Republic v Cabinet Secretary of Health & 9 others Ex-Parte Emily Wahome [2018] eKLR

Republic v Cabinet Secretary of Health & 9 others Ex-Parte Emily Wahome [2018] eKLR

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  582 OF 2017

IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF: SECTION 8 AND 9 OF THE LAW REFORM ACT (CAP 26) LAWS OF KENYA

AND

IN THE MATTER OF: ARTICLES 22(1), (2), (a), (b), (c)

AND

23(1), 27(1) (2) OF THE CONSTITUTION OF KENYA (2010)

AND

IN THE MATTER OF: THE HIGH COURTS SUPERVISORY JURISDICTION: ARTICLE 165(5) 6, 7, CONSTITUTION OF KENYA, 2010 

AND

IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010

AND

IN THE MATTER OF NUTRITIONISTS AND DIETICIANS ACT NO.  18 OF 2007

AND

IN THE MATTER OF APPOINTMENT TO THE INTERIM COUNCIL OF THE KENYA NUTRITIONISTS AND DIETICIANS INSTITUTE BY THE CABINET SECRETARY OF HEALTH

BETWEEN

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

VERSUS

 CABINET SECRETARY OF HEALTH................1ST RESPONDENT

 KENYA NUTRITIONISTS AND                                                             

 DIETICIANS INSTITUTE....................................2ND RESPONDENT

EMILY WAHOME........................................EX-PARTE APPLICANT

PROF. JUDITH WAUNDO........................1ST INTERESTED PARTY

DR. ROBERT MWADIME.......................2ND INTERESTED PARTY

SAMUEL MAINA NYAKAMBA.............3RD INTERESTED PARTY

IRENE MAKORI.......................................4TH INTERESTED PARTY

HENRY MBURU NGETHE.....................5TH INTERESTED PARTY

EDNA WARENTHO..................................6TH INTERESTED PARTY

GLADYS MUGAMBI................................7TH INTERESTED PARTY

DR. DAVID SOTI.......................................8TH INTERESTED PARTY

JUDGMENT

1. In the notice of motion dated 28th September 2017 the exparte applicant Emily Wahome seeks from this court judicial review orders of:

1) Certiorari to remove to this court to quash the appointment letter of Professor Judith Waudo; Dr Robert Mwadime, Samuel Maina Nyakamba Irene Makori, Henry Mburu Ngethe, Edna Warentho, Gladys Mugambi and Dr David Soti to the Interim Council of the Kenya Nutritionists and Dieticians Institute dated 11th February 2017.

2) Prohibition prohibiting the 2nd respondent Kenya Nutritionists  and Dieticians  Institute from executing  the direction contained in the letter dated 11th July 2017, appointing Professor Judith Waudo, Dr Robert Mwadime, Samuel Maina Nyakamba, Irene Makori, Henry Mburu Ngethe, Edna Warentho, Gladys Mugambi  and  Dr David  Soti to the interim council of Kenya Nutritionists and Dieticians  Institute.

3) Costs be provided for.

2. The application is predicated on the grounds on the face thereof, the statutory statement and verifying affidavit sworn by Emily Wahome the applicant herein.

3. The applicant’s case is that she is a nutritionist and dietician by profession registered as such under Nutritionists and Dieticians Act No. 18 of 2007 and a member of the 2nd respondent institute.

4. That on 11th July 2017 the 1st respondent Cabinet Secretary, Ministry of Health appointed an interim council of the 2nd respondent institute and issued appointment letters to the persons named in the prayers herein.

5. According to the applicant, the appointment violates the  Nutritionists and Dieticians Act No. 18 of  2007 as the Act  does not  provide for appointment of an interim council  hence the appointment  letters  are a nullity  and  amenable  for  quashing  and prohibition  by  this court.

6. The  2nd respondent  Institute  filed a  replying  affidavit  sworn by  Dr David Okeyo its  Chief Executive basically deposing  that he had been advised by his advocate on record that the appointments  to  the council  must  adhere  to the  provisions  of the  Nutritionists and Dieticians Act No. 18 of  2007 which he annexed  to the affidavit.

7. The 1st respondent Cabinet Secretary did not file any response   to the application despite being served with the pleadings.

8. The application was canvassed orally on 7th February 2018  with Mr  Gichamba submitting on behalf of the applicant, Professor  Wangai for  2nd respondent  and  Mr  Muiruri appearing  for the  3rd , 5th and  7th interested parties  who did not  file any responses   to the motion.  Mr Gichamba reiterated the contents of the application and grounds contained in his client’s statutory statement and verifying affidavit and submitted that the appointment of the interested parties was illegal and not    provided for in the Nutritionists and Dieticians Act No. 18 of 2007.  It was submitted  that Section 5 of the Act establishes  the institute  and  composition  of the  council  and that under the 1st schedule to the Act, there are requirements stipulated for appointment  of the Chairperson and  Members of the Council.

9. Further, that all members of the council resigned after exceeding their maximum 3 years to about 7 years and that were such resignation occurs, only a special general meeting could be convened by the institute to find replacements.

10. In this case it was submitted that the interested parties were illegally in office and hence they must vacate as their appointment has no legal effect.

11. In addition, it  was submitted that the appointment  letters  were ambiguous in that they are open ended until  the Act is  amended   which means  if the Act  is not amended  they could hold office perpetually and therefore the special general meeting  would not  be convened  contrary to the Act, and  the  illegal council could set the mandate and  agenda of the institute.

