Kamagy v Kenya Veterinary Board & 2 others [2022] KEHC 11932 (KLR)

Kamagy v Kenya Veterinary Board & 2 others (Petition E107 of 2021) [2022] KEHC 11932 (KLR) (Constitutional and Human Rights) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11932 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E107 of 2021

HI Ong'udi, J

May 19, 2022

Between

Henry Maduma Kamagy

Petitioner

and

Kenya Veterinary Board

1st Respondent

Christopher Wanga

2nd Respondent

Indraph Ragwa

3rd Respondent

Judgment

1. The Petition dated April 3, 2021 arises from disciplinary proceedings conducted by the 1st respondent. The petitioner takes issue with how the said proceedings were conducted and verdict issued and claims that the same were an affront to Articles 47, 27, 33, 34, 35, 43, 48 and 28 of the Constitution; Section 4 of the Fair Administrative Actions Act, 2015; Section 4 of the Access to Information Act; and, Section 6 and 7 of the Veterinary Surgeons and Veterinary Para-Professionals Act , 2011 (VSVP Act).

2. He therefore prays for the following reliefs:i.A declaration that the decision made by the respondents on March 19, 2021 in KVB Disciplinary Case No 5 of 2020 (Kenya Veterinary Board v Henry Kamagi) violated Article 47 of the Constitution on fair administrative action , and section 4 of the Fair Administrative Action Act.ii.A declaration that the said decision violated Article 33 of the Constitution on freedom of speech by purporting to punish the petitioner for comments made in pursuit of legitimate freedom of expression, and which comments did not constitute a derogation from the freedom as enshrined in the Constitution.iii.A declaration that the respondents violated Article 35 of the Constitution on access to information, and section 4 of the Access to Information Act, by withholding relevant and necessary information required by the petitioner to exercise his right and only availing some of the information on an unreasonably short window of two days prior to the expected filing of defence, having slept for the request for over 5 months.iv.A declaration that the said decision violated Articles 48 of theConstitution on the right to access justice by unreasonably delaying the process and ambushing the petitioner with summons and only granting him unreasonably short period to respond and mount his defence, the element of surprise being to deny him means to defend himself.v.A declaration that the said decision violated Article 27 of the Constitution on equality and freedom from discrimination to the extent that the respondents denied the petitioner the benefit of the rule of law and uniform application of rules.vi.A declaration that the said decision violated Article 28 of the Constitution on the petitioner’s right to dignity, having been subjected to an unfair process and having been stripped of his only means to decent income.vii.A declaration that the said decision violated Article 43 of the Constitution on the petitioner’s rights to economic and social security by permanently denying him means to ply his trade as a veterinary surgeon.viii.A declaration that the said decision is unreasonable and disproportionate weighed against its intended consequence of regulating the veterinary profession.ix.A declaration that the said decision was made ultra vires the powers and mandate of the respondents in section 6 and 7 of the veterinary Surgeons and Veterinary Para- Professional Act, 2011, as far as it purports to punish for defamation/ libel and exercise of freedom of speech.x.A declaration that Regulations 4(b), 4(c), 4(e), 12(1) (a), 12(1) (b), 12(1)(c), 12(1)(D), 39(3)(a), 39(3)(c) and 40(1) of the Veterinary Surgeons and Veterinary Para-Professionals Regulations, 2015 Legal Notice No 194 of September 18, 2015to the extent that they purport to limit the petitioner’s freedom of expression and right to fair administrative action, and to grant the 1st respondent power to act in the manner they did without regard to the provision of the constitution or Statutes, are ultra vires the parent Act and are unconstitutional.xi.A declaration that the 2nd & 3rd respondents acted in bad faith and in abuse of public trust arising out of their position as public servants.xii.A declaration that, because of the proven abuse of office and advancing personal vendetta against the petitioner under the guise of their public authority, the 2nd and 3rd respondents are unfit to hold public office.xiii.An order of certiorari bringing into the court the proceedings and decisions of March 19, 2021 in KVB Disciplinary Case No 5 of 2020 (Kenya Veterinary Board v Henry Kamagi) and any proceedings or actions taken subsequently or consequently in executing thereof for quashing, and an order consequently issue restoring the petitioner’s name into this register of veterinary surgeons.xiv.An award of general and aggravated damages in favour of the petitioner for violation of his fundamental rights by the respondents.xv.Any other relief that the Honourable Court may deem just and fair in the circumstances.xvi.An order that the respondents jointly and severally bear the costs of the petition.

The Petitioner’s case 3. The petition is supported by the petitioner’s affidavit and supplementary affidavit sworn on April 9, 2021 11th and May 2021 respectively. It is his case that, in mid-October 2020 he was served with notice of disciplinary enquiry by the respondents regarding a comment he had made in an online platform. He was required to respond to the charges against him within two weeks.

4. He promptly responded through his appointed advocates vide a letter dated October 19, 2020 seeking more information and clear particulars of the allegations leveled against him. The 1st respondent acknowledged receipt vide a letter dated November 6, 2020. On November 18, 2020 he received another letter through his advocates confirming that the particulars requested for would be sent together with the procedures for the intended disciplinary action.

5. He however received none until March 9, 2021 when he was served with detailed summons and charges requiring him to provide a written defence within two days and directing that he appears for disciplinary action on March 17, 2021 at the Kenya Veterinary Board (KVB) Offices in Nairobi in person or through his attorney. He promptly responded to the summons, requesting for further information that was necessary to enable him exercise his rights to fair hearing. He also sought extension of time to respond and for the planned hearing to be adjourned to another date.

6. The respondents failed to heed to his request and proceeded to make a determination on his case on March 19, 2020; resolving to have his name permanently struck off the register of veterinary surgeons. The said decision was only communicated on April 1, 2021 denying him a chance to appeal the decision within the statutory time limit of 14 days.

