REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
MISCELLANEOUS APPLICATION NUMBER E044 OF 2024
BETWEEN
REPUBLIC………………………………………….…………………………………...
………………............APPLICANT
AND
KENYA MEDICAL LABORATORY TECHNICIANS
AND TECHNOLOGISTS
BOARD........................................................................................................... RESPO
NDENT
AND
FREDRICK JOSEPHAT OUMA CHALINGA………………………………...EX
PARTE APPLICANT
RESPONDENT’S GROUNDS OF OPPOSITION
TAKE NOTICE that the Respondent shall at the hearing of the Application
dated 21st February 2024 oppose the same on the following grounds;
1. THAT the Application, as filed herein, is premature, incompetent,
misplaced and an abuse of the Court Process.
2. THAT the Application is fatally defective as it has not met the
mandatory threshold envisaged under Section 9 (2) of the Fair
Administrative Actions Act No.4 of 2015.
3. THAT Section 9(2) of the Fair Administration Act provides;
The High Court or a subordinate court under subsection
(1) shall not review an administrative action or decision
under this Act unless the mechanisms including internal
mechanisms for appeal or review and all remedies
available under any other written law are first exhausted.
4. THAT Section 24(4) of the Medical Laboratory Technicians and
Technologists Act provides thus, Any laboratory technician or
technologist aggrieved by the decision of the Board in the
exercise of its powers under subsection (3) may appeal to the
Cabinet Secretary within thirty days of the receipt of the
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decision and in every such case, the decision of the Cabinet
Secretary shall be final.
5. THAT the Applicant ought to wait on the decision of the Cabinet
Secretary which decision is final by dint of Section 24(4) of the Medical
Laboratory Technicians and Technologists Act.
6. THAT in the the matter of Geoffrey Muthinja & another v Samuel
Muguna Henry & 1756 others (2015) eKLR, the Court of Appeal
held that the requirement is in conformity with Article 159 of the
Constitution as it encourages the use of alternative dispute resolution.
“It is imperative that where a dispute resolution mechanism
exists outside Courts, the same be exhausted before the
jurisdiction of the Courts is invoked. Courts ought to be the
fora of last resort and not the first port of call the
moment a storm brews… as is bound to happen. The
exhaustion doctrine is a sound one and serves the purpose of
ensuring that there is a postponement of judicial consideration of
matters to ensure that a party is first of all diligent in the
protection of his own interest within the mechanisms in place for
resolution outside of Courts.”
7. THAT judicial review cannot be used to restrain or stop statutory board
from lawful exercise of power within their statutory mandates.
8. THAT the Respondent acted within the principles of the law.
We therefore urge Your Lordship to dismiss the entire Application with costs
to the Respondents.
Dated at NAIROBI this ---------28th---------------------------------- day of ------------------
March---------------2024
Leah Ngombi Gathenya
State Counsel
FOR: ATTORNEY GENERAL
DRAWN AND FILED BY
Hon. Attorney General
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Attorney General’s
Chambers P.O Box
40112-00100 NAIROBI
(AG/JRP/MOH/16/24)
[email protected] 0701-640-913
TO BE SERVED UPON
Nzamba Kitonga Advocates LLP
209 Fortis Suites Building
Hospital Road, Upper Hill,
P.o Box 60102-00100,
Nairobi.
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