[2023] KEHC 3243 (KLR)

Kinuthia & 4 others v Uasin Gishu County Government & another (Petition 2 of 2017) [2023] KEHC 3243 (KLR) (19 April 2023) (Judgment)

Neutral citation: [2023] KEHC 3243 (KLR)

Republic of Kenya

In the High Court at Eldoret

Petition 2 of 2017

RN Nyakundi, J

April 19, 2023

IN THE MATTER OF ARTICLE 2,10,19,20,22,23 AND 47 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS SECURED AND GUARANTEED UNDER ARTICLE 27,35,40,46,47 AND 50 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE ALCOHOLIC DRINKS CONTROL ACT, 2014 AND IN THE MATTER OF FOOD, DRUGS AND CHEMICAL SUBSTANCE ACT BETWEEN

Between

John Kariuki Kinuthia & 4 others

Petitioner

and

Uasin Gishu County Government

1st Respondent

Uasin Gishu County Alcoholic Drinks Regulation Committee

2nd Respondent

Judgment

*Background 1. The petitioners filed this petition dated 09. 03. 2017 seeking the following reliefs: -a.A declaration order holding that the decision of the respondents of shutting down the petitioners’ bar business is unconstitutional, null and void ab initio.b.Conservatory orders be issued quashing the implementation and enforcement of the decision of the respondents shutting down the petitioners’ bar business.c.A declaration that the rights under article 47 of theconstitution of Kenya 2010 were violated by the respondents.d.In the alternative, an order of mandamus compelling the 1st and 2nd respondents to allow the petitioner trade in their businesses.e.Costs

2. The petition is anchored on grounds within the body of the petition and an affidavit sworn by John Kariuki Kinuthia, who is one of the petitioners.

3. The petition is expressed to be brought under Article 27,35,40,46,47,48 and 50 of the Constitution which have allegedly been violated by the respondents.

4. The Petitioners filed their submissions dated 30. 10. 2019 in support of the petition through the firm of Mathai Maina and company advocates.

5. The petition was opposed. The respondents were represented by the firm of Kalya and Company advocates who filed their submissions on 08. 07. 2022.

The petitioners’ case 6. It is the petitioners’ case that they are bar owners engaged in the business of purchase and sale of alcoholic drinks as retailers of Chemare center in Kesses sub county within Uasin Gishu district. They contend that they operated their bar business legally through licenses issued by the respondents annually. They applied for renewal of their licenses for the year 2017 but did not get any response on the part of the respondents who rather went ahead and locked up their premises on 3rd of March of 2017. They further stated that in locking up the premises, they were not informed and or given any opportunity to be heard hence their rights under the constitution were infringed.

7. The petitioners’ counsel dwelt on the question of legitimate expectation. It was the petitioners’ submission that they had a legitimate expectation that they would be accorded a fair hearing since they had always satisfied the requirements provided under the act in submitting their applications for renewal of licenses to operate in the year 2017.

8. Counsel relied on the cases of Kikuyu v the NSSF and othersJudicial Review No. 81 of 2013 and Geoffrey Oduor Sijeny v Kenyatta University (2018) eKLR petition no 292 of 2017 on the issue of legitimate expectation.

The respondent’s case 9. The respondents on their part while challenging the jurisdiction of this court advanced the following arguments: -1. The petition has been overtaken by events, is fatally defective, frivolous, vexatious and an abuse of the court’s process.2. That licenses have been issued and the petitioners are operating their businesses without any interruption by the respondent.3. That they complied with the law at all times relevant in executing their mandate.The respondents identified the following issues for determination:a.Whether the petition has been overtaken by eventsb.Whether the petition meets the constitutional thresholdc.Whether the petitioners’ rights under the constitution have been contravenedd.Who should bear the costs

10. Counsel for the respondents submitted that the petition herein has been overtaken by events since the premises being complained of were duly opened and licenses issued to the petitioners way back in 2017. Therefore, the orders being sought have been overtaken by events.

