https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10170

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KABARNET** **HC PETITION CASE NO.E009 OF 2025** IN THE MATTER OF ARTICLES 1, 2, 3, 10, 22, 23, 27, 28, 35, 36, 40, 43, 47, 48, 50, 159(2) (D), 163 (3) (B), 185 & 258 (1) & 2 OF THE CONSTITUTION OF KENYA 2010. **AND** IN THE MATTER OF RULE 4 OF THE CONSTITUTION OF KENYA (Protection of rights & Fundamental Freedoms) PRACTICE AND PROCEDURE RULES 2013. **AND** IN THE MATTER OF THE FAIR ADMINISTRATIVE ACT 2015 **AND** IN THE MATTER OF THE ALCOHOLIC DRINK CONTROL ACT NO.4 OF 2010 LAWS OF KENYA AND THE FOURTH SCHEDULE OF THE ALCOHOLIC DRINKS CONTROL ACT. **AND** IN THE MATTER OF THE BARINGO COUNTY ALCHOHOLIC DRINK CONTROL ACT 2014. **AND** IN THE MATTER OF THE DECISION OF THE BARINGO SUB-COUNTY ALCOHOLIC DRINKS REGULATIONS COMMITTEE OF 8TH MAY 2025 CONTAINED IN A LETTER DATED 27TH MAY, 2025. **BETWEEN** GALACZY VENTRURES COMPANY LTD - - - PETITIONER **AND** BARINGO COUNTY GOVERNMENT - - -1ST RESPONDENT COUNTY CHAIRMAN LIQUOR LICENCING COMMITTEE BARINGO COUNTY – - - - 2ND RESPONDENT DIRECTOR OF ALCOHOLIC DRINKS OF THE COUNTY GOVERNMENT OF BARINGO - - 3RD RESPONDENT BARINGO SUB-COUNTY ALCOHOLIC DRINKS REGULATIONS COMMITTEE - - - - 4TH RESPONDENT JUDGMENT 1. Before court is the petition dated 4th July,2025 seeking; * + 1. *A declaration that the Respondents' action/decision contained in the letter dated 27/5/2025 is illegal, invalid, unfair, arbitral and a total violation of the Petitioners rights as enshrined in the constitution.* 2. *An order of certiorari to issue removing into this Honourable Court the decision of the 4th Respondent contained in their letter dated 27/5/2025 and in its place, issue an order quashing the same and in lieu thereof this honourable court be pleased to issue an order directing the respondents to issue and/or renew the Petitioner's business licences for the year 2025.* 3. *An order for mandamus to issue against the 4th respondent compelling the 4th respondent to renew the Petitioner's Alcoholic Drinks Retail licence in respect to its business for the year 2025.* 4. *Damages for loss of business on account of the notice issued by the Respondents'.* 5. *Costs of the petition be awarded to the petitioners.* 2. The Petitioner avers that it is a company carrying out a liquor business within Baringo County which has always carried out its businesses legitimately and always made its licence renewal applications within the timelines stipulated by the Baringo County Alcoholic Drinks Act 2014. 3. The Petitioner avers that it applied for renewal of its business licence for the year 2025 and made the requisite payment for renewal of the said licence in line with the provisions of the Baringo County Alcoholic Drinks Act 2014. 4. That the Petitioner waited for more than 21days provided by the Baringo County Alcoholic Drinks Act 2014 for renewal of their licences, without any response/communication from the Respondents months down the line only to receive the notice dated 27th May,2025 indicating that its licence for the year 2025 would not be renewed on account of having not met the statutory requirements of the Baringo County Alcoholic Drinks Act 2014. 5. The Petitioner was aggrieved by the Respondents' such arbitrary decision hence this petition. 6. The petition is opposed by a replying affidavit dated 3rd November,2025 wherein the deponent Geoffrey Kimaiyo depones that the application and the Petition are premature, misconceived and an abuse of the Honourable Court process. 7. That the Baringo County Alcoholic Drinks Act 2014 gives the 4th Respondent the mandate to issue license to anyone who wishes to produce, sell, distribute or deal with any alcoholic drinks within Baringo County. 8. That a Notice was issued to the members of the general Public and all stakeholders inviting Applications from interested persons for Alcoholic Drinks Licenses for the year 2025. 9. That on diverse dates between the months of December, 2024 and January, 2025, a total of Forty-Three (43) liquor outlets applied for the licences in accordance with section 11 of the Baringo County Alcoholic Drinks Act 2014. 10. That in discharging its mandate, as directed by the said Act, the 4th Respondent carried out inspection of the said outlets in the presence of the owner’s agents and based on the inspection, a vetting report was thereafter prepared with recommendations on whether or not to grant or deny licenses to the individual Applicants with license. 11. That the 4th Respondent made decisions which were communicated by its Secretary, to both the successful and unsuccessful **candidates on 27th May, 2025 after the meeting held on 8th May, 2025**. 12. The deponent avers that the 4th Respondent did not discriminate against the Petitioner, nor did it fail to communicate its decision in a timely manner. 13. That the 2024 licenses of the Applicants/Petitioners and other candidates were not renewed due to non-compliance with requirements as stipulated by the Baringo County Alcoholic Drinks Act 2014. 