[2022] KEHC 10793 (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 Late Agnes Kawira) (Interested Party) (Judicial Review E105 of 2021) [2022] KEHC 10793 (KLR) (Judicial Review) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10793 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E105 of 2021

AK Ndung'u, J

June 2, 2022

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 Late Agnes Kawira)

Interested Party

Ruling

1. The ex parte applicant (hereinafter the applicant) approached this court vide its amended chamber summons application dated 16th November 2021. It seeks the following orders;a.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.b.A declaration does hereby Issue that the Respondent's Committee’s ruling dated the 24th March 2021, directing the applicant to pay a fine of Ksh.200, 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.c.That an order of Certiorarito 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.d.That this Honorable Court be pleased to order the Respondent to reimburse and or refund Ksh.200. 000 paid as fine by the Applicant to the Medical Practitioners and Dentists Board on the 15th of June,2021e.That costs be awarded to the Applicant.f.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 dated16th November 2021, and a verifying and further affidavit of James Mwiti.

3. The application is opposed and a replying affidavit has been sworn by Jackson Charles Michubu, the Interested Party herein. The deponent avers, inter alia, that further discussion of the issue of negligence would violate the sub judice principle as the matter is live before the court in Meru High Court Civil Case No. E024 of 2021. It is urged that both parties were heard at the Council and a determination made and that the decision reached was reasonable.

4. Despite evidence of proper service, the Kenya Medical Practitioners and Dentists Council (respondent) did not file a response to the chamber summons.

5. 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 indicate that the operation was successful. 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 2 p.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 of the respondent, the applicant seeks through the chamber summons herein to mount a challenge by way of judicial review against the said decision. It is within this context that leave is sought to institute judicial review proceedings seeking an order of certiorari and other declaratory orders.

8. On the orders sought by the ex parte Applicant for leave to commence judicial review proceedings, the applicable law is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no application for judicial review orders should be made unless leave of the court was sought and granted. The main reason for the leave as explained by Waki J. (as he then was), is to ensure that an applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration.

9. It is also trite that in an application for leave such as the present one, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before it and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave. It was explained by Lord Bingham in this respect in Sharma vs Brown Antoine (2007) I WLR 780, that a ground of challenge is arguable if its capable of being the subject of sensible argument in court, in the sense of having a realistic prospect of success.

10. Thus, at the leave stage, the applicant has the burden of demonstrating that the application raises a serious issue. This is a low threshold. A serious issue is demonstrated if the judge believes that the applicant has raised an arguable issue that can only be resolved by a full hearing of the judicial review application. If the court is not persuaded as aforesaid, leave will be denied and the matter proceeds no further.

11. I have noted that the parties herein have in their affidavits and submissions delved deeply into the merits of their cases. As observed above, at this stage the threshold applicable is a low one. The court will not analyse the respective cases of the parties deeply. That should be left to the substantive hearing if leave is found deserved. At this stage the court will stick to the purpose for the application for leave which Waki J (as he then was) put so succinctly in Republic v County Council of Kwale & another ex parte Kondo & 57 others (1998) 1 KLR (E&L)thus;“The purpose of the application for leave to apply for judicial review is firstly, to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly, to ensure that the applicant is only allowed to proceed to the substantive hearing if the court is satisfied that there is a case fit for further consideration.Leave may only be granted, therefore, if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant, the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for Judicial Review.It is an exercise of the court’s discretion but as always it has to be exercised judicially.’’

12. The grant of leave is a discretionary power. It, however, like all discretionary powers be exercised judiciously. Discretion, according to the Black’s Law Dictionary, 8th Edn, entails “wise conduct and management; cautious discernment; prudence. 2. Individual judgment; the power of free decision making.”

13. I have considered the parties pleadings and submissions. The question for determination at this stage is whether the applicant has established a case to the threshold required in law for the grant of leave to institute judicial review proceedings.

14. One very important aspect of this application, and which does not seem to have received due attention by the parties, either in their affidavits or submissions, both parties just glossing over it, is the aspect of the existence of another trial before the High Court sitting at Meru being H.C.C.C No. E024 of 2021, which suit arises from the incident of the death of Agnes Kawira and the allegations of negligence against the applicant in so far as that death is concerned. I have agonised over the juxtaposition of the challenge of the respondents decision herein and the suit on negligence before the High Court at Meru. There appears, on the face of it, an element of this intended judicial review proceedings being sub judice. But such fears quickly dissipate when I put both matters in perspective. Before me is an applicant who has demonstrated sufficient interest in the matter, whose rights are affected by the impugned decision and who challenges the process and the application of the law by the respondent in reaching their decision. It cannot be ignored that the respondent did not find it necessary to defend the grant of leave. On the other hand, I have a next of kin who is pursuing justice on behalf of the estate of the deceased seeking for compensation for alleged negligence on the part of the applicant.

15. In my view it is possible to draw a clear dichotomy of the exercise of the parallel rights above without prejudice to either party. The decision of the respondent is an important piece of evidence in the Interested Party’s case. The applicant retains the right under the constitution and the Fair Administrative Action Act to challenge the decision and it has demonstrated an arguable case in that regard. The fact that the Interested Party has a claim before a court in which the impugned decision is part of the evidence cannot suffice to stifle the applicant’s right to challenge the decision.

16. The sum total of the above is that am satisfied that the applicant has in its application achieved the threshold set in law for grant of leave to institute judicial review proceedings. I accordingly allow the Chamber Summons dated 16th November 2021. I make the following orders;i.Leave be and is hereby granted in terms of prayers 1 (a), (b) and (c).ii.The Substantive Motion be taken out and served within 21 days. Response be filed within 14 days of service.

17. Mention on 13th July, 2022 for directions.

DATED, SIGNED AND DELIVERED THIS 2ND DAY OF JUNE 2022……………………………………………….A.K. NDUNGUJUDGE