https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11490

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CONSTITUTIONAL PETITION NO. E018 OF 2025** **IN THE MATTER OF ARTICLES 1(1), 2, 3(1), 10, 19, 20, 22, 23, 47, 48, 49, 50, 157(11) AND 232 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF VIOLATION OF ARTICLES 47, 48, 49, 50, 157(11) AND 232 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF SECTIONS 2, 3, 4(4) AND 7(2) OF THE FAIR ADMINISTRATIVE ACTION ACT, NO 4 OF 2015** **AND** **IN THE MATTER OF SECTIONS 4 AND 14 (5) OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT** **BETWEEN** **MERCY NJAMBI KARARI……………………………….….1ST PETITIONER** **MARY NYAMBURA………………………………………...2ND PETITIONER** **SOLOMON GITHAIGA KARARI…………………………3RD PETITIONER** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTIONS………………1ST RESPONDENT** **THE INSPECTOR GENERAL OF POLICE……………….2ND RESPONDENT** **THE ATTORNEY GENERAL…………………….………...3RD RESPONDENT** **SIMON BARASA………………………………………….....4TH RESPONDENT** **GIDEON KIPNG'ETICH…………………………..………..5TH RESPONDENT** **KEVIN WANJAMA…………………………………………..6TH RESPONDENT** **AND** **THE COUNTY GOVERNMENT OF NAKURU………INTERESTED PARTY** **JUDGMENT** 1. The Petitioners herein moved this Court vide a petition dated 4th March, 2025, and amended on 14th May, 2025. They are described as Kenyan citizens residing and working for gain within Nakuru County. Collectively, they are represented in this matter by Mucheru Law LLP Advocates. 2. The **1st Respondent** is the occupant of an office created under article 157(1) of the Constitution of Kenya 2010. He has the powers of public prosecution, which he exercises either directly or through delegated officers. 3. The **2nd Respondent** is the occupant of an office created under article 245(1) of the Constitution of Kenya and is empowered to exercise independent command over the National Police Service. 4. The **3rd Respondent** is the occupant of an office created under article 156(1) of the Constitution of Kenya 2010. The holder thereof is the Principal Legal Advisor to the Government of the Republic of Kenya and is empowered to represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings. 5. The 4th and 6th Respondents are police officers working under the supervision and direct command of the 2nd Respondent. The Interested Party is the County Government of Nakuru, as recognised under Article 176(1) of the Constitution of Kenya. 6. The factual basis of the Petition is that the 1st and 3rd Petitioners are entrepreneurs who operate a bar trading under the name "*Ballerz*" (hereinafter the business premises). They have employed the 2nd Petitioner as an attendant at the said bar. 7. On 14th March 2024 at around 9 pm, while the 2nd Petitioner was at the business premises, three officers, being Simon Barasa, Gideon Kipng'etich and Kevin Wanjama(The **4th to 6th Respondents**), under the command and control of the 2nd Respondent and/or his subordinates, suddenly appeared and accused her of selling alcoholic drinks without a license. 8. It is stated that 1st Petitioner was called and came to the business premises and explained to the said officers that she had applied for a license. That the Interested Party, which is the licensing authority, had granted a moratorium or grace period on enforcement of the requirement to have a license as it processes applications. The reason being that the process of approving licenses is laborious, requiring various verifications. 9. The Petitioners state that they informed the 4th to 6th Respondents about the existence of the moratorium as evidenced by the Interested party’s letter dated 21st February 2024 addressed to the County Commander, National Police Service. 10. They state that a moratorium or grace period applied to the Petitioners as they were not new applicants, having held a license for the previous year, 2023. 11. Despite being informed as foregoing, the Petitioners aver that the 4th to 6th Respondents proceeded to arrest the 2nd Petitioner, accusing her of selling alcohol without a license and refused to record her statement. 12. The Petitioners state that they also wrote to the 1st Respondent appraising his office of the situation on 13th January, 2025 and made it clear that they were arrested whilst in the process of obtaining a license and that the Interested Party had given them a grace period of 3 months for compliance. As such, they had a legitimate expectation that they would not be arrested and/or harassed for running the business premises. 13. It is stated that by writing to the 1st Respondent, the Petitioners sought to request ODPP to review its decision to charge. However, notwithstanding the foregoing, the 1st Respondent brought charges against the Petitioners, which is a violation of the doctrine of legitimate expectation and the Petitioners' Bill of Rights. 14. As it stands, therefore, the Petitioners are co-accused persons in MCCR No. E680 of 2024- Republic -vs- Mercy Njambi Karari & Mary Nyambura & Solomon Githaiga Karari (hereinafter referred to as "the criminal case"). The charge preferred being selling alcoholic drinks without a liquor license, contrary to Section 7(1)(b) as read with Section 62 of the Alcoholic Drinks Control Act No. 4 of 2010, Laws of Kenya. 15. Accordingly, the Petitioners seek orders to quash the proceedings in the criminal suit and the decision by the 1st Respondent to prefer charges against them. 16. The Petitioners state that under the Constitution, this Court has jurisdiction to hear any question with respect to whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened under Article 165 (3) (b) and whether anything said to be done under the authority of the Constitution or whether any law is inconsistent with or in contravention of the Constitution at Article 165(3) (d). 17. Additionally, that this Court is empowered under the Constitution to hear and determine any Applications relating to the denial, violation, infringement and/or threat to any rights in accordance with Article 23(1) of the Constitution. 