Isinya Bar Owners Association v County Government of Kajiado & another (Constitutional Petition E006 of 2021) [2026] KEHC 8308 (KLR) (11 June 2026) (Ruling)

Isinya Bar Owners Association v County Government of Kajiado & another (Constitutional Petition E006 of 2021) [2026] KEHC 8308 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8308 (KLR) Republic of Kenya In the High Court at Kajiado Constitutional Petition E006 of 2021 CW Meoli, J June 11, 2026 IN THE MATTER OF ARTICLES 10, 22, 23, 27, 43, 47, 50, 118, 174, 196, 199, 209, 210, 258 & 260 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF VIOLATION OF ARTICLES 1, 2, 3, 10, 19, 20, 21, 22, 23, 24, 40, 43, 47, 62(1)(f), 62(3), 93, 94(6), 109, 110, 124, 191, 199(1), 209, 258, 259 AND 260 OF THE CONSTITUTION OF KENYA AS WELL AS THE FOURTH SCHEDULE THERETO AND IN THE MATTER OF SECTIONS 87, 91 AND 104 OF THE COUNTY GOVERNMENTS ACT NO. 17 OF 2012 AND IN THE MATTER OF SECTIONS 125(2) AND 207 OF THE PUBLIC FINANCE MANAGEMENT ACT AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, AND IN THE MATTER OF THE STATUTORY INSTRUMENTS ACT, 2013 AND IN THE MATTER OF THE ALCOHOLIC & DRINKS ACT NO. 4 OF 2010 AND IN THE MATTER OF THE KAJIADO COUNTY TRADE LICENSE ACT NO. 5 OF 2016 AND IN THE MATTER OF THE KAJIADO COUNTY FINANCE ACT, 2014 AND IN THE MATTER OF THE KAJIADO COUNTY ALCOHOLICS DRINKS CONTROL ACT OF 2014 AND IN THE MATTER OF KAJIADO COUNTY FINANCE BILL, 2019 AND IN THE MATTER OF ALLEGED ENACTMENT BY THE COUNTY ASSEMBLY OF KAJIADO OF A LAW THAT IS INCONSISTENT WITH AND/OR IN CONTRAVENTION OF THE CONSTITUTION AND IN THE MATTER OF ALLEGED VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF PERSONS ENGAGED IN THE PRODUCTION, SALE, DISTRIBUTION, CONSUMPTION AND OUTDOOR ADVERTISING OF ALCOHOLIC DRINKS, AND FOR CONNECTED PURPOSES Between Isinya Bar Owners Association Petitioner and County Government of Kajiado 1st Respondent County Assembly of Kajiado 2nd Respondent Ruling 1.Isinya Bar Owners Association (hereafter the Applicant) moved the court via a motion dated 19th October, 2023 and brought pursuant to Section 5 of the Judicature Act, Section 1A, 1B & 3A of the Civil Procedure Act, Rule 3(2) of the High Court (Practice and Procedure) Rules and Order 51 of the Civil Procedure Rules inter alia, seeking the following orders:a.The Honourable Court be pleased to find and hold that Mr. Musa Ngusa who is the Chairperson of Kajiado Liquor Board and Mr. Jonathan Raiyani Simon Saigulu who is the Sub County Revenue Director in contempt of the Honourable Court’s orders given on 19th April, 2021 by Hon. Justice E.C. Mwita.b.The Honourable Court be pleased to hold that as a consequence of the acts of Mr. Musa Ngusa who is the Liquor Director and Mr. Jonathan Raiyani Simon Saigulu who is the Sub County Revenue Director, they be detained in prison for a period of six months or such period that the Court may please.c.The Honourable Court may be pleased to grant such other orders and directions as may be appropriate in the circumstances.d.That the 1st and 2nd Respondents should be condemned to pay costs of this application.’’ (sic) 2.The motion is premised on the grounds on its face as amplified in the affidavit sworn by Stanley Waweru who described himself as a bar owner and the Chairman of Isinya Bar Owners Association, hence conversant with the facts of the matter. The deponent swore that the present petition was prompted by members’ apprehension of an imminent threat of closure of their businesses, based on the actions by the County Government of Kajiado and the County Assembly of Kajiado (hereafter the 1st and 2nd Respondent/ Respondents); that Mwita J (as he then was), had on 19.04.2021 issued conservatory orders restraining the 1st Respondent from implementing liquor licensing charges under the Kajiado County Finance Bill, 2020, and; that the said orders have subsequently been extended by the Court. 3.The deponent further averred that despite the orders above concerning which the Respondents had full knowledge, the Respondents had persistently carried out unwarranted raids against and harassed members of the Applicant, in blatant disobedience of the Court’s order, thereby occasioning interference with their businesses. Here citing unlawful confiscation of members’ keg pumps, specifically serial numbers 191295 and 182808, in contravention of the conservatory orders and in violation of the Petitioners’ rights. The deponent asserted that the Respondents’ conduct demonstrates disregard for the authority of the Court and the Respondents had ignored notices from the Applicant’s counsel, copies of which were exhibited in the affidavit, demanding that they cease the raids and comply with the court orders. 