12. In response, Professor Wangai submitted that the institute is established by Act No. 18/2007 and that the council of the institute had done 7 years instead of 3 years necessitating some members to petition Parliament then the 1st respondent the interim council and issued letters of appointment.  It was   submitted that the  court is inclined  to interpret the  law to guide all parties on the mechanisms of appointment as stipulated in the Act where a special general meeting  is expected  to be convened  whenever   there is  resignation as was the case  here, to  fill the vacant  position in the council.  Counsel therefore sought for directions of this court.

13. Mr Muiruri counsel for the  interested  parties  conceived  with submissions by the  2nd respondent’s counsel and urged the court to  give directions  in the matter to enable the council  to carry  out its statutory  mandate.

DETERMINATION

14. I have carefully  considered the  exparte  applicant’s  application  and  responses thereto by the 2nd respondent and interested  parties  who appeared.

15. The issue for determination is whether the application has any merit. The main   complaint  is that  the Cabinet Secretary  Ministry of Health appointed an interim council of the institute of  Nutritionists and Dieticians and appointed members to the interim council  on 11th July  2017 with letters that  show  that the interim council could exist perpetually since they are  depended on the amendments to the Act, as opposed  to a maxim of 3 years  that the  council members  are expected to  serve.

16. Further, that the Act  provides  for a mechanism of establishing  the council  and  its members  through  a special Annual General Meeting where there  are resignations to fill vacant positions but the provisions  of the Act  were  never adhered  to.

17. The institute of Nutritionists and Dieticians is established by Section 4 of the Act.  Under Section 5, the Act establishes the Council and also provides for its composition.  The Institute, under Section 4 (3) is governed by the Council.  Under Section 5(a), the chairperson and members of the council, who are all representative of various institutions are elected or nominated in manner set out in the First Schedule.

18. Section 5(3) provides that the chairman and every member elected under Subsection (2) shall hold office for a term of 3 years and shall be eligible for reappointment for a further term of three years.  Under subsection 4, all appointments under Section 5 shall be notified in the gazette.

19. The Minister, under Section 8 of the Act, approves/determines remuneration of council members.  There is no provision for  an interim council or interim council members  and neither is there  provision for  appointments conditional  upon amendments  to the Act as is stipulated  in the respective letters of  appointment dated  11th July  2017 issued to the  interested  parties  herein by the  Cabinet Secretary.

20. Pursuant  to the First  Schedule  to the Act, Section 2  stipulates  that where the office of chairperson  is vacant, then a special  general meeting  shall be convened  upon which members  of the institute may appoint a person to act as a chairperson  during the said Special General Meeting.  The rest of the members of the council can therefore only be appointed/elected in accordance with Section 5 of the Act.

21. From the above provisions of the law, I have no doubt in my mind that the 1st respondent had no powers under the law to establish an interim council and to unilaterally appoint members of the interim council until the time when the Act will be amended and a new Council is formed and give them the mandate to form the Council and carry out all functions of the Council as stipulated in the Act; and reviewing amendments s to the Act.  There is no discretion given to the Cabinet Secretary under the Act to appoint the interim council or to appoint members to the council other than in the manner stipulated in the Act and moreso, in the First Schedule to the Act.

22. The chairperson and members of the Council are elected in accordance with the procedure set out in the First Schedule and not handpicked by the Cabinet Secretary.

23. Accordingly,I have no hesitation in finding and holding that the appointment letters of the Cabinet Secretary dated 11th July 2017 were issued without jurisdiction and ultra vires the Nutritionists and Dieticians Act no. 18 of 2007.

24. Consequently, I hold and find that the actions by the Cabinet Secretary are illegal and cannot be allowed to stand. Certiorari and prohibition are judicial remedies that issue to quash and or prohibit illegal acts.  And any illegal act is void and a nullity.  It must however be so declared in order to wipe the slate clean.

25. I therefore  find and  hold  that the  appointment  of the Interim  Council of the Institute and the  appointment of members  thereto  being the interested parties herein to serve for unspecified  terms  until  amendments  to the Act  are effected  is an  illegal  act on the part of the Cabinet  Secretary  responsible for the Ministry of Health.

26. In the end, I hereby issue certiorari to bring into this  court for  purposes  of quashing  and  I hereby  quash  the  decisions  taken  by the  1st  respondent  Cabinet Secretary Ministry of Health by letters of 11th July 2017 appointing the interested parties herein namely: Professor Judith Waudo; Dr Robert Mwadime, Samuel Maina Nyakamba Irene Makori, Henry Mburu Ngethe, Edna Warentho, Gladys Mugambi and Dr David Soti as members of the Interim Council of the Nutritionists and Dieticians Institute.

27. In view of the  extreme illegality of the appointments by the Cabinet Secretary,  I hereby grant prayer No. 2 of the  applicant  prohibiting  the  2nd  respondent from executing  the directives/decisions of the Cabinet Secretary dated 11th July  2017  appointing  Professor Judith Waudo; Dr Robert Mwadime, Samuel Maina Nyakamba Irene Makori, Henry Mburu Ngethe, Edna Warentho, Gladys Mugambi and Dr David Soti as members  of the  Interim Council  of the  Kenya Nutritionists and  Dieticians Institute.

28. Each party to bear their own costs of these proceedings.

Dated, signed and delivered in open court at Nairobi this 2nd day of March, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Miss Daido h/b for Miss Maina for the 1st Respondent

N/A for the 2nd Respondent

N/A for the Exparte applicant

N/A for the interested Parties

CA: Kombo

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