18. They state that this Court equally has the jurisdictional authority to grant reliefs including a declaration of rights, a conservatory order, an injunction, a declaration of invalidity of a law, an order for compensation and an order for judicial review in accordance with Article 23(3) of the Constitution. Hence, this Court has at its disposal several constitutional tools to rectify actions complained of by the Petitioners. 19. The Petitioners’ case is anchored on several key allegations of illegality and unconstitutionality, primarily centred on an alleged breach of the principle of legitimate expectation. It is pleaded that the Petitioners were arrested for operating a bar without a license despite being in the process of compliance. 20. They state that the Interested Party (the County Government of Nakuru) had issued a formal letter on 21st February, 2024, establishing a grace period for all licensees to operate while applications were being processed. In those circumstances, the Petitioners contend that they held a well-founded expectation that they would not be subject to arrest or prosecution during this window. 21. Thus, by ignoring this moratorium, the 2nd to 6th Respondents are alleged to have acted with a lack of fairness and reasonableness, violating Article 47 of the Constitution and Section 7(2)(m) of the Fair Administrative Action Act. 22. Furthermore, the Petitioners allege a failure of the Public Interest Test by the 1st Respondent. They argue that the Director of Public Prosecutions failed to determine whether the decision to charge was in the interest of the wider administration of justice, as required by Article 157(11). 23. The Petitioners argue that instituting criminal proceedings in the face of a legally binding moratorium is a *prima facie* illegality that undermines the rule of law. It is pleaded that such a decision violates Section 4 of the ODPP Act and that, had the 1st Respondent properly considered the unique circumstances and the administrative grace period as required by Section 14 (5)(c), no charges would have been preferred. 24. The Petitioners further argue that there was a failure of the *Threshold Test,* asserting that the 1st Respondent did not reasonably apply the guidelines on the decision to charge. They argue that since a conviction would be unattainable given the legal grace period, the decision to charge was procedurally improper. 25. Further to the above are allegations of a breach of the rights of an accused person, where the 2nd and 6th Respondents are said to have denied the Petitioners their right to record a statement, thereby suppressing their ability to adduce evidence under Article 50(2)(k). 26. Moreover, the 1st Respondent is accused of violating Article 50(2)(n) by charging the Petitioners for an act that, due to the moratorium, did not constitute an offence at the material time. 27. Lastly, the Petitioners highlight a failure by the 1st Respondent to provide written reasons or an opportunity to be heard regarding the Petitioners' request for a review of the charges, which the Petitioners cite as a breach of the Fair Administrative Action Act. 28. As a direct consequence of these alleged actions, the Petitioners claim to have suffered significant injuries and loss, including state-imposed social stigma, Psychological and emotional trauma, damage to their reputations, and financial constraints arising from legal fees and loss of work during the pendency of these criminal accusations. 29. Accordingly, the Petitioners sought the following reliefs;- 30. ***A declaration that the arrest, detention and charges against the Petitioners are illegal, arbitrary and a violation of Article 19, Article 20(1), Article 47(1) & (2), Article 48, Article 49, Article 50(2)(k) & (n) and Article 157(11) of the Constitution of Kenya, 2010;*** 31. ***A declaration that the conduct of the Respondents is contrary to Articles 10 and 232(1)(a) & (e) of the Constitution on the principles of good governance and public service;*** 32. ***A judicial review order in the nature of certiorari quashing the decision by the 1st Respondent to charge the Petitioners herein;*** 33. ***A judicial review order in the nature of certiorari quashing the proceedings in Nakuru Criminal Case No. Cr. 680 of 2024- Republic -vs- Mercy*** ***Njambi Karari & Mary Nyambura;*** 34. ***Conservatory Orders seeking to stop the proceedings in Nakuru Criminal Case No. Cr. 680 of 2024- Republic -vs- Mercy Njambi Karari & Mary Nyambura pending hearing and determination of this petition;*** 35. ***An order for damages to the Petitioners for the violations suffered;*** 36. ***The costs of and incidental to this petition;*** 37. ***Interest on the sums awarded under Orders (i) and (j) above at court rates with effect from the date of filing this Petition until the date of full and final settlement;*** 38. ***Such other, further, additional, incidental and alternative reliefs as the Honourable Court may deem just, expedient and appropriate.*** 39. Contemporaneously, the Petitioner filed a Notice of Motion dated 4th March, 2025 and expressed under Article 23(3)(c) of the Constitution of Kenya, 2010 and Rules 23 & 24(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. Seeking the following orders;- 40. ***Spent.*** 41. ***Spent.*** 42. ***This Honourable Court be pleased to issue conservatory orders staying the proceedings in Nakuru Criminal Case No. Cr. 680 of 2024- Republic -vs- Mary Nyambura pending hearing and determination of this instant petition.*** 43. ***This Honourable Court be pleased to issue any other orders it deems just and expedient in the circumstances.*** 44. ***The costs of this application be provided for.*** 45. The grounds are the face of the Notice of Motion and supported by the Affidavit of the 1st Petitioner, sworn on the same date. The deponent contends that the Petitioners were arrested and charged for operating a liquor business without a license despite a grace period issued by the County Government of Nakuru, which allowed licensees to trade while awaiting license approvals. 