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

Self-help group Agro vet located at Rurii Sub-location within Nyandarua County, she was found practising as a veterinary surgeon and selling veterinary medicine on animals b. In count 2, she was charged with Unlawfully Practising Veterinary Medicine Without an Annual Practicing Licence from the KVB Operating c/s 13(1) as read with section 38(m) of the Veterinary Surgeons and Veterinary Paraprofessionals Act, 2011. She denied therein that on the same day and place, she was found unlawfully operating an Agro vet without a practicing licence from KVB. 4. Her equivocal pleas on the counts were taken by Hon. V. Ochanda, Resident Magistrate (RM) on 2.09.2015 and also on 04.09.2015. On the same day she was released on a cash bail of Kshs. 10,000/ =t. The bond terms were set by the plea court. She has therefore been out on the bail throughout the duration of the trial herein. 5. After a delay, mainly because of the lack of the investigation files on 01/12/2015 ,19/02/2016, and on 31.05.2016. On 31.05.2016 the prosecution informed the court that the KVB were intending to withdraw their complaints against the defendant herein. That caused further delay till 30.11.2016, when the prosecution finally presented its 2 witnesses herein and closed its case. M 6. The defendant was unrepresented throughout the trial process herein. The prosecution was however represented during the hearing by Ms. Mercy Chelangat, a prosecution counsel instructed by the Director of Public Prosecutions, who, by virtue of Article 157(6) of the Constitution, exercises state powers of prosecution within the Republic of Kenya. 7. All the other adjournments and the reasons therefor have been well captured in the record of proceedings herein and do not therefore require any additional explanation herein. Substantive Facts of the Case 8. The substantive facts of the case are basically as per the introduction hereinabove. According to PW1, DR. Rispah Orwe, they found that the defendant herein was engaging in veterinary practice contrary to the law, unethically, incompetently and unprofessionally. That the defendant was also not registered and lacked a practice licence from the KVB. They found the drugs which they summarised in an inventory that was signed by the defendant as the operator of the agro-vet. The same was produced by PW2, NO. 50836 PC Mutisya Nzioka, as PEXH. NOS 2. That before doing the recovery, they interviewed the defendant through a questionnaire form which was also produced by PW2, NO. 50836 PC Mutisya Nzioka, as PEXH. NOS 1. In the questionnaire the defendant is described as an attendant. They also recovered some drugs from therein. The same were also produced by PW2, NO. 50836 PC Mutisya Nzioka, as PEXH. NOS. 3, 4, 5, 6, 7, 8, 9, 10 and 11. 9. PW2, NO. 50836 PC Mutisya Nzioka, also confirmed that they went to the agro vet shop herein where they found the defendant while at the counter inside the shop. Whether a Prima Facie Case Has Been Established 10. It is trite law that the burden of proof is always on the prosecution to prove its case beyond reasonable doubt. The main issue at the stage was whether the prosecution, in discharging this burden, has established a prima facie case that requires me to call upon the defendant herein to make his defence as required by section 211 of the Criminal Procedure Code. 11. The case of Republic Vrs Kennedy Otieno & 6 Others (1998) eKLR, gave a recent and simpler explanation of what constitutes a prima facie case. The High Court held that it is a case where there is suficient evidence upon which the court would convict the accused if no explanation is given. https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/129/eng@2017-01-10 2

