REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 119 OF 2015 ASSOCIATION OF KENYA MEDICAL LABORATORY SCIENTIFIC OFFICERS.........................1ST PLAINTIFF MOSES C. O. LORRE.....................................................2ND PLAINTIFF DANIEL SANGA...............................................................3RD PLAINTIFF RAPHAEL GIKERA..........................................................4TH PLAINTIFF VERSUS CABINET SECRETARY MINISTRY OF HEALTH........1ST DEFENDANT ABEL O. ONYANGO.....................................................2ND DEFENDANT KENYA MEDICAL LABORATORY TECHNICIANS & TECHNOLOGISTS BOARD...........3RD DEFENDANT RULING 1. The plaintiff instituted suit against the defendants accusing them of rejecting names of elected board members without any justifiable reason and further for illegally and irregularly purporting to review the procedure for the election of the association members to the board. When the matter came up for hearing on 9th November 2016, Mr. Githinji for the 2nd and 3rd defendants stated that the suits as against all the defendants had been withdrawn by the 3rd and 4th plaintiffs vide the notice dated 21 st December 2014. He also averred that the 1st plaintiff has withdrawn the suit as against the 2 nd defendant and so has the motion dated 20th March 2015, which motion gave rise to the injunctive orders. Mr. Ayabei counsel holding brief for Mrs Maryarki for the respondent stated that there is existing application for review which ought to be fixed for hearing. Mr. Githinji in response requested the court to issue directions on the way forward on whether or not they really have a suit since the application and the suit have been withdrawn. 2. The question for determination here is whether the suit stands dismissed following the withdrawals by
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the 1st, 3rd and 4th plaintiffs. This suit was instituted and filed on 26 th March 2015 by 4 plaintiffs being, Association of Kenya Medical Laboratory Scientific Officers, Moses C. O. Lorre, Daniel Sanga and Raphael Gikera who appear as the 1st, 2nd, 3rd and 4th plaintiffs as against the Cabinet secretary, Ministry of Health, Abel O. Onyango and Kenya Medical Laboratory technicians and technologists board who are listed as the 1st, 2nd and 3rd defendants respectively. The plaintiffs instituted the suit vide a plaint dated 20th march 2015 which plaint was accompanied with an injunctive motion application dated 20 th march 2015. 3. Having perused the court record it is evident that I heard and determined the injunctive application which application I allowed prayers b and c. There are therefore injunctive orders in place as sought by all the plaintiffs on record. Given that only the 3rd and 4th plaintiffs are withdrawing the suit and application as filed against all the defendants then the court cannot stop them from doing so. However, the 1st plaintiff has only withdrawn the suit against the 2 nd defendant but not against the 1st and 3rd defendants. At the same time the 2nd plaintiff has not intimated that he is willing to withdraw the suit as filed against the defendants. As such the suit cannot be said to have been fully withdrawn, and the same stands as filed be the remaining plaintiffs as against the defendants. 4. Moreover, there are injunctive orders in place at the moment. It is therefore too late to withdraw an application that had already been heard and determined, and orders issued therein which orders are still in force in favour of the plaintiffs who have not withdrawn their case as against the defendants. 5. The suit and applications as filed by the remaining parties should proceed for hearing and the respective parties should take the necessary steps to ensure they are heard. Dated, Signed and Delivered in open court this 11th day of November, 2016. J. K. SERGON JUDGE In the presence of: ....................................... for the Plaintiff ........................................ for the Defendant
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