[2024] KEHC 11726 (KLR)

Gitonga & another v County Government of Mombasa & 4 others (Petition E059 of 2023) [2024] KEHC 11726 (KLR) (19 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11726 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition E059 of 2023

OA Sewe, J

September 19, 2024

IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 19, 20,21,27, 40(1) & (3), 50(2), 199(1), 210(1) OF THE CONSTITUTION AND IN THE MATTER OF ARTICLES 2(1), 22(1) 23(1), 165 AND 176 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE ALCOHOLIC DRINKS CONTROL ACT OF 2016 AND IN THE MATTER OF MOMBASA COUNTY LIQUOR LICENSING ACT, 2014

Between

Joseph Mutero Gitonga

1st Petitioner

Mombasa County Entertainment, Bars, Pubs, Restaurants, Hotels, Guesthouses, Wines & Spirits Owners Organization Suing Through the Chairman Patrick Kabundu and Treasurer, Lydia Ngari

2nd Petitioner

and

County Government of Mombasa

1st Respondent

Clerk, Mombasa County Assembly

2nd Respondent

Director, Mombasa County Directorate of Liquor Licensing

3rd Respondent

Inspector General, National Police Service

4th Respondent

Director of Public Prosecutions

5th Respondent

Judgment

1. The 1st petitioner, Joseph Mutero Gitonga, is a member of the 2nd petitioner, Mombasa County Entertainment, Bars, Pubs, Restaurants, Hotels, Guest Houses, Wines & Spirits Owners Organization and also owns several liquor outlets in Mombasa County. The two petitioners averred that the 2nd petitioner is a Community Based Organization registered under the Department of Social Development; and that its objective is to represent the interests of liquor related business ventures in the County of Mombasa, thereby creating a platform for members to address challenges related to rights violations and unfair trading practices.

2. They further averred that the 1st petitioner is a trader operating liquor businesses within the County of Mombasa and that it has been operating several liquor outlets for a period of over 5 years. They explained that:(a)On the 19th March 2023, the 1st petitioner made an application for liquor licence at the County Government of Mombasa and paid Kshs. 10,050/= on the basis of Invoice No. INV-179449. (b)The 1st petitioner also applied for a Single Business Permit for a medium restaurant with a bar on the basis of Invoice No. INV-19209 and paid Kshs. 26,550/=.(c)Having duly paid the requisite amount for the application for liquor licence and as envisaged under Section 36(3) of the Mombasa County Liquor Licensing Act, 2014, the 1st petitioner approached the 4th respondent on 24th August 2023 through the OCS Mombasa Central Police Station, one Kipkurui Bor, in compliance with the provisions of the Act for inspection of the premises and was duly issued with the requisite Recommendation Report.(d)Thereafter, on the 14th September 2023, the 1st petitioner was issued with a Provisional Single Business Permit No. ARN-AAA15CY6. Medical Officers visited the premises for inspection on 5th November 2023 and thereafter issued the 1st petitioner with a Medical Report Ref: MVT/MAJ/Vo.6/29 with various recommendations for hygiene and fittings.

3. The petitioners complained that, the 4th respondent, through the OCS Mombasa Central Police Station arrested two of the employees of the 1st petitioner, namely, Anne Njeri and Greselda Wanjala on diverse dates in October and November 2023 and carted away alcoholic drinks worth Kshs. 74,500 and other property valued at Kshs. 30,000/=. That on the 21st November 2023, Grace Wanjala was charged under Section 27(3) as read with Section 40 of the Mombasa County Liquor Licensing Act.

4. It was the contention of the petitioners that, although the Mombasa County Assembly passed the Mombasa Liquor Licensing Act in 2014, it only published it in the County Gazette without further gazetting it in the Kenya Gazette, contrary to Article 199(1) and 210(1) of the Constitution. That, in the circumstances, the 1st petitioner’s right to fair trial, in particular the right not to be convicted for an act or omission that at the time of commission or omission was not an offence in Kenya as envisaged in Article 50(2)(n)(i), was contravened by the respondents.

5. The petitioners also averred that the 2nd petitioner approached the Mombasa County Assembly in light of Section 88 of the County Government Act, 2012 for gazettement of the County laws as required by Article 199(1) and 210(1) of the Constitution of Kenya, but his pleas went unheeded. The 2nd petitioner thereafter filed Judicial Review Application No. 15 of 2020: Republic v The County Government of Mombasa, Ex Parte Patrick Kabundu & others in which the Court made a finding that the impugned laws were in contravention of Article 199(1) of the Constitution for want of gazettement in the Kenya Gazette. It was therefore the contention of the petitioners that the continued imposition of taxes and licensing fees on liquor businesses by the respondent is unconstitutional, null and void.