46. She argues this violated their legitimate expectation under **Article 47** of the Constitution and the **Fair Administrative Action Act**, as they believed they would not be harassed during this period. They assert that the resulting criminal case (Nakuru Case No. Cr. 680 of 2024) is founded on illegal and arbitrary arrests, and that failure to grant conservatory orders would cause them prejudice and render their constitutional petition nugatory. **1st Respondent’s Response** 1. While outlining the constitutional and statutory mandate of the 1st Respondent, Mr Kihara for the 1st Respondent opposed both the Notice of Motion and the Petition vide his Replying Affidavit sworn on 17th July 2015. He stated that the matter in issue was availed by Nakuru Central Police Station and that the 4th, 5th and 6th Respondents were the arresting officers. Referring to the alleged Moratorium, he deponed that the Petitioners failed to annex any documents to confirm that the filed documents pertaining to the application for licence, while awaiting the licence. Further that they did not confirm that a receipt was issued to confirm that they applied for the licence as they alleged. 2. While emphasising the circumstances under which the 2nd Petitioner was arrested on 14th March 2025, 1st Respondent argued that following an upsurge in sales of illegal /illicit liquor that had caused deaths and other serious health complications. Regarding the allegation of selective charging directed at the 2nd Petitioner, he averred that the 2nd Petitioner and other suspects were arrested in a swoop that was conducted in larger parts of Nakuru and its environs. That there was already an order made for the arrest of all bars and restaurant owners and other establishments that sold liquor without a licence. 3. He deposed that the 1st Respondent was not furnished with the Notice by the Interested Party at the time but from the letter, but only copied to the CECM Co-Operative, Tourism and Culture, Nakuru County Commissioner, enforcement officer – Nakuru County, Subcounty administrators and Trade officers /secretaries Liquor regulation committee dated 21st February, 2024. 4. He therefore deponed that the Act in question came into effect in the year 2020 and that the law cannot be dispensed with. That the Alcoholic Drinks Control Act is applicable countrywide and no pronouncement can suspend the said Act. 5. He argued that there was strong evidence to support the contravention of the Act and therefore, the criminal case before the trial court should proceed to its logical conclusion. **2nd to 6th Respondent’s Response** 1. PC Gideon Kipngetich of Nakuru Police Station, the 5th Respondent, swore the Replying Affidavit on behalf of the 2nd to 6th Respondents on 14th May, 2025, having been involved in the investigations in this matter. 2. He recounts that on 14th March, 2024, at approximately 7:00 PM, the officers found the Petitioners selling alcohol without a valid license at "Tai One Bar & Restaurant" and subsequently arrested them. He asserts that the arrest was lawful and executed within the constitutional and statutory mandates of the police. 3. He maintains that the arrests were based on reasonable suspicion and were part of the police mandate to prevent and investigate crime, rather than being arbitrary violations of rights. He states the arrest aligned with a national policy to curb unlicensed alcohol outlets, citing a 2020 Gazette Notice that established the National Alcohol Control Committee. 4. He explains that investigations revealed inconsistencies between the business's operating identity and the details on its expired license, questioning the legality of the enterprise. He points out a specific discrepancy where the physical signage read "*Tai Bar & Restaurant*," but the displayed 2023 license was issued to *"Ballers Bar & Restaurant*." 5. He further notes that the 2023 license for "Ballers Bar & Restaurant" did not match the 2024 license issued to "Solomon Githaiga Karari," which the Petitioners relied upon. Further, the Petitioners lack locus standi to bring the petition because their names do not appear on either the 2023 or 2024 licenses. He contends that the Petitioners failed to utilise the grace period ending 31st March, 2024, as the license they provided was not issued until 13th August, 2024. 6. He argues there is no urgency for conservatory orders since the criminal case hearing is set for 22nd September, 2025, allowing the Petitioners to seek redress in that forum. In conclusion, the Respondent urges the court to dismiss both the Application and Petition with costs. 7. Through a further affidavit sworn on 31st July 2025, the 1st Petitioner challenges the Respondents' assertions by first addressing evidentiary and jurisdictional concerns. She argues that the photograph marked as "GK-1" is inadmissible and should be struck out because it lacks the mandatory certificate required under Section 106B of the Evidence Act for electronic records. 8. Regarding their business operations, she reiterates that the 1st and 3rd Petitioners operated a bar in Nakuru County known as "Ballerz" under 2023 and 2024 licenses that were lawfully issued by the County Government and never revoked. She further contends that the police acted without a legal mandate or Gazette Notice when they purported to verify these licenses, as that authority belongs exclusively to the County Government. She points out that the actual criminal charge filed against the 2nd Petitioner was for selling alcohol without a license, not for possessing forged or irregular documentation. 9. Addressing the conduct of the State during the subsistence of a moratorium on enforcement action, she highlights the Respondents' admission that the 2nd Petitioner was arrested on 14th March 2024 and subsequently charged, which she maintains was a blatant disregard of the moratorium. 10. She asserts that this arrest constituted an arbitrary exercise of police power and a gross violation of constitutional rights, including the right to fair administrative action and equal protection under the law. Procedurally, she explains that since the licensing process begins with inspection and approval, the applicants were entitled to operate during the moratorium period once those preliminary steps were satisfied, regardless of whether a formal physical license had been issued. 