[2024] KEHC 1659 (KLR)

Gitau & 11 others v County Commander Kiambu & 3 others (Petition E020 of 2023) [2024] KEHC 1659 (KLR) (23 February 2024) (Judgment)

Neutral citation: [2024] KEHC 1659 (KLR)

Republic of Kenya

In the High Court at Kiambu

Petition E020 of 2023

A Mshila, J

February 23, 2024

IN THE MATTER OF: A Petition by Ndeiya Traditional Brewers for redress on account of the violation of their Constitutional Rights IN THE MATTER OF: Articles 11, 32, 22, 23, 27, 40, 44, 50 And 260 of the Constitution and Fair Administrative Action Act IN THE MATTER OF: The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules IN THE MATTER OF: The Constitution and Legal Mandate of the court to uphold the constitutional rights of citizens regardless of their standing

Between

Anthony Ngumi Gitau

1st Petitioner

Samuel Githieya Mungai

2nd Petitioner

Alois Kihiu

3rd Petitioner

Peter Ndungu Mung’ere

4th Petitioner

Paul Kuria

5th Petitioner

Charles Nganga Kague

6th Petitioner

Paul Nganga Njoroge

7th Petitioner

Wilson Kimeria

8th Petitioner

George Komu Kuria

9th Petitioner

Peter Mburu Njuguna

10th Petitioner

Peter Munga Kiratu

11th Petitioner

Daniel Mbugua

12th Petitioner

and

The County Commander Kiambu

1st Respondent

The County Commissioner Kiambu

2nd Respondent

The O.C.P.D Ndeiya Sub County

3rd Respondent

The Deputy County Commissioner Ndeiya Sub County

4th Respondent

Judgment

1. The Petition herein was filed on 26th June, 2023 and brought by Ndeiya Traditional Brewers for redress on account of the violation of their constitutional rights against the Respondents who are state administrative officers under the Office of the President and the National Police Service.

2. The Petitioners seek relief from the violation of their rights occasioned by the decision of the Respondents to harass and arraign the Kikuyu Council of elders for preparing traditional brew.

3. The Petitioners aver that they are duly authorized by the Kikuyu Cultural Elders (Kiama Kia Ma) to prepare Muratina for traditional ceremonies and not for commercial purposes.

4. The Respondents are said to be restraining the Petitioners from preparing the brew on the grounds that it is illicit and thus does not conform to the Alcoholic Drink Control Act No 4 of 2010.

5. The Petitioners impugned the Respondents’ decision on the grounds that it classifies Muratina as illicit, it suppresses the traditional celebrations under the Kikuyu Culture as well as discriminating the Kikuyu Culture and also for the unlawful prosecution.

6. The Petitioners aver that Muratina has been around since time immemorial and the same is prepared for purposes of blessing traditional ceremonies with Kiama Kia Ma being the National Gikuyu Cultural Association overseeing matters relating to Kikuyu Culture. It was averred that no traditional ceremony under the Kikuyu Culture can be performed in the absence of Muratina as such the same cannot be governed by the Alcoholic Drink Control Act No 4 of 2010. Muratina was said to have no health implications as such it should not be suppressed. The Respondents were said to be in contravention of their obligation to promote cultural celebrations while being discriminatory as other cultures enjoy theirs without interference.

7. The Petitioners sought for orders that;-a.A declaration that Muratina is not illicit brew.b.A declaration that Muratina is not subject to Alcoholic Drink Control Act No 4 of 2010. c.A declaration that the regulations of Muratina solely falls on Kiama Kia Ma, the National Gikuyu Cultural Association.d.A declaration that any criminal case instituted on the basis of Muratina is unconstitutional.

8. Alois Kihiu one of the Petitioners swore the supporting affidavit on his own behalf and on behalf of the other Petitioners. He deposed that they are members of Kiama Kia Ma and are therefore, authorised under the Kikuyu Culture to prepare Muratina which is fundamental in Kikuyu Traditional Ceremonies. He deposed that Muratina cannot be governed by Alcoholic Drink Control Act No 4 of 2010 as it is a traditional brew and that the Respondents should not suppress the rights of the Kikuyu people in celebrating their culture. The same was said to be discriminatory as other cultures were enjoying their rights without interference.

