[2023] KEHC 23793 (KLR)

St. John of God Hospital-Tigania v Kenya Medical Practitioners and Dentists Council; Michubu (Suing on Behalf of the Estate of the Late Agnes Kawira) (Interested Party) (Judicial Review E105 of 2021) [2023] KEHC 23793 (KLR) (Judicial Review) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23793 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E105 of 2021

JM Chigiti, J

October 19, 2023

Between

St. John of God Hospital-Tigania

Applicant

and

Kenya Medical Practitioners and Dentists Council

Respondent

and

Jackson Charles Michubu (Suing on Behalf of the Estate of the Late Agnes Kawira)

Interested Party

Judgment

1. The ex parte applicant (hereinafter the applicant) has approached this court vide its notice of motion application dated 20th June,2022. It seeks the following orders;1. That a declaration does hereby issue that pursuant to section 4A (1) (b) of the Medical Practitioners and Dentists Act, CAP 253 Laws of Kenya, the Respondent's Disciplinary and Ethics Committee's jurisdiction is limited to conducting inquiries into complaints submitted to it against the Medical Practitioners and Dentists as natural persons in relation to regulating professional conduct, ensuring fitness to practice, promoting mediation and adopting mediation agreements between the parties.2. That a declaration does hereby Issue that the Respondent's Committee’s ruling dated the 24th March 2021(sic), directing the applicant to pay a fine of Ksh.200,000 to the Respondents and to initiate mediation with the Estate of the Late Agnes Kawira with a view of compensation, offends and is contrary to section 4 of the Medical Practitioners and Dentists Act Cap 253, Laws of Kenya on the functions reserved for the Council as read together with section 4A (1) (b) of the Medical Practitioners and Dentists Act. Cap 253, Laws of Kenya.3. That an order of Certiorari to remove into this honorable court for the purpose of quashing the proceedings and the entire decision of the Respondent in PIC No.44 of 2017 dated 24th May of 2021 between, Mr. Jackson Charles Michubu on behalf of the Late Agnes Kawira and St John of God Hospital, Tigania, for being ultra vires, unreasonable and made on the basis of irrelevant considerations.4. That costs be awarded to the Applicant.5. That on any other order that this Honourable Court will be pleased to issue in the circumstances.

2. The grounds for the application are stated in the ex parte Applicants’ statutory statement dated 9th August,2021, a verifying affidavit sworn on 9th August, 2021 and supporting affidavit sworn on 20th June,2022.

3. The application is opposed through replying affidavits sworn by Michael Onyango on behalf of the Respondent and Jackson Charles Michubu on behalf of the Interested Party herein on 28th September, 2022 and 17th October, 2022 respectively.

4. The brief background of the suit is that Agnes Kawira (deceased) was admitted at the St. John of God Hospital (the applicant) on the 23rd August, 2017 due for delivery. On the 24th August 2017 at 5. 30 a.m., a professional decision was made by the applicant prescribing a delivery through caesarean section. At 6. 15 a.m., the surgery was conducted by one Dr. Raduma Jesse, an employee of the applicant. Surgical notes indicated that the operation was successful.

5. By 30th August 2017, the patient’s abdomen had distended and bowel sound increased. According to the applicant, this required a well-equipped facility and the applicant exercising diligence in consultation with the husband of the deceased referred the deceased to Maua Methodist hospital for abdominal ultra sound examination and further management and at 2p.m of the same day, the deceased left the hospital in what the applicant describes as a good condition walking without support. The management of the deceased at Maua Methodist hospital did not yield positive results leading to eventual transfer to St. Theresa Kiirua hospital where she succumbed.

6. The Interested Party herein raised a claim of negligence on the part of the applicant. An inquiry was conducted by the Kenya Medical Practitioners and Dentists Council (the Council) into the matter. A ruling was made against the applicant in PIC No. 44 of 2017 whereby the applicant was found negligent in the way they handled the deceased.

7. Aggrieved by this decision the Applicant, has filed the instant substantive motion challenging the said decision and seeking for this court to quash the said decision.

8. The Applicant contends that the Respondent’s finding in its Ruling dated 24th May,2021 that the Applicant was solely liable is founded on irrationality, unreasonableness and lack of evidence as the Respondent failed to appreciate that the deceased was treated in three different facilities.

