Introduction
1. The Petition dated 19 th July 2024 was amended on 3 rd October 2024. It is supported by the 1 st Petitioner’s affidavit of even date and a supplementary affidavit dated 26 th May 2025.
2. The Petition challenges the refusal by the 1 st Respondent to register the Petitioners as pharmaceutical technologists notwithstanding they hold Diploma in Pharmacy awarded by the Kenya National Examinations Council (KNEC) . The Petitioners contend that the Respondents action is in violation of their rights under Articles 27, 28, 43, 47, 55 and 73 of the Constitution and thus seek the following reliefs against the Respondents:
a) A declaration that Section 8(2) of the Pharmacy & Poisons Act, as amended by the Health Laws (amendment) Act, No. 5 of 2019 cannot and should not act retrospectively to deny the Petitioners their right to enrolment as Pharmaceutical Technologists.
b) A declaration that the actions of the Respondents set out above contravened the Constitution and are unlawful.
c) An order directing the Respondents to immediately and without conditions admit, enroll and license the Petitioners to practice as pharmaceutical technologists.
d) Any other relief that the court may grant.
e) Costs of the petition.
Petitioner’s Case
3. On behalf of the Petitioners, the 1 st Petitioner depones that they hold diplomas in Pharmacy awarded by KNEC, a statutory body established under the Kenya National Examinations Council Act. The Petitioners affirm that having successfully undertaken and passed the prescribed diploma examinations, they were issued with certificates confirming their qualification to practice as Pharmaceutical Technologists in Kenya.
4. According to the deponent, upon completion of their studies, the diploma graduates were required- pursuant to Section 7 (2) and 8 (2) of the Pharmacy and Poisons Act to apply to the Respondent for enrollment and licensing as Pharmaceutical Technologists. The deponent maintains that they hold diplomas duly approved and accredited by relevant education authorities. He avers that under the law as it stood at the time they completed their studies, they were entitled to automatic registration upon satisfying they passed the requisite qualifications.
5. The Petitioners depose that the amendment introduced through the Health Laws (Amendment) Act, No. 5 of 2019 , altered Section 8(2) of the Act by requiring applicants to hold diplomas from colleges recognized by the 1 st Respondent. They depone that the amendment was intended to exclude them from registration notwithstanding that they had obtained their qualifications between 2006 and 2009, long before the amendment came into force. According to the Petitioners, the amendment was a reaction to the earlier court decisions, including Petition No. 346 of 2013 and Petition No. 140 of 2015 , where the Court directed the Respondents to enroll the Petitioners.
6. The Petitioners depose that because Section 19 of the Act prohibits any person from practicing as a pharmaceutical technologist without a license issued by the 1 st Respondent, the Respondents’ refusal to enroll them has effectively barred them from practicing their profession or obtaining gainful employment in the field for which they trained. They protest that they undertook rigorous studies and sat national examinations administered by KNEC, only to be denied registration after their graduation. In addition, the deponent swore that prior to 2019, the 1 st Respondent did not have the power to approve and accredit institutions yet they cite the reason for not registering the Petitioner was due to the fact that they were trained in colleges not accredited by the 1 st Respondent.
7. It is the Petitioners’ case moreover that their applications for registration have consistently been rejected on the grounds that there are pending court cases concerning graduates from their institutions and additionally that the colleges they attended are allegedly not recognized by the 1 st Respondent. According to the Petitioners, these reasons are unjustified and discriminatory because while the Petitioners have been denied registration, the Respondents have been licensed other persons holding comparable qualifications.
8. Further to this, the Petitioners depone that at no time during their training or prior to sitting the KNEC examinations were they informed that their institutions were not authorized to offer diploma in pharmacy programmes. They state that they enrolled in colleges accredited by the Ministry of Education and undertook examinations administered by KNEC. Consequently, the Petitioner contend that they legitimately expected that the qualifications awarded to them would be recognized for purposes of registration and practice.
9. The Petitioners depone that the present dispute traces back to the transition from the diploma in pharmacy curriculum coded 2421 to a new curriculum coded 2429/3 , which followed recommendations of a task force established by the Ministry of Health and Education Science and Technology. The recommendations of the task force gave birth to a new curriculum which was introduced in the year 2005 as jointly approved by the Ministry of Education, Science and Technology (MOEST) and Pharmacy and Poisons Board (PPB).
10. The Petitioners undertook their studies between 2005 and 2009 under the former curriculum, during a transitional period characterized by regulatory uncertainty. In his opinion, both the old and new curriculum culminated in KNEC-administered examinations, with exemption of students from Kenya Medical Training College as it has its own internal examining body.
11. The Petitioners maintain that the graduates trained under the old curriculum were entitled to enrolment under Sections 7(2) and 8(2) of the Act. They state that despite making repeated applications for over fourteen years, they have never been enrolled. In his view, the Respondents’ refusal to register them violates the provisions of the Pharmacy and Poisons Act, infringes their constitutional rights, and defeats their legitimate expectation to practice their profession.
12. The Petitioners swore that the introduction of the Diploma in Pharmaceutical Technology in place of the Diploma in Pharmacy was never anchored in the Pharmacy and Poisons Act, thereby worsening the confusion affecting graduates trained under the former curriculum. They depone that the matter attracted parliamentary attention in 2008, during which the Government undertook to address the plight of affected graduates, but no effective remedy has since been provided.
13. The Petitioners deposed that the Respondents ultimately announced the abolition of the examination series under which they had qualified and indicated that opportunities to undertake qualifying examinations would cease after June 2015. The Petitioners deposed that this decision effectively extinguished any remaining avenue through which they could regularize their status and obtain registration as Pharmaceutical Technologists.
14. The Petitioners depose that the Respondents actions are ultra vires, in breach of their legitimate expectations in violation of their rights under Articles 27, 28, 43, 47, 55 and 73 of the Constitution.
1 st and 2 nd Respondents’ Case
15. The 1 st and 2 nd Respondents filed a Replying Affidavit sworn by the 2 nd Respondent, Dr.Fred Moin Siyoi sworn on 19 th March 2025.
