REPUBLIC AND DR. KINYUA MURITHI AND 1 Others VS DR. FRED MOIN SIYOI AND OFFICER COMMANDING STATION-NAIROBI CENTRAL POLICE STATION AND 4 Others

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

JUDICIAL REVIEW APPLICATION NO. E003 OF 2021

IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 21, 22, 23, 25, 27, 28, 29, 32, 33, 35, 47, 50, 73, 232 & 258 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF PHARMACY AND POISONS ACT AND HEALTH LAWS (AMENDMENT) ACT, 2-19

AND

IN THE MATTER OF: DECISION BY 1^ST AND 2^ND RESPONDENTS TO ARREST THE APPLICANT ON 26^TH MARCH 2021 AND LATER RELEASE HIM ON CASH BAIL WITH VAGUE CHARGE/REASON FOR HAVING CRITICISED THE REFUSAL OF THE 1^ST RESPONDENT TO VACATE OFFICE OF REGISTRAR/CEO PHARMACY AND POISONS BOARD FOLLOWING QUASHING OF HIS APPOINTMENT VIDE THE DECREE AND DECISION OF HIGH COURT AND COURT OF APPEAL

BETWEEN

REPUBLIC…………………………………………………………………………APPLICANT

VERSUS

DR FRED MOIN SIYOI………………………………………………..1^ST ERESPONDENT

OFFICER COMMANDING STATION

NAIROBI CENTRAL POLICE STATION……………………………..2^ND RESPONDENT

THE CABINET SECRETARY MINISTRY OF HEALTH…………..3^RD RESPONDENT

INSPECTOR GENERAL OF POLICE………………………………...4^TH RESPONDENT

THE HON. ATTORNEY GENERAL…………………………………..5^TH RESPONDENT

AND

THE LAW SOCIETY OF KENYA………………………………1^ST INTERESTED PARTY

THE PHARMACEUTICAL SOCIETY OF KENYA…………..2^ND INTERESTED PARTY

DR. KINYUA MURITHI…………………………………………….EX PARTE APPLICANT

RULING

1. On 18^th September 2024, Mr. Masika, learned counsel for the Ex Parte Applicant informed this Honourable Court that after he had been served with the Response by the 1^st Respondent, who is the only Respondent to file a Replying Affidavit in these proceedings, he realized that the Replying Affidavit of the 1^st Respondent did not contain certain documents (certificates) to be attached to that Affidavit and that he was informed that it was not the responsibility of the 1^st Respondent to avail those certificates but the responsibility of the institution (it was not clarified which institution).
2. Counsel informed the Court, further, that Prayer 3 of the Notice of Motion Application dated 31^st March 2021 seeks to nullify certificates; that due to this omission to have the certificates attached to the Application, it became necessary to amend the Application on 5^th September 2024 to include the 7^th proposed Respondent and also issued notice to produce the said certificates; that the draft amended Notice of Motion is brought under Order 8(1) and (2) as well as Order 1 (10) of the Civil Procedure Rules
3. He told the Court that he was seeking leave of this court to deem the filed Amended Notice of Motion as duly filed. He told the court that he had received a Notice of Preliminary Objection (PO) from the 1^st Respondent objecting to the amended Notice of Motion, which he termed as misplaced because the 1^st Respondent ought to file an application instead of a PO by dint of Order 8(2) of the Civil Procedure Rules.
4. Mr. Kubai, learned counsel for the 1^st Respondent responded that the 1^st Respondent, who was the only Respondent to file submissions as directed by this court in respect of the Notice of Motion dated 31^st March 2021 and amended on 27^th September 2021, had filed a PO dated 17^th September 2024, objecting that the amended Notice of Motion has introduced five reliefs which contravene Order 53(1) of the Civil Procedure Rules. counsel sought directions on the PO stating that parties cannot proceed with the Notice of Motion before the Court can determine that the correct procedure has been followed.
5. I have considered the issues being raised by the Ex Parte Applicant and the 1^st Respondent. From court records, it is clear to this Court that this matter has had checkered history. The Ex Parte Applicant moved this Court on 30^th March 2021 seeking leave to file an application seeking judicial review proceedings through his Chamber Summons dated 29^th Mach 2021. He obtained those orders and filed a substantive Notice of Motion on 31^st March 2021. Through leave of Court granted on 22^nd September 2021, he amended the Notie of Motion.
6. This Court did give directions that the Notice of Motion be canvassed through written submissions and allowed parties, the Ex Parte Applicant and the 1^st Respondent, time to file submissions. The record will show that the Ex Parte Applicant did not pursue this matter with the expediency expected. He used various reasons to have the matter adjourned and at times would absent himself and his legal representative from attending court. A Notice to Show Cause why the application should not be dismissed was issued to the Ex Parte Applicant on 7^th November 2023. That Notice was lifted on 8^th April 2024 after the court found that the explanation offered by the Applicant was plausible, although I need to mention that the reason given for failure to attend court when the Notice to Show Cause was issued was mis-diarizing the date to attend court. This same reason was used to explain a future failure by counsel and his client to attend court.
7. As the record stands currently, there is on record an amended notice of motion filed without leave of the court that is sought to be deemed as duly filed and a PO objecting to that amendment. There is also on record written submissions by the 1^st Respondent, the only party to file submissions despite failure by the Ex Parte Applicant to comply with court directions to file submissions.
8. This Honourable Court must level the playing ground for both parties in order for ends of justice to be met. For that reason, it is prudent, in my considered view, that this court issues directions in regard to the pending PO which ought to be considered alongside the oral application by the applicant to deem his draft amended notice of motion as duly filed. This way, both parties will be properly guided on what procedure to adopt in respect of this matter.
9. Consequently, I hereby issue directions that the PO by the 1^st Respondent dated 17^th September 2024 shall be considered alongside the issue as to whether this Honourable Court ought to allow the draft amended Notice of Motion dated 5^th September 2024 to be deemed as duly filed. I hasten to caution the parties, specifically the Ex Parte Applicant, to guard against delaying this matter further and to obey the dictates of Article 159 (2) (b) that justice shall not be delayed and section 1A (1) of the Civil Procedure Act that:

The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

1. Orders shall issue accordingly.

Dated, signed and delivered this 24^th day of January 2025