7. In his supplementary affidavit he deposed that the 2nd and 3rd respondents cannot explain away their role in violating his constitutional rights and no form of immunity was available to them this being a duty to uphold the Constitution as public officers. He further averred dismissing the claim that the KVB meets only a few times a year as no explanation was offered for the quietness between October 2020 and March 2021 only to surprise him with a two days’ notice to provide a response to the charge. There was no emergency for the matter to be handled in such a hurry between 9th March and March 17, 2021.

8. He averred that the respondents have admitted that the charge, the trial and the punishment against him were on exercise of his freedom of speech and the charge facing him was one of defamation which the respondents had no authority over. That in any event the speech was made to a group of people, had no bearing on the veterinary profession, and was a fair comment. Further that the respondent also admitted receiving his advocate’s letter requesting for extension of time and adjournment of proceedings but failed to respond nor give reasons for such failure.

9. He averred that in the absence of any response in a timely manner or at all he presumed that the extension of time and adjournment had been granted. Hence, the decision to deregister him came as a surprise when his advocate and he were preparing a defence. He averred that having instructed his advocates and informed the respondents that all communications would be channeled through him, the extension of time through his email and not to the advocate was deliberate, rendering it impossible for him to defend himself or participate in the proceedings.

10. He deposed that the respondents have not demonstrated how the posts attributed to him have undermined or in any way hindered them in discharging their mandate. He added that the right of appeal against the decision of the respondents is to the High court, and this court therefore is properly seized of the matter as the statute does not provide for the form that an appeal should take. He deponed that the respondents should comply with the interim orders issued.

11. He deposed that he filed this matter within the 14 days window for appeal to the High Court. Therefore the matter is properly before this court.

The Respondents’ response 12. The respondents filed replying affidavit and a further affidavit by Dr Indraph Mugambi Ragwa sworn on April 27, 2021 and June 9, 2021 respectively. He deposed that by dint of section 43 of the VSVP Act, the 2nd & 3rd respondents could not be sued in their personal capacities hence the claim against them should be dismissed.

13. He deposed that the Board members of the Kenya Veterinary Board (KVB), not being full time employees, do not meet regularly. They only meet at least 4 times in a year to deliberate on their agenda including approval of any committee deliberations and recommendations arising from the inquiries and disciplinary committee. It is only during such meetings that the Board makes decisions that are communicated to the affected persons. He deponed that the inquiries and disciplinary functions of the veterinary board are strictly based on sections 34, 35, 36 and 37 of the VSVP Act, VSVP Regulations and the Code of Ethics. The petitioner’s rights are also set out in section 34(1) (10) of the VSVP Act which is incorporated to the summons sent by the board.

14. He deponed that the 1st respondent pursuant to section 34(1) instituted inquiries into the conduct of the petitioner emanating from a social media post published on October 13, 2020. It concerned the Board’s deliberations and communication on disciplinary process in respect of another doctor and targeted veterinary surgeons regulated by the board. The said post was an affront to regulations 4(b), (c), 12(1) (a), (b), (c), (d), 39(3) (a), (c), and 40(1) of the code of ethics for the veterinary surgeons and veterinary paraprofessionals which required the 1st respondent’s intervention. Consequently, the petitioner vide a letter dated October 16, 2020 was invited to explain the import of the said utterances which he opted to respond to through his counsel indicating his willingness to defend himself and sought clarifications.

15. He averred that the 1st respondent issued the petitioner with the disciplinary charges and notice of summons to appear before the inquiry and disciplinary committee of the board on March 17, 2021. The summons was dated March 9, 2021. The petitioner responded through a letter dated March 11, 2021 which did not respond to the allegations against him. It instead questioned the mandate of the board and requested for two weeks to mount a response. The board nonetheless extended the period to March 15, 2021 while maintaining the initial hearing date of March 17, 2021.

16. He deponed that the matter was completed when the petitioner through his legal counsel snubbed the offer to make a final representation in addition to all correspondences that had been shared with KVB. Further that the failure by the petitioner through his counsel to respond to the factual concerns of the charges rendered the facts of the allegations uncontested and thus the board proceeded with the disciplinary process. He averred that while the inquiry remained active, the petitioner continued to make derogatory and demeaning statements against the board and its members which although not subject of the inquiry demonstrated the extent to which the petitioner disregarded the reputation of the profession and the board.

17. He averred that having not responded to the earlier charges and a determination being reached in the view of the board, there was no useful purpose served for the petitioner to continue being subject of regulation by the board which he had no regard for. Further, the board’s position was justified based on the fact that the petitioner had not shown that he was capable of the ethical behaviour required of a veterinary professional as provided for under the Act, Regulations and Code of Ethics.

18. He deponed that the KVB communicated its detailed decision to the petitioner via its letter of March 19, 2021. He further deposed that the petitioner was accorded his rights under Articles 47, 50 of Section 34(5) of the Constitution and section 34(5) of the VSVP Act. He was accorded an opportunity to defend himself but snubbed the hearing on March 17, 2021 and proceedings of March 19, 2021. It was therefore necessary for the KVB to make its decision in the earliest to avoid keeping him in a state of uncertainty over the outcome of the inquiry.

19. He avers that the petitioner is abusing the process of this court since the provisions of section 35(3) of the VSVP Act provide for a procedure of appeal against the decision of the board and not for fresh suits to be filed in the High Court. He further avers that Article 33(1) of the Constitution is not an absolute right and the petitioner’s utterances forming the basis of the disciplinary process fall within the limitations under Articles 33 (2) and (3) of the Constitution. That the disciplinary action was justifiable in an open, democratic society as contemplated by the constitution and the applicable statute and regulations, in dealing with the matter.

20. The said article, he avers does not also arise as it was never raised during the proceedings and is an ambush on the respondents. He deponed that the disciplinary process was fair and duly complied with the law. He blames the petitioner for not responding to the allegations against him. That the board followed the procedure set out in the VSVP Act, and regulations, in dealing with the matter.

