 13/10/2016, the Ex-Parte Applicant appeared before a panel to respond to the said allegations which meeting was conducted in an orderly manner at the end of which the Ex-Parte Applicant was given a break outside the boardroom to allow the panelists to deliberate on the way forward. Upon return from break, the chairman of the panel allowed the Ex-Parte Applicant to make remarks on the noted anomalies in his reports of audit which he did by saying that “errors are to human and that he be pardoned for noted errors”. It was however contended that towards the end of the proceedings, neither was the Ex-Parte Applicant hinted about way forward nor was he told not to respond to the letter signed by Mr. Andrew Muruka dated 10/10/2016 as alleged. It was the Respondent’s position that before the meeting adjourned at 12. 56 p.m., the chairman of the panel asked the Ex-Parte Applicant to leave and await communication from the Respondent in 14 days from the date of the proceedings. Thereafter on the 14/10/2016, a memo was done by the Secretary of the panel before whom the Ex-Parte Applicant had appeared, to the Respondent advising him to revoke certificates of authorization as resolved during the proceedings. In the meantime, the seven (7) days lapsed on 17/10/2016 without the Ex-Parte Applicant responding in writing as requested in the letter dated 10/10/2016 signed by Mr. Andrew Muruka. Accordingly on the 19/10/2016 and 24/10/2016, the Respondent, acting on the advise of the panel and pursuant to powers conferred under section 23(7) of the Occupational Safety and Health Act, 2007, revoked certificates of authorization for Safety and Health Auditing and Fire Safety Auditing respectively, in respect of the Ex-Parte Applicant. To the Respondent, it had power vested upon him under section 23(7) of the Occupational Safety and Health Act, 2007 to revoke the certificates of authorization of the Ex-Parte Applicant, Mr. James Richard Opolo, as Safety & Health Advisor and Fire Safety Auditor. The said revocation of certificates of authorization were occasioned by considering violations cited in the reports of audit in respect of various workplaces; I&M Bank Ltd – Kitale Branch being among them.

44. It is clear that the Respondent’s decision was informed in part by the alleged failure by the applicant to respond in writing to the letter dated 10th October, 2016. However, by the Respondent’s own admission the said letter required the applicant to show cause why appropriate action could not be taken against him and to appear before a panel as well as respond in writing in seven (7) days to the details of anomalies found in reports of audit made by him.

45. In this case going by the Respondent’s own version, the applicant had until 17th October, 2016 to make his representations in writing. However on the 14/10/2016, a memo was done by the Secretary of the panel before whom the Ex-Parte Applicant had appeared, to the Respondent advising him to revoke certificates of authorization as resolved during the proceedings. In other words before the said period of seven days the Respondent’s said panel had already made up its mind to revoke the applicant’s certificates. In my view a process by which an administrative body makes findings and proceeds to make recommendations before affording persons affected thereby an opportunity of being heard cannot by any stretch of imagination be termed as fair in order to meet the provisions of Article 50 of the Constitution. For a hearing to be said to be fair not only should the case that the respondent is called upon to be meet be sufficiently brought home to him and adequate or reasonable notice to enable him deal with it afforded but the authority concerned ought to also approach the issue with an unbiased disposition. In other words the authority ought not to be seen to be seeking representations from the respondent simply for the purposes of meeting the legal criteria. The fair hearing must be meaningful for it to meet the constitutional threshold. On this aspect, Halsbury’s Laws of England, 5th Edn. Vol. 61 page 545 at para 640 states:

“The audi alteram partem rule requires that those who are likely to be directly affected by the outcome should be given prior notification of the action proposed to be taken, of the time and place of any hearing that is to be conducted, and of the charge or case they will be called upon to meet. Similar notice ought to be given of a change in the original date and time, or of an adjourned hearing…The particulars set out in the notice should be sufficiently explicit to enable the interested parties to understand the case they have to meet and to prepare their answer and their own cases. This duty is not always imposed rigorously on domestic tribunals which conduct their proceedings informally, and a want of detailed specification may exceptionally be held immaterial if the person claiming to be aggrieved was, in fact, aware of the nature of the case against him, or if the deficiency in the notice did not cause him any substantial prejudice…Notification of the proceedings or the proposed decision must also be given early enough to afford the person concerned a reasonable opportunity to prepare representations or put their own case. Otherwise the only proper course will be to postpone or adjourn the matter.”