14. That the 2025 liquor licenses were not Issued to the, Petitioner because, they applied for licence for the sale wines and spirits in wholesale but instead carried out the sales in retail in contravention of the Baringo County Alcoholic Drink Act2014. That the committee also received written objections from the Petitioners' Landlord who e stated that he did not approve the business of sale of alcohol his premises. 15. The Respondents aver that it is not true that the case filed by the petitioner in Kabarnet HC Petition NO E005/2024 Galaczy Ventures Limited & 7 others -vs- Baringo County Government & 3 was concluded the case is currently pending in the court of Appeal pursuant to appeal filed on 18th November, 2024. 16. That the Petitioners/Applicants have not exhausted the available Dispute Resolution Mechanisms as provided under the Baringo County Alcoholic Drinks Act 2014. 17. That the Petitioners/Applicants allege that their Constitutional rights have been violated yet they do not specify and demonstrate with reasonable particularity how their constitutional rights have been violated. 18. They aver that the Petitioner's/Applicant's liquor business premises contravened the rights of the consumers under Article 46 of the Constitution specifically vulnerable children under Article 57(d) of the Constitution and persons below 18 years from abuse and the general members of the public and the measures taken by the 4th Respondent were meant to safeguard the interests of the members of the public, public institutions from the Petitioner's/Applicant's business premises. 19. On5th November, 2025 parties took directions to canvass the petition by way of written submissions. **the Petitioner’s submissions** 1. The petitioner submits that the issues that arise for determination are ;- * 1. ***Whether due procedure was followed as per Article 47 of the Constitution of Kenya 2010 before terminating the Petitioner's business.*** 2. ***Whether the Respondents contravened the provisions of sections 11 and 12 of the Baringo county Alcoholic Drinks Control Act 2014 on refusal to grant the Petitioners its business licence for the year 2025.*** 3. ***Whether a public participation meeting was held before the Respondents' decision as required by Articles 10(2), 196 (1)(b), and 174(c) of the Constitution of Kenya 2010, and section 87 to 92 of the County Government Act 2012 on Citizen Participation, and section 9 (3) of the Baringo County Alcoholic Drinks Control Act 2014 on public participation.*** 4. ***Whether the alleged inspection carried out met the requirements of the constitution of Kenya 2010 and the Baringo County Alcoholic Drinks Control Act 2014.*** 5. ***Whether the findings of the alleged inspection warranted the termination of the Petitioner's business.*** 2. On whether due procedure was followed as per Article 47 of the Constitution of Kenya 2010 before terminating the petitioners' businesses, the Petitioner asserts that the Respondents failed to follow due procedure before terminating its businesses vide the notice dated 27th May,2025 which was a gross violation of the Petitioner's rights as enshrined in Article 47 of the Constitution of Kenya 2010. That failure to observe this constitutional decree, for all intent and purposes, undermines the rule of law and the value of Article 19(1) of the Constitution which states that the Bill of Rights is an integral part of Kenya's democratic state as the framework for social, economic and cultural policies. 3. They submit that in their replying affidavit, the Respondents indicated that the reason for their refusal to renew the Petitioner's licence for 2025 was that the Petitioner applied for a Wholesale business licence yet it ran a retail business. That contrary to Articles 47 and 50 of the Constitution of Kenya 2010,the Petitioner was never given any fair hearing to respond to the said allegation. 4. The Petitioner contends that the Respondents' closure notice of Twenty (21) days was also not sufficient taking into account that the petitioner has all along been operating its business which includes perishable stock notwithstanding the huge investment made by the Petitioner in the business. 5. The Petitioner relies on the following authorities where the courts emphasized on the fundamentality of Article 47 of the constitution in administrative actions. They rely on the case of **Judicial Service Commission v Mbalu Mutava & another [2014] eKLR** and on **Erick Okango Omogeni V. Independent Electoral Boundary Commission & 2 Others Nairobi H.C Misc. Civil App No. 40 of 2013** where the court held that where a person is not granted an opportunity to be heard, it cannot be said the process was fair. 6. The Petitioner the court to make a declaration that the Petitioner was condemned unheard which is against the rules of natural justice as well as its constitutional rights. 7. On whether the Respondent contravened the provisions of section 11 and 12 of the Baringo county Alcoholic Drinks Control Act 2014 on refusal to grant the petitioners their business licence for the year 2025, they submit that the procedure for granting of a business licence in this case is provided for under section 11 through to 12 of the Baringo County Alcoholic Drinks Control Act 2014. 8. They submit that the Petitioner complied with section 11 (1) by filing the necessary forms and paid the necessary fee for renewal of the business licence. 