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ELRCPartially AllowedNot stated in judgment (arising from Petition between Dr. Fred Moin Siyoi and Pharmacy and Poisons Board)· [2020] KEELRC 575 (KLR)

Fred Siyoi v Pharmacy and Poisons Board of Kenya & another [2020] KEELRC 575 (KLR)

Employment and Labour Relations Court
28 July 2020
3,716 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling on a review application by Wambua Maithya, the proposed second respondent in a Petition by Dr. Fred Moin Siyoi against the Pharmacy and Poisons Board. Maithya, who had been refused joinder by a ruling of 6/12/2019, sought review of the Court's ruling and conservatory orders of 9/10/2019 and 6/12/2019, relying principally on the Court of Appeal ruling of 24/4/2020 in Civil Appeal (Application) No. 485 of 2019, which confirmed that the High Court at Machakos (Odunga J) had annulled the recruitment of the Chief Executive Officer of the Board. He alleged collusion and concealment between the Petitioner and the Respondent and errors apparent on the face of the record. The Petitioner opposed, arguing no new and important matter existed, the delay of about five months was unexplained, the application was a disguised appeal, and collusion had not been proved. The Respondent likewise opposed, characterising the Court of Appeal ruling as a subsequent occurrence rather than new evidence. The Court noted that the orders of 9/10/2019 had stayed the recruitment of the CEO, and since the Court of Appeal had confirmed that the recruitment process was the subject of the Machakos litigation and had dismissed applications for stay, this Court had no business continuing to stay that recruitment. It reviewed its ruling of 9/10/2019 and lifted the injunction stopping the recruitment. However, it again declined to enjoin the Applicant, holding that his interest had been addressed in the Court of Appeal proceedings and the Petition concerns purely an employment relationship. Costs were awarded in the Petition.

Key legal issues

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01

Discovery of new and important matter as a ground for review

Holding

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

Reasoning

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.

p. 5
02

Joinder of an intended party to an employment dispute

Holding

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

Reasoning

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.

p. 5
03

Alleged collusion between the Petitioner and Respondent

Holding

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

Reasoning

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.

p. 5
04

Delay in bringing the review application

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Court's ruling of 9/10/2019 is reviewed
  2. 2.The injunction granted stopping recruitment of the Chief Executive Officer of the Pharmacy and Poisons Board is lifted
  3. 3.The Applicant's application for joinder is declined

Authorities

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Legislation

  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure ActSections 1A, 1B and 3A
  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)
  • Employment and Labour Relations Court Rules 2016Rule 32
  • Supreme Court ActSection 23
  • Supreme Court RulesRule 25

Cases cited (10)

  • Francis Kariuki Muruatetu & Another v Republic & 4 Others
    [2018] eKLR
  • Origo & Another v Mungala
    (2005) 2 KLR
  • Jameny Mudaki Asav v Brown Otengo Asava & another
    [2015] eKLR
  • Petition 15 & 16 of 2015 (Consolidated)
  • Kithure M’Mwendwa Nyaga v Teacher Service Commission
    [2019] eKLR
  • Associated Insurances Brokers v Kenindia Assurance Co. Ltd
    [2018] eKLR
  • Nyamogo and Nyamogo Advocates v Kogo
    (2001) E.A. 173
  • Samuel Ogodo Waga v Fish Processors (2000) Ltd
    [2014] eKLR
  • Christine Sigowa Wadulo v Solimpexs Africa Limited
    [2016] eKLR
  • Sadar Mohammed v Charan Singh & Another
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

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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, "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.