[2015] KEHC 2761 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

MILIMANI LAW COURT

MISC. CIVIL APPLICATION NO. 347 B OF 2014

REPUBLIC.................................................................APPLICANT

-VERSUS-

THE KENYA MEDICAL LABORATORY TECHNICIANS

& TECHNOLOGISTS BOARD................................1ST RESPONDENT

THE PS, MINISTRY OF HEALTH..........................2ND RESPONDENT

AND

ABDILATIF ALI................................................INTERESTED PARTIES

RULING

Introduction

By a Notice of Motion dated 21st January, 2015, the ex parte applicant herein seeks the following orders:

The firm of M/S Muthoga Gaturu & Co. Advocates, Bruce House, 7th Floor, Standard Street, P.O. Box 45860-00100, Nairobi is not properly on record for and on behalf of the 1st Respondent and the Pleading filed in its name be struck out.

Abdilatif Ali, the 1st Respondent’s Registrar has no capacity to instruct any law firm for and on behalf of the 1st Respondent.

The Ex parte Applicant’s Notice of Motion dated 17th September 2014 be allowed as unopposed.

That the firm of M/s Muthoga Gaturu Advocate, Bruce House, 7th Floor, Standard Street, P.O. Box 45860-00100, Nairobi and Abdilatif Ali do bear the costs of the application

The said Motion was supported by an affidavit sworn by Elizabeth Wairimu Gichimba, the applicant herein on 21st January, 2015.

According to the applicant, she was informed by a Mr. Silas Muguongo, the Vice Chairman of the 1st Respondent, that the 1st Respondent’s has not convened a board meeting, ordinary, special or otherwise since June 2013 as is required by law. It was deposed that further to the foregoing the last tender for legal services were done in the year, 2011 and it was awarded to M/S Ransley Mcvicker & Shaw Advocates, House No. 8 Kirichwa Lane, P.O. Box 1331-00502, Nairobi, whose contract expired a couple of years ago.

Despite that the applicant averred that, based on the same information, the Interested Party herein has in numerous occasions proceeded to procure services for and on behalf of the 1st Respondent in contravention of the provisions of the Public Procurement and Disposal Act, 2005 Laws of Kenya and without involving all the board members.

It was therefore contended that the firm of M/s Muthoga Gaturu & Co. Advocates, Bruce House, 7th Floor, Standard Street, P.O. Box 45860-00100, Nairobi is acting illegally by purporting to have instructions from and on behalf of the 1st Respondent herein, hence it is not properly on record.

To the applicant, the Interested Party usurped the powers of the 1st Respondent’s Board by purporting to instruct the firm of M/s Muthoga Gaturu advocate, Bruce House, 7th Floor Standard Street, P.O. Box 45860-00100, Nairobi without following the proper procedure under the law.

The applicant therefore urged this Court to disregard the pleadings filed by the said firm.

It was further disclosed that a section of members of the Kenya Medical Laboratory Technician and Technologist Board have distanced themselves from the actions of the Interested Party and his allies.

These allegations were supported by an affidavit sworn by the said Silas Muguongo.

The application was opposed by an affidavit sworn by Abdulatif Ali, the Registrar of the 1st Respondent herein on 2nd March, 2015.

According to the deponent, the allegations by the ex parte Applicant in the said application are unfounded and not supported by any factual basis. It was deposed that the firm representing the 1st Respondent was properly appointed vide a letter dated way back in 15th September, 2014 and has continued to render services to the 1st Respondent to its satisfaction.

To the deponent, the application by the ex parte Applicant is an abuse of the court process since complaints regarding lack of compliance with the Public Procurement and Disposal Act ought to be dealt with by the Public Procurement Oversight Authority and not this honourable court.

It was averred that at the instigation of the Ex parte Applicant, the 1st Respondent received a letter dated on 6th January, 2015 from the Public Procurement Oversight Authority in which letter the Authority clearly set out allegations made by the ex parte Applicant, through her advocates, that the appointment of the advocates representing the 1st Respondent in this case was improper and requested the Board’s response.

On 23rd January, 2015, the Board gave a substantive reply to Authority in answer to the allegations made in the complaint letter, which has already been considered by the Authority which on 3rd February, 2015 make its determination where it made its findings that there was no breach of the Public Procurement and Disposal Act in the appointment of the 1st Respondent’s Advocates in this matter.

It was disclosed Silas Muguongo, has been previously warned by the Ministry to stop interfering with the operations of the board, the 1st Respondent in this matter.

To the deponent, the instant application is meant to prevent the court from making a determination of the matter on its own merits.

I have considered the application, the affidavits both in support of and in opposition thereto, the submissions and authorities cited.

The gravamen of the applicant’s case is that the firm of M/s Muthoga Gaturu is not properly appointed by the 2nd Respondent as its appointment was not in compliance with the provisions of the Public Procurement and Disposal Act.

The basis upon which this allegation is made is some information received from one Silas Muguongo, who described himself as the 1st Respondent’s vice chairman. According to him, the Interested Party herein has on numerous occasions procured services including legal services for and on behalf of the 1st Respondent in contravention of the provisions of the Act without involving the board members.

This same issue however was raised by the applicant herein in her complaint to the Public Procurement Oversight Authority which after considering the complaint returned a verdict that the issue raised in the complaint had been addressed.

The applicant now contends that since the matter was not related to procurement process, she was not bound to follow the procedure outlined under the said Act. However, it was her who invoked the jurisdiction of the said Authority. In this respect it was held in Constitutional Petition Number 359 of 2013 Diana Kethi Kilonzo vs. IEBC and 2 Others that:

“We note that the Constitution allocated certain powers and functions to various bodies and tribunals. It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. These bodies and institutions should be allowed to grow. The people of Kenya, in passing the Constitution, found it fit that the powers of decision-making be shared by different bodies. The decision of Kenyans must be respected, guarded and enforced. The courts should not cross over to areas which Kenyans specifically reserved for other authorities.”

Whereas it may well be true that the said Authority could not have been the proper forum to determine the issue raised before this Court, having invoked its jurisdiction ether wrongly or rightly, the applicant was not entitled to ignore a decision which emanated from its own complaint and take up the same issue before this Court without challenging the same decision.

Apart from that the parties herein are not agreed on the factual position regarding the retainer of the said firm. These are not the proper proceedings in which to determine conflicting factual averments.

In my view the issue whether or not the firm of Muthoga Gaturu & Company’s services were properly procured or not is a matter which can only be determined in these proceedings if the facts are agreed. In the absence of such agreement, it would be futile or this Court to attempt to resolve that issue.

The applicants are seeking an order striking out the said firm and its pleadings and that her application be allowed as being unopposed. Even if this Court had agreed with the applicant on the issue of the retainer of the said firm, it would not have automatically followed that this application would be allowed. Judicial review proceedings have no place for default judgements and every application whether opposed or not must be determined on its merits based on the material on record and even where an application is unopposed, the Court may well dismiss the same since the mere fact that an application for judicial review is unopposed does not thereby confer merits on it.

In the premises I find no merit in this application which I hereby dismiss with costs.

It is so ordered.

Dated at Nairobi this 1st day of October, 2015

G V ODUNGA

JUDGE

Delivered in the presence of: