Republic v Wachira (Criminal Case 2288 of 2015) [2017] KEMC 130 (KLR)
The bottom line
#A Nyahururu court acquitted an agro vet attendant because prosecutors failed to prove she was practising veterinary medicine or obtain the DPP's required consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant was practising veterinary medicine within the meaning of section 14 of the VSVPA
Not proved; the defendant was merely an attendant at the counter, possibly selling drugs, and there was no evidence she prepared or dispensed medicines
The court examined section 14 of the VSVPA which defines practice to include dispensing or administration of veterinary medicines. The word 'dispensing' is undefined in the VSVPA and the Pharmacy and Poisons Act definition does not apply. Adopting the literal meaning from a dictionary, dispensing connotes more than mere selling. The evidence showed only that the defendant was an attendant possibly selling drugs, not preparing medicine for sale, so count 1 failed.
Whether the second count (operating an agro vet without a practising licence) was proved
Not proved; since no veterinary practice was established, no licence was required
Having found no evidence of veterinary practice, the court held the licence requirement could not attach. The court observed that sale of veterinary medicines is governed by the Pharmacy and Poisons Act, not the VSVPA, and the defendant ought not to have been hurriedly charged under the VSVPA when she was not found practising as a veterinary surgeon or paraprofessional.
Whether the DPP's consent under section 40 of the VSVPA was obtained
No proof of consent was adduced; had it been sought, proper directions and appropriate charges would likely have been preferred
The court noted that section 40 of the VSVPA requires the DPP's consent before prosecution and that the burden of proving consent lies on the prosecution beyond reasonable doubt. Absent proof of consent, and given the mixed penalties under the VSVPA and the Pharmacy and Poisons Act, the court could not determine the appropriate minor offence for substitution under sections 179 and 191 of the Criminal Procedure Code.
Legal principles established
#- A prima facie case is one where there is sufficient evidence upon which the court would convict the accused if no explanation is given
- Dispensing within the VSVPA connotes more than mere selling; there must be proof of preparing medicine before selling it
- The prosecution of offences under the VSVPA requires the prior consent of the Director of Public Prosecutions under section 40, which must be proved beyond reasonable doubt
Court orders
#- 1.Both charges under the VSVPA dismissed and the defendant acquitted under section 210 of the Criminal Procedure Code
- 2.Kshs. 10,000/= bail deposited on behalf of the defendant released to the depositor
- Jurisdiction invoked
- Original criminal jurisdiction under the Criminal Procedure Code; charges under the Veterinary Surgeons and Veterinary Paraprofessionals Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Wachira (Criminal Case 2288 of 2015) [2017] KEMC 130 (KLR)", Case Analysis (2017). Criminal Case No 2288 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/130/eng@2017-01-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.