9. That the Respondent on the other hand failed to execute their mandate as per section 11 (3) of the Baringo County Alcoholic Drinks Control Act 2014 specifically by failing to renew the petitioner's licences. They argue that if the respondent had any qualms/objections to the Petitioner's application for renewal of its business licence, they ought to have followed due procedure as provided for in section 11 (5)through to section 12 of the Baringo County Alcoholic Drinks Control Act 2014. 10. That according to section 11 (6) of the Baringo County Alcoholic Drinks Control Act 2014, once the Respondents received any objections regarding the Petitioner's application for renewal of its licence, the Respondents ought to have formed a committee to hear the objections, set a date for hearing of such objections, and served the objections upon the applicants within seven(7)days before the hearing of the objections. That according to section 11 (8) of the Baringo County Alcoholic Drinks Control Act 2014, the Petitioner herein was entitled to adjourn the hearing (if one would have been set by the Respondents as required) to enable it gather evidence to respond adequately to the issues raised. 11. That as per section 11 (9) of the Baringo County Alcoholic Drinks Control Act 2014, the Petitioner had the right to be represented by an advocate to argue its case had a hearing been convened by the Respondents as required by the statute. 12. That the Respondent would then be mandated as per section 12 (1) of the Baringo County Alcoholic Drinks Control Act 2014 to indicate in writing whether they objected to granting of the licences applied for by the Petitioners. 13. That if the Respondents objected to granting of such licences, the Respondents were mandated by section 12 (4) (a) to write to the Petitioner giving Reasons for refusing to renew the licence. 14. They submit that in this case, the Respondents did not inform the Petitioner of any objections. That the Respondents neither convened any hearing nor invited the Petitioner to defend itself against the objections thus it goes without saying that the Respondents blatantly violated the Petitioner's right to a fair hearing as provided for in section 11 and 12 of the Baringo County Alcoholic Drinks Control Act 2014 and the Constitution. 15. The Petitioner submits that the Respondents failed to follow due procedure as per the Baringo County Alcoholic Drinks Control Act 2014 and as per Article 47 and 50 of the Constitution of Kenya 2010 before terminating the Petitioner's business which alone warrants the granting of an order quashing the Respondents' decision to terminate the Petitioner's business. 16. On whether a public participation meeting was held before the Respondents' decision as required by Articles 10(2),196 (1)(b), and 174(c) of the Constitution of Kenya 2010, and section 87 to 92 of the County Government Act 2012 on Citizen Participation, and section 9 (3) of the Baringo County Alcoholic Drinks Control Act 2014 on public participation, the Petitioner asserts that it was not involved in any public participation regarding renewal of its licence. That the Respondents did not serve the Petitioner any letter or notice inviting it to attend any public participation meeting. It is submitted further that the Respondent did not serve the Petitioner with any objections and any notices of the agendas to be discussed in the public participation meeting. 17. That Section 9 (3) of the Baringo County Alcoholic Drinks Control Act 2012 mandates the respondents to ensure that there is effective public participation in accordance with the framework for citizen participation provided for under County Government Act. 18. That Section 87 through to 92 of the County Government Act 2012 provides for public participation of citizens. 19. It is submitted that Public participation is a core value and one of the cornerstones of the Constitution of Kenya,2010. They place reliance on **Richard Owuor & 2 others (Suing on behalf of Busia Sugarcane Importers Association versus Cabinet Secretary, Ministry of Agriculture Livestock, Fisheries and Cooperatives & 8 others [2020]eKLR**, where the court made the following observations:- *"Consultations or stakeholder's engagement tends to give more latitude to key stakeholders in a given field to take part in the process towards making laws or formulations of administrative decisions which to a large extent impacts on them. That is because such key stakeholders are mostly affected by the law, policy or decisions in a profound way....”* 1. The court is urged to make a declaration that the Respondents grossly violated Article 10 of the Constitution of Kenya 2010, section 9 (3) of the Baringo County Alcoholic Drinks Control Act 2012 and section 87 (a) and (b) of County Government Act 2012 by failing to conduct (and invite the Petitioner to) a Public Participation meeting over renewal of his licences. They urge the court to be guided by **Mugo & 14 others v Matiang'i & another; Independent Electoral and Boundary Commission of Kenya & 19 others (Interested Party)(Constitutional Petition 4 of 2019) [2022]KEHC 158 (KLR) (12 January 2022) (Judgment)** in where public participation was broadly discussed and the court made an order quashing the respondents' decision as it was made without Constitutional principles of Public participation and inclusiveness. 