4.The deponent asserted in conclusion that the actions of the Respondents amount to contempt of court and undermine the authority vested in the judiciary by the Constitution. He characterized the conduct of the alleged contemnors as a mockery of judicial authority and that failure by the Court to intervene would diminish public confidence in the administration of justice. He therefore urged the Court to find the named officials in contempt and to enforce its orders so as to preserve the dignity and authority of the Court. 5.The 1st Respondent opposed the motion through the replying affidavit dated 22nd October, 2024 sworn by Judy Neiyeiyo Pere, appointed as the County Executive Committee Member for Public Service, Administration, Social Services, Citizen Participation and Inspectorate Services in the County Government of Kajiado vide Gazette Notice No. 6304 of 17th May 2023. Stating further that she was the Chairperson of the Kajiado County Alcoholic Drinks Control Board, she explained that, following a restructuring of the County Government through Executive Order No. 1 of 2023, the functions of the Kajiado County Alcoholic Drinks Control Board were transferred to her office. Hence, she asserted that she was competent and duly authorized to swear the affidavit on behalf of the 1st Respondent. 6.The deponent in disputing the allegations in the motion contended that the Applicant’s claim is premised on alleged disobedience of conservatory orders issued by Mwita J (as he then was) restraining the implementation of liquor licensing charges under the Kajiado County Finance Bill, 2020. She denied that the County Government or its officials have disobeyed any court order, harassed members of the Applicant, or unlawfully confiscated keg pumps belonging to the Petitioners. Adding that the person named in the contempt motion, Mr. Moses Ngusa, as Chairperson of the Kajiado County Alcoholic Drinks Control Board had never occupied such office. 7.Further, she averred that the 1st Respondent derived its revenue collection powers donated by validly enacted finance legislation. Specifically, the Kajiado County Finance Act, 2023 which was duly published in the Kenya Gazette Supplement No. 15 of 14th November 2023, which law authorized the said Respondent to collect liquor licensing fees and other revenues. Adding that the conservatory orders cited by the Applicant related specifically to the Kajiado County Finance Bill, 2020 and cannot be construed as barring the implementation of subsequent legislation enacted by the County Assembly. According to her, in the year 2023, the Alcoholic Drinks Control Board did not impose liquor licensing charges under the Finance Bill, 2020, hence there was no disobedience of the conservatory orders issued by the Court. 8.Further the deponent asserted that contempt proceedings require a very high standard of proof - “beyond reasonable doubt’’ - contempt of court being quasi criminal in nature. And stating that the burden rests on the Applicant to establish deliberate and willful disobedience of the court order, contended that the Applicant had failed to discharge that burden, in the absence of credible evidence to prove the Applicant’s allegations of raids, harassment and confiscation of property. In her view, the allegations were speculative, unsubstantiated and incapable of sustaining a finding of contempt against the County Government or any of its officers. 9.Consequently, the deponent urged the Court to find that the contempt motion is devoid of merit, and founded on a misunderstanding of the legal framework governing liquor licensing after the enactment of the Kajiado County Finance Act, 2023. She therefore prayed that the application be dismissed with costs to the Respondents. 10.By his further affidavit dated 7th November, 2024, Stanley Waweru, the Chairman of the Applicant reiterated that the 1st Respondent had persistently acted in violation of the conservatory orders issued by the High Court in this matter and that the Respondents’ actions continue to infringe upon the rights of members of the Association. Moreover, stating that despite the conservatory orders, the 1st Respondent deliberately incorporated into subsequent finance legislation the same liquor licensing provisions that had prompted the Court to intervene in the first place. Which action he viewed as an attempt by the 1st Respondent to circumvent the Court’s orders. Repeating his earlier allegations concerning continuous raids conducted against bar owners and other members of the Applicant in blatant disregard of the court orders, he asserted, the Respondents’ conduct demonstrated deliberate refusal to comply with the authority of the Court and had occasioned significant hardship to the affected trader members. 