Governor Mutua's order on pharmacy sites gets court nod

Friday May 22 2020

One of the chemists near Machakos Level Five Hospital which were shut by Governor Alfred Mutua on June 16, 2019. PHOTO | FILE | NATION MEDIA GROUP


The High Court has dismissed a petition challenging a decision by Machakos governor Alfred Mutua to shut down private health facilities and chemists operating near public hospitals within the county.

In a ruling delivered by Justice David Kemei, the court found that the governor's decision to revoke licences of the facilities stemmed from Machakos County Finance Act, 2018 whose validity had not been challenged.

“There is no challenge on the constitutionality of the provisions of the Machakos County Finance Act 2018 and on this basis alone decisions that stem from the application of the said statutes cannot be voided or invalidated,” said Justice Kemei.

While dismissing a petition filed by three doctors against the governor's decision, the judge stated that as long as the said Act is in force the county government has a free hand in running the businesses.

He ruled that the court was unable to make an order directed to the governor and the county government yet the powers are in law.

“Every law is presumed valid unless challenged. From the record before me, it cannot be disputed that the petitioners have not challenged the validity of the laws that the respondent (county government) is relying upon," said Justice Kemei.


Further, the court found that since the petitioners desired to operate their pharmacies and trade within Machakos County, they had to align to the county regulations. He noted that there was a distinction between professional and trading licences.

In the petition, the three doctors led by Jacinta Mukonzo, Michael Musyoki Kamala and Wilson Kyalo Mutua wanted the court to declare Dr Mutua's decision unconstitutional and illegal.

The case was provoked by directions issued by the governor in June 2019 that pharmacies operating within a kilometre-radius from the county hospital be closed and their licences revoked.

Dr Mutua made the decision after raiding several facilities, including clinics, pharmacies and laboratories.

He claimed that the facilities were being used as conduits to pilfer drugs and other medical equipment from the county hospital as well as exploiting patients.

Justice Kemei found that the petitioners' pleadings lacked clarity on how the county government had violated their rights.