COURT DECLINES TO LIFT SUSPENSION OF DOCTOR

Reported By Esther Onchana

"Some sixteen eminent members of the Respondent Board, who unanimously ruled to suspend the Applicant, also called for the Applicant to undergo remedial training, which the Applicant has failed to do. In the absence of that it would not be appropriate or responsible on the part of this Court to lift this suspension temporarily as such an action could seriously compromise the interests of the public."

Dr. Praxades Okutoyi v Medical Practitioners and Dentists Board [2008] eKLR (www.kenyalaw.org)
High Court of Kenya at Nairobi
Justice Alnashir Visram
March 11th 2008

The High Court earlier last month declined to stay a decision by the Medical Practitioners and Dentist Board which saw the suspension of a doctor for negligence. The decision which was handed down by the board against Dr. Praxades Okutoyi, the applicant in this case, on 29th November 2007 suspended the doctor from practicing medicine as a paediatric anaesthetist for a period of three years and ordered that she undergo remedial training before being re-admitted to practice.

The medical board’s ruling followed an inquiry initiated by the board pursuant to a complaint by Dr John N. Ondeko, whose young 17 year old son, suffered cardiac arrest and permanent brain damage while in the medical care of the applicant, among other people. Young Jacob, Dr. Ondeko’s son had been admitted to the Nairobi Hospital on 15th February, 2005 for a simple day surgery to correct his nose structure. Unfortunately he left the hospital with a permanent brain damage. The Board found the applicant guilty of infamous or disgraceful conduct.

The applicant appealed against the medical board’s decision and sought for a stay of the board’s ruling pending hearing and determination of the appeal. In an application which was brought under the Civil Procedure rules, the applicant termed the board’s ruling as unlawful because it was tainted with bias. She stated that the Board misdirected itself in law and had erred in its findings of facts.

Prior to filing this suit, Justice Paul Kihara had in January declined to issue temporary orders to halt the board’s decision. He however certified the case as urgent and directed the doctor to serve suit papers on other parties in the case.

In his ruling Justice Visram considered whether the applicant had complied with provisions of the order 41 rule 4 of Civil Procedure rules which relate to granting of stay pending appeal. In view of this rule, the judge held that for the applicant to succeed in the application, she had to demonstrate to the satisfaction of the court that substantial loss would ensue if the order was not granted. She also had to satisfy the court that that she has filed the application without delay and that she was willing and able to give such security as ordered by the court for the due performance of the decree. He observed that in the plain reading of the rule the onus was on the applicant to satisfy all the conditions through her deposition, and not through bold statements from the bar.

Had the application been made without unreasonable delay? The court held since the board’s ruling was handed down the 29th November, 2007; the Memorandum of Appeal was filed on 20th December, 2007; and the application before the court was filed on 24th January, 2008 the application had been filed within reasonable time and without any undue delay at any stage.

As this case was not a monetary decree and no financial obligation was involved on either side, the issue of security did not arise.

Had the applicant demonstrated that she would suffer substantial loss if the order for stay was not granted? In his submission Prof. Githu Muigai argued that the applicant stood a grave risk of suffering not just substantial but also irreparable harm, which would vitiate any vindication that would ensue if the appeal was ultimately successful. He submitted that the applicant’s professional standing and reputation continued to be eroded by negative publicity given to her because of the medical board’s ruling. Further he alleged that the country was suffering substantial loss from the illegal conviction and suspension of the applicant. In particular, there being only three paediatric anaesthetists, the country was forced to rely on the remaining two who could not meet the high demand for paediatric anaesthetists.

On the other hand, Ms Mwihaki, counsel for the medical board, argued that the applicant had not demonstrated what substantial loss she would suffer if the stay was not allowed as she was already gainfully employed at Kenyatta National Hospital, a fact that the applicant had failed to disclose to the court. She further alleged that the applicant had withheld material facts from the court, specifically her previous suspension from practice at the Nairobi Hospital and, therefore, she was not entitled to the court’s discretion; and that on a balance of convenience, the public interest should prevail.

