[2023] KEHC 25990 (KLR)

Republic v HIV & Aids Tribunal; Waithera (Interested Party); LVCT Health (Exparte) (Application E028 of 2022) [2023] KEHC 25990 (KLR) (Judicial Review) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 25990 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E028 of 2022

J Ngaah, J

December 1, 2023

Between

Republic

Applicant

and

HIV & Aids Tribunal

Respondent

and

Agnes Mukina Waithera

Interested Party

and

LVCT Health

Exparte

Judgment

1. Before court is the applicant’s motion dated 30 December 2022 expressed to be brought under Order 53 rule 3(1) and (3) of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The prayers in the motion have been expressed as follows:1. That this Honourable Court do(sic) grant an order of certiorari to remove to High Court for purposes of being quashed the decision made by the HIV and AIDS Tribunal in its unsigned judgment delivered on 17th December 2021 in HIV & AIDS Tribunal Cause No. 16 of 2020. 2.That an order of prohibition do (sic) issue prohibiting the respondent from conducting any further proceedings in HIV & AIDS Tribunal Cause No. 16 of 2020. 3.That the Honourable Court be pleased to grant further orders and directions as it may deem fit.”

2. The applicant has also asked for an order on costs.

3. The application is based on a statutory statement dated the 3 March 2022 and an affidavit sworn on even date by Ms. Millicent Bwire verifying the facts relied upon. Ms. Bwire has sworn that she is the legal and corporate affairs director of the applicant.

4. She has sworn also that on 27 May 2021, the applicant was served with a summons and a statement of claim dated 21 May 2021 lodged by the interested party before the respondent. The applicant entered appearance on 15 June 2021 and thereafter filed a response to the claim on 9 July 2021.

5. While the case before the respondent was pending, the applicant’s chief executive officer received a letter from an organisation called Kiaswa Initiative informing her that, Kiaswa Initiative had learnt that the case before the respondent “was marred with the deception, half-truths, misconception and malice”.

6. Based on this letter, the applicant sought for more time from the respondent to allow it to call additional witnesses and produce supplementary documents. However, the applicant’s application was dismissed by the chairperson of the respondent.

7. Thereafter the parties filed and exchanged written submissions after which this case was set for judgment on 10 December 2021. On this date, judgment was not delivered but was deferred to 17 December 2021. On this latter date, the respondent’s chairperson rendered its decision and made the following orders:(a)the judgment is hereby entered in favour of the claimant against the respondent in the sum of Kshs. 49,000/= as special damages.(b)the judgment is hereby entered in favour of the claimant against the respondent in the sum of Kshs. 800,000/= by way of general damages.(c)the above sum shall attract interest at court rates from the date of this judgment until payment in full.(d)the respondent and its employees are hereby restrained from further disclosing the claimant’s status, discriminatory, stigmatizing and/or harassing the claimant.(e)the respondent immediately embarks on training of its employees on confidentiality and provide evidence before this tribunal within 60 days from the date of this judgment.(a)(sic) costs are awarded to the claimant.”

8. Upon delivery of the judgment, counsel for the applicant applied for certified copies of proceedings and judgment for purposes of seeking instructions on appealing the decision of the respondent before the expiry of time for filing of appeals. He also applied for stay of execution of the judgment.

9. The honourable chairperson of the respondent allowed the application for stay of execution; she ordered that judgment be stayed for 45 days. She also ordered that copies of proceedings and judgment be supplied to the applicant upon payment of fees. On the same date, the applicant’s counsel wrote a letter to the executive officer of the respondent requesting for a copy of the judgment. The respondent immediately wrote back and informed the applicant’s counsel that the judgment had not been signed by the honourable members of the respondent and that a signed copy would be supplied as soon as the members had signed it.

10. By 11 January 2022, the applicant’s counsel had not received the signed copy of the judgment and so he wrote a letter to the respondent seeking confirmation on whether the judgment had been signed to facilitate the applicant filing an appeal. The respondent wrote back undertaking to deliver the signed copy before the close of business on the material day.

11. But on 13 January 2022, the respondent’s registry availed the unsigned copy of the judgment and undertook to avail a duly signed copy once it was available. Even then, on 14 January 2022 the applicant’s counsel received still unsigned copy of the judgment. As at the time of filing the instant application, the applicant’s counsel had neither been supplied with the signed copy of the judgment nor a certified copy of the proceedings.

12. It is the applicant’s case that the unsigned judgment is a nullity and incapable of being executed.

13. The applicant also alleges that it was denied the opportunity to be heard when the application for time to bring further evidence was declined.

