' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. 10 OF 2024
IN THE MATTER OF AN APPLICATION BY MARTIN WAFULA WAMALWA T/A SAMOR CHEMIST FOR ORDER FOR JUDICIAL REVIEW ORDER OF CERTIORARI
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORMS ACT CAР 26 LAWS OF KENYA
AND IN THE MATTER OF SECTION 53 OF THE CIVIL PROCEDURE RULES 2010
BETWEEN
REPUBLIC exparte
MARTIN WAFULA WAMALWA-T/ASAMOR CHEMIST…………………………APPLICANT
AND
COUNTY GOVERNMENT OF TRANS NZOIA………………………………….RESPONDENT
By his Notice of Motion dated 18 th October 2024 and filed in court on the 22.10.2024, pursuant to leave granted 30.09.2024, the ex-parte applicant seeks an order that an order of certiorari to move into court, for purposes of being quashed, the decision made by Mr. Patrick Gacheru, the County executive member, trade and industrialisation, by the letter dated 26.08.2024 directing the applicant to close his business.
The reasons set forth to ground the application as disclosed in the Statutory statement and verified by the Affidavit filed are that; while the applicant is the proprietor of the business of a chemist, upon premises known as Kitale MunBlock7/312 for which the respondent duly issued a single business permit, the respondent by the said operative by a letter dated 26.09.2024 to close and relocate elsewhere. The applicant therefore contends that the respondent is estopped from disrupting the applicant’s operation after it allowed it to start and entrench operations at enormous costs. It asserts that the demanded relocation portends for him grave loss on investment and goodwill by customers who are already attuned to the current location.
On such basis, he asserts being entitled to the orders sought on the premises that the respondent has no authority to unilaterally close of the applicant’s business. Instead, it is averred that the Respondent has acted ultra vires and contrary to the dictates of Fair Administrative Actions Act and the principles of natural justice. It is concluded that the respondent has no basis to make the impugned directions because it neither has claim or right in the applicant’s business nor the property upon which the business is operated. To support its position, the applicant has exhibited the lease over the premises, the single business permit issued by the respondent and the letter directing closure and translocation.
When served with the Motion, the Respondent filed a Replying Affidavit sworn by the County Secretary, Truphosa I O Amere on the 25 th February 2025. The deponent posits that she is duly authorised to depone to the matters having read the application and familiarise with the facts in the case. Her opening position is that the application is misconceived, abusive of the court process, bereft of truth, frivolous and thus incompetent even as drafted for failure to establish the threshold for grant of the orders sought.
She maintains that the decision conveyed in the letter of 26 th August 2024 is neither unlawful, unreasonable nor procedurally improper because the County Government has a role to play in licensing and regulation of pharmacies and Chemists within its jurisdiction. She raises the concern that there has been collusion between some chemists and the public hospital staff by which patients are directed to specific chemists to buy medicines even when the public hospital has same medicines in stock.
For the Respondent, it is denied that no order of closure nor direction to move to an unknown place was made. Rather the applicant was directed to move to be relocated at least 500 meters away from the Wamalwa Kijana Teaching and Referral hospital in compliance with the county policy on chemists and pharmacies operating near county health facilities. That decision was dubbed made in the public interests in accordance with the respondent’s mandate to regulate and manage public health safety and resources.
The deponent then asserted that the impugned letter was issued after due consideration of; public health and safety for fear that its continued operation would lead to public traffic, congestion and potential hazards, close proximity to the public hospital would compromise patient confidentiality, the need to create a buffer zone of 500 meters as reasonable for its regulation of pharmaceutical services, enhancement of competition among chemists by avoiding concentration in a single location, prevention of unethical practices and to secure room for future expansion of the county health facilities. It was stressed that respondent acted within its powers in issuing the impugned letter.
The matter was directed to be canvassed by way of written submissions and on the records are the applicant’s submissions dated 22.04.2025 while those by the respondent’s’ are dated 15.03.2025.
