Kayina v Uganda Medical & Dental Practitioner's Council (Miscellaneous Cause 163 of 2024) [2025] UGHCCD 15 (14 February 2025)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **CIVIL DIVISION**

### **MISCELLENEOUS CAUSE NO: 0163 OF 2024**

**DR. KAYINA VINCENT::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

## **UGANDA MEDICAL AND DENTAL PRACTITIONER'S COUNCIL:::::::RESPONDENT**

## *BEFORE: HON. JUSTICE SSEKAANA MUSA*

#### **RULING**

The Applicant brought this application under Section 36 (1) (a) and (c) of the Judicature Act Cap 13 Laws of Uganda; Rules 3, 6, and 7 of the Judicature (Judicial Review) Rules 2009) Articles 42 and 28 (1) of the 1995 Constitution of the Republic of Uganda seeking;

- a. A declaration that the respondent's impugned decision of suspending the Applicant from his service for a period of 18 months (one year and 6 months) with effect from 1st July 2024 is null and void and illegal for depriving the Applicant's right to a fair hearing contrary to articles 28, 42 and 44 of the Constitution and in contravention of the rules of natural justice. - b. A prerogative order of certiorari doth issue to quash and set aside the Respondent's decision suspending the Applicant's practicing license for a period of 18 months. - c. An order reinstating/restoring the applicant's practicing license /in his service. - d. An order of Mandamus directing the respondent to pay the applicant general damages caused to him by its decision.

e. An order directing the Respondent to make a public announcement in the newspapers of wide circulation apologizing and restoring his license.

*The grounds in support of the application are briefly set out in the Notice of Motion and the affidavit in support of the application sworn by the applicant-DR. KAYINA VINCENT that;*

- a. The applicant, a medical doctor was from 2008 to 2021 an employee of Mengo Hospital heading the peadiatric ward and, on the 14th day of February 2019, while in the course of his employment, Mengo Hospital admitted a preterm baby who had congenital abnormalities and later kidney failure. - b. That a team of specialists advised the baby's parents to take the baby to Nsambya Hospital for dialysis because this was the only hospital where it was done at the time, but the parents rejected and instead opted for Mulago hospital. - c. That at Mulago hospital, the baby was re-operated on but died soon after because he vomited and chocked due to poor management at Mulago hospital. - d. That the parents of the baby sued Mengo hospital for mismanaging their baby vide HCCS 116 of 2019 and the applicant was called as a witness for Mengo Hospital since he knew the facts of the case being the head of pediatric ward then. The matter was later referred to the respondent to handle the matter as a specialized court. - e. That during the inquiry/hearing which was conducted by the Uganda Medical and Dental Practitioner's Council (Respondent), while the applicant was testifying on behalf of Mengo Hospital, the complainant stood up and asked the respondent to cancel the applicant's practicing license and chase him from all his employments. - f. That without being heard, a ruling was passed and among other orders, the respondent suspended the applicant's practicing license for a period of 18 months hence this application for judicial review.

That the respondent filed an affidavit in reply. The same was sworn by Associate Professor Okullo Joel-the chairperson of the Respondent and they stated that;

- a. That the baby was not born with the complications and was not put on oxygen as described by the applicant. - b. That the respondent never received any reference from High court in regards to the matter at hand and that all they received was a complaint from Kimbugwe Denis the baby's father and all their inquiries and findings were based on that and not from anywhere. - c. That upon receipt of the complaint, the respondent wrote to the director Mengo hospital and the applicant requesting their response regarding the alleged professional misconduct in managing the complainant's baby and the said letter was received by the applicant on the 17th day of November 2021. - d. The respondent further denied the applicant's allegations of not being invited for the inquiry into medical negligence by medical personnel of Mengo Hospital in treating Kimbugwe Denis' new born baby leading to his death. That the applicant was not just a witness for Mengo hospital. - e. That the applicant was duly invited for the inquiry on 12th April 2024 and was required to file a response by letter dated 25/10/2024 which he did not do. - f. The respondent further stated that the applicant was formally summoned to attend the inquiry. - g. That the matter is that the applicant was invited for the inquiry, he indeed turned up and he was heard. The decision was made basing on the entire evidence from all people who appeared and all who managed the deceased baby.

The applicant raised the following issues for determination of the matter.

