In Re Mukhonye Community Based Organisation [2014] KECA 815 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  ONYANGO OTIENO, AZANGALALA & KANTAI, JJ. A)

CIVIL  APPEAL NO.  22   OF 2013

BETWEEN

IN THE MATTER OF AN APPLICATION BY MUKHONYE COMMUNITY BASED ORGANISATION

AND

IN THE MATTER OF THE MINISTRY OF PUBLIC HEALTH

AND

IN THE MATTER OF THE WESTERN PROVINCE DIRECTOR OF PUBLIC HEALTH AND SANITATION NOTICE DATE 25-5-2012

AND

IN THE MATER OF THE RTEGISTRAR OF CLINICAL OFFICERS COUNCIL

AND

IN THE MATTER OF THE CLINICAL OFFICERS COUNCIL CAP 260 LAWS OF KENYA

(Appeal from a Ruling  of the High Court of Kenya at

Busia  (Kimaru, J)  dated 27th  June 2013

in

BUSIA   HC MISC APP   No.  130  OF 2012

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JUDGEMENT OF THE COURT

This appeal has been brought by Mukhonye Community  Based Organization, an entity registered under what was formerly known as the Ministry of Gender, Children and Social Development.  It is now probably within the current Ministry  of Sports Culture and Arts.  One of its officials at the time or times relevant to this litigation was one Elphas Okwayo Makeya who described himself as the secretary of the Organization hereinafter  “the appellant”.

The  appeal arose as follows:

The appellant used to operate a health facility known as Delinds Medical Centre in Butula District within Busia County.  On 10th May 2012 a team from the office of former Western Provincial Director of Public Health and Sanitation inspected the appellant's said facility.   The team comprised Dr. Ahindukha Q.B, the Provincial Director of Public  Health and Sanitation, Mr. Absalom Ingabo, the Provincial Clinical Officer, Mr. Zablon Onyango, the Public Health Officer from the Director's office and Mr. Douglas Bwire the District Nursing Officer from Butula District.

Following that inspection, a report was prepared dated 25th May, 2012 in which the following recommendations were made:

“1.        Delinds Medical Centre should not be licensed to offer  medical services.

The District Health Management Team (DHMT) Butula District and the Provincial Administration to enforce the closure of the clinic.

Further investigations by the DHMT in the allegations and malpractices at the facility and report  to this office  within two weeks for necessary action.”

Copies of the inspection report were sent to the Permanent Secretary Ministry of Public Health and Sanitation,  the District Commissioner Butula District and one Reuben Simiyu Sindani of Delinds Medical Centre.

Pursuant to the said inspection, the appellant's facility was closed.  On 8th June, 2012,  the secretary of the appellant wrote to the Provincial Director of Public Health and Sanitation complaining about the recommendations made in the inspection report and sought a review of the same.

As no review occurred,  the appellant moved to the High Court at Busia and, relying on Order 53 Rules 1, 2 and 4 of the Civil Procedure Rules, lodged a chamber summons - ex-parte, seeking leave of the court to apply for judicial review orders of certiorari, prohibition and mandamus.   The prayers  were expressed as follows:

“2.        That leave be granted to the applicant to apply for an  order of Judicial Review in the nature of a certiorari to remove into the High Court and quash the decision of the   Western Provincial Director of Public Health and Sanitation contained in his letter to the applicant dated  25/5/12.

That leave be granted to the applicant to apply for anorder of prohibition directed [to] Western Province (sic) Director of Public Health and Sanitation  restraining him       from closing the applicants health clinic known as DELINDS MEDICAL CENTRE in Butula District.

That an order  of mandamus compelling the Registrar of   the Clinical Officers Council to issue the applicant  with a      license for  private medical practice for its clinic known   as Delinds Medical Centre in Butula District Busia County.

That the applicant seeks that if leave is granted the same to operate as a stay of the decision of the Western Provincial Director of Public Health and Sanitation dated     25/5/12. ”

The Chamber Summons was placed before Kimaru J, on 24th July, 2012 who certified the same as urgent and ordered the hearing of the application inter partes.The inter partes hearing eventually happened on 10th October, 2012  after all parties had filed various affidavits upon which they relied.

The learned Judge, in a ruling he prepared and signed, but  was delivered by Tuiyot J, on 27th June, 2013 declined the leave sought by the applicant concluding as follows:

“From the contents of the letter that is the subject of this application it was clear that the said clinic was being operated by persons who were not qualified to offer medical  services.  Among the persons is Elphas  Okwayo Makeya, who claims to be the  secretary of the Applicant.  He has no medical  training neither does  he have any academic qualifications that would  make him a suitable  person to manage a health facility.   It was apparent to this court that it is the said Elphas  Okwayo

Makeya who in fact was operating  the medical clinic under the guise that it was owned by the  community based organization.

In such circumstances can this court grant leave  to an unqualified person  to challenge the decision of an officer mandated by the law to safeguard the interest of the public from acts of unqualified persons.  I do not think so. The applicant failed to establish that it has a prima facie case to entitle this court grant leave to institute judicial review. The applicant has no locus standi to challenge the decision of the respondent.   In fact it is apparent that the name  of the Applicant is being used by the persons who  filed this application to enable them engage in medical practice when in actual fact they are unqualified to offer such medical services or  to be issued with a licence to offer such medical services.  Leave is declined.   The Applicant shall pay the costs of the Respondent.”