21. He deponent that the petitioner was improperly invoking the jurisdiction of this court by inviting it to interrogate the merits of the decision made by the board, without adhering to the express provisions of statute, regulation and the code of conduct. Further that the decision to deregister him was carried out after thorough examination of his unprofessional conduct. He did not present a defence and also failed to accord himself protection under the VSVP Act and regulations made thereunder prior to the filing of this suit.

22. He implored the court not to grant the orders sought and noted that the court abhors entertaining processes that are regulated by statute and where applicants refuse to ventilate, utilize and exhaust the adequate remedies therein including the appeal process only to rush to court to initiate a parallel process. The petitioner had not exhausted his remedies under section 37 of the VSVP Act and this petition not being an appeal is an abuse of the court process. He averred that the conservatory orders were issued without disclosing material facts of the disciplinary process and being that the board is already functus officio; the deregistration of the petitioner having been published on April 1, 2021 it is not in a position to take any further steps.

23. In the further affidavit, he deposed that the genesis of the impugned publication by the petitioner and the subject of the disciplinary proceedings was a letter dated October 6, 2020 from the Chief Executive Officer and Registrar of the KVB. It was addressed to the secretary of the KVB on the status of the KVA chairman membership to the KVB Board. It noted that the petitioner was not in good standing with the board due to a disciplinary case as a result of professional misconduct. By dint of Section 34(11) of the Act, the petitioner could not represent the KVA membership until the case was resolved.

24. He deposed that the said letter was not malicious but was sent to Kenya Veterinary Association (KVA) to ensure compliance with Article 8. 2 of the KVA constitution which is couched in mandatory terms. It states that members of the KVA who are subject to a disciplinary action by KVB or who have been found guilty of criminal charges shall automatically be suspended from the association. Further, the lifting of the suspension could only be done after a successful application for re- admission which will be determined by the Nationals Executive Committee. On the basis of the said publication, KVB was entitled to invoke its disciplinary procedures and powers under part IV of the Act for violations of sections 40(1) & 40(2) of the Code of Ethics.

The Petitioner’s submissions 25. The petitioner filed submissions dated December 9, 2021 and supplementary submissions dated January 28, 2022 through ALP Advocates. On breach of Articles 47, 27 and 48 of the Constitution, and Section 4 of the Fair Administrative Action Act, counsel submitted that the respondents breached the said provisions of the law by ignoring his letter of March 11, 2021 wherein he had expressed his reservations about the process and the unreasonably short timelines. He had also requested for more time for the petitioner to defend himself and an adjournment of the scheduled sitting. Relying on Wiseman v Borneman [1969] 3 All ER 275; Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR and Judicial Service Commission v Mbalu Mutava & another [2015] eKLR counsel argued that the respondents’ actions amounted to unfairness, breach of rules of natural justice and a violation of Article 47 of the Constitution.

26. On breach of Article 27 of the Constitution, he submitted he had a legitimate expectation that his matter would be handled in a fair manner, and that he would be afforded the benefit of the rule of law, and the rules would be applied in a consistent manner.

27. On violation of Article 33 of the Constitution, he argued that Article 33 of the constitution entitles everyone to freedom of speech save for the limitations when the expression extends to propaganda for war; incitement to violence; hate speech; or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination specified or contemplated in Article 27(4). His alleged remarks did not fall within the limitations of the freedom of speech as provided for in the constitution. Thus, by purporting to punish him for the said remarks the respondent violated the petitioner’s fundamental freedoms and rights.

28. Counsel argued that the right recourse was for the respondent to institute a defamatory suit. Further that Regulations 4(b), 4(c), 4 (e), 12(1) (a), 12(1) (b), 12(1)(c), 12(1)(d), 39(3)(a), 39(3)(c), and 40(1) of the Veterinary Surgeons and Veterinary Para-Professionals Regulations, 2015 (VSVP Regulations) Legal Notice No 194 of September 18, 2015 are unconstitutional and ought to be declared as such to the extent that they purport to restrict the freedom of speech under Articles 33, freedom of media under Article 34, the right to fair administrative action under Article 47 and the right to access justice under Article 48 of the Constitution.

29. Relying on Indian Express Newspapers (Bombay) Pvt Ltd & Others v Union of India & Others [1985] (1) SCC 641; Edmonton Journal v Alberta ( Attorney General)[1989]2SCR 1326; Bonnard v Perryman [1981] 2Ch 269 and Hon Chirau Ali Makwere v Robert Mabera & 4 Others, Nairobi Petition No 6 of 2012 which cited with approval the decision of the Supreme Court of Zimbabwe in Mark Gova Chavunduka and Another v The Minister of Home Affairs Supreme Court Civil Appeal No 156 of 1999, he submitted that his statements as a member of the profession concerned the affairs of the veterinary profession and can only be treated as fair comments. They did not warrant the limitation to his freedom of expression.

30. On violation of Article 35 on Access to Information, and Section 4 of the Access to Information Act, counsel submitted that the respondent went quiet after a demand for information was made in October 2020. It only furnished him with some of the documents he needed on March 9, 2021 granting him only two days to defend himself. Such information was therefore not useful considering the said period.

31. He submitted that the decision by the respondent took away the petitioner’s rights under section 28 and 43 of the constitution. Striking out his name from the register of veterinary surgeons has permanently stopped him from practicing and earning a decent livelihood for himself and his family. This also stripped him and his family of dignity. He relied on Francis Coralie Mullin vs Administrator, Union Territory of Delhi ( 1981) SCR (2) 516; Dawood vs Minister of Home Affairs ( 2000) (3) SA 936 (CC) ; and, Kusow Billow Isaack v Ministry of Interior and Coordination of National Government & 3 others [2021] eKLR to buttress the argument.