6. Accordingly, the petitioners prayed for the following orders against the respondents:(a)A mandatory order to compel the 4th respondent to forthwith and unconditionally release the 1st petitioner’s property as listed in Schedules 1 and 2 of the Petition.(b)A permanent injunction to restrain the respondents, their officers, employees, servants, agents and anybody else acting for, through or at their behest, directions or instructions from entering into, trespassing onto, breaking into, confiscating, carting away or retaining the 1st petitioner’s properties in or whatsoever else interfering with the lawful operations pending the 1st respondent putting in legal structures and proper legislation regarding liquor licensing.(c)A declaration that the criminal proceedings against Grace Wanjala in Mombasa Criminal Case No. E128 of 2023 is unconstitutional and the accused person be refunded the fine paid.(d)A declaration that the criminal proceedings against Anne Njeri in in Mombasa Criminal Case No. E1491 of 2023 is unconstitutional and the accused person be refunded the fine paid.(e)A declaration that the criminal proceedings against Greselda Wanjala instituted through Charge Sheet dated 14th November 2023 as well as the purported Diversion Agreement dated 14th November 2023 by the 5th respondent is unconstitutional.(f)A declaration that the Mombasa County Liquor Licensing Act, 2014 and the Mombasa County Trade Licensing Act, 2014 are unconstitutional.(g)An order quashing the Mombasa County Liquor Licensing Act, 2014 and the Mombasa County Trade Licensing Act, 2014 for being inconsistent with the Constitution.(h)A declaration that the Alcoholic Drinks Control Act (No. 4 of 2010) is in contradiction with Schedule 4 Part 2 of the Constitution in so far as it purports to give the National Government authority to licence liquor businesses.(i)An order directing the 2nd respondent to address the Petition filed by the 2nd petitioner’s officials dated 1st April 2020 in light of Articles 118 and 119 of the Constitution and Sections 15, 87, 88, 89 and 91 of the County Government Act and Mombasa County Assembly Standing Order No. 184. (j)Any other relief the Court deems fit to grant.(k)Costs of the Petition.

7. The Petition was accompanied by two Verifying Affidavits, one sworn by the 1st petitioner and the other by Patrick Kabundu and Lydia Ngari jointly. The 1st petitioner also relied on his Supporting Affidavit dated 4th April 2024.

8. In response to the Petition, the 1st, 2nd and 3rd respondents filed a Replying Affidavit sworn by the County Attorney of the 1st respondent, Mr. Jimmy Waliaula. They averred that this Petition is premised on a misapprehension of the decision of the Court of Appeal in Mombasa Civil Appeal No. E005 of 2021 dated 10th November 2023. According to the 1st respondent the decision was confined to Mombasa County Finance Act, 2019, which lapsed on 31st December 2020. The 1st, 2nd and 3rd respondents insisted that all County legislations, and in particular the impugned legislations, were published in the Kenya Gazette, and that the differentiation assigned by the Government Printer, namely, Mombasa County Gazette Supplement does not in any way infringe Article 199(1) of the Constitution.

9. At paragraphs 11 to 23 of the Replying Affidavit aforementioned, the County Attorney explained how the title of the relevant Kenya Gazette Supplement came to be and added that the same was duly corrected following a court order issued in James Gacheru Kariuki & 3 others v Attorney General & 11 others 2017 eKLR to read “Kenya Gazette Supplement” instead of “Mombasa County Gazette Supplement.” They further contended that, in any event, the correct party to enforce any orders for correction would be the Government Printer or its parent Ministry as opposed to the 1st or 2nd respondents.

10. On the criminal cases alluded to by the petitioners, the County Attorney averred that a similar dispute arose in Mombasa High Court Miscellaneous Application No. 27 and 18 of 2015: Patrick Mukiri Kabundu v Executive in charge of Tourism Development and Culture, Mombasa County & 21 others, Ex Parte Patrick Mukiri Kabundu 2015 eKLR in which the prayer for prohibition was declined. He therefore contended that this Petition is simply a last ditch attempt by the petitioners to avoid meeting the requirements for issuance of licences for operating liquor establishments. Thus, the 1st, 2nd and 3rd respondents opposed the Petition and urged for its dismissal with costs.

11. The Petition was urged by way of written submissions pursuant to the directions given herein on the 11th April 2024. The petitioners filed their written submissions dated 17th April 2024 and thereby proposed the following issues for determination:(a)Whether the Mombasa County Trade Licence Act, 2014, the Mombasa County Liquor Licensing Act, 2014 and the Alcoholic Drinks Control Act 2010 are unconstitutional.(b)Whether the 1st petitioner’s staff were denied their right to fair trial.(c)Whether the 1st petitioner’s goods were illegally detained.(d)Whether the 1st petitioner’s right under Article 210(1) of the Constitution was violated.

12. In respect of the first issue, the petitioners relied on Article 199(1) of the Constitution and the case of James Gacheru Kariuki & 3 others v Attorney General & 11 others (supra) to support their submission that County legislation does not take effect unless published in the Kenya Gazette. Their contention was therefore that since the impugned Acts were only published in the Mombasa County Gazette, they are unconstitutional, null and void.