11. The 1st Petitioner claims the Director of Public Prosecutions failed to perform due diligence by approving charges without verifying the licensing status or the moratorium with the County Government. Despite being formally notified of these facts, the 1st Respondent allegedly continued the prosecution, demonstrating an institutional indifference. 12. She clarifies that the Petitioners had a legitimate expectation to operate without interference and that the moratorium was a lawful exercise of the licensing authority’s powers under Section 14(1) of the Alcoholic Drinks Control Act. Accordingly, given that the legality of the moratorium remains unchallenged, she concludes that it must be treated as the valid intention of the County Government and that it is in the interest of justice for the court to grant the prayers sought **Petitioners’ Submissions** 1. They submitted on seven issues;- 2. *W****hether the Petitioners, jointly or severally, breached the Principle of Legitimate Expectation by arresting and charging the 1st & 2nd Petitioners herein;*** 3. ***Whether the 1st Respondent was in breach of the Public Interest Tests by deciding to charge the 1st & 2nd Petitioners herein;*** 4. ***Whether the 1st Respondent was in breach of the Threshold Test by instituting criminal proceedings against the 1st & 2nd Petitioners herein;*** 5. ***Whether the 1stand/or 2nd Petitioners' rights as accused persons were jointly or severally breached by the Respondents;*** 6. ***Whether the charges against the 1st & 2nd Petitioners were valid at the time of the arrest;*** 7. ***Whether the Respondents assertively and expansively defended against the pleas raised by the Petitioners; and*** 8. ***Whether the Petitioners are entitled to the prayers sought in the instant petition.*** 9. On the **first issue**, the Petitioner submitted that following the issuance of the notice of a grace period by the Interested Party herein, they had a legitimate expectation that all relevant stakeholders, including public offices such as the 1st and 3rd Respondents, would abide by the notice of the grace period. To support this, reliance was placed on the case of ***Oindi Zaippeline & 39 Others V Karatina University & Another [2015] eKLR*** where the Court held that:- ***“Legitimate expectation" is a doctrine well recognised within the realm of administrative law. In re Westminster City Council, [1986] A.C. 668 at 692 (Lord Bridge): "...the courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation. Legitimate expectation applies the principles of fairness and reasonableness to the situation in which a person has an expectation, or interest in a public body retaining a long-standing practice, or keeping a promise. An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil a promise."*** 1. Further reliance was placed on the case of ***Onyancha & another (Suing on behalf of the proposed, Kenya Medical Doctors' Union) v Registrar of Trade Union (ROTU) & another (Petition E017 of 2023)[2024]KEELRC 8 (KLR)*** that laid out the requirements for the doctrine of legitimate expectation, must be clear, unambiguous, and devoid of relevant qualification. This expectation must be reasonable and induced by the decision-maker, who must have possessed the legal competence and authority to make such a representation. 2. Furthermore, the requirement must be sensible and align with the principles of administrative fairness, balancing the interests of the subject with the need to protect public officials from the risk that unwitting or ambiguous statements might inadvertently create binding legal expectations. Ultimately, if a party relies on a statement without seeking necessary clarification, they do so at their own peril, as the reliance must be both lawful and justifiable to be considered legitimate. 3. The Petitioners submitted that the licensing moratorium was an unambiguous representation issued by the County Government to protect business owners during an ongoing inspection and renewal phase. They argued that the directive specifically instructed enforcement officers to cease arrests for expired licenses and focus only on term violations, a measure intended to prevent the unnecessary prosecution of applicants who lacked valid permits due to administrative delays rather than personal fault. Consequently, the Petitioners maintain that their reliance on this reasonable and unqualified grace period was justified to ensure their business was not crippled by the inaction of the licensing authority 4. The Petitioners further argued that the licensing moratorium was a valid representation because it was issued voluntarily by the Interested Party (*suo moto*) rather than at the request of any specific individual, making the Petitioners' reliance on it reasonable. They maintained that the directive was legally sound under **Section 14(1) and (4) of the Alcoholic Drinks Control Act**, which empowers the Licensing Committee to manage license renewals and mandates that an existing license remains in force if a renewal decision is still pending. 5. They submitted that by issuing the grace period, the Interested Party was effectively operationalising these statutory provisions, thereby entitling the Petitioners to a legitimate expectation that they would not be prosecuted while their renewals were being processed. Consequently, the Petitioners submitted that the Respondents’ actions in arresting and charging them constituted a direct breach of this doctrine. 6. The Petitioners argued that the decision to charge them was a fundamental breach of the **Public Interest Test** and a violation of **Article 157(11)** of the Constitution, which requires the Director of Public Prosecutions to prevent the abuse of the legal process. They contended that instituting criminal proceedings in the face of a legally binding moratorium is a *prima facie* illegality that undermines the rule of law and erodes public confidence in the integrity of the justice system. 