Kenya Hospital Association t/a Nairobi Hospital v Medical Practitioners and Dentists Board, Professional Conduct Committee, Bartilol Kigen, Gerald Moniz & John Paul Odero (On behalf of the late Sylbil Masinde Odero (deceased) [2018] KEHC 7996 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  398 OF 2016

IN THE MATTER OF: AN APPLICATION BY THE  APPLICANT, THEKENYA

HOSPITAL ASSOCIATION  T/A THE NAIROBI  HOSPITALFORLEAVE

TO APPLY FOR JUDICIAL REVIEW BY WAY OF ORDERSOF

CERTIORARI AND  MANDAMUS  DIRECTED  TO THE

PROFESSIONALCONDUCT  COMMITTEE AND  THE

MEDICAL PRACTITIONERS  AND  DENTISTS BOARD.

AND

IN THE MATTER OF: THE MEDICAL PRACTITIONERS AND DENTISTS ACT CAP 253.

AND

IN THE MATTER OF: THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION, 2015

BETWEEN

THE KENYA HOSPITAL ASSOCIATION T/A

THE NAIROBI HOSPITAL.......................................................APPLICANT

VERSUS

THE MEDICAL PRACTITIONERSAND

DENTISTS BOARD..........................................................1ST RESPONDENT

THE PROFESSIONAL CONDUCT COMMITTEE....2ND RESPONDENT

DR. BARTILOL KIGEN....................................1ST INTERESTED PARTY

DR. GERALD MONIZ.......................................2ND INTERESTED PARTY

JOHN PAUL ODERO(On behalf of the late

SYLBIL MASINDE ODERO (deceased)............3RD INTERESTED PARTY

JUDGMENT

1. By a notice of motion dated 5th September 2016, the exparte applicant herein, The Kenya National Association T/A The Nairobi Hospital seeks from this court orders of :

a. Certiorari to remove into this court and quash the entire  decision of the professional conduct committee in its ruling dated  3rd March  2016  in  professional conduct  committee case No. 1 of  2013;

b. Mandamus compelling the 2nd respondent to refer the complaint to the 1st respondent.

c. A declaration that Rule 4(A)(2)(e) of the Medical Practitioners and Dentists(Disciplinary proceedings ((Procedure) Rules is inconsistent  with Section  20 of the  Medical Practitioners and Dentists Act and  is therefore  null and  void.

d. An order of costs.

2. The application is predicated on the amended statutory statement dated 4th October 2016, verifying affidavit of Maxwell Maina sworn on 2nd September 2016 and annextures thereto.

3. The exparte applicant’s case is that on 11th February 2011 the deceased Sybil Masinde Odero was admitted into the applicant’s labour ward at 10. 000a.m.  in the exparte applicant’s Hospital on 11th February 2011 under instructions of her doctor, Dr Bartilol Kigen who is the 1st interested party herein, and who  is a medical practitioner in  private practice with admitting rights  at the Nairobi Hospital, not  an employee of the applicant.  It is  claimed  that the said   1st interested party  is an  independent  contractor.

4. It is alleged that on admission the deceased delivered a baby through   caesarian section at around 1. 00pm on the same day but she  developed  complications after  surgery  and had  to be moved to the Intensive Care Unit of the  same hospital at about 6. 00p.m.  wherein she succumbed to the complications developed during surgery.

5. On 27th May 2011 Mr John Paul Odero the  3rd  interested party  (complainant) who is the father to the deceased lodged a  complaint  with the Medical Practitioners and  Dentists Board  alleging  that the exparte  applicant herein, the  1st interested  party doctor  and the 2nd interested  party who is  also a doctor ( Dr  Gerald  Moniz) were negligent and  caused the  untimely  death of the deceased Sybil Masinde  Odero.

6. By a letter dated 30th May 2011 the  MPDB- (the Board) requested the  applicant to submit to it  a full report on the complaint and  upon receipt of the said letter, the exparte applicant referred the matter to its Standard Audit and Ethics Committee for investigations  and  upon completion of the said investigations, the exparte applicant  Hospital  by a letter  dated 25th July  2012  forwarded  a full report  to the Board.

7. The exparte applicant was thereafter notified  by a letter  dated  12th July 2012 to appear before the Board’s Preliminary Inquiry Committee(PIC) on 27th July  2012  for clarification concerning  the  management  of the deceased patient on 27th July 2012. The applicant  appeared  before the Preliminary Inquiry Committee whereupon the deceased’s father, and Dr Bartilol Kigen testified and  the inquiry continued on 23rd November 2012 when Dr Martin Wanyoike, Dr  Omondi  Ogutu, Dr Gerald  Moniz  and  Sister Rosemary Karitu  testified.

8. It is further asserted that on 8th February 2013 the exparte applicant received a letter from the Board containing the recommendations of the Preliminary Inquiry Committee which included a recommendation that the complaint was merited and that it be referred to the full Board/Tribunal.  The applicant was then on 1st July 2013   notified  to appear  before the full Board  on  22nd July 2013 and on appearing  they were notified to appear on  25th July 2013.

9. That on 22nd July 2013 the applicant raised a preliminary  objection on the ground that the  Board lacked jurisdiction to hear and determine the report of the Preliminary Inquiry Committee and that the proper body to hear and determine the report of Preliminary Inquiry Committee is the Professional Conduct  Committee (PCC), who are the 2nd  respondents herein.

10. However, it is  claimed that the exparte applicant’s  preliminary objection  was overruled  by the Board  which directed that the inquiry  proceeds  on  25th July  2013. Being  aggrieved by the finding of  the Board, the   exparte  applicant  and the  2nd interested  party  DR. GERALD MONIZ filed JR  Miscellaneous Application No. 274 of  2013  and  JR Miscellaneous 270/2013respectively and when the said applications  came up for hearing  on  25th July  2013  the parties  recorded a consent  referring  the  inquiry  to the Professional Conduct  Committee.

