Mukaria t/a Modern Bar & Restaurant v County Government of Marsabit & 2 others

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **CONSTITUTIONAL & HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NUMBER E002 OF 2024** **PETER MUKARIA T/A** **MODERN BAR & RESTAURANT…………...……………………..PETITIONER** **VERSUS** **COUNTY GOVERNMENT OF MARSABIT…………………..1ST RESPONDENT** **MOYALE SUBCOUNTY ALCOHOLIC DRINKS** **REGULATIONS COMMITTEE …………………..………….2ND RESPONDENT** **DCC MOYALE SUBCOUNTY………………..……………...3RD RESPONDENT** **JUDGEMENT** 1. **INTRODUCTION** 2. The Petition filed before this court for determination is the one dated 27.03. 2024, where the petitioner seeks for the following orders; 3. ***A declaration order holding that the decision of the respondents of shutting down the petitioners’ bar business is unconstitutional, null and void ab initio.*** 4. ***Conservatory orders be issued quashing the implementation and enforcement of the decision of the respondents shutting down the petitioners’ bar business.*** 5. ***Conservatory orders be issued quashing the Closure Notice issued on the 14th March 2024 by the 3rd Respondent shutting down the petitioners’ bar business.*** 6. ***A declaration that the rights of the petitioner under Article 47 of the Constitution of Kenya 2010 were violated by the respondents.*** 7. ***In the alternative, an order of mandamus compelling the 1st, 2nd and 3rd respondents to allow the petitioner trade in their business.*** 8. ***The costs of this petition be borne by the respondents.*** 9. ***Any other orders that this Honourable Court may deem fit to grant.*** 10. The said Petition is supported by the grounds stated on its face of the petition and the Supporting Affidavit of the Applicant, Peter Mukaria sworn on 27th March 2024.In his affidavit, the Petitioner depones that he is a businessman resident at Sessi Trading Centre, Moyale Township, where he has operated, “*Modern Bar & Restaurant*” for over thirty years. He avers that he emigrated from Meru in the early 1990s, purchased land at Sessi Shopping Centre, and established his bar and restaurant business, which has since grown to employ fifteen permanent employee’s. 11. He states that on 14th March 2024, the 1st and 2nd Respondents, through the 3rd Respondent, issued a closure notice against his premises despite the fact that the County Government had already licensed his business. He annexed copies of: 12. *A Single Business Permit for the year 2024 (Serial No. 28971) issued on 9th February 2024 upon payment of Kshs.9,000/=* 13. *A Health Clearance Certificate for the year 2024 (Serial No. 035/2024) issued on 11th March 2024 upon payment of Kshs.2,000/=* 14. *A Food, Drugs and Chemical Substances License for the year 2024 (Serial No. 070/2024) issued on 11th March 2024 upon payment of Kshs.6,500/=* 15. He contends that despite compliance with all licensing requirements, the 3rd Respondent arbitrarily issued the closure notice, alleging that his business was situated in a residential area and had been visited by a multi‑agency team. He denies these allegations, stating that no such inspection was ever conducted, and annexed photographs showing that his premises are located within Sessi Shopping Centre, and not within a residential area as alleged. 16. The Petitioner further, avers that the closure notice was rushed, maliciously issued, and intended to irreparably violate his fundamental rights and freedoms. He invokes the doctrine of necessity, arguing that conservatory order should issue to stop enforcement of the closure notice, to avert huge financial losses that he would suffer. The Respondents had acted in bad faith, abused their discretion, and discriminated against him, thereby violating his rights under **Articles 27, 28, 40, and 47 of the Constitution**. He thus urged the court to grant the orders sought in the said Petition with the attendant Costs. 17. **THE RESPONSE** 18. **1st and 2nd Respondents’ Response** 19. The 1st and 2nd Respondents filed a Replying Affidavit sworn by Arero Halkano, the Acting County Secretary of Marsabit County Government, on 20th November 2025.He averred that the Petitioner had been running a bar in Moyale Sub‑County without an alcoholic drinks license, contrary to **Section 8(1)(b) of the Marsabit County Alcoholic Drinks Act, 2016**, which provides that no person shall sell, distribute, dispose of, or deal with any alcoholic drink in the county except under and in accordance with a license issued under the Act. 20. He further stated that the 2nd Respondent, being the licensing authority under Section 9 of the Act, had declined to issue a license to the Petitioner for several reasons. These included the fact that the Petitioner’s premises were in close proximity to residential areas and to Sessi Integrated Academy, a school within Moyale Township. He also deponed that the Petitioner was selling non‑customized liquor, operating without a valid liquor license, and employing minors and aliens, all of which contravened the law. 21. The 1st and 2nd Respondent, also referred to the national directive issued in early 2024 by the Cabinet Secretary for Interior and National Administration, Prof. Kithure Kindiki, ordering a nationwide crackdown on illicit brew, drugs, and substance abuse. Pursuant to this directive, the 2nd Respondent convened a meeting on 7th March 2024 to deliberate on government action. At that meeting, it was resolved that all liquor outlets be closed pending inspection by the liquor committee. The criteria for inspection included: 22. *Closeness of premises to residential areas and schools (less than 300 metres).