16. The 1 st and 2 nd Respondents deponed that the reliefs sought are misconceived, premature and intended to improperly interfere with the statutory mandate of the 1 st Respondent and asserted that the Petition has been brought after an inordinate and unexplained delay, discloses no violation against the Petitioners’ constitutional rights, and seeks orders that would undermine the 1 st Respondent’s regulatory responsibilities under the Pharmacy and Poisons Act.
17. For context, the 2 nd Respondent deposes that the 1 st Respondent is a statutory body established under the Pharmacy and Poisons Act with the mandate of regulating the pharmacy profession in Kenya. In particular. its functions include prescribing minimum requirements for registration and enrolment of pharmacists and pharmaceutical technologists, approving qualifications and training institutions, conducting examinations, licensing practitioners, and ensuring the protection of public health through the regulation of pharmaceutical practice. The 2 nd Respondent deposes that these functions are aimed at safeguarding the public from unsafe medicines and ensuring that pharmaceutical services are rendered by competent and properly qualified professionals.
18. The 2 nd Respondent swore that prior to the enactment of the Health Laws (Amendment) Act, 2019, Section 8(2) of the Pharmacy and Poisons Act entitled a person holding a diploma in pharmacy approved by the 1 st Respondent to enroll as a pharmaceutical technologist. He contends, however, that the statutory framework was supplemented by the Pharmacy and Poisons (Amendment) Rules, 2004 and the Board’s Guidelines for Evaluation and Assessment for a Pharmaceutical Technologist, 2005, which established the criteria and procedures applicable to all candidates seeking enrolment. He states that those Guidelines have been publicly available and have been uniformly applied to all applicants since the commencement of enrollment of pharmaceutical technologists in 2004.
19. It is his position that every person seeking enrolment as a pharmaceutical technologist is required to undergo an evaluation and assessment process conducted by the 1 st Respondent. The process includes fulfilling the eligibility criteria of being a holder of Diploma in Pharmaceutical technology or its equivalent from a recognized institution, hold a C plain in KCSE overall and C plain in English, Kiswahili, chemistry, physical science, biology or mathematics. The 2 nd Respondent maintains that this process is necessary to ensure that all persons admitted into the profession meet the minimum competency standards required for the protection of public health.
20. Furthermore, 2 nd Respondent swore that the Petition offends the doctrine of ripeness for a number of reasons, first that the Petitioners have not demonstrated that they applied for registration in accordance with the prescribed procedures under the 1 st Respondent’s Guidelines or that they submitted the requisite applications for evaluation and assessment. As such, he stresses that, no evidence has been tendered to show that any of the Petitioners sought assessment under the applicable framework and were denied an opportunity to undergo the process. Consequently, he stresses that the 1 st Respondent has never had the opportunity to consider the Petitioners’ qualifications or determine their eligibility for enrolment thus there is no decision capable of being challenged.
21. Further to this, he asserts that the Petition has been brought with inordinate and unexplained delay. In this regard, he notes that the Petitioners claim to have obtained their qualifications between 2005 and 2008 yet instituted the present proceedings more than 15 years later. He emphasizes that no satisfactory explanation has been offered for this delay, nor have the Petitioners demonstrated any efforts made during that period to pursue enrolment through the mechanisms established by the 1 st Respondent.
22. On the alleged violation of constitutional rights, the 2 nd Respondent denies that the 1 st Respondent has discriminated against the Petitioners or infringed their rights under Articles 27 and 28 of the Constitution. He reiterates that the Petitioners have not undergone the prescribed registration process and that their failure to comply with the applicable requirements cannot be equated to discrimination. Further, the 2 nd Respondent deponed that the 1 st Respondent Board has discharged its statutory mandate in accordance with the law and that such discharge cannot amount to unequal treatment or a violation of human dignity.
23. The 1 st and 2 nd Respondent refuted the allegations that the 1 st Respondent has violated the Petitioners’ rights under Articles 43 and 55 of the Constitution and asserted that no applications by the Petitioners were rejected without consideration and that, absent any formal applications and assessment, it cannot be said that the Petitioners were denied social or economic opportunities or meaningful employment by the Respondents. Similar sentiments were made in relation to violation of Article 47 of the Constitution. He emphasizes similarly that the allegations on the Respondents’ acting ultra vires is unfounded as the 1 st Respondent merely insists on compliance with the regulatory framework established for all persons seeking admission into the profession.
24. In conclusion, the 2 nd Respondent underscores that the Petitioners have neither demonstrated compliance with the applicable registration procedures nor have they demonstrated any unlawful decision on the part of the 1 st Respondent. Considering this, he urges the Court to find that the Petition is premature, time-barred by reason of inordinate delay, devoid of merit, and an unwarranted intrusion in the 1 st Respondent’s statutory mandate to regulate the profession of pharmaceutical technology in the public interest.
Interested Party’s Case
25. The Interested Party’s response in reaction to the Petition is not in the Court file or Court Online Platform (CTS).
Parties’ Submissions
Petitioners’ Submissions
26. Mwangi and Partners Advocates for the Petitioners filed submissions and supplementary submissions dated 29 th May 2025 and 17 th March 2026 respectively.
27. On whether the new curriculum and the guidelines for assessment and evaluation are lawful , Counsel submitted that the new curriculum leading to the award of a diploma in pharmaceutical technology and the Guidelines for assessment and evaluation relied upon by the Respondents are unlawful and thus incapable of defeating the Petitioners’ entitlement to enrollment. Counsel argued that although a task force recommended the introduction of a new curriculum in 2005, no corresponding amendments were made to the Pharmacy and Poisons Act until 2019. It was therefore contended that the law continued to recognize a Diploma in Pharmacy thus neither could override the express provisions of the law. Counsel further submitted that the Guidelines were never properly published or anchored in legislation and therefore could not lawfully be used to deny the Petitioners enrollment as pharmaceutical technologists.
