https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8017

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ITEN** **CONSTITUTIONAL PETITION NO. E001 OF 2025** **IN THE MATTER OF ARTICLE 1(1), 1(3), 2(1), 2(4), 3(1), 3(2), 10, 19, 20, 21, 22, 23, 35, 40, 46, 47, 48, 75, 258, 259(1), 259(3) AND 259(11) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 35, 46, 47, 48, 49(1)(a), (f), (g) AND 50(1)(2)** **AND** **IN THE MATTER OF SECTION 3, 4 & 7 OF FAIR ADMINISTRATION ACT, 2015** **AND** **IN THE MATTER OF SECTION 4, 8, 9, 11, 12, 13, 14, 29 AND 30 OF ELGEYO MARAKWET COUNTY ALCOHOLIC DRINKS CONTROAL ACT 2014** **BETWEEN** **ALEX KIPTARUS CHESEREK t/a HUSTLER BAR...............PETITIONER/APPLICANT** **VERSUS** **ELGEYO MARAKWET COUNTY GOVERNMENT..............................1ST RESPONDENT** **ELGEYO MARAKWET COUNTY** **ALCOHOL DRINKS CONTROL DIRECTORATE.................................2ND RESPONDENT** **ALCOHOL DRINKS CONTROL DIRECTORATE.................................3RD RESPONDENT** **KENYA REVENUE AUTHORITY****.............................................................4TH RESPONDENT** **JUDGMENT** 1. I did in my Ruling delivered in this matter on 3/10/2025, recount the prayers made in the Petion filed herein through **Messrs Chumo Kibet & Associates Advocates**, and which is dated 31/01/2025. The prayers made are as follows: 2. **A Declaration that:** 3. **That the actions of the Respondents and decision are unconstitutional for violating the rights of the Petitioner by arriving at a prior decision action of revocation, cancellation of licences and or closure of the Petitioner’s establishment against the provisions of the Constitution under Articles 24, 25,27, 28, 35, 40, 46, 47, 48, 49(1)(f), (g), and 50(1)(2) of the Constitution, Fair Administrative Action Act and the provision and procedures laid down in the Elgeyo Marakwet County Alcoholics Drinks Control Act, 2014 and Regulations therein.** 4. **Judicial Review by way of: -** 5. **An order of Certiorari to remove into the Court and quash the decision contained in the letter dated 24th January 2025 initiating suspension, revocation,** **cancellation of licences and or closure of the Petitioner’s establishment.** 6. **An order of Prohibition directed at the Respondents herein barring them from further action in the implementation of the letter dated 24th January 2025 and/or initiating the process of suspension, revocation, cancellation licences and/or closure of the Petitioner’s establishment.** 7. **An order of general damages for the contravention of the fundamental rights and freedoms of the Petitioner to be assessed by the Court.** 8. **Costs of the Petition to be jointly borne by the Respondents.** 9. **Any other order that this Honourable Court may deem just and fit in the circumstances.** 10. Together with the Petition, the Petitioner also filed the Notice of Motion dated 31/01/2025 whereof he sought conservatory and other interlocutory orders pending hearing determination of the Petition. I however dismissed that Application by my said Ruling delivered on 3/10/2025, thus paving way for determination of the Petition. 11. I did also in my said Ruling set out the Affidavit sworn by the Petitioner both in support of the Petition and also of the Application as follows: ***“3. …… the Petitioner deponed that he is the proprietor of “Hustler Bar”, an entertainment establishment situated within Elgeyo Marakwet County duly licensed by the 1st Respondent and compliant with all the requisite laws and regulations, and that he conducts hospitality business of selling non-alcoholic and alcoholic beverages to patrons who frequent the establishment during stipulated hours. He deponed further that he has applied for all the respective licences including General Retail Alcoholic Drink Licence, among others, which are granted upon fulfilling the conditions set out by the 1st, 2nd and 3rd Respondents, and that he has been compliant with the conditions of the licences and fully operating within the regulations and has never been cited for conducting any illegal activities. He stated that on 25/01/2025, he learnt that the business premises had been invaded by the Respondents in company of heavily armed police officers, illegal inspection conducted and entire stock and trading cash carted away, that subsequently on 24/01/2025, through a letter, the 3rd Respondent purportedly revoked and cancelled the license forthwith to allow for investigation and scrutiny of allegedly confiscated contraband goods. He contended that from the letter, he was surprised to learn that the breaking-in had culminated into the finding that the premises was in bad state of repair, poor sanitary conditions and availability of illegal and contraband goods, and which letter was addressed to various county and governmental entities. He further contended that the decision of cancellation/revocation and closure was made before even the initiation of the process of investigations by the sub-County Alcoholic Drinks Regulation Committee and which process is aimed at sanitizing a decision which has already been unilaterally