Mr Wekesa, counsel for the Dr. Ondeko’s son, adopted Ms Mwihaki’s submission, and argued strongly that the applicant had not satisfied all the three requirements of Order 41 Rule 4, and more particularly that the applicant, who was already employed at Kenyatta National Hospital, would not suffer substantial loss, should stay be denied. Substantial loss, Mr Wekesa argued, applies to the applicant, and not the country in relation to the applicant’s argument that there were only three paediatric anaesthetists in Kenya, including herself.

In his ruling Justice Visram mulled over what constituted substantial loss in the context of this case. The court had difficulty with the argument that the applicant’s professional standing would suffer irreparable harm, if orders of stay were not granted. The court was of the view that until the appeal was fully determined on merit, the issue of the applicant’s professional standing would remain alive - both in the minds of her professional colleagues, patients and the public. A grant of a stay order could not change that.

Further the court failed to identify with the argument that sensational negative publicity was hurting the applicant. The court stated that was certainly not a good reason to grant stay, even if that were true. The negative media publicity, if any, would not just disappear if stay was granted. That was a continuing risk that the applicant would continue to face faces until the appeal was heard and determined.

On the argument that the country would suffer substantial loss, there being only three paediatric anaesthetists, the court once again rejected to grant an order stay. The court agreed with Mr Wekesa that substantial loss in this case meant substantial loss to the applicant, not the country. In any event, it was highly disputed that there are only three paediatric anaesthetists in Kenya, and even if that were so, it would be no reason to expose the applicant to her patients in circumstances where she could be considered a danger to those patients.

In dismissing the application, the court was of the view that public interest expounded by the medical board in this case far outweighed the applicant’s interest to earn her living. The court noted that some sixteen eminent members of the medical board, who unanimously ruled to suspend the applicant, had also called for the applicant to undergo remedial training, which the applicant had failed to do. In the absence of that it would not be appropriate or responsible on the part of the court to lift the suspension temporarily, as such an action could seriously compromise the interests of the public. If the applicant had indeed undergone the remedial training ordered and was working under supervision, the court may have thought differently.

POLICE DISCIPLINE HEARINGS MUST FOLLOW PROCEDURE

Reported By Michael Murungi

Christopher Gatuiri v Commissioner of Police [2008] eKLR (www.kenyalaw.org)
High Court at Nairobi
Lady Justice R.P.V. Wendoh
March 13, 2007

The High Court has reversed the decision of the Commissioner of Police dismissing a police officer from employment because the procedure followed in the disciplinary proceedings was improper.

Mr. Christopher Gatuiri had served as a police officer for over 10 years before he received a letter of dismissal dated February 26, 2007. The letter had been addressed by a senior officer in the Police Force on behalf of the Commissioner of Police. Mr. Gatuiri’s dismissal was the culmination of a disciplinary charge that had been leveled against him stating that he had conducted himself in a manner prejudicial to good order and discipline as a police officer contrary to regulation 2(41) of the Police Regulations. The charge alleged that on October 26, 2005 at the Kiambu Law Courts, he had failed to present a ballistic expert’s report as a witness in a criminal case and failed to re-arrest three suspects whose criminal case had been withdrawn.

Mr. Gatuiri told the High Court that the presiding officer who had mounted the charge did not follow the procedure prescribed for dealing with disciplinary cases under the Police Standing Orders. In the first place, he complained, he had not been notified of the charge in writing at least 24 hours before the disciplinary proceedings or of his right to cross examine witnesses. Secondly, he told the court that the presiding officer had not read to him the findings of the disciplinary hearing, his conviction and the nature of the sentence or punishment imposed on him. He argued that the decision to dismiss him from his employment was unfair, based on false evidence and beyond the powers and jurisdiction of the Commissioner of Police.

Court papers opposing Mr. Gatuiri’s application and setting out the grounds of opposition were filed on behalf of the Commissioner of Police. However, when the application came up for hearing, there was no attendance by the Commissioner or his advocate.

In her decision, Lady Justice R. Wendoh first expounded on the approach that a judicial review court is required to take in deciding such an application. The court iwas not concerned with the merits of the decision of the disciplinary hearing but with the procedure through which that decision was reached. Mr. Gatuiri’s application was not in the nature of an appeal against the decision of the presiding officer in the disciplinary proceedings but a call for a judicial review of the procedure followed in those proceedings.

