[2022] KEHC 1736 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E 420 OF 2020

IN THE MATTER OF ARTICLES 22, 23 AND 258 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF ARTICLES 10, 27, 28, 43, 47, 55 AND 73 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE PHARMACY AND POISONS ACT, CAP 244

AND

IN THE MATTER OF REFUSAL BY THE PHARMACY AND POISONS BOARD TO REGISTER THE PETITIONERS AS PHARMACEUTICAL TECHNOLOGISTS

BETWEEN

TABITHA MUMBI KIMANI& OTHERS ..................................................PETITIONERS

VERSUS

PHARMACY AND POISONS BOARD................................................1ST RESPONDENT

REGISTRAR, PHARMACY AND POISONS BOARD.....................2ND RESPONDENT

AND

PHARMACEUTICAL SOCIETY OF KENYA.......PROPOSED INTERESTED PARTY

RULING

THE PETITION

1. The Petitioners in the instant Petition dated 15th December 2020 seek the following reliefs:-

a. A declaration that the actions of the Respondents set out in the Petition contravened the Constitution of Kenya and are unlawful.

b. An order directing the Respondents to immediately admit and enroll the Petitioners to practice as pharmaceutical technologists.

c. General damages for violation of constitutional rights.

d. Any other relief that the court may grant.

e. Costs of the Petition.

THE APPLICATION

2. The proposed Interested Party filed a Notice of Motion dated 20th January 2021 seeking to be enjoined as 3rd Interested Party in this matter. The application is premised on the grounds on the face of the record and on the proposed interested party’s supporting affidavit sworn by Dr. Daniella Munene on even date.

3. The summary grounds in support of the application are that:

i. The applicant is acting in the interest of its membership, comprising of pharmacists, whose role falls within the fourth schedule of the constitution of Kenya.

ii. This suit and any decision accruing therefrom directly affects pharmacists’ practice, reputation and trade and it is the interest of justice that they be represented herein.

iii. The applicants bear crucial information with regard to this case, which information is not in possession of any of the parties already in the matter thus will assist the court to come to a firm decision.

iv. The application has been brought in good faith, and without undue delay, and the same is not vexatious, frivolous or a waste of the court’s time.

4. In its supporting affidavit, it reiterates the contents in the grounds and adds that any judicial pronouncement in view of the practice of pharmacy requires the active participation of the intended interested party, so as to secure the highest standards of healthcare to all citizens.

5. It contends that it is in the interest of justice that it be joined in this suit as a party thereof, owing to its interest in the subject as a stakeholder, which interest cannot be perpetuated by any of the parties.

THE PETITIONERS’ RESPONSE

6. The Petitioners filed a Replying Affidavit sworn by Tabitha Mumbi Kimani on 25th May 2021 in opposition to the application. She deposes that applicant’s membership is only applicable to Pharmacists (degree holders) and not the petitioners who are pharmaceutical technologists and as such, its interest in the matter is unknown.

7. She avers that the petitioners are seeking to be registered as Pharmaceutical Technologists and not Pharmacists hence it is not clear how the petitioners’ legitimate claim to be enrolled to practice as Pharmaceutical Technologists will affect the Applicant’s membership.

8. She contends that the Applicant has not outlined the technical and practical information it seeks to offer this court for a fair conclusion of the matter. In any case, it does not play a role in the registration and enrolment of the petitions to practice as pharmaceutical technologist.

9. The Applicant has also failed to demonstrate how the decision of this court whose outcome is unknown will affect it. Further, the application by the applicant is ill intended as it has demonstrated on various occasions that all it wants is to do away with diploma holders in pharmacy from practising and as such is incapable of giving an independent and objective guidance to this Court.

RESPONDENTS’ RESPONSES

10. The Respondents are in support of the application

ANALYSIS AND DETERMINATION

11. Having carefully considered the application, the Petitioners’ response, Respondents response, and parties’ submissions, I find that there only arises one issue for determination: -

a. Whether the applicant should be joined as a party to the proceedings.

A. WHETHER THE APPLICANT SHOULD BE JOINED AS A PARTY TO THE PROCEEDINGS.

12. The Applicant relied on Article 22 (2) (d), 22(3), 22(3)(b) of the Constitution, Rule 2 and Rule 7(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and the cases of Amon vs Raphael Tuck and Sons Ltd, 1956 – 1All ER 273;Departed Asians Property Custodian V Board vs Jaffer Brothers Ltd [1999] 1 E.A 55; Dollfus Mieg et Campagnie S.A. vs Bank of England, 1950- 2 All ER 605 at p. 61 ; Yahaya Kariisa vs Attorney General & Another, S.C.C.A No. 7 of 1994 [1997] HCB 29 ;; Judicial Service Commission vs Speaker of the National Assembly & Another [2013] eKLR; and the Black’s Law Dictionary 9th Edition, page 1232on the applicable law.

