Fred Siyoi v Pharmacy and Poisons Board of Kenya & another [2020] KEELRC 575 (KLR)
The bottom line
#Kenya's Employment Court lifted its injunction blocking the Pharmacy and Poisons Board CEO recruitment after a Court of Appeal ruling, but refused to add the applicant as a party.
What this practically means
#Executive summary
#Key legal issues
#Discovery of new and important matter as a ground for review
The Court of Appeal ruling of 24/4/2020, confirming that the dispute concerned the recruitment of the CEO of the Pharmacy and Poisons Board, constituted good reason to review the Court's earlier ruling of 9/10/2019
The Court of Appeal in CA No. 485/2019 confirmed that the recruitment of the Chief Executive Officer of the Pharmacy and Poisons Board failed to meet constitutional and statutory requirements, certiorari having been granted by Odunga J in Machakos. The orders of this Court of 9/10/2019 were staying the recruitment process, and once the Court of Appeal had confirmed that position, this Court had no business continuing to stay that recruitment. The Court therefore reviewed its ruling and lifted the injunction.
Joinder of an intended party to an employment dispute
The Applicant's joinder was again declined because the Petition is purely an employment relationship between the Petitioner and his employer, and his interest was already addressed in the Court of Appeal proceedings
The Court had earlier declined joinder in its ruling of 6/12/2019. The Applicant argued that the Court of Appeal's ruling confirmed his personal stake in the matter. The Court held that since his interest was addressed in CA No. 485/2019, adding him would not add value to a Petition that concerns only the employment relationship between the Petitioner and the Respondent. The earlier finding that his presence was not necessary therefore stood.
Alleged collusion between the Petitioner and Respondent
The Court did not find collusion; it treated the Court of Appeal ruling as confirming the subject matter of the dispute rather than as proof of collusion between the parties
The Applicant alleged collusion and concealment because the Respondent had vouched for the Petitioner before the Court of Appeal and had not responded to the Petition. The Petitioner and Respondent both denied collusion, the Respondent noting that the Machakos decision featured prominently in the pleadings and was in the public domain. The Court did not make any finding of collusion; it simply used the Court of Appeal confirmation as the basis for review and lifting the injunction.
Delay in bringing the review application
Delay was raised by the Petitioner but the Court found the new Court of Appeal ruling sufficient reason to review, effectively excusing the roughly 5-month delay
The Petitioner argued that the ruling of 6/12/2019 was delivered on 6/12/2019 and the review application filed on 29/4/2020, close to 5 months later, without explanation. The Applicant countered that the application was filed within 6 days of obtaining the Court of Appeal ruling, with Covid-19 disrupting court operations. The Court did not dismiss the application for delay, proceeding instead to grant review on the new matter.
Legal principles established
#- A review may be granted where new and important matter or evidence is discovered which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced at the time of the original decision
- An erroneous conclusion of law or evidence is a ground for appeal, not for review
Court orders
#- 1.The Court's ruling of 9/10/2019 is reviewed
- 2.The injunction granted stopping recruitment of the Chief Executive Officer of the Pharmacy and Poisons Board is lifted
- 3.The Applicant's application for joinder is declined
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 32/33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred Siyoi v Pharmacy and Poisons Board of Kenya & another [2020] KEELRC 575 (KLR)", Case Analysis (2020). Not stated in judgment (arising from Petition between Dr. Fred Moin Siyoi and Pharmacy and Poisons Board). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/575/eng@2020-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.