7. They argued that the Respondents' deliberate disregard for the licensing authority's directive caused significant injustice to the Petitioners and created a state of anxiety and chaos within Nakuru County. Furthermore, the Petitioners asserted that the prosecution fails the **Threshold Test** as there can be no reasonable prospect of conviction in the circumstances herein. 8. While citing the case of ***Law Society of Kenya v Kenya Revenue Authority & Another [2017] eKLR*** where the court declared that interpretation of statutes must avoid absurd, impracticable, illogical or artificial results, they maintain that because operating without a license was not a crime during the pendency of the grace period, the decision to charge them lacks a reasonable prospect of conviction and serves only to erode public confidence in the justice system. Further, they cited ***Multipurpose Co-operative Society Ltd v Serser & 3 others (Civil Appeal 160 of 2018) [2023] КЕСА 441 (KLR)***, where the Court of Appeal held that once an irregular or unlawful administrative action is taken, its illegality does not dissipate with time or action. An act done in excess of power remains an abuse of discretion, even if it has already commenced. 9. Consequently, the Petitioners contended that the 1st Respondent’s continued prosecution, despite formal notification of a lawful moratorium, is inherently unlawful and cannot be cured by the mere commencement of criminal proceedings or the passage of time. Therefore, the decision to proceed with these charges constitutes a clear dereliction of the constitutional duty mandated by Article 157(11), which requires the Director of Public Prosecutions to exercise authority with due regard to the public interest, the administration of justice, and the prevention of legal process abuse. 10. Furthermore, they submitted that 1st Respondent’s claim of ignorance regarding the moratorium, in that the County Government of Nakuru did not expressly copy them on the directive, does not absolve the office of its constitutional responsibility to act fairly and reasonably. To support this, reliance was placed on the case of ***Republic v. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR,*** that Public authorities are under a legal duty to obtain all relevant information before taking any decision which affects the rights of individuals. 11. In light of the foregoing, the Petitioner submitted that they detailed their pleas before this Honourable Court with the required precision and specificity as required for all constitutional petitions as was held by the ***Anarita Karimi Case.*** Further that they have proved their case on a balance of probabilities. They thus urged this Court to allow the Petition as prayed. **1st Respondent’s Submissions** 1. In the submissions filed on 23rd October 2025, the Office of the Director of Public Prosecutions (ODPP) formally opposes the Petitioners' application for conservatory orders, asserting its constitutional mandate under Article 157 to independently institute criminal proceedings in the public interest and arguing that the current petition lacks merit and is merely an attempt to frustrate lawful prosecution. 2. While affirming its commitment to constitutional tenets and the Fair Administrative Action Act, the ODPP maintained that its prosecutorial decisions in this matter were made without favouritism or discrimination. It was elaborated that this matter began when the Inspector General of Police received complaints through the Nakuru Central Police Station, leading to an arrest based on reasonable suspicion of offences under the Alcoholic Drinks Control Act (ADCA). 3. Addressing the alleged moratorium, the 1st Respondent contended that the Petitioners' reliance on a letter from the Nakuru County Licensing Authority is misplaced. The ODPP characterised this letter as a localised administrative measure that could not legally suspend national criminal provisions of the ADCA, as counties lack the jurisdiction to alter national criminal law. Furthermore, the ODPP pointed out that this letter was never shared with national authorities and could not create a legal exemption from prosecution for unlicensed operations. The Respondent highlighted that the Petitioners failed to provide documentary evidence of a license application or receipts proving they were in the process of acquiring one, offering only an expired license as evidence. 4. Regarding the principle of legitimate expectation, the 1st t Respondent argued that such expectations cannot override statutory obligations or be used to suspend statutory law. Citing ***Republic v DPP & 2 Others; Ayoo (Ex Parte Applicant) [2023] KEHC 23733 (KLR),*** it was argued that the Office of the Director of Public Prosecutions (ODPP) must be guided by evidence and public interest, and that prosecutorial discretion is generally not subject to judicial review unless exercised unlawfully or in bad faith. 5. Further, the 1st Respondent cited ***Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR***, to establish the criteria for granting **conservatory orders**, as requiring the presence of a prima facie case, irreparable harm, and consideration of the public interest. 6. The ODPP defended the arrest and charging of the 2nd Petitioner, noting that she was charged in Nakuru Criminal Case No. 680 of 2024 for selling alcoholic drinks without a license. The proceedings remain ongoing, ensuring her right to a fair trial, and were part of a broader county-wide enforcement operation triggered by a public health crisis involving illicit alcohol. 7. It was submitted that at the time of the arrest, the 2nd Petitioner failed to produce documentation of a pending application. The 1st Respondent maintained that the decision to charge was made independently after applying the 2019 Decision to Charge Guidelines, which require both an evidential and public interest test. 8. Further, 1st Respondent dismissed the allegations of selective prosecution, stating the 2nd Petitioner was arrested alongside other suspects in a general swoop with no evidence of discrimination. Further, 1st Respondent argued that prosecutorial discretion is generally not subject to judicial review unless bad faith is proven. 