9. The Applicant also contends that pursuant to Section 4A(1)(b) of the Medical Practitioners and Dentists Act the Disciplinary and Ethics Committee has limited jurisdiction which does not extend to the regulation of health institutions. It is argued that the Respondent’s jurisdiction is limited to conducting inquiries into complaints submitted to it against the Medical Practitioners and Dentists in their capacity as natural persons as opposed to Health Institutions. Further that health institutions are a function of the Council and not the Disciplinary Committee.

10. The Respondent is also said to have acted ultra vires in making a finding that alleges the Negligence on the part of the Applicant herein and by issuing orders against the Applicant as that is the power reserved under section 20(6)(g) of the Act for the Medical Practitioners and Dentists Council.

11. The Applicant argues that the Respondent’s committee considered irrelevant considerations like the fact that the late Agnes Kawira was first treated at the applicant’s facility.

12. The Respondent’s case is that the Disciplinary and Ethics Committee has the requisite legal jurisdiction to inquire into any complaint of professional misconduct or malpractice and thereafter issue any disciplinary measure it may deem fit.

13. It is also urged that section 20(2) as read together with section 20(6) of the Medical Practitioners and Dentists Act clothes the committee with powers to issue orders of payment of appropriate fines and initiation of mediation between a complainant and a Respondent. The committee is also said to have power pursuant to section 15 as read together with section 20(1) to conduct any inquiry based on a complaint against any registered or licensed person under the Act regardless of whether such person is a natural person or a legal person.

14. The Respondent’s case is that contrary to the Applicant’s allegations of irrationality and unreasonableness of the committee’s ruling dated 24th May,2021 the committee in its decision at paragraph 31-35 considered all the relevant factors and also that the Applicant has failed to demonstrate the committee’s bias and its impartiality having been compromised.

15. In conclusion it is the Respondent’s case that the Committee followed proper procedure and adhered to the principles of natural justice in the determination of the complaint against the Applicant.

16. The Interested Party in response contends that the Applicant’s application before this court is an appeal of the Respondent’s decision disguised as a judicial review application.

17. Further that it is not in contention that the deceased was admitted to the Applicant’s facility and advise given for her to undergo a Caesarean section procedure to enable delivery. Further that the deceased underwent the said procedure at 6. 15 A.M on 24th August,2017 which procedure was conducted by the employees of the Applicant.

18. It is also the Interested Party’s case that the deceased suffered from post operation complications on the 3rd day of post-operation and that she had started showing signs of epigastric tenderness a fact that has not been denied by the Applicant.

19. The Interested Party also avers that the patient’s record indicates a situation where the patient never received any attention for 24 hours on the 2nd day post-operation when possibility of early detection and possibility of survival of the patient was high. The Interested Party states that the question of negligence is on the part pending determination before Meru High Court Civil Case No. E024 OF 2021.

20. He also depones that upon noticing that his sister was not improving at the Applicant’s facility that was on the 6th day after the operation he together with other family members demanded for a referral to another hospital, this decision was not made by the Applicant as alleged.

21. Upon the demise of his sister the Interested Party is said to have lodge a complaint before the Respondent subsequent to which the Applicant was through a letter dated 11th December,2017 informed of the said complaint and requested to provide a comprehensive report addressing the allegations raised in the complaint and providing the certified and paginated copy of the patient’s medical file and any other relevant documents that would assist in carrying out investigations.

22. It is the Interested Party’s case that pursuant to the Health Laws Amendment,2019 radical changes were made in that the Committee known as the Preliminary Inquiry Committee and the Professional Conduct Committee have now been combined to form the Disciplinary and Ethics Committee which is now the Committee responsible to hear complaints by virtue of the said amendments.

23. The deponent reiterates that the allegations that the Committee acted without jurisdiction is ill-founded and not based on the law. Further that the parties before the Committee were all given an opportunity to be heard and that it is upon all facts having been considered that the Respondent made the determination it did.

24. The Interested Party also avers that Section 4A 1(b) of the Act provides for the mandate of the Disciplinary Ethics Committee to include conducting enquiries submitted to it, regulating professional conduct, ensuring fitness to practice to operate, promoting mediation and or arbitration between parties. Further that Section 10B empowers the Committee to recover any costs of the proceedings incurred from any party.

25. The motion before this court according to the Interested Party is an attempt by the Applicant to derail the proceedings in Meru High Court Civil Suit No. E024 OF 2021 on the Applicant’s negligence and that the same ought to be dismissed.