11.Further, he cited criminal cases filed against the Applicant’s members before the Kajiado Chief Magistrate’s Court, including CMCR No. E1098 of 2021, Republic v Teresia Akinyi; Kajiado CMCR No. E1105 of 2021, Republic v Duncan Ojiambo; Kajiado CMCR No. E424 of 2021, Republic v Rachael Ngonyo; and Kajiado CMCR No. 425 of 2021, Republic v Mary Njuguna, as demonstrated in copies of charge sheets exhibited in his affidavit. He contended that the prosecutions were in violation of court orders restraining the enforcement measures complained of in the petition. He therefore urged the Court to reject the Respondents’ position, and to find that the County Government had acted in disregard of the conservatory orders, and consequently grant the reliefs sought by the Petitioners. Submissions 12.The motion was canvassed by way of written submissions. On its part, the Applicant by their submissions dated 19th December, 2024 identified two issues for determination, namely, whether the 1st Respondent is in contempt of the Court’s order and the appropriate relief to be granted. 13.Arguing that obedience of court orders is a fundamental requirement of the rule of law and that no person is at liberty to disregard a court order merely because they consider it irregular or unlawful, the Applicant cited several authorities. Katsuri Limited v Kapurch and Depar Shah [2016] eKLR, Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another, Gulabchand Popatlal Shah & Another v Civil Application No. 39 of 1990, Kenya Human Rights Commission v Attorney General & Another [2018] eKLR. The Petitioner submitting further that the cited decisions establish that courts have inherent power to punish contempt and that deliberate disobedience of court orders undermines judicial authority and the administration of justice. 14.The Applicant reiterating contents of affidavits sworn in support of the motion submitted that the evidence placed before the Court demonstrates willful and deliberate disobedience of the conservatory orders, and relied on the case of St. Mary Academy Limited & Another v Grace Njeri Mukora & Another [2021] eKLR. For the proposition that contempt involves willful conduct and that the standard of proof in contempt cases was beyond reasonable doubt. The Applicant argued that the evidence tendered meets this threshold because, despite the Respondents having knowledge of the conservatory orders, they had deliberately continued to make arrests, mount prosecutions and undertake enforcement measures against members of the Applicant. According to the Applicant, such conduct amounts to a clear and intentional violation of the Court’s authority. 15.Concerning the appropriate remedy, the Applicant cited Republic v Principal Secretary, Ministry of Defence Ex Parte George Kariuki Waithaka [2019] eKLR, Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, and Maina Kiai & Another v Inspector General of Police & 3 Others [2018] eKLR, on the obligation of courts to uphold their authority by punishing deliberate acts of disobedience. The Petitioner arguing that unless sanctions were imposed, public confidence in the judicial process would be eroded and the rule of law undermined. The court was therefore urged to grant the motion with costs. 16.In submissions dated 23rd May, 2025, the 1st Respondent pointed out that the instant petition challenged the legality and constitutionality of liquor licensing charges imposed under the Kajiado County Finance Bill, 2020. And that whereas the Court issued conservatory orders on 19th April 2021 restraining implementation of those charges, the contempt motion is misconceived, as it is premised on allegations arising after the enactment of subsequent finance legislation, specifically, the Kajiado County Finance Act, 2023, which was not the subject of the conservatory orders. 17.Relying on several decisions including Sheila Cassatt Isenberg & Another v Antony Machatha Kinyanjui [2021] KEHC 692 (KLR), Muthusi & 2 Others v Mary Ndila Nyolo [2022] KEELC 2574 (KLR), and Katsuri Limited v Kapurchand Depar Shah [2016] eKLR, the 1st Respondent submitted that contempt of court is a serious quasi-criminal proceeding requiring strict proof to a standard higher than a balance of probabilities, that, there existed a clear and unambiguous court order, that the alleged contemnor had knowledge of the order, that the order was breached, and that the breach was deliberate and willful. Thus, arguing that courts should be cautious in exercising contempt jurisdiction because of its penal consequences. 