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Court of AppealDismissedCivil Appeal No. 190 of 2014· [2016] KECA 82 (KLR)

Registrar, Pharmacy & Poisons Board & another v Permanent Secretary - Medical Services Ministry & 3 others [2016] KECA 82 (KLR)

Court of Appeal of Kenya
25 November 2016
3,150 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal voided a board appointment made by the wrong official, confirming that urgency or later approval cannot fix appointments the law didn't authorise.

What this practically means

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Executive summary

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The Court of Appeal (Makhandia, Ouko and M'inoti, JJ.A.) dismissed an appeal against Odunga, J.'s decision of 19th May 2014 quashing by certiorari the appointment of the Management Board of the National Quality Control Laboratory gazetted on 24th February 2011 and prohibiting that Board from discharging the Board's functions. The central question was the proper procedure for appointing members of the NQCL Management Board under section 35F of the Pharmacy and Poisons Act, Cap 244, which vests the appointing power in the Pharmacy and Poisons Board. The Court found that the Gazette Notice showed the Registrar, not the P&P Board, made the appointments, and that the Registrar acted in consultation with the Minister, the Permanent Secretary and the Director of Medical Services - persons who are not members of the P&P Board. This was a fundamental flaw that completely vitiated the appointments, and the Board's subsequent purported ratification was of no effect. The Court also upheld the certiorari and prohibition orders despite the expiry of the Board's term, holding that the judge properly erred on the side of caution given the egregious disregard of mandatory statutory provisions and the possibility of re-appointment. On costs, the Court affirmed the award to the successful 4th respondent, holding that costs are discretionary and that there is no immutable rule against costs in public interest litigation. However, because the 4th respondent did not appear on appeal, the Court awarded him no costs of the appeal.

Key legal issues

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01

Validity of appointment of the NQCL Management Board by the Registrar instead of the P&P Board

Holding

The appointment was ultra vires the Pharmacy and Poisons Act because it was made by the Registrar in consultation with the Minister, Permanent Secretary and Director of Medical Services, none of whom is the P&P Board in whom section 35F vests the power.

Reasoning

Under section 35F, the power to appoint members of the NQCL Management Board vests in the P&P Board, of which the Registrar is only one member. The Gazette Notice named the Registrar as the appointing authority, and the minutes confirmed the Registrar acted in consultation with the Minister, PS and DMS because of urgency and the Board's inability to meet. Persons who are not members of the P&P Board cannot exercise its power, and the Minister who appoints the Board cannot usurp its functions. There was no resolution of delegation.

p. 6
02

Efficacy of certiorari and prohibition where the impugned board's term has expired

Holding

Although the court should not issue orders in vain, the High Court properly issued certiorari and prohibition given the egregious disregard of mandatory statutory provisions, to guard against perpetuation of illegal appointments and possible re-appointment.

Reasoning

The appellants argued the orders were futile since the Board's three-year term had expired and members had resigned. The Court accepted that courts should not issue orders in vain, but held that given the egregious disregard of mandatory provisions of the Act, and because section 35F allows re-appointment, the judge acted reasonably in erring on the side of caution to prevent perpetuation of illegal appointments in an institution responsible for critical national health matters.

p. 6
03

Award of costs to a successful public interest litigant

Holding

Costs are discretionary and the judge did not act injudiciously in awarding costs to the successful 4th respondent; the appellants, found responsible for acting contrary to the Act, cannot complain.

Reasoning

The Court held that costs are at the discretion of the court, that the appellants were found responsible for acting contrary to the dictates of the Act, and that there is no rigid or immutable rule barring costs in public interest litigation. The judge's award of costs to the successful litigant was therefore proper.

p. 6

Legal principles established

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  • A statutory power to appoint a board must be exercised by the body on which the statute vests it; exercise of that power by persons not authorised by the statute, including a delegation to an official such as the Registrar, is ultra vires and vitiates the appointment, and cannot be cured by subsequent ratification.
  • Ratification of an ultra vires appointment by the body in whom the power is vested is of no effect where the appointments were made by persons who had no role in the appointment.
  • There is no rigid or immutable rule that costs can never be awarded in public interest litigation.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.High Court judgment of 19th May 2014 (certiorari quashing the NQCL Management Board appointment and prohibition against the Board) upheld
  3. 3.No costs awarded to the 4th respondent

Authorities

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Legislation

  • Pharmacy and Poisons ActCap 244
  • Pharmacy and Poisons Actsection 3
  • Pharmacy and Poisons Actsection 5
  • Pharmacy and Poisons ActPart IIIB
  • Pharmacy and Poisons Actsection 35D
  • Pharmacy and Poisons Actsection 35F(1)
  • Interpretation and General Provisions ActCap 2, section 43

Cases cited (2)

  • Republic v Tribunal of Inquiry, ex parte Tom Mbaluto
    HC Misc. App. No. 666 of 2008
  • Sangani Investments Ltd v Officer in Charge Nairobi Remand & Allocation Prison
    (2007) 1 EA 354
On appeal from
High Court of Kenya at Nairobi
HC Misc. C. No. 214 "A" of 2011-JR
Jurisdiction invoked
First appellate jurisdiction over the High Court judgment in judicial review (Constitution of Kenya, 2010; Court of Appeal Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Registrar, Pharmacy & Poisons Board & another v Permanent Secretary - Medical Services Ministry & 3 others [2016] KECA 82 (KLR)", Case Analysis (2016). Civil Appeal No. 190 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/82/eng@2016-11-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.