13. The petitioners also submitted that, since directions were given in the Judicial Review case of Republic v County Government of Mombasa; Clerk County Assembly of Mombasa & 6 others (Interested Parties), Ex Parte Patrick Kabundu & 2 others 2020 eKLR for the 1st and 2nd respondents to rectify the anomaly surrounding the gazettement of the impugned statutes, action ought to have been taken already by the 1st, 2nd and 3rd respondents. They further posited that, since Schedule 4 Part 1 of the Constitution gives the function of liquor licence to the County Governments, Part III of the Alcoholic Drinks Control Act, No. 4 of 2010, is in conflict with the Constitution in so far as it purports to regulate the licensing of liquor businesses.

14. On whether the 1st petitioner’s staff were denied their right to fair trial, the petitioners submitted that since Grace Wanjala was charged with the offence of selling alcoholic drinks without a licence under the impugned Mombasa County Liquor Licensing Act, 2014, the prosecution and conviction of the said employee contravened Article 50(2)(n) of the Constitution, which confers a non-derogable right to fair hearing. In the same vein, they submitted that his employees ought not to have been charged under Section 62 of the Alcoholic Drinks Control Act since it is not intended to regulate liquor licensing.

15. The petitioners also made submissions on to the effect that the 1st petitioner’s right to property under Article 40 of the Constitution was violated when the 4th respondent, through the OCS, Central Police Station, impounded his stock of liquor and other goods to the tune of Kshs. 104,500/= pursuant to an unconstitutional legislation. On whether the 1st petitioner’s right under Article 210(1) of the Constitution was violated, the petitioners relied on Article 199(1) and their submissions as to the unconstitutionality of the impugned legislation. They accordingly prayed that their Petition be allowed and reliefs sought therein granted as prayed.

16. On their part, the 1st, 2nd and 3rd respondents relied on their written submissions dated 5th May 2024. In their view, the issues for determination are:(a)Whether the Mombasa County Liquor Licensing Act, 2014 was gazetted in the Kenya Gazette as required under Article 199(1) of the Constitution.(b)Whether the labelling of the cover page of Mombasa County Liquor Licensing Act, 2014 as “Mombasa County Gazette Supplement” as opposed to “Kenya Gazette Supplement” during publication negates the fact that it was published in the Kenya Gazette.(c)Whether the petitioners were right in suing the 1st, 2nd and 3rd respondents instead of the Ministry in charge of the Government Printer.(d)Whether the Patrick Kabundu and Lydia Ngari, the officials of the 2nd petitioner, have the capacity to institute a representative suit on behalf of the 2nd petitioner, Mombasa County Entertainment, Bars, Pubs, Restaurants, Hotels, Guest Houses, Wines & Spirits owners Organization.(e)Whether the Petition is merited.

17. The 1st, 2nd and 3rd respondents submitted that, in compliance with Article 199(1) of the Constitution, they forwarded their laws, including the Mombasa County Liquor Licensing Act, to the Government Printer for publishing in the Kenya Gazette. They pointed out that there is only one Gazette managed by the National Government through the Government Printer. They further submitted that the County Government of Mombasa is only in charge of content of the legislation and not the cover page; and therefore that it was necessary for the Government Printer to be enjoined to this suit to explain the anomaly in connection with the titling of the 2014 Gazette Supplement.

18. On whether the 2nd petitioner’s officials had the authority to institute this suit on its behalf, the 1st, 2nd and 3rd respondents relied on Order 1 Rule 13 of the Civil Procedure Rules, which provides:(1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case.

19. Accordingly, the 1st, 2nd and 3rd respondents submitted that the representatives of the 2nd petitioner ought to have presented a written authority before the Court to demonstrate that they have the permission of the rest of the members of the CBO to file this Petition. They relied on Shadrack Mwamuu Nzioka & 2 others (suing on their behalf as officials of Crescent Self Help Group) v Tropical Blooms Limited 2020 eKLR and urged the Court to proceed on the basis that there is only one petitioner herein, namely, the 1st petitioner.

20. I have given careful consideration to the Petition, the responses thereto as well as the written submissions filed in connection therewith. I note that, in respect of the technical point raised by the respondents, namely that no written authority was filed as required, reliance was placed on Order 1 Rule 13 of the Civil Procedure Rules. Authorities abound for the proposition that the applicable procedural rules in constitutional petitions are the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (otherwise known as the Mutunga Rules). Consequently, I entirely endorse the position taken by Hon. Musyoka, J. in Francis Angueyah Ominde & another v Vihiga County Executive Committee Members Finance Economic Planning and 3 others; Controller of Budget and 10 others (Interested Parties) 2021 eKLR that:…constitutional petitions are governed and regulated by the Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013, so far as procedures and processes are concerned. They are not subject to the Civil Procedure Rules, which governs processes that are brought under the Civil Procedure Act, Cap 21, Laws of Kenya. So far as procedure is concerned, the Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013 captures the spirit of Article 159(2)(d) of the Constitution, which is an injunction against constitutional proceedings being hostage to technicalities of procedure, and which enjoins courts to protect and promote the principles of the Constitution. The focus is trained on substance rather than process. The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013 are more flexible compared with the provisions of the Civil Procedure Rules, with respect to who may bring proceedings and the manner of initiating the proceedings.