2. On whether the alleged inspection carried out met the requirements of the Constitution and the Baringo County Alcoholic Drinks Control Act 2014, the Petitioner contends that the alleged inspection carried out at its business premises did not meet the threshold of section 9 (2) of the Baringo County Alcoholic Drinks Control Act 2012 as it was carried out without notice to the petitioners and was made with malicious intent. It is submitted that the Petitioner was never given an opportunity to comment or air out its concerns regarding the said inspection and further the inspection was not carried out in the presence of the Petitioner's agents. 3. That from the documents filed by the respondents, it is not clear who carried out the alleged inspection and what the goal of the inspection was which was a gross violation of Article 35 of the Constitution of Kenya 2010 which requires the Respondents to avail all material information to the public especially the Petitioner herein. 4. On whether the findings of the alleged inspection warranted the Respondents' action to terminate the Petitioner's business, the Petitioner asserts that the findings of the alleged inspection did not warrant the Respondents' action to terminate the business for the reasons that the inspection report alluded to in paragraph 9 of the replying affidavit has not been attached and the findings of the alleged inspection report that the Petitioner applied for a wholesale licence yet it was carrying out retail business remain to be mere allegations as no proof has been attached and therefore, this honourable court should disregard the same. That the allegation at paragraph 15 of the replying affidavit that the Petitioner's Landlord does not approve of the Petitioner's business is baseless and unfounded and lastly the allegation at paragraph 22 of the replying affidavit that the Petitioner's business premises contravene Consumer's and/or the rights of the public is highly speculative as the Respondents have not explained how the general public/consumers are being affected. 5. It is submitted that the Respondents did not have a valid reason for terminating the Petitioner's business and have ultimately failed to justify their arbitrary actions hence the notice dated 27th May,2025 issued to the Petitioner to terminate/wind up its business is null and void by operation of the law as submitted herein above. 6. The Respondents set out one issue for determination: whether the Petitioners/Applicants have made out a case to warrant the grant of orders sought. That in determining this issue the Respondents position is that the court has to consider whether the Petitioner’s/Applicant’s Constitutional rights have been infringed, whether the Petitioners have demonstrated an arguable prima facie case with a likelihood of success . 7. On whether the petitioner/applicant has made out a case to warrant the grant of the orders, it is submitted that this Honourable Court has the discretion to grant conservatory orders, what is contested is whether the Petitioners have made out a case to warrant the grant of conservatory orders pending the hearing and determination of the Petition. 8. They place reliance on **Centre For Rights Education And Awareness (Creaw) & Another V Speaker Of The National Assembly & 2 Others (2017) eKLR** where the Court was emphatic that: *“A party who moves the court seeking conservatory orders must show to the satisfaction of the Court that his or her rights are under threat of violation; are being violated or will be violated and that such violation or threatened violation is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent violation of rights and fundamental freedom and preserve the subject matter pending the hearing and determination of a pending case or Petition.”* 1. That in **Board Of Management Of Uhuru Secondary School Versus City County Director Of Education & 2 Others [2015] eKLR** the court summarized the applicable principles for the grant of conservatory orders. 2. The Respondents submit that it is worth noting that the Petitioner alleges that it’s Constitutional rights have been violated yet it does not specify and demonstrate with reasonable particularity the constitutional rights that have been violated as was held in **Mumo Matemo vs Trusted Society Of Human Rights Alliance** **[2014] eKLR**, that a party who approaches the Court for enforcement of fundamental rights and freedoms of the Constitution must state his claim with some measure of precision in respect of the right allegedly violated and must demonstrate how the right has been violated in relation to him or another person and the jurisdictional basis for it. 3. The Respondents submit that this failure goes against the principles set out in **Mumo Matemo Versus Trusted Society Of Human Rights Alliance [2014]eKLR**. 