18.Further reiterating the 1st Respondent’s affidavit material, it was contended that any enforcement activities undertaken pursuant to the Finance Act, 2023 could not amount to a violation of orders directed at the Finance Bill, 2020. The Respondent asserting that there was no evidence that liquor licensing fees were imposed under the impugned 2020 legislation after the Court’s orders were issued. Moreover, the individual cited as the Chairperson of the Kajiado County Alcoholic Drinks Control Board, Mr. Musa Ngusa, never occupied that office, but served as Secretary to the said Board. The Respondent therefore contending that this discrepancy demonstrates the lack of proper factual inquiry by the Applicant before instituting contempt proceedings. 19.Taking issue with the Applicant’s allegations of harassment, raids, arrests, prosecution of members, and confiscation of keg pumps the 1st Respondent asserted that there was no credible evidence linking those actions to breach of the conservatory orders. Consequently, the Applicant had failed to discharge the evidentiary burden required in contempt proceedings. 20.In summation, the 1st Respondent submitted that the contempt motion has not met the requisite standard of proof, having been founded on speculation and unsupported allegations of willful breach of the conservatory orders issued on 19th April 2021. And therefore, ought to be dismissed with costs to the 1st Respondent. Analysis and Determination 21.The court has considered the rival affidavit material and submissions in respect of the motion. The motion before the court was premised inter alia on Section 5 of the Judicature Act which provides that; -“(1)The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.” 22.Black’s Law Dictionary (Ninth Edition), defines contempt of court as “conduct that defies the authority or dignity of a court.” The Court of Appeal in Christine Wangari Gachege v Elizabeth Wanjiru Evans and 11 Others (2014) eKLR stated that in imposing punishment for contempt, the court exercises ordinary criminal jurisdiction. In Stewart Robertson v Her Majesty’s Advocate, 2007 HCAC 63 it was held that:“Contempt of court is constituted by conduct that denotes willful defiance of or disrespect towards the court or that willfully challenges or affronts the authority of the court or the supremacy of the law, whether in civil or criminal proceedings.” 23.The law regarding contempt of court is now settled. Contempt proceedings are quasi-criminal in nature and attract serious penal consequences. The burden rests upon an applicant to prove, to a standard higher than a balance of probabilities though not exactly beyond reasonable doubt, that there existed a clear and unambiguous court order; that the alleged contemnor had knowledge of the order; that the contemnor acted in breach of the order; and that such breach was deliberate and willful. These principles have been restated in numerous decisions. 24.The Supreme Court of Kenya in Republic v Ahmad Abolfathi Mohammed & Another (2018) eKLR in addressing the raison d’étre of the law of contempt observed as follows:“[24]In Econet Wireless Kenya Ltd v. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim J (as he then was) relied on the Court of Appeal decision in Gulabchand Popatlal Shah & Another Civil Application No. 39 of 1990 (unreported), where the Court of Appeal stated as follows:“It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors... In HADKINSON v. HADKINSON (1952) 2 All E.R. 567, it was held that: It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.” …[26]The Court of Appeal in A.B. & Another v R.B., Civil Application No. 4 of 2016 [2016] eKLR cited with approval the Constitutional Court of South Africa’s decision in Burchell v. Burchell, Case No.364 of 2005 where it was held:“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the court and requires other organs of the state to assist and protect the court. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively have the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.” …[28]It is, therefore, evident that not only do contemnors demean the integrity and authority of Courts, but they also deride the rule of law. This must not be allowed to happen. We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234 the Court of Appeal held that:“In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.” 25.The Supreme Court proceeded to explain the rationale for the high standard of proof in contempt cases in the following terms:“(29)The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court Order”. 