In the submissions, the applicant identifies four issues as isolating themselves for court’s determination. To him the issues are; whether there exists a policy for enforcement by the impugned letter, whether the rule of law was applied and followed in creating such policy, whether the respondent acted in a discriminatory manner against the applicant and, whether the respondent in locking up the applicant’s premises affected him.
The summary of the submissions is that Kenya operates on the rule of law and one can only be penalised based on an existent law and not otherwise. This is argued to be necessitate by need for certainty to enable compliance with the law. The decision in Keroche Industries Ltd vs KRA (2006) 2KLR 240 is cited for the proposition of the law that deprivation of property, liberty and life must be executed only in accordance with the law and accompanied by befitting safeguards. Article 50 (1) and (2) are cited to underscore the need to resolve disputes in accordance with the law and for the principle of legality.
On whether the law was followed in creating the alleged policy, the applicant cites articles 2(1),10, 196, 199 and 259 on the supremacy of the constitution, the national values and principle, public participation and coming into effect of County legislation upon gazettement as well as how to interpret the constitution in order to meet its objects. Section 5(1) and 8 of the Statutory Instruments Act is then cited to obligate public consultation with all those who may be affected by any instrument beforehand. The applicant stressed that in the unlikely event that a policy exists, it was made without compliance with the law and thus lacks legitimacy and force of law.
On its part the respondent took the position in the Replying Affidavit that the application is not only incompetent but equally unmerited. To it, there are three issues seeking the court’s determination; the competence of the application, whether the order relocation was lawful and whether the orders sought were merited.
On the applicable law, the respondent purports to cite to court some three decisions when in fact it just picked on the decision in Republic vs Kirinyaga county council (2017) eKLR which cited the Court of Appeal decisions in Municipal Council of Mombasa vs Republic, civil appeal no 185 of 2001 and Commissioner of Lands vs Kunste Hotel Ltd (1997) E klr AS WELL AS Hulsbury’s Laws of England, 4th Edition, Volume 2, for the proposition of the law that judicial review looks at the decision making process rather than the merits of the decision and that it is discretionary order which the court may decline to grant even where the grounds for grant exists.
On the competence of the application, the respondent highlights that no connection had been established between the applicant and Samor Chemist pointing out that the lease was in the applicant’s name while the single business permit was in the name of Samor just like the payment receipts and the letter demanding relocation, hence it is contended that he lacks the locus standi to bring the application.
On the threshold for entitlement to orders of judicial review, the respondent contends that no illegality, irrationality or procedural impropriety had been established in the respondent’s letter of 26.8.2024. It was underscored that there was no demonstration of ultra vires conduct, violation of rules of natural justice nor procedural unfairness with the stress that the Law Reform Act and Order 53 of the Rules make the grant of the orders discretionary and only available where there is demonstration that a public body acted outside its legal mandate. The applicable law cited at the beginning of the submissions were reiterated with a summation that no thresholds had been met.
On whether its decision was unlawful, unreasonable or tainted with procedural impropriety, it was reiterated as in the Replying Affidavit that the same was made in the interests of the public to address the public concern over collusion of some pharmacies and some of the public hospital staff in unethical manner. Order for relocation was denied with the reiteration that all the respondent was doing was its legal duty regulation and management of public health, safety and resources. For that reason, the application is viewed unmerited and a candidate for dismissal with costs.
Lastly, on whether the remedies sought are merited, the respondent cites the decision in Kenya National Examination Council vs republic Exparte Geoffrey Gathenji Njoroge and others (1997) eKLR on what an applicant must prove to succeed. In addition, the decision in Repblic vs Attorney General, exparte, waswa & 2 others (2015) eKLR was cited for the proposition of the law that courts should be slow and reluctant to interfere with policy decisions of the executive unless the applicant established compelling evidence of illegality.
All in all, the respondent prays that the application be dismissed with costs to the respondent for lack of merit.
Analysis
Being an application for the orders of certiorari, the unmistakable position of the law is that the applicant must prove to the court that; the respondent, in coming to the decision sought to be quashed, acted, outside its mandate, ultra vires, illegality, irrationality or committed procedural impropriety.