32. In his supplementary submissions and on the issue of section 37 of the VSVP Act, he submitted that Articles 22, 159 and 165 of the constitution grant him the right of recourse before this court. That contrary to the respondents assertion, the VSVP Act does not provide for an internal review mechanism except for an appeal to the High court hence incoherent for them to argue that he ought to have appealed to the High Court before initiating Judicial Review before the same High Court.

33. He argues that there is no prescribed form of appeal and this court by dint of Article 165 (6) and (7) of the Constitution has supervisory jurisdiction over administrative bodies and quasi- judicial bodies like the 1st respondent. Further that the respondents have not demonstrated any prejudice occasioned to them by this petition. Further by virtue of Article 22(3) and 159 of the Constitution this court is empowered to dispense justice to the parties before it without due regard to technicalities.

34. On the jurisdiction of this court having lapsed, he submitted that his petition was commenced in a timely manner and with exceptional urgency and that he has always prosecuted the suit without delay. That section 8 of the Fair Administrative Actions Act, 2015 must be interpreted in a manner that promotes justice as envisaged under Article 47 that implements it and could not be cited as a bar to this court’s jurisdiction to dispense justice under the Constitution.

35. He submitted that the court in interpreting the said section, should have a recourse to Article 159 (2) (e) of the Constitution and determine whether such a decision to deny remedies to the petitioner would have fulfilled Article 22, 47 and other provisions of the constitution. By virtue of Rule 3 (6) of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 the 1st respondent being an officer of the court was obligated to inform the court way earlier that the 90 day period under section 8 of the Act was fast approaching.

36. He submitted that the respondent violated section 37 of the VSVP Act thus were estopped from relying on it. Having made its decision on March 19, 2021 it proceeded to issue a Gazette Notice but waited until April 1, 2021 to notify the petitioner of the decision when the right of appeal had lapsed.

37. Counsel argued that the respondent did not correspond to him in respect to the request for extension of time and video conferencing in terms of hearing. Further, the respondents did not provide any explanation on the five month gap between October 2020 when he requested for information and March 2021 when they hurriedly gave him less than 48 hours to defend himself. The argument that the board met few times a year was baseless.

38. He contended that the remarks did not disparage the respondents reputation nor incite violence against them. He argued that the petitioner was being punished for his freedom of speech and had done nothing in his professional capacity as a veterinary surgeon to warrant the punishment. According to him, the respondents relied on further remarks made by him after he had been charged which were not part of the allegations against him. He was not accorded a chance to defend himself contrary to Articles 24 and 33 of the Constitution.

39. On the liability of the 2nd & 3rd respondents, he submitted that this was a misinterpretation of section 43 of the VSVP Act and that the respondents must demonstrate that they acted bona fide and were pursuing legitimate public office duties when they issued the impugned decision. He contends that it has already been demonstrated that the respondents did not act in good faith and were thus excluded from protection under the said section.

40. He argued that Article 20 of the constitution binds on all persons including natural persons and public officers. That the 2nd and 3rd respondents being the brains behind the impugned decisions cannot run away from liability under the constitution simply by invoking a statutory provision.

The Respondents’ submissions 41. The respondent filed submissions through learned counsel Mr Thande Kuria dated January 14, 2022 raising seven issues for determination. On whether the 2nd and 3rd respondents are enjoined in this suit contrary to the provisions of sections 43 of the VSVP Act, he submitted in the affirmative. He argued that by dint of section 43 of the VSVP Act, the 2nd and 3rd Respondents cannot be sued in their personal capacities in functions performed by them in their official capacity.

42. On whether the jurisdiction of the High Court under section 37 of the VSVP Act has been properly invoked, counsel submitted in the negative. He submitted that by dint of section 37 of the VSVP Act, where a party is dissatisfied with the decision of the KVB, the recourse available is by way of appeal to the High court which appeal should be filed within 14 days of the delivery of the respondent’s verdict. It relied on Speaker of the National Assembly vs the Hon James Njenga Karume, Civil Application No NAI 92 of 1992 [NAI 40/92] (unreported).

43. He thus argued that the petitioner’s petition and notice of motion offend the doctrine of exhaustion and contravenes section 9 (2) and (3) of the Fair Administrative Actions Act. He further relied on Republic vs Kenya Revenue Authority, Commissioner Ex Parte Keycorp Real Advisory Limited (2019) eKLR and Republic vs JP Maiywo & 2 others sued as the Executive Director, Treasurer and Secretary respectively of Central Kenya Conference (CKC); Moses Nyankuru & 23 others (Interested Parties) Exparte Humphrey Nguma Macharia & another [2019] eKLR.

44. The petitioner failed to apply for exemption from the obligation to exhaust internal remedies nor demonstrate exceptional circumstances for exemption to file an appeal to the High Court as envisaged in Dawda K Jawara vs Gambia ACnMPR 147 /95- 149/96.

45. On whether the jurisdiction of the court has expired under the provisions of section 8 of the Fair Administrative Actions Act, it affirmed that the petitioner’s case is predicated upon violation of Article 47(1) of the Constitution by the respondents. Relying on Section 8 of the Fair Administrative Actions Act, Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR; In the matter of the Interim Independent Electoral Commission ( Applicant) , Constitutional Application Number 2 of 2011; and, Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) he argued that litigation founded on Article 47 is a time bound type of proceeding which the court must hear and determine within the time frames set by the statute. Hence the jurisdiction of this court has lapsed by effluxion of time and it must down its tools.