13. It contended that it is mandated to nominate representatives to the 1st respondent, a regulatory body in the practice of pharmacy as well as regulation of products and as such it is an important cog in the present proceedings as a stakeholder and consumer of the process under contestation within these proceedings.

14. It urged submitted that its memberships consists of pharmacists in Kenya, as such, the persons who will ultimately join the practice and become pharmacists are important to it. Their education and qualification is a matter of interest as this will help ensure it can be able to achieve its objective of ensuring there is the highest attainable standards of health to all citizens in so far as medicines and drugs are concerned.

15. It further averred that its membership has a duty to assist this Court with information from a stakeholder’s perspective. That any decision emanating from these proceedings will directly affect the practice and quality of pharmacy in Kenya and its members will be directly affected too.

16. Relying on Departed Asians Property Custodian V Board vs Jaffer Brothers Ltd [1999] 1 E.A 55 it argued that the purpose of joining is to enable this court deal with the matters brought fully and exhaustively and to avoid a multiplicity of suits. Further, it will assist this court this court to reach a fairer and more sustainable result as it will make arguments which are of wider import than the concerns of the particular parties to this case. It further sought reliance in the case of on Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR to advance that argument. It urged the Court to allow its application in the interest of justice and promotion of all fairness.

17. The Petitioners urged this court to disallow the application on the grounds that; the Applicant has not demonstrated the prejudice its stands to suffer should the application be denied; it has not provided particulars of the effects the present case will have on the practice of its membership and the society; it has no role in the admission and enrollment of the petitioners as such its interest in unidentifiable; it has not demonstrated the technical and practical information it seeks to offer this court; and its intention is not genuine as alluded to in the petitioners replying affidavit. Reliance is placed in the case of Trusted Society of Human Rights Alliance v Mumo Matemo 5 others (2014) eKLR that laid down the principles for joinder of parties and urged the court to disallow the application.

18. Relying further on Order 1 Rule 10(2) of the Civil Procedure Rules 2010 and the cases of Shirvling Supermarket Limited v Jimmy Ondicho Nyabuti & 2 others [2018] eKLR andTrusted Society of Human Rights Alliance v Mumo Matemu & 5 others, Supreme Court Petition No. 12 of 2013, [2014] eKLRthe respondents urged the court to enjoin the applicant as an interested party on the basis that it has an identifiable interest in the suit and the determination of this court shall directly affect it.

19. Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (otherwise referred to as “The Mutunga Rules) defines interested party as a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.

20. Rule 7 of the Mutunga Rules provides that; a person may, with leave of the Court, make an oral or written application to be joined as an interested party and a court may on its own motion join any interested party to the proceedings before it.

21. The Supreme Court in the case of Francis Karioki Muruatetu & another v. Republic & 5 others [2016] eKLR stated that enjoinment is not as of right but is at the discretion of the Court, it also set out the elements to be met by a party seeking to be enjoined as an interested party. To wit;

i. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.

ii. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.

iii. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these sub missions are not merely a replication of what the other parties will be making before the Court.

22. In the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, Supreme Court Petition No. 12 0f 2013, [2014] eKLR, the Supreme Court held that:-

“An interested Party is one who has stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings.”

23. The Applicant has submitted that it is an important and necessary party in these proceedings as it is a stakeholder and consumer of the process under contestation within these proceedings; persons who will ultimately join the practice and become pharmacists are important to it, their education and qualification is a matter of interest and this will help it ensure that it can be able to achieve its objective of ensuring there is highest attainable standards of health to all citizens, in so far as medicines and drugs are concerned. Lastly that it owes its membership a duty to assist this Court with the information from the stakeholder’s perspective. The decision of this court will affect the practice and quality of pharmacy in Kenya and its members will be affected too.

24. Upon consideration of the rival submissions, I do agree with the sentiments of the proposed interested party. Its presence in this suit cannot be overlooked as it will guide this Court in making a just determination and will also safeguard the interests of the members it represents. The Petitioners themselves may at one point become pharmacists (degree holders) and as such will be under leadership of the proposed Intended Party. I find that the proposed Interested Party has a legitimate and identifiable stake or a legal interest in the proceedings before this Court and ought to be joined in these proceedings to enable this Court arrive at a just determination.

25. The upshot is that the proposed Interested Partys Notice of Motion dated 20th January 2021 is meritorious and is allowed. I proceed to make the following orders;-

a. The Applicant proposed Interested Party Ms- Pharmaceutical Society of Kenya enjoined in these proceedings as the 3rd Interested Party.

b. The 3rd Interested Party do file response to the Petition and serve the same upon the Petitioners, the 1st and 2nd Respondents and Interested Party within 15 days from the date of the ruling.

c. Costs shall abide the outcome of the Petition.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF MARCH, 2022

………………………

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA