[2022] KEHC 245 (KLR)

John Macharia Gichoho t/a Kioo Hotel Jobis Distributors, Thingira Bar & Restaurant & Zambezi Bar &Restaurant v Nyeri County Alcoholics Drinks Regulation Committee, County Government of Nyeri (Civil Appeal E3 of 2020) [2022] KEHC 245 (KLR) (25 March 2022) (Judgment)

Neutral citation: [2022] KEHC 245 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Appeal E3 of 2020

A Mshila, J

March 25, 2022

Between

John Macharia Gichoho t/a Kioo Hotel Jobis Distributors, Thingira Bar & Restaurant & Zambezi Bar & Restaurant

Appellant

and

Nyeri County Alcoholics Drinks Regulation Committee, County Government of Nyeri

Respondent

Judgment

1. The Appellant had applied for a liquor license for the year 2020-2021 for his four (4) businesses to the Mukuruweini Sub-county Alcoholics Drinks Regulation Committee which declined to renew the said licenses. He then appealed the decision to the Respondent which on the recommendations of the sub-committee equally declined to renew the liquor licenses for the four (4) businesses.

2. Being aggrieved with the decision of the Respondent the Appellant filed this instant appeal and listed seven (7) grounds of appeal which are summarized hereunder;-i.The committee erred in failing to address the issues the Appellant had raised relating to each and every one of his four (4) businesses;ii.The committee failed to consider the reason for the objection raised for the license which was based on the tiny rooms; whereas during the previous year the respondent had approved the same; there was a miscarriage of justice done;iii.Failing to consider the validity of the objection raised for the license for Jobis Distributors on the grounds that it was non-existent; whereas it had been fully operational since 15/04/2016 and the same county had been issuing this business with licenses throughout this period;iv.The Respondent failed to consider the objection raised to granting a license to Thingira Bar and Restaurant on the grounds that it had semi illegal structures, yet these structures were used for storage and not for alcohol consumption; and also failing to consider that the impracticability of the appellant building permanent structures when it was a mere tenant;v.Failing to consider the validity of the objection raised on the grounds that there was a subsisting Landlord/Tenant dispute which was pending in court;vi.The Respondent failed to give reasons for all the issues raised in the various appeals.

3. When this Appeal came up for hearing, the parties were directed to file and exchange written submissions. Hereunder is a summary of the parties rival submissions;

Appellants Case 4. The Appellant submitted the respondent erred in not approving the license for Zambezi Bar and Restaurant on the basis that the Appellant has a pending case with the landlord and that the business illegally relocated from Plot 46 Mihuti to 833 Gatura. The appellant further stated that the Nyeri County Alcoholic Drinks Control and Management Act 2014 does not stipulate that the committee ought to disapprove a liquor license due to a pending case between the applicant and the landlord. Furthermore, the issue of relocation of the business was never subject to the findings of the Mukuruweini Sub County Regulation Committee and thus no evidence was brought forth or presented either at the sub-county or the county level.

5. The Appellant contended that the Respondent erred in declining to renew the license for the business, Jobis Distributors by stating that the said business was sold to Waemba Wines and Spirits. The Appellant submitted that there was no evidence of sale of the business and what the Respondent presented did not amount to a sale agreement but was more of a business partnership. The documents as presented by the Respondent showed that the business was sold to Simon Maina Wangondu however it claimed that the said business was sold to Waemba; and no mention of the sale was made in the minutes by the respondent dated 23/09/2020.

6. The Appellant stated that the Respondent declined to renew his business license for Kioo Hotel on the basis of physical planning; from the minutes dated 23/09/2020 the respondent contends to have brought forth an enforcement notice. However, the Appellant denied having been served with a formal notice and that the issues that led to the non-approval of the license as regards Kioo Hotel do not touch on physical planning issues.

7. As regards Thingira Bar and Restaurant the license was not approved due to physical planning issues and illegal relocation from Plot 8 Mweru to 46 Muhuti, to which the appellant stipulates that no evidence was presented as to the illegal relocation from Plot 8 Mweru to 46 Muhuti. As such the Appellant prayed that the court finds that the appeal has merit and to allow the appeal and costs of the appeal be provided for.