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Issues, Burden and Standard of Proof 12. Counts 1 and 2 were based on the provisions of The Veterinary Surgeons and Veterinary Paraprofessionals Act, 2011(VSVPA). They allege that the defendant was found practicing veterinary medicine while not registered and operating an agro vet without a practising license by the KVB. 13. The main issue herein is whether the defendant was practicing within the meaning of the VSVPA. Moreover, there is a requirement under section 40 of the VSVPA for the consent of the Director of Public Prosecution before prosecution. There must therefore be proof that the consent was obtained as required. The burden of proving the same lies with the prosecution and the standard of proof is beyond reasonable doubt. Determination 14. Section 14 of VSVPA states that for the purposes of the Act, a person practices as a veterinary surgeon if such person engages in the— a. prevention of an infectious or organic disease or pathological condition; b. performance of a surgical operation on an animal; c. dispensing or administration of veterinary medicines on animals; d. giving of any treatment, advice, training, research, consultancy services, diagnosis or attendance and other related veterinary services; e. inspection of foods of animal origin for purposes of food safety; f. provision of animal welfare services. 15. I find no proof that the defendant was engaged in either of the above. It cannot be said with a degree of certainty that he was dispensing or administering veterinary medicines to animals. The word 'dispensing' as used in the VSVPA has not been defined. We cannot also use the definition given in section 2 of the Pharmacy and Poisons Act since the definition therein only applies to the provision of that Act. We are therefore left with the literal meaning of the word. It connotes more than mere selling. According to Collins 'cobuild Advanced Dictionary Of English': Harper Collins Publishers, 2009, online edition, when a chemist dispenses medicine, he or she prepares it, and gives or sells it to the patient or customer. Going by the definition. I find no evidence that the defendant herein was preparing medicine before selling the same. The evidence available herein is that she was at the counter as an attendant, possibly ofiering the drugs for sale. I do not therefore find that the prosecution has been able to prove to the required standard that the defendant herein was practicing veterinary medicine within the meaning of the VSVPA. Count 1 has therefore not been proved to the required standard. 16. In count 4, the defendant was charged with operating an agro vet without a practising licence from the KVB contrary to section 13(1) as read with 38(q) of the VSVPA. I have already found no evidence of veterinary practice adduced herein. I therefore also find that the charge in the 2nd count not proved to the required standard. 17. Perhaps the defendant herein was operating a shop for selling veterinary medicine. Such veterinary medicines are included in the provisions of the Pharmacy and Poisons Act and I see no reason why the defendant herein was hurriedly charges with the provisions of the VSVPA, yet he was not found while practicing as a veterinary surgeon or a Para-professional. He could have been found selling drugs and https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/129/eng@2017-01-10 3

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the law governing the sale of drugs, medicine and poisons, be they for human or animal consumption, is not the VSVPA, but the Pharmacy and Poisons Act. 18. I do believe that had the consent of the Director of Public Prosecution been sought as required by section 40 of the VSVPA, proper directions could have been given and the appropriate charges preferred. Given the mixed nature of the penalties herein, I am unable to ascertain which of the ofiences are minor to the other i.e. the ofiences under the VSVPA or those under the Poisons and Pharmacy Act. I would have exercised my discretions under sections 179 as read with 191 of the Criminal Procedure Code and convicted the defendant herein of the relevant ofiences under the Pharmacy and Poisons Act in relation to the sale of the medicine and the operation of the Agro vet herein. I therefore have no other option but to acquit the defendant herein of all the charges herein. Final Disposal Orders 19. Pursuant to the provisions of section 210 of the Criminal Procedure Code, I do hereby find no prima facie case disclosed against the defendant tom prove that she was practising veterinary medicine or as a surgeon as charges, and do consequently hereby dismiss both charges as framed against here herein. The defendant herein is hereby acquitted of the ofience of Unlawfully Practicing Veterinary Medicine while not Registered by the KVB contrary to section 13(1) as read with section 15(7) and Unlawfully Practising Veterinary Medicine Without an Annual Practising Licences from the KVB c/s 13(1) as read with 38(q), all of the VSVPA as charged herein. The Kshs. 10,000/= bail deposited on her behalf herein, be released to the depositor. DATED, SIGNED AND DELIVERED IN NYAHURURU IN OPEN COURT THIS _10TH DAY OF JANUARY, 2017 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Tiktik Court prosecutor: Chelangat Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/129/eng@2017-01-10 4

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