https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10357

Kipkemboi & 4 others v Attorney General & 12 others (Petition E003 of 2026) [2026] KEHC 10357 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEHC 10357 (KLR) Republic of Kenya In the High Court at Eldoret Petition E003 of 2026 RN Nyakundi, J July 7, 2026 IN THE MATTER OF VIOLATION OF ARTICLES 2, 10, 19, 20, 21, 22, 23, 27, 40, 43, 47, 48 AND 165 OF THE CONSTITUTION OF KENYA,2010 AND IN THE MATTER OF THE ALCOHOLIC DRINKS AND CONTROL ACT 2010 AND IN THE MATTER OF THE ALCOHOLIC DRINKS CONTROL (LICENSING REGULATIONS) 2022 AND IN THE MATTER OF UASIN GISHU COUNTY ALCOHOLIC DRINKS CONTROL ACT 2024 AND IN THE MATTER OF VIOLATION AND THREATENED VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF LICENSED LIQUOR BUSINESS OPERATORS WITHIN MLANGO CENTRE, UASIN GISHU COUNTY Between Joshua Kipkemboi 1st Petitioner Ivene Jepkemboi 2nd Petitioner Lyne Jepleting 3rd Petitioner Lydia Jeruto Suge 4th Petitioner Rael Jemaeli Rop 5th Petitioner and The Hon Attorney General 1st Respondent The County Government of Uasin Gishu 2nd Respondent The County Commissioner-Uasin Gishu County 3rd Respondent The County Commander of Police-uasin Gishu County 4th Respondent The Officer Commanding-Langas Police Station 5th Respondent Chief-kapseret Location 6th Respondent Cleophas Tirop 7th Respondent Joash Cheruiyot 8th Respondent Eliud Kogo Alias “Tyson” 9th Respondent Nicodemus Kipchirchir alias “Mofat” 10th Respondent Peter Simiyu 11th Respondent Christopher Biwott 12th Respondent John Keteralias “Warrior” 13th Respondent Ruling 1.Before this Court are two applications, one dated 22nd January 2026, expressed to be brought under Articles 22, 23, 27, 40, 43, 47, 50, 159 of the Constitution of Kenya, Sections 3 & 4 of the Fair Administrative Action Act, Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 ("Mutunga Rules"). The Petitioners seeks the following orders:a.Spentb.That pending the hearing and determination of this Application, a conservatory order do issue restraining the Respondents, whether acting directly or through their agents, officers, or persons acting under their authority, from harassing, arresting, threatening, intimidating, coercing, or in any manner interfering with the Petitioners’ lawful operations and occupation of their licensed business premises.c.That pending the hearing and determination of the Petition herein, a conservatory order do issue protecting and preserving the Petitioners’ right to operate their businesses under valid and subsisting liquor licenses and pending license renewal applications, unless and until due process under the law is strictly followed.d.That pending the hearing and determination of the Petition, Police Officers attached to Langas Police Station, and any other security agency or officer acting under the Respondents’ direction, be restrained from enforcing verbal, informal, unlawful, or extra-legal directives purporting to close, suspend, or interfere with the Petitioners’ businesses.e.That pending the hearing and determination of the Petition, the Respondents be restrained from implementing any collective, blanket, or punitive administrative actions against the Petitioners without individualised investigation, written reasons, and adherence to Articles 47 and 50 of the Constitution.f.That this Honourable Court be pleased to issue such further, consequential, or ancillary orders as may be necessary to secure the ends of justice, preserve the substratum of the Petition, and prevent abuse of power.g.That the costs of this Application be provided for. 2.The application is based on the following grounds:a.That the Petitioners are licensed business operators who have demonstrated, through documentary evidence, compliance with the law and possession of valid 2025 licenses together with pending applications for 2026 renewal.b.That the Respondents, acting jointly and in concert, have subjected the Petitioners to unlawful administrative action, including threats, intimidation, harassment, and forced closure of businesses without written notices, reasons, hearings, or lawful decisions, in blatant violation of Article 47 of the Constitution and the Fair Administrative Action Act.c.That the actions complained of amount to collective punishment, which is unknown in law, unconstitutional, irrational, and grossly disproportionate, particularly where the Petitioners have not been accused, investigated, charged, or found culpable of any wrongdoing.d.That the Respondents’ conduct has resulted in the unlawful deprivation of property, business goodwill, stock, and investment, contrary to Article 40 of the Constitution.e.That the forced closure of the Petitioners’ businesses has deprived the Petitioners and their employees of their only source of livelihood, in violation of Article 43 of the Constitution, occasioning grave and irreparable economic harm.f.That the Petition raises serious, arguable, and weighty constitutional questions, and the Petitioners have established a prima facie case with a real likelihood of success.g.That unless conservatory orders are granted, the Petition risks being rendered nugatory, as the Petitioners face imminent arrest, destruction of property, economic collapse, and potential physical harm.h.That the balance of convenience and public interest strongly favours the grant of conservatory orders, as the rule of law, due process, accountability of State organs, and lawful policing are matters of overriding constitutional importance.i.That it is in the interests of justice that the substratum of the Petition be preserved pending its full hearing and determination. 3.In support of the application is the annexed affidavit of Joshua Kipkemboi, stated as follows:a.That I am the 1st Petitioner/Applicant herein, an adult male of sound mind, and the Manager of Altitude Hotel and Accommodation and Altitude Wines and Spirits, both situated at Mlango Centre within Uasin Gishu County, and I am therefore competent to swear this Affidavit.b.That Altitude Hotel and Accommodation and Altitude Wines and Spirits are lawfully registered and licensed businesses, operating with valid liquor licenses issued by the County Government of Uasin Gishu for the year 2025.c.That I duly applied for the renewal of the said liquor licences for the year 2026 in good time and in compliance with all applicable county laws and regulationsd.That on or about 2nd January 2026, there was a public disturbance and riot at Mlango Centre allegedly arising from the sale of illicit liquor by a different establishment, which is not connected to my businesses.e.That on the said day, administrative officers intervened and only the specific suspect premises was searched and liquor confiscated, while my businesses and other licensed establishments were neither investigated nor accused of any wrongdoing.f.That approximately two weeks later, a public baraza was convened by the Area Chief, village elders, and nyumba kumi members, during which operators of licensed bar businesses, including myself, were denied an opportunity to speak or be heard.g.That following the said baraza, persons including village elders, nyumba kumi members, and police officers from Langas Police Station began harassing and intimidating me and my employees, ordering us to close our businesses on the basis of alleged "decisions" made during the baraza.h.That I have never been issued with any written closure notice, suspension letter, reasons, or administrative decision by any lawful authority in respect of my businesses.i.That on several occasions, police officers from Langas Police Station visited my premises, issuing verbal threats of arrest should I continue operating, thereby forcing me to close the liquor business out of fear for my liberty and safety.j.That on one such occasion, a resident by the name of Peter Simiyu entered Altitude Bar, Restaurant and Accommodation and harassed my workers, despite the liquor business not being operational at the time, creating fear and panic.k.That as a result of the Respondents' actions my businesses have been forced to close, employees have lost their income, I continue to incur rent, loan, supplier, and utility obligations and my stock, goodwill, and investment are deteriorating.l.That the actions complained of are arbitrary, unlawful, discriminatory, and unconstitutional, and violate my rights under Articles 27, 40, 43, 47, and 50 of the Constitution of Kenya.m.That I genuinely fear arbitrary arrest, further harassment, destruction of property, or violent attacks should I attempt to resume lawful operations without the protection of this Honourable Court.n.That unless urgent conservatory orders are granted, the substratum of this Petition will be destroyed, and I will continue to suffer irreparable loss and violation of my constitutional rights.o.That this Affidavit is sworn in support of the Petition and the Notice of Motion for conservatory orders, in good faith and in the interest of justice. 4.In support of the application is the annexed affidavit of Ivene Jepkemboi stated as follows:a.That I am the 2nd Petitioner/Applicant herein, an adult female of sound mind, and the owner and operator of Blue City Restaurant and Miami Wines and Spirits, both located in Mlango Centre, Uasin Gishu County, and I am therefore competent to swear this Affidavit.b.That Blue City Restaurant and Miami Wines and Spirits are lawfully licensed and registered businesses, holding valid liquor licences and relevant permits for 2025 issued by the County Government of Uasin Gishu.c.That I have applied for renewal of the said licences for 2026.d.That on 2nd January 2026, a riot occurred in Mlango Centre allegedly related to illicit liquor sold by a different establishment, which was investigated and penalized. My businesses were never implicated, investigated, or accused.e.That approximately two weeks later, a public baraza was convened, during which I, along with other bar operators, was denied an opportunity to speak or defend our lawful operations.f.That subsequent to the baraza, I experienced harassment, intimidation, and threats from persons including police officers from Langas Police Station, village elders, and Nyumba Kumi members, who repeatedly demanded that I close my businesses.g.That no written notices, closure orders, or lawful directives were ever issued to me by any administrative or state authority.h.That as a result of this intimidation, I was forced to close my businesses out of fear for my safety, property, and freedom, causing loss of income, financial obligations to suppliers, rent, and loans and deterioration of stock and goodwill.i.That these actions constitute arbitrary, unlawful, and unconstitutional violations of my rights under Articles 27, 40, 43, 47, and 50 of the Constitution.j.That unless this Honourable Court grants urgent conservatory orders, I continue to face irreparable economic and personal harm, and the Petition will be rendered ineffective. 