11. That the Board then constituted the Professional Conduct  Committee which heard  the complaint on  24th November  2015 and  a ruling  was delivered  on  3rd March  2016  against the  exparte applicant  to  the effect  that;

i. The applicant is directed to develop protocols for  management of obstetric emergencies within a period of sixty(60) days  from 3rd March  2016 and thereafter confirm  compliance by a copy to the Board.

ii. The Nairobi Hospital (applicant) is directed to confirm  dissemination  of the protocols  developed  under  (i)  above to  its  divisional  meetings and  also display of the same within the facility within the period of sixty(60) days.

iii. The Nairobi Hospital is directed to put in place measures for management of emergency patients under the care of private doctors operating  within its  facility  and  thereafter  confirm compliance to the Board within a period of sixty(60)  days from  3rd March  2016.

iv. The Nairobi Hospital  is to put in place and document  a policy for intervention and involvement of Senior Gynecologists in the event of severe post partum haemorrhage (PPH) within a period of  sixty(60) days  from 3rd  March 2016  and thereafter  confirm compliance  to the Board .

v. The Nairobi Hospital is to pay the Board a sum of kshs  150,000 within the next 30 days as part of the costs for proceedings.

12. According to the exparte  applicant, the Professional Conduct  Committee exceeded its jurisdiction  when it  made final  orders and  concluded  the case; that the Board wrongly  abdicated  one of its key functions  to the Professional Conduct  Committee by  allowing  the latter to make  final orders  and conclude  the  case before it; that the Professional Conduct Committee acted unreasonably, irrationally and illegally; that the Professional Conduct  Committee breached the applicant’s fundamental right to fair administrative action guaranteed by Article 47 of the  Constitution and that the Professional Conduct Committee failed  to give effect to Section 20 of the Medical Practitioners and  Dentists Act.

13. It is therefore feared that as a result of the  Professional Conduct  Committee’s decision, the exparte applicant risks losing its right to have the matter heard by  the Board  which is  the tribunal  legally mandated by law to conclude the matter hence these Judicial Review  proceedings.

14. The exparte applicant  further asserted that the Professional Conduct Committee and the Board have no power to institute disciplinary proceedings against medical institutions as opposed to individual Medical Practitioners and Dentists.  Further, that  the Act  applies to  individuals  licenced  by the Board and not  to medical institutions.

15. The 3rd interested party JOHN PAUL ODEROfiled a  replying affidavit  sworn by himself on  27th February 2017 contending that the deceased Sybil Masinde Odero  was his daughter  and  died after  delivery of a baby via caesarian section at the exparte applicant’s hospital while being attended to by her personal doctor the 1st interested party herein.

16. The  3rd  interested  party then lodged a complaint with the Board  which complaint was later  referred to  the  Preliminary Inquiry Committee and upon the latter carrying out an inquiry, the  applicant raised a preliminary objection which led to JR 270/2013 and JR 274/2013 respectively wherein the parties compromised the applications by consent and referred the  inquiry to the Professional Conduct Committee which latter  was duty  constituted  by the Board.

17. That after hearing the parties to the inquiry, the Professional Conduct Committee referred the decision to the full Board   which on 30th November 2015adopted the decision and orders of the Professional Conduct Committee.

18. According to the 3rd interested party, Section 20(1) of the Medical Practitioners and Dentists Act Cap  253 Laws of Kenya  gives the Board powers to conduct an inquiry on a medical practitioner whereas Section 20(2) provides that the person shall be accorded an opportunity of being heard either  in person or by  an advocate.

19. The rest of the  depositions  by the 3rd respondent allude to legal provisions under Medical Practitioners and Dentists Act and Rules and which ought not to be depositions but submissions on points of law therefore this court shall consider them at submissions.

20. The 3rd interested party also deposed that the matter was referred to the Professional Conduct Committee by the full board and that the  Professional Conduct Committee heard  all parties and  recommendations made to the Board  hence there was no illegality, procedural unfairness and or unreasonableness as claimed by the exparte applicant.

21. It was  contended that the  law allows  the Professional Conduct  Committee to regulate its own  procedure and to make orders it deems fit but which orders must be adopted by the Board, which the  Board did adopt hence the motion as filed by the exparte  applicant  must be  dismissed.

22. The 3rd interested party maintained that the Board adopted the Professional Conduct Committee to make orders that it deems fit.

23. The  1st respondent  also filed  a  replying  affidavit  sworn by  Daniel Yumbya  the Chief Executive Officer of the MPDB on  31st  March 2017 contending that the Board  did receive a complaint and  that it processed  it but that  upon the consent being recorded in the two cases  filed in  court, the matter was referred to the Professional Conduct Committee for consideration of all documents before it, heard the parties before it through their respective advocates and made its decision which decision was placed before the Board for  adoption and  was adopted hence  this application is made in bad faith and an afterthought as the parties have substantially  complied with the Board’s directions and that the application  does not meet the threshold to warrant the orders of Judicial Review  as sought.

24. It  was  further contended that  it is in the general  public interest of Kenyans that the Board  be left to perform its functions as stipulated  in the Act  and  the applicable  rules, considering  the  nature of the complaint.

25. The 2nd interested party filed a replying affidavit wholly supporting the exparte applicant’s motion.

26. The parties’ advocates filed written submission to canvass the application and made oral highlights on 29th November 2017.

27. On the part of the exparte applicant, Mr Muiruri submitted, relying on the filed documents and written submissions filed on 16th June 2017. Mr Muiruri submitted focusing on the question of jurisdiction emphasizing that the disciplinary proceedings only apply to Medical Practitioners and Dentists and not medical institution. He submitted that the definition of “medical practitioner” under the Act does not include institutions.

28. It was further submitted that the Board and the Professional Conduct Committee had no powers to discipline institutions.  Reliance  was placed  on Medical Practitioners  and  Dentists  Board  & 2 Others  vs Masjid  Twahir & Others [2016] e KLRwhere it  was held  inter alia, that the  Board  could  only discipline  medical practitioners  and  not a hospital.  It  was  also submitted that only  the  Board  can make the  final decision  not the Professional Conduct Committee.