Respondents’ Case 8. In opposing the appeal, the Respondent relied on Section 16(2) and Section 18(5) of the Nyeri County Alcoholics Drink Control and Management Act 2014 and submitted that it acted within the confines of the law in not renewing the Appellants liquor licenses; and submitted that the Appellants four premises had issues. The Respondent had relied on the recommendations of Mukuruwieni Sub-County Alcoholics Drinks Regulation Committee and the appellant resolved that in respect of Zambezi Bar and Restaurant, since there was a pending matter in court, the application for a license could only be reviewed once the matter was concluded by the court. In respect of Kioo Hotel, the premises had changed hands and was no longer operating under the Appellant, a fact confirmed by the Appellant. With respect to Jobis Distributors, the premises no longer exist in the old location as it was relocated illegally and the Appellant ought to apply afresh in the new location; with respect to Thingira Bar and Restaurant, the appellants request to retain the illegal structures at the premise could only be considered by the physical planner at the county level once he applied for their approval.

9. The Respondent then recommended that the Appellant do apply afresh for the liquor licenses for the year 2020-2021 where the applications were to be considered afresh. The Respondent reiterated that it acted within the law in recommending that the appellant does not apply afresh for the liquor license for the year 2020-2021 and that no prejudice would be occasioned to the Appellant in applying afresh for the liquor license if he met all the conditions for the liquor licensing. As such the Respondent submitted that the Appeal lacked merit and should thus be dismissed.

Issues for Determination 10. After having read the written submissions filed by both parties and having perused the Record of Appeal this court has only framed one issue for determination which is;

i. Whether to the Respondent was justified in disapproving the renewal of the appellant’s liquor license for his four businesses;Analysis 11. This court being the first appellate court it is incumbent upon it to re-evaluate and re-assess the evidence on record and arrive at its own independent conclusion. Refer to the Court of Appeal case of Kiruga v Kiruga & another [1988] KLR 348 it observed that‘An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.’

Whether to the respondent was justified in disapproving the renewal of the appellant’s liquor license for his four businesses; 12. The question that arises is whether the respondent declined to renew the licenses in line with Section 16(2) of the Act. The section enumerates the appropriate reasons for refusing to renew an existing license and it reads as follows;‘County Committee may refuse to renew an existing license only when the County Committee is satisfied that:-a.The licensee is not fit and proper person to hold a license; orb.The licensee has been convicted of an offence under this act or any other act at any time in force regulating the manufacture, distillation, distribution, sale of an alcoholic drink for more than three times within one year; orc.Has been convicted of an offence and sentenced to imprisonment without the option of a fine in Kenya or elsewhere for a period in excess of six months; ord.The business to which the license relates is conducted in a manner that is in breach of this act, or any other regulations for the time being in effect, or conditions set by the County Committee; ore.The conditions of the license have not been satisfactorily fulfilled; orf.The premises to which the license relates are not in a proper state of repair, or are not provided with proper sanitary arrangements, or do not comply with reasonable requirements of the sub-county public health officer and the owner of the premises of the licensee refuses or is unable to give a satisfactory guarantee that necessary repairs will be carried out, or due compliance effected, as the case may be, within a time specified by the sub-county committee.

13. On perusal of the minutes of the County Committee dated 23/09/2020, the committee considered the recommendations by Mukuruwieni Sub-County Alcoholics Drinks Regulation Committee and the representations of the appellant on each of his four premises. It was after these deliberations that the Respondent declined to renew the licenses to the appellants four businesses;

14. The respondent argued that with regard to Zambezi Bar and Restaurant since there was a pending matter in court any further discussions on the matter would be sub judicial to the court process. It therefore resolved to review and discuss the issues once the case was concluded by the court. From the Appellants deliberations it is noted that he confirmed to the Respondent that the case concerned structural alterations made to the building without the owners authority. This court concurs with the Respondent’s resolution that as the matter was pending in court it would be sub-judicial to deliberate on the issue before the matter is determined by the relevant court.

