Pharmacy and Poisons Board v Dr. George Wang’anga & 6 others
The bottom line
#Kenya's Court of Appeal set aside a ruling that quashed amendments to pharmacy laws, holding judges reviewing legislation must examine process, not merits.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the High Court over legislative process notwithstanding separation of powers and parliamentary privilege
The High Court had jurisdiction; the independence of the legislature applies only within constitutional limits, and section 11 of the Parliamentary Powers and Privileges Act 2017 did not apply retrospectively
The Court relied on Supreme Court authority that courts may pronounce on a legislative body's compliance with constitutionally prescribed processes. The appellant's jurisdictional objections rested on separation of powers and section 11 of the Parliamentary Powers and Privileges Act, No. 29 of 2017. That Act commenced on 17th August 2017, after the impugned proceedings of 5th April 2017 and after the judicial review application was filed on 11th July 2017, and its transitional provisions show no retrospective intent. Parliament's independence therefore did not bar the proceedings.
Whether the appellant was accorded a fair hearing before the High Court
No. The learned Judge failed to analyse or even mention the appellant's extensive affidavits and submissions, denying it a fair hearing despite full participation
The appellant was joined as an interested party and filed a 65-paragraph affidavit, submissions and lists of authorities. The judgment summarised the applicant's and supporting parties' cases and analysed the opposing respondents' case, but gave the appellant a 'total blackout'. The Court held that a decision-maker must consider a party's case regardless of whether the outcome would probably have been the same, so ground one of the appeal had merit.
Whether the learned Judge properly exercised judicial review discretion
He did not. He overstepped by delving into the merits and content of the amendments, and the introduction of substantive amendments at Committee stage without public participation did not, on the record, justify quashing the proceedings
Applying Pastoli, judicial review addresses illegality, irrationality and procedural impropriety, not merits. The Judge's findings that there was no nexus between section 34 and the rest of the Bill, and that Parliament deleted a provision by mistake, were merits determinations outside judicial review. Suchan Investment was distinguished as concerning administrative action under the Fair Administrative Action Act, not Parliament's constitutional mandate to legislate. The Senate issue was for the Speakers under Article 110(3), and the 4th respondent did not complain.
Whether the impugned proceedings and Bill were unconstitutional
The Court was not convinced the proceedings of 5th April 2017 or the Bill were unconstitutional; the appellant's ground succeeded
Although the Judge had found the amendments violated Articles 10 and 118 and the Standing Orders, the Court of Appeal held that public participation was not to occur on the floor of the House on the date in question and that this would not alone justify quashing by judicial review. The Senate had not complained, and no disagreement between the Speakers was demonstrated, so the Article 110(3) issue did not arise for the Court.
Costs
No reasons had been given for awarding costs to the 1st respondent against the 1st to 3rd respondents; in public interest litigation each party should bear its own costs
Applying Farrah Awad Gullet on costs following the event and appellate restraint, the Court found no reasons were advanced for the costs award. Because the proceedings concerned amendments affecting the general public and were public interest in nature, costs against the respondents would come from public coffers. The Court accordingly set aside the judgment and ordered each party to bear its own costs in both courts.
Legal principles established
#- The High Court has jurisdiction to interrogate whether the legislature's law-making functions were exercised in accordance with the Constitution; legislative independence does not shield unconstitutional parliamentary action from judicial scrutiny
- Section 11 of the Parliamentary Powers and Privileges Act, No. 29 of 2017 does not apply retrospectively and therefore could not bar judicial review of parliamentary proceedings that occurred before its commencement on 17th August 2017
- In judicial review, the court is concerned with the process of decision-making and not the merits of the decision; a judge sitting in judicial review oversteps jurisdiction by delving into the merits or content of legislative amendments
- A litigant whose case is not analysed or considered at all in a judgment is denied a fair hearing, and it matters not whether the outcome would have been the same
- In public interest litigation, an appellate court may properly order each party to bear its own costs
Court orders
#- 1.Appeal allowed in entirety
- 2.The impugned judgment of the High Court dated 17th January 2018 and all consequential orders arising therefrom set aside
- 3.Each party to bear its own costs both in the appeal and in the Court below
- On appeal from
- High Court of Kenya at Nairobi
- Misc. C.A No. 391 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the appellate structure of the Constitution and the Appellate Jurisdiction Act, following judicial review proceedings before the High Court under Article 165(3) and Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pharmacy and Poisons Board v Dr. George Wang’anga & 6 others", Case Analysis (2020). Civil Appeal No. 79 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/775/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.