9. Addressing the lack of response to the Petitioners' review request letter, the 1st Respondent submitted that there is no mandatory obligation to respond to such requests while a matter is sub judice, as doing so could prejudice the trial. They argued that the Petitioners' proper remedies lie within the trial process rather than collateral constitutional petitions. 10. On the issue of conservatory orders, the 1st Respondent argues that the Petitioners have failed to demonstrate a prima facie case or irreparable harm, noting that the criminal process itself provides adequate safeguards. The 1st Respondent argued ordinary tortious claims should not be disguised as constitutional grievances. 11. Emphasising the public interest and the rule of law, the 1st Respondent asserted that enforcinglicensing laws is critical for public safety and that suspending these proceedings would undermine their statutory mandate. 12. In conclusion, the 1st Respondent urged the Court to dismiss the application for conservatory orders and allow the criminal proceedings to reach their logical conclusion. **Analysis and Determination** 1. At this point, it is acknowledged that by consent of parties, the application and the Petition were to be dealt with together. Further, no conservatory orders were issued. 2. After considering the Application, the Petition, the affidavits on record, the rival submissions by parties and the applicable constitutional and statutory framework, the issues for determination are:- 3. ***Whether the arrest and prosecution of the Petitioners violated the doctrine of legitimate expectation.*** 4. ***Whether the decision of the 1st Respondent to institute and sustain criminal proceedings meets the constitutional threshold under Article 157(11), including the evidential and public interest tests.*** 5. ***Whether the Petitioners’ rights under Articles 47, 49 and 50 of the Constitution were violated.*** 6. ***Whether this Court ought to interfere with the criminal proceedings in Nakuru Criminal Case No. E680 of 2024; and*** 7. ***Whether the Petitioners are entitled to the reliefs sought.*** 8. On the **first issue,** the Petitioners assert that the Interested Party (County Government of Nakuru) issued a moratorium granting a grace period during which operators awaiting renewal of liquor licenses would not be subject to enforcement action. They contend that this representation gave rise to a legitimate expectation that they would neither be arrested nor prosecuted. 9. The doctrine of legitimate expectation is now firmly embedded in our constitutional and administrative law. It is anchored on Article 47 of the Constitution and codified under Section 7(2)(m) of the Fair Administrative Action Act. Article 47 of the Constitution of Kenya provides that: ***“(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. (3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall— (a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b) promote efficient administration.”*** 1. Further, Section 7(2)(m) of the Fair Administrative Action Act states that;- ***“(2) A court or tribunal under subsection (1) may review an administrative action or decision, if- (m) the administrative action or decision violates the legitimate expectations of the person to whom it relates.”*** 1. For such an expectation to arise, the representation must be clear, unambiguous, within the authority of the maker, and reasonably relied upon. In ***Communications Commission of Kenya & 5 others v. Royal Media Services Limited & 5 others, SC Petitions No. 14, 14A, 14B and 14C of 2014; [2014] eKLR*** “*CCK Case*” Rawal, SCJ discussed the right to fair administrative action as provided for under Article 47 of the Constitution thus;- ***“The concept of legitimate expectation has been admirably captured in the main Judgment (paragraphs 256-291) and my intention is to capture its essence while considering its implication within our constitutional purpose, and the concept of its remedies through the administrative process stipulated under Article 47 of the Constitution. A State under the rule of law is obliged to balance administrative action and the claims of legitimate expectation as has been claimed by the 1st, 2nd and 3rd respondents in this case. Article 47 in the circumstances is a deliberate step towards the attainment of a fair and dependable government advancing expeditious, efficient, lawful, reasonable and procedurally fair public policies. The doctrine of legitimate expectation requires the entrenchment of a duty to act fairly. A breach of Article 47 attracts remedies in Judicial Review especially where an aggrieved person had cause to expect that the attendant aspects of fair administrative action would be adhered to. It is clear that the essence of Article 47 is to protect a party’s legitimate claim of entitlement that is, procedural solidity and not a mere promise of consideration. As such, the court can quash any decision arrived at un-procedurally or unfairly but reserves itself no right to engage in the administrative duties of the body in question. The court must remain a court.”*** 1. In the present case, while the existence of a letter dated 21st February 2024 from the County Government is not controverted, the legal effect of that letter is the main point of contention. The Petitioners urged the Court to treat it as conferring a protective shield against arrest and prosecution. 2. The offence with which the Petitioners are charged is created under Section 7 as read with Section 62 of the Alcoholic Drinks Control Act. While the Section provides that: “***7. (1) No person shall— (a) manufacture or otherwise produce; (b) sell, dispose of, or deal with; (c) import or cause to be imported; or (d) export or cause to be exported, any alcoholic drink except under and in accordance with a licence issued under this Act***.” 1. Section 62 gives the punishment in the following terms;- ***“62. Any person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.”