However, before delving into the merits, there is a question whether there exists a relationship between the applicant and Samor Chemists. That to the court is an undue technicality because the applicant explicitly described himself as trading as Samor Chemist. That is not contested in the replying Affidavit but rather acknowledged at paragraphs 12 and 13 where it is asserted that he was given reasonable notice then accused of falling short of meeting the thresholds of grant of the orders sought. That opposition taken in the submissions, was improperly taken as submissions are never pleadings but the parties’ analysis and view of the case on the basis of the facts pleaded as applied to the law.
On the merits, the court notes that, in resisting the application, the respondent asserts and contends that it was enforcing a policy made toward the execution of its mandate of regulation and management of public health, safety and resources. That is indeed a formidable resistance to the application. The question is however, whether the policy exists, when and how it was made and brought into effect and, whether in passing it, if it was ever passed, the law under the constitution and the Statutory Instruments Act was complied with.
The easiest thing the respondent could have done would be to avail and exhibit the policy to court. To this court, a public policy must be in writing and made available to the citizenry to be able to access, read understand for purposes of compliance. No attempt at all was made in that regard with the consequence that there is nothing to guide the court and to demonstrate the existence of a policy on location of private pharmacies and chemists. It cannot be embodied in some idea in the mind of a leaders or group of leaders. It must be passed in line with the national values and principles of governance demanding public participation and consultation with the people likely to be affected at implementation. A roadside declaration never amounts to public policy decision in Kenya.
In this matter the county secretary, a very senior officer with the respondent, was very affirmative, without any shade of evidence that in issuing the impugned letter, the county was implementing a policy. In his position, as the head of public service at the devolved unit, he had access to avail to the court that policy or even minutes of the County Executive Committee that passed the alleged policy to justify the process of so passing to have been legal.
In the absence of evidence that there exists a policy that prohibits operation of chemists and pharmacies within 500 meters of the Wamalwa Kijana Teaching and Referral Hospital, there would be no rational or judicial basis to hold that such a policy existed to be enforced by the letter of 26.8.2024. Without such a policy, the letter was written and issued without any legal foundation which then denies it the character of legality, rationality and procedural propriety.
The letter remains illegal for not being founded on any law of a policy with the force of law. It is irrational because it is based on the fallacious and misconceived position that the respondent has the legal mandate to regulate operation and practice of chemists and pharmacists. The court views the position of the respondent as utterly misconceived because the mandate of the devolved unit under The Fourth Schedule is limited to county health services, including, in particular; county health facilities and pharmacies...
That mandate cannot be stretched by any ingenuous interpretation to include location and regulation of the practice of pharmacists. To avoid any doubt, issuance of single business permits, is not an aspect of regulation but strictly own revenue collection by the devolved units like the respondent. Thus, to the extent that the respondent directed relocation to unidentified location, which essentially amounts to closure of the current operations at the disclosed premises, without affording to the applicant a chance to be heard before the decision was made, even if there had been a valid policy, was to act ultra vires and in violation of the principles of natural justice. That is equally sufficient evidence of procedural impropriety.
Ultimately, it follows that the letter of 26.08.2024, is most untenable, cannot be left to stand but must be quashed for having been issued illegally, outside the mandate and for being tainted with irrationality and procedural impropriety.
The court thus issues the order of certiorari to remove into this court, the respondents letter dated 26.8.2024 for purposes of it being quashed. It is so removed and stands quashed.
While the court recognises that there was a prayer for permanent injunction, the court takes the view that such an order is not available to him in a judicial review application for two reasons; first, judicial review is sui generis and is not an ordinary suit. Where one wants a restraining order in a judicial application, the appropriate order is prohibition and not an injunction. Secondly, after the court quashes the decision and it conveying letter, there remains nothing to be restrained. It would thus be superfluous to consider the prayer for permanent injunction.
Because the respondent acted beyond its mandate and has invited the application, itself pursuing compliance with the law, the costs of the application are awarded to the applicant to be paid by the respondent.
