Association of Kenya Medical Laboratory Scientific Officers, Moses C. O. Lorre, Daniel Sanga & Raphael Gikera v Cabinet Secretary Ministry of Health, Abel O. Onyango & Kenya Medical Laboratory Technicians & Technologists Board [2016] KEHC 828 (KLR)

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

V E R S U S

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 Githinji for the 2nd and 3rd defendants stated that the suits as against all the defendants had been withdrawn by the 3rd and 4th plaintiffs vide the notice dated 21st December 2014.  He also averred that the 1st plaintiff has withdrawn the suit as against the 2nd defendant and so  has the motion dated 20th March 2015, which motion gave rise to the injunctive orders.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directions on the way forward on whether or not they really have a suit since the application and the suit have been withdrawn.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 the 1st, 3rd and 4th plaintiffs.  This suit was instituted and filed on 26th 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 20th 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 2nd 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