26. The application was canvassed by way of written submissions. The Applicant filed written submissions dated 29th June,2023 and in the submissions two issues are identified for determination and these are; Whether the Respondent’s Disciplinary and Ethics Committee has jurisdiction to hear and determine the matter in the manner that it did on the 24th March 2021? and; Whether the Applicant should be granted the judicial review orders sought?

27. On this court’s jurisdiction it is the Applicant’s case that pursuant to the provisions of Article 165 (6) of the Constitution this court has supervisory jurisdiction over any person, body or authority that exercises quasi-judicial functions or a function that is likely to affect one’s rights.

28. Further that judicial review is entrenched in the Kenyan Constitution by virtue of Article 47 which provides for fair administrative action, and Section 7 of the Fair Administrative Action Act which provides that any person aggrieved by an administrative action or decision may apply for review of the administrative action or decision. The case of Suchan Investment Limited v Ministry of National heritage & Culture & 3 others (2016) eKLR is refered to on the shift of judicial review to include aspects of merit review.

29. The Applicant on the parameters of judicial review cites the cases of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300, Republic v Kirinyaga County Council & another Exparte Stephen Muriithi Njeru & another [2017] eKLR and Commissioner of Lands vs Kunste Hotel Limited (1997) e K.L.R (E & L) 1 at page 249.

30. It is the Applicant’s submission that is not stated in any part of the statute that the respondent ‘s committee has the mandate to hear and determine disputes in the manner that it did in the Ruling dated 24th March,2021.

31. The Respondent also filed written submissions dated 4th July, 2023. In the submissions the Respondent also identifies two issues for determination and these are; Whether the Respondent’s Disciplinary and Ethics Committee has jurisdiction to inquire into a complaint of professional misconduct or malpractice against a health institution and Whether the Respondent’s decision in PIC No. 44 of 2017 dated 24th May 2021 was ultra vires, irrational, unreasonable and bias?

32. The Respondent submits that the Disciplinary and Ethics Committee’s establishment by the Respondent is purposely for regulating the professional conduct by conducting inquiries based on complaints against registered health institutions including the Applicant and therefore cannot be said to be a separate entity from the Respondent.

33. It is also its submission that the Respondent’s Disciplinary and Ethics Committee exercised its powers within the scope allowed and empowered under the Act therefore not ultra vires nor illegal on both constitutional and administrative grounds. The Respondent cites the case of Republic vs Commissioner for Income Tax ex parte Sony Holdings Limited Miscellaneous Civil Application No. 636 at 2018 where it was held that public bodies can only do what they are empowered to do under the Law. The Respondent further submits that the doctrine of illegality requires that the power should have the law as its source.

34. The Respondent also submits that the Applicant cited Articles 20,22(1),23(1) and (3) and 47(1) of the Constitution of Kenya 2010 to urge that the rule of law was violated without setting out the actual particulars of the specific allegations of how a right or fundamental freedom has been violated by the Respondent.

35. The Applicant is said to have failed to establish with sufficient clarity and precision the provisions of the Constitution allegedly violated with regard to the manner or nature of the violation and the extent of the alleged violation as enunciated.

36. The cases of Anarita Karimi Nieru v Republic [1979] eKLR as well as Trusted Society Human Rights Alliance v Attorney General & 2 others [2012] eKLR and Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR are cited to support this argument.

37. In conclusion the Respondent also submits that the Respondent’s Disciplinary and Ethics Committee was transparent in its reasoning and followed the substantive and procedural rules of legality in its administrative action as provided in the Act and adhered to the principles of natural justice in the determination of the complaint against the Applicant.

38. The Interested Party’s submissions are dated 4th July,2023. Section 4A of the Act is said to provide for the Committees constituting the council as follows;a.training, assessment, registration and human resources committee;b.disciplinary and ethics committee;c.inspections, licensing, finance and general purposes committee; andd.audit and risk committee.

39. The Committees are said to perform different roles and functions for the proper functioning of the Council. Section 4A 1(b) sets out the functions of the disciplinary and ethics committee.

40. It is the Interested Party’s submission that it is evident that on 26th March,2021, the recommendations of the Committee were presented before the Council wherein the Council upheld the said recommendations of the Disciplinary and Ethics Committee. Further that the decision rendered on 24th May, 2021 having been approved by the Council was therefore legal and made within the Jurisdiction of the said Committee this is because it received an approval from the Council before delivery.