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IN THE HIGH COURT OF KENYA AT KITALE
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. 10 OF 2024
IN THE MATTER OF AN APPLICATION BY MARTIN WAFULA WAMALWA T/A SAMOR CHEMIST FOR ORDER FOR JUDICIAL REVIEW ORDER OF CERTIORARI
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORMS ACT CAР 26 LAWS OF KENYA
AND IN THE MATTER OF SECTION 53 OF THE CIVIL PROCEDURE RULES 2010
BETWEEN
REPUBLIC exparte
MARTIN WAFULA WAMALWA-T/ASAMOR CHEMIST…………………………APPLICANT
AND
COUNTY GOVERNMENT OF TRANS NZOIA………………………………….RESPONDENT
By his Notice of Motion dated 18 th October 2024 and filed in court on the 22.10.2024, pursuant to leave granted 30.09.2024, the ex-parte applicant seeks an order that an order of certiorari to move into court, for purposes of being quashed, the decision made by Mr. Patrick Gacheru, the County executive member, trade and industrialisation, by the letter dated 26.08.2024 directing the applicant to close his business.
The reasons set forth to ground the application as disclosed in the Statutory statement and verified by the Affidavit filed are that; while the applicant is the proprietor of the business of a chemist, upon premises known as Kitale MunBlock7/312 for which the respondent duly issued a single business permit, the respondent by the said operative by a letter dated 26.09.2024 to close and relocate elsewhere. The applicant therefore contends that the respondent is estopped from disrupting the applicant’s operation after it allowed it to start and entrench operations at enormous costs. It asserts that the demanded relocation portends for him grave loss on investment and goodwill by customers who are already attuned to the current location.
On such basis, he asserts being entitled to the orders sought on the premises that the respondent has no authority to unilaterally close of the applicant’s business. Instead, it is averred that the Respondent has acted ultra vires and contrary to the dictates of Fair Administrative Actions Act and the principles of natural justice. It is concluded that the respondent has no basis to make the impugned directions because it neither has claim or right in the applicant’s business nor the property upon which the business is operated. To support its position, the applicant has exhibited the lease over the premises, the single business permit issued by the respondent and the letter directing closure and translocation.
When served with the Motion, the Respondent filed a Replying Affidavit sworn by the County Secretary, Truphosa I O Amere on the 25 th February 2025. The deponent posits that she is duly authorised to depone to the matters having read the application and familiarise with the facts in the case. Her opening position is that the application is misconceived, abusive of the court process, bereft of truth, frivolous and thus incompetent even as drafted for failure to establish the threshold for grant of the orders sought.
She maintains that the decision conveyed in the letter of 26 th August 2024 is neither unlawful, unreasonable nor procedurally improper because the County Government has a role to play in licensing and regulation of pharmacies and Chemists within its jurisdiction. She raises the concern that there has been collusion between some chemists and the public hospital staff by which patients are directed to specific chemists to buy medicines even when the public hospital has same medicines in stock.
For the Respondent, it is denied that no order of closure nor direction to move to an unknown place was made. Rather the applicant was directed to move to be relocated at least 500 meters away from the Wamalwa Kijana Teaching and Referral hospital in compliance with the county policy on chemists and pharmacies operating near county health facilities. That decision was dubbed made in the public interests in accordance with the respondent’s mandate to regulate and manage public health safety and resources.
The deponent then asserted that the impugned letter was issued after due consideration of; public health and safety for fear that its continued operation would lead to public traffic, congestion and potential hazards, close proximity to the public hospital would compromise patient confidentiality, the need to create a buffer zone of 500 meters as reasonable for its regulation of pharmaceutical services, enhancement of competition among chemists by avoiding concentration in a single location, prevention of unethical practices and to secure room for future expansion of the county health facilities. It was stressed that respondent acted within its powers in issuing the impugned letter.
The matter was directed to be canvassed by way of written submissions and on the records are the applicant’s submissions dated 22.04.2025 while those by the respondent’s’ are dated 15.03.2025.
