A gavel.
The High Court has ordered the Kenya Medical Practitioners and Dentists Council to issue a long-delayed ruling in a disciplinary case involving an alleged botched surgery linked to a patient’s death nearly five years ago.
The court, citing a violation of fair administrative action, directed the council’s chairperson to deliver a decision within 14 days and warned that failure to comply would lead to contempt proceedings.
The case was filed by Irene Wanjau, who accused the council of failing to issue a ruling for more than four years after hearing her complaint against a surgeon and a private hospital regarding her mother’s death.
“The delay is inordinate and denies justice to the parties involved,” Justice Roseline Aburili stated, ruling that the council’s inaction violated Article 47 of the Constitution on fair administrative action.
Ms Wanjau lodged her complaint on January 28, 2021, against a doctor at Nairobi South Hospital and the hospital itself, alleging medical negligence during a periscopic surgery.
She claimed the procedure led to the perforation of her mother’s small intestines, causing complications that resulted in death, prompting her to seek disciplinary action before the council.
The council heard the matter on November 3, 2021, and instructed all parties to submit their arguments by December 10 of that year. While submissions were filed, no ruling date was ever set.
After months of silence, Ms Wanjau wrote to the council on March 4, 2022, seeking clarification on when the decision would be issued, but received no response.
She followed up with further inquiries in May 2023, prompting the council to email her on May 17, 2023, promising that all pending rulings would be delivered by the end of June 2023.
No ruling was issued, and another email from the council on March 28, 2024, assured her that the decision would be delivered by April 19, 2024—yet again, nothing happened.
This compelled Ms Wanjau to file a judicial review application in court. Her lawyer informed the court that the council had pledged to issue the ruling by November 2025 but failed to do so.
They presented multiple letters sent to the council inquiring about the ruling’s status, all unanswered, necessitating legal action.
The council did not oppose the application despite being served with hearing notices, leaving Ms Wanjau’s account uncontested in court.
Justice Aburili noted that the council, established under the Medical Practitioners and Dentists Act, exercises statutory and quasi-judicial powers and has an obligation to resolve disciplinary matters promptly.
“Section 20 of the Act mandates the Council to render a decision after hearing both the complainant and the medical professional,” the judge observed, highlighting concerns over accountability and delays within professional regulatory bodies.
Although the law does not prescribe specific timelines for decisions, the court ruled that the Interpretation and General Provisions Act requires actions to be taken without unreasonable delay.
“The refusal to deliver a ruling for over three years violates the applicant’s right to fair administrative action and constitutes an abuse of power,” Justice Aburili declared.
She added that the failure to issue a decision deprived the parties of their right to appeal or seek judicial review, as there was no ruling to challenge.
Regarding remedies, the judge deemed the order compelling the council to deliver its ruling appropriate, as it had neglected a statutory public duty.
“I therefore allow the application and issue judicial review order of mandamus compelling the chairman of the Kenya Medical practitioners and Dentists Council, to, within 14 days of service of this judgment, unless extended by this court, render a decision in Disciplinary Case No 9 of 2021 and in default, contempt of court proceedings to be commenced against him/her,” said Justice Aburili.
The judge declined to award costs “since the respondent did not participate and is a public quasi-judicial body.”
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