[2015] KEHC 1450 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 119 OF 2015

ASSOCIATION OF KENYA MEDICAL

LABORATORY SCIENTIFIC OFICERS......................1ST PLAINTIFF

MOSES C. O. LORRE.................................................2ND PLAINTIFF

DANIEL SANGA.............................................................3RD PLAINTIFF

RAPHAEL GIKERA......................................................4TH PLAINTIFF

VERSUS

CABINET SECRETARY,

MINISTRY OF HEALTH................................................1ST DEFENDANT

ABEL O. ONYANGO.....................................................2ND DEFENDANT

KENYA MEDICAL LABORATORY TECHNICIANS

& TECHNOLOGISTS BOARD.......................................3RD DEFENDANT

RULING

1. The Plaintiffs herein took out the motion dated 20th March 2015 in which they sought for the following orders against the Defendants:

THAT a temporary injunction do issue restraining the Respondents by themselves, their agents, servants and/or employees from purporting to implement the newly published election rules contained in the Special Issue of the Kenya Gazette no. 10 of 2015 dated 22nd January 2015 pending the hearing and determination of this application.

THAT a temporary injunction do issue restraining the Respondents by themselves, their agents, servants and/or employees from purporting to implement the newly published election rules contained in the Special Issue of the Kenya Gazette no. 10 of 2015 dated 22nd January 2015 pending the hearing and determination of the suit.

THAT a temporary injunction do issue restraining the 2nd and 3rd Respondents by themselves, their agents, servants and/or employees from conducting the affairs of the board pending the hearing and determination of this application and the main suit.

THAT a declaration do issue that the Special Issue of the Kenya Gazette no. 10 of 2015 and dated 22ndn January 2015 is illegal and is therefore a nullity.

THAT a mandatory injunction do issue directing the 1st respondent to publish the names of the elected members of the 1st applicant and to properly constitute the 2nd respondent.

THAT the costs of this application be provided for.

2. The application is supported by the affidavit of Moses Collins Onono Lorre sworn on 23rd March 2015. The Defendants filed the replying affidavit of Abel Onyango sworn on 25th June 2015 to oppose the motion. When the motion came up for hearing learned counsel appearing in the matter recorded a consent order to have the motion disposed of by written submissions.

3. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the motion. I have also taken into account the rival written submissions. The Plaintiffs have argued that the Defendants have illegally and irregularly purported to review the procedure for the election of association members to the Board by publishing in the Kenya gazette vide special issue no. 10 of 2015 and dated 28. 01. 2015. The Plaintiffs are of the view that Abel Onyango, the 2nd Respondent has no legal mandate to publish such notices on behalf of the Cabinet Secretary, Ministry of Health, the 1st Respondent and the Kenya Medical Laboratory Technicians and Technologists Board, the 3rd Defendant/Respondent. It is said that the 1st Respondent has written to the Association of Kenya Medical Laboratory Scientific officers, the 1st Plaintiff/Applicant directing it to conduct fresh elections in terms of the gazette notice thus rejecting the names of the elected members on the basis of hearsay allegations. The 1st Applicant claimed it conducted reputable elections and elected some of their members to sit in the 3rd Respondent’s Board pursuant to section 6(1) (f), (g) and (h) of the Medical Laboratory technicians and Technologists Act no. 10 of 1999 but their names were rejected without any justifiable grounds and hence the Board has not been legally constituted since 2013 todate. The Respondents have been accused of purporting to publish amendments to the Act without consultations with the 1st Applicant which is the main stake holder. For the above reasons, the Applicants beseeched this court to grant them the orders sought since they have shown they have a prima facie case with high chances of success.

4. The Respondents have urged this court to dismiss the motion because some of the orders sought are permanent reliefs which cannot be granted vide interlocutory applications like in this case. The 2nd Defendant/Respondent stated that the Medical laboratory technicians and technologists (Election ) Regulations, 2015 were published after following the proper procedure in enacting subsidiary legislation. It is argued that the 3rd Respondent made the regulations in exercise of its powers under Section 40 (f) of the Medical laboratory Technicians and Technologists Act no. 10 of 1999. The 3rd Respondent argued that it is unable to act on the names presented by the 2nd Plaintiff since the same are not in compliance with the regulations that came into force on 22. 01. 2015. The Respondents dismissed the Applicants arguments as baseless.

5. The substantive suit is expressed in the plaint dated 20th March2015 in which the Plaintiffs are praying for judgement against the Defendants in the following terms:

A permanent injunction restraining the defendants by themselves, their agents, servants and/or employees from purporting to implement the newly published election rules contained in the Special Issue of the Kenya Gazette No. 10 of 2015 dated 22nd January 2015.

