[2019] KEHC 1675 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

MISCELLANEOUS JUDICIAL REVIEW APPLICATION NO. 7 OF 2019

REPUBLIC........................................................................................................APPLICANT

VERSUS

COUNTY GOVERNMENT OF MURANG’A..................................1ST RESPONDENT

CHAIRMAN MURANG’A COUNTY

ALCOHOLICS DRINKS BOARD...................................................2ND RESPONDENT

CHAIRMAN KAHURO SUB-COUNTY

ALCOHOLICS DRINKS REGULATORY COMMITTEE...........3RD RESPONDENT

EX-PARTEPETER NDUATI RUTHI.

RULING

1. The ex parte applicant is the proprietor of ten bars and restaurants in Kahuro Sub-County within Murang’a County.

2. In 2019, he applied for renewal of the liquor licences. An inspection of the businesses was conducted between 15th and 17th April 2019. The applications were rejected.

3. The ex parte applicant was however granted three months to “clear the stocks and close down the enterprise(s)”. He requested for reasons. They were communicated in letters marked PNR3. They ranged from lack of or poor sanitation facilities; poor ventilation; poor lighting; unkempt premises; location in a residential area; failure to secure the premises; and, potential risks of injury to patrons.

4. The ex parte applicant avers that he made the necessary changes to the premises but his application for review was ignored by the respondents. He contends that the action is unreasonable, discriminatory and aimed at ruining his business. Those matters are detailed at length in the chamber summons; statutory statement; and, verifying affidavit all dated 3rd October 2019.

5. On 7th October 2019, I granted leave to bring proceedings for the writs of certiorari, prohibition and mandamus. The ex parte applicant had also prayed that the leave operates as a stay of the impugned decision. I ordered that the prayer be canvassed interparties.

6. The respondents were served but did not file any reply. They also failed to attend the hearing on 16th October 2019. The net effect is that the averments by the ex parte applicant remain uncontroverted.

7. The substantive notice of motion has been filed and is pending for hearing. It would be prejudicial at this stage to make conclusive findings on the matter. That will be the true province of the trial judge. The only live issue is whether the ex parte applicant deserves a stay pending hearing of the substantive motion.

8. Order 53 Rule 1 (4) of the Civil Procedure Rules 2010 gives the court wide and unfettered discretion to grant a stay. That discretion must however be exercised judiciously. The key considerations are whether the applicant has established an arguable case worth of further investigation during the substantive hearing; whether the stay would be efficacious in the circumstances; and whether failure to grant the stay would render the substantive motion nugatory. See R v Registrar of Companies ex parte Githongo[2001] KLR 299 at 306, Oil Com Kenya Limited v PS Ministry of Roads & Public Works & another [2008] KLR 104 at 110,Jared Benson Kangwana v Attorney General, Nairobi, High Court J. R. No. 446 of 1995 (unreported), R v Clerk County Assembly of Baringo Ex Parte Kamket, Eldoret, High Court, J.R. No. 8B of 2014 (unreported).

9. Applying those principles to the matter at hand, I find as follows. These are existing businesses. Doubt is completely removed by the prior licences marked PNR6 (a) to (j).The ex parte applicant was only applying for renewal of the liquor licences. From the verifying affidavit he carried out some alterations to the premises to comply with the letters from the 1st respondent dated 28th June 2019. The letters had advised him to seek review of the decision once he made amends. I have seen the applications for review by his counsel in annextures PNR5 (a) to (j). No response has been received from the respondents.

10. Granted those circumstances I find that failure to respond to the application for review of the earlier decision is unreasonable. There is some obvious prejudice to the existing businesses. The less I say about it the better. I am thus satisfied that the ex parte applicant has made out an arguable case; and, that a stay would be efficacious in the circumstances.

11. The upshot is that the leave granted on 7th October 2019 to bring proceedings for the writs of certiorari, prohibition and mandamus shall operate as a stay of the impugned decision. The stay granted is for a period of 90 days only within which period the ex parte applicant must set down the substantive notice of motion for hearing.

12. Costs shall abide with the substantive notice of motion.

It is so ordered.

DATED, SIGNEDandDELIVEREDatMURANG’Athis 29th day of November 2019.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:-

Ms. Kimani for the ex parte applicant instructed by R. M. Kimani & Company Advocates.

Mr. Chege holding brief for Mr. Mwangi for the respondents.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.