The Judge observed that before a disciplinary enquiry of the kind envisaged under section 64 of the Police Act can be mounted against an officer of the disciplined forces, the officer must be notified of the offence in writing. The notice has to be in the form prescribed by the Act unless the notice is dispensed with where it is in the public interest that the inquiry should proceed with expedition.

The Judge found that the disciplinary proceedings against Mr. Gatuiri were fraught with gross procedural irregularities. The presiding officer had failed to ascertain whether Mr. Gatuiri had been served with the notice of the charge; the proceedings did not disclose whether the charge had been read to him in a language which he understood and the presiding officer had failed to inform him of his right to cross-examine the persons who had given evidence against him.

Mr. Gatuiri had also taken exception to the presiding officer’s decision refer the matter to the Commissioner of Police for sentencing ostensibly for the reason that the offence was very serious. In law, the Commissioner was vested with the power of hearing appeals against the decisions of the presiding officer. Therefore, to refer the sentencing decision to the Commissioner would be to compromise the Commissioner’s standing in making an impartial decision on the appeal if not to take away Mr. Gatuiri’s right of appeal.

Lady Justice Wendoh deprecated the failure by the officer presiding over the disciplinary proceedings to consider the record of the criminal case in which it was alleged Mr. Gatuiri had failed to produce a report. The presiding officer also failed to give a reason for his verdict. “Even where it is not expressly provided”, the Judge noted, “it is expected that a body exercising functions of a judicial nature will give reasons for its decision as evidence of its fairness in reaching the decision”. Because of the failure to record the reasons for the decision, the presiding officer’s decision was adjudged to be irrational, unreasonable and having no basis. Such a decision was amenable to be judicially reviewed by the High Court.

Even though Judicial Review orders are generally held to have no application in contracts of employment, the High Court in this case recalled the decision of the Court of Appeal in the case of Eric Makokha v Lawrence Sagini & others in which it was held that where one’s employment is based on an Act of Parliament providing for a special procedure for one’s dismissal, the law relating to Judicial Review would apply to ensure that the formal requirements of the Act have not been breached.

Indeed, Lady Justice Wendoh expressly acknowledged that she “could not force a marriage” between Mr. Gatuiri and the Police Force but because the procedure for the disciplining and dismissal of a police officer is set out in the Police Act, the High Court would not hesitate to interfere where that procedure has not been followed.

The High Court was satisfied that the Police Commissioner had not complied with the procedure provided under the Forces Orders in terminating Mr. Gatuiri and that the Commissioner had breached the rules of natural justice by acting in excess of his powers. The Court therefore granted Mr. Gatuiri the special order of certiorari quashing the decision of the Commissioner to dismiss Mr. Gatuiri from his employment in the Police Force.

GAZETTE NOTICE NO. 2437
THE COMMISSIONS OF INQUIRY ACT (Cap. 102)
COMMISSION OF INQUIRY INTO THE DECEMBER, 2007
GENERAL ELECTIONS
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 of the Commissions of Inquiry Act, I, Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of Kenya appoint-

JORGEN ELKLIT

to be secretary to the Commission appointed by me through Gazette Notice Notices Nos. 1982 and 1983 of 2008.

Dated the 2nd April, 2008.

MWAI KIBAKI,
President.



GAZETTE NOTICE NO. 2438 THE COMISSIONS OF INQUIRY ACT (Cap. 102)
COMMISSION OF INQUIRY INTO THE DECEMBER, 2007
GENERAL ELECTIONS
APPOINTMENT

IN EXERCISE of the powers conferred by section 4 of the Commissions of Inquiry Act, I, Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of Kenya appoint-

LUCY KAMBUNI

to serve as a Commissioner on the Commission appointed by me through Gazette Notices Nos. 1982 and 1983 of 2008.

Dated the 2nd April, 2008.

MWAI KIBAKI,
President.

GAZETTE NOTICE NO. 2439
THE RETIREMENT BENEFITS ACT (No. 3 of 1997)
THE RETIREMENT BENEFITS AUTHORITY
REVOCTION OF APPOINTMENT

IN EXERCISE of the powers conferred by section 6(f) of the Retirement Benefits Act, the Minister for Finance revokes the appointment of-

BARNABAS G. KARIUKI

as a member of the Retirement Benefits Authority.