11. On whether the petition has met the required constitutional threshold, counsel submitted that the petitioners fall of short the threshold set in the case of Anarita Karimi Njeru –Vs- Republic (No. 1) [1979] 1 KLR 154. Counsel further stated that the petitioners have not demonstrated how any of their personal rights have been infringed and they have not pleaded any specific injury suffered or are likely to suffer by the alleged acts, decision(s) and or activities of the respondents regarding closure of the premises and denial of licenses pursuant to investigations carried out in the region.

12. Counsel observed that the absence of precision on what constitutional rights and freedoms were violated falls under the private domain and which is governed by the adjudicatory laws with internal disputes mechanisms for anybody aggrieved by the licensing process. Counsel finally submitted that the costs of the suit should be shouldered by the petitioners.

Analysis 13. I have considered the submissions of all counsel, the authorities relied upon and I will proceed to address each of the issues raised.

Whether the court has jurisdiction to entertain this petition 14. The courts have time and again discussed the issue of jurisdiction extensively. In the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) it was held as follows:“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

15. Section 5 of the Fair Administrative Action Act provides;5. (1) In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall-(a)issue a public notice of the proposed administrative action inviting public views in that regard;(b)consider all views submitted in relation to the matter before taking the administrative action;(c)consider all relevant and materials facts; and(d)where the administrator proceeds to take the administrative action proposed in the notice-(i)give reasons for the decision of administrative action was taken;(ii)issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and(iii)specify the manner and period within the which such appeal shall be lodged.(2)Nothing in this section shall limit the power of any person to-(a)challenge any administrative action or decision in accordance with the procedure set out under the Commission on Administrative Justice Act, 2011 or any successor to the Commission on Administrative Justice under section 55 of the Commission on Administrative Justice Act;(b)apply for review of an administrative action or decision by a court of competent jurisdiction in exercise of his or her right under the Constitution or any written law; or(c)institute such legal proceedings for such remedies as may be available under any written law.

16. Section 7 of the Administrative Action Act, with regard to administrative action provides as follows;(1)Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to–(a)a court in accordance with section 8; or(b)a tribunal in exercise of its jurisdiction conferred in that regard under any written law.

17. The issuance of licenses for selling of alcohol and operation of bars is in this particular instance is regulated by the Uasin Gishu Alcoholic Drinks Control Act. The act provides redress when an application for renewal of a license is refused or cancelled in section 17 where it states;1. An applicant whose application for a new licence, to renew or transfer a licence has been refused or cancelled may within fourteen (14) days of such refusal to the Appeals Committee.

18. Section 9 of the Administrative action act bars a court from reviewing administrative actions where internal mechanisms have not been exhausted. It states as follows;9. (1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

19. These provisions give life to the doctrine of exhaustion as defined inThe Black’s Law Dictionary 11th Edition defines the doctrine of exhaustion asThe doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The purpose of the doctrine is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases which judicial relief is unnecessary.”

20. In the case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille[2017] eKLR, the court of appeal observed that;Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime”.

21. However, as there are exceptions to the doctrine of exhaustion, the major one being where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. (see R. Vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) Kenya and 6 others [2017] eKLR, I shall proceed to determine whether there are any valid constitutional issues raised in the petition as this would determine whether the court has jurisdiction.

22. My reading of the constitution 2010 unavoidably deals in general language. The instrument as a living soul of the Republic is intended to endure intergenerationally. As Chief Justice Marshall stated in McCulloch v. Maryland, 17U.S (4 Wheat) 316, 407, 421 (1819). Stated “it is nature therefor requires that only its great outlines should be marked. Its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. Let the end be legitimate, let it be with the scope of the constitution, and all means which ae appropriate, which are not prohibited, but consists with the letter and spirit of the constitution, are constitutional”