14. Ms. Annerita Murungi swore a replying affidavit on behalf of the respondent opposing the application. In the affidavit, Ms. Murungi has sworn that she is the administrator of the respondent.

15. She admits that indeed the interested party instituted a claim against the applicant before the respondent on 30 April 2020. In this claim, the interested party sought payment of damages in respect of what she has described as “impairment of dignity, pain and suffering and or emotional and psychological suffering as a result of wrongful disclosure made to her by the applicant’s employees”.

16. The applicant denied the claim after which the claim proceeded to full hearing. All the parties were accorded a fair hearing because they were heard. In particular, the claimant’s three witnesses were heard. On its part, the respondent called five witnesses. Apart from their oral testimony, parties were also given time to file written submissions which the respondent considered before reaching its decision.

17. Judgment was initially scheduled for 10 December 2021 but it was delivered on 17 December 2021. On the material date, the applicant’s advocate sought for 60 days’ stay of execution of the judgment; he was granted 45 days instead.

18. Parties were late given typed proceedings and a copy of the judgment. On 4 March 2022 the matter was to be mentioned for purposes of confirming whether the orders of the respondent in this judgment had been complied with. But on the material date, there was no appearance of the part of the applicant and pursuant to section 9 of the Contempt of Court Act, a notice was issued to one Lillian Otiso directing her to appear before the respondent on 18 March 2022 to show cause why contempt of court proceedings should not be commenced against the applicant.

19. On 18 March 2022, the applicant’s counsel filed an application seeking extension of the order of stay of execution. The application was dismissed, and the applicant’s counsel was directed to file a replying affidavit to respond to the notice to show cause and thereafter the matter was fixed for hearing on 22 April 2022.

20. It is then that the applicant moved this Honourable Court to institute the instant suit.

21. As far as the signing of the judgment is concerned, it has been admitted that that indeed it had not been signed at the time it was delivered but the respondent’s secretariat was to facilitate the signing and eventually the availing of the same to the parties upon payment of the requisite fees.

22. It is also the respondent’s position that according to section 25 (3) and (4) of the HIV and AIDS Prevention and Control Act, the quorum for a meeting of the respondent is the chairman and four other members and that all matters before the respondent are to be decided by votes of the majority of the members present. This threshold, was met in all proceedings concerning the interested party’s claim against the applicant.

23. As far as the respondent is concerned, the instant application is challenging the respondent’s decision on merits and not the process by which the decision was arrived at. In any event, the applicant has not demonstrated that the decision is tainted by illegality, irrationality or procedural impropriety.

24. The respondent has also contended that being dissatisfied with the judgment of the respondent, the applicant ought to have filed an appeal to this Honourable Court rather than file an application for judicial review.

25. The interested party’s learned counsel, Ms. Melba Katindi, swore a replying affidavit on behalf of the interested party. The affidavit is along the lines of the affidavit sworn by Annerita Mrurungi, basically restating what transpired in the proceedings on the interested party’s claim before the respondent.

26. As far as the constitution of the respondent is concerned, Katindi has emphasised that the respondent was at all times material to the interested party’s application properly constituted. On the question of the unsigned judgment, it is admitted that indeed the judgment that was sent to parties after its delivery was not signed but a signed copy was later forwarded to them.

27. It has also been sworn on behalf of the applicant that all the parties to the dispute were given an opportunity to be heard and the applicant’s allegation that he was condemned unheard is untrue.

28. The parties filed written submissions in support of the positions they have adopted in this suit. One issue that the respondent raised in the affidavit sworn by Annerita Murungi on behalf of the respondent and which I propose to deal with as a preliminary point is whether the applicant ought to have filed an appeal rather than an application for judicial review. This is a legal issue that ought to have been raised as such and not in an affidavit. Nonetheless, it is an issue which this Honourable Court cannot sweep under the rug because, to a greater degree, it goes to the question of jurisdiction of this Honourable Court; that is, whether this court, in exercise of its judicial review jurisdiction can assume appellate jurisdiction.

29. The respondent is established under section 25 of the HIV and AIDS Prevention and Control Act, No. 14 of 2006 and according to section 26 of this Act, it has jurisdiction to hear and determine complaints arising out of any breach of the provisions of the Act and also to hear and determine any matter or appeal as may be made to it pursuant to the provisions of the Act. This jurisdiction does not, however, include criminal jurisdiction.

