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ELRCPartially AllowedConstitutional Petition dated 20.07.2019· [2019] KEELRC 247 (KLR)

Mr. Ronoh Sitienei & 4 others v Pharmacy & Poisons Board; Attorney General & 4 others Interested Party [2019] KEELRC 247 (KLR)

Employment and Labour Relations Court
15 November 2019
BOByram Ongaya
6,621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court quashed the Pharmacy and Poisons Board's attempted takeover of the National Quality Control Laboratory, ruling only the President can revoke state corporation board appointments.

What this practically means

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Executive summary

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This first-instance constitutional petition challenged Gazette Notice No. 6599 dated 01.07.2019 by which the Pharmacy and Poisons Board revoked the appointments of the entire Board of Management of the National Quality Control Laboratory and secretly appointed a new Board, and eight letters dated 18.07.2019 asserting that the Laboratory reported to and was supervised by the Board. The court framed three issues: the statutory authority for the revocation, the constitutionality of the new appointments, and the validity of Dr. Jackson Kioko's tenure as Board Chairperson. The court held that although the Board was the appointing authority under section 35F(1) of the Pharmacy and Poisons Act, section 51 of the Interpretation and General Provisions Act is a general provision displaced by section 7(3) of the State Corporations Act, the specific provision reserving revocation power to the President. The revocation was therefore ultra vires, null and void ab initio, and violated Articles 27, 47 and 236, with no notice, hearing or reasons given. The new appointments were unconstitutional for breaching merit, openness, competitiveness and suitability requirements in Articles 10, 27, 73 and 232 and the Public Officer Ethics Act and Public Service Commission Act, applying the court's own earlier opinion in the Okiya Omtatah Okoiti case. The court also held the Laboratory enjoys autonomy as a separate body corporate and cannot be administratively supervised by the Board. However, the prayer declaring Dr. Kioko's Chairmanship irregular failed, as his appointment was never revoked and section 3(2) of the Health Laws (Amendment) Act, 2019 protected his tenure. The compensation prayer was deemed abandoned. Certiorari issued quashing the Gazette Notice and the eight letters, and the petitioners obtained costs.

Key legal issues

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01

Whether the 1st respondent had statutory power to revoke the petitioners' appointments as Board members

Holding

The revocation was ultra vires section 7(3) of the State Corporations Act, unconstitutional, and null and void ab initio

Reasoning

Section 35F(1) of the Pharmacy and Poisons Act made the 1st respondent the appointing authority, but section 51 of the Interpretation and General Provisions Act applies only 'unless a contrary intention appears'. Section 7(3) of the State Corporations Act is the specific provision governing revocation of state corporation board members' appointments, vesting that power in the President within safeguards. Under generalia specialibus non derogant, the specific law prevailed, so the 1st respondent acted ultra vires and unconstitutionally, violating Articles 27 and 47 and Article 236.

p. 8
02

Whether the appointments of the new Board members were unconstitutional

Holding

The appointments were unconstitutional for violation of the constitutional and statutory tests of appointment

Reasoning

Having no statutory power to revoke, the 1st respondent created no valid vacancy to fill. Further, the new members were handpicked without open advertisement, transparent selection interviews, merit, competitiveness or suitability criteria, contrary to Articles 10, 27, 73 and 232 of the Constitution and the Public Officer Ethics Act, 2003 and the Public Service Commission Act, 2017. The court applied its own prior opinion in Okiya Omtatah Okoiti to hold that normal appointments under section 35F must comply with those criteria.

p. 9
03

Whether Dr Jackson Kioko lawfully holds the office of Chairperson of the 1st respondent's Board

Holding

Yes - his appointment was never revoked and is protected by the transitional provision until about 08.03.2020

Reasoning

Although the office of Director of Medical Services was abolished by the Health Act, 2017 and replaced with Director-General for Health, there was no evidence Dr. Masasabi was appointed as envisaged, and no evidence Dr. Kioko's gazetted appointment dated 08.03.2017 was revoked. Section 3(2) of the Health Laws (Amendment) Act, 2019, which commenced on 17.05.2019, deemed persons who were members immediately before commencement to continue for the unexpired term, protecting his service as Chairperson.

p. 10
04

Whether the 2nd interested party can be administratively supervised by the 1st respondent

Holding

No - it enjoys autonomy as a separate body corporate; supervision authority lies with the State Corporations Advisory Committee and the Cabinet Secretary under the State Corporations Act