21. More importantly Article 258 of the Constitution states:(1)Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.

22. It is plain then that Article 258(1) of the Constitution gives a right to every person claiming that the Constitution has been contravened or is threatened with contravention to institute court proceedings. Article 258 (2) (b) and (d) of the Constitution are explicit that the proceedings can be filed by a person acting as a member of, or in the interest of, a group or class of persons and an association acting in the interest of one or more of its members. Under the aforementioned Article, the petitioners had the right to bring this Petition even as individual members of the 2nd petitioner representing only a class of its membership.

23. Further to the foregoing, it is now trite that Article 3(1) of the Constitution has had the effect of widening the scope of locus standi considerably. The Supreme Court made this clear in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others 2014 eKLR thus:...The issue of locus standi raises a point of law that touches on the jurisdiction of the Court, and it should be resolved at the earliest opportunity. In Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, Sup. Ct. Petition No. 7 of 2013; 2014 eKLR, this Court held (at paragraphs 68 and 69) that the question of jurisdiction is a “pure question of law,” and should be resolved on a priority basis…(67)It is to be noted that the promulgation of the 2010 Constitution enlarged the scope of locus standi, in Kenya. Articles 22 and 258 have empowered every person, whether corporate or non-incorporated, to move the Courts, contesting any contravention of the Bill of Rights, or the Constitution in general. In John Wekesa Khaoya v. Attorney General, Petition No. 60 of 2012; 2013 eKLR the High Court thus expressed the principle (paragraph 4):“…the locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Articles 22 and 258 of the Constitution which ensures unhindered access to justice…”(71)Articles 22 and 258 of the Constitution provide that every person has the right to institute proceedings claiming that the Constitution has been contravened; and “person” in this regard, includes one who acts in the public interest…”

24. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others 2013 eKLR the Court of Appeal had earlier held:(27)Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process…We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus stand to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in article 258. ”

25. A similar position was taken in the case of Sollo Nzuki v Salaries and Remuneration Commission & 2 others 2019 eKLR thus:It is therefore clear that over time the issue of standing, particularly in public law litigation has been greatly relaxed and in our case the Constitution has opened the doors of the courts very wide to welcome any person who has bona fide grounds that the Constitution has been or is threatened with contravention to approach the court for an appropriate relief. In fact, since article 3(1) of the Constitution places an obligation on every person to respect, uphold and defend the Constitution, the invitation to approach the court for redress as long as the person holds bona fide grounds for believing that the Constitution is under threat ought to be welcome...’’

26. In the premises, it is my finding that the 2nd petitioner is properly on record and is duly represented by its two officials. It is immaterial that the two officials did not have the written authority of their organization. I find succor for saying in the decision of Hon. Makau, J. in Offshore Trading Company Limited v Attorney General & 2 others 2021 eKLR, that:…the matter pending before this Court is a Constitutional Petition in which Civil Procedure Rules are not applicable in regard to filing of Constitutional Petitions. The applicable law and procedure of filing Constitutional Petitions is provided for under “The Protection of Rights and Fundamental Freedoms, Practice and Procedure Rules, 2013, otherwise known as Chief Justice Mutunga Rules which provide the procedure for filing of Constitutional Petitions and which have no requirement that the Petitioner must exhibit a board resolution or swear a verifying Affidavit. In addition thereto the Constitution abhors Technical objections of this nature expressly at Articles 22, 3(b)(d) and 159 of the Constitution.31. In the instant Petition, I note that the deponent of the Supporting Affidavit has expressly deponed at paragraph 1 of the supporting affidavit that he is duly authorized by the Board of Directors of the Petitioner to swear the Affidavits. The 3rd Responded cannot question that averment without offering contrary evidence…There is therefore no basis for the 3rd Respondent’s objection in the absence of evidence to the contrary.…33. In view of the Mutunga Rules and authorities cited herein above, I find that even if the filing of Resolution was a requirement in Constitutional Petition, I would find that it would be against Article 48 of the Constitution on access to justice…”

27. An issue was proposed by the petitioners for determination, namely, whether the 1st petitioner’s staff were denied their right to fair trial for purposes of Article 50(2)(n)(i) of the Constitution. The facts in support of this issue were that, the 4th respondent, through the OCS Mombasa Central Police Station arrested two of the employees of the 1st petitioner, namely, Anne Njeri and Greselda Wanjala on diverse dates in October and November 2023 and carted away alcoholic drinks worth Kshs. 74,500 and other property valued at Kshs. 30,000/=. That on the 21st November 2023, Grace Wanjala was charged with the offence of selling alcoholic drinks without a licence under Section 27(3) as read with Section 40 of the impugned Mombasa County Liquor Licensing Act.

28. It was therefore the submission of the petitioners that the prosecution and conviction of the said employee contravened Article 50(2)(n)(i) of the Constitution, which confers a non-derogable right to fair hearing. In the same vein, they submitted that his employees ought not to have been charged under Section 62 of the Alcoholic Drinks Control Act since it is not intended to regulate liquor licensing.

29. It is noteworthy however that, in their Supporting Affidavit, the petitioners conceded that the criminal proceedings have, for all intents and purposes been concluded and the files brought to closure. In my considered view, the issues touching on the criminal proceedings are moot in so far as this Petition is concerned.