*** 1. It is a fundamental principle of our constitutional order that administrative directives, whether issued at the national or county level, cannot override, suspend, or amend statutory provisions. To hold that a county-issued moratorium that can negate the operation of a penal statute would be to sanction a parallel legal regime, one not contemplated by the Constitution. 2. Moreover, this Court notes that the 5th Respondent (PC Gideon Kipngetich) pointed out a mismatch between the physical business and the license. He argued that the business premises were operating under the name "Tai One Bar & Restaurant" (or "Tai Bar & Restaurant") at the time of the arrest, while the 2023 license produced by the Petitioners was issued to an entity named "Ballers Bar & Restaurant”. In addition, the Respondents argued that the 2024 license relied upon by the Petitioners was issued in the name of "Solomon Githaiga Karari**"** (the 3rd Petitioner) and the names of the 1st and 2nd Petitioners are missing. 3. The Respondents further assert that at the time of the arrest on 14th March, 2024, the Petitioners were operating with an expired 2023 license. They argued that the 2024 license subsequently provided by the Petitioners was not actually issued until 13th August 13, 2024, which they claimed was long after the moratorium period had ended on 31st March, 2024. 4. The 1st Respondent also argued that the Petitioners failed to provide documentary evidence, such as application forms or payment receipts, to prove they had actually applied for a renewal during the grace period. It was maintained that the moratorium only protected those actively seeking compliance, not those merely operating on expired documents. 5. The offence of operating a liquor business without a licence is created under Section 7 as read with Section 62 of the Alcoholic Drinks Control Act as stated above. That statutory provision remains in force unless repealed or declared unconstitutional. While the County Government is the licensing authority, its administrative arrangements cannot extinguish criminal culpability where the statutory requirements are not met. 6. Moreover, the material before this Court raises legitimate questions as to whether the Petitioners fell within the category of persons who could benefit from the alleged moratorium. The offence of operating a liquor business without a licence is created under Section 7 as read with Section 62 of the Alcoholic Drinks Control Act as stated above. That statutory provision remains in force unless repealed or declared unconstitutional. While the County Government is the licensing authority, its administrative arrangements cannot extinguish criminal culpability where the statutory requirements are not met. 7. Moreover, the material before this Court raises legitimate questions as to whether the Petitioners fell within the category of persons who could benefit from the alleged moratorium. 8. The Respondents pointed to inconsistencies in the licensing documentation and the absence of evidence demonstrating that, at the material time, the Petitioners had a valid licence or a duly pending application. These discrepancies go to the root of the Petitioners’ claim that their expectation was both legitimate and lawful. 9. The Petitioners produced the letter dated 21st February, 2024 drawn by the County Government of Nakuru addressed to the County Commander of Police, asking them to refrain from further arrest of persons without licenses for the period between 31st December, 2023 and 31st March, 2024. They also produced the 2024 license, which was in the name of the 3rd Respondent and not in the name of Ballerz Bar and Restaurant, from which the 2nd Petitioner was arrested. This Court was not furnished with the license for the year 2023, which can indeed confirm that they were placed under the cover and umbrella of the Interested Party moratorium. 10. In those circumstances, this Court finds that while the moratorium may have created a general administrative expectation, it did not, in the circumstances herein, confer immunity from arrest or prosecution under the law. Accordingly, no enforceable legitimate expectation capable of defeating criminal proceedings has been established. 11. On the **2nd issue** that the decision to charge the Petitioners violated Article 157(11) of the Constitution in that it failed to meet the evidential and public interest thresholds and amounted to an abuse of the legal process, the law in this regard is well settled. Article 157(6)-(11) of the Constitution provide that; ***“(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may— (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; (b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and (c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b). (7) If the discontinuance of any proceedings under clause (6) (c) takes place after the close of the prosecution’s case, the defendant shall be acquitted. (8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court. (9) The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions. (10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority. (11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. (12) Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.”*** 1. This is further enforced by Section 6 of the Office of the Director of Prosecutions Act on the Independence of the Director where it specifically states: ***“Pursuant to Article 157(10) of the Constitution, the Director shall—(a)not require the consent of any person or authority for the commencement of criminal proceedings;(b)not be under the direction or control of any person or authority in the exercise of his or her powers or functions under the Constitution, this Act or any other written law; and(c)be subject only to the Constitution and the law.”*** 1. It is evident from the above constitutional and statutory provisions that the DPP exercises independent prosecutorial authority, and the Court will only interfere with that discretion in exceptional circumstances, such as where it is shown that the decision was actuated by malice, bad faith, or is otherwise an abuse of process. 