29. Further, that Rule 4A 3(e) of the Rules made under the Act is inconsistent with Section 20(1) of the parent Act.  It was therefore submitted that there was improper delegation of powers without jurisdiction and that such a decision made without jurisdiction is amenable for quashing.

30. Mrs Woodward counsel for the 2nd  interested  party  submitted at length associating herself with the submissions made by the exparte applicants  and reiterated  her client’s written  submissions  filed in court  on 7th July  2017.

31. Counsel for the 2nd interested party added that Section 20 of the Medical Practitioners and Dentists Act empowers the Board to make the final decision on whether there was any disgraceful conduct on the part of the medical practitioner. Further, that the Act does not allow any delegation of functions by the Board to the Professional Conduct Committee.  She referred to Rule 4A under the Act and submitted that the Rule is inconsistent with the Act.

32. It was submitted that the decision by the respondents being illegal and  uprocedural, has brought her client  into disrepute  and that an illegality cannot be relied on to punish  affected parties.

33. It  was further  submitted that  the actions of the respondents  are also  ultra vires the Rules of Natural Justice   and in  violation of Article  47 of the Constitution. Reliance   was placed on several decisions including Republic vs CM’s Court at Kibera Law courts Nairobi & 2 Others exparte Qlan Guo Jun & 2 Others[2013] e KLR on the threshold  for  Judicial Review.

34. It  was further submitted that  where subsidiary  legislation  like Rule 4A of the Rules was inconsistent with substantive law, Section 31(1)(b) of the Interpretation of General Provisions  Act stipulates that subsidiary legislation cannot be  inconsistent  with the provisions  of the Act as is restated  in Section 7(2) (a) (111) of the Fair Administrative Action Act  and  Section 7(1)  (g)  of the same  Act.

35. It  was  submitted that as only  2 members  of the 2nd  respondent  are required  to be members of the 1st respondent, there was   need to refer the matter back to the 1st respondent for final  decision making hence the  delegation  by the  1st respondent   to the Professional Conduct Committee to make  a final decision   was unlawful  abdication  of  the Board’s statutory  mandate  hence such  a decision is invalid  and  must  be quashed.

36. It  was  submitted that as  the  2nd  respondent  had no power  to establish the guilt  of the applicant and  that of the  2nd  interested party, the  1st  respondent  acted ultra vires by delegating  its powers to the  2nd   respondent   PCC to assume  jurisdiction  in concluding   the  matter and  making final  orders  without  prior consultation with the  1st  respondent Board .

37. Counsel  maintained that the  2nd respondent  exceeded  its jurisdiction as  Section 20 of the Act  only empowers  the  1st respondent Board to determine  culpability  of the accused  following  disciplinary  proceedings. Reliance was placed on Pastoli v Kabale District Local Government Council & Others[2008] 2 GA 300 page 304where the court held that  acting without  jurisdiction or ultra  vires  or contrary  to the provisions  of the law  or its  principles  are instances  of illegality.

38. It  was  submitted that delegating power to the  2nd respondent is abuse of power contrary to Section 7(1)(o) of the Fair  Administrative Action Act.

39. Further, that in this case it was evident that the decision   was made negligently, arbitrarily, irrationally, and in total disregard of the applicable  law and its powers.

40. The  2nd interested party’s counsel  further  submitted that the decision  was made in breach of the general legitimate expectation that where a statute  provides  for  a procedure, that procedure  would be  followed  where applicable, as stipulated  in Section 7(1) (m)  of the Fair Administrative Action Act, 2015.  Reliance  was  placed  on Seventh Day Adventist Church of East Africa Ltd vs Permanent Secretary Ministry of  Nairobi Metropolitan  Development & Another [2014] e KLR where the  court relied on Keroche Industries Ltd vs KRA & 5 Others Nairobi HCMA No. 743/2006 [2007] 2 KLR  240 and heldthat  Judicial Review orders may be  granted where the impugned  decision goes  against the legitimate expectations of the applicant.

41. In this  case is was submitted that the  2nd  interested party  had a legitimate expectation that Section  20  of  the  Act would  be  honoured  and that the final decision lay with the  1st  respondent, not  the  2nd  respondent.

42. On the 3rd interested party’s submission that the 1st respondent  cannot be accused of abdicating its mandate to the 2nd  respondent  when  parties  had  moved to court and consented  to the inquiry being carried out by the Professional Conduct Committee, it  was  submitted  that the consent entered into  was  for the PCC  to carry out  an inquiry   and  make recommendation  to the  1st respondent Board and  not for the PCC to make  final decisions.

43. It was also submitted that quasi- judicial and judicial bodies  derive their mandate  expressly  from statutes  and  not from  the  consent of the parties, and that where a statute specifically  delineates jurisdiction over a judicial or quasi judicial body, parties to a dispute cannot consent or otherwise grant  jurisdiction  to such  a body  as that would  contravene public policy and would be deemed ultra vires  as  was held in Republic vs CM’s Court Kisumu  exparte  Micah Kisoo[2016] e KLR.

44. The 2nd interested party therefore urged the court to grant the prayers sought by the exparte applicant in the notice of motion with costs.

45. The 1st and 2nd respondents (The Board and Professional Conduct Committee) respectively filed joint submissions on 10th July 2017 and Mr Muthee advocate submitted orally highlighting the written submissions in opposition to the exparte applicant’s motion.  Counsel for the respondents maintained  that the Preliminary Inquiry Committee was established in 2012  and the Rules were amended in 2013 giving power under Rule  4A(3)to the 2nd respondent to conduct  disciplinary  proceedings  which were  commenced on 25th July  2013.  It  was  submitted  that the 2nd respondent had jurisdiction to make recommendation under Section 23 of the Act and that when the matter was referred  to the Preliminary Inquiry Committee, the applicant  raised a Preliminary Objection and  the subsequent suits as  filed were compromised for the matter to be heard before Professional Conduct Committee and that  Rules  4A(3) is  clear on the powers of the Professional Conduct Committee.  Reliance   was placed on Republic vs MP & D B & Another Exparte Wainyoke Kihara [2015] e KLR  and  Republic vs  MP & DB exparte  Dr Yanal Patel  & 2  Others [2016] e KLR.