30. It is instructive that, according to Black’s Law Dictionary, Tenth Edition, at page 1161, a “moot case” is defined as “A matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights.” Thus, I echo the expressions of Hon. Mativo, J. (as he then was) in Daniel Kaminja & 3 Others (suing as Westland Environmental Caretaker Group) v County Government of Nairobi 2019 eKLR, that:23. A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.24. It is trite that as a general principle, the rights and liabilities of parties to any judicial proceedings pending before court are determined in accordance with the law as it was at the time when the suit was instituted and by applying the facts to the law and circumstances. Time and again, it has been expressed that a court should not act in vain.1525. No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.1626. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review.”

31. In the premises, the issues arising for determination in this Petition are:(a)Whether the Mombasa County Trade Licence Act, 2014, the Mombasa County Liquor Licensing Act, 2014 and the Alcoholic Drinks Control Act 2010 are unconstitutional.(b)Whether the 1st petitioner’s right to property under Article 40 of the Constitution was violated by the respondents.(c)Whether the 1st petitioner’s right under Article 210(1) of the Constitution was violated.

A. On the constitutionality of Mombasa County Trade Licence Act, 2014, the Mombasa County Liquor Licensing Act, 2014 and the Alcoholic Drinks Control Act 2010: 32. First and foremost, the Petitioners asserted that the Mombasa County Trade License Act, 2014 and the Mombasa County Liquor Licensing Act, 2014 did not comply with the requirement that they must be published in the Kenya Gazette. The Petitioners relied on Article 199(1) of the Constitution and Section 25 of the County Government Act to assert this position. Article 199(1) of the Constitution requires that for a County legislation to take effect, it must be gazetted. A "Gazette" is defined under Article 260 to mean:the Kenya Gazette published by authority of the national government, or a supplement to the Kenya Gazette.

33. The petitioners also placed reliance on Section 25 of the County Government Act. That provision states:(1)A legislation passed by the county assembly and assented to by the Governor shall be published in the county Gazette and Kenya Gazette within seven days after assent.(2)Subject to subsection (3), the county assembly legislation shall come into force on the fourteenth day after its publication in the Kenya Gazette unless the legislation stipulates a different date on, or time at which, it shall come into force.(3)A county assembly legislation that confers a direct benefit whether financial or in kind on members of the county assembly shall come into force after the next general election of members of the county assembly.(4)Subsection (3) does not apply to an interest that members of county assembly have as members of the public.

34. The Petitioners have claimed that the Acts complained of herein commenced operation in 2014 after they were gazetted in the Mombasa County Gazette. However, they were never gazetted in the Kenya Gazette as the Constitution and legislation required.

35. The 1st, 2nd and 3rd respondents on their part submitted that there is no such thing as a County Gazette and that it is the practice of all the 47 Counties to have their legislations published by the Government Printer in the Kenya Gazette. They further submitted that they are not in charge of how the legislations are printed once forwarded to the Government Printer. They therefore asserted that it was the Government Printer who created the cover page that designated the impugned publication as Mombasa County Gazette Supplement.

36. Thus, according to the respondents, they complied fully with the requirement of the Constitution and the impugned legislation was published in the Kenya Gazette as required. The 1st, 2nd and 3rd Respondents attached annexure JW2 to show that the legislations were gazetted in the Kenya Gazette as Special Issues under the Kenya Gazette Supplement.

37. In the case of James Gacheru Kariuki & 3 others v Attorney General & 11 others 2017 eKLR, Hon. Lenaola, J. (as he then was) was faced with a case of more or less similar circumstances where the petitioners challenged the constitutionality of several Kiambu County legislations on an allegation that they had not been published in the Kenya Gazette as required under Article 199(1) of Constitution. The court held:…What therefore is a County Gazette, if at all and is there any relationship between a County Gazette and the Kenya Gazette?31. The term ‘County Gazette’ is not defined nor provided for in the Constitution which only provides for a Gazette, which has been defined as the Kenya Gazette published by the authority of the National Government or a supplement to the Kenya Gazette. However, the County Governments Act defines a ‘County Gazette’ as a Gazette published by the authority of the County Government or a supplement of such a Gazette. This shows that there is a clear distinction between a ‘County Gazette’ and a ‘Kenya Gazette’ and the difference as can be seen above is; whereas the ‘Kenya Gazette’ is published under the authority of the National Government, the ‘County Gazette’ is published under the authority of a County Government.32. In essence, while the concept of a ‘County Gazette’ was introduced by the County Governments Act, the Constitution explicitly requires County legislation to be published in the Kenya Gazette for them to take effect. I so find….”38. The court went on to find that Section 25(2) of the County Government Act amounted to a derogation of the Constitution. It held:

38. As I have already stated above in my analysis of the first issue, a County Gazette is neither a Kenya Gazette nor a supplement to the Kenya Gazette and as such, County legislation only gains legitimacy upon its publication in the Kenya Gazette or a supplement to the Kenya Gazette. Further, as already elaborated upon, the definition of a County Gazette completely departs from the meaning of the term ‘Gazette’ as used in Article 199 and defined in Article 260 of the Constitution. A County Gazette and which is a creation of the County Governments Act and not the Constitution cannot in any event supersede in its publication, the Kenya Gazette.