5.In support of the application is the annexed affidavit of Lyne Jepleting who stated as follows:a.That I am the 3rd Petitioner/Applicant, an adult female of sound mind, and the owner and operator of Small Joint Bar, a duly licensed liquor business in Mlango Centre.b.That Small Joint Bar is lawfully licensed for 2025 and I have applied for renewal of the license for 2026c.That on 2nd January 2026, riots broke out in Mlango, unrelated to my business, and only one other establishment was investigated and sanctioned.d.That despite not being investigated or accused, I was subjected to threats, patrols, and intimidation from police, village elders, and Nyumba Kumi members, who demanded closure of my business.e.That no lawful written notice or administrative decision was issued to me regarding closure or suspension.f.That I was forced to close my bar out of fear for my safety and property, suffering financial loss, employee unemployment, and loss of goodwill.g.That these actions violate my constitutional rights under Articles 27, 40, 43, 47, and 50.h.That unless urgent conservatory orders are issued, I face irreparable harm, including potential violent attacks, destruction of property, and economic ruin. 6.Supporting affidavit of Rael Jemeli Rop who stated as follows:a.That I am the 5th Petitioner/Applicant, an adult male, and the owner and operator of Chebaibai Bar, a duly licensed liquor business in Mlango Centre.b.That Chebaibai Bar is licensed and permitted for 2025 and I have applied for renewal of the 2026 licence.c.That I have never been investigated or accused of illicit liquor sales.d.That following the baraza convened post-2nd January 2026 riots, I was repeatedly harassed, intimidated, and threatened by police officers, village elders, and Nyumba Kumi members to close my bar.e.That no lawful written closure notice, suspension letter, or administrative decision has ever been issued to me.f.That I was compelled to close my business, causing loss of income, employee unemployment and loss of goodwill and deterioration of stock.g.That the actions of the Respondents violate my rights under Articles 27, 40, 43, 47, and 50 of the Constitution.h.That unless urgent conservatory orders are issued, I face irreparable harm and potential violent attacks. 7.In addition, the second Notice of Motion dated 23rd of February 2026, expressed to be brought under Articles 22, 23 and 159 of the Constitution of Kenya; Rules 5(d) (ii), 9, 18 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Section 1A, 1B, 3, 3A of the Civil Procedure Act and all other enabling provisions of the law. The Petitioners seeks the following orders:a.That the County Government of Uasin Gishu be and is hereby joined in these proceedings as the 2nd Respondent.b.That leave be and is hereby granted to the Petitioners to amend the Petition in terms of the annexed draft Amended Petition.c.That the annexed Amended Petition be deemed as duly filed and served.d.That the conservatory orders issued by this Honourable Court on 23rd January 2026 be and are hereby clarified and/or extended to apply to the 2nd Respondent, its officers, agents, servants and/or enforcement personnel.e.That costs of this application be in the cause. 8.Which application is based on the following grounds by the affidavit on record:a.That the Petition herein directly challenges and concerns the regulation, control and enforcement of alcoholic drinks within Uasin Gishu County, a constitutional mandate vested in the County Government pursuant to the Fourth Schedule of the Constitution, and it is therefore imperative, in the interests of justice, that the County Government be formally enjoined as a Respondent in these proceedings.b.That this Honourable Court issued Conservatory Orders on 23rd January 2026, and it is necessary that the said Orders expressly bind the County Government of Uasin Gishu, its enforcement officers, agents, servants and/or any person acting under its authority, so as to preserve the substratum of the Petition and forestall arrests, harassment, intimidation or any form of interference with the Petitioners pending the hearing and determination of the Petition.c.That it is necessary for proper litigation of the Petition that the County Government be a party to the proceedings, thereby necessitating the present Application.d.That the presence and participation of the County Government of Uasin Gishu is indispensable for the effectual, complete and binding