28. On whether the Respondents acted ultra vires their statutory mandate , Counsel submitted that the Respondents exceeded their statutory mandate by purporting to accredit colleges, reject qualifications issued by KNEC and subject applicants to pre-enrollment examinations. Counsel argued that prior to the 2019 amendments, Section 8(2) of the Pharmacy and Poisons Act merely required an applicant to satisfy the 1 st Respondent that he/she held a diploma in pharmacy approved by it. It was argued that the Act did not confer upon the Respondents the power to accredit training institutions or impose additional examinations as a condition for enrolment and thus the section, prior to amendment does not require any further construction beyond the literal meaning.
29. Furthermore, Counsel argued that the duty to administer examinations was on KNEC, and having administered the examinations on the Petitioners and certifying that they all had qualified for award of Diploma in Pharmacy, the Respondents had no authority to overrule what KNEC had done in executing its statutory mandate.
30. Reliance was placed in Jesse Waweru Wahome & Others v Kenya Engineers Registration Board & 3 Others [2012] eKLR , where the Court held:
“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the mean, and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.”
31. Turning to whether the Respondents violated Article 47 of the Constitution , Counsel submitted that the Petitioners were denied a fair administrative action since the Respondents refused to allow them to apply for enrollment and pre-determined their eligibility on the basis that they attended institutions allegedly not recognized by the 1 st Respondent. It was argued that the Respondents declined to issue application forms , failed to consider the Petitioners individually and denied them an opportunity to be heard before reaching the adverse decisions that affected their professional careers.
32. To buttress this point reliance was placed in Geothermal Development Company Limited v Attorney General & 3 Others [2013] eKLR , where the Court held that:
“Article 47 enshrines the right to every person to fair administrative action…Article 47 is intended to subject administrative processes to constitutional discipline hence relief for administrative grievances is no longer left to the realm of common law…but is to be measured against the standards established by the Constitution… The right of hearing are of fundamental importance to our system of justice and even when they are not expressed specifically in any law the supreme position of the constitution must be implied in every Act especially the right to due process and it cannot be taken away.”
33. On whether the Respondents violated Article 27 of the Constitution, Counsel submitted that they were subjected to discriminatory treatment contrary to this Article. Counsel argued that other persons holding similar diplomas issued by KNEC had been licensed by the Respondents, while the Petitioners were denied like consideration despite possessing equivalent qualifications.
34. According to Counsel, all candidates trained under the old curriculum, save for those from KMTC, sat the same national examinations administered by KNEC and received the same qualification. It was therefore submitted that the Respondents had no lawful basis for accepting some KNEC diplomas while rejecting others solely on the basis of the institutions attended by the candidates.
35. On whether the Respondents breached the Petitioners’ legitimate expectation , Counsel submitted that the Petitioners had a legitimate expectation that qualifications obtained through institutions licensed by the relevant educational authorities and certified by KNEC would be recognized for purposes of enrollment. It was argued that at no time during their training were the Petitioners informed that their institutions were allegedly unauthorized or that their qualifications would not be recognized by the Respondents.
36. Counsel contended that they invested substantial time and resources in pursuing their studies on the understanding that upon successful completion they would qualify them for enrollment and practice as pharmaceutical technologists. Considering this, Counsel stressed that the Respondents frustrated that expectation.
37. As to whether the Respondents acted contrary to Article 73 of the Constitution, Counsel argued that the Respondents failed to exercise their statutory powers in a manner consistent with the principles of leadership and integrity set out in this Article. Counsel underscored that despite the Respondents allegedly being aware for several years that certain institutions were not authorized to offer pharmacy programmes, failed to disclose that information to students and the public in a timely manner. Subsequently, their action exposed unsuspecting students to prejudice after they had already completed their studies. Counsel thus argued that the conduct lacked transparency, objectivity and accountability and fell short of the constitutional standards expected of public bodies.
38. On whether the Respondents violated Articles 28, 43 and 55 of the Constitution, Counsel answered in the affirmative. He argued that the Petitioners dedicated years of study and significant financial resources towards obtaining qualifications which the Respondents subsequently rendered useless by refusing to enroll them. Counsel submitted that the refusal to enroll the Petitioners effectively denied them the opportunity to pursue careers in their chosen profession and undermined their ability to earn a livelihood and live with dignity.
39. In support of this point, reliance was placed in Jesse Waweru Wahome (supra), where the Court observed that:
“In a country like ours where citizens place a premium on university education, it is not right to leave graduates in a suspended state there they do not know their fate especially where parents have made sacrifices to educate their children, students have taken out loans from the Higher Education Loans Board (HELB) and are expected to re-pay these loans and the state has invested taxpayers money in investing in facilities and educating engineering graduates. This is a situation that cries out of justice, especially the kind that is the promise enshrined in our Constitution.”
40. On whether the Petitioners are entitled to the reliefs sought , Counsel submitted that the issues raised in the Petition had previously been considered by the High Court in Josephat Mbithi Mwisa & Others v Pharmacy and Poisons Board & Another, Petition No. 346 of 2013 , where the Court directed the Respondents to receive and consider applications from graduates such as the Petitioners. Equally in Nicholas Mwiti & Others v Pharmacy and Poisons Board & Another, Petition No. 140 of 2015 , Counsel submitted that the Court held that the Respondents were required to evaluate applicants individually rather than reject them wholesale on the basis of the institutions attended.
41. Tying to this, Counsel in the supplementary submissions opposed the Respondents' objections based on ripeness and delay. It was submitted that having been denied an opportunity to apply for enrollment, the Petitioners had no alternative remedy other than approaching the Court. Counsel argued that the issues raised were similar to those in Josephat Mbithi Mwisa (supra) and Nicholas Mwiti (supra), where as seen above, the Court intervened. On delay, Counsel maintained that constitutional claims are not barred by limitation and that the cause of action continued to arise whenever the Respondents declined to enroll the Petitioners.