determined. He also deponed that he had been reprimanded without being afforded any hearing, representation or even an opportunity to respond to the complaints as alleged. He stated that on 27/01/2025, he responded to the letter strongly objecting to the closure and seeking a recission thereof pending determination of the matter by the relevant sub-committee but that he is apprehensive that the Respondents will arbitrarily proceed and implement the decision referred to. He contended that the ripple effect of the decision is that it has halted his business through a drastic drop of patrons who previously frequented the premises, that the same is now perceived as unlawful premises perpetuating and furthering illegalities, and that the 4th Respondent did not indicate the nature of the complaints against him but proceeded to confiscate his mercantile goods despite him having ETR receipts. He deponed further that he has recorded huge losses, loss of user and earnings due to the decision, that he is on the verge of running amok and eviction from his premises, and being faced with a plethora of suits due outstanding bills.”*** 1. In opposition to the dismissed Application, the 1st, 2nd and 3rd Respondents had filed the lengthy Replying Affidavit sworn on 28/02/2025 by one **David Kandie**, who described himself as the Director of the 2nd Respondent. In opposition to the Petition, the Respondents have now filed the separate, but again, very lengthy 26-paragraph Replying Affidavit sworn by the same **David Kandie** on 10/12/2025, which I however observe is more or less similar to the previous Affidavit, which I had already recounted in the Ruling. 2. In the present Affidavit, **David Kandie** deponed that the mandate of the Respondents is governed by the **Elgeyo Marakwet County Alcohol Drinks Control 2014** and other laws, thaton 23/12/2024, a letter of caution was issued to all alcohol dispensing outlets and distributors within the Elgeyo Marakwet County against the trading of illicit and counterfeit alcoholic drinks, and the purpose of the caution was to warn the people of the County on the dangers of dispensing, distributing, and consuming unregulated and unlicensed alcoholic drinks, and that the publication and circulation of the caution was as a result of several reports made to his office with regard to illicit alcohol and other contraband products being dispensed and circulated within the County. He deponed further that on 13/01/2025, a notice for inspection was published and circulated to all alcoholic drinks dispensing outlets within Keiyo North sub-County, the purpose whereof was to notify the outlets of an impending inspection of the outlets on specified dates, and advising them to ensure that sanitation advisories given by Public Health Officers (PHOs) were complied with, and which notice applied to all outlets, including those that had been cleared and issued with licences. He urged that on 23/01/2025, the Respondents carried out an inspection of several outlets within the sub-County, including the Petitioner’s establishment known as “***Hustler Bar***”, and as such, the Petitioner cannot claim that he was discriminated against contrary to **Article 27** of the **Constitution**. 3. He deponed further that during the inspection, suspicious second-generation drinks and counterfeit goods were found at the said “***Hustler Bar***”, which were seized for purposes of conducting further investigations into the nature thereof and an inventory report taken, and on 24/01/2025, the deponent wrote a letter to the Petitioner informing him of the immediate closure of the bar following the multi-agency inspection and report dated 23/01/2025, and also under provisions of the Act. He asserted that the letter clearly stated the reasons for the closure and suspension of operations at the bar, and it was also indicated that the conditions for the licence issued on 30/08/2024 had not been complied with as the operations at the bar were conducted in breach of the Act, and also that the bar was in a poor state of repair and without proper sanitary arrangements in further contravention of the law. He deponed further that since the Petitioner was informed of the reasons for the closure and revocation of the licence, his rights under **Article 35** of the **Constitution**, to access information was not violated. He contended that by the letter dated 24/01/2025, the Petitioner was invited for a meeting with the Keiyo North Sub-County Alcoholic Drinks Control Committee on 28/01/2025, that the Petitioner was aware of the meeting as the letter was received by his agent at the bar, that on 27/01/2025, he (deponent) wrote a letter to the Keiyo North Sub-County Alcoholic Drinks Regulation Committee and other stakeholders, inviting them for a meeting with Keiyo North Sub-County Committee on 28/012/2025 in which one of the agenda items was a meeting with the Petitioner as the proprietor of the “***Hustler Bar***” and to deliberate on the multi-agency report on the bar, which meeting was called in accordance with fair administrative action as enshrined under **Article 47** of the **Constitution**. He asserted that the Petitioner however failed to attend the meeting and, instead, sent his manager and a worker who however failed to answer substantive questions raised by the Committee. 