30. According to section 27 (7), upon hearing any complaint or appeal under this Act, the respondent may, among other things, confirm, set aside or vary the order or decision in question or make such other order as may be appropriate in the circumstances.

31. There is no provision in the Act on how the respondent’s decision may be challenged by a dissatisfied party. However, under rule 33 of the HIV and Aids Tribunal Rules, 2022 which, apparently have been made as legislation subsidiary to the HIV and Aids Control Act, a person dissatisfied with the decision of the Tribunal may appeal to this Honourable Court. The rule reads as follows:33. An appeal from the decision of the Tribunal shall lie in the High Court.

32. According to gazette notice no. 33 of 2022, the HIV and Aids Tribunal Rules, 2022 were made by the Chief Justice on 8 February 2022 and published on 24 February 2022. But under section 45 of the HIV and Aids Control Act, it is the minister who may make regulations for prescribing anything required to be prescribed by the Act or generally for the better carrying out of the objects of the Act. The “minister” is defined in section 2 of the Act as “the Minister for the time being responsible for matters relating to HIV and AIDS and “Ministry” shall be construed accordingly.”

33. This, however, is beside the point, as it is not the question before; I would do well not to delve into it any further. The only question I need to consider is whether the applicant was right in invoking the judicial review jurisdiction of this Honourable Court when the rules prescribe an appeal to this Honourable Court as the means by which a decision of the respondent may be challenged.

34. This same question of whether one can initiate judicial review proceeding when an appellate process is the prescribed means has been discussed by David Foulkes in his book Foulkes Administrative Law, 7th Edition. Citing the case of Customs and Excise Commissioners versus J.H. Corbitt (Numismatists) Ltd (1981) AC 22, (1980) 2 2ALL ER 72, the learned author noted as follows:It is to be noted that an appeal lies from, whether to an appellate tribunal or to a court of law, only when and to the extent that statute so provides, and the powers of the appeal body to review, reconsider etc. the decision of the tribunal likewise depend on the statute.

35. To be contrasted with appeal is judicial review. The decision of tribunals, as bodies exercising judicial functions, have always been subject to review by the courts (that is, to judicial review) by means of the order of certiorari. This enables the court to quash a decision on certain grounds. Whereas appeal lies only when and to the extent that statute provides, the court’s common law power of judicial review exists unless it is taken away or limited by statute. Thus where no appeal to the court is provided by statute the only possible challenge in the courts is by way of judicial review…” (at p.150-151).

36. And, no doubt, this was the principle applied by Lord Wright in General Medical Council versus Spackman (1943) AC627, at 640 where he stated as follows:"I have observed that Parliament has not provided for any appeal from the decisions of the council. The only control of the court to which the council is subject (apart from proceedings by way of mandamus) is the power which the court may exercise by way of certiorari. Certiorari is not an appellate power.”

37. So, there is a clear distinction between judicial review and appeal and one cannot be substituted for the other. If, as in the instant case, the law says that a tribunal’s decision may only be challenged by way of an appeal, an applicant is not permitted to invoke the jurisdiction of judicial review to challenge the decision. If the Act was silent or, rather, if there was no specific provision on how the respondent’s decisions are to be challenged, the applicant would have been entitled to move this court, as it has done, by way of judicial review.

38. In such circumstances, Judicial Review would not only be the only path available to the applicant to challenge the respondent’s decision but also, by its very nature, judicial review comes into play where there is no other alternative form of remedy that is as convenient, beneficial and effective. This principle was well articulated by Lord Widgery CJ in R versus Peterkin, ex Soni (1972) Imm AR 253 where the learned judge noted as follows:The prerogative orders form the general residual jurisdiction of this court whereby the court supervises the work of inferior tribunals and seeks to correct injustice where no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere”. (Emphasis added).

39. I would suppose that an appeal would have been the most convenient, beneficial and effective means available to the applicant to challenge the respondent’s decision because it is in the appeal that the applicant would have, among other things, invited the court to re-evaluate afresh the evidence presented before the respondent and come to its own conclusions and, generally, to consider the merits of the impugned decision, or, whether there was any decision at all, considering that the impugned one was delivered before it was signed. A judicial review court would be limited to inquiring into the decision in the context of the propriety of the process but cannot not go as far interrogating the evidence or weighing into the merits of the decision.

40. In the ultimate, I have to come to the conclusion that the applicant’s application is misconceived and an abuse of the process of this Honourable Court. It is hereby dismissed with costs. Orders accordingly.

SIGNED, DATED AND DELIVERED ON 1 DECEMBER 2023NGAAH JAIRUSJUDGE