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MagistrateDismissedNot stated in the judgment (criminal charge filed 02.09.2015, Nyahururu)· [2017] KEMC 129 (KLR)

Republic v Wachira (Criminal Case 2288 of 2015) [2017] KEMC 129 (KLR)

Principal Magistrates' Court
10 January 2017
1,694 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Nyahururu court acquitted an agrovet operator because selling veterinary drugs is not the same as 'practising' veterinary medicine, and prosecutors needed but lacked DPP consent.

What this practically means

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Executive summary

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This is a first-instance criminal trial before the Principal Magistrate's Court at Nyahururu. The defendant, Cecilia Muthoni Wachira, was charged on 2 September 2015 with two counts under the Veterinary Surgeons and Veterinary Paraprofessionals Act, 2011: unlawfully practising veterinary medicine while not registered by the Kenya Veterinary Board (section 13(1) as read with section 15(7)), and practising without an annual practising licence (section 13(1) as read with section 38 of the Act). The prosecution, represented by counsel instructed by the DPP, called two witnesses: Dr Rispah Orwe of the KVB and PC Mutisya Nzioka, who recounted an inspection of the Mwithilithia Self Help Group Agro vet at Rurii during which drugs were confiscated and an inventory and questionnaire produced. The defendant was unrepresented. The court identified the main issue as whether the defendant was 'practising' within section 14 of the Act. It held that 'dispensing' connotes more than mere selling, and the evidence showed only that she was an attendant possibly offering drugs for sale. It further noted that no consent of the DPP under section 40 of the Act was proved, and that the sale of veterinary medicines is governed by the Pharmacy and Poisons Act rather than the VSVPA. Finding no prima facie case under section 210 of the Criminal Procedure Code, the court dismissed both charges, acquitted the defendant, and ordered the Kshs. 10,000/= bail released to the depositor.

Key legal issues

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01

Whether the defendant was practising veterinary medicine within the meaning of section 14 of the VSVPA

Holding

No; the evidence showed only that she was an attendant possibly offering drugs for sale, not dispensing or administering veterinary medicines to animals.

Reasoning

Section 14 defines practice as including dispensing or administration of veterinary medicines, diagnosis, treatment and related services. 'Dispensing' is undefined in the VSVPA and the Pharmacy and Poisons Act definition does not apply. Its literal meaning, per the Collins dictionary, involves preparing medicine before giving or selling it. There was no evidence the defendant prepared medicine before selling it, so counts 1 and 2 were not proved to the required standard.

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02

Whether the appropriate statute for the sale of veterinary medicines was the VSVPA

Holding

No; the law governing sale of drugs and medicines, whether for human or animal consumption, is the Pharmacy and Poisons Act, not the VSVPA.

Reasoning

The court observed the defendant may have been merely operating a shop selling veterinary medicine, conduct regulated by the Pharmacy and Poisons Act. The court noted it could have convicted under that Act under sections 179 and 191 of the Criminal Procedure Code had the offences been properly framed, but found the charges as laid under the VSVPA not proved and acquitted.

p. 4

Legal principles established

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  • A prima facie case is one where there is sufficient evidence upon which the court would convict the accused if no explanation is given.
  • The word 'dispensing' in the VSVPA connotes more than mere selling of medicine.
  • The burden of proving the DPP's consent under section 40 of the VSVPA lies with the prosecution and the standard of proof is beyond reasonable doubt.

Court orders

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  1. 1.Both charges dismissed pursuant to section 210 of the Criminal Procedure Code, no prima facie case having been disclosed
  2. 2.Defendant acquitted of Unlawfully Practicing Veterinary Medicine while not Registered by the KVB contrary to section 13(1) as read with section 15(7) of the VSVPA
  3. 3.Defendant acquitted of Unlawfully Practising Veterinary Medicine Without an Annual Practising Licence from the KVB contrary to section 13(1) as read with section 38(q) of the VSVPA
  4. 4.The Kshs. 10,000/= bail deposited on her behalf to be released to the depositor

Authorities

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Legislation

  • Veterinary Surgeons and Veterinary Paraprofessionals Act, 2011sections 13(1), 14, 15(7), 38(m), 38(q), 40
  • Pharmacy and Poisons Actsection 2
  • Criminal Procedure Codesections 179, 191, 210, 211
  • Constitution of Kenya, 2010Article 157(6)

Cases cited (1)

  • Republic Vrs Kennedy Otieno & 6 Others
    (1998) eKLR
Jurisdiction invoked
Criminal jurisdiction under the Criminal Procedure Code (sections 210, 211), trying charges under the Veterinary Surgeons and Veterinary Paraprofessionals Act, 2011

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, "Republic v Wachira (Criminal Case 2288 of 2015) [2017] KEMC 129 (KLR)", Case Analysis (2017). Not stated in the judgment (criminal charge filed 02.09.2015, Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/129/eng@2017-01-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.