adjudication of all the constitutional and legal issues in controversye.That unless the County Government is formally enjoined as a party and bound by the proceedings herein, the Petition risks being rendered nugatory, academic and incapable of effective enforcement.f.That no prejudice whatsoever shall be occasioned to the intended 2nd Respondent, as the Application merely seeks to facilitate a comprehensive and binding determination of the issues before Court.g.That this Honourable Court is clothed with wide and unfettered discretion under the Constitution and the applicable procedural rules to order joinder of a necessary party at any stage of the proceedings where the interests of justice so demand. Decision 9.It appears to me that the parties were served but unable to get hold of the replying affidavits or responses to the notice of motion. In the first application which was certified urgent the petitioners are seeking conservatory orders and in our legal system these are constitutional remedies designed to maintain the status quo, preserve the subject matter of a dispute in situ so as to uphold the court authority to determine the issues on the merits. 10.The guiding principles for granting conservatory orders in Kenya were firmly established by the Supreme Court in the landmark Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others case (Civil Application No. 5 of 2014). The High Court consistently applies these four core principles:a.Prima Facie Case with Probability of Success: The applicant must demonstrate that they have an arguable case and are not pursuing frivolous claims.b.Threat of Prejudice: The applicant must show they will likely suffer prejudice or harm if the conservatory orders are not granted.c.Nugatory Condition: The court evaluates whether denying the order will render the main petition or its substratum nugatory (i.e., make the final judgment useless or impossible to execute).d.Public Interest: The court must weigh whether granting or denying the relief will best serve the public interest and uphold constitutional values. 11.This area of constitutional law has also been construed and interpreted by various Courts as demonstrated herein below:a.Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR: The foundational Supreme Court ruling that sets the locus classicus regarding the public-law nature of conservatory orders and their distinction from private civil injunctions.b.Judicial Service Commission v. Speaker of the National Assembly & Another [2013] eKLR: Clarified the nature of conservatory orders as remedies in rem (attached to a state of affairs) rather than in personam.c.Watuthu & 2 Others v State Department for Housing & 5 Others (Constitutional and Human Rights Petition E209 of 2025) [2026] KEELC 1234: A recent High Court ruling applying the principles to stay actions that would otherwise render a petition nugatory. 12.The conditions precedent for grant of conservatory orders were clearly articulated by the Court in the case of Board of Management of Uhuru Secondary School v City County Director of Education and 2 Others (2015) eKLR, where it was held as follows:“(a)First, an Applicant must demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he/she is likely to suffer prejudice.(b)The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.(c)Thirdly, the Court should consider whether, if an interim conservatory order is not granted, the Petition or its substratum will be rendered nugatory.(d)The final principle for consideration is whether the public interest will be served or prejudiced by the decision to exercise discretion to grant or deny a conservatory order.” 13.The Court frequently under the Constitution addresses interim conservatory orders or injunctions seeking to prevent public bodies or agencies from suspending services while legality reviews are pending. The Petitioners in the instant case in their affidavits filed to support I have established that interim conservatory orders should be granted for there are exceptional circumstances present and clear evidence of irreparable harm and a balance of convenience for the Petitioners. That therefore disposes the first application. 14.The second application focuses mainly on the issues of granting leave for the 2nd Respondent to be enjoined and the issues of amendment of the petition in terms of the already draft amended petition annexed to the petition. In the first instance, the law on joinder in our legal system is governed by Order 1 Rule 10(2) of the Civil Procedure Rules which allows Courts to add or substitute necessary parties at any stage of the proceedings. The Court’s primary goal is to effectually and completely adjudicate all questions in the disputes and avoid multiplicity of suits. The core principles are demonstrated in the following cases:a.Francis Karioki Muruatetu & Another v. Republic & 5 Others [2016] eKLR: The Court of Appeal set out the guiding criteria for joining an interested party. The applicant must demonstrate they have a personal stake/interest, the joinder will not cause prejudice, and it will not convolute proceedings.b.Pravin Bowry v. John Ward & Another [2015] KECA 215 (KLR): The Court of Appeal held that joinder of parties is permissible if the party's presence resolves all matters in controversy, protects rights that would otherwise be adversely affected, and prevents a likely course of proliferated litigation.c.Civicon Limited v. Kivuwatt Limited & 2 Others [2015] eKLR: The Court of Appeal established the parameters for when a court can add necessary parties to properly determine the real issues in dispute, which should be freely allowed provided it does not result in injustice to existing parties. 