42. In response to the Interested Party's submissions, Counsel submitted that the Interested Party had not filed any affidavit evidence to controvert the factual assertions contained in the Petition. Counsel further argued that the Interested Party's reliance on Section 3B of the Pharmacy and Poisons Act was misplaced since the provision was introduced through the 2019 amendments and could not apply retrospectively to the Petitioners. It was additionally submitted that no evidence had been presented to demonstrate that the Petitioners were incapable of meeting professional standards or that their enrollment would compromise public health. In that regard, Counsel pointed out that graduates who benefitted from the orders issued in Josephat Mbithi Mwisa (supra) and Nicholas Mwiti (supra) had since been enrolled and were practicing without complaint.
43. In view of the foregoing, Counsel urged the Court to be guided by these decisions and find that the Petitioners’ constitutional rights had been violated by the Respondents and are entitled to the reliefs sought.
Respondents’ Submissions
44. The Respondents through Okumu Kubai and Company Advocates filed submissions dated 10 th September 2025 and outlined the issues for discussion as: whether the petition offends the ripeness doctrine, whether the petition was brought without inordinate delay, whether the respondents violated the Petitioner’s rights under Articles 27,28,43,47, 55 and 73 of the Constitution and whether the Guidelines for Assessment and Evaluation are illegal and unconstitutional .
45. On the first issue, Counsel submitted that the Petition is premature and offends the doctrine of ripeness. Reliance was placed on Republic v National Employment Authority & 3 Others ex parte Middle East Consultancy Services Ltd [2018] eKLR where the Court observed that:
“Ripeness refers to the readiness of a case for litigation, a claim is not ripe for adjudication of it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all.”
46. Similar dependence was placed in Attorney General & 2 Others v Ndii & 79 Others; Dixon & 7 Others (Amicus Curiae) [2022] KESC 8 (KLR) .
47. In this regard, Counsel reiterated that the Petitioners never applied for enrollment under the Pharmaceutical Technologists Guidelines and therefore no assessment or evaluation of their qualifications has ever been undertaken by the 1 st Respondent. Considering this, it was argued that no decision has been made regarding their eligibility for enrolment and there exists no administrative action capable of challenge before the Court. In Counsel’s view, the Petition is founded on the Petitioners’ apprehension that their applications might be rejected rather than on any actual decision of the 1 st Respondents and urge the Court not to adjudicate a dispute that has not matured into a justiciable controversy.
48. On the second issue, Counsel submitted that although constitutional petitions are not subject to a strict statutory limitation period, courts have consistently frowned upon unexplained and excessive delay. In this regard, reliance was placed in Priscilla Mwara Kimani & 2 Others v Attorney General [2019] eKLR where it was underscored that delay must be justified and not prejudicial to the respondent. Comparable reliance was placed in Joan Akinyi Kabasellah & 2 Others v Attorney General Petition No.41 of 2014 and Joseph Migere Omoo v Attorney General, Petition No.424 of 2013 .
49. Counsel argued that the Petitioners obtained their diplomas between 2005 and 2008 but only instituted this Petition 15 years later without an explanation for the prolonged delay. In Counsel’s view, such delay is prejudicial not only to the Respondents but also the public, given that the dispute concerns regulation of a profession directly impacting public health. Counsel added that the Respondents continue to suffer prejudice as they remain in a state of uncertainty regarding parties who may have similar claims.
50. Turning to the third issue, Counsel submitted that the Petitioners had failed to meet the constitutional threshold set out in Anarita Karimi Njeru v Attorney General [1979] KLR and to plead and prove constitutional violations with precision as guided in Raila Odinga & Others v IEBC & Others, Petition No. 5 of 2013 .
51. Relying in Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) , Counsel argued that discrimination entails differential treatment between persons in similar circumstances. In Counsel’s view, the Petitioners had not produced any evidence that they applied for enrolment, that their applications were rejected or that similarly situated persons were enrolled while they were excluded. Reliance was placed in Josphat Mwisa & 24 Others v Pharmacy and Poisons Board & Another, Petition No. 346 of 2013 , where the Court addressing an identical claim found no discrimination. As such, Counsel argued that violation of Articles 27 and 28 of the Constitution had not been established. Like dependence was placed in John Kabui Mwai & others v KNEC [2011] eKLR .
52. On Articles 43 and 55 of the Constitution, Counsel rejected the assertion that the Petitioners’ socio-economic rights have been infringed through the rejection of their applications. Counsel submitted that there was no evidence that any applications were ever lodged or rejected by the 1 st Respondent. Moreover, Counsel emphasized that the Petitioners remain at liberty to apply for evaluation and assessment under the applicable Guidelines. Discussing, the case of Nicholas Mwiti (supra) , Counsel submitted that it is distinguishable from this case as there existed an actual decision by the 1 st Respondent rejecting applications. Counsel stressed that in the present case, no such decision has been made to state that the cited Articles were actually violated.
53. Similarly, on Article 47 of the Constitution, Counsel submitted that no right to fair administrative action had been violated since no administrative decision has been made against the Petitioners. As such, Counsel argued that there is no administrative action capable of invoking the dictates of Article 47 of the Constitution.
54. Counsel on the fourth issue opposed the Petitioners’ challenge to the Pharmaceutical Technologists Guidelines and submit that the Guidelines were lawfully promulgated pursuant to the 1 st Respondent’s statutory mandate under the Pharmacy and Poisons Act. Counsel submitted that Section 3B of the Pharmacy and Poisons Act, empowers the 1 st Respondent to prescribe minimum requirements, approve qualifications and conduct examinations for purposes of recognition and enrolment of pharmaceutical technologists. It was further submitted that Section 3(e) expressly authorizes the 1 st Respondent to conduct examinations for purposes of enrolment.
55. According to Counsel, the Guidelines merely operationalize these statutory functions and have not been declared unlawful or unconstitutional by any Court of competent jurisdiction. Counsel added that the Petitioners have not sought a substantive prayer in the Petition for a declaration that the Guideline
[...truncated]
1. The Petition dated 19 th July 2024 was amended on 3 rd October 2024. It is supported by the 1 st Petitioner’s affidavit of even date and a supplementary affidavit dated 26 th May 2025.