46. In this case however the applicant was required to make both oral and written representations. The applicant having appeared in person and made oral representations, it is my view that it was irrational for the Respondent to make its decision allegedly based on the applicant’s failure to formally respond to the allegations. In my view the Respondent’s decision can only be termed as an afterthought.

47. Apart from the foregoing, it was contended that there are only three committees established in the Act with various mandates in terms of sections 9, 27(1) and 30 (1). However, the committee he appeared before is not known to law hence its findings is a nullity both in law and fact. The applicant further contended that the Respondent does not have the power to revoke his certificate of authorization on the charge founded in terms of section 42(3) as such powers are to be executed by the Magistrate’s Court. Therefore the decision of the respondent is ultra vires that provided for under the Act.

48. The Respondent’s on the other hand was that the decision to revoke Ex-parte Applicant’s certificates of authorization was not pegged to the interpretation of section 42(3) of the Occupational Safety and Health Act, 2007 but by considering identified anomalies made by the Ex-parte Applicant. It was the Respondent’s case that within the precincts of section 42(3) of the Occupational Safety and Health Act 2007, the offence and penalty of an offender who is a holder of certificates of authorization to conduct Safety and Health Audits has been spelt out detailing the fine and jail term but does not spell out revocation of certificate of authorization as this is the mandate of Respondent in section 23(7) of the said Act.

49. Section 23(5) and (7) of the said Act provides as hereunder:

(5) The Director may, after consultation with the technical advisory committee established under section 30, issue a certificate of approval to a competent person to carry out—

(a) examination and testing of plants and equipments;

(b) medical examination of employees;

(c) medical surveillance on the health of persons employed;

(d) safety and health audits of workplaces; or

(e) any other function necessary under Act.

(6) A certificate of approval issued under this section shall be renewed annually.

(7) The Director may at any time revoke a certificate of approval issued under subsection (5).

50. It is therefore clear that the Director may revoke a certificate issued pursuant to section 23(5) of the Act. It is therefore my view that section 42(3) of the Occupational Safety and Health Act, 2007is irrelevant in so far as the powers to revoke certificates of approval is concerned.

51. That the Respondent has powers and jurisdiction to revoke the applicant’s approved certificates cannot be challenged. The question to be determined is whether in arriving at its decision the due process of the law was adhered to. Article 47(1) and (2) of the Constitution provide:

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

52. In the instant case, based on my finding that the decision by the Respondent was both procedurally unfair and irrational the decision cannot stand. That being the case, it does not matter whether the same decision would have been arrived at had he been heard. As was held in Onyango Oloo vs. Attorney General [1986-1989] EA 456:

“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard...There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice...A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...Denial of the right to be heard renders any decision made null and void ab initio.”

53. Having considered the issues raised herein the decision I come to is that the 1st Respondent’s decision was both tainted with procedural impropriety and was irrational.

Order

54. Consequently the orders which commend themselves to me and which I hereby grant are as follows:

1) An order of certiorari removing into Honourable Court for purposes of the same being quashed and quashingthe letter dated19th October, 2016issued bythe Respondent revoking the Certificate of Authorization granted to the Petitioner,Mr James Richard Opolo as Safety and Health Advisor OSH/DAV.042 for the period commencing 1st July, 2016 to 30th June, 2017.

2) An order of certiorari removing into Honourable Court for purposes of the same being quashed and quashingthe letter dated24th October, 2016issued bythe Respondent revoking the Certificate of Authorization granted to the Petitioner,Mr James Richard Opolo as Fire Safety Auditor OHS/FSA.018.

3) An order of prohibition,prohibitingthe Respondentfrom interfering with the Petitioner’s lawful operations of his profession of Safety and Health Advisor and Fire Safety Auditor granted to himpursuant toCertificates of Authorization dated 21st July, 2016 issued to him by the Respondent, unless and until otherwise lawfully revoked.

4) Due to the scanty material placed before me I however decline to makean order of compensation for financialloss and damage as sought.

5) The costs of this application are awarded to the Applicant to be borne by the 2nd Respondent.

55. Orders accordingly

Dated at Nairobi this 6th day of October, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Odhiambo for the Respondent

CA Ooko