* 23. *Operating before and beyond stipulated hours.* 24. *Valid operating licences (single business permit, public health licence, liquor licence).* 25. *Sale of non‑customized liquor.* 26. *Employment of aliens, especially minors*. 27. It was to be noted that inspections were carried out on 8th and 9th March 2024, and a feedback meeting was held on 9th March 2024, where approval was given to close seven liquor outlets due to non‑compliance. Annexed to the affidavit were minutes of the said meetings. With respect to the Petitioner’s premises, the inspection revealed multiple breaches, namely: 28. *The premises were located near residential areas.* 29. *The premises were operating before and beyond stipulated hours.* 30. *The Petitioner had no valid liquor licence.* 31. *Sale of non-customized liquor was ongoing.* 32. *Presence of minors (girls under 18 years) allegedly engaged in prostitution.* 33. *Employment of illegal aliens, particularly Ethiopians.* 34. The 1st and 2nd Respondents contended that these findings justified the closure notice dated 14th March 2024. They had also relied on advice from the County Attorney that operating without a license contravened **Section 42 of the Marsabit County Alcoholic Drinks Act, 2016**, and had also placed an advertising signage on the premises reading “*Modern Bar & Restaurant*,” contrary to Section 45(2) of the said Act. 35. The 1st and 2nd Respondent thus urged the court to find that the said Petition lacked Merit and be pleased to dismiss the same with Costs. 36. **3rd Respondent’s Response** 37. The 3rd Respondent, through Benedict K. Munywoki, Deputy County Commissioner Moyale Sub‑County, swore a Replying Affidavit opposing the petition. He averred that the Petitioner’s assertion of operating a bar and restaurant at “Sessi Shopping Centre” was misleading, as Sessi is merely a suburb within Moyale town and not a recognized shopping centre. He further stated that the Petitioner employed fifteen workers, the majority of whom were Ethiopian nationals residing illegally in Kenya without work permits, thereby contravening immigration and labour laws. 38. He further contended that the Petitioner did not possess a valid liquor license as required under **Section 42(1) of the Marsabit County Alcoholic Drinks Control Act, 2016**, and was therefore not entitled to carry on liquor business within Moyale town. He emphasized that on 10th March 2024, a multi‑agency team raided the premises and found liquor being sold before stipulated hours. During the raid, one Ethiopian employee working illegally was arrested, and un‑customized Ethiopian beer was confiscated. 39. He further relied on Sections 8 and 10 of the Chief’s Act, which empower chiefs to prevent crime and restrict liquor consumption, including prohibiting drinking bouts and supply of liquor to minors. He also cited Section 42(2) of the Marsabit County Alcoholic Drinks Control Act, 2016, which criminalizes evasion of license conditions by selling alcohol outside licensed premises. 40. Additionally, he maintained that all actions taken were lawful, within mandate, and not motivated by malice but by legitimate enforcement of statutory provisions. He asserted that all laid‑down procedures were followed strictly before the closure decision was arrived at, and that the closure was necessitated by the Petitioner’s illegalities, including operating without a license, selling liquor outside permitted hours, and employing undocumented aliens. 41. He further deponed that regulation of alcoholic drinks is a devolved function under the Constitution, and that if the Petitioner was dissatisfied with the regulations, his recourse lay with the licensing authority and not the 3rd Respondent, who was merely executing lawful orders. He concluded that the Petitioner was not entitled to any administrative remedies sought, having acted contrary to the Marsabit County Alcoholic Drinks Control Act, 2016. He thus urged this court to dismiss the said Petition 42. **ANALYSIS AND DETERMINATION** 43. This Court has considered the Petition, the affidavits filed in support and in opposition, and the submissions of counsel. The issues which arise for determination are: 44. ***Whether the closure notice dated 14th March 2024 was unconstitutional and whether the Petitioner’s rights under Articles 27, 28, 40, and 47 of the Constitution were violated*** 45. ***Whether the Petitioner is entitled to the reliefs sought, including conservatory orders and mandamus.