https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9009

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAKURU** **PETITION E010 OF 2026** **PETER WASWA FWAMBA ...................................................1ST PETITIONER** **JANE WAMBUI KIBE.............................................................2ND PETITIONER** **PAULINE WAIRIMU MAINA...............................................3RD PETITIONER** **VERSUS** **COUNTY GOVERNMENT OF NAKURU ...................................RESPODENT** **RULING** 1. By a Notice of Motion dated 24th February 2026, and expressed to be brought under Order 40 Rules 1,2,3 and 4 of the Civil Procedure Rules and Article 159 of the Constitution, the Petitioners seek Orders that:- 2. ***Spent*** 3. ***Pending hearing and determination of the application inter partes, this Honourable Court do issue injunction orders to restrain the Respondent by itself, its agents, servants and/ or employees from interfering with or closing down the applicants’ business known as Club Sweet Heart, Cool Bar and Gipsy Keg Bar.*** 4. ***Pending hearing and determination of the suit, this Honourable Court do issue injunction orders to restrain the Respondent by itself, its agents, servants and/ or employees from interfering with or closing down the applicants’ business known as Club Sweet Heart, Cool Bar and Gipsy Keg Bar.*** 5. ***Costs of this Petitioner be awarded to the Petitioner*** 6. In their grounds thereof and the Supporting Affidavit sworn by Peter Waswa Fwamba (1st Petitioner) on his behalf and on behalf of the 2nd and 3rd Petitioners, the 1st Petitioner states that the three of them own three bars called **Club Sweet Heart, Cool Bar and Gipsy Keg Bar** respectively and that they holdvalid licences. However, the Respondent has been patrolling and ordering the business and threatening to turn down their application for renewal of licences. 7. He states that the said closure is without notice and applied since the other bars in the same area do not seem to have a similar challenge. Furthermore, the Applicants have been told of any law or gazettement to merit the sudden change. Arguing that these Bars are their source of livelihood, there should be a procedure to merit the closure. 8. He argues that the Respondent has no jurisdiction to make the decision affecting the sale of alcoholic beverages or the licensing of outlets running business, and even if they did, it is and contends for closure of s not to renew their licences. 9. It is argued that the Petition is not challenging the issuance of a licence by the Respondent but the Respondent’s conduct in the exercise of its powers, which the Petitioners term as tantamount to a violation of the Petitioner’s rights guaranteed under Articles 10, 40, 43 and 73 of the Constitution of Kenya 2010. They argue that the Plaintiffs will suffer irreparably if the orders sought are not granted, but the applicants will lose not only their source of income but also will lose on the business continuity and image. **Analysis and Determination** 1. This Court has considered this application and annexed thereto. There was no response from the Respondent, though allegedly served. 2. Be that as it may, it is noted that this motion is hinged on the Petition seeking the following Orders:- 3. ***A declaration that the Respondent has no sole jurisdiction in the licensing, inspection, regulation and or control of alcoholic drinks outlets in Njoro subcounty where the Petitioners operate their businesses;*** 4. ***A declaration that the conduct of the Respondent of ordering the closure of the Petitioners' business premises was made without jurisdiction;*** 5. ***A declaration that the conduct of the Respondent of closing and/or ordering the closure of the Petitioners ' alcoholic beverage outlets contravenes the provisions of Articles 10, 40, 47 and 73 of the Constitution;*** 6. ***In the first instance, an order of injunction under Article 23 of the Constitution, restraining the Respondent from interfering with the Petitioners’ business;*** 7. ***Damages for loss of business and costs of this Petition.*** 8. From the material before the Court, including the Petition and the witness statement sworn on 24th February 2026 by Peter Waswa Fwamba with the authority of the co-Petitioners, the issue for determination is whether the application meets the threshold of granting interim injunctive orders. 9. Order 40 Rule(1) (a) and (b) of the Civil Procedure Rules relied on by the Petitioners provide that:- ***“Where in any suit it is proved by affidavit or otherwise;*** 1. ***That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or*** 2. ***That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further."*** 3. Further, the principles for granting injunctive orders were laid out in the celebrated case of ***Giella V Cassman Brown & Co Ltd [1973] EA 358*** that the Applicant must show:- a prima facie case with a probability of success; Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages***.*** Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience. 4. As to what amounts to a prima facie case, the Court of Appeal, in ***Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 123***, succinctly stated:- “***A prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case in which on the material presented to it, the court or a tribunal properly directing itself, will conclude that there exists a right that has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter."*** 1. That was reiterated by the Court of Appeal in the case of ***Nguruman Limited V Jan Bonde Neilsen & 2 Others [2014] eKLR,*** where the Court listed the three principles as follows:- 2. ***Establish his case only at a prima facie level.*** 3. ***Demonstrate irreparable injury if a temporary injunction is not granted.*** 4. ***Allay any doubts as to (b) by showing that the balance of convenience is in his favour.”*** 5. The Court went on to say on the above: ***“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.”*** 6. In this case, the material before this Court appears insufficient to surmount the hurdle of a prima facie case. However, even where an applicant establishes, and which they have not done here, the Court of Appeal in ***Nguruman Limited*** (supra) held:- ***“ If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. “*** 1. In this case, there is nothing to demonstrate that the Petitioners will suffer irreparable damage if the injunctive orders are not issued. Consequently, the balance of convenience does not tilt in their favour either. The application has not met the threshold of granting interim injunctive orders. 2. In conclusion, therefore, the Notice of Motion dated 24th February 2026 is dismissed with no orders as to costs. **Dated and signed at Nairobi this 21st Day of June, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 24th Day of June, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**