[1998] KEHC 131 (KLR)
The court found that the applicant's product was conclusively shown by expert evidence to be wholesome and compliant with all relevant statutory standards. The blanket notice issued by the Public Health Officer did not specifically identify the applicant's product, and the evidence presented by the applicant,...
Source-derived case information.
- Citation
- [1998] KEHC 131 (KLR)
- Parties
- Applicant: FAI Amarillo Wineries; Respondent: Attorney General & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 522 of 1998
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Legal Topics
- Judicial Review, Quashing Orders, Public Health Orders, Licensing, Factory Inspection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FAI Amarillo Wineries
Applicant
Attorney General & Others
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the closure orders and notices issued against the applicant's winery were justified and lawful.
- 2 Whether the applicant's product was contaminated or dangerous to life as alleged by the respondents.
- 3 Whether the applicant was entitled to judicial review and quashing of the impugned orders.
Ratio Decidendi
The court found that the applicant's product was conclusively shown by expert evidence to be wholesome and compliant with all relevant statutory standards. The blanket notice issued by the Public Health Officer did not specifically identify the applicant's product, and the evidence presented by the applicant, including inspection reports, valid licenses, and certificates of analysis, directly contradicted the allegations of contamination. The court held that the closure orders were not justified in the circumstances and that the applicant was entitled to judicial review and the quashing of the impugned orders.
Court Disposition
application allowed
Orders
- Orders as prayed in the Notice of Motion dated 28th May, 1998 are granted.
- Respondents to pay costs to the applicant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC. APP. NO. 522 OF 1998
FAI AMARILLO WINNERIES.........................................PLAINTIFF
VERSUS
ATTORNEY GENERAL & OTHERS................................DEFENDANT
R U L I N G
The respondents issued orders directing and closing the applicants winery at Naivasha and all the outlets.
Being aggrieved by the said orders, the applicant moved the court by way of Judicial review to move the said orders and Notices t the High Court for purposes of quashing the same.
The Notice of motion before me is under Order 53 Rules 3(1) and 7 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. There is a statement annexed thereto in accordance with order 50 Rules 1,2, and 3 of the Civil Procedure Rules and a supporting affidavit sworn by one Peter Gilbert Njoroge Nga’nga.
The learned counsel for the applicant has confirmed that leave and Notice to the Registrar was given. It is true that applications of this nature are to be in the name of the Republic but I see no prejudice if that form is not complied with. I therefore find that the application is properly before the court.
The evidence before me includes Factory Inspection Report which concludes that it was in satisfactory condition and recommended for registration. There is also a Liquor licence issued under the Liquor Licensing Act due to expire on 31st December, 1998. Another licence under the said Act with the same expiry date authorises the applicant to bottle medusa wine. Also as part of the evidence is a certificate of analysis issued on 1st April, 1998 in respect of Medusa Wine issued by the Kenya Bureau of Standards. The remarks read that the sample complies with the specification on the tested parameters.”
There is yet another certificate of analysis dated 26th May, 1998 in respect of medusa Pineapple wine issued by the Government Chemists Department. It concludes that “the sample complies with the standards in the Foods, Drugs and chemical Substances Act Cap.254.
The notices issued by the Public Health Officer stated in part, that various brands of alcoholic beverages allegedly originating from Naivasha are suspected to be contaminated and dangerous to life. This was a blanket notice and did not isolate the applicants product. as it is, expert evidence I have set out hereinabove contradicts the allegations in the notice.
With respect, I agree that the applicant’s product should be judged by its own. The evidence before me is conclusive that the product is wholesome. In that regard therefore this application must succeed. I grant order as prayed in the Notice of Motion dated 28th May, 1998 plus costs. Orders accordingly
Dated and delivered at Nairobi this 16th day of July, 1998.
A. MBOGHOLI MSAGHA
JUDGE