46. On whether the respondent’s disciplinary process adhered to Articles 47 and 50 of the Constitution as well as Section 35 of the VSVP Act, he submitted that the genesis of the proceedings before the disciplinary committee was the infraction of section 6(2) (g) of the VSVP Act, regulation 43 of the code of ethics and section 12(1) of the VSVP regulations. The petitioner was accorded a preliminary opportunity to respond to the allegations as detailed in its replying affidavit but declined to respond. He dismissed the petitioner’s defence that he was exercising his right to freedom of expression and argued that the same could not be sustained as it is not an absolute right by dint of Article 33 (3) of the Constitution. He relied on the decision of Lord Coleridge CJ in Bernard & Another v Periman (1891-4) ALL ER 965. The substance therein was the publication of information that was disparaging to the members of the board of KVB who are also members of KVA.

47. He argued that disciplinary action taken against the petitioner was justified as he did not deny issuing the memorandum which constituted professional misconduct and attracted disciplinary proceedings save for his contention that the board had no mandate to investigate and punish him for libel. That there was also no evidence by the petitioner challenging the conviction for his wrong doing and punishment meted out on him by the KVB pursuant to section 35 of the VSVP Act.

48. Counsel contended that the petitioner was given chances to file his documents including submissions. Secondly he had counsel representing him yet he did not file the documents required. Despite appearing before the board on March 19, 2021 the matter never took off. He submits that the petitioner was accorded a hearing and there was no requirement for natural justice to be upheld. A party must not only be heard through viva voce evidence and they had both options which they ought to have utilized.

49. Relying on the Court of Appeal decision in Republic vs Kenya National Examinations Council ex parte Gathenji & others Civil Appeal No 266 of 1996, counsel argued that the orders sought were orders of judicial review in nature and the court should not issue them under the circumstances of this case for the reasons envisaged therein. Further while relying on Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd Civil Appeal No 185 of 2001, counsel argued that the petitioner’s case did not conform to the said decision and cannot be sustained.

50. On whether the respondent’s disciplinary process envisaged in the VSVP Act met the constitutional muster, he submitted that while placing reliance on the provisions of section 42 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya that if the members who heard the disciplinary cause were the same persons who constituted the Tribunal the court cannot interfere as the said decision is not rendered unlawful. The regulatory procedure complained of by the petitioner as set out in the VSVP Act, the regulations and the code of ethics is not unique to KVB functions and are applicable to many other regulators in Kenya. The courts have also affirmed their constitutionality in case like Alnashir Popat & 7 others v Capital Markets Authority [2020] eKLR.

51. He relied on Craig v South Australia (1995) HCA 58 for the argument that the respondent acted within the statutory mandate and he contended that the petitioner failed to demonstrate that there was a jurisdictional error on the part of the respondent. That there was evidence showing that the full board approved the decision as the law required under the statute, the rules and the code of ethics. Further that the petitioner failed to demonstrate that the respondent’s decision was tainted with unreasonableness and irrationality.

52. Relying on Noratanman Courasia v M R Murali; PJ Ratnam v D Kanikaram, [1964] 3 SCR 1; and, VC Rangadurai v D Gopalam [1979] 1 SCC 308 counsel urged the court to be persuaded and refrain from interfering with the finding of facts by the respondent on issues of professional misconduct, and to find that the Inquiry and Disciplinary Committee and the KVB applied the right standard in finding the petitioner herein guilty of professional misconduct under the circumstances of the case.

Analysis and determination 53. Having considered the parties submissions, authorities cited and the law, I find the following to be the issues for determination:i.Whether the jurisdiction of this court has been properly invoked by dint of Section 37 of the VSVP Actii.Whether the court’s jurisdiction has lapsed by dint of Section 8 of the Fair Administrative Actions Actiii.Whether the 2nd and 3rd respondents are properly enjoined to this suitiv.Whether the petitioner’s rights under Articles 47, 27, 33, 28, 48, 43, 50, and 35 have been violated by the respondentsv.Whether the reliefs sought should be granted

i.Whether the jurisdiction of this court has been properly invoked by dint of Section 37 of the VSVP Act 54. Section 37 of the VSVP Act provides for an appeal against a disciplinary action. It provides;“37(1) any person aggrieved by-a.The removal of his name from the register;b.The suspension of or other adverse action in relation to his registration or annual license;c.The period of any such suspension;d.A refusal to restore his name on the register;e.Any other decision of the Board under that part,May appeal to the High Court against the decision of the Board.”Section 9 of the Fair Administrative Actions Act, 2015 heavily relied upon by the respondent as the basis for this court’s jurisdiction being ousted provides as follows“9. 9. Procedure for judicial review1. Subject to subsection(2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.2. The High Court or a subordinate Sunder sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.3. The High Court or a subordinate Court shall, if it not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).4. Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interested of justice.5. A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal. ”

55. In other words, the respondent is submitting that the petition offends the doctrine of exhaustion. The 5- bench judge in the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR had this to say on where the question of exhaustion of administrative remedies arises. It stated;“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR.

56. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.

57. The respondent submitted that the petitioner offended the doctrine of exhaustion and Section 9 (2) and (3) of the Fair Administrative Actions Act, 2015 on the premise that Section 37 of the VSVP Act states that a party aggrieved may appeal to the High Court against the decision of the Board. The petitioner submitted that by virtue of Articles 22, 159 and 165 of the Constitution he had recourse to this court and the VSVP Act does not provide for an internal review mechanism except for an appeal to the High Court. He also argued that there is no prescribed form of the appeal and that this court has supervisory jurisdiction over quasi- judicial bodies like the 1st respondent.

58. He argued that Articles 22(3) and 159 of theConstitution empower this court to dispense justice to parties without undue regard to procedural technicalities. I agree with the petitioner that the said Act does not provide for an alternative forum. The respondent has failed to prove to this court any internal mechanisms established by the said Act.

59. Article 165 (3) (b) of the Constitution, makes it explicit that this court has the jurisdiction to handle matters on breach or violation of fundamental rights and freedoms. This was also echoed in court in Katiba Institute vs Presidents Delivery Unit & 3 others [2017] eKLR where Chacha J, stated that,“… This Court has unlimited jurisdiction under Article 165(3) (b) to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. The respondents’ contention that the petition is premature is therefore unsustainable.”

