Mboya v Pharmacy and Poisons Board & 3 others (Petition E030 of 2023) [2023] KEELRC 3307 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd respondent (Principal Secretary) renewed the 3rd respondent's contract as CEO by the press release of January 20, 2023
No. The press release was a conveyance of a renewal, not an instrument of renewal by the Principal Secretary, and no material showed she made such a decision
The Court examined the text of the press release. It confirmed that the incumbent CEO's contract had been renewed for a second term but did not state that the Principal Secretary carried out the renewal. Although the Principal Secretary would lack authority to renew the contract and the petitioner's submissions on the applicable constitutional, statutory and policy provisions were upheld, no decision by the 2nd respondent was established on the evidence.
Whether the declaratory and certiorari orders sought should issue
They could not issue because no decision by the 2nd respondent renewing the term was established
The relief sought was premised on a decision by the 2nd respondent to renew the 3rd respondent's term. Since the Court found no such decision was made by her, the foundational premise for the declarations and the quashing order was absent, and the orders as prayed could not issue.
Whether the petition had been overtaken by subsequent events
Yes. Numerous actions and decisions were made after the press release, including the board's extension and later substantive re-appointment of the 3rd respondent
The replying affidavits showed that after January 20, 2023 the board resolved on February 27, 2023 to extend the CEO's contract for six months, and on May 19, 2023, after performance evaluation, re-appointed him substantively for four years. These intervening decisions meant the circumstances surrounding the press release had been overtaken, mooting the challenge.
Legal principles established
#- A press release conveying that a CEO's contract has been renewed is not, without more, an instrument of renewal by the person issuing it; the impugned decision must be shown to have been made by the authority acted against
- Certiorari and declaratory orders cannot issue in the absence of a decision by the impugned authority
- A petition may be rendered moot where subsequent events and decisions have overtaken the impugned action
Court orders
#- 1.The petition is determined in terms of the findings in the judgment
- 2.Each party to bear own costs of the petition
- Jurisdiction invoked
- Not expressly stated; petition invoking Articles 10, 73 and 232 of the Constitution of Kenya, 2010 and section 5 of the Pharmacy and Poisons Act, cap 244
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mboya v Pharmacy and Poisons Board & 3 others (Petition E030 of 2023) [2023] KEELRC 3307 (KLR)", Case Analysis (2023). Not stated in the judgment text (petition filed February 18, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3307/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.