41. The Party in support of the above argument refers to the case of Republic v Disciplinary and Ethics Committee & another; Donald Oyatsi (Ex Parte); AGK (Interested Party) [2020] eKLR where Mativo J as he then was held as follows; “There is evidence that the full Board approved the decision as the law requires. Additionally, a reading of the enabling statute and the rules leaves no doubt that the final orders are anchored on the law. In fact, in the final orders, the Respondents cited the relevant provisions of the law which provide for the orders made, namely, section 4A (1) (b) (iv) 01 the Act and section 20(6) (g) of the Act”

42. The case of Republic v Medical Practitioners & Dentists Board & 2 others; M.I.0 on behalf of M.I.0 (a minor & another (Interested Parties) ex-parte Sunil Vinayak & another [2020] eKLR is referred to on the jurisdiction of the Committee.

43. The Interested Party challenges the competency of the substantive motion on grounds that upon being granted leave the Applicant instituted these proceedings under its name instead of the name of the Republic as is provided under Order 53. It is submitted that even though the same is a technicality the same goes to the substance and is fatal to the application. To further buttress this argument the Interested Party cites the case of Jotham M. Gituma vs. Florence Karema & Another [2012] eKLR.

44. It is submitted that the Applicant was at liberty to appeal if it felt aggrieved by imposition of the fine as is stipulated under under Sec 20 (9) of the Act but it failed to do so within 30 days as required under the Act. Further that the proceedings before this court were only instituted after the Applicant was served with the pleadings in Meru High Court Civil Case No. E024 of 2021.

45. The Interested Party’s case is that no exceptional circumstance has been demonstrated by Applicant as to why it failed to exhaust the mechanisms available to it.

46. The Interested Party cites the court in R v D & E Committee Ex-parte Donald Oyatsi; AGK (Interested Party) (supra) where the court quoted with approval two decisions of the Supreme Court of India in V.C. Rangadurai v Gopalan and Rajendra V. Pai v Alex Fernandes where the court found that “the finding of a special tribunal e.g. professional bodies ought not to be disturbed capriciously unless they were based on no evidence or the said tribunals proceeded on mere conjecture and unwarranted inferences”.

47. The Applicant’s application and submissions are said to have fallen short of demonstrating the irrationality, bias and Wednesbury unreasonableness and further that nothing demonstrates the need for the writ of Certiorari to issue.

48. On costs it is submitted that its trite law that costs follow the event. The Interested Party argues that it has been dragged to court for no reason and therefore it deserves costs.

Analysis and Determination 49. I have considered the case adduced by each of the parties before this court and I find that the following issues crystallise for determination and these are as follows;i.Whether the Respondent’s committee in delivering its ruling dated 24th May,2021 was acting within its jurisdiction?ii.Whether the Ex parte Applicant has adduced enough grounds for the grant of the orders sought?iii.Who shall bear the costs of the application?

50. The Applicant has raised a vital issue challenging the Respondent’s Disciplinary and Ethics Committee’s jurisdiction to hear and determine complaints on the conduct of health institutions.

51. The Applicant argues that pursuant to Section 4A(1)(b) of the Medical Practitioners and Dentists Act the Disciplinary and Ethics Committee has limited jurisdiction which does not extend to the regulation of health institutions.

52. Further that the Respondent’s jurisdiction is limited to conducting inquiries into complaints submitted to it against the Medical Practitioners and Dentists in their capacity as natural persons as opposed to Health Institutions. Further that health institutions are a function of the Council and not the Disciplinary Committee.

53. In response to this the Respondent argues that the Disciplinary and Ethics Committee has the requisite legal jurisdiction to inquire into any complaint of professional misconduct or malpractice and thereafter issue any disciplinary measure it may deem fit.

54. It is also urged that section 20(2) as read together with section 20(6) of the Medical Practitioners and Dentists Act clothes the committee with powers to issue orders of payment of appropriate fines and initiation of mediation between a complainant and a Respondent.

55. The committee is also said to have the power pursuant to section 15 as read together with section 20(1) of the Act to conduct any inquiry based on a complaint against any registered or licensed person under the Act regardless of whether such person is a natural person or a legal person.

56. The Interested Party also in response contends that pursuant to the Health Laws Amendment,2019 radical changes were made in that the Committee known as the Preliminary Inquiry Committee and the Professional Conduct Committee have now been combined to form the Disciplinary and Ethics Committee which is now the Committee responsible to hear complaints by virtue of the said amendments.