In the submissions, the applicant identifies four issues as isolating themselves for court’s determination. To him the issues are; whether there exists a policy for enforcement by the impugned letter, whether the rule of law was applied and followed in creating such policy, whether the respondent acted in a discriminatory manner against the applicant and, whether the respondent in locking up the applicant’s premises affected him.
The summary of the submissions is that Kenya operates on the rule of law and one can only be penalised based on an existent law and not otherwise. This is argued to be necessitate by need for certainty to enable compliance with the law. The decision in Keroche Industries Ltd vs KRA (2006) 2KLR 240 is cited for the proposition of the law that deprivation of property, liberty and life must be executed only in accordance with the law and accompanied by befitting safeguards. Article 50 (1) and (2) are cited to underscore the need to resolve disputes in accordance with the law and for the principle of legality.
On whether the law was followed in creating the alleged policy, the applicant cites articles 2(1),10, 196, 199 and 259 on the supremacy of the constitution, the national values and principle, public participation and coming into effect of County legislation upon gazettement as well as how to interpret the constitution in order to meet its objects. Section 5(1) and 8 of the Statutory Instruments Act is then cited to obligate public consultation with all those who may be affected by any instrument beforehand. The applicant stressed that in the unlikely event that a policy exists, it was made without compliance with the law and thus lacks legitimacy and force of law.
On its part the respondent took the position in the Replying Affidavit that the application is not only incompetent but equally unmerited. To it, there are three issues seeking the court’s determination; the competence of the application, whether the order relocation was lawful and whether the orders sought were merited.
On the applicable law, the respondent purports to cite to court some three decisions when in fact it just picked on the decision in Republic vs Kirinyaga county council (2017) eKLR which cited the Court of Appeal decisions in Municipal Council of Mombasa vs Republic, civil appeal no 185 of 2001 and Commissioner of Lands vs Kunste Hotel Ltd (1997) E klr AS WELL AS Hulsbury’s Laws of England, 4th Edition, Volume 2, for the proposition of the law that judicial review looks at the decision making process rather than the merits of the decision and that it is discretionary order which the court may decline to grant even where the grounds for grant exists.
On the competence of the application, the respondent highlights that no connection had been established between the applicant and Samor Chemist pointing out that the lease was in the applicant’s name while the single business permit was in the name of Samor just like the payment receipts and the letter demanding relocation, hence it is contended that he lacks the locus standi to bring the application.
On the threshold for entitlement to orders of judicial review, the respondent contends that no illegality, irrationality or procedural impropriety had been established in the respondent’s letter of 26.8.2024. It was underscored that there was no demonstration of ultra vires conduct, violation of rules of natural justice nor procedural unfairness with the stress that the Law Reform Act and Order 53 of the Rules make the grant of the orders discretionary and only available where there is demonstration that a public body acted outside its legal mandate. The applicable law cited at the beginning of the submissions were reiterated with a summation that no thresholds had been met.
On whether its decision was unlawful, unreasonable or tainted with procedural impropriety, it was reiterated as in the Replying Affidavit that the same was made in the interests of the public to address the public concern over collusion of some pharmacies and some of the public hospital staff in unethical manner. Order for relocation was denied with the reiteration that all the respondent was doing was its legal duty regulation and management of public health, safety and resources. For that reason, the application is viewed unmerited and a candidate for dismissal with costs.
Lastly, on whether the remedies sought are merited, the respondent cites the decision in Kenya National Examination Council vs republic Exparte Geoffrey Gathenji Njoroge and others (1997) eKLR on what an applicant must prove to succeed. In addition, the decision in Repblic vs Attorney General, exparte, waswa & 2 others (2015) eKLR was cited for the proposition of the law that courts should be slow and reluctant to interfere with policy decisions of the executive unless the applicant established compelling evidence of illegality.
All in all, the respondent prays that the application be dismissed with costs to the respondent for lack of merit.
Analysis
Being an application for the orders of certiorari, the unmistakable position of the law is that the applicant must prove to the court that; the respondent, in coming to the decision sought to be quashed, acted, outside its mandate, ultra vires, illegality, irrationality or committed procedural impropriety.