46. It was also submitted that Sections 4(14) and 20(4) of the Act provide that the Board may regulate its own procedures in disciplinary proceedings.  It  was therefore submitted relying  on  Kenya  Revenue Authority v Menginya  Salim  Murgani CA 108/2009  where it was held, inter alia,  that provided  that the bodies  achieve  the  degree  of fairness  appropriate  to their task it is for them to decide  how they will  proceed.  It  was  submitted that this court cannot sit  as an appellate  court over a High Court decision  and that in any event  the  Board adopted  the Professional Conduct Committee proceedings  hence there  is no illegality or  bias  and that  the  issue of jurisdiction  is raised in bad faith  since the  2nd  interested party has substantially complied with recommendations  of the Board.

47. It was also submitted in contention that all the parties were heard after the matter was compromised in court.

48. On the question of whether mandamus can issue, it was submitted that the applicant does not deserve mandamus because the  Professional Conduct Committee duly referred its recommendations to the Board which approved and adopted the final determination.

49. Mrs Guserwa counsel for the 3rd interested party, Mr John Paul Odero who was the complainant before the Preliminary Inquiry Committee and Professional Conduct Committee submitted, opposing the applicant’s motion and relying on written submissions filed on 30th June 2017.  It was submitted that the  preamble to the Act applies to personnel and places or institutions where such doctors practice, and that Rule 4A(3) (c),(d),(e) of the  Rules made under the Act  gives the Professional Conduct Committee the  power to suspend licences, close  and admonish, depending  on the weight  of the evidence  placed  before it.

50. It was also submitted that the Professional Conduct Committee under the Rules could determine a case conclusively and make recommendation as it deems it. Further, that the Professional Conduct Committee has powers under Rule 10(g) to determine orders relating to costs as it may think fit. Further, it was submitted that the Professional Conduct Committee accorded all parties a hearing hence there is no illegality, procedural impropriety or unreasonableness established by the applicant.

51. Mrs Guserwa further  submitted that parties  entered  a consent  in JR  270 & 274  of  2013  to the effect  that  the hospital and the two doctors be investigated by the Preliminary Inquiry Committee and  recommendations be  made to the  Board. Further, that the 2nd respondent having concluded  investigations  and  placed before  the Board  its  recommendations which  were adopted by the Board on 30th November 2015 as per the attached  minutes of the full Board meeting, the issue of jurisdiction did not arise  and  is therefore  an afterthought.  It was further submitted by Mrs Guserwa that death of a professional cannot be compared to loss of reputation.

52. Further submissions was that there  was no claim  that  Rule of Natural  Justice  were breached and that therefore the  orders  sought are only intended to defeat the 3rd interested party’s civil claim for  compensation  for the loss of his daughter.  It was submitted that the alleged delegation of power was in compliance with the directives of the court by consent of the parties and that the legitimate expectation principle urged by the applicant is baseless and misconceived against the rights of the 3rd interested party. Reliance  was placed on HCC 34/2013  Silas  Mugendi  Nguru  v Nairobi  Women’s  Hospitalwhere the  deceased died from complications  developed  after child  birth in the hospital  on  7th January 2012.  The court relied on evidence in the autopsy report and found the hospital to have been negligent and therefore 100% liable and awarded the family shs 9. 3 million. A similar holding was made in HCC399/2010 P.B.S. & I.N.S. vs Archdiocese of Nairobi Kenya Registered Trustees & 2  Others where this court found both doctors and the hospital liable in negligence for damages to the patient who died during child birth.

53. Further reliance was placed on JR 34/2013 Republic vs  Directorate of Public Prosecutions & Others exparte  George Peter Opondo Kaluma where the court dismissed a Judicial Review application filed to stop a criminal  prosecution on the  basis that a party cannot be protected from answering for  private wrongs through civil process, and that the applicant  member of the legal profession could not avoid a probe of his professional conduct by the Disciplinary Committee by hiding behind  the  double  jeopardy principle.

54. On the authority  cited by  the applicant, it  was  submitted  that it is  distinguishable  from this case because an institution  where negligence was committed cannot be left out as  per the decision of this court  in HCC 399/2010, PBS & INS  vs  Archdiocese of Nairobi Kenya Registered Trustees & 2  Others[supra].

55. Counsel for the  3rd interested party  further submitted that the preamble  to the Act  and the  2013  Rules refer to sanctions on  institutions as  well as   medical  practitioners  and that  it would  defeat  the purpose  of the Act if  the  Rules refer  to institutions  which are not   intended to  operationalise  the Act.  She urged the court to dismiss the exparte applicant’s claim with costs.

56. In a rejoinder, Mr  Muiruri  counsel for the exparte  applicant  submitted  that the decision of Odunga J  in Medical Practitioners  and  Dentists  Board  & 2 Others  vs Masjid  Twahir & Others [2016] e KLRat paragraph  61 is clear  on the liability  in tort  and in  disciplining  of institutions. That paragraph 65 the decision is clear that if there is a lacuna in law, subsidiary legislation cannot fill the lacuna to discipline institutions.  It was submitted that the Regulations are inconsistent with the Act which is contrary to Cap 2 of Laws of Kenya.

57. On the  contention that the Professional Conduct Committee proceedings  were subject of a consent  order, it  was  submitted that the  applicants  never  consented  to the Preliminary Inquiry Committee making  substantive findings hence the Preliminary Inquiry Committee exceeded its mandate by making final determination of the complaint.

58. On the issue that the Board considered  recommendations of  the  Preliminary Inquiry Committee, it was submitted that  the ruling  of the Preliminary Inquiry Committee  was made  on  3rd March  2016  yet the  Board sat  on  30th November  2015  hence it  is not  possible that  the Board adopted  that which was  not in  existence  at that time.

