Benjamin v Nakhumicha, Cabinet Secretary, Ministry of Health & 7 others; Siyoi & 7 others (Interested Parties) (Constitutional Petition E077 of 2023) [2024] KEELRC 327 (KLR)
The bottom line
#Kenya's Employment Court ruled the Health Cabinet Secretary illegally fired Pharmacy and Poisons Board members without giving reasons, though a later presidential revocation stands.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the 1st respondent's revocation of board appointments (Gazette Notice No. 636) and replacement appointments (No. 2116)
Both were unlawful, unconstitutional and null and voidable - the revocation lacked stated statutory reasons and the appointments were made without valid vacancy and for a full instead of unexpired tenure
Section 3 of the Pharmacy and Poisons Act entitles members to a 3-year tenure revocable only for failure to carry out functions. No reasons were communicated, and the burden of justifying the revocation was not discharged. The replacement appointments were for 3 years rather than the unexpired term, exceeding the statutory power.
Lawfulness of the Presidential revocation (Gazette Notice No. 9129) and appointments (No. 12401) under section 7(3) of the State Corporations Act
Not shown to be unconstitutional or unlawful; valid vacancies accrued and the appointments were for the unexpired tenure
Section 7(3) applies notwithstanding any other written law and requires a statutory reason - failure to carry out functions in the national interest. The petitioner and interested parties bore the burden of showing the revocation was unfair and failed to discharge it, so the impugned Presidential actions would not be disturbed.
Validity of the 1st interested party's appointment as Registrar/CEO
Left to rest; not disturbed despite the impugned board's unconstitutionality because of subsequent corrective Presidential action and practical consequences
The Court declined relief that would be futile, since the current lawful board could simply reappoint him, and noted the ripple effect on decisions made under his authority. The board's appointment decisions were therefore allowed to rest.
Jurisdiction, res judicata and functus officio objections
Rejected - jurisdiction was established per the ruling of 22.06.2023 and the Supreme Court's guidance in the Kenya Tea Growers case; the issues were res judicata/functus officio as already determined
The dispute concerned appointment of the CEO and the proper employer constitution of the board, squarely within ELRC jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act. The Supreme Court decision confirms the ELRC may determine constitutional questions arising within its sphere.
Legal principles established
#- A Cabinet Secretary may revoke appointment of a state corporation board member only upon stated reasons that the member failed to carry out functions under the enabling Act
- Revocation of board members without stated reasons violates Articles 27, 47 and 50 of the Constitution
- Appointments made without a valid vacancy and for a full tenure instead of the unexpired tenure are ultra vires the enabling provision
- The ELRC may determine the constitutional validity of a statute arising within a dispute reserved to it under Article 162(2)(a)
Court orders
#- 1.Declaration that the appointment of the Registrar and CEO of the Pharmacy and Poisons Board must at all material times be in strict compliance with section 5 of the Pharmacy and Poisons Act and be conducted and appointed by the board of directors of the 2nd respondent without interference by any other authority including the 1st respondent
- 2.Declaration that it was unconstitutional for the 1st respondent to revoke the appointment of the 2nd to 7th interested parties without stated reasons of failure to carry out their functions under the Act or in the national interest
- 3.Declaration that the decisions in Gazette Notices No. 636 dated 19.01.2023 and No. 2116 dated 23.02.2023 revoking the appointment of the 2nd to 7th interested parties are invalid, null and voidable
- 4.Each party to bear own costs of the proceedings
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, No. 20 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin v Nakhumicha, Cabinet Secretary, Ministry of Health & 7 others; Siyoi & 7 others (Interested Parties) (Constitutional Petition E077 of 2023) [2024] KEELRC 327 (KLR)", Case Analysis (2024). Constitutional Petition No E077 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/327/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.