Reasoning

The 2nd interested party is a state corporation not exempted from the State Corporations Act. Its annual performance contract was concluded with the Cabinet Secretary, in line with the Mwongozo Code. The 1st respondent's only statutory roles are appointment of Board members under section 35F and prescribing GMP standards, so the eight letters asserting supervisory authority contravened the Pharmacy and Poisons Act and the State Corporations Act and were unconstitutional.

p. 8

Legal principles established

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  • Section 51 of the Interpretation and General Provisions Act is a general provision yielding to the specific provision in section 7(3) of the State Corporations Act; revocation of a state corporation board member's appointment can only be effected by the President under that section
  • Appointments to boards of state corporations must comply with the openness, transparency, merit, competitiveness and suitability requirements of Articles 10, 27, 73 and 232 of the Constitution and the Public Service Commission Act, 2017, absent a specific statutory procedure
  • Every removal of a public officer engages Article 236 due process; where there is no prior notice, hearing or reason given, natural justice is breached

Court orders

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  1. 1.Declaration that the petitioners and 3rd to 5th interested parties are entitled to protection of their fundamental rights and freedoms, including fair labour practices, and the respondents are under a duty to observe Articles 10, 73 and 232 of the Constitution
  2. 2.Declaration that the revocation of appointment of the entire Board of Management of National Quality Control Laboratory and simultaneous appointment of a new Board conveyed by Gazette Notice No. 6599 dated 01.07.2019 was in contravention of the Constitution and null and void to the extent found in the judgment
  3. 3.Declaration that the 1st respondent's eight letters Ref. No. PPB/NQCL/VOL.II/19/010–017 dated 18.07.2019 that the Board reported to or was supervised by the 1st respondent and that the petitioners failed in their duties contravenes the Pharmacy and Poisons Act and the State Corporations Act and is unconstitutional, null and void
  4. 4.Judicial review order of certiorari quashing the decision in Gazette Notice No. 6599 dated 01.07.2019 revoking the Board of Management of the National Quality Control Laboratory and appointing a new Board
  5. 5.Judicial review order of certiorari quashing each of the 1st respondent's eight letters Ref. No. PPB/NQCL/VOL.II/19/010–017 dated 18.07.2019
  6. 6.Declaration that the 2nd interested party enjoys leadership, management and governance autonomy as a separate body corporate from the 1st respondent and cannot be administratively supervised by the 1st respondent
  7. 7.The respondents to pay the petitioners' costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 3, 10, 22, 236, 258, 27, 47, 50, 73, 232
  • Pharmacy and Poisons ActCap 244, sections 3(1)(a), 35A, 35B, 35C, 35E, 35F, 35G, 35H, 35I, 35J, 35K
  • State Corporations Actsections 4, 5A(1), 7(3), 18(1)(a), 30
  • Interpretation and General Provisions ActCap 2, section 51(1)
  • Health Laws (Amendment) Act2019, sections 3(2), transitional provisions
  • Health Act2017, section 70
  • Public Health ActCap 242, section 9(1)
  • Public Officer Ethics Act2003, section 2
  • Public Service Commission Act2017
  • Employment Act2007, section 46
  • Kenya Revenue Authority ActCap 469, sections 6(2)(a) and (e)

Cases cited (5)

  • National Quality Control Laboratory –Versus– The National Assembly and 5 Others
    HCMCA No. 168 of 2019
  • Dr. Pius Wanjala –Versus– Ministry of Health
    Misc. Civil Application No. 159 of 2016
  • Dominick Obel Obongo & Another –Versus– County Director of Education, Siaya County & Another
    [2019]eKLR
  • Independent Policing Oversight Authority & Another –Versus– Attorney General & 660 Others
    [2014]eKLR
  • Okiya Omtatah Okoiti –Versus– Attorney General & 2 Others and Francis K. Muthaura & 5 Others
    [2019]eKLR
Jurisdiction invoked
Articles 22 and 258 of the Constitution (enforcement of the Bill of Rights) with judicial review order of certiorari sought

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, "Mr. Ronoh Sitienei & 4 others v Pharmacy & Poisons Board; Attorney General & 4 others Interested Party [2019] KEELRC 247 (KLR)", Case Analysis (2019). Constitutional Petition dated 20.07.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/247/eng@2019-11-15

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