59. It was further submitted that mandamus would only issue if the court found that the Board had jurisdiction to discipline hospitals upon which the court can refer the matter or inquiry to the Board for adoption.

60. It was submitted that the power to establish procedures cannot be extended to decision making duties in contravention of statutes.  The court was urged to examine the decision by Honourable Odunga J in Medical Practitioners and Dentists Board & 2 Others vs Masjid Twahir & Others [2016] e KLRwhich is clear that the Board has no power to discipline hospitals hence the decision even if made by the Board should be quashed and the orders of declaration and mandamus do issue.

DETERMINATION

61. I have carefully  considered the  exparte  applicant’s  application as supported by the 2nd interested party and vehemently  opposed by the respondents and  3rd interested  party.  I note that the 1st interested party did not file any response to the motion. I must first and foremost empathize with the 3rd interested party Mr John Paul Odero who lost his dear daughter during the unfortunate incident where doctors and the hospital are alleged to have been negligent.

62. In my humble view, the main issues for determination in this matter where a young mother and professional lawyer lost her life are:

1) Whether the Medical Practitioners and Dentists Board has power to inquire into complaints having a bearing on alleged negligence of hospitals/medical institutions.

2) Whether the Board ever adopted the decision or findings of the Professional Conduct Committee and if it did adopt, whether the PCC had any jurisdiction to entertain the complaint.

3) Whether the Professional Conduct Committee had jurisdiction to inquire into the complaint in issue and make a conclusive finding on the misconduct and or negligence of the applicant hospital and the two doctors who attended to the deceased patient, Sybil Masinde Odero.

4) Whether the applicant is entitled to the Judicial Review orders sought.

63. On whether the Board has power or jurisdiction to inquire into the complaints against medical institutions, the exparte applicant Hospital  asserts  that  the  Professional Conduct Committee and the Board have  no  power to institute disciplinary  proceedings  against  medical institutions  as opposed  to individual  medical practitioners  and dentists.  It maintains that the Act applies to individuals licenced by the Board and not to medical institutions.  It is averred that Section 20 of the Act mandates the Board to conduct inquiries into the conduct of medical practitioners and dentists and decide whether there has been infamous or disgraceful conduct in a professional respect.

64. On the part of the respondents and the 3rd interested party, it was contended that Rule 4A, (3) of the Rules made under the Act allows the Board to deal with matters or complaints against the institution and individual Medical Practitioners and Dentists.  They urged the court to interprete the Act (preamble) thereof purposively to find that the Rules could not have been enacted in vain, since the long title to the Act stipulates that the Act is “an Act of Parliament to consolidate and amend provisions for the registration of medical practitioners and dentists and for purposes connected there with and incidental thereto.”  As such, it was contended that the law must be interpreted purposively to mean that the connected purposes include institutions as stipulated in the Rules made in 2013.

65. The exparte applicant on the other hand maintained that where there is a conflict between the Parent Act and Rules, the provisions of the Act prevail as stipulated in Cap 2 Laws of Kenya.

66. This court has had occasion to determine the issue of  jurisdiction  of the Board  vis  avis  medical institutions  and the import of the  Rules made  under the Act  conflicting  with the Act.

67. The long title of the Act is set out  at the commencement  of the  Act and consists  of a single  long  sentence  divided  by several semi colons into various  limbs, each of which  deals with a principal  purpose of  the Act.  With large  and  complex  Acts, it is common for the  long title  to end with a form of words  such as  “ and  for connected  purposes.”A connected purpose is something that the Bill or Act does that is not sufficiently distinct to merit a limb to itself, but which does not fall entirely within one of the preceding limbs.

68. Traditionally, the long  title  in an Act  of Parliament  is usually  included  in the Bill and  acts as a guide to Parliament  in amending  the  Bill so  as to avoid  amending  the Bill beyond its scope, and it is for that reason that the words “ and  for   connected purposes” are added  at the  end. It follows, therefore, that the long title in any legislative enactment serves to inform Parliament and the end users of the legislation, and what the Act sets out to do.  However, since the Act is enacted and subject to amendment, courts treat the long title as an intrinsic explanatory and interpretative aid.

69. The long title also provides a guide to the scope of an Act when there is ambiguity as to the meaning of its provisions.

70. Accordingly, it is not  true that  the policy objectives  underlying  the Bill or Act are to be found in the long title but are to be  inferred  from the nature  of the changes in the new  law that the long title  says are  to be made.

71. Thus, long titles only set out the purposes of legislation in this limited sense of stating the way in which the amendments will affect the existing law. This is what I learnt from my legislative drafting class at the University of London school of Advanced Studies.

72. In this case, the respondents and the 3rd interested  party contend that the amended  Regulations  give jurisdiction  to the Board  to hear  and  determine  complaints  against institutions.  That is so and that fact is undisputed.  However, in the absence of a substantive Parent Act provision stipulating that the Act applies to institutions, a regulation cannot amend the Parent Act. Furthermore, Section 31(1) (b) of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya a stipulates that”

“Subsidiary legislation cannot be inconsistent with the provisions of the Act.”

73. In the same vein, the newly enacted  Fair Administrative Action Act, 2015  at Section 7(2) (a) (111) provides  that“ the  court or tribunal may review  an administrative action or decision if the person who made the decision acted pursuant to delegated  power  in contravention  of any law  prohibiting such delegation.”

74. Similarly, Section 7(1)(g) of the same Act provides that  judicial review would issue where the administrator acted on the directions of a person or body not authorized or empowered  by any written law to give such directions.In Pastoli  v Kabale  District Local Government Council & Others[2005] 2 EA 300 the court held, inter alia, that

“Acting without jurisdiction or ultra vires or contrary to the provisions of a law or its principles are instances of illegality”.