2. The Petition challenges the refusal by the 1 st Respondent to register the Petitioners as pharmaceutical technologists notwithstanding they hold Diploma in Pharmacy awarded by the Kenya National Examinations Council (KNEC) . The Petitioners contend that the Respondents action is in violation of their rights under Articles 27, 28, 43, 47, 55 and 73 of the Constitution and thus seek the following reliefs against the Respondents:
a) A declaration that Section 8(2) of the Pharmacy & Poisons Act, as amended by the Health Laws (amendment) Act, No. 5 of 2019 cannot and should not act retrospectively to deny the Petitioners their right to enrolment as Pharmaceutical Technologists.
b) A declaration that the actions of the Respondents set out above contravened the Constitution and are unlawful.
c) An order directing the Respondents to immediately and without conditions admit, enroll and license the Petitioners to practice as pharmaceutical technologists.
d) Any other relief that the court may grant.
e) Costs of the petition.
Petitioner’s Case
3. On behalf of the Petitioners, the 1 st Petitioner depones that they hold diplomas in Pharmacy awarded by KNEC, a statutory body established under the Kenya National Examinations Council Act. The Petitioners affirm that having successfully undertaken and passed the prescribed diploma examinations, they were issued with certificates confirming their qualification to practice as Pharmaceutical Technologists in Kenya.
4. According to the deponent, upon completion of their studies, the diploma graduates were required- pursuant to Section 7 (2) and 8 (2) of the Pharmacy and Poisons Act to apply to the Respondent for enrollment and licensing as Pharmaceutical Technologists. The deponent maintains that they hold diplomas duly approved and accredited by relevant education authorities. He avers that under the law as it stood at the time they completed their studies, they were entitled to automatic registration upon satisfying they passed the requisite qualifications.
5. The Petitioners depose that the amendment introduced through the Health Laws (Amendment) Act, No. 5 of 2019 , altered Section 8(2) of the Act by requiring applicants to hold diplomas from colleges recognized by the 1 st Respondent. They depone that the amendment was intended to exclude them from registration notwithstanding that they had obtained their qualifications between 2006 and 2009, long before the amendment came into force. According to the Petitioners, the amendment was a reaction to the earlier court decisions, including Petition No. 346 of 2013 and Petition No. 140 of 2015 , where the Court directed the Respondents to enroll the Petitioners.
6. The Petitioners depose that because Section 19 of the Act prohibits any person from practicing as a pharmaceutical technologist without a license issued by the 1 st Respondent, the Respondents’ refusal to enroll them has effectively barred them from practicing their profession or obtaining gainful employment in the field for which they trained. They protest that they undertook rigorous studies and sat national examinations administered by KNEC, only to be denied registration after their graduation. In addition, the deponent swore that prior to 2019, the 1 st Respondent did not have the power to approve and accredit institutions yet they cite the reason for not registering the Petitioner was due to the fact that they were trained in colleges not accredited by the 1 st Respondent.
7. It is the Petitioners’ case moreover that their applications for registration have consistently been rejected on the grounds that there are pending court cases concerning graduates from their institutions and additionally that the colleges they attended are allegedly not recognized by the 1 st Respondent. According to the Petitioners, these reasons are unjustified and discriminatory because while the Petitioners have been denied registration, the Respondents have been licensed other persons holding comparable qualifications.
8. Further to this, the Petitioners depone that at no time during their training or prior to sitting the KNEC examinations were they informed that their institutions were not authorized to offer diploma in pharmacy programmes. They state that they enrolled in colleges accredited by the Ministry of Education and undertook examinations administered by KNEC. Consequently, the Petitioner contend that they legitimately expected that the qualifications awarded to them would be recognized for purposes of registration and practice.
9. The Petitioners depone that the present dispute traces back to the transition from the diploma in pharmacy curriculum coded 2421 to a new curriculum coded 2429/3 , which followed recommendations of a task force established by the Ministry of Health and Education Science and Technology. The recommendations of the task force gave birth to a new curriculum which was introduced in the year 2005 as jointly approved by the Ministry of Education, Science and Technology (MOEST) and Pharmacy and Poisons Board (PPB).
10. The Petitioners undertook their studies between 2005 and 2009 under the former curriculum, during a transitional period characterized by regulatory uncertainty. In his opinion, both the old and new curriculum culminated in KNEC-administered examinations, with exemption of students from Kenya Medical Training College as it has its own internal examining body.
11. The Petitioners maintain that the graduates trained under the old curriculum were entitled to enrolment under Sections 7(2) and 8(2) of the Act. They state that despite making repeated applications for over fourteen years, they have never been enrolled. In his view, the Respondents’ refusal to register them violates the provisions of the Pharmacy and Poisons Act, infringes their constitutional rights, and defeats their legitimate expectation to practice their profession.
12. The Petitioners swore that the introduction of the Diploma in Pharmaceutical Technology in place of the Diploma in Pharmacy was never anchored in the Pharmacy and Poisons Act, thereby worsening the confusion affecting graduates trained under the former curriculum. They depone that the matter attracted parliamentary attention in 2008, during which the Government undertook to address the plight of affected graduates, but no effective remedy has since been provided.
13. The Petitioners deposed that the Respondents ultimately announced the abolition of the examination series under which they had qualified and indicated that opportunities to undertake qualifying examinations would cease after June 2015. The Petitioners deposed that this decision effectively extinguished any remaining avenue through which they could regularize their status and obtain registration as Pharmaceutical Technologists.
14. The Petitioners depose that the Respondents actions are ultra vires, in breach of their legitimate expectations in violation of their rights under Articles 27, 28, 43, 47, 55 and 73 of the Constitution.
1 st and 2 nd Respondents’ Case
15. The 1 st and 2 nd Respondents filed a Replying Affidavit sworn by the 2 nd Respondent, Dr.Fred Moin Siyoi sworn on 19 th March 2025.
16. The 1 st and 2 nd Respondents deponed that the reliefs sought are misconceived, premature and intended to improperly interfere with the statutory mandate of the 1 st Respondent and asserted that the Petition has been brought after an inordinate and unexplained delay, discloses no violation against the Petitioners’ constitutional rights, and seeks orders that would undermine the 1 st Respondent’s regulatory responsibilities under the Pharmacy and Poisons Act.
17. For context, the 2 nd Respondent deposes that the 1 st Respondent is a statutory body established under the Pharmacy and Poisons Act with the mandate of regulating the pharmacy profession in Kenya. In particular. its functions include prescribing minimum requirements for registration and enrolment of pharmacists and pharmaceutical technologists, approving qualifications and training institutions, conducting examinations, licensing practitioners, and ensuring the protection of public health through the regulation of pharmaceutical practice. The 2 nd Respondent deposes that these functions are aimed at safeguarding the public from unsafe medicines and ensuring that pharmaceutical services are rendered by competent and properly qualified professionals.
18. The 2 nd Respondent swore that prior to the enactment of the Health Laws (Amendment) Act, 2019, Section 8(2) of the Pharmacy and Poisons Act entitled a person holding a diploma in pharmacy approved by the 1 st Respondent to enroll as a pharmaceutical technologist. He contends, however, that the statutory framework was supplemented by the Pharmacy and Poisons (Amendment) Rules, 2004 and the Board’s Guidelines for Evaluation and Assessment for a Pharmaceutical Technologist, 2005, which established the criteria and procedures applicable to all candidates seeking enrolment. He states that those Guidelines have been publicly available and have been uniformly applied to all applicants since the commencement of enrollment of pharmaceutical technologists in 2004.
19. It is his position that every person seeking enrolment as a pharmaceutical technologist is required to undergo an evaluation and assessment process conducted by the 1 st Respondent. The process includes fulfilling the eligibility criteria of being a holder of Diploma in Pharmaceutical technology or its equivalent from a recognized institution, hold a C plain in KCSE overall and C plain in English, Kiswahili, chemistry, physical science, biology or mathematics. The 2 nd Respondent maintains that this process is necessary to ensure that all persons admitted into the profession meet the minimum competency standards required for the protection of public health.
20. Furthermore, 2 nd Respondent swore that the Petition offends the doctrine of ripeness for a number of reasons, first that the Petitioners have not demonstrated that they applied for registration in accordance with the prescribed procedures under the 1 st Respondent’s Guidelines or that they submitted the requisite applications for evaluation and assessment. As such, he stresses that, no evidence has been tendered to show that any of the Petitioners sought assessment under the applicable framework and were denied an opportunity to undergo the process. Consequently, he stresses that the 1 st Respondent has never had the opportunity to consider the Petitioners’ qualifications or determine their eligibility for enrolment thus there is no decision capable of being challenged.
21. Further to this, he asserts that the Petition has been brought with inordinate and unexplained delay. In this regard, he notes that the Petitioners claim to have obtained their qualifications between 2005 and 2008 yet instituted the present proceedings more than 15 years later. He emphasizes that no satisfactory explanation has been offered for this delay, nor have the Petitioners demonstrated any efforts made during that period to pursue enrolment through the mechanisms established by the 1 st Respondent.
22. On the alleged violation of constitutional rights, the 2 nd Respondent denies that the 1 st Respondent has discriminated against the Petitioners or infringed their rights under Articles 27 and 28 of the Constitution. He reiterates that the Petitioners have not undergone the prescribed registration process and that their failure to comply with the applicable requirements cannot be equated to discrimination. Further, the 2 nd Respondent deponed that the 1 st Respondent Board has discharged its statutory mandate in accordance with the law and that such discharge cannot amount to unequal treatment or a violation of human dignity.
23. The 1 st and 2 nd Respondent refuted the allegations that the 1 st Respondent has violated the Petitioners’ rights under Articles 43 and 55 of the Constitution and asserted that no applications by the Petitioners were rejected without consideration and that, absent any formal applications and assessment, it cannot be said that the Petitioners were denied social or economic opportunities or meaningful employment by the Respondents. Similar sentiments were made in relation to violation of Article 47 of the Constitution. He emphasizes similarly that the allegations on the Respondents’ acting ultra vires is unfounded as the 1 st Respondent merely insists on compliance with the regulatory framework established for all persons seeking admission into the profession.
24. In conclusion, the 2 nd Respondent underscores that the Petitioners have neither demonstrated compliance with the applicable registration procedures nor have they demonstrated any unlawful decision on the part of the 1 st Respondent. Considering this, he urges the Court to find that the Petition is premature, time-barred by reason of inordinate delay, devoid of merit, and an unwarranted intrusion in the 1 st Respondent’s statutory mandate to regulate the profession of pharmaceutical technology in the public interest.
Interested Party’s Case
25. The Interested Party’s response in reaction to the Petition is not in the Court file or Court Online Platform (CTS).
Parties’ Submissions
Petitioners’ Submissions
26. Mwangi and Partners Advocates for the Petitioners filed submissions and supplementary submissions dated 29 th May 2025 and 17 th March 2026 respectively.
27. On whether the new curriculum and the guidelines for assessment and evaluation are lawful , Counsel submitted that the new curriculum leading to the award of a diploma in pharmaceutical technology and the Guidelines for assessment and evaluation relied upon by the Respondents are unlawful and thus incapable of defeating the Petitioners’ entitlement to enrollment. Counsel argued that although a task force recommended the introduction of a new curriculum in 2005, no corresponding amendments were made to the Pharmacy and Poisons Act until 2019. It was therefore contended that the law continued to recognize a Diploma in Pharmacy thus neither could override the express provisions of the law. Counsel further submitted that the Guidelines were never properly published or anchored in legislation and therefore could not lawfully be used to deny the Petitioners enrollment as pharmaceutical technologists.
28. On whether the Respondents acted ultra vires their statutory mandate , Counsel submitted that the Respondents exceeded their statutory mandate by purporting to accredit colleges, reject qualifications issued by KNEC and subject applicants to pre-enrollment examinations. Counsel argued that prior to the 2019 amendments, Section 8(2) of the Pharmacy and Poisons Act merely required an applicant to satisfy the 1 st Respondent that he/she held a diploma in pharmacy approved by it. It was argued that the Act did not confer upon the Respondents the power to accredit training institutions or impose additional examinations as a condition for enrolment and thus the section, prior to amendment does not require any further construction beyond the literal meaning.
29. Furthermore, Counsel argued that the duty to administer examinations was on KNEC, and having administered the examinations on the Petitioners and certifying that they all had qualified for award of Diploma in Pharmacy, the Respondents had no authority to overrule what KNEC had done in executing its statutory mandate.
30. Reliance was placed in Jesse Waweru Wahome & Others v Kenya Engineers Registration Board & 3 Others [2012] eKLR , where the Court held:
“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the mean, and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.”
31. Turning to whether the Respondents violated Article 47 of the Constitution , Counsel submitted that the Petitioners were denied a fair administrative action since the Respondents refused to allow them to apply for enrollment and pre-determined their eligibility on the basis that they attended institutions allegedly not recognized by the 1 st Respondent. It was argued that the Respondents declined to issue application forms , failed to consider the Petitioners individually and denied them an opportunity to be heard before reaching the adverse decisions that affected their professional careers.
32. To buttress this point reliance was placed in Geothermal Development Company Limited v Attorney General & 3 Others [2013] eKLR , where the Court held that:
“Article 47 enshrines the right to every person to fair administrative action…Article 47 is intended to subject administrative processes to constitutional discipline hence relief for administrative grievances is no longer left to the realm of common law…but is to be measured against the standards established by the Constitution… The right of hearing are of fundamental importance to our system of justice and even when they are not expressed specifically in any law the supreme position of the constitution must be implied in every Act especially the right to due process and it cannot be taken away.”
33. On whether the Respondents violated Article 27 of the Constitution, Counsel submitted that they were subjected to discriminatory treatment contrary to this Article. Counsel argued that other persons holding similar diplomas issued by KNEC had been licensed by the Respondents, while the Petitioners were denied like consideration despite possessing equivalent qualifications.
34. According to Counsel, all candidates trained under the old curriculum, save for those from KMTC, sat the same national examinations administered by KNEC and received the same qualification. It was therefore submitted that the Respondents had no lawful basis for accepting some KNEC diplomas while rejecting others solely on the basis of the institutions attended by the candidates.
35. On whether the Respondents breached the Petitioners’ legitimate expectation , Counsel submitted that the Petitioners had a legitimate expectation that qualifications obtained through institutions licensed by the relevant educational authorities and certified by KNEC would be recognized for purposes of enrollment. It was argued that at no time during their training were the Petitioners informed that their institutions were allegedly unauthorized or that their qualifications would not be recognized by the Respondents.
36. Counsel contended that they invested substantial time and resources in pursuing their studies on the understanding that upon successful completion they would qualify them for enrollment and practice as pharmaceutical technologists. Considering this, Counsel stressed that the Respondents frustrated that expectation.
37. As to whether the Respondents acted contrary to Article 73 of the Constitution, Counsel argued that the Respondents failed to exercise their statutory powers in a manner consistent with the principles of leadership and integrity set out in this Article. Counsel underscored that despite the Respondents allegedly being aware for several years that certain institutions were not authorized to offer pharmacy programmes, failed to disclose that information to students and the public in a timely manner. Subsequently, their action exposed unsuspecting students to prejudice after they had already completed their studies. Counsel thus argued that the conduct lacked transparency, objectivity and accountability and fell short of the constitutional standards expected of public bodies.
38. On whether the Respondents violated Articles 28, 43 and 55 of the Constitution, Counsel answered in the affirmative. He argued that the Petitioners dedicated years of study and significant financial resources towards obtaining qualifications which the Respondents subsequently rendered useless by refusing to enroll them. Counsel submitted that the refusal to enroll the Petitioners effectively denied them the opportunity to pursue careers in their chosen profession and undermined their ability to earn a livelihood and live with dignity.
39. In support of this point, reliance was placed in Jesse Waweru Wahome (supra), where the Court observed that:
“In a country like ours where citizens place a premium on university education, it is not right to leave graduates in a suspended state there they do not know their fate especially where parents have made sacrifices to educate their children, students have taken out loans from the Higher Education Loans Board (HELB) and are expected to re-pay these loans and the state has invested taxpayers money in investing in facilities and educating engineering graduates. This is a situation that cries out of justice, especially the kind that is the promise enshrined in our Constitution.”
40. On whether the Petitioners are entitled to the reliefs sought , Counsel submitted that the issues raised in the Petition had previously been considered by the High Court in Josephat Mbithi Mwisa & Others v Pharmacy and Poisons Board & Another, Petition No. 346 of 2013 , where the Court directed the Respondents to receive and consider applications from graduates such as the Petitioners. Equally in Nicholas Mwiti & Others v Pharmacy and Poisons Board & Another, Petition No. 140 of 2015 , Counsel submitted that the Court held that the Respondents were required to evaluate applicants individually rather than reject them wholesale on the basis of the institutions attended.
41. Tying to this, Counsel in the supplementary submissions opposed the Respondents' objections based on ripeness and delay. It was submitted that having been denied an opportunity to apply for enrollment, the Petitioners had no alternative remedy other than approaching the Court. Counsel argued that the issues raised were similar to those in Josephat Mbithi Mwisa (supra) and Nicholas Mwiti (supra), where as seen above, the Court intervened. On delay, Counsel maintained that constitutional claims are not barred by limitation and that the cause of action continued to arise whenever the Respondents declined to enroll the Petitioners.