Dated the 19th March, 2008.

AMOS KIMUNYA,
Minister for Finance.

*G.N. No. 657/2008

GAZETTE NOTICE NO 2440
THE RETIREMENT BENEFITS ACT
(No. 3 of 1997)
THE RETIREMENT BENEFITS APPEAL TRIBUNAL
APPOINTMENT

IN EXERCISE f the powers conferred by section 47(2) of the Retirement Benefits Act, the Minister for Finance appoints-

BARNABAS G. KARIUKI

to be a member of the Retirement Benefits Appeals Tribunal, for a period of three years, with effect from 11th December, 2007.

Dated the 19th March, 2008.

AMOS KIMUNYA,
Minister for Finance.

GAZETTE NOTICE NO. 2441
THE CERTIFIED PUBLIC SECRETARIES OF KENYA ACT (Cap. 534)
APPOINTMENT

IN EXERCISE of the powers conferred by paragraph 2(1) of the Third Schedule to the Certified Public Secretaries of Kenya Act, the Minister for Finance appoints-

Gilbert Oduor Otieno,
Jackson K. Maingi

to be the Chairman and Vice-Chairman, respectively, of the Registration of Certified Public Secretaries Board, with effect from 1st January, 2008.

Dated the 27th March, 2008.

AMOS KIMUNYA,
Minister for Finance.

GAZETTE NOTICE NO. 2442
THE CERTIFIED PUBLIC SECREATAREIS OF KENYA ACT (Cap. 534)
APPOINTMENT

IN EXERCISE of the powers conferred by section 12 of the Certified Public Secretaries of Kenya Act, the Minister for Finance appoints-

Gilbert O. Otieno,
Jackson K. Maingi,
Charles K. Wachira,
Hosea K. Kili,
Pius Mungai Nduatih,
George S. Mwosa,
Jane Wambui Chege,
Elizabeth Ng’ang’a,
Mary Adhiambo Oyolla,

to be members of the Registration of Certified Public Secretaries Board, with effect from 1st January, 2008.

Dated the 27th March, 2008.

AMOS KIMUNYA,
Minister for Finance.

GAZETTE NOTICE NO. 2443
THE ACCOUNTANTS ACT (Cap. 531)
APPOINTMENT

IN EXERCISE of the powers conferred by section 15(1) f the Accountants Act, the Minister for Finance appoints-

George Godia (Prof.),
Enos O. Oyaya,
Njoki Kahiga,
Fredrick Fanuel Odhiambo,
Kariithi M. Murimi,
Wanyama Kulundu-Bitonye (Prof.),
Sam G. Ogutha,
Rosemary Njogu,
Stephen Lubalia,

to be members of the Kenya Accountants and Secretaries National Examinations Board for a period of three years, with effect from 1st January, 2008.

Dated the 27th March, 2008.

AMOS KIMUNYA,
Minister for Finance.

GAZETTE NOTICE NO. 2444
THE ACCOUNTANTS ACT (Cap. 531)
APPOINTMENT OF MEMBERS

IN EXERCISE of the powers conferred by section 12 of the Accountants Act, the Minister for Finance appoints-

Daniel Mutisya Ndonye,
Joseph Nguthiru King’arui,
Vincent Otuoma Kamasara,
Pius Mungai Nduatih,
Lucy Karanja,
Abdulwahid Aboo,
Bob Karina,

to be members of the Registration of Accountants Board for a period of three years, with effect from 1st January, 2008.

Dated the 27th March, 20008.

AMOS KIMUNYA,
Minister for Finance.

GAZETTE NOTICE NO. 2446
THE NATIONAL ASSEMBLY AND PRESIDENTIAL ELECTIONS ACT (Cap. 7)
DECLARATION OF VACANCY –EMBAKASI CONSTITUENCY

PURSUANT to the provisions of section 18 of the National Assembly and Presidential Elections Act, I hereby give notice that consequent upon the death of-

MELITUS MUGABE WERE

the seat formerly held by the said Member has become vacant.

Dated the 27th March, 2008.