75. It follows that where the Board or Professional Conduct Committee on behalf of the Board proceeds to hear and determine complaints against the medical institutions, in the absence  of specific provisions of the law granting it such power, then the PCC acts illegally and ultra vires  the powers granted  by the Act.  In Republic v Medical Practioners & Dentists Board & 2 Others Exparte Majid Twahir & another (supra) Odunga J held thus I agree, inter alia and i concur:

“ Having  considered  the  issues raised  herein, it is  my view  and I so hold that under the Medical Practioners  and Dentists Act, the Board has no power to institute disciplinary  proceedings against medical institutions as opposed to individual Medical Practioners  and Dentists.”

76. It is worth noting that regulations cannot fill a void or gap in a parent statute. Accordingly, without jurisdiction to hear and determine disciplinary proceedings against the medical institutions, in this case, the Nairobi Hospital, I find and hold that the Board or Professional Conduct Committee acted without jurisdiction.

77. The law is clear that jurisdiction is everything without which a court of law or tribunal acts in vain and that the moment a court of law or tribunal finds that it has no jurisdiction, it must down its tools and say no more.  This is the principle espoused in owners of MotorVessel Lilian ‘S’ V Caltex (K) Ltd (1989) KLR 1. Therefore,where a decision is made without jurisdiction as was in this case, it is void.  The duty  of this court  is to  declare  such decision or action  a nullity  as was held  in Mcfoy v United  Africa Company Ltd [1961] 3 ALL ER 1169 at  1172that:

“If an act is void, it is in law a nullity.  It is not only bad.  There is no need for an order of the court to set it aside.  It is  automatically  null and  void  without  more ado, though  it is sometimes  convenient  to have the  court declare it  to be so.”

78. The court  also warned  in Republic  vs Medical Practioners  and Dentists Board and Another Exparte J Wanyoike  Kihara [2015] e KLR  against expanding powers of a quasi  judicial  body as follows :

“Therefore where the law exhaustively provides or the jurisdiction of an executive body or authority, the body or authority must operate within those limits ought not to expand its jurisdiction through the administrative craft or innovation.  The courts would be no rubber stamp of the decision of administrative bodies.  Whereas, if parliament gives great powers to them, the courts must allow them to it, the courts must nevertheless be vigilant to see that the said bodies exercise those powers in accordance with the law.”

79. As earlier stated, this court does empathize with the 3rd interested party for the unfortunate loss of his dear daughter who was a legal professional and at such a young age, while bringing forth a life. And whereas  this court  does appreciate  that  the  2013 regulations are intended  to protect the public  from substandard  medical  or health services  offered by  institutions  and  medical Practioners  and  Dentists , so as  not to negate  to  citizen’s  rights to  health  as espoused  in Article 43(1) (a) Constitution, this court is duty bound to interprete the law in a manner that upholds the constitutional  rights  aforesaid.

80. The 3rd  interested party  relied  on this court’s  decision  on PBS & Another vs Archdiocese of Nairobi Kenya Registered  Trustees  & 2 Others [2016] e KLR  to submit  that  medical instructions  have been held  to be liable   in negligence.  That is absolutely correct as that decision is elaborate enough on the issue of liability of medical institutions for negligence on the part of the medical personnel under the hospital’s instructions. However, there is a whole difference between a claim for medical negligence in tort and disciplinary proceedings being commenced against an institution.  Where the statute clearly excludes medical institutions from being subjected to disciplinary proceedings by the Board, the Board cannot, by craft or innovation attempt to expand its jurisdiction through discretion borrowed from rules which are subsidiary legislation.

81. It follows that the findings in these proceedings  that the Board and or PCC had no jurisdiction to entertain  disciplinary proceedings against the exparte applicant Hospital cannot obstruct  the  3rd interested party from seeking  compensation  for alleged medical  negligence  against the applicant  herein and  therefore  the  case of  P.B.S. & I.N.S. vs  Archdiocese  of Nairobi  [supra] is not applicable in the circumstances of this case. What was in issue in the cited case was not whether or not the MPDB had jurisdiction to discipline the hospital but whether the hospital and the Doctors were liable in negligence for the death of the deceased who was labour induced and died in the process before delivering a baby.

82. In addition, what the court based its decision on in the above cited case was not the findings against the 1st defendant’s hospital. In the said case the court found the hospital vicariously liable in  negligence for  acts of  its  doctors  who  were  its agents  at the material  time.

83. For all the above reasons, I have  no hesitation  in finding and  holding that the Board had no jurisdiction to handle  disciplinary  proceedings against the exparte applicant herein and that by so doing  it acted  without and  in excess  of jurisdiction  and  ultra vires  the  provisions  of  the  Medical Practitioners and Dentists Act.

84. The  2nd  issue of  determination is whether  the  Board  adopted  the decision or findings of  the  Professional Conduct Committee or whether the Professional Conduct Committee made a  conclusive  determination  of the complaint and if it did adopt, whether the PCC had any jurisdiction to entertain the complaint.

85. In the replying affidavit  of John Paul Odero  the  3rd  interested party herein, he annexed copies of letter dated 6th February  2013 communicating the decision in Preliminary Inquiry Committee case No. 42/2011; ruling by the Professional Conduct Committee in case  No. 1/2013  dated  3rd March  2016  signed by Professor Shadrack B.O.Ojwang, chairman of the Professional Conduct Committee and the minutes of the  112th full Board meeting held on 30th November 2015 at UON College  of  Health Sciences  Boardroom Chaired by Professor George Magoha, MBS, EBS, Chairman of the Board. The minutes are confirmed signed and dated on 6th April 2016 by the Chairman   and CEO, Mr Daniel M. Yumbya.

86. The question that emerges from the above documents is whether  the  full Board  could have  sat on 30th  November  2015 to adopt proceedings or recommendations of Professional Conduct Committee which  were  made on  3rd March  2016.  The answer is a resounding no.  Therefore, albeit all the parties are in agreement that the decision of the Professional Conduct Committee must be adopted by the Board, there is no evidence that the Board  ever adopted the decision of the PCC as its own, assuming that the PC had jurisdiction to hear and determine the complaint and refer the determination to the Board for adoption.as its own.