However, before delving into the merits, there is a question whether there exists a relationship between the applicant and Samor Chemists. That to the court is an undue technicality because the applicant explicitly described himself as trading as Samor Chemist. That is not contested in the replying Affidavit but rather acknowledged at paragraphs 12 and 13 where it is asserted that he was given reasonable notice then accused of falling short of meeting the thresholds of grant of the orders sought. That opposition taken in the submissions, was improperly taken as submissions are never pleadings but the parties’ analysis and view of the case on the basis of the facts pleaded as applied to the law.
On the merits, the court notes that, in resisting the application, the respondent asserts and contends that it was enforcing a policy made toward the execution of its mandate of regulation and management of public health, safety and resources. That is indeed a formidable resistance to the application. The question is however, whether the policy exists, when and how it was made and brought into effect and, whether in passing it, if it was ever passed, the law under the constitution and the Statutory Instruments Act was complied with.
The easiest thing the respondent could have done would be to avail and exhibit the policy to court. To this court, a public policy must be in writing and made available to the citizenry to be able to access, read understand for purposes of compliance. No attempt at all was made in that regard with the consequence that there is nothing to guide the court and to demonstrate the existence of a policy on location of private pharmacies and chemists. It cannot be embodied in some idea in the mind of a leaders or group of leaders. It must be passed in line with the national values and principles of governance demanding public participation and consultation with the people likely to be affected at implementation. A roadside declaration never amounts to public policy decision in Kenya.
In this matter the county secretary, a very senior officer with the respondent, was very affirmative, without any shade of evidence that in issuing the impugned letter, the county was implementing a policy. In his position, as the head of public service at the devolved unit, he had access to avail to the court that policy or even minutes of the County Executive Committee that passed the alleged policy to justify the process of so passing to have been legal.
In the absence of evidence that there exists a policy that prohibits operation of chemists and pharmacies within 500 meters of the Wamalwa Kijana Teaching and Referral Hospital, there would be no rational or judicial basis to hold that such a policy existed to be enforced by the letter of 26.8.2024. Without such a policy, the letter was written and issued without any legal foundation which then denies it the character of legality, rationality and procedural propriety.
The letter remains illegal for not being founded on any law of a policy with the force of law. It is irrational because it is based on the fallacious and misconceived position that the respondent has the legal mandate to regulate operation and practice of chemists and pharmacists. The court views the position of the respondent as utterly misconceived because the mandate of the devolved unit under The Fourth Schedule is limited to county health services, including, in particular; county health facilities and pharmacies...
That mandate cannot be stretched by any ingenuous interpretation to include location and regulation of the practice of pharmacists. To avoid any doubt, issuance of single business permits, is not an aspect of regulation but strictly own revenue collection by the devolved units like the respondent. Thus, to the extent that the respondent directed relocation to unidentified location, which essentially amounts to closure of the current operations at the disclosed premises, without affording to the applicant a chance to be heard before the decision was made, even if there had been a valid policy, was to act ultra vires and in violation of the principles of natural justice. That is equally sufficient evidence of procedural impropriety.
Ultimately, it follows that the letter of 26.08.2024, is most untenable, cannot be left to stand but must be quashed for having been issued illegally, outside the mandate and for being tainted with irrationality and procedural impropriety.
The court thus issues the order of certiorari to remove into this court, the respondents letter dated 26.8.2024 for purposes of it being quashed. It is so removed and stands quashed.
While the court recognises that there was a prayer for permanent injunction, the court takes the view that such an order is not available to him in a judicial review application for two reasons; first, judicial review is sui generis and is not an ordinary suit. Where one wants a restraining order in a judicial application, the appropriate order is prohibition and not an injunction. Secondly, after the court quashes the decision and it conveying letter, there remains nothing to be restrained. It would thus be superfluous to consider the prayer for permanent injunction.
Because the respondent acted beyond its mandate and has invited the application, itself pursuing compliance with the law, the costs of the application are awarded to the applicant to be paid by the respondent.
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