KENNETH MARENDE
Speaker of the National Assembly.

GAZETTE NOTICE NO. 2447
THE NATIONAL ASSEMBLY AND PRESIDENTIAL ELECTIONS ACT (Cap. 7)
DECLARATION OF VACANCY – AINAMOI CONSTITUENCY

PURSUANT to the provisions of section 18 of the National Assembly and Presidential Elections Act, I hereby give notice that consequent upon the death of-

DAVID KIMUTAI TOO

the seat formerly held by the said Member has become vacant.

Dated the 27th March, 2008.

KENNETH MARENDE
Speaker of the National Assembly.

GAZETTE NOTICE NO. 2448
THE LAW OF SUCCESSION ACT (Cap. 160)
APPOINTMENT

IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints-

ROSELYNE OGANYO

Senior Resident Magistrate at Kilgoris, to represent the High Court, for the purposes of that section, with effect from 1st April, 2008.

Dated the 20th March, 2008.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 2449
THE LAW OF SUCCESSION ACT (Cap. 160)
APPOINTMENT

IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints-

CHARLES O. OBULUTSA

Senior Resident Magistrate at Moyale, to represent the High Court, for the purposes of that section, with effect from 1st April, 2008.

Dated the 25th March, 2008.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 2450
THE MAGISTRATE’S COURTS ACT (Cap. 10)
INCREASE OF LIMIT OF JURISDICTION

IN EXERCISE of the powers conferred by section 5 of the Magistrate’s Courts Act, the Chief Justice, increases the limit of jurisdiction of -

DESDERIAS A. ORIMBA

Senior Resident Magistrate to Kenya Shillings Eight Hundred Thousand (KShs. 800,000), with effect from 1st April, 2008.

Dated the 19th March, 2008.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 2451
THE CHILDREN ACT (No. 8 of 2001)
APPOINTMENT

IN EXERCISE of the powers conferred by section 73(d) (ii) of the Children Act, 2001, the Chief Justice appoints-

ROSELYNE OGANYO

Senior Resident Magistrate, to preside over cases involving children in respect of Kilgoris and the whole of Rift Valley Province, with effect from 1st April, 2008.

Dated the 18th March, 2008.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 2452
THE CHILDREN ACT (No. 8 of 2001)
APPOINTMENT

IN EXERCISE of the powers conferred by section 73(d ) (ii) of the Children Act, 2001, the Chief Justice appoints-

CHARLES O. OBULUTSA

Senior Resident Magistrate, to preside over cases involving children in respect of Eastern Province, with effect from 1st April, 2008.

Dated the 25th March, 2008.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 2453
THE CHILDREN ACT (No. 8 of 2001)
APPOINTMENT OF A MAGISTRATE

IN EXERCISE of the powers conferred by section 73(d) (ii) of the Children Act, 2001, the Chief Justice appoints-

RUTH B. N. MALOBA

to preside over cases involving children in respect of Kisumu and the whole of Nyanza Province, with effect from 1st April, 2008.

Dated the 17th March, 2008.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 2454
THE MAGISTRATE’S COURTS ACT (Cap. 10)
INCREASE OF LIMIT OF JURISDICTION

IN EXERCISE of the powers conferred by Section 5 (1) of the Magistrate’s Court Act, the Chief Justice, increases the limit of jurisdiction of-

DORAH O. CHEPKWONY

Senior Resident Magistrate to Kenya Shillings Eight Hundred Thousand (KShs. 800,000) with effect from 1st April, 2008.

Dated the 17th March, 2008.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 2455
THE EXCHEQUER AND AUDIT ACT (Cap. 412)
THE EXCHEQUER AND AUDIT (PUBLIC PROCUREMENT) (AMENDMENT) REGULATIONS, 2002
APPOINTMENT

IN EXERCISE of the powers conferred by  the Exchequer and Audit (Public Procurement) (Amendment) Regulations, 2002, the District Commissioner, Imenti South District, appoints –

ANN B. KIMATHI (MRS.)

District Probation Officer, Imenti South District, to be the Chairperson of the Imenti South District Tender Committee.

Dated the 11th March, 2008.

W.O. WANYANGA,
District Commissioner,
Imenti South District.