87. The other issue is therefore whether the Professional Conduct Committee could conclusively determine the complaint assuming it had jurisdiction  to do so, without  sending it  to the  full Board  for  adoption.  Section 20(6) of the Act contemplates  that  a person aggrieved by a decision of the Board under the provisions of the Section  20 may appeal  within  30 days  to the High Court  and  in any such  appeal, the High Court  may annul or vary the  decision as it thinks fit.

88. The above provision presupposes that a decision has been made by the Board following disciplinary  proceedings against a Medical Practitioner and or Dentist as stipulated under the Act. ‘Board’ is defined under the Act in Section 2 of to mean “The Medical Practioners and Dentists Board constituted under Section 4”Section  4  of the Act  establishes  and  constitutes  a Board  to be known as the Medical Practitioners  and Dentists Board  consisting  of :

a) A chairman to be appointed by the Cabinet Secretary.

b) The Director of Medical Services or the person for the time being acting in that post.

c) A Deputy Director of Medical Services, to be nominated by the Cabinet Secretary.

d) Four medical practitioners to be nominated by the Minister(CS)

e) Five medical practitioners and two dentists who, shall be elected by the votes respectively of all medical practitioners and of all dentists at the prescribed times and in the prescribed manner.

f) A representative of each of the universities in Kenya which share power to grant a qualification which is registrable under the Act.

89. The  total  number of members  of the Board  is 15  when  fully constituted and under  section 4(a)  quorum of the Board  is seven(7) members including  the chairman at  any meeting  of the Board.

90. The Board is a body corporate with perpetual succession and with a common seal and is capable of suing and being sued.  On the other hand Rule 4A (A) (i) of the 2013 Rules provides for composition of a Professional Conduct Committee adhoc committee comprising.

a) A chairperson

b) 2 persons registered in the same profession in which a medical practitioner or dentist whose conduct is being inquired is registered.

c) One  member  of the Board;

d) One person representing the general public.

e) The Board’s advocate who shall be the legal advisor and the Chief Executive Officer of the Board.  The composition of Professional Conduct Committee is 7 members.  The Rule 4(e) also provides  that the committee may admonish a doctor or dentist or the institution and conclude  the  case; and

f) Make such further recommendations as the committee deems fit.

91. It should be noted that it is the Amended Rules that introduced the Professional Conduct Committee established by the Preliminary Inquiry Committee and also introduced discipline on medical institutions and conclusion of a case by the Professional Conduct Committee, which introduction is to say the least, problematic.

92. The 2013 Rules gives power to the Professional Conduct Committee to, under Section 4A (2) (3) (a) conducts inquiries into the complaints and make final orders. However, it is my humble view that a body which enjoys delegated power cannot make final orders or decisions.  Its decisions must be ratified by the Board which is the giver or donor of the delegated power.

93. In Hardware & Ironmongery (K) Ltd vs. Attorney-General Civil Appeal No. 5 of 1972 [1972] EA 271, the Court expressed stated:

“What matters is the taking of the decision and not the signature. If the Director had taken the decision that the licence was to be cancelled, he then, properly, have told the Trade Officer to convey the decision to the parties. But it is clear from the officer’s evidence that this is not what happened. The fact that the Act makes express provision for delegation of the Director’s powers makes it, if not impossible, at least more difficult to infer any power of delegation. There is no absolute rule governing the question of delegation, but in general,where a power is discretionary and may affect substantial rights, a power of delegation will not be inferred, although it might be in matters of a routine nature. The decision whether or not the licence should be revoked required the exercise of discretion in a matter of greatest importance, since it involved weighing the national interest against a grave injustice to an individual. It was clearly a decision to be taken only by a very senior officer and was not one in respect of which a power of delegation could be inferred.”

94. The above position is restated in section 7(2)(a)(i)(ii) and (iii) of the Fair Administrative Action Act, 2015 where it is provided that a court or tribunal may review an administrative action or decision, if the person who made the decision was not authorized to do so by the empowering  provision; acted in excess of jurisdiction or power conferred under any written law; or acted pursuant to delegated power in contravention of any law prohibiting such delegation.

95. Therefore, it   follows that  the Professional Conduct Committee could  only  hear  the  complaint  and  make recommendations  to the Board for adoption and implementation since the Professional Conduct Committee has no independent mechanism for implementing the  decisions  that it reaches.

96. It is for that reason that I find  and  hold that  the  decision  of Professional Conduct Committee was riddled with procedural  impropriety and it is immaterial that the parties initially  consented to the  complaint being  referred to  the  Professional Conduct Committee.  The consent  did not  and could not  have given the Professional Conduct Committee powers to make  final orders/decisions  contrary to the  law and  in this case, the law  is that  the  Professional Conduct Committee is a body  exercising delegated powers of the Board.  It could not, therefore make final decisions without  having  those  decisions ratified by the Board  which is  a body  corporate  and which  has the power  to sue and be sued in its own name, unlike the Professional Conduct Committee, which is an adhoc body or committee  established  for purposes  of dealing  with a specific complaint.

97. It is further worth noting that the complaint subject of the inquiry was lodged in 2011 on 27th May 2011 but owing to jurisdictional challenges, before the  High Court, the matter  was  referred to the Professional Conduct Committee by consent  of the parties  and the inquiry proceedings  were  commenced  on 6th August  2013  by the Professional Conduct Committee.

98. That was before the 2013 amendment Rules came into effect.  The Rules (Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedures) (Amendments) Rules, 2013 came into effect vide gazette notice (special issue) Kenya Gazette Supplement 175 of 20th December, 2013.  It follows that the applicable rules to the inquiry are the Medical Practitioners and Dentists (Disciplinary) Proceedings) (Procedure) Rules, 1979 being the Principal Rules that were amended by the aforesaid   2013 Amendment Rules.

99. Accordingly, this court finds and holds that the Professional Conduct Committee which was only established by the 29th December  2013  amendments  is a body  that had no  power  or jurisdiction to hear and  determine  the  inquiry  subject of the complaint  lodged by the  3rd  interested party.