4. He contended that the Petitioner was thus granted an opportunity to be heard as required under **Article 50** of the **Constitution**, and it is mischievous for him to seek a declaration that his rights under the **Article** were violated when he is the one who wilfully failed to attend the meeting. He also denied that the Petitioner’s rights under **Article 49** of the **Constitution** were violated as the Petitioner was never arrested, and the Respondent only seized the counterfeit goods for further investigations in accordance with **Section 61(2)** of the Act, that although the Petitioner has alleged violation of his consumer rights under the **Constitution**, it is the Petitioner who, in fact, violated consumer rights of the residents by his sale and distribution of the illicit merchandise, and as such, the Petition is premature. He also denied that the Petitioner’s rights under **Article 46** of the **Constitution** were violated as he urged that the Respondents were only implementing, enforcing and upholding the provisions of **Article 46** of the **Constitution** on behalf of the people of the County, that in his capacity as the Director of the 2nd Respondent, he acted within his capacity under **Section 4(2(a)** of the Act which provides that one of his functions is to support and facilitate sub-County Committees in carrying out their functions, and to carry out other roles necessary for implementation of the objectives and purpose of the Act, and to enforce **Article 46** of the **Constitution**. He added that under the Act, the Respondents are tasked with adopting and implementing measures to eliminate the illicit trading of alcohol, including smuggling, manufacturing and counterfeiting, and to ensure fair and ethical business practices relating to production, distribution, promotion and sale of alcohol drinks, which task is part of the implementation and enforcement of **Article 46** of the **Constitution**, which addresses the aspect of consumer rights. He then urged that bearing in mind the public interest, values of the constitution, and of the Act, the proportionate magnitude and priority levels attributable to consumer rights and protection, the instant Petition falls short of the required threshold for issuance of the orders sought. 5. The Respondents had also filed the, yet again, very lengthy 24-paragraph “***Response to Petition***” dated 10/11/2025. I will not however recount the same as it basically echoes the matters contained in the already recited Replying Affidavit 6. I then gave the parties leave to file written Submissions. For the Advocates for the 1st, 2nd and 3rd Respondents, I observe that, perhaps by an oversight on their part, the Submissions they have filed, dated 20/05/2025, is exactly the same one, including the date, that they had filed in response to the earlier Application for conservatory orders, which Application is now long determined. On the part of the Petitioner and the 4th Respondent, no Submissions have been filed on their behalf, and I also note that their Counsels have not even been attending Court sessions lately. I will therefore proceed to determine the Petition without the benefit of any party’s Submissions. **Determination** 1. The issues that calls for determination in this matter can be summarized as follows: 1. **Whether the actions of the Respondents and decision are unconstitutional for violating the rights of the Petitioner by arriving at the prior decision or action of revocation, cancellation of licences, and or closure of the Petitioner’s establishment against the provisions of the Constitution under Articles 24, 25,27, 28, 35, 40, 46, 47, 48, 49(1)(f), (g), and 50(1)(2) of the Constitution, Fair Administrative Action Act and the provision and procedures laid down in the Elgeyo Marakwet County Alcoholics Drinks Control Act, 2014 and Regulations therein.** 2. **What remedies should the Court award or apply should it find that the Petitioner’s constitutional rights were violated as aforesaid?** 3. In dismissing the Petitioner’s Application for conservatory orders, I made the following observations, which then formed the basis of the Ruling: ***“17. In his Affidavit in support of the Application, the Petitioner deponed that he is duly licensed by the 1st Respondent and has complied with all the requisite laws and regulations. He urged further that he conducts the business only during stipulated hours, and operates fully within the regulations and has never been cited for conducting any illegal activities. He stated that on 25/01/2025, he learnt that the business premises had been invaded by the Respondents in company of heavily armed police officers, and entire stock and trading cash carted away, and that subsequently on 24/01/2025, through a letter, the 3rd Respondent purportedly revoked and cancelled the license. I have perused the Replying Affidavit filed by the Respondents and note that nowhere in it do the Respondents deny this act of revoking of the Petitioner’s licence and closing the business before hearing the Petitioner. To this extent, the Petitioner’s complaint that the decision cancelling or revoking of his licence and closure was made before even the initiation of the process of investigations by the sub-County Alcoholic Drinks Regulation Committee. His grievance that the decision was made before he had been afforded any hearing, representation or an opportunity to respond to the accusations alleged. As aforesaid, this far, the Petitioner’s prayer for grant of “conservatory orders” appears quite strong.