60. The petition herein is premised on breach of fundamental rights and freedom in Articles 47, 27, 33, 28, 48, 35, 43 and 50 of the Constitution. The VSVP Act only talks about the aggrieved party appealing to the High court. It does not make mention of any other alternative forum. This is a petition founded on breach of fundamental rights and freedoms.

61. Article 165 (6) of the Constitution provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi- judicial function, but not over a superior court. The respondent was exercising a quasi- judicial function and therefore is amenable to be supervised by this Court by virtue of that Article.

62. It is also important to note that Article 159 (2) (d) of the Constitution provides that in exercising judicial authority, the courts and tribunals shall be guided by the following principles- (d) justice shall be administered without undue regard to procedural technicalities. This issue being raised is for sure a procedural technicality. In my view, this court is clothed with the jurisdiction to handle this petition and the jurisdiction of this court has been properly invoked.

ii.Whether the court’s jurisdiction has lapsed by dint of Section 8 of the Fair Administrative Actions Act 63. The respondent argued that the proceedings brought by the petitioner are purely on Article 47 of the Constitution as read with section 4 of the Fair Administrative Actions Act, 2015. That by dint of Section 8 of the said Act, these are time bound proceedings which are supposed to be determined within ninety days of filing of the petition. That since that has not been complied with the jurisdiction of this court has lapsed by effluxion of time and the court must down its tools.

64. Counsel for the petitioner submitted that the petition was filed in a timely manner and has always been prosecuted without delay. He urged this court to have recourse to Article 159(2) (e) of the constitution and determine whether denying him remedies would have fulfilled Articles 22, 47 and other constitutional provisions. He argued that the respondent violated section 37 of the VSVP Act and cannot rely on it, having notified the petitioner of the verdict after the lapse of the 14 day period for appealing.

65. The case of Owners of Motor vessel Lillian S v Caltex Oil (Kenya) Limited [1989] KLR1 is the locus classicus case on jurisdiction. The court therein stated that;“... Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited...”

66. Similarly, in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited and 2 Others [2010] eKLR, the Court held that: -“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of Law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of Law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a Court or tribunal by statute law”.

67. The petition herein is not a review or an appeal against a decision by an administrative body, the respondent herein. It is a matter that is premised on breach of fundamental rights and freedoms. In any event, the 14 day period for appeal lapsed due to the respondents’ doing and I agree that the respondent cannot therefore rely on it as the basis for this court to deny the petitioner the remedies sought. Further, it is also important to note that the basis of the petition is not only Article 47 of the Constitution as read with Section 4 of the Fair Administrative Actions Act, 2015. Should we go by the respondent’s contention, what happens to Articles 27 (1), 33, 35, 28, 48, 43 and 50 of the Constitution? Are these Articles also time bound? In my view that is not the case and the argument by the respondent on this is not sustainable. Section 8 of the Fair Administrative Actions Act, 2015 is not applicable to this matter.

iii. Whether the 2nd and 3rd respondents are properly enjoined to this suit 68. Counsel has argued that the 2nd and 3rd respondents are improperly enjoined to this suit by dint of section 43 of the VSVP Act. The petitioner contends that the 2nd and 3rd respondents cannot rely on that section as they acted in bad faith. He has finally argued that by dint of Article 20 of the Constitution, they are also bound.

69. Section 43 of the VSVP Act provides as follows;“43. No matter or thing done by a member of the Board or by any officer, employee or agent thereof shall, if the matter or thing is done bona fide in the execution of any of the functions, powers or duties of the Board, render the member, officer, employee or agent personally liable to any action, claim or demand whatsoever arising therefrom.”

70. It is clear that from the said section of the Act, the 2nd and 3rd respondents cannot be held personally liable. They were discharging their duties as members of the Board. The petitioner has also not demonstrated that they acted maliciously.

iv. Whether the petitioner’s rights under Articles 47, 27, 33, 35, 28, 48, 43 and 50 have been violated by the respondents 71. The petitioner argued that his constitutional rights under the aforementioned Articles of the Constitution were contravened by the respondents. I have considered the rival arguments on the alleged violations of these constitutional rights.

72. The Constitution provides for the right to fair administrative action. Article 47(1) provides:“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

73. In Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another [2018] eKLR, the Court observed that;“35. The Constitution is the Supreme law of the Republic and decrees as such in Article 2(1). It binds all persons and all state organs in the course of performing their duties. The provisions in Article 47 to the extent that they require that an administrative action to be expeditious, fair, lawful and reasonable, and that where such an action adversely affect a person’s right or fundamental freedom, the affected person is entitled to be given written reasons for the action, is a constitutional control over administrative bodies to ensure that they do not abuse their power and that individuals concerned receive fair treatment when actions are taken against them. Failure to observe this constitutional decree, for all intent and purposes, undermines the rule of law and the value of Article 19(1) of the Constitution which states that the Bill of Rights is an integral part of Kenya’s democratic state as the framework for social, economic and cultural policies...”See also President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1; Judicial Service Commission v Mbalu Mutava & another [2014] eKLR; Section 4 of Fair Administrative Actions Act.

