RUPHA's bid to stop county business permits hits legal wall

The Rural Private Hospitals Association (RUPHA) of Kenya has lost a bid to stop the 47 county governments from imposing single business permit fees on private medical facilities after the High Court struck out its petition.

Justice Roselyne Aburili on Tuesday dismissed the petition after finding that the dispute had already been determined in previous court proceedings and that the association lacked the legal capacity to sue in its own name.

The association had challenged the levying of single business permits on private healthcare facilities, arguing that the facilities were already subject to regulation and licensing by national statutory bodies.

"It(RUPHA) contends that regulatory oversight, quality control, operational licensing and annual reviews are executed exclusively by national statutory regulatory bodies such as the Kenya Medical Practitioners and Dentists Council (KMPDC), the Clinical Officers Council (COC) and the Nursing Council of Kenya," the judge observed in part of the judgement.

The association argued that county governments had no constitutional basis to impose the additional charges and that the levies amounted to double taxation.

The petition further alleged that some counties had subjected private healthcare facilities to harassment, intimidation, arrests and criminal prosecutions over the permits.

However, Justice Aburili said the court could not reopen an issue that had already been conclusively determined in earlier litigation.

The judge said the petition raised issues similar to those considered in previous cases involving the Kenya Pharmaceutical Association and county governments, particularly the constitutionality of single business permits imposed on healthcare-related premises.

The earlier case, filed by the Kenya Pharmaceutical Association and Pharmaceutical Society of Kenya, was decided by Justice John Mativo in 2017.

The pharmacists challenged the requirement by counties to pay single business or trade permit fees.

They argued that pharmacies were already licensed under the Pharmacy and Poisons Act and that the additional county charges amounted to double taxation.

Justice Mativo, however, dismissed the petition, finding that counties had the power to impose trade licences on pharmacy premises.

He distinguished between professional licensing, which regulates the practice of pharmacy, and trade licensing, which applies to the business premises.

“The same issues of trade versus profession dichotomy are raised in this petition as well as in the previous petition," Judge Aburili noted in her recent ruling.

The judge also rejected the argument that changing the association bringing the case allowed the dispute to be litigated afresh.

“You cannot evade res judicata doctrine or rule (reopen determined cases) simply by substituting one registered society or association with another or plotting a petitioner differently when the underlying class of litigants and the right asserted are more importantly identical in substance and content,” she said.

The judge warned that allowing different associations to repeatedly bring similar cases would undermine the principle of finality in litigation.

“Allowing different associations to file successive petitions on behalf of the same broad sector creates an endless cycle of litigation and goes contrary to the principle of finality of litigation,” she said.

She further noted that reopening the dispute would place an unnecessary burden on county governments, which would have to spend public resources defending an issue that had already been litigated.

“It also impedes the need for finality in litigation and risks litigants obtaining conflicting decisions from courts of concurrent jurisdiction,” Justice Aburili said.

The judge also determined that the Rural Private Hospitals Association should have instituted the proceedings through its officials because, as a society registered under the Societies Act, it does not have a separate corporate identity like a company

“I find that the petitioner herein ought to have sued through or using the names of its officials,” she said.

Justice Aburili upheld the counties’ objection and struck out the association's petition.