*1. Whether the respondent's procedure and the resultant decision to suspend the applicant's certificate was lawful*

## *2. What remedies are available to the parties.*

The applicant was represented by *Counsel Kato Paul Ssemengo and Karemani Veronica* while the respondent was represented by *Counsel Nansukusa Rebecca*

Both parties filed written submissions as directed and the same have been considered in this ruling.

## *DETERMINATION*

## *Whether the respondent's procedure and the resultant decision to suspend the applicant's certificate was lawful*

Counsel for the applicant submitted that the applicant came to court challenging the process leading to suspension of his licensing contending that the process was unlawful, improper and tainted with procedural irregularities.

That the basis of Judicial review is not concerned with the decision in issue but with the decision making process.

Counsel for the applicant further submitted that under sections 34(2),(3) and (4) of the Uganda Medical and Dental Practitioners Act cap 300, the process is spelt how on how an inquiry is to be conducted by the respondent.

That a notice in writing signed by the registrar indicating time and place of the inquiry should be issued and personally served on to the person who is the subject of the inquiry at least 21 days prior to the date of inquiry and the person shall be entitled to be represented by an advocate of his choice in respect of the inquiry.

Counsel for the applicant submitted that the applicant was never formally summoned and or served with summons or invitation in person to appear for the inquiry. That the documents from which the respondent allege to have been formal invitations and or summons to the applicant ie annexure C and D are not proper summons and worse still, they are not addressed specifically to the applicant.

That the said summons were never served personally to the applicant but rather to his previous employer and they also fall short of the 21 day rule within which the applicant was to be required to appear for the inquiry. That the applicant merely appeared as a witness for Mengo hospital and not as a main party in the inquiry. Counsel invited this honorable court to declare the respondent's decision to

suspend the applicant's practicing license irregular, null, and void and depriving the applicant to his right to affair hearing among other orders.

*On the other hand counsel for the respondent* submitted that there was no illegality exhibited in the respondent's inquiry process because the respondent was formally summoned.

That both notices dated 25th October 2021 and 12th April 2024 were all addressed or in respect to "the inquiry into the medical negligence by Medical personnel of Mengo hospital in treating Kimbugwe Denis' new born baby leading to his death". That the notices were addressed to a registered practitioner and this could not be Mengo hospital but Dr. Kayina-the applicant

That the respondent was the subject of the inquiry and that is why he was even prepared together with the other doctors in preparation for the said inquiry as per annexure "E" to the affidavit in reply. That there was no procedural impropriety committed by the respondent entitling the grant of this application.

That the applicant was heard together with all his medical personnel who managed the now deceased baby on the 6th May 2024 before the respondent. That at the inquiry, the applicant was treated fairly and all the rules of natural justice were observed. The respondent prayed for dismissal of the application with costs.

## *Analysis.*

The applicant filed this application for judicial review challenging the respondent's procedure and resultant decision of suspending his practicing license. The applicant alleges that the process leading to suspension of his license was unlawful, improper and tainted with procedural irregularities.

It is trite law that judicial review is not concerned with the decision in issue but rather with the decision making process.

The main rationale for judicial review is to ensure that individuals appearing are given fair treatment by and before authorities there are subjected to and not to violate their rights.

Article 28(1) of the 1995 Constitution of the Republic of Uganda provides and guarantees the right to a fair hearing before an independent and impartial court or tribunal established by the law. The constitution further in article 42 provides any person appearing before any administrative official or body has a right to be treated fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.

In *Council of Civil Service Union v. Minister for the Civil Service [1985] AC 374***,** court held that it's a fundamental principle of natural justice that a decision which affects the interests of any individual should not be taken until that individual has been given an opportunity to state his or her case and to rebut any allegations made against him or her.

Public bodies just like the respondent, may have their own internal mechanisms of handling matters without necessarily following the fair hearing as strictly envisaged in courts. In the case of *Kenya Revenue Authority vs Menginya Salim Murgani Civil Appeal No. 108 of 2009***.** The Court of Appeal delivered itself as follows; *"There is ample authority that the decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed".*

Under sections 34(2) and (4) of the Medical and Dental Practitioners Act, the council in this case the respondent is obligated to issue a notice in writing signed by the registrar indicating the date, place and time of the inquiry. The said notice shall be personally served to the person whose conduct is the subject of the inquiry at least 21 days prior to the date of inquiry. The person whose conduct is the subject of the inquiry shall be entitled to be present and to be represented by an advocate of his or her choice in respect of the inquiry.

