Mboya v Pharmacy and Poisons Board & 3 others (Petition E030 of 2023) [2023] KEELRC 3307 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Principal Secretary, by the press release of January 20, 2023, renewed the contract of the 3rd respondent as CEO/Secretary of the 1st respondent
- 2.Whether the orders as prayed for can issue in the absence of such a decision by the 2nd respondent
- 3.Whether the circumstances surrounding the impugned press release have been overtaken by subsequent events
Key legal issues
#Whether the 2nd respondent (Principal Secretary) renewed the 3rd respondent's contract as CEO by the press release of January 20, 2023
No. The press release was a conveyance of a renewal, not an instrument of renewal by the Principal Secretary, and no material showed she made such a decision
The Court examined the text of the press release. It confirmed that the incumbent CEO's contract had been renewed for a second term but did not state that the Principal Secretary carried out the renewal. Although the Principal Secretary would lack authority to renew the contract and the petitioner's submissions on the applicable constitutional, statutory and policy provisions were upheld, no decision by the 2nd respondent was established on the evidence.
Whether the declaratory and certiorari orders sought should issue
They could not issue because no decision by the 2nd respondent renewing the term was established
The relief sought was premised on a decision by the 2nd respondent to renew the 3rd respondent's term. Since the Court found no such decision was made by her, the foundational premise for the declarations and the quashing order was absent, and the orders as prayed could not issue.
Whether the petition had been overtaken by subsequent events
Yes. Numerous actions and decisions were made after the press release, including the board's extension and later substantive re-appointment of the 3rd respondent
The replying affidavits showed that after January 20, 2023 the board resolved on February 27, 2023 to extend the CEO's contract for six months, and on May 19, 2023, after performance evaluation, re-appointed him substantively for four years. These intervening decisions meant the circumstances surrounding the press release had been overtaken, mooting the challenge.
Legal principles established
#- A press release conveying that a CEO's contract has been renewed is not, without more, an instrument of renewal by the person issuing it; the impugned decision must be shown to have been made by the authority acted against
- Certiorari and declaratory orders cannot issue in the absence of a decision by the impugned authority
- A petition may be rendered moot where subsequent events and decisions have overtaken the impugned action
Court orders
#- 1.The petition is determined in terms of the findings in the judgment
- 2.Each party to bear own costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated; petition invoking Articles 10, 73 and 232 of the Constitution of Kenya, 2010 and section 5 of the Pharmacy and Poisons Act, cap 244
Relief refused
#Declaration that the 2nd respondent's renewal of the 3rd respondent's term via the press release dated 20.01.2023 was in excess of powers and an abuse of office
The press release was not an instrument of renewal by the Principal Secretary; no material showed she renewed the contract
Declaration that the press release violated Articles 10, 73 and 232 of the Constitution
No decision by the 2nd respondent renewing the term was established, so the orders as prayed for could not issue
Order of certiorari quashing the decision in the press release dated January 20, 2023
The press release was a conveyance, not an appointing or renewing instrument; circumstances had also been overtaken by events
Costs of the petition
Court ordered each party to bear own costs given the respondents' public-interest clarification of the record
Costs
Each party to bear own costs of the petition
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court finds that there is no material before the Court to show that the Principal Secretary, the 2nd respondent by that press release or other instrument had renewed the contract of service of the 3rd respondent as CEO.
It appears to the Court while the Principal Secretary would not have authority to renew the contract of the 3rd respondent and the petitioner’s case and submissions as to applicable provisions of the Constitution, statutes and policies are upheld, in fact, the 2nd respondent has not been shown to have so renewed the contract of the 3rd respondent.
the Court returns that in absence of the 2nd respondent’s decision renewing the term of the 3rd respondent as CEO/Secretary of the 1st respondent the orders as prayed for will not issue.
In conclusion, the petition is hereby determined in terms of the findings in this Judgment with orders each party to bear own costs of the petition.
Issues in the judgment
#The judgment text does not state the petition case number or the identity/designation of the 1st respondent in the formal title; parties must be inferred from the body
Delivery date line contains a typographical error in the date
Paragraph 9 describes the respondents as having filed the petition, an apparent drafting slip
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mboya v Pharmacy and Poisons Board & 3 others (Petition E030 of 2023) [2023] KEELRC 3307 (KLR)", Case Analysis (2023). Not stated in the judgment text (petition filed February 18, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3307/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.