42. In response to the Interested Party's submissions, Counsel submitted that the Interested Party had not filed any affidavit evidence to controvert the factual assertions contained in the Petition. Counsel further argued that the Interested Party's reliance on Section 3B of the Pharmacy and Poisons Act was misplaced since the provision was introduced through the 2019 amendments and could not apply retrospectively to the Petitioners. It was additionally submitted that no evidence had been presented to demonstrate that the Petitioners were incapable of meeting professional standards or that their enrollment would compromise public health. In that regard, Counsel pointed out that graduates who benefitted from the orders issued in Josephat Mbithi Mwisa (supra) and Nicholas Mwiti (supra) had since been enrolled and were practicing without complaint.
43. In view of the foregoing, Counsel urged the Court to be guided by these decisions and find that the Petitioners’ constitutional rights had been violated by the Respondents and are entitled to the reliefs sought.
Respondents’ Submissions
44. The Respondents through Okumu Kubai and Company Advocates filed submissions dated 10 th September 2025 and outlined the issues for discussion as: whether the petition offends the ripeness doctrine, whether the petition was brought without inordinate delay, whether the respondents violated the Petitioner’s rights under Articles 27,28,43,47, 55 and 73 of the Constitution and whether the Guidelines for Assessment and Evaluation are illegal and unconstitutional .
45. On the first issue, Counsel submitted that the Petition is premature and offends the doctrine of ripeness. Reliance was placed on Republic v National Employment Authority & 3 Others ex parte Middle East Consultancy Services Ltd [2018] eKLR where the Court observed that:
“Ripeness refers to the readiness of a case for litigation, a claim is not ripe for adjudication of it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all.”
46. Similar dependence was placed in Attorney General & 2 Others v Ndii & 79 Others; Dixon & 7 Others (Amicus Curiae) [2022] KESC 8 (KLR) .
47. In this regard, Counsel reiterated that the Petitioners never applied for enrollment under the Pharmaceutical Technologists Guidelines and therefore no assessment or evaluation of their qualifications has ever been undertaken by the 1 st Respondent. Considering this, it was argued that no decision has been made regarding their eligibility for enrolment and there exists no administrative action capable of challenge before the Court. In Counsel’s view, the Petition is founded on the Petitioners’ apprehension that their applications might be rejected rather than on any actual decision of the 1 st Respondents and urge the Court not to adjudicate a dispute that has not matured into a justiciable controversy.
48. On the second issue, Counsel submitted that although constitutional petitions are not subject to a strict statutory limitation period, courts have consistently frowned upon unexplained and excessive delay. In this regard, reliance was placed in Priscilla Mwara Kimani & 2 Others v Attorney General [2019] eKLR where it was underscored that delay must be justified and not prejudicial to the respondent. Comparable reliance was placed in Joan Akinyi Kabasellah & 2 Others v Attorney General Petition No.41 of 2014 and Joseph Migere Omoo v Attorney General, Petition No.424 of 2013 .
49. Counsel argued that the Petitioners obtained their diplomas between 2005 and 2008 but only instituted this Petition 15 years later without an explanation for the prolonged delay. In Counsel’s view, such delay is prejudicial not only to the Respondents but also the public, given that the dispute concerns regulation of a profession directly impacting public health. Counsel added that the Respondents continue to suffer prejudice as they remain in a state of uncertainty regarding parties who may have similar claims.
50. Turning to the third issue, Counsel submitted that the Petitioners had failed to meet the constitutional threshold set out in Anarita Karimi Njeru v Attorney General [1979] KLR and to plead and prove constitutional violations with precision as guided in Raila Odinga & Others v IEBC & Others, Petition No. 5 of 2013 .
51. Relying in Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) , Counsel argued that discrimination entails differential treatment between persons in similar circumstances. In Counsel’s view, the Petitioners had not produced any evidence that they applied for enrolment, that their applications were rejected or that similarly situated persons were enrolled while they were excluded. Reliance was placed in Josphat Mwisa & 24 Others v Pharmacy and Poisons Board & Another, Petition No. 346 of 2013 , where the Court addressing an identical claim found no discrimination. As such, Counsel argued that violation of Articles 27 and 28 of the Constitution had not been established. Like dependence was placed in John Kabui Mwai & others v KNEC [2011] eKLR .
52. On Articles 43 and 55 of the Constitution, Counsel rejected the assertion that the Petitioners’ socio-economic rights have been infringed through the rejection of their applications. Counsel submitted that there was no evidence that any applications were ever lodged or rejected by the 1 st Respondent. Moreover, Counsel emphasized that the Petitioners remain at liberty to apply for evaluation and assessment under the applicable Guidelines. Discussing, the case of Nicholas Mwiti (supra) , Counsel submitted that it is distinguishable from this case as there existed an actual decision by the 1 st Respondent rejecting applications. Counsel stressed that in the present case, no such decision has been made to state that the cited Articles were actually violated.
53. Similarly, on Article 47 of the Constitution, Counsel submitted that no right to fair administrative action had been violated since no administrative decision has been made against the Petitioners. As such, Counsel argued that there is no administrative action capable of invoking the dictates of Article 47 of the Constitution.
54. Counsel on the fourth issue opposed the Petitioners’ challenge to the Pharmaceutical Technologists Guidelines and submit that the Guidelines were lawfully promulgated pursuant to the 1 st Respondent’s statutory mandate under the Pharmacy and Poisons Act. Counsel submitted that Section 3B of the Pharmacy and Poisons Act, empowers the 1 st Respondent to prescribe minimum requirements, approve qualifications and conduct examinations for purposes of recognition and enrolment of pharmaceutical technologists. It was further submitted that Section 3(e) expressly authorizes the 1 st Respondent to conduct examinations for purposes of enrolment.
55. According to Counsel, the Guidelines merely operationalize these statutory functions and have not been declared unlawful or unconstitutional by any Court of competent jurisdiction. Counsel added that the Petitioners have not sought a substantive prayer in the Petition for a declaration that the Guideline
[...truncated]