The Constitution of Kenya outlines the distinct responsibilities of the National and County Governments, specifically detailing the functions of each in the Fourth Schedule. Among the duties reserved for county governments is the development and regulation of trade. This includes managing and overseeing markets, regulating and supporting cooperative societies, enforcing fair trading practices, promoting local tourism, and issuing trade licenses.
Crucially, the constitutional power granted to counties for trade regulation and licensing expressly excludes the regulation of professions. Regulated professions, such as law and medicine, are overseen by their own established regulatory bodies, like the Law Society of Kenya and the Kenya Medical Practitioners and Dentists Council. This constitutional separation of powers has been a point of contention, particularly concerning the imposition of business permit fees on professionals.
Judicial Precedent: The Case of Medical Practitioners
This conflict was previously addressed by the High Court in cases such as Republic v Kisii County Assembly & 4 others Ex parte John Aboko Kumenda & another; Kisii County Secretary & 2 others (Interested Parties) [2021] eKLR. A pivotal case further clarifying this issue involved the Kenya Medical Association (KMA) challenging the Nairobi City County Government.
The KMA petitioned the court, contesting the county’s demand for a trade licensing fee of Kshs. 15,000 from medical practitioners. The Association contended that imposing this fee was a breach of constitutional provisions and constituted unlawful regulation of professionals who are already governed by the Medical Practitioners and Dentists Council.
Arguments Presented to the Court
The Petitioner argued that medical doctors qualify as a profession under Section 2 of the Nairobi City County Trade Licensing Act, 2019. Furthermore, Section 3 of the Act explicitly excludes professions from regulation by the Act. However, a specific provision in the schedule to the Act (Paragraph 1.5 Row 12) still required health professional officers to pay a Kshs. 15,000 license fee. The KMA argued that this schedule provision was inconsistent with Section 3 of the Act and should therefore be declared void.
Conversely, the County Government acknowledged that medical practitioners are professionals. However, they maintained that practitioners operating clinics who engage in business activities, such as the sale of pharmaceutical products, are engaging in trade. The county emphasized that these commercial operations necessitate the payment of a single business permit for regulatory oversight.
The Court’s Determination
The court delivered a ruling based on two primary points of reasoning:
- Incompatibility with Constitutional Provisions: The court held that charging single business permit fees to medical doctors was in direct conflict with the Fourth Schedule of the Constitution. The Constitution exempts professionals from county-level trade licensing requirements.
- Statute versus Subsidiary Legislation: The court affirmed the legal principle that where a schedule or subsidiary legislation contradicts the substantive provisions of the parent Act, the Act prevails. The court found that Paragraph 1.5 Row 12 of the Schedule, which mandated a business permit fee for health professionals, contradicted Section 3 of the Act, which excluded professions from trade licensing regulation within Nairobi County. Consequently, the schedule provision was declared void to the extent of its inconsistency.
As a result, the court issued an order of prohibition. This order restrained the Nairobi City County Government and its affiliates from demanding, levying, or enforcing trade license or single business permit fees from medical doctors within Nairobi County. The court also awarded the costs of the proceedings to the petitioner.
Defining a Profession Versus Commercial Activity
The court has previously established the criteria for defining a profession. In the case of Okenyo Omwansa George and Another vs Attorney General and 2 Others, the characteristics of a profession were listed to include:
- Specialized knowledge and expertise
- Educational training
- Continuous professional development
- Ethical qualifications and adherence to a higher standard of ethics
- The existence of confidential relations
- The existence of a regulatory professional body
- Commitment to public service
A critical distinction arises between a profession as a vocation and a profession practiced for commercial purposes. While a professional’s primary aim is offering service to the public, they become subject to business regulation once their activities transition into trade. For instance, a doctor provides medical services through diagnosis and prescription for the benefit of patients. Conversely, a pharmacist is primarily engaged in the commercial enterprise of selling those prescribed drugs. Doctors offer their services as part of the health care system; pharmacists engaged in the sale of drugs are expected to obtain a business permit for their commercial operation. This boundary highlights the line between professional public service and the commercial enterprise that begins when goods or services are sold for profit outside the scope of professional practice.
Conclusion
By nullifying the attempt by Nairobi City County to impose licensing fees on medical practitioners, the High Court reinforced the principle that regulated professionals are exempt from county trade licensing requirements. This exemption holds true as long as the professionals do not engage in commercial activities that extend beyond their defined professional scope. The ruling not only upholds constitutional integrity but also clarifies the limits of county government powers in relation to Kenya’s regulated professions.