74. Sections 6 and 7 of the VSVP Act provide for the objects and functions of the 1st respondent. Among the functions outlined in section 6(f) and ( g) are: formulate and publish a code of ethics which shall be binding on all registered persons, and to regulate the professionals conduct of registered persons and take such disciplinary measures as may be appropriate to maintain proper professional and ethical standards. On inquiries and discipline, section 34 of the VSVP Act, subsection (1) provides: that Board may, either on its own motion or as a result of a complaint or charge or allegation lodged with it by any person, institute an inquiry into the conduct of a registered person for the alleged act or omission in a veterinary practice to which this Act applies or in contravention of this Act or regulations made thereunder.Further, regulations 4(b), 4(c), 4 (e), 12(1) (a), 12(1)(b), 12(1)(c), 12(1)(d), 39(3)(a), 39(3)(c), and 40(1) of the Veterinary Surgeons and Veterinary Para-Professionals Regulations, 2015 ( VSVP Regulations) Legal Notice No 194 of September 18, 2015 provide as follows 4. “The guiding principles for the ethical conduct of veterinary surgeons and veterinary para-professionals shall be to— (b) maintain professional conduct that promotes the reputation of the veterinary profession; (c) avoid any act that may in any way bring the image of the veterinary profession into disrepute; (e) be conversant with, and abide by, all laws affecting the profession; 12. (1) A veterinary surgeon or veterinary para-professional shall always seek to foster and maintain good understanding with and among colleagues and shall not— (a) by action or implication, ridicule a colleague; (b) slander or libel a colleague; (c) conduct or carry himself or act in a manner that is likely to bring a colleague and the veterinary profession into disrepute; (d) encourage dispute which may damage the reputation of the veterinary profession; 39 (3) A veterinary surgeon or veterinary para-professional shall ensure that any publicity or advertising he undertakes— (a) is factual and informative to the clients and the general public; (c) is not of a character likely to bring the profession into disrepute; and 40. (1) A veterinary surgeon or veterinary para-professional shall in the use of all forms of media, demonstrate high standards of sensitivity, etiquette and responsibility and shall not use language, pictures or other thing that may bring disrepute to a colleague or to the profession.”

75. The reason for setting out the said sections verbatim is that the petitioner has urged this court to declare them unconstitutional as shall be discussed later in this analysis and further that the acts of the 1st respondent were ultravires. Based on the foregoing, I do not agree that they were acting ultravires.

76. On fair hearing, Article 50(1) of the Constitution provides“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal. Sub- Article (2) (c), (f), (j), and (k) provide for the right to have adequate time and facilities to prepare a defence; to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed; to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; and, to adduce and challenge evidence”.

77. Upon analysis of the material before this court it is clear that the petitioner was issued with two summons requiring him to appear before the board’s committee for hearing. The summons outlined the accusations against him. He never responded to any of the accusations. He engaged the board in correspondence in respect of issues he raised and which were responded to. When he appeared for the hearing the matter could not take off at his instance.

78. In the case of Union Insurance Co of Kenya Ltd vs Ramzam Abdul Dhanji Civil Application No Nai 179 of 1998 the Court of Appeal held:““whereas the right to be heard is a basic natural justice concept and ought not to be taken away lightly, looking at the record before the court, the court is not impressed by the point that the applicant was denied the right to defend itself. The applicants were notified on every step the respondents proposed to take in the litigation but on none of these occasions did their counsel attend. Clearly the applicant was given a chance to be heard and the court is not convinced that the issue of failure by the High Court to hear the applicant will be such an arguable point in the appeal. The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it.”

79. It is clear the petitioner was given opportunities to articulate his case but he squandered them. The right to be heard is the opportunity to be heard and hearing is not necessarily by way of viva voce evidence. The delays experienced in the matter before the board were at the petitioner’s instance. The board tool action as a result. The petitioner cannot claim not to have been given an opportunity to be heard. He should have appealed the decision if dissatisfied. I find that the right to be heard and the right to fair hearing were not infringed.

80. Regarding Article 27 (1) of the Constitution provides for the right to equality and freedom from discrimination. In James Nyasora Nyarangi & 3 others v Attorney General [2008] eKLR Nyamu J while discussing discrimination stated:“Discrimination which is forbidden by the Constitution involves an element of unfavourable bias. Thus, firstly on unfavourable bias must be shown by a complainant. And secondly, the bias must be based on the grounds set out in the Constitutional definition of the word “discriminatory” in section 82 of the Constitution.Both discrimination by substantive law and by procedural law, is forbidden by the constitution. Similarly, class legislation is forbidden but theConstitution does not forbid classification. Permissible classification which is what has happened in this case through the challenged by laws must satisfy two conditions namely:-(i)it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and(ii)the differentia must have a rational relation to the object sought to be achieved by the law in question.(iii)the differentia and object are different, and it follows that the object by itself cannot be the basis of the classification.’’

81. In Reuben Njuguna Gachukia & another v Inspector General of the National Police Service & 4 others [2019] eKLR, while declining to find that the petitioner’s right under article 27 of the Constitution was trampled upon, Okwany J, cited with approval the case of John Harun Mwau v Independent Electoral and Boundaries Commission & Another [2013] eKLR, where the court made reference to Article 27 of the Constitution, thus;“(i)it must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the constitution.”

82. Based on the above case, it is evident that for the petitioner to succeed on the issue of discrimination, they must prove unfavorable bias and the said bias must be based on the grounds set out in the Constitution. A point to note is that discrimination does not act in isolation; to prove it, a comparison must have been made. In the case herein, the petitioner has not adduced any evidence to show that he was treated any different from other petitioners. I therefore do not agree that this right was contravened.

83. Article 35 (1) of the Constitution of Kenya provides that every citizen has the right of access to information held by the state and information held by another person and required for the exercise or protection of any right or fundamental freedom. Section 4 of the Access to information Act echoes the wording of Article 35 (1) of the Constitution. It further provides that every citizen’s right to access information is not affected by any reason the person gives for seeking access or the public entity’s belief as to what the persons reasons for seeking access are. Such information the said section provides, shall be provided expeditiously.