15.On this issue, my reading of the affidavit by Joshua Kipkemboi dated 23rd February 2026 shows that the County Government is the one directly involved in the regulation, control and enforcement of alcoholic drinks within Uasin Gishu County. It is therefore imperative that in the interest of justice the County Government be formally enjoined in these proceedings. I have taken the liberty to go through the grounds in support of the application and the evidential material in the affidavit. It clear that the presence of the County Government is necessary to solve the dispute and that joinder will not cause prejudice to other parties nor will it convolute the proceedings. There is therefore merit in granting the application for joinder as against the County Government as a necessary party whose presence is required for the Court to effectually adjudicate the constitutional petition. 16.The second prayer by the Petitioners is in regard to the amendment of pleadings under Order 8 of the Civil Procedure Rules which is primarily guided by the need to determine the real questions in controversy and achieve substantive justice provided amendments cause no un-compensable prejudice to the opposing party. The following key principles govern the exercise of discretion when it comes to the Court’s consideration to grant a request for amendment of pleadings may it be in civil, commercial or constitutional disputes:Substantive Justice: The primary goal is to determine the true merits of the case rather than punishing parties for technical mistakes or inadvertence. Real Controversy: Amendments must be necessary for the purpose of determining the actual questions or issues raised between the parties.No Prejudice: Amendments will generally be allowed if they do not cause injustice or prejudice to the other side. Any prejudice that can be compensated with an award of costs is usually not a bar to amendment.No New Cause of Action: An amendment will generally be rejected if it fundamentally changes the nature of the suit into a substantially different cause of action that warrants a fresh, independent lawsuit.Timeous Application: Applications should be made promptly upon the discovery of new facts. However, the court has broad discretion to allow amendments at any stage of proceedings, even very late, if made in good faith. Limitation Acts: A plaintiff will not be allowed to amend their pleadings if the amendment deprives the defendant of an accrued defense under the Limitation of Actions Act.Consistency: The proposed amendments must be consistent with the original suit and not mutually destructive or contradictory to admitted facts. 17.This is the position Courts have taken on amendment of pleadings by construing and interpreting the key principles to guide the exercise of discretion: Central Kenya Ltd v Trust Bank Ltd & 5 Others (2000) eKLR: A cornerstone case laying down that all amendments should be freely allowed at any stage to avoid multiplicity of suits, provided there is no prejudice or injustice to the opposing party. Joseph Ochieng & 2 Others v First National Bank of Chicago (Civil Appeal 149 of 1991): Highlights the importance of timely amendments and assessing potential prejudice or time-bar issues for defendants. AAT Holdings Limited v Diamond Shields Ltd (2014) eKLR: Reinforces the principle that amendments are necessary to determine the real question in controversy. Eastern Bakery v Castelino [1958] EA 461: A foundational East African authority, frequently applied in Kenyan High Court rulings, establishing that pre-trial amendments should be freely allowed if the other party suffers no un-compensable injustice. Hill School Ltd v Bank of Africa Kenya Ltd [2018] eKLR: The Court of Appeal summarized the five primary guidelines regulating the amendment of pleadings, covering substantive justice, good faith, prejudice, and limitation periods. 18.Keeping in view of the above, along with the facts which have been presented before this Court the amendment of the petition is allowed and the same be served upon the Respondents to file any counter evidential material touching on the amendments. For those reasons the two notices of motion dated 22nd January 2026 and 23rd of February 2026 respectively are hereby allowed with no orders as to costs. A further order is hereby made that this petition be mentioned on 20th of July 2026 before the Presiding Judge for allocation to an appropriate Court for hearing and determination. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 7TH DAY OF JULY 2026.………………………….……….R. NYAKUNDIJUDGE