39. I therefore agree with the Petitioners that to the extent that Section 25(2) of the County Governments Act envisions that a County legislation may come into effect without necessarily being published in the Kenya Gazette by use of the phrase, ‘whichever comes earlier’, then it is a complete derogation from the pre-requisite of the Constitution and hence invalid to the extent of that inconsistency…”

39. The decision in James Gacheru Kariuki (supra) was affirmed by the Court of Appeal in County Government of Kiambu v Kariuki & 3 others (Civil Appeal 137 of 2017) 2021 KECA 351 (KLR) (17 December 2021) (Judgment), wherein it was stated: -32. Section 25(2) reinforces the position that County legislation ought to be published in both the Kenya Gazette and the County Gazette and that such publication may be done concurrently. The same Section further provides that the legislation shall come into force on the fourteenth day after its publication in the County Gazette and Kenya Gazette, whichever comes first. It is on this wording ‘whichever comes first‘ that the Respondents presuppose the possibility of County Legislation coming into force upon its publication in the County Gazette only where it precedes publication in the Kenya Gazette. It is plain to us that a County Gazette is a creation of the County Government Act and not the Constitution and cannot by any craft of interpretation supersede its publication in the Kenya Gazette. We are thus in agreement with the learned Judge that the Constitution explicitly requires County Legislation to be published in the Kenya Gazette for the same to take effect.33. We note with approval that the learned judge’s findings that a County Gazette is neither a Kenya Gazette nor a supplement to the Kenya Gazette, as it departs from the definition of a County Gazette used in article 199 and defined in article 260. Indeed, pursuant to Article 199 of the Constitution, section 25 of the County Governments Act was enacted to provide additional requirements with regards to publication of County Legislation. We agree with the learned judge that any additional requirements contemplated under article 199 should not derogate from the mandatory duty necessitating publication of County Legislation in the Kenya Gazette or its supplement, and no legislation can waive the need for such publication.34. Our understanding of the provisions of section 25 is that County legislation ought to be published in both the Kenya Gazette and the County Gazette and such publication may be done one after the other. We note the observation made by the learned trial judge that section 25 further does provides that the legislation shall come into force on the fourteenth day after its publication in the County Gazette and Kenya Gazette, whichever comes earlier. It is now this wording ‘whichever comes earlier’ that is the issue as it presupposes the possibility of County Legislation coming into force upon its publication in the County Gazette only where it precedes publication in the Kenya Gazette.35. We find that the judge held and rightly so held that section 25 was a complete derogation from the prerequisite of the Constitution and was invalid to the extent of the words ‘whichever comes first’ as it envisions that County Legislation may come into effect without being necessarily being published in the Kenya Gazette. Indeed, the correct position is that County Legislation ought to be published in the Kenya Gazette for it to gain legitimacy…”

40. Article 260 elucidated above, indicates that Kenya Gazette can be a publication from the authority of the National Government or a Supplement to the Kenya Gazette. In the case of the 1st, 2nd and 3rd Respondents it has been shown that the legislations were published as a Special Issue of the Kenya Gazette Supplement. In my careful consideration, the impugned legislations were published in compliance with Article 199 of the Constitution and that the misdescription can be dealt with by way of a correction by the Government Printer as proposed by the respondents.

41. In arriving at the above conclusion I have taken into account the submission by the petitioners that, since directions were given in the Judicial Review case of Republic v County Government of Mombasa; Clerk County Assembly of Mombasa & 6 others (Interested Parties), Ex Parte Patrick Kabundu & 2 others 2020 eKLR for the 1st and 2nd respondents to rectify the anomaly surrounding the gazettement of the impugned statutes, action ought to have been taken already by the 1st, 2nd and 3rd respondents. It is manifest, however, that this submission completely ignored the decision of the Court of Appeal in Civil Appeal No. E005 of 2021: Patrick Kabundu & another v County Government of Mombasa rendered on 10th November 2023. At paragraph 35 thereof, the Court of Appeal ordered:In the end this appeal is found to be partially merited only to the extent that the order by the High Court at Mombasa (D. Chepkwony J.) made in the judgment delivered on 2nd September 2020 in Mombasa JR Case No. 15 of 2020 that: “The various Acts that were operational as listed in the application for Leave to remain in force until the end of the Financial Act will be enacted (sic). And so as to avoid any doubt as to the time, till 31st December, 2020” is hereby set aside. All the other orders in the said judgment are hereby upheld…”

42. In fact the Court pointed out that the Judicial Review suit that was the subject of the appeal, namely Mombasa Judicial Review Case No. 15 of 2020, concerned only the Mombasa County Finance Act, 2019. Accordingly, the Court of Appeal observed that:We however feel constrained to comment on an order by the trial Court on other legislation made by the Respondent, which although mentioned in the Notice of Motion application dated 24th April 2020 were not the subject of the prayers sought therein, and which we also found to be inexplicable and ambiguous. The said order was therefore not merited and cannot stand.”