100. The parties  ought to have ensured  that  before they enter into a consent to transfer the matter to the Professional Conduct Committee, the latter  was seized  of jurisdiction  to hear  and  determine the  complaint.  As at  25th July  2013 when the parties  entered  a consent  in JR Miscellaneous  Application No. 274/2013, and JR 270/2013, the Professional Conduct Committee which was established  under Section/Rule  4A a(1)  of the  2013 amendment  Rules  was  not in existence.  Only the Preliminary Inquiry Committee existed under the Principal Rules under Rule 4 A (1) of the 1979 Rules.  It therefore inconceivable that the parties could consent to appear before a nonexistent entity as at the time of the consent.

101. Rule 5 of the 1979 Regulation stipulates the submission of complaint to the Chairman  of  the Board  upon which the  Chairman would  submit the matter  to the Preliminary Inquiry Committee (PIC) and the Preliminary Inquiry Committee upon receipt of the  complaint  would review it against  the medical  practitioner  or dentist and determine and Report to the Board whether an  inquiry should be held, pursuant to Section 20 of the Act, in respect of the  medical  practitioner  or dentist.

102. Under the said Rule, the Preliminary Inquiry Committee after considering the  complaint and making such inquiries with respect to the complaint  may if the complaint  does not  warrant  reference to the  Board for  inquiry  reject  the complaint and inform  the chairman  and if  it warrants  reference to the Board, refer to the Board  together  with its findings  and recommendations.

103. What the above rule stipulates is that after the Preliminary Inquiry Committee has received a complaint from the Chairman of the Board as provided  in Rule  5, it  would carry out a Preliminary Inquiry  into the complaint  and establish  whether  the  complaint  discloses  sufficient  grounds to sustain disciplinary proceedings against the medical practitioner or dentist. It is therefore only the Board that could commence disciplinary proceedings against the offending Medical Practitioner or Dentist.

104. Therefore, unlike in the 2013  rules  where the Preliminary Inquiry Committee has power  to carry out an inquiry through an adhoc body the Professional Conduct Committee and take   action on its own  findings, the 1979 Rules  do not permit  the  Preliminary Inquiry Committee to carry  out an inquiry  and  the taking of action  against the offending  medical practitioner  or  dentist.  (see Republic vs Medical Practitioners and Dentists Board Exparte Dr Yamal Patel & 2 Others [2016] e KLR and Republic vs Medical Practitioners and Dentists Board & Another Exparte J. Wanyoike Kihara [2015] e KLR.

105. It is therefore clear that the ‘consent’ entered into  referring the matter to Professional Conduct Committee was done per incuriam  in the sense that the parties  to the Judicial Revenue  made  the court to  believe  that the applicable  Rules  are  the  2013 rules which  establish the Professional Conduct Committee yet under the 1979 Rules, only the Preliminary Inquiry Committee could  only propose  to the  Board to  discipline  the  offending   dentist or medical  practitioner.

106. It is for those reasons that this court would intervene by invoking  Article 165(6) & (7)  of the Constitution  to call  into the High Court those proceedings conducted by an inferior  body without jurisdiction  and  declare  them  a nullity, to ensure  fair administration of justice.  Thus, an act which is void is a nullity in law. It is not only bad, but incurably bad.  There is no need for   an order of the court to set it aside.  It is  automatically null and  void  without more  ado, though it is sometimes  convenient  to have the court  declare it to be so( Per Macfoy vs United Africa  Company Ltd[1961]  3 ALL ER 1169 at 1172].

107. It is also for that reason  that I agree with the holding  in the Pastoli  vs Kabale District Local Government Council & Others case (supra) where it was held, inter alia that acting without  jurisdiction  or ultra vires  or contrary to the  provisions  of a law  or its principles  are  instances  of illegality.

108. The proceedings by the Professional Conduct Committee having been conducted illegally and without jurisdiction since Professional Conduct Committee was and is not a successor of Preliminary Inquiry Committee, the same are hereby declared a nullity, and void.  See also Jagdish Sonigra v Medical Practitioners and Dentists Board & 2 Otherson the functions of the Preliminary Inquiry Committee.

109. For all  the above  reasons, I find  that the exparte applicant  has demonstrated  that it is  entitled  to the orders  sought in prayer  No 1 and  3  (1)  of the notice of motion. Accordingly, I have no  hesitation in finding   and holding  that the  entire disciplinary  proceedings  against the exparte   applicant  were  a nullity  for  being  undertaken  by a body  that had no such  power to conduct proceedings  and  or make  any  binding  decision  capable  of adoption  by the Board  for implementation.

110. Prayer (2) seeking mandamus is not available  as the Preliminary Inquiry Committee has  no  jurisdiction to hear  and  determine  a complaint which  was  lodged  prior to  the  2013  Amendment  Rules.

111. Accordingly, I direct that the complaint if any shall be referred to the Board for appropriate action as stipulated in the Act.

112. I order that each party shall bear their own costs of these judicial Review proceedings.

113. Having  found that the new  2013  Rules  are  inconsistent  with the Parent Act, I direct  that  the Deputy Registrar do effect service of this judgment upon the Attorney General, the Kenya Law Reform Commission and the Principal Secretary Ministry of Health to examine  the  Medical Practitioners and Dentists Act  and Rules  made thereunder with a view to engaging relevant stake holders  for purposes  of  urgent review  of the Act  and  the Rules. This is essential as many patients continue dying in the custody and care of hospitals which could otherwise have been disciplined for misconduct and ordered to make amends but the Act does not make such provision for such discipline of medical institutions. Further, the bodies which are responsible for disciplining Medical Practitioners and Dentists are established by the Rules and not the parent Act which is also a questionable issue.

Dated, signed and delivered in open court at Nairobi this 28th February, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Muiruri advocate for the exparte applicant

Mr Museve h/b for Mrs Guserwa for the 2nd interested party

N/A for the Respondents

N/A for the 1st Interested Party

N/A for the 3rd Interested Party

CA: Kombo