9. Roselyn Mnyolmo the Officer Commanding Police Division (OCPD) Ndeiya Sub-County within Kiambu County deposed that she has been advised by the State Counsel from the Attorney General’s office that the National Police Service Officers and the National Government Administration Officers are mandated to maintain law and order. That the officers are mandated by the Alcoholic Drinks Control Act to ensure compliance with the Act. She deposed that there is need to ensure control and sale of traditional liquor like Muratina conforms to various standards. That the national statutes on regulation and control of alcohol applies uniformly and precedes all other County legislation. It was contended that the Petitioners’ premises were closed for operating contrary to the regulatory framework. She stated that it is an offence to be in possession of Alcoholic drinks which do not conform with the requirements of the Act thus the charges levelled are valid. The Petitioners were asked to approach the relevant authorities for proper licenses for the manufacture and sale of Muratina.

10. The Petition was canvassed by way of written submissions. Hereunder is a summary of the parties rival submissions.

Petitioners’ Submissions 11. The Petitioners submit that their cultural celebrations are protected under the Constitution. Muratina was said not to be manufactured but prepared for cultural celebrations. The Petitioners disagree with the need to regulate Muratina as suggested by the Respondents. It was submitted that Kiama Kia Ma is a registered society which regulates Muratina to preserve its cultural significance. Reliance was placed in the case of Republic v John Ndungu Mbiyu in Kikuyu Criminal Case No 358 of 2018. The Petitioners submit that the Alcoholic Drinks Control Act is not in consonance with the Constitution as it contravenes the national values and principles of governance. Reliance was placed in the case of Mohamed Ali Baadi & others v Attorney General & 11 others (2018) eKLR. The court was urged to grant the prayers sought in the Petition.

Respondents’ Submissions 12. The Respondents submit that selling alcoholic drinks without a license is a criminal offence as alcohol manufacture is a highly regulated and controlled activity. It was submitted that there was no licence allowing the Petitioners to manufacture and sell Muratina. The Alcoholic Drinks Control Act was said to be constitutional as it purposes to protect the public, socially, health wise and economically. The petition was said not to raise any constitutional issue and that it has been brought to advance the Petitioners’ commercial interests. The right to culture was said not to be absolute as the same is limited. The police were said to be carrying out their mandate as per the law as such the same is not harassment in any case claims of harassment should be directed to the relevant authority. It was submitted that no prima facie evidence has been adduced to the scale of a violation on the bill of rights. The burden of proof was said to vest with the Petitioner. Reliance was placed in the case of Anarita Karirmi Njeru v R (1979) KLR 154. The issues herein were said to be subject of an appeal as such the court was urged to dismiss the Petition with costs.

Issues For Determination 13. This Petition raised the following issues;-i.Whether the Petitioners' cultural rights are violated or threatened by the Respondents’ treating muratina as illicit brew;ii.What reliefs, if any, are the Petitioners are entitled to.

Analysis Whether the Petitioners' cultural rights are violated or threatened by the Respondents’ treating muratina as illicit brew 14. The Petitioners contended that the respondents declared that the kikuyu traditional brew, muratina, is illicit brew and is subject to the Alcoholic Drinks Control Act No 4 of 2010. The brewers of muratina have been arrested and arraigned in Court on the charges of manufacturing illicit brew. The preparation of muratina has been regulated by the kikuyu cultural elders known as the Kiama kia Ma. The elders regulate the preparation of muratina to preserve the heritage and cultural significance of the brew.

15. The respondents argued that it is an offence under section 4 as read together with section 27 (1) (b) of the Alcoholic Drinks Control Act to be in possession of alcoholic drinks which do not conform with the requirements of the Act. This justifies the charges leveled against the petitioners. Selling alcoholic drinks without a licence is a criminal offence under sections 7(1) and 62 of the Alcoholic Drinks Control Act. The right to culture is not absolute and subject to limitation in the interest of protecting the health of consumers.