4. That following the Petitioner’s failure to provide any evidence to support its allegations of the infringements of its rights and to demonstrate the constitutional provisions that have been allegedly violated, it is the Respondent’s submission that the Petition must fail. 5. It is submitted that a court of law must have a holistic evaluation of the evidence availed before it by all parties before granting the orders sought. That means that a Court must not only look at the strength of the Applicant’s claim but also the weight of the defense before making a determination as to whether or not to grant the orders sought. **ANALYSIS & DETERMINATION** 1. I have carefully considered the evidence on record, the petition, the rival affidavits, the rival submissions – and the **issues is whether the petitioner has placed evidence before court to warrant the issuance of the orders sought** . 2. The key complaint is set and in the first prayer – the petitioner seeks – a declaration – that the action/decision in the letter dated 27th May, 2025 is illegal, invalid, unfair, arbitral and a total violation of the petitioner’s rights as enshrined in the Constitution. 3. It is upon this first prayer that the rest of the prayers are based –so that if the court agrees with the Petitioner then the rest of the prayers will follow; the prayer for mandamus and for certiorari, and damages for loss of business on account of the said notice. 4. The evidence is provided in the Petitioner’s affidavit in support of the Petition and the annexures therewith. The key evidence is minutes of the respondents meeting of 8th May, 2025, and the letter to the Petitioner dated 27th May 2025. 5. It is evident that the meeting was held after certain activities had been carried out by the committee in the performance of its mandate. There is on the record of the minutes evidence that public participation was conduct in certain areas and communities had completely refused to have alcohol outlets in their trading centres. 6. According to be minutes, several outlets were denied the renewal of their licenses. However, those were in the areas where public participation was required. At the beginning of the minutes, it is indicated that the *“technical committee team managed to hold 3 meetings, and conducted 4 (four) inspections sessions that culminated in the generation of the inspection report submitted to the sub-county committee meeting.”* 7. Clearly the respondents carried out their mandate before they arrived at the decision not to approve the petitioner’s licence. it is instructive that there was reference to a case where the petitioner had sued on the same issue – HCCHR Pet.E005/2024 where it was stated that the matter was dismissed – and it had something to do with applicants for wholesale alcohol licences, who proceeded to conduct retail business. In the letter dated 27th May, 2025 then the committee communicating its decision which states – that the petitioner is referred to the Ruling in KBT HCCHR PET.E005/2024. 8. The respondents clearly indicated that, that Ruling of the court in that matter formed part of the reasons for denying the petitioner a renewal of licence. 9. The petitioner did concede the existence of this suit – but contended that it was pending in the Court of Appeal. However, the petitioner did not provide any evidence to confirm that there was a stay of the orders of the court in the that matter to warrant this court to continue with the matter which the committee indicated guided their decision in denying the renewal of the licence. 10. Secondly, there was the evidence of the letter from the landlord – if indeed the land lord had decided not to allow the occupation of his premises by an alcohol selling business – in which premises was the petitioner going to conduct the business?. That a licence to issue the petitioner was required to have a premises – and licencing the petitioner to carry out business in disputed premises would have brought the respondents into a dispute that did not belong to the respondents. 11. It is my finding that the reason for refusal of the renewal of the licence was communicated to the petitioner – so it is not true that the same was unknown. The reason is stated on the document – and if indeed as stated by the petitioner there was a matter pending in the Court of Appeal regarding the said licencing – then the matter ought to be litigated in the Court of Appeal to its finalization 12. The petitioner has cited a raft of Constitutional provisions at the heading of the petition claiming that those provisions of the Constitution were violated. 13. A keen consideration of the petition – reveals that the petitioner has not provided evidence to demonstrate how each cited article of the Constitution was violated. It is not enough for a petitioner to cite a list of articles of the Constitution and simply state that each was violated. The petitioner is required to not only precisely state the article – but also demonstrate how the respondent has violated the same. 14. The petitioner claims damages – for loss of business – yet no evidence was placed before the court to support the alleged claim. 15. In the foregoing circumstances I find that – the petitioner has not placed before this court sufficient evidence to support the prayers sought. 16. In the circumstances the petition is dismissed. Each party to bear its own costs. **Judgment dated, signed and delivered virtually at Kabarnet High Court this 10th July 2026** **MUMBUA T. MATHEKA** **JUDGE** **In the presence of:** * Momanyi - Court Assistant. * Ms Gati for Petitioner.