It is against that refusal to grant leave to seek judicial review orders that  this appeal was brought.   The appellant has cited six grounds namely that:-

“1.        The learned trial Judge  grossly misdirected  himself in dismissing the applicant's chamber summons dated 23-7-   2012 without any valid, sound cogent and or legal reasons.

The learned trial Judge erred in both law and fact in failing to grant  leave to the applicant to apply for orders of judicial review in the nature of certiorari and       prohibition.

The Judge erred in law and fact in failing to appreciate that the applicant was deserving of the orders of leave to apply for judicial review.

The Judge erred in law and fact in failing to find that the applicant had an arguable case and a prima facie case for granting the leave sought.

The Learned trial Judge erred in both law and fact in failing to consider  the petitioner's submission while   arriving at the decision.

The ruling was against the weight of evidence.”

In his submissions before us, Mr. Odeny, learned Counsel for the appellant faulted the ruling of the learned Judge of the High Court on various  grounds, the gist of which was that the appellant placed sufficient material before the Learned Judge to demonstrate an arguable case for the granting of leave.

Mr. Onyiso, learned counsel who represented the respondents, the Ministry of Public Health and Sanitation, The Western Provincial Director of Public Health and Sanitation and the Clinical Officers Council, in his response, submitted that the learned Judge found that the appellant was not acting in good faith in making its application as its Chief architect, Elphas Okwayo Makeya, was using the appellant for personal gain.  Its counsel's view, that the report upon which the  appellant's clinic was closed militated  against granting the appellant a licence to operate a health facility.

On the issue of whether to grant or not to grant leave,  this Court differently constituted stated as follows in Njuguna & others =v= Minister for Agriculture [2001] 1EA (CAK):

“It cannot be denied that leave should be granted, if on the material available, the court considers without going into the matter in depth, that there is an arguable case for granting leave.”

So, all an applicant for leave to commence judicial review proceedings should show is that he has an arguable case.  If he satisfactorily persuades the Judge hearing the application, the judge should grant leave without going into the matter in depth.

In the matter before us, Kimaru J, had the correct criterion in mind, when he considered  the appellant's application. He indeed cited the test set out in the case of Njuguna =v= Ministry of Agriculture (supra).   He also invoked the decision of the Ugandan Court of Appeal in the case of Kikonda Butema Farms Ltd =v= The Inspector General of Government, Civil Appeal No. 35 pf 2002 UR.  He cited the following passage from that case.

“An application for leave is the first step in the process.   The trial Judge is enjoined to look at the statement of facts, the accompanying  affidavit and annextures  that might be attached to the application before  granting leave.  It is not necessary at that stage to consider whether the applicant  would succeed or not. The applicant has to present such facts that would satisfy court that a prima facie case exists for leave to be granted.   In my view leave is not granted as a matter of course.   However the court is not supposed to consider the merits or

demerits of application.  Such decision can only be taken after hearing the application inter parties.”

Having set out the correct test, did the learned Judge apply it to the matter before him?  The learned Judge correctly appreciated that the appellant sought leave on the primary basis that its constitutional right to a fair hearing had been infringed.   He also appreciated  that if demonstrated, such a complaint required investigation by the court by way of judicial review.  The Learned Judge however, found that   the appellant   was being used as a cloak by its secretary to operate an illegal health facility.

Was there basis for that finding?  Before the learned Judge, was the inspection report of the team from the Provincial  Public Health Director's office which showed that the appellant's health facility was ill equipped and grossly inadequately staffed.   And even the  threadbare  staff members were not qualified to operate the health facility.  We  have considered the same material which was placed before the High Court including the response to the  inspection report made by the appellant's secretary.  Having done so, we cannot fault the learned Judge of the High Court.  In an attempt to demonstrate that the appellant's health facility was run by qualified personnel its secretary exhibited

academic qualifications of various personnel.However, save for Reuben Simiyu Sindani, the said secretary did not exhibit letters of appointments  for the people he alleged were working for the health facility.

The record also shows that save for attempting to address the issues of personnel which, as we have pointed out, was not successful, the said secretary did not address the other shortcomings stated in the inspection report.   No previous licence in the name of the appellants was exhibited.   No patient records were shown and none are included  in this record; a charge of  malpractice  in the management of patients was not answered.  The want of financial records and dispensing of expired drugs were not responded to.

The appellant did not therefore answer the complaint of operating illegally by persons who were not qualified and without infrastructure for rendering medical services to the public.   The learned Judge could not ignore those factors.  As stated,  in both cases cited above, the granting of leave to commence judicial review  proceedings is not a matter of course.   The court is enjoined to look at the statement of facts, the accompanying affidavit, any annextures exhibited  and any submissions made before granting leave.

Like the learned trial Judge, having considered the material which was placed  before him, we find that the appellant failed to demonstrate an arguable case to entitle him obtain the leave to commence judicial review  proceedings.

In the result the appeal is for dismissal in its entirety and we so order.  Costs of the appeal shall be paid to the respondent by the appellant.

Dated and Delivered at Kisumu this  7th  day of   February, 2014.

J. W. ONYANGO OTIENO

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JUDGE OF APPEAL

F. AZANGALALA

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JUDGE OF APPEAL

S. ole  KANTAI

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR