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Court of AppealDismissedCivil Appeal (Application) No. 485 of 2019 (Consolidated with Civil Application No. 529 of 2019)· [2020] KECA 779 (KLR)

Pharmacy and Poisons Board v Wambua Maithya & 2 others [2020] KECA 779 (KLR)

Court of Appeal of Kenya
24 April 2020
DMD. K. MusingaSKS. Gatembu KairuKMK. M'Inoti
2,149 words in judgment
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The bottom line

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The Court of Appeal refused to pause a High Court ruling that struck down Pharmacy and Poisons Board CEO qualification rules, because the appellants couldn't show the appeal would be pointless without a pause.

What this practically means

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Executive summary

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This consolidated ruling of the Court of Appeal at Nairobi (Musinga, Gatembu Kairu and M'Inoti, JJ.A.) determined two applications, Nos. 485 and 529 of 2019, by the Pharmacy and Poisons Board and Dr. Kamamia Wa Murichu seeking stay of execution of the judgment of Odunga, J. delivered on 26th September 2019 in H.C. Const. Pet. No. 2 of 2019 at Machakos. That judgment had declared the mandatory qualification requirements for the position of Chief Executive Officer of the Pharmacy and Poisons Board unconstitutional and quashed them by certiorari, on the basis that the prescriptions were so onerous as to permit only a few persons to apply. The applicants invoked rule 5(2)(b) of the Court of Appeal Rules, contending that their intended appeals - challenging, among other things, the High Court's jurisdiction over a recruitment dispute and the standing of an interested party - were arguable and would be rendered nugatory if the recruited CEO were ousted. The court applied the twin principles from the Stanley Kang'ethe Kinyanjui decision. It accepted arguability, noting the 3rd respondent conceded it, but held the nugatory limb failed: Dr. Fred M. Siyoi, the person most affected, showed no interest in the proceedings, and the applicants failed to demonstrate irreversibility, adequacy of damages or hardship. Both applications were dismissed with costs to the 1st respondent in No. 485 and the 4th respondent in No. 529. The decision below was not disturbed.

Key legal issues

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01

Arguability of the intended appeals

Holding

The intended appeals were arguable, engaging the jurisdiction of the High Court over recruitment disputes, the PPB's statutory mandate, and the standing of an interested party

Reasoning

The applicants raised several arguably viable grounds, including whether the High Court had jurisdiction over a recruitment dispute belonging to the Employment and Labour Relations Court, whether the High Court usurped the PPB's statutory recruitment mandate, and the status of an interested party. The 3rd respondent conceded arguability. The court was persuaded the appeals were arguable and said no more at that juncture.

p. 3
02

Nugatory-principle limb under rule 5(2)(b)

Holding

The applicants failed to show the appeals would be rendered nugatory absent stay; the recruited CEO could join fresh recruitment and irreversibility and hardship were not demonstrated

Reasoning

The court noted Dr. Siyoi, the person most affected, took no interest in the proceedings, casting doubt on the applicants' locus to speak for him. A fresh recruitment would not bar Dr. Siyoi from participating. The applicants did not show irreversibility, adequacy of damages, or the hardship they would suffer, so the nugatory limb failed.

p. 4

Legal principles established

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  • An arguable appeal need not be one that must succeed; it is one deserving of the Court's consideration, and it suffices that only one ground of appeal is arguable
  • A rule 5(2)(b) applicant must satisfy both the arguability and nugatory-principle limbs to obtain stay of execution pending appeal
  • An applicant for stay must demonstrate that what is sought to be stayed is irreversible or that damages will reasonably compensate the aggrieved party

Court orders

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  1. 1.Dismissal of Civil Application No. 485 of 2019
  2. 2.Dismissal of Civil Application No. 529 of 2019
  3. 3.Costs of Civil Application No. 485 of 2019 to the 1st respondent
  4. 4.Costs of Civil Application No. 529 of 2019 to the 4th respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 73(2)(a)
  • Constitution of Kenya, 2010Article 232
  • Pharmacy and Poisons Actsection 5
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (3)

  • Stanley Kang'ethe Kinyanjui vs Tonny Ketter & 5 others
    [2013] eKLR
  • Republic vs Public Procurement Administrative Review Board and 3 Others Exparte Kenya Electricity Generating Company Ltd
    [2010] eKLR
  • Charles Munyendo Olingo vs Salim Chetechi Makokha & Another
    [2019] eKLR
On appeal from
High Court of Kenya at Machakos
H.C. Const. Pet. No. 2 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)

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, "Pharmacy and Poisons Board v Wambua Maithya & 2 others [2020] KECA 779 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 485 of 2019 (Consolidated with Civil Application No. 529 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/779/eng@2020-04-24

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