23. As for whether such a petition requires an endorsement by this court within the interplay of the framers of the constitution and the intent of it in the specific provisions appears more tempting bit granting the remedies would be inconsistent with our policy and regulatory frame work. To that extent, the concepts embedded in Article 27,35,40,46, 47, 48 and 50 of the Constitution of Kenya 2010 calls for a concreate injury requirement inquiry as to whether the authority acted in compliance with the law in question. As Oliver Wendell Holmes stated in The Common Law “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories institution of public policy, avowed or unconscious , even the prejudices which judge share with their fellow –men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed”

24. One consequence deduced from the construction of the petition is that the unconstitutionality of the respondent’s action is not so clear not to warrant a rational question. There is therefore judicial restrained that this court should take an approach on a broad based inquiry of the alleged infringement to find that the evidence does not advance a substantive violation of the Constitution. Moreover, the necessity of the times are such that the doctrine of exhaustion has formulated parties should remain faithful to that intent ,purpose, and text of the statute.

Whether the petition has been overtaken by events 25. On their part, the respondents submitted that the petition herein has been overtaken by events and prayers (ii) and (iv) cannot issue. The petitioners sought conservatory orders to be issued quashing implementation and enforcement of the decision of the respondents shutting down the petitioners’ bar business and in the alternative an order of mandamus compelling the 1st and 2nd respondents to allow the petitioners trade in their businesses.

26. Counsel submitted that the premises being complained of were duly opened and licenses issued to the petitioners way back in 2017. Therefore, the orders being sought have been overtaken by events.

27. I have looked at the prayers sought in the Petition. In my view prayer (ii) and (iv) have been overtaken by events since the petitioners are already trading in their business.

28. In Daniel Kaminja & 3 others (suing as Westland Environmental Caretaker Group) v County Government of Nairobi [2019] eKLR, Mativo J stated that:A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.”And that,No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.”

29. Applying the principles in the above authority to the instant case, it is obvious that prayers (ii) and (iv) in the petition have been overtaken by event and therefore, there remains no unresolved justiciable controversy in this Petition. Because Courts generally only have subject-matter jurisdiction over active controversies, when a case becomes moot during its pendency, the appropriate first step is a dismissal of the case. On this ground alone, this petition falls for dismissal. However, for clarity, I will proceed to pronounce myself on the other issues raised and prayers sought by the parties.

Whether the petition meets the constitutional threshold 30. The starting point for determining the meaning and text of our Bill of Rights in the Constitution is by construing the text itself. The constitutional court of South Africa in S vs Zuma 1995(2) SA 642 (CC) para 17 (emphasis original) as it is stated “ while we must be always conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single objective meaning, nor its easy to avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce’s reminder that even a constitution it is a legal instrument, the language of which must be respected, if the language used by the lawgiver is ignored in favour of a general resort to “value” the results is not interpretation but divination….I would say that a constitution embody lying fundamental principles should as far as its language permits be given a broad construction”.

31. This approach is also reflected in the Canadian Supreme Court case in R Big M DrugmatLtd 1985 18 DLR (4th) 321 395-6 cited in Zuma (note 10 above) para 15 Mohomed CJ in Ex parte Attorney –General Namibia in RE corporal punishment by organs of sates 1991 (3) SA 76 (NMSC) 91D-F “the meaning of a right of freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee, it was to be understood, in other words in light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right of the freedom in question is to be sought. By reference to the character and larger objects of the charter (of Right and Freedom) itself to the to the language chosen to articulate the specific right or freedom to the historical origin of the concepts enshrined and where applicable to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the charter. The interpretation should be a generous rather than a legalistic one aimed at fulfilling the purpose of the guarantee and securing for individual the full benefit of the Charter’s Protection.”

32. The respondents have submitted that the petitioners’ pleadings do not meet the threshold required that the pleadings be clear and precise as required set out in the case of Anarita Karimi Njeru –Vs- Republic (No. 1) [1979] 1 KLR 154.

33. The petitioners invoked the following Article 27,35,40,46,47,48 and 50 of the Constitution in its title. However, very little was provided and no particulars as to the allegations thereunder and the manner of infringement. Counsel for the petitioners in his submissions seemed to dwell much on the question of legitimate expectation. This being a constitutional petition, I expected counsel to address the alleged violations substantively.