*** ***18. There are however other issues that arise and which require consideration. First, the Petitioner acknowledges his awareness that after the raid conducted at the premises on 23/12/2024, he learnt, from the Respondent’s letter of the next day, 24/01/2024, that according to the Respondents, the break-in and inspection had culminated into the discovery that the premises was in bad state of repair, poor sanitary conditions and stocked of illegal and contraband goods, and which letter was addressed to various county and governmental entities.*** ***19. Further, in the Replying Affidavit sworn*** ***by David Kandie, Director of the 2nd Respondent, he deponed that before the raid, his office, had on 23/12/2024, published a caution and circulated it to all outlets dispensing and distributing alcoholic drinks within the County, and whose purpose was to warn the public of the dangers of consuming unregulated and unlicensed alcoholic drinks. According to him, this was a result of several reports received by his office complaining about illicit alcohol and contraband products being dispensed and circulated within the County. He deponed further that on 13/01/2025, his office published and circulated a notice informing alcoholic drinks dispensing outlets of the planned inspection of the outlets on specified dates, and advising them to ensure that sanitation advisories were complied with before then.*** ***The Petitioner never sought leave to file a Further or Supplementary Affidavit and did also not also not comply with the Court’s directions to file Submissions. He thus, has not controverted the above allegations.*** ***20. David Kandie further pointed out that the licence relied upon produced by the Applicant expired on 31/12/2024 and thus at the time of the inspection on 23/01/2025, the Petitioner did not hold a valid licence. I have looked at the copy of the licence exhibited by the Petitioner and note that indeed, the same was issued on 30/08/2024 and it is expressly dated on the face thereof that the same was to expire on 31/12/2024. The Petitioner has also not responded to this damning allegation. In the absence of such response, it appears that, indeed, the Petitioner, contrary to his claims, was operating the business with an expired licence.*** ***21. The Petitioner has also not responded to the Petitioner’s allegations that he has failed to comply with the directives given but instead, continues to carry out operations without a licence or with the suspended and/or revoked licence.*** ***22. Another serious allegation that the Petitioner has not responded to is that the premises was not in a proper state of repair and did not meet sanitary arrangements, and was thus a health risk and that during the inspection, second generation drinks, injection needles and cigarettes of suspicious nature were discovered within the premises.*** ***23. Yet another allegation made by David Kandie but which the Petitioner has not responded to is that by the Respondents’ letter dated 24/01/2024, the day after the raid, the Petitioner was informed of the reasons for suspending the operations at the Bar, and that on 27/01/2024, he circulated a letter notifying all stakeholders of a scheduled meeting in which one of the agenda was the deliberation with the Petitioner of the multi-agency report on his Bar. He further contended that by the said letter dated 24/.01/2025, he summoned the Petitioner for a meeting with the relevant sub-County Committee scheduled for 28/01/2025 which meeting the Petitioner failed to attend but sent two representatives who however failed to answer the substantive questions raised.”*** 1. I then also made the following observation: ***“28. Although I have therefore found that the Petitioner may not have been afforded a hearing before his licence was revoked and the business closed, contrary to the audi alteram principle, I find that, at this stage, this irregularity seems to have been quickly mitigated by the Respondents when on the very next day, they informed the Petitioner, in writing, of the findings allegedly made in the premises and the accusations against him and thus, the reasons and justification for the Respondents’ decision. The letter was also invited him for a meeting for a deliberation on the matter. The Petitioner did not also make these disclosures to the Court, and had it not been for the Respondent’s Affidavit, the Court would not have known about these facts. The Petitioner is also therefore guilty of material non-disclosure of material facts.”