15. As for the Kioo Hotel the committee noted that the premises had changed hands and it was no longer operating under the appellant. From the minutes the appellant confirmed that he no longer operates the facility and had leased it out to Edwin Wabacha Wambugu for a term of five (5) years from the 5th September, 2019. The Appellant argued that he was never served with a formal committee noted that the premises had changed hands and was no longer operating under the Appellant. From the minutes the appellant confirmed that he no longer operated the facility and had leased it to Mr. Edwin Wabacha Wambugu for a term of five (5) years from 5th September, 2019 and the monthly rent payable was Kshs.45,000/-. He also confirmed that he had not applied for change of ownership as required under the act but only visited the sub county administrator where he was advised that the changes would be effected later on. Both the sub-county and county declined to renew his license because the Appellant did not comply with the physical planning regulations. Though the Appellant when given a chance to respond to the allegations argued that he was never served with a formal Enforcement Notice; but upon perusal by this court of the Notice which was annexed it does indicate that the Notice was duly served by a Robert Waigwa on the 15th November, 2019 upon the appellant.

16. Going to Jobis Distributors, the committee noted that the business no longer existed in the old location and concluded that it was relocated illegally. For the new business location it was incumbent upon the Appellant to apply afresh for a fresh license. Further the payment of Kshs.2,000/- could not be linked as payment for relocation of this facility as it was only paid on 9/09/2020. The Appellant when given a chance to respond to the allegations stated that his business was operating on Plot No.893 but he later relocated it and that he did not notify the sub-county administrator about the relocation. Notably the committee observed that the sub county administrator had earlier reported on the existence of an illegal wines and spirits outlet operating without a license when the county committee visited the area it was confronted by the appellant;

17. This court is satisfied that the Respondent was within its ambit to disapprove the renewal of the license with respect to this business as the Appellant was found to be operating his business in another location albeit illegally. It would have been prudent upon him to have applied for the requisite license for that new location.

18. In addressing Thingira Bar and Restaurant, the committee resolved that the Appellant’s request to retain the illegal structures on the said premises could only be considered by the physical planner at the sub-county level once the appellant tendered in his application for approval. The Appellant stated that his business was licensed to operate from Plot No.46 Muhuti and confirmed that the structures had not been approved by the relevant county department but stated that even though he was made aware of the illegal structures on his plot by the Sub-County Administrator he was never served with a formal notice of Non-Compliance.

19. The Respondent therefore concluded that there were illegal structures on the premises that had not been approved by the relevant county department as the appellant had not sought for any approvals.

20. This court finds no good reason to interfere with the Respondents decision to disapprove the license with regard to this business premise as the Appellant did not adhere to the conditions as set out by the sub-committee, a fact the he admitted to.

21. The Respondent made the observations that the Appellant had been in the liquor business since 2013 and as such cannot claim that he was not aware of the legal provisions relating to the liquor licensing process.

22. Having re-evaluated and re-assessed the grounds raised in this appeal this court is satisfied that the decision made by both the Mukuruweini Sub County Alcoholic Drinks Regulation Committee made on 11/11/2019 and 4/12/2019 rejecting the Appellants application for renewal of the liquor licenses in respect to his four businesses and the Respondent’s Regulation Committee held on 23rd September, 2020 upholding the sub county’s decision to reject the application for the renewal of the licenses was within the confines of Section 16(2) of the Act.

23. This court finds that the grounds of appeal are found to be devoid of merit and the same are hereby disallowed.

Findings And Determination 24. For the forgoing reasons this court makes the following findings and determinations;i.This court finds that the Respondent was justified in disapproving the renewal of the Appellant’s liquor license for his four businesses;ii.The appeal is found to be devoid of merit and it is hereby dismissed;iii.The decision of the Report is hereby upheld;iv.Each party shall bear their/its own costs on this appeal.Orders Accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS DAY OF 25THMARCH, 2022. HON.A.MSHILAJUDGEIn the presence of;Mr. Macharia for the RespondentNo appearance for the ApplicantKinyua------------------------Court Assistant