34. In the case of Anarita Karimi Njeru (Supra) the court stated as follows:If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important. (If only to ensure that justice is done to his case) that he should set out with precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.”

35. Though the Anarita case was determined under the previous Constitution, it is still good law. The same principles apply under the current Constitution and courts still rely on the decision.

36. The principle in Anaritawas further enunciated in Mumo Matemu v Trusted Society of Human Rights Alliance (2014) eKLR where the court said:We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by court.”

37. The principle in Anarita Karimi Njeru (Supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution. Procedure is also a handmaid of just determination of cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (Supra) that established the rule that requires reasonable precision of framing of issues in Constitutional petitions is an extension of this principle”

38. In CNM v WMG (2018) eKLR (paragraph 18), the court observed “when determining whether an argument raises a Constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights and values.”

39. In general, the courts have held that where there exists other avenues for resolving disputes, a party should not invoke the Constitutional jurisdiction. In Gabriel Matava & 2 others v Managing Director Kenya Ports Authority & another(2016), the Court of Appeal observed:Time and again, it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in the other forum. Such party ought to seek redress under such other legal regime rather than trivialize Constitutional litigation.

40. Looking at the petition, the grounds and supporting affidavit, I cannot find any semblance of a Constitutional pleading breach. The petition is general, vague and does not disclose a real dispute capable of resolution under the Constitutional provisions.

Whether the petitioners have established legitimate expectation 41. The petitioners’ complaint is that they had a legitimate expectation that they would be accorded a fair hearing, since they always satisfied the requirements provided under the act in submitting their applications for renewal of licenses to operate in the year 2017, but the same has been violated and hence an affront to fair administrative action.

42. The case of Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board (2016) eKLR extensively considered the right to administrative actions where the court stated:39. On the petitioner’s alleged violation of its right under Article 47, it is provided therein that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Further, 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. These Constitutional provisions have been echoed in the Fair Administrative Act, 2015 particularly under Section 4(1) and (2).40. Section 4(3) of the Fair Administrative Action Act, 2015 provides that where an administrative action is likely to adversely affect the rights and fundamental freedoms of any person, the administrator shall give the person affected by the decision prior and adequate notice of the nature and reasons for the proposed administrative action; an opportunity to be heard and to make representations in that regard; notice of a right to a review or internal appeal against an administrative decision, where applicable, a statement of reasons pursuant to Section 6. 42. Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47(2) of the Constitution. Generally, one expects that all precepts of natural justice are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted, the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.”

43. An administrative action, therefore, includes an administrative decision which adversely affects or is likely to affect any person or contemplated by certain public officers, state officers pursuant to a power conferred by either the Constitution or any written law. From a reading of the above cited decision, relief for administrative grievances is not restricted to the common law jurisdiction of Judicial Review but can be sought by way of a Constitutional Petition.

44. Article 47 of the Constitution guarantees the right to fair administrative action. It reads as follows:(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.”

44. .The Fair Administrative Actions Act, 2015 gives effect to the above provisions in which it makes elaborate provisions on fairness.

45. The principle of legitimate expectation was discussed in CCK & others v Royal Media Services where the court said:269 – The emerging principles may be succinctly set out as follows:(a)There must be an express, clear and unambiguous promise given by a public authority;(b)The expectation itself must be reasonable;(c)The representation must be one which is competent and lawful for the decision maker to make; and(d)There cannot be a legitimate expectation against clear provisions of the law or the Constitution.”

46. In South Bucks District Council v Flanagan (2002) ELCA Civ.690 (2002) WLR 26011 at page 18, the court held:Legitimate expectation involves notions of fairness and unless the person making the representation has actual or ostensible authority to speak on behalf of the public body, there is no reason why the recipient of the representation should be allowed to hold the public body to the terms of the representation. He might subjectively have acquired the expectation, but it would not be a legitimate one, that is to say, it would not be one to whom he was entitled.”