57. Further that it is evident that on 26th March,2021, the recommendations of the Committee were presented before the Council wherein the Council upheld the said recommendations of the Disciplinary and Ethics Committee. Also, that the decision rendered on 24th May,2021 having been approved by the Council was therefore legal and made within the jurisdiction of the said Committee this is because it received an approval from the Council before delivery.

58. The Respondent is established under section 3 of the Medical Practitioners and Dentists Act ,2019. The Act under section 4(1)(m) provides for the functions of the council which include; “(m) regulate health institutions and take disciplinary action for any form of misconduct by a health institution”. The Applicant herein is such an institution and therefore falls within the jurisdiction of the Council. This fact has not been denied by the Applicant.

59. The Act under section 4A proceeds to state as follows;“4A. Committees of the Council(1)The Council shall constitute the following committees—(a)training, assessment, registration and human resources committee;(b)disciplinary and ethics committee whose mandate shall include—(i)conducting inquiries into complaints submitted to it;(ii)regulating professional conduct;(iii)ensuring fitness to practice and operate;(iv)promoting mediation and arbitration between parties; and(v)at its own liberty, recording and adopting mediation agreements or compromise between parties, on the terms agreed;(c)inspections, licensing, finance and general purposes committee; and(d)audit and risk committee.(2)The Council may from time to time appoint such other ad hoc committees as it may deem necessary for the effective carrying out of its functions under this Act.(3)Any committee appointed by the Council under subsection (1) or (2) shall consist of such persons as the Council deems necessary.(4)The Corporation Secretary shall be the secretary of all committees appointed under this Act.

60. In our instant case the Interested Party lodged a complaint with the Respondent herein which complaint was heard and determined by the disciplinary and ethics committee one of the committees constituting the council.

61. The Act under section 20 provides thus;20. Disciplinary proceedings(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); or (g) 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 subsection (6) unless at least seven members of the Council are present in the inquiry.

62. The Court Mativo J as he then was in the case of Republic v Disciplinary and Ethics Committee & another; Donald Oyatsi (Ex Parte); AGK (Interested Party) [2020] eKLR aptly summed up the mandate of the Disciplinary and Ethics Committee as follows;“70. The first Respondent is a Committee of the Council established under section 4A of the Act. Section 4A (1) (b) provides that the mandate of the D&EC include— (i) conducting inquiries into complaints submitted to it; (ii) regulating professional conduct; (iii) ensuring fitness to practice and operate; (iv) promoting mediation and arbitration between parties; and (v) at its own liberty, recording and adopting mediation agreements or compromise between parties, on the terms agreed.PARA 71. Section 23 of the Act provides for enactment of rules in the following words:-23. RulesThe Cabinet Secretary may, after consultation with the Council, make rules generally for the better carrying out of the provisions of this Act, and any such rules may, without prejudice to the generality of the foregoing— (a) prescribe anything required by this Act to be prescribed; (b) provide for the procedure to be followed by the Board in an inquiry under section 20;72. It follows that the rules enjoy a statutory underpinning. The rules are explicit on the mandate and functions of the D& EC. Section 4A (1) (b) provides that the mandate of the D& EC includes - (i) conducting inquiries into complaints submitted to it; (ii) regulating professional conduct; (iii) ensuring fitness to practice and operate; (iv) promoting mediation and arbitration between parties; and (v) at its own liberty, recording and adopting mediation agreements or compromise between parties, on the terms agreed.73. The medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) (Amendment) Rules, 2012 introduced amendments to the hitherto existing Rules, namely, the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules. Rule 4 was amended as follows:-— (a) in paragraph (1), by deleting the words "and to determine and report to the Board whether an inquiry should be held, pursuant to section 20 of the Act, in respect of the medical practitioner (b) in paragraph (2) (b), by deleting the word "Board" appearing immediately before the word "together" and substituting therefor the words "Professional Conduct Committee"; and (c) by deleting paragraph (3). 3. The principal Rules are amended by inserting the following new rule immediately after rule 4— 4A (1) There is established a Professional Conduct Committee consisting of the following persons appointed by the Board— (a) a chairperson; (b) two persons registered in the same profession in which a medical practitioner or dentist whose conduct is being inquired to is registered; (c) one member of the Board; (d) one person representing the general public; (e) an advocate of the High Court who shall be the legal advisor; and the Chief Executive Officer of the Board.74. At the risk of repeating myself, in a departure from the past, the Rules provide for the functions of the D&E C as follows: — (a) conduct inquiries into the complaints submitted by the PIC made under rule 4(2) and make appropriate recommendations to the Board; (b) ensure that the necessary administrative and evidential arrangements have been met so as to facilitate the Board to effectively undertake an inquiry under rule 6; (c) convene sittings in respective counties to determine complaints; (d) promote arbitration between the parties and refer matters to such arbitrator as the parties may in writing agree.75. Paragraph 3 of the Rules provides that the PCC shall, subject to prior or subsequent approval by the Board, have power to— (a) levy reasonable costs of the proceedings from parties; (b) order a medical practitioner or dentist to undergo continuous professional development for a maximum of up to fifty points; (c) suspend licenses for medical institutions for up to six months; (d) order, closure of institutions until compliance with the requirements of the operating licence.76. A faithful reading of the above provisions show that the Respondents acted within their statutory mandate. Put differently, the Respondents did not act outside or in excess of their jurisdiction nor did they commit a jurisdictional error. As was held in Craig v South Australia (1995) HCA 58:-“A jurisdictional error occurs when the extent of that authority is misconceived. Decisions affected by jurisdictional error can be quashed by judicial review. Examples of jurisdictional errors include asking the wrong question, ignoring relevant material, relying on irrelevant material, and breaching natural justice.Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.” (Emphasis added)”