A permanent injunction restraining the defendant s by themselves, their agents, servants and/or employees from conducting the affairs of the board unless it is legally constituted.

A declaration that the Special Issue of the Kenya Gazette No. 10 of 2015 and dated 22nd January is illegal and is therefore a nullity.

A declaration that the 1st defendant to publish the names of the elected members of the 1st applicant in terms of their letter dated 17th February 2014.

Costs of this suit.

Any other relief that this Honourable court may deem fit and just.

6. One preliminary point raised the Respondents is to the effect that some of the prayers are permanent in nature hence they should not be granted at this stage. I have carefully examined the orders sought in the motion and with respect, I agree with the Respondents arguments. A cursory look at prayers (d) and (e) of the motion will reveal that these are final prayers similar to those sought for, in prayers 3 and 4 of the plaint. I find prayers (d) and (e ) of the motion to be prematurely sought hence I will not consider the same to avoid infringing the right of the trial judge who will the suit. I will therefore, only consider prayers (b), (c ) and (f) of the motion. The Applicants are basically seeking for temporary orders of injunction to restrain the Respondents from implementing the Kenya Medical laboratory Technicians and Technologists (election) Regulation 2015 pending the hearing and the determination of this suit. The Applicants have also sought for a temporary order of injunction to restrain the 2nd and 3rd Respondent from conducting the affairs of the Board of the 3rd Respondent pending the hearing and determination of this suit.

7. The principles to be considered before granting orders of injunction were stated in Giella = vs= Cassman Brown & Co. Ltd (1973) E.A interalia as follows:

An applicant must show a prima facie case with a probability of success.

An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury; and

When the court is in doubt, it will decide the application on a balance on convenience.

8. On the first principle, the question is whether the Applicants have shown a prima facie case with probability of success. According to the Respondents, the Applicants have not shown a prima facie case with any prospect of success. It is the submission of the Applicants that their members did not participate in the deliberations that brought forth, the Medical Laboratory Technicians and Technologists (election) Regulations, 2015. The Respondents did not deem it fit to directly answer this submission. Instead, the Respondents merely stated that the Applicants have tendered no evidence to prove that the 3rd Respondent was not properly constituted at the material time. It would appear from the uncontroverted averments by the 2nd Applicant that the 1st Applicant conducted its elections on 30. 11. 2013 and elected their members to the board under Section 6(1) (f), (h) for a term of 3years covering the period 2014 – 2016 and the names of the elected members were forwarded to the 1st Respondent for gazettement in January and February 2014 respectively. It is argued that the 1st Respondent rejected those names without any justification. This allegation is not denied by the Respondents. What is clear to this court, is that the 1st Applicant’s elected the members are not represented in the 3rd Respondent’s board.

9. Without going into the details of the goings in this saga, it is clear to me that the Applicants have shown that they a have a prima facie case with high probability of success.

10. The Applicants have also raised the question as to whether the published regulations can apply retrospetively. This is an important argument which the Respondents did not give serious thought in their responses. This, again, shows that the Applicants have a prima facie case with a probability of success.

11. The second principle is whether the Applicants would suffer irreparable loss. The Respondents are of the opinion that the Applicants would not suffer any irreparable loss. With respect, I agree with the submissions of the Applicants that the 1st Respondent’s exclusion of the Applicants’ members from the Board is a clear demonstration that the board cannot be complete without their inclusion. It is also apparent that the 3rd Respondents board will make grave decisions affecting the Applicants without considering the 1st Applicant’s interests or having their membership properly represented in the board. The provisions of section 26(1) (a) of Medical Laboratory Technicians and Technologists Act no. 10 of 1999 establishes a disciplinary committee of the 3rd Respondent’s Board to be chaired by the chairman of the 1st Applicant. Therefore without the duly elected chairman of the 1st Applicant sitting in the Board, the activities of the disciplinary committee may not properly function. The consequence of such an occurrence cannot possibly be quantified in monetary terms.

12. Since I am not in doubt, I do not intend to consider the third principle of convenience.

13. In the end, I find the notice of motion dated 20. 3.2015 to be well founded. It is allowed in terms of prayers (b) an (c ) with costs to the Applicants.

Dated and delivered in open court this 23rd day of October, 2015.

J. K. SERGON

JUDGE

In the presence of:

………………………………………. for the Plaintiff

……………………………………….for the Defendant