26.The key issue falling for determination here is whether the Applicant has proved as against the named individuals, actions amounting to contempt of the Court's orders issued on 19th April 2021 and, if so, what orders should issue. There is no dispute that conservatory orders were issued on 19th April 2021 restraining the Respondents from implementing the liquor licensing charges under the Kajiado County Finance Bill, 2020. Equally, it is not disputed that the County Government was aware of those orders. The first two elements constituting contempt have therefore been established. The dispute centres on whether the Applicant has demonstrated that the alleged contemnors acted in breach of the order and that such breach was deliberate and willful. 27.The Applicant's case is founded on allegations that its members were harassed, their businesses raided, keg pumps confiscated and criminal charges preferred against some of them. In proof of the latter, the Applicant exhibited copies of charge sheets relating to assorted criminal prosecutions before the Kajiado Chief Magistrate's Court. While these documents may demonstrate that some of the Applicant’s members were prosecuted for offences relating to liquor licensing, they do not, without more, establish that the prosecutions were undertaken pursuant to the Kajiado County Finance Bill, 2020, as opposed to subsequent legislation enacted by the County Government in 2023. The conservatory orders in this case were specific to the Finance Bill, 2020 and contempt cannot be inferred merely because the Respondents subsequently undertook enforcement activities relating to liquor licensing. The Court must be satisfied that the impugned actions were in direct violation of the specific order issued. 28.On its part, the 1st Respondent has explained that by the time the contempt motion was filed, the County Government was operating under the Kajiado County Finance Act, 2023, and not the 2020 Finance Bill impugned in the present petition. Although the Applicant argues that the County merely reintroduced, in later legislation, the same provisions challenged through the present petition, that contention properly belongs to any challenge brought concerning the legality and constitutionality of the subsequent enactments. In the absence of other cogent evidence, the activities and prosecutions alleged herein against the alleged contemnors, which came after the orders of this court cannot constitute proof of contempt of an order admittedly directed at implementation of the Finance Bill, 2020. 29.The Court also notes that the Applicant names Mr. Musa Ngusa as an alleged contemnor on the basis that he is the Chairperson of the Kajiado Liquor Board. The replying affidavit by the 1st Respondent traverses that assertion, and the Applicant has not placed before the Court any firm evidence to support its allegation. Given the penal nature of contempt proceedings, the identity and capacity of the alleged contemnor must be established with precision before adverse orders can issue. 30.Moreover, although allegations have been made regarding raids, confiscation of property and harassment, the evidence presented does not sufficiently demonstrate that such actions were undertaken in direct defiance of the conservatory orders. The Applicant relies largely on generalized assertions and copies of charge sheets without establishing the necessary nexus between those actions and the specific provisions whose implementation had been suspended by the Court. Contempt cannot be founded on suspicion, inference or perceived non-compliance; it must be proved by clear and cogent evidence. In the result, the court is unable to find on the material before it that the key elements of actions in breach of the order and that such breach was deliberate and willful as proved against the alleged contemnors. 31.Thus, while the Court is alive to the importance of preserving its authority and ensuring compliance with its orders, that authority is best preserved by applying the law consistently and upholding the high standard of proof required in contempt proceedings. In other words, before returning a verdict of guilty and therefore imposing penal sanctions against an alleged contemnor, the Court must first ascertain that the material before it satisfies the requisite high standard of proof, which threshold has not been met in this case. The motion dated 19.10.2023 is therefore without merit and is dismissed with costs to the 1st Respondent. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 11TH DAY OF JUNE 2026.C.MEOLIJUDGEIn the presence of:For the Applicant: Mr. OketchFor the 1st Respondent: Ms. KataoFor the 2nd Respondent: N/AC/A: Lepatei