63. This Court agrees with the above finding and holds that the Disciplinary and Ethics Committee was within its mandate in issuing the orders it did. In any case at paragraph “E. DETERMINATION” of the Committee’s Ruling it is stated as follows;“In view of the above findings, the Committee holds that the complaint lodged by the complainant against the Respondent has merit. The Committee presented its findings, as set out herein above, and its recommendations to the Kenya Medical Practitioners and Dentists Council in its meeting held on 26th March,2021 wherein the decision of the Committee was upheld.”

64. It is common knowledge that judicial review jurisdiction is supervisory by nature; it is the channel through which judicial supervision over administrative action is exerted; and, generally speaking, it is meant to cast doubt on any decision that is made in violation of the law. Lord Diplock’s classic dictum in Council of Civil Service Unions versus Minister for the Civil Service (1985) 1 AC 374 provides a useful guide on what an unlawful decision entails.

65. The learned judge spoke of these grounds 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.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury’s unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury’s Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

66. This court is aligned to the fact that the scope of judicial review has now expanded beyond the common law principles and the Law Reform Act and Order 53 of the Civil Procedure Rules. It has now been entrenched under Article 23 of the Constitution as well as the Fair Administrative Actions Act.

67. Recently, the Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) held at paragraph 85 that:“It is clear from the above decisions that merit However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se"

68. In Republic v Kenya Revenue Authority Ex-parte Stanley Mombo Amuti (2018) eKLR, Sunchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others SC Petition No 14 Consolidated with 14A, 14B, & 14C of 2014 [2014] eKLR the Courts have reiterated that a mere recital of the provisions of the Constitution without more cannot elevate a regular judicial review suit into a constitutional and human rights case. A party who invites the court to determine whether or not a right has been violated and or been infringed has to go beyond the mere mention of the Articles of the Constitution or the Sections of the Law they are relying on in the heading of their suit.

69. This court is not convinced that the Applicant has proven any form of illegality, irrationality, procedural impropriety or even that it has satisfied the requirement for the court to undertake a merit review.

70. The Court is also not convinced that the Committee in reaching its decision considered irrelevant factors. One of the prevalent issues that I note that the Applicant raises is that the Committee failed to consider that the deceased was treated in two other hospitals and therefore it could not be solely liable for negligence as stated by the Respondent and 1st Interested Party.

71. The Committee in addressing this issue considered the patient’s files from the various health institutions, an independent report by one doctor Dr. Nicholas Koome Guantai and the Post Mortem report from one Dr. Kibera which all pointed to the cause of death being the post operation complications suffered by the deceased person after she had undergone a caesarean operation procedure at the Applicant’s facility. This ground must also therefore fail.

72. On the issue of costs, it is trite that costs follow the event.

Orders;In light of the above I make the following findings;1. That the Applicant’s application dated 20th June,2022 lacks merit and is hereby dismissed.2. The Respondent and Interested Party are awarded costs of the suit.3. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF OCTOBER, 2023. ...................................J. CHIGITI (SC)JUDGE