Republic v Chitechi Amboka, Williamson Chumba, Joel Chege & Fredrick Kiio Exparte Kenya Pharmaceutical Association, Patrick Oduor Adera & Peter Atandi Mogere; Asman Chitechi, Phanise Asuka, Gregory Lintari, Steven Oyaya, Chandoh Moses, Eric Gichane, Issar Nur & John Njenga (Interested Parties) [2020] KEHC 2275 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. E052 OF 2020

KENYA PHARMACEUTICAL ASSOCIATION............................1ST APPLICANT

PATRICK ODUOR ADERA.............................................................2ND APPLICANT

PETER ATANDI MOGERE..............................................................3RD APPLICANT

VERSUS

CHITECHI AMBOKA....................................................................1ST RESPONDENT

WILLIAMSON CHUMBA..............................................................2ND RESPONDENT

JOEL CHEGE...................................................................................3RD RESPONDENT

FREDRICK KIIO..............................................................................4TH RESPONDENT

AND

ASMAN CHITECHI.............................................................1st INTERESTED PARTY

PHANISE ASUKA..............................................................2nd INTERESTED PARTY

GREGORY LINTARI.........................................................3rd INTERESTED PARTY

STEVEN OYAYA.................................................................4th INTERESTED PARTY

CHANDOH MOSES............................................................5th INTERESTED PARTY

ERIC GICHANE....................................................................6th INTERESTED PARTY

ISSAR NUR...........................................................................7th INTERESTED PARTY

JOHN NJENGA......................................................................8th INTERESTED PARTY

EX PARTE APPLICANTS:

1. KENYA PHARMACEUTICAL ASSOCIATION

2. PATRICK ODUOR ADERA

3. PETER ATANDI MOGERE

RULING NO.3

1. This matter was coming up today for the hearing of the ex parte Applicants’ substantive Notice of Motion, as directed by this Court on 17th August 2020. In the interim period this Court struck out two applications filed by both the ex parte Applicant and 1st ex parte Applicant, and reiterated that the substantive application proceeds to full hearing.

2. The Respondent has now filed yet another application by way of a Notice of Motion dated 18th September 2020, seeking the following orders:

a. THAT the  Court be pleased to declare the proceedings herein non-existent, null and void, and the same be struck out for failure to comply with Orders of 17. 08. 2020.

b. THAT costs of this Application and proceedings be borne by the 2nd and 3rd Applicants.

3. The said application is supported by an affidavit sworn on 18th September 2020 by the 3rd Respondent, and is premised on the grounds that the ex parte Applicants have not complied with the directions given on 17th August 2020 as regards the filing and serving of the substantive Notice of Motion within fourteen days.

4. I have perused the Court record, and note that the ex parte Applicants did file a substantive Notice of Motion dated 18th August 2020, and have also filed an affidavit of service evidencing service of the said application on the Respondents. The Respondents application is therefore without any justifiable basis and cannot stand.

5. A letter by the ex parte Applicant’s advocate dated 5th October 2020 addressed to the Deputy Registrar of the Judicial Review Division has also been brought to my attention. The ex parte Applicants allege that the Respondents persist to disobey this Court’s orders, and are seeking specific clarifications of the said orders. There is however no application before this Court which it can act on, and the ex parte Applicants need to move the Court appropriately and properly in this regard, while bearing in mind that this Court has already addressed itself on the issue of clarification of its orders.

6. I accordingly order as follows:

i. The Respondent’s Notice of Motion dated 18th September 2020 is hereby dismissed with no order as to costs.

ii. The Respondents and Interested Parties shall file and serve their responses to theex parte Applicant’s Notice of Motion dated 18th August 2020 within fourteen (14) days of today’s date.

iii. The ex parte Applicantsshall thereafter file and serve the Respondent and Interested Parties with submissions on the Notice of Motion dated 18th August 2020 within fourteen(14)days of service.

iv. TheRespondent and Interested Parties are granted leave to file their reply submissions within fourteen (14) days of service by the ex parte Applicants.

v. A judgment date on the ex parte Applicants’Notice of Motion dated 18th August 2020shall be reserved at a hearing to be held on 19th November 2020.

vi. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the ex parte Applicant’sNotice of Motion dated 18th August 2020on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

vii. All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to  the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comandasunachristine51@gmail.com.

viii. The parties shall also be required to file and send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail tojudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

ix. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing on19th November 2020.

xxi. The Deputy Registrar ofthe Judicial Review Division shall send a copy of these directions to the Applicant, Respondent and Interested Parties by electronic mail by close of business on Thursday, 8th October 2020.

Parties shall be at liberty to apply.

7. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS  6TH DAY OF OCTOBER 2020

P. NYAMWEYA

JUDGE