43. It was therefore fallacious for the petitioners to argue, as they did in their submissions, that the respondents ought to have rectified the anomaly within the timelines given by the High Court in Mombasa Judicial Review Case No. 15 of 2020, but failed to comply.

44. The Petitioners also alleged that the Alcoholic Drinks Control Act, 2010 is inconsistent with Schedule 4 Part 2 of the Constitution of Kenya as it is the role of the Counties to license the liquor businesses. They posited that, since Schedule 4 Part 2 of the Constitution gives the function of liquor licence to the County Governments, Part III of the Alcoholic Drinks Control Act, No. 4 of 2010, is in conflict with the Constitution in so far as it purports to regulate the licensing of liquor businesses.

45. It is instructive to mention at this stage that, in exercising its interpretive function, the Court must bear in mind the precepts set out at Article 259 of the Constitution. The provision states:(1)This Constitution shall be interpreted in a manner that—(a)promotes its purposes, values and principles;(b)advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;(c)permits the development of the law; and(d)contributes to good governance.(2)…(3)Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and, therefore, among other things—(a)a function or power conferred by this Constitution on an office may be performed or exercised as occasion requires, by the person holding the office;(b)any reference in this Constitution to a State or other public office or officer, or a person holding such an office, includes a reference to the person acting in or otherwise performing the functions of the office at any particular time;(c)a reference in this Constitution to an office, State organ or locality named in this Constitution shall be read with any formal alteration necessary to make it applicable in the circumstances; and(d)a reference in this Constitution to an office, body or organisation is, if the office, body or organisation has ceased to exist, a reference to its successor or to the equivalent office, body or organisation.

46. Hence, in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others 2015 eKLR it was held:91. The Constitution has given guidance on how it is to be interpreted. Article 259 thereof 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.92. We are also guided by the provisions of Article 159(2) (e) of the Constitution which require the Court, in exercising judicial authority, to do so in a manner that protects and promotes the purpose and principles of the Constitution.93. Thirdly, in interpreting the Constitution, we are enjoined to give it a liberal purposive interpretation. At paragraph 51 of its decision in Re The Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011, the Supreme Court of Kenya adopted the words of Mohamed A J in the Namibian case of S. vs Acheson, 1991 (2) S.A. 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.”94. Further, the Court is required, in interpreting the Constitution, to be guided by the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other: see Tinyefuza vs Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC 3).

47. A similar position was articulated in Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General 2011 eKLR, as follows:…In interpreting the Constitution, this court is bound by the provisions of Section 259 which requires that the Constitution be interpreted in a manner that promotes its purposes, values and principles, advances the rule of law and the human rights and fundamental freedoms in the bill of rights, permits the development of the law and contributes to good governance. ……In interpreting the Constitution, the letter and the spirit of the supreme law must be respected. Various provisions of the Constitution must be read together in order to get a proper interpretation. In the Ugandan case of Tinyefuza Vs. Attorney Genaral, Constitutional Appeal NO. 1 of 1997, the court held as follows:“The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.”

48. It was therefore imperative for the petitioners to demonstrate in what way the impugned provisions are inconsistent with the Constitution. In the celebrated case of U.S. v Butler 297 U.S 1 1936 the Supreme Court of the United States held: -when an Act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former” …

49. Similarly, in Ndyanabo v s Attorney General of Tanzania 2001 EA 495, where the court stated that there is a presumption that every Act of Parliament is constitutional, and the burden of proving the contrary lies on the one who alleges otherwise.

50. The preamble to the Alcoholic Drinks Control Act sets out the object of the Act as follows:An Act of Parliament to provide for the regulation of the production, sale and consumption of alcoholic drinks, to repeal the Chang‘aa Prohibition Act, the Liquor Licensing Act and for connected purposes.”

51. The Act adopts a wider approach to the issue of control of alcoholic drinks. No wonder therefore that, in Section 43 of the Mombasa County Liquor Licensing Act, deference is expressly given to the applicability of the Alcoholic Drinks Control Act. It states:Without prejudice to the provisions of this Act, the Alcoholic Drinks Control Act, 2010 shall continue to apply in the county, save for the matters specifically provided for in this Act.”

52. Needless to mention therefore that an apparent overlap in functions between the national and county governments does not of itself mean a usurpation of powers by either level of government, for the Constitution envisaged that this would likely happen. Hence in Article 189 thereof, it is stated:(1)Government at either level shall—(a)perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level;(b)assist, support and consult and, as appropriate, implement the legislation of the other level of government; and(c)liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity.(2)Government at each level, and different governments at the county level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities.(3)In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.(4)National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.

