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Court of AppealPartially AllowedCivil Appeal No. 172 of 2016· [2018] KECA 794 (KLR)

Josephat Mwisa & 24 others v Pharmacy and Poisons Board & another [2018] KECA 794 (KLR)

Court of Appeal
9 February 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
4,168 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a court cannot dismiss an affidavit as if it were an application, and sent pharmacy graduates' stalled registration case back to the High Court.

What this practically means

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Executive summary

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The appellants, holders of diplomas in Pharmacy from the Kenya College of Medicine & Related Studies examined by KNEC, petitioned the High Court seeking declarations that the Pharmacy and Poisons Board and its Registrar violated their constitutional rights by refusing to issue them prescribed application forms for registration as pharmaceutical technologists. On 18th December 2013 Lenaola J found no ultra vires conduct and no discrimination, but found a breach of the right to fair administrative action under Article 47. He issued a preliminary decree with three steps: the respondents were to avail the prescribed forms within 30 days; the Board was to consider each application irrespective of college of training; and a report was to be filed within 60 days for final orders. Neither the final orders nor costs were ever made. When compliance stalled, Josephat Mwisa swore an affidavit on 9th April 2015 seeking the court's intervention. On 19th February 2016 the trial court, treating the affidavit as a contempt application, purported to dismiss a non-existent application dated 10th April 2015. The Court of Appeal held that an affidavit is not an application capable of dismissal; that there was no contempt application before the trial court, which therefore misdirected itself; and that the compliance steps had not progressed beyond the first stage, leaving the trial court's final judgment outstanding. The Court allowed the appeal, set aside the ruling of 19th February 2016, and remitted the matter to the High Court for final determination in accordance with the orders of 18th December 2013, by any other judge since Lenaola J was no longer available. No costs order was made.

Key legal issues

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01

Whether an appeal lay from the ruling of 19th February 2016

Holding

The appeal lay, as the purported dismissal fell under Order 19 of the Civil Procedure Rules with an appeal provided for under Section 75(1)(h) of the Civil Procedure Act as read with Order 43 Rule 1(1)(j)

Reasoning

The court noted that under section 66 of the Civil Procedure Act an appeal lies from a decree or part of a decree of the High Court where expressly provided. Although there was no actual application dated 10th April 2015 before the trial court, the affidavit filed on that date was the subject of the purported dismissal, and the dismissal fell under Order 19 of the Civil Procedure Rules, with a right of appeal under section 75(1)(h) read with Order 43 Rule 1(1)(j).

p. 4
02

Whether the trial court could dismiss the affidavit of 9th April 2015

Holding

The affidavit was not an application capable of dismissal; the trial court misdirected itself by treating the matter as a contempt application when none existed

Reasoning

It was common ground that no application dated 10th April 2015, or any application for contempt, was before the trial court. What was before the court was Josephat's affidavit seeking the court's intervention over non-compliance with the orders of 18th December 2013. While a court may base a ruling on affidavit evidence, an affidavit is an evidentiary instrument, not an application that can be dismissed. The trial court accordingly misdirected itself in framing the task as determining contempt.

p. 4
03

Whether the respondents had complied with the orders of 18th December 2013

Holding

The parties had not gone beyond the first step of the three-step compliance process, and the respondents were still being directed to finalize the process more than a year after the judgment

Reasoning

The judgment of 18th December 2013 prescribed three steps: availing the prescribed forms, considering each application, and filing a report within 60 days for final orders. The parties did not go beyond the first step, so the final step bringing the matter to conclusion was never reached. The record showed that the Registrar was repeatedly summoned to explain non-compliance, demonstrating that the appellants' plea for enforcement was not without substance.

p. 4

Legal principles established

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  • An affidavit is not an application and cannot be the subject of an order of dismissal; a court cannot dismiss an affidavit as though it were a notice of motion
  • A court may not adjudicate contempt, and dismiss a purported application for contempt, where no application seeking committal is actually before it
  • Where a judgment reserves final orders contingent on compliance and a report to court, the court retains the duty to finalize the judgment after compliance steps are undertaken

Court orders

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  1. 1.The orders made by the High Court on 19th February 2016 are set aside
  2. 2.The matter is referred back to the High Court to make a final determination in accordance with the orders of 18th December 2013 or to issue any appropriate directions
  3. 3.The matter may be dealt with by any other judge, as Lenaola J is no longer available

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 258, 27, 28, 43, 47, 73
  • Pharmacy and Poisons ActSection 8(2), Section 7(2), preamble
  • Civil Procedure ActSection 66, Section 75(1)(h)
  • Civil Procedure RulesOrder 19, Order 43 Rule 1(1)(j)

Cases cited (1)

  • John Kabui Mwai & Others v Kenya National Examination Council
    (2011) eKLR
On appeal from
High Court of Kenya at Nairobi
High Court Petition No. 346 of 2013
Jurisdiction invoked
Section 66 of the Civil Procedure Act; appeal under Section 75(1)(h) of the Civil Procedure Act as read with Order 43 Rule 1(1)(j) of the Civil Procedure Rules

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, "Josephat Mwisa & 24 others v Pharmacy and Poisons Board & another [2018] KECA 794 (KLR)", Case Analysis (2018). Civil Appeal No. 172 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/794/eng@2018-02-09

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