*** 1. As aforesaid, the Petitioner, despite being given the opportunity to file Submissions in support of his Petition, has not bothered to file any such Submissions, which means that he has not presented any further arguments that may address the Court’s observations captured in the Ruling. He also never filed any Submissions in support of the Application for conservatory orders. He also did not seek leave to file any Supplementary Affidavit to respond to, or to address the responses made by the 1st, 2nd and 3rd Respondents, or to cover the areas in his Petition that I pointed out in the Ruling as leaving gaps, or requiring further particulars to ascertain. Further, as already observed, neither he nor his Counsel has been attending Court. In short, the Petitioner has not bothered to controvert the responses and/or allegations made by the 1st, 2nd and 3rd Respondents. 2. In the Petition, in acknowledging the Respondent’s statutory powers in regulating, licensing and controlling the manufacture, distribution, and management of alcoholic drinks, and matters related thereto within the County, the Petitioner, set out the following provisions of the **Elgeyo Marakwet County Alcoholic Drinks Control Act, 2014**: **i) Section 4 which establishes the Alcoholic Drinks Control Directorate, tasked with the function of generally on control and licensing policy on alcoholic drinks within Elgeyo Marakwet County in collaboration with other departments. Committees and agencies** **ii) Section 8(1)b which provides that no person shall within the county sell or deal in any alcoholic dink except as in accordance with the license issued in the Act** **iii) Section 9(1) which establishes Sub County Alcoholic Drinks Regulation Committee which shall primarily issue licenses in accordance with the Act** **iv) Section 11 which provides that the 1 and 2nd Respondents, through the sub-county regulation committee shall not grant a new license for the sale of an alcoholic drink upon the licensee complying with the licensing conditions.** **v) Section 12 which provides that except as otherwise provided the Sub County Alcoholic Drinks Regulation Committee may grant renewal, transfer, remove, withdraw or cancel a license and include any such conditions as it may deem appropriate** **vi) Section 13 which provides that the Sub County Alcoholic Drinks Regulation Committee may specify the terms and conditions of the license consistent with the provisions of the Act and any other law and regulations** **vii) Section 14 which provides that every license, renewal, transfer, withdrawal or cancellation therefore, shall be sufficiently authenticated by the Sub County Alcoholic Drink Regulation Committee on the nature of the premise, state of repair, sanitary arrangements and wholesome condition.** **viii) Section 29 which provides that a Sub County Public Health Officer in company of a Police Inspector may enter and inspect a licensed premise, and is dissatisfied with its state of sanitary drainage or repair proceed to prepare a report** **ix) Section 30 which provides that upon receipt of Sub County Public Health Officer or Police Inspector report, the Sub County shall expeditiously dispatch the report to the licensee & the Sub County Committee and subsequently call for a hearing within 14 days, whereupon after the hearing a decision will be arrived upon. The decision for cancellation/Revocation is only made by the Sub County Alcoholic Drinks Regulation Committee** 1. The Petitioner therefore acknowledges the Respondent’s statutory powers. For his Petition to succeed, he needed to demonstrate the exact manner in which he alleges that the Respondents, in exercising their said powers, misused or abused their mandate, or acted in excess of their powers, or acted ***ultra vires*** their jurisdiction, or by committing any other similar acts or actions, which then violated his constitutional rights. As was guided in the **Anarita Karimi Njeru v Republic [1979] eKLR**, case, a person who files a Constitutional Petitioner is required to set out to a reasonable degree of precision, the violation or infringement alleged. Apart from just pleading the same, a Petitioner must also clearly demonstrate such alleged violations or infringement. By opting not to present any Submissions despite being given a chance to do so, or to file any Supplementary Affidavit to address the matters raised by the Respondents despite pointing out to him in my earlier Ruling the areas he needed to address, I presume that the Petitioner has since lost interest in his own case and no longer wishes to advance it. In short, the Petitioner has failed to discharge his burden of proof in this matter. **Final Orders** 1. In the premises, the Petition dated 31/10/2025 is hereby dismissed with costs to the 1st, 2nd and 3rd Respondents. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026** **……………………..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **All parties absent** | | | **Court Assistant: Ronald Tshombe** | |