53. I therefore agree with the position taken by Hon. Meoli, J. in Okiya Omtatah Okoiti v County Government of Kiambu 2018 eKLR that:18. Sub articles 2 and 3 of the above Article further provide that a function or power conferred on both the county and national government is deemed to fall within the concurrent jurisdiction of each level of government, and that any function or power not assigned by the Constitution or national legislation to a county is a function or power of the national government.19. The Constitution therefore does not anticipate a vacuum in the assignment or performance of functions between the national and county governments. However, it anticipates a conflict between national and county legislation where functions are shared. Article 191 of the Constitution therefore makes provision for the resolution of conflicts arising between national and country legislation with regard to matters that fall within the concurrent jurisdiction of the county and national government.”

54. Hon. Ongudi, J. was of the same view in County Government of Nairobi & another v National Authority for the Campaign Against Alcohol Abuse 2022 eKLR and held that:64…I do not see how the impugned Sections contravene the Constitution. This is because both texts do not expressly specify the function of liquor licensing of alcoholic drinks in light of international trade. In fact the objects and purposes of the impugned Sections only express the devolved functions as captured under the Fourth Schedule. Moreover, with regards to Section 4 it has already been established that liquor licensing is not within the respondent’s mandate.65. Accordingly, it is my considered view that the drafters of the Alcoholic Drinks Control Act No. 4 of 2010 intended that the two levels of government in their functions collaborate in the control of alcoholic drinks as underscored in the Fourth Schedule of the Constitution. This collaboration would best be particularized by the two levels of government as guided by Articles 186, 189 and 191 of the Constitution as this falls in their legislative domain. It is accordingly my humble conclusion that Sections 4, 7 and 8 of the Alcoholic Drinks Control Act No. 4 of 2010 are constitutional. Let the two levels of Government agree on how to deal with liquor licensing of the imports and exports which is in the domain of international trade.”

55. It is therefore my finding that there is no conflict between the Alcoholic Drinks Control Act and Part 2 of the Fourth Schedule of the Constitution.

B. On whether the 1st petitioner’s right to property under Article 40 of the Constitution was violated: 56. The petitioners also made submissions to the effect that the 1st petitioner’s right to property under Article 40 of the Constitution was violated when the 4th respondent, through the OCS, Central Police Station, impounded his stock of liquor and other goods to the tune of Kshs. 104,500/= pursuant to an unconstitutional legislation. The parties were in agreement that the respondents were acting pursuant to provisions of the law; that the accused persons admitted the charges and were accordingly fined or handled under the alternative provisions related to diversion in accordance with the law.

57. This aspect of the petitioners’ case was therefore premised on the argument that the impugned Acts are unconstitutional. Having found that they are not, it follows that this argument cannot stand. Besides, no evidence was presented before the Court to show what final orders were made by the trial magistrate in the criminal proceedings in question; particularly on the disposal of the exhibits. Moreover, it is a cardinal principle that where relief is provided for in a provision of statute, the Constitution ought not to be invoked.

58. The doctrine of avoidance was well-discussed by the Supreme Court in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others 2014 eKLR (29th September 2014) (Judgment) thus:(256)The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows at paragraph 59:“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”(257)Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).(258)From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court…”

59. In the case of K K B v S C M & 5 others (Constitutional Petition E014 of 2020) 2022 KEHC 289 (KLR) (22 April 2022) (Ruling), Hon. Mativo, J. (as he then was) also expressed himself on the doctrine as hereunder:In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause…”

60. Further in the case of Faraj & 3 others v Police & 2 others (Constitutional Petition 165 of 2020) 2022 KEHC 287 (KLR) (27 April 2022) (Judgment) it was held:27. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.…29. The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common-law remedies are part of the legal system…”

61. There is no evidence that the criminal court could not handle the issue of seizure of the 1st petitioner’s property. Moreover, the best forum for testing the validity of a charge and all the related issues is the trial court itself. In Erick Kibiwott & 2 Others v Director of Public Prosecution & 2 Others 2014 eKLR it was held that:…In determining the issues raised herein the Court will therefore avoid the temptation to unnecessarily stray into the arena exclusively reserved for the criminal or trial court. Dealing with the merits of the application, it is trite that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings…”

62. I therefore entirely agree with position taken in Michael Sistu Kamau & 12 Others v Ethics and Anti-Corruption Commission & 4 Others 2016 eKLR, wherein a three-judge bench held that:The trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence and even after placing the accused on their defence, the Court may well proceed to acquit the accused. Our criminal process also provides for a process of appeal where the accused is aggrieved by the decision in question. Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution. In other words, unless the Petitioners demonstrate that the circumstances of the impugned process render it impossible for them to have a fair trial, the High Court ought not to interfere with the trial … “

63. No justification was made by the petitioners to demonstrate infringement of Article 40 of the Constitution.

C. On whether the 1st petitioner’s right under Article 210(1) of the Constitution was violated: 64. On whether the 1st petitioner’s right under Article 210(1) of the Constitution was violated, the petitioners relied on Article 199(1) and their submissions as to the unconstitutionality of the impugned legislation. The Court has already found that the allegations of unconstitutionality are unwarranted and therefore that finding has a domino effect on the other aspects of the Petition.

65. In the result, I find no merit in the Petition dated 14th December, 2023. It is hereby dismissed. Each party to bear own costs thereof.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF SEPTEMBER 2024OLGA SEWEJUDGE