*** 46. ***Who should bear the costs of this suit.*** 47. **Whether the closure notice dated 14th March 2024 was unconstitutional and whether the Petitioner’s rights under Articles 27, 28, 40 and 47 of the Constitution were violated** 48. Section 8(1)(b) of the Marsabit County Alcoholic Drinks Control Act, 2016 provides: ***“No person shall sell, distribute, dispose of, or deal with any alcoholic drink in the county except under and in accordance with a license issued under this Act.”*** 1. Section 42(1) of the same Act provides: ***“If any person purchases any alcoholic drink from a licensee whose license does not cover the sale of that alcoholic drink for consumption on the premises, and drinks the alcoholic drink on the premises where it is sold, or in any premises adjourning or near to those premises, if belonging to the seller of the alcoholic drink or under his control or use by his permission, or on any highway adjoining or near any such premises, and it is proved to the court that the drinking of the alcoholic drink was with the privity or consent of the licensee who sold the alcoholic drink, the licensee commits an offence.”*** 1. Section 45(2) of the Act provides: ***“The fact that a person not licensed under this Act to sell alcoholic drinks has a signboard or notice upon or near his premises fitted with a bar or other place containing bottles, casks or vessels so displayed as to induce a reasonable belief that alcoholic drink is sold or served therein, or having alcoholic drink concealed, or more alcoholic drink than is reasonably required for the person residing therein, shall be deemed to be prima facie evidence of the unlawful sale of alcoholic drink by that person.”*** 1. Section 8 of the Chief’s Act provides powers of chief in preventing of crime as follows: 2. ***Any chief may interpose for the purpose of preventing, and shall to the best of his ability prevent, the commission of any offence of any by any person within the local limits of his jurisdiction.*** 3. ***Any chief or assistant chief knowing a design by any person to commit an offence within the local limits of his jurisdiction may, if it appears to such chief or assistant chief that the commission of the offence cannot be otherwise prevented, arrest, or direct the arrest of such person, and any person arrested under the power conferred by this sub section shall, without delay, be taken to the nearest police station.*** 4. ***………………………………….*** 5. ***………………………………….*** 6. Further, Section 10(a) and (b) of the Chief’s Act further empowers chiefs to issue orders: ***“(a) Prohibiting or restricting the consumption or possession of intoxicating liquor by, and the supply of such liquor to young persons.*** ***(b) Prohibiting or restricting the holding of drinking bouts.”*** 1. The above‑referred provisions, especially the cited provision of the Marsabit County Alcoholic Drinks Control Act, underscore that the fulcrum of legality in the sale of alcohol is possession of a valid liquor license. The Petitioner produced a Single Business Permit, a Health Clearance Certificate, and a Food, Drugs and Chemical Substances License. However, he did not produce a liquor license as required under **Section 8(1)(b) the Marsabit County Alcoholic Drinks Control Act, 2016**. The 1st and 2nd Respondents also annexed inspection minutes showing breaches including proximity to a school, sale of non‑customized liquor, employment of minors and aliens, and operation outside permitted hours. 2. The 3rd Respondent deponed that he acted pursuant to his statutory mandate under the Chief’s Act and in execution of laws established by the County Government, producing evidence of a multi‑agency raid on 10th March 2024, arrest of an Ethiopian employee working illegally, and confiscation of un‑customized Ethiopian beer. 3. It is not lost to this Court that the Marsabit County Alcoholic Drinks Control Act, 2016 is a devolved statute enacted pursuant to Article 186 and the Fourth Schedule of the Constitution, which vests counties with power to regulate liquor licensing. Enforcement of such county legislation necessarily involves coordination between county officers and national administrators such as chiefs, who under Sections 8 and 10 of the Chief’s Act are mandated to prevent offences and restrict unlawful liquor consumption. The 3rd Respondent’s participation in the raid was therefore not a unilateral act but part of a coordinated enforcement of county laws. 4. This Court observes that where a public officer acts within the scope of his statutory mandate and under instructions of a competent authority, liability does not attach to him personally unless mala fides or excess of jurisdiction is demonstrated. In the present case the said excess or illegality has not been demonstrated as the Respondents demonstrated that the closure formed part of a county‑wide enforcement exercise, and no material was tendered to show that the Petitioner was singled out for discriminatory treatment or subjected to degrading conduct beyond the ordinary consequences of regulatory enforcement. 