2. Indeed, in the case of ***Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR) (SC) (Petition 16 of 2020),*** the Supreme Court held that the High Court’s interference with prosecutorial discretion was warranted only where it was shown that criminal proceedings were instituted for purposes other than enforcing the criminal law, or in abuse of the court process. 3. In the present case, the Respondents have explained that the arrest was triggered by a law enforcement operation targeting unlicensed alcohol outlets and that the Petitioners were found operating without a valid licence. This issue as to whether that assertion is ultimately borne out by the evidence is a matter for the trial court. 4. What is material at this stage is that there existed a factual foundation upon which the decision to charge could reasonably be made. Moreover, the letter written by the Petitioner's counsel to the office of ODPP is dated 13th January, 2025, about ten (10) months after the 2nd Petitioner herein was arrested and charged. The matter was thus live in Court when the Petitioners ‘ Counsel for their review of the decision to charge. 5. The Petitioners’ reliance on the moratorium, and their assertion that they were in the process of compliance, constitute matters of defence. They are issues that require evidentiary interrogation, including examination of documents and, if necessary, testimony from relevant officials. This Court, sitting as a constitutional court, must resist the invitation to descend into the arena of fact-finding in a manner that would pre-empt the role of the trial court. 6. On that basis, this Court is satisfied that no material has been placed before this Court to demonstrate that the ODPP acted in bad faith, ignored relevant considerations, or pursued the prosecution for an improper purpose. Accordingly, the challenge to the exercise of prosecutorial discretion fails. 7. On the **third issue**, on alleged violations of the petitioners rights under Articles 47, 49 and 50 of the Constitution, the relevant principle was set out in the case of ***Anarita Karimi Njeru v Republic (1979) 1 KLR 154*** which requires that a person seeking redress for a constitutional violation must set out with a reasonable degree of precision the facts complained of, the specific provisions of the Constitution alleged to have been infringed, and the manner in which they are alleged to be infringed. 8. This doctrine’s profound purpose, as elaborated in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR,*** is to ensure due process, substantive justice, and the proper exercise of jurisdiction by defining the issues in controversy with sufficient clarity for the respondent to answer and the court to adjudicate effectively. 9. Concerning Article 49, the Court is not persuaded that the arrest was unlawful. The police acted on suspicion of an offence known to law, and there is no evidence that the arrest was arbitrary or conducted in a manner inconsistent with constitutional safeguards. 10. Regarding the alleged refusal to record statements, the Petitioners have not demonstrated how that omission, if it occurred, occasioned prejudice of a constitutional magnitude. The criminal process affords the accused person full opportunity to present their defence, call witnesses, and challenge the prosecution’s case. Similarly, the complaint that the DPP failed to respond to a request for review does not, in the circumstances of an ongoing prosecution, amount to a violation of Article 47. This Court therefore finds that the alleged constitutional violations have not been established to the requisite standard. 11. On the **fourth issue**, that is, whether it should intervene to quash the criminal proceedings, the principles governing such intervention are settled. Courts will only halt criminal proceedings in the clearest of cases, where it is demonstrated that the proceedings are oppressive, vexatious, or constitute an abuse of the process of the court. The High Court must be cautious not to usurp the mandate of the trial court by determining contested factual issues under the guise of constitutional adjudication. 12. In the present case, the issues raised were whether the Petitioners had valid licences; whether they had applied for renewal; and whether the moratorium applied to them. These are matters that fall within the competence of the trial court. The Petitioners will have full opportunity to raise these matters in their defence. This Court is therefore not satisfied that this is a proper case for the exercise of its jurisdiction to quash the proceedings. 13. On the reliefs sought, the declaratory orders sought by the Petitioners cannot issue in the absence of proof of constitutional violation. The judicial review orders of certiorari must equally fail, as no illegality, irrationality or procedural impropriety have been demonstrated in the decision to prosecute or in the proceedings themselves. The prayer for conservatory orders is overtaken by events and, in any event, was not supported by the existence of a prima facie case. The claim for damages similarly collapses for want of proof of violation. 14. On the issue of costs, the general principle is that costs follow the event. In ***Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR***, Mativo J (as he then was) had this to say while deciding on whether or not to award costs to a party;- ***“…I find useful guidance in the following passage from the Halsbury’s Laws of England; “The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice”.*** 1. ThePetition being without merit, there is no basis for departing from that principle. In conclusion, this Court finds that the Petitioners have not demonstrated that their arrest, detention, or prosecution violated the Constitution, nor have they established grounds to warrant interference with the ongoing criminal proceedings. 2. Consequently, this Court issues the following Orders:- 3. **The Petition is hereby dismissed in its entirety.** 4. **Each party to bear their own costs of the Petition.** **Dated and signed at Nairobi this 17th Day of July, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 28th Day of July, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**