[2021] KECA 97 (KLR)

Pharmacy and Poisons Board & another; Mwiti & 21 others (Respondent) (Civil Appeal E144 of 2021) [2021] KECA 97 (KLR) (22 October 2021) (Ruling)

Neutral citation: [2021] KECA 97 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal E144 of 2021

W Karanja, MSA Makhandia & K.I Laibuta, JJA

October 22, 2021

In the matter of

Pharmacy and Poisons Board

1st Applicant

Registrar, Pharmacy and Poisons Board

2nd Applicant

and

Nicholas Mwiti

Respondent

Njeru Nyaga Kivuti

Respondent

Josephat Matoke

Respondent

Alex Mwangangi

Respondent

Beatrice Adhiambo

Respondent

Sharf Mbani

Respondent

Joshua Mbindyo

Respondent

Everlyn Wairimu

Respondent

Kennedy Miriti

Respondent

Walter Nyamache

Respondent

Gidraph Karunge

Respondent

Khadija Galgalo

Respondent

Irene Katunge

Respondent

Lydiah Karimi

Respondent

Morgan Mukthar

Respondent

Catherine Njagi

Respondent

Michael Kimeu

Respondent

Brenda Okuto

Respondent

Consolata Olukho Makokha

Respondent

Geziah Andanje

Respondent

Stephen Aswani

Respondent

Judith Ongeri

Respondent

(Being an application for stay of execution from the Ruling and Order of the High Court of Kenya at Nairobi delivered by the Hon. Justice W. Korir dated 24th of March, 2021 in High Court Constitutional Petition No. 140 of 2015)

Ruling

1The Applicants, the Pharmacy and Poisons Board and the Registrar Pharmacy and Poisons Board, were aggrieved by the Ruling and Order of the High Court of Kenya at Nairobi (Hon. Justice W. Korir) dated and delivered on 24th March 2021 in High Court Constitutional Petition No. 140 of 2015. In his Ruling, the learned Judge dismissed the applicants’ application dated 3rd November 2020 seeking to purge the contempt prior to the date scheduled for sentencing on the grounds that they were in contempt of court in failing to obey the orders of the High Court issued by Hon. Justice E. C. Mwita on 9th March 2018. We find nothing on the record before us to show the nature of the orders made by Justice Mwita of which the applicants were in contempt. Suffice it to observe that, by the Motion before us, the applicants seek:(1)spent …;(2)“that there be stay of execution of the Ruling, resultant order and any other consequential orders by Hon. Justice W. Korir delivered on 24th March 2021 pending the hearing and determination of the intended appeal to be filed by the applicants herein”; and(3)that costs be in the cause.

2The applicants’ Notice of Motion dated 4th May 2021 is curiously made under Rule 15(2) of theCourt of Appeal Rules (“Signature of documents in relation to criminal appeals”), which is not relevant to the application before us. It is also noteworthy that the application is accompanied by an unsigned affidavit purported to be sworn by Frederick Siyioi (counsel for the applicants), the effect of which we will shortly address. Neither are the annexures thereto marked or sealed by the Commissioner for Oaths, weighty discrepancies to which we will shortly return.

3Annexed to the applicants’ Motion is a Notice of Appeal dated 9th April 2021, 16 days from the date on which the impugned Ruling and Order were made. Yet there is nothing on the record before us to suggest that the applicants had sought leave to file the Notice out of time. Neither is there anything to show that the Notice of Appeal has been lodged in the High Court.

4The applicants’ Motion is opposed in terms of the 1st respondent’s replying affidavit sworn on 15th May 2021. In his replying affidavit, Nicholas Mwiti contends inter alia that –(a)Frederick Siyioi is a medical doctor, and not an advocate as alleged in paragraph 1 of his supporting affidavit; and(b)the application dated 3rd November 2020 was for stay of execution and review of an earlier Ruling and Order, and did not seek to purge the contempt as alleged.

5. The mandatory provision of Rule 75(2) of the Court of Appeal Rules requires that a Notice of Appeal be lodged within 14 days of the date of the decision against which it is desired to appeal. Failing compliance, the appellant is obligated to seek extension of time pursuant to Rule 4 to lodge the Notice out of time. The applicants have neither complied with Rule 75(2) nor sought extension of time pursuant to Rule 4. Consequently, there is no appeal properly before this Court in respect of which the orders sought would be granted.

5. Notwithstanding the foregoing, it would be remise of us not to comment on, albeit obiter, to set the law straight on this and other issues that emerge from the application before us. With regard to the unsigned supporting affidavit, the unmarked and unsealed annexures, it would suffice to observe that such an affidavit is fatally defective and of no value to the applicants’ Motion.

6Addressing itself to the effect of an unsigned affidavit, the Supreme Court in Civil Application No. 26 of 2018 Gideon Sitelu Konchellah v. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR observed that such an affidavit is of no legal value to the matter before the court and that, in so far as it is defective, it is deemed that there is no affidavit on record.

7. The same fate befalls unmarked and unsealed annexures. They are of no value to the application to which they relate in view of the fact that an Affidavit and the annexures attached thereto constitute evidence. To qualify as evidence, such annexures must be marked and sealed by a Commissioner for oaths as required by Rule 9 of the Oaths and Statutory Declarations Rules.

8. Turning to the principles that govern stay of execution of an order or decree pending appeal or intended appeal, it is noteworthy at the onset that the order sought to be stayed is the order dismissing the applicants’ application dated 3rd November 2020. A negative order dismissing an application cannot be stayed, and we need not say more. Suffice it to observe that the Ruling and Order of Hon. Justice W. Korir made on 24th March 2021 dismissing the applicants’ application aforesaid did not restrain or require anything to be done by the parties. Accordingly, there is nothing to be stayed.

7. As to whether the applicants have an arguable appeal with the possibility of success, or whether the intended appeal if successful would be rendered nugatory should stay not be granted, we need not go beyond our finding that there is no appeal properly before us to merit a grant of the orders sought. Having considered the Applicants’ Notice of Motion dated 4th May 2021, the 1st Respondent’s replying affidavit, the respective submissions of counsel for the applicants and counsel for the respondents, we find that the applicants Motion fails. Accordingly, the same is hereby dismissed with costs to the respondents.

DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF OCTOBER, 2021W. KARANJA....................................JUDGE OF APPEALASIKE-MAKHANDIA.....................................JUDGE OF APPEALDR. K. I. LAIBUTA.....................................JUDGE OF APPEALI certify that this is a truecopy of the original.DEPUTY REGISTRAR