In the present case, the applicant alleges that he was not formally served by the summons or invitation in person to appear. He states that he only attended the inquiry of the respondent as a witness for Mengo hospital. Counsel for the respondent on this issue submitted that the applicant was formally summoned/invited because both notices dated 25th October 2021 and 12th April 2024 were all addressed or in respect to "the inquiry into the medical negligence by Medical personnel of Mengo hospital in treating Kimbugwe Denis' new born baby leading to his death and this implied the applicant.

The court respectfully disagrees with the submissions of counsel for the respondent on this issue because annexure "C" does not meet the required standard of a

"summon" or an "invitation to attend an inquiry" within the meaning of Section 34 (2) and (4) of the Medical and Dental Practitioners Act.

A close look at annexure "D" shows that the same is addressed to the Medical Director Mengo Hospital and neither is the applicant's name mentioned anywhere in the said summons nor in its body. Basing on the nature of the summons and or invitation from the respondent, there was no way the applicant would have known about the case specifically against him, prepare for the same and better still engage the services of a lawyer as stipulated under the law.

It is a settled principle in that the purpose of summons is to let the other party know of the case against him and also enable them take the right course of action. The summons issued by the respondent were defunct of the above in that they were not specifically addressed to the applicant and as such, he was unable to know of the pending a case against him and better still prepare for the same.

Further still, the Uganda Medical and Dental Practitioners act requires such summons to be personally served on to the respondent.

It is an un disputed fact that the respondent served the Mengo Hospital with the said summons/invitation and not the respondent personally. This was so even not considering the applicant's submissions that he had indeed resigned from Mengo hospital at the time of the said service.

The respondent made no diligent efforts to personally serve the applicant with the said summons/invitation. Given the seriousness of the matter, the respondents ought to have looked for the respondent or at least served him through a known email or phone contact.

The fact that the respondent simply served the applicant's employer simply gives water to the submissions of counsel for the applicant that indeed the applicant was not the main party in the proceedings as the same was Mengo Hospital. That the applicant was simply a witness and no wonder the respondent made no effort to look for him to effect service personally to him.

Furthermore, the Uganda Medical and Dental Practitioners act mandates that the said summons shall be served personally to the person whose conduct is subject of the inquiry at least 21 days from the date of inquiry.

The summons/invitation in issue, despite not being personally addressed or served personally to the applicant were served to his employers 16 working days to the date of inquiry which is also far below the period envisaged in Section 34 (2) of the Act. The respondent's annexures F and H , the applicant simply signed as a person attending the proceedings and never was it indicated anywhere in any of these proceedings that the applicant was the subject of these proceedings.

In *Twinomuhangi vs Kabale District and others [2006] HCB130*, Court held that; "Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in the non-observance of the rules of natural justice or to act with procedural fairness towards one affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.

This court therefore finds that the procedure of the respondent leading to the decision to suspend the applicant's Medical License was tainted with procedural irregularities, illegalities and above all failed to adhere to the principles of fair hearing and natural justice.

This issue is therefore resolved in the affirmative

# *What remedies are available to the parties?*

The grant of judicial review remedies remains discretionary and it does not automatically follow that if there are grounds of review to question any decision or action or omission, then the court should issue any remedies available.

The court may not grant any such remedies even where the applicant may have a strong case on the merits, so the courts would weigh various factors to determine whether they should lie in any particular case**.** See *R vs Aston University Senate ex p Roffey [1969] 2 QB 558.*

The primary purpose of certiorari is to quash an *ultra-vires* decision. By quashing the decision *certiorari* confirms that the decision is a nullity and is to be deprived of all effect. See *Cocks vs Thanet District Council [1983] 2 AC 286.*

*Certiorari* is the means of controlling unlawful exercises of power by setting aside decisions reached in excess or abuse of power. See *John Jet Tumwebaze vs Makerere University Council and Another HCMC No. 353 of 2005*

The further effect of granting an order of certiorari is to establish that a decision is ultra vires, and set the decision aside. The decision is retrospectively invalidated and deprived of legal effect since its inception.

The applicant has prayed for the quashing to the decision of the respondent suspending his service for a period of 18 months (one year and six months) with effect from 1st July 2024 be quashed.

The applicant has satisfied the court that the decision of the respondent was made without according the applicant a fair hearing. The said decision/order passed by the respondent suspending the applicant from his service for a period of 18 months with effect from 1 st July 2024 is hereby quashed.

The applicant is awarded costs of this application.

I so order.

*Ssekaana Musa Judge 14th February 2025*