5. The Petitioner was operating without a liquor license and his reliance on ancillary permits cannot cure this defect. A liquor licence is the statutory prerequisite for engaging in the sale of alcoholic drinks. Without it, the Petitioner’s business was unlawful ab initio. The closure notice was therefore lawful and substantively justified under statute. 6. This Court also reiterates that constitutional rights cannot be invoked to shield illegality. Article 40 on property rights is expressly subject to lawful regulation, and Article 47 on fair administrative action cannot be used to perpetuate unlawful conduct. 7. On the merits, therefore, the closure notice was grounded in statutory violations under the County Alcoholic Drinks Act and the Chief’s Act, and the 3rd Respondent cannot be faulted for acting within his duty and executing laws established by the County Government. His plea that the closure of his bar be declared unconstitutional and/or that his rights under Articles 27, 28, 40 and 47 of the Constitution were violated also fails and the same is disallowed. 8. **Whether the Petitioner is entitled to the reliefs sought, including conservatory orders and mandamus.** 9. The Petitioner further prayed that conservatory orders be issued quashing enforcement of the closure notice; and in the alternative, mandamus compelling the Respondents to allow him to continue trading. 10. On declaration, this Court has already found that the Petitioner was operating without a liquor license as required under **Section 8(1)(b) of the Marsabit County Alcoholic Drinks Control Act, 2016**. His reliance on ancillary permits cannot cure this defect. A liquor license is the statutory prerequisite for engaging in the sale of alcoholic drinks. Without it, the Petitioner’s business was unlawful ab initio. The closure notice was therefore substantively justified under statute, and the conservatory reliefs sought cannot issue. 11. Secondly as observed in ***Invesco Assurance Co. Ltd v MW (Minor suing thro’ next friend and mother HW) [2016] eKLR*** and ***Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board & Others [2016] eKLR,*** such orders are generally granted purely to preserve the subject matter pending the hearing of the suit. They operate as an undertaking that no action be taken until the motion/petition is determined, and are intended to maintain the status quo. They cannot be sought or granted as a final remedy. 12. With respect to mandamus, the conditions for the grant of such an order were set out by Mativo J. in ***Republic v Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] eKLR*** in the following terms: ***“Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General), and was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration). The eight factors that must be present for the writ to issue are:-*** ***(i) There must be a public legal duty to act;*** ***(ii) The duty must be owed to the Applicants;*** ***(iii) There must be a clear right to the performance of that duty, meaning that:*** ***a. The Applicants have satisfied all conditions precedent; and*** ***b. There must have been:*** ***i. A prior demand for performance;*** ***ii. A reasonable time to comply with the demand, unless there was outright refusal; and*** ***iii. An express refusal, or an implied refusal through unreasonable delay;*** ***iv. No other adequate remedy is available to the Applicants;*** ***v. The Order sought must be of some practical value or effect;*** ***vi. There is no equitable bar to the relief sought;*** ***vii. On a balance of convenience, mandamus should lie*** 1. Applying that test, the Petitioner has not demonstrated a clear legal right to continue trading without a liquor license. The statutory prerequisite under Section 8(1)(b) has not been satisfied. To compel the Respondents to allow him to operate without such license would amount to directing them to act contrary to law. Mandamus orders cannot be issued to uphold an illegality. 2. This Court reiterates that public interest in enforcing licensing laws outweighs the Petitioner’s private interest in continuing an unlawful enterprise. 3. **DISPOSITION** 4. The upshot is that this petition, dated 27.03. 2024 lacks merit and the same is dismissed with no orders as to costs. 5. It is so ordered. Judgment read, signed and delivered in Open Court at **MARSABIT** this **14th** day of **SEPTEMBER,** **2026**. **FRANCIS RAYOLA OLEL** **JUDGE** **Delivered** on the **virtual platform, Teams** this **14TH** Day of **SEPTEMBER, 2026.** In the presence of:- N/A…………….……………..PETITIONER N/A…………..…..1ST & 2ND RESPONDENT N/A……………………..3RD RESPONDENT MR. JARSO…………..COURT ASSISTANT