16. Article 259 of the Constitution provides for the principles on the interpretation of constitutional issues by the Court. It requires that the Court, in considering the constitutionality of any issue before it, interprets the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights, and that contributes to good governance. Article 159(2) (e) of the Constitution requires the Court, in exercising judicial authority, to do so in a manner that protects and promotes the purpose and principles of the Constitution.

17. In Re The Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011, the Supreme Court of Kenya quoted with approval the words of Mohamed A J in the Namibian case of S v Acheson, 1991 (2) SA 805 (at p 813) where he stated that:-“The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relationship between the government and the governed. It is a ‘mirror reflecting the national soul’; the identification of ideals and …. aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the Constitution must, therefore, preside and permeate the processes of judicial interpretation and judicial discretion.”

18. The preamble to the Constitution recognizes the centrality of culture and customs of the Kenyan people. It provides-“We the Kenyan people are proud of our ethnic, cultural and religious diversity and determined to live in peace and unity.”

19. Muratina is a kikuyu cultural brew prepared since time immemorial for traditional ceremonies of the agikuyu people such as dowry ceremony (ruracio), circumcision ceremony (irua), initiation to council of elders (Kiama Kia Ma), reconciliation of family members (Goima Cia Worohia), praying for rain (Kuhoya Bura), blessing of children (Kurathima ciana citu) and blessing of land (Kurathima mugunda). The importance of muratina in day-to-day functions and celebrations of the agikuyu peoplecannot be overemphasised. It forms the heart of the cultural fabric of the agikuyu traditions.

20. Article 11 recognises culture as ‘the foundation of the nation and as the cumulative civilization of the Kenyan people and nation’. Article 44 of the Constitution provides:-“(1)Every person has the right to use the language, and to participate in the cultural life, of the person’s choice.(2)A person belonging to a cultural or linguistic community has the right, with other members of that community—(a)to enjoy the person’s culture and use the person’s language; or(b)to form, join and maintain cultural and linguistic associations and other organs of civil society.”

21. Article 17(2) of the African Charter on Human and Peoples’ Rights provides that every individual may freely, take part in the cultural life of his community.

22. In Tatu Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) [2021] eKLR the Court observed the following on cultural practice being the foundation of the nation;-“In its view, a cultural practice cannot “be deemed to be a national heritage”. We find that statement is not entirely true because article 11 of the Constitution posits that culture is the foundation of the nation and as the cumulative civilization of the Kenyan people and nation.”

23. In Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR it was held;-“Article 11 (1) of the Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. Respect for indigenous culture is found in several international instruments as well…It follows that State actions that erode the cultural uniqueness of indigenous peoples would be contrary to the Constitution and international conventions.”

24. The right to cultural practices is not absolute and is subject to limitations in line with Article 24 of the Constitution. The use of muratina as part of the agikuyu culture has not been prohibited by any law. The Alcoholic Drinks Control Act, 2010, merely regulates alcoholic drinks including traditional alcoholic drink. The Act does not prohibit traditional drinks, and particularly it does not identify muratina as illicit brew.

25. The Respondents were wrong in treating muratina as illicit brew. Actions taken by the Respondents against the Petitioners for the sole reason that the Petitioners are brewing muratina lack legal basis and hence unconstitutional. Unless the Respondents enforce specific provisions of the Alcoholic Drinks Control Act or any other law, they cannot raid homes, confiscate property and prefer unfounded charges against authorized muratina brewers. Those actions violate the cultural rights of the agikuyu people.

Findings And Determination 26. Based on the foregoing, the court makes the following findings and determinations;a.The Petition is found to have merit and it is hereby allowed.b.A declaration be and is hereby made that muratina is not an illicit brew and the agikuyu people are at liberty to prepare and consume it as part of their culture and tradition;c.The Kiama Kia Ma with assistance of the local Chiefs to continue to regulate the preparation and consumption of muratina without prejudice to existing laws;d.Due to the nature of the matter, each party to bear their own costs.

Orders Accordingly

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 23RD DAY OF FEBRUARY, 2024. A. MSHILAJUDGEIn the presence of;Mourice – Court AssistantNdungu Kuria for the PetitionersRespondents N/A