47. In this case therefore, the petitioners’ right to fair administrative action was hinged upon their legitimate expectation, to be treated in accordance with the law, that is, Section 11 of the Uasin-Gishu County Alcoholic Drinks Control Act.

48. The issue of licensing was considered in Ol-Jororok Bar owner & 5 others case (Supra) and I agree with the judge. The court said at paragraph 36 that “the operative words in that section are Sub-Committee has not by the date of expiration of license reached a decision thereon…….. This section anticipates the license renewal application having been made ‘before’ the expiration date of the subject license and a delay in the decision of the Sub-County Committee. Only in such case is the previous license to remain in force pending the decision of the Sub County Committee.”

49. In other words, whereas in this case an application is made for ‘renewal’ of a license, the license cannot remain in force having ceased operating on the expiry date. And of course, a fresh application for a license would mean that the fresh applicant must want for the approval, that is, has no license pending the decision of the Sub-County Committee.”

50. In the upshot, I agree with the finding in Andrew Omwenga Wanjiru T/A Triangle 3 and othersv Nakuru County Commissioner & 3 others Pet.5/2015 where the court stated:Security agents and police have the duty and mandate to enforce the law. In this case, the Alcoholic Drinks Control Act which is still in place and requires that business/people dealing with alcohol be licensed accordingly. Actions taken lawfully by authorized persons in the enforcement of the Act, as appears to be the case here, cannot ordinarily give rise to a valid claim of violation or threat of violation of the alleged rights of those on the wrong side of the law.”

51. As held in by the Supreme Court in CCK & 5 others v Royal Media Services Ltd (Supra) there cannot be a legitimate expectation against clear provisions of the law or the Constitution.

52. Before I close, it is important to highlight that it is incumbent upon the respondents and public entities at large to avoid the unnecessary delays in delivering on their mandate such as approving licenses. They have an obligation to ensure that the application process is a smooth one. As with that constitutional issues, on cases concerning governmental structure, my approach is in the first instance to distill the doctrine of separation of powers. In essence unless the text, decision or action complained of is clear as to it is unconstitutionality the duo character of our executive governance restricts courts from interfering with the decision making process or the decision itself within that structure. In the instant petition, the court has to consider the nature of the background evidence and the reasons for its submission when assessing the weighty given such evidence in the interpretive analysis of the cited Articles of the Constitution by the Petitioner. It is therefore sufficient to hold the view that where the background material is clear and not in dispute and is relevant in showing where a particular decision was made by the impugned public body or in this case the respondent it is desirable to rule against any constitution violation. Given the importance of the issues and strength of the arguments advanced by the Petitioner, in their submissions jurisdiction under which a remedies under Article 23 of the Constitution can be pressed on tend to revolve within the following factors: “ 1) the Court will not anticipate a constitutional issue in advance of the necessity of deciding it; 2) the Court will not formulate a rule of constitutional law broader than necessary to resolve the case; 3) the Court will not pass upon a constitutional question if there is another ground on which the case may be decided. 4. the Court will first ascertain whether there is a permissible construction of the statute which will avoid the constitutional question (See Texas v Johnson491 US 397, 399 (1989). In my view the factual matrix appraised together with the submissions by the Petitioner fails the discharge the burden of proof that the decision taken by the respondents is incompatible with the constitution. It is too easy for a litigant to petition the constitutional court and conjure reasons in support of it but everything will depend on the facts which may include the nature of the violations to be decided by the Constitutional Court. Having concluded that the relevant proceedings do not qualify for grant of any remedies outlined in Article 23 it follows that this petition be and is hereby dismissed with no orders as to costs.

*DATED AND SIGNED AT ELDORET THIS 19 DAY OF APRIL, 2023IN THE PRESENCE OF MATHAI & CO. ADVOCATES……………………………………………R. NYAKUNDIJUDGEkalyacounsel@gmail.com