The Fourth Schedule of the Constitution of Kenya delineates the respective functions of the National and County Government. Amongst the duties of the county government is trade development and regulation which includes the management and oversight of markets, the issuance of trade licenses (excluding those related to professional bodies), the enforcement of fair-trading practices, the promotion of local tourism, and the regulation and support of cooperative societies.

While counties are constitutionally empowered to regulate trade and issue licences under the Fourth Schedule, this power expressly excludes the regulation of professions. Professions such as medicine and law are among the regulated professions that have their regulatory bodies which are the Kenya Medical Practitioners and Dentists Council and the Law Society of Kenya respectively.

Previously, the court has addressed this issue in the cases of Republic v Kisii County Assembly & 4 others Ex parte John Aboko Kumenda & another; Kisii County Secretary & 2 others (Interested Parties) [2021] eKLR.

Case Study: Kenya Medical Association v Nairobi City County Government & 2 others

The Kenya Medical Association (KMA) petitioned against the Nairobi City County Government and affiliated entities contesting the imposition of a trade licensing fee of Kshs. 15,000 imposed on medical practitioners. The Petitioner contended that the imposition of this fee contravenes several constitutional provisions and represents unlawful regulation of professionals, who are already governed by the Medical Practitioners and Dentists Council.

Arguments by parties

The Petitioner argued that doctors qualify as a profession under Section 2 of the Nairobi City County Trade Licensing Act, 2019. Section 3 of the Nairobi City County Trade Licencing Act 2019 expressly excludes professions from being regulated by the Act. Paragraph 1.5 (Row 12) of the schedule to the Act however required health professional officers to pay Kshs. 15,000 for a licence. The Petitioner contented that the Schedule provisions requiring the licensing fee was inconsistent with Section 3 of the Act and should hence declared void.

The Respondent on the other hand acknowledged that while medical practitioners are professionals, those who operate as pharmacists or engage in the sale of

pharmaceuticals engage in trade. They emphasized that the business activities of doctors running clinics, which may include selling pharmaceutical products, necessitate the payment of a single business permit to regulate their commercial operations.

Holding and reasoning of the court

Incompatibility with Constitutional provisions: The court held that the imposition of single business permit fees on medical doctors contradicted the provisions of the Fourth Schedule of the Constitution, which exempts professionals from paying business permit fees.

Statute versus Subsidiary legislation: The court further held that where the Schedule of an Act is inconsistent to the substantive provisions of the Act, the act prevails. The court found that Row 12 of Paragraph 1.5 of the Schedule which required health professionals to pay a business permit of Kshs 15,000 contradicted Section 3 of the Act which excluded professions from being regulated by the County Governments in relation to trade licences within Nairobi County and it was therefore void to the extent of its inconsistency.

Orders issued: the court issued an order of prohibition restraining the respondents from imposing, demanding, levying, charging, collecting, retaining, or enforcing trade license or single business permit fees from medical doctors within Nairobi County. The petitioner was also awarded costs of the proceedings.

Characteristics of a profession;

In the case of Okenyo Omwansa George and Another vs Attorney General and 2 Others, the court listed the characteristics of a profession to include:

· educational training;

· ethical qualifications;

· specialised knowledge and expertise;

· continuous professional development;

· the existence of confidential relations;

· adherence to a higher standard of ethics;

· existence of a regulatory professional body; and

· commitment to public service.

Profession as a vocation versus a profession for commercial purposes

While professionals aim at offering services to the general public, once their actions shift to trade, they are required to obtain a business permit. An example is the medical profession: while a doctor provides medical services by diagnosing and prescribing medication for the benefit of patients, the pharmacist is primarily engaged in the commercial aspect of selling those prescribed drugs.

Doctors offer their services as part of the health care system. Once pharmacists engage in the sale of drugs, they are expected to obtain a business permit for their business. This distinction highlights the thin line between a profession focused on public service and the commercial enterprise that arises when goods or services are sold for profit

Conclusion

By invalidating the attempt by Nairobi City County to impose licensing fees on medical practitioners, the court not only upheld the sanctity of constitutional provisions but also reinforced the principle that regulated professionals are exempted from trade licencing requirements by the county governments to the extent that they do not engage in commercial activities beyond their professional scope.

At CM SME Club, we offer tailored legal guidance to corporate clients on compliance matters. We advise on obtaining specific permits and assist clients in determining the legality of imposed levies. Additionally, we remain actively up to date with evolving legal frameworks impacting trade licensing, ensuring that our clients receive accurate, current, and practical legal solutions. To learn more about our services, visit www.cmsmeclub.com or contact us at law@cmsmeclub.com.

Contributors:

Amy Onderi – Trainee Advocate (aonderi@cmadvocates.com)

Rosario Kamuti – Associate Advocate (rkamuti@cmadvocates.com)

Published on April 25, 2025, 9:31 a.m.