Republic v Phramacy & Poisons Board; Davosaid Venture Limited (Exparte); Ogutu (Interested Party) [2023] KEHC 26967 (KLR)

Republic v Phramacy & Poisons Board; Davosaid Venture Limited (Exparte); Ogutu (Interested Party) (Miscellaneous Application E076 of 2023) [2023] KEHC 26967 (KLR) (Judicial Review) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26967 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application E076 of 2023

J Ngaah, J

December 15, 2023

Between

Republic

Applicant

and

Phramacy & Poisons Board

Respondent

and

Davosaid Venture Limited

Exparte

and

Murianyi Calvin Ogotu

Interested Party

Judgment

1. The application before court is a motion dated 12 July 2023 expressed to be brought under sections 8 and 9 of the Law Reform Act cap. 26 and Order 53 rule 3(1) of the Civil Procedure Rules. It seeks the following orders:1. An Order of Certiorari, to quash the Respondent’s Notice of Closure dated 4th July 2023 under Section 9E of the Pharmacy and Poisons Act, Cap 244 Laws of Kenya, compelling the Applicant to close its premises;2. An Order of Injunction restraining the Respondent whether by itself, servants, agents or howsoever otherwise from harassing, intimidating or arresting the employees, agents or servants of the Applicant working at the pharmacy;3. An Order of Prohibition to prohibit the Respondent from commencing any further dealings or investigations against the Applicant;4. An Order of Mandamus directed to the Officer Commanding Station, Kilimani Police Station to supervise the reopening the Applicant’s pharmacy;5. A declaration that the of the Notice of Closure dated 4th July 2023, compelling the Applicant to close and/or shut down its pharmacy was and is ultra vires and void and of no effect.6. An Order for costs.7. Such further and other relief be granted to the Applicant as this Honourable Court deems fit.”

2. The application is based on a statutory statement dated 12 July 2023 and an affidavit sworn to verify the facts relied upon by one Elsayed Salem Salem Barakat who identified himself as the director of the applicant.

3. The applicant is said to be a company duly incorporated in Kenya under the Companies Act, 2015. According Barakat, the company is duly licensed to operate a chemist or pharmacy by the Nairobi City County and has fully paid for and taken out single business permit for the year 2023.

4. On the 4 July 2023 the respondent, through one Induka Patrick, affixed a notice of closure of the applicant’s business premises known as Amana Pharmacy situated at Remax Shopping Centre along Argwings Kodhek Road without any prior official communication.

5. The notice required the applicant’s pharmacy to be closed without due regard to the financial investment made by the applicant in stocking the pharmacy, recruiting and employing staff and entering into a six-year lease with the management of Remax Shopping Centre where the pharmacy is situated.

6. At the time of closure, the applicant had fully complied with all the necessary requirements as per the Pharmacy and Poisons Act, cap. 244 and all relevant regulations or rules. It as a result of this compliance that the applicant was issued with a license to operate a pharmacy.

7. That notwithstanding, the respondent has cancelled the applicant’s licence. Prior to the issue and subsequent cancellation of the licence, the applicant had made all the necessary applications and provided all the required documentation. It had also paid all the requisite fees.

8. The applicant argues that the revocation of its licence will cause irreparable damage to the applicant. Its assessment of the respondent’s action is that the respondent is acting in bad faith as it did not grant the applicant a fair hearing nor did it notify the applicant of the cancellation of the licence. The applicant wants this Honourable Court to exercise its supervisory jurisdiction over the respondent under Article 165(6) of the Constitution and make any such orders or give any appropriate directions to ensure fair administration of justice.

9. Dr. Wifred Ochieng, the director of pharmacy practice at the Pharmacy and Poisons Board swore a replying affidavit opposing the applicant’s application.

10. According to Dr Ochieng, the application is premature since the applicant has not exhausted the appeal mechanism as provided for under section 27 of the Pharmacy and Poisons Act.

11. It has also sworn that the licence revoked by the respondent belongs to a company called Amana Pharmcy and not Davosaid Ventures Limited. There is no correlation between the applicant and Amana Pharmacy. In any event, the licence issued to Amana Pharmacy was obtained by misrepresentation of facts contrary to the provisions of the Pharmacy and Poisons Act and the regulations made thereunder.

12. Without delving into the merits of the applicant’s application, the court notes that leave in this matter was granted on 12 July 2023 for the applicant to file a substantive motion for judicial review orders.

13. Among the directions given on grant of leave was the order that the applicant files the substantive motion within seven days from 12 July 2023. It follows that the applicant ought to have filed the application by 20 July 2023. But the record shows that it was not until 3 August 2023 when the applicant filed the motion.

14. Considering that the motion was filed outside the prescribed timeline, the applicant ought to have sought leave for extension of time for the motion to be admitted as having been duly filed.

15. In the absence of leave for extension of time, there is no proper motion before court for the court’s determination.

16. Secondly, even if there was a motion filed within the prescribed timeline, there is uncontroverted evidence that the revoked licence was given to an entity different from the applicant. To be precise, it was given to an entity referred to as “Amana Pharmacy” which is described in the application for the licence as a partnership. In the same form it is indicated to be based at a building called Sunrise House at Kawangware.

17. There is no evidence that the applicant which is a company incorporated under the Companies Act has ever made any application for or issued with a licence to operate a pharmacy in Kenya. Being a distinct and separate entity from Amana Pharmacy the applicant has no locus standi to institute these proceedings.

18. An applicant would not merit judicial review reliefs unless the applicant has a sufficient interest in the matter to which the application relates.

19. In R versus Thames Magistrates Court’ ex parte; Greenbaum (1957) 55 LGR 129 Lord Denning LJ said of locus standi for judicial review orders as follows:“When application is made to (the court) by a party or person aggrieved, it will intervene (it is said) ex debito justitiae, in justice to the applicant. When application is made by a stranger it considers whether the public interest demands its intervention. In either case it is a matter which rests ultimately in the discretion of the court.”

20. And in an earlier case of R versus Liverpool Corporation, ex parte; Liverpool Taxi Fleet Operators’ Association (1870) LR 5QB 446, the learned judge had this to say:“The writs of prohibition and certiorari lie on behalf of any person who is a person aggrieved and that includes any person whose interests may be prejudicially affected by what is taking place. It does not include a mere busybody who is interfering in things which do not concern him: but it does include any person who has a genuine grievance because something has been done or may be done which affects him.” (Emphasis added).

21. Without proof that the applicant holds a licence from the Pharmacy and Poisons Board to operate a pharmacy or that it has applied for such a licence, there is no grievance that the applicant can be said to have suffered.

22. In the absence of any connection between the applicant and Amana Pharmacy, the applicant fits the description of a busybody poking its nose in things that do not concern it.

23. It is stranger to the quest for judicial review reliefs but not the sort of stranger who is out to pursue public interest. It is a stranger seeking its own private interests. While the court would consider intervening in the former case it cannot intervene in the latter one.

24. For reasons I have given, I hereby strike out the applicant’s application with costs to the respondent. It is so ordered.

SIGNED, DATED AND DELIVERED AT NAIROBI VIA VIDEO LINK ON 15 DECEMBER 2023NGAAH JAIRUSJUDGE