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ELRCDismissedNot stated in the judgment text (petition filed February 18, 2023)· [2023] KEELRC 3307 (KLR)

Mboya v Pharmacy and Poisons Board & 3 others (Petition E030 of 2023) [2023] KEELRC 3307 (KLR)

Employment and Labour Relations Court
20 December 2023
2,088 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The petitioner, an advocate appearing in person, filed a petition on February 18, 2023 challenging a press release dated January 20, 2023 by Dr. Josephine Mburu, Principal Secretary, Ministry of Health, which confirmed that the contract of Dr. Fred Siyoi, CEO/Registrar of the Pharmacy and Poisons Board, had been renewed for a second term. The petitioner sought declarations that the renewal was ultra vires section 5 of the Pharmacy and Poisons Act, cap 244, the Mwongozo Code and a 2004 government circular, and violated Articles 10, 73 and 232 of the Constitution, plus certiorari to quash the decision. The 3rd respondent and the Board replied that the press release had been overtaken by events, that his acting and substantive appointments were made by the Board under sections 4 and 5 of the Act, and that the Board had extended his term for six months from February 28, 2023 and re-appointed him substantively for four years on May 19, 2023 after performance evaluation. The Court framed three issues. It held that the press release was a conveyance, not an instrument of renewal by the Principal Secretary, and that no material showed she renewed the contract, even though she lacked authority to do so and the petitioner's submissions on the applicable provisions were upheld. In the absence of any decision by the 2nd respondent, the declaratory and certiorari orders could not issue. The Court further found the circumstances had been overtaken by subsequent events, and that the respondents' clarification of the record was in the public interest. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the 2nd respondent (Principal Secretary) renewed the 3rd respondent's contract as CEO by the press release of January 20, 2023

Holding

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

Reasoning

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.

p. 5
02

Whether the declaratory and certiorari orders sought should issue

Holding

They could not issue because no decision by the 2nd respondent renewing the term was established

Reasoning

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.

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03

Whether the petition had been overtaken by subsequent events

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The petition is determined in terms of the findings in the judgment
  2. 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

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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, "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.