84. Section 5 of the said Act provides for the information to be disclosed by public entities, while Section 6 provides for circumstances where the right of access to information is limited. The petitioner argued that this right was violated. He has however only stated but not adduced evidence to demonstrate how the said right has been infringed upon. Section 107 of the Evidence Act, Cap 80 Laws of Kenya is explicit that whoever alleges a fact must prove. This is also well expended in Evans Otieno Nyakwana v Cleophas Bwana Ongaro Civil Appeal (Homabay) No 7 of 2014, (2015) eKLR where the court stated;“…As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act (Chapter 80 of the Law of Kenya), which provides:“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists…”

85. In any event he admits that he was furnished with the documents save for them being given to him late in the day thus making it difficult for him to use them. In my view there was no breach of Article 35 of the Constitution.

86. Article 33 of the Constitution, provides;“1. “Every person has the right to freedom of expression, which includes;-a.Freedom to seek, receive, import information or ideas;b.Freedom of artistic, creativity and;c.Academic freedom and freedom of scientific research

2. The right to freedom of expression does not extend to-a.Propaganda for war;b.Incitement to violencec.Hate speech ord.Advocacy of hatred thati.Constitutes ethnic incitement, vilification of others, or incitement to cause harm, or;ii.Is based on any ground of discrimination specified or contemplated in Article 27 (4)

3. In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”

87. The court in the case of Robert Alai v The Hon. Attorney General & another [2017] eKLR, discussed at length Article 33 on the Freedom of expression as follows;“30. Kenya is a democratic state with a democratically elected leadership. The people of Kenya have a democratic right to discuss affairs of their government and leadership because of their right to freedom of expression guaranteed by Article 33 of the constitution. They cannot be freely expressing themselves if they do not criticize or comment about their leaders and public officers.

31. Article 33(2) limits this freedom of expression and any expression that is not in accord with Clause (2) is limited…… Indeed a democratic society cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions………

33. More importantly, public officers have to tolerate criticism in an open and democratic state because people usually exercise the right granted to them by the constitution. A legislation’s purpose should not be to suppress this right.”

88. Article 24 of the Constitution provides instances when a constitutional right may be limited. Article 24(1) provides:(1)A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including- (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of limitation;(c) the nature and extent of limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purposes and whether there are less restrictive means to achieve the purpose.

89. Article 24(3) of the Constitution, makes it clear that the state or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied. It is thus evident that the onus of proving the limitation or the justification for the limitation is on the party who wants the fundamental right or freedom limited. This was well echoed in R vs. Oakes [1986] I R. CS.

90. In the Malawian case of Harry Nakandawire & Another, Criminal case number 5 of 2010, in acquitting the accused, the court stated;-“It must not be forgotten that our constitution guarantees freedom of speech/expression, opinion, conscious and association. Freedom of speech/expression should not, in our view, be restricted to speaking about only those things that delight the power that be. It must extend to the freedom to speak about even those things that have the capacity/potential to displease, indeed annoy. Persons, institutions should not therefore be barred from expressing themselves on any issue merely because doing so will discomfort certain quarters for the remedy in such instances, is not to bar expression but to allow those offended to pursue civil suits…People must be free to hold and impact even unpopular and for minority opinions…”Freedom of expression does not entitle one to make abusive utterances. Criticism is not abusive.

91. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity respected and protected. Human dignity is a right that is highly respected and protected by the Constitution. It is the base on which other rights are founded. The right complained of here is the right to be heard and right to fair hearing which I have already discussed. How did this affect the right to human dignity? There are many decisions on this issue.

92. The court in the case of Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR it held that:“50. As regards the right to dignity, in Ahmed Issack Hassan vs. Auditor General [2015] the Court held that:

“…the right to human dignity is the foundation of all other right and together with the right to life, forms the basis for the enjoyment of all other rights…put differently thereof, if a person enjoys the other rights in the Bill of rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated”. See Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) SCR (2) 516. ”

93. In Francis Mulomba Nguyo v Nation Media Group Limited & 2 others [2021] eKLR, Korir J, stated with regards to article 28 of the constitution;“47. In regard to the claim that the Petitioner’s right to human dignity was violated by the respondents’ actions, I rely on the statement in Dawood v Minister of Home Affairs, [2000] (3) SA 936 (CC), as cited at paragraph 132 of the Supreme Court case of Martin Wanderi & 106 others v Engineers Registration Board & 10 others [2018] eKLR, that:

“Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. . . dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.” 48. The Supreme Court interpreted the cited paragraph to mean that “the right to dignity [is] at the core of a violation of other fundamental rights and freedoms.” In other words, where it is established that a right under the Constitution has been infringed upon, then the infringement of the right to human dignity under Article 28 is highly likely to have also occurred. In this case, I have found that the Petitioner’s right to privacy was infringed upon by the actions of the respondents and it therefore follows that his right to human dignity was also violated.

94. The petitioner argued that this right to human dignity has been affected as a result of the verdict. Further that his reputation will be affected among his peers. He adduced no evidence to prove to the court all this. The court does not work on assumptions. I do not find any proof of violation of this right.

(v) Whether the reliefs sought should be granted. 90. I have found that the petitioner’s right to be heard and to a fair hearing were not infringed due to his contribution to the uncalled for delays and unnecessary issues. However, for the ends of justice to be achieved I find that it is only fair that the petitioner appears before the respondent board for the matter to be heard afresh. I make this finding well aware that this court on April 19, 2021 issued conservatory orders in respect of the respondent’s decision of March 19, 2021, so the petitioner has not suffered any loss. As a result thereof, I issue the following ordersi.The names of the 2nd and 3rd respondents are struck off from this petition with costs.ii.The respondent’s decision of 19th March, 2021 in KVB Disciplinary case No 5 of 2020 (KVB v Henry Kamagi) is hereby set aside.iii.The petitioner to file his response to both summons within 14 days before the Board.iv.Thereafter the respondent to hear the matter within 30 days of the response by the petitioner. No adjournment requests to be entertained.v.The conservatory orders issued herein on April 6, 2021 are vacated.vi.The Petitioner and 1st respondent to bear their own costs.Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 19THDAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT