[2025] KEHC 4322 (KLR)

Mworia t/a Silent Bar v County Government of Nyeri & 2 others (Judicial Review Application E013 of 2024) [2025] KEHC 4322 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEHC 4322 (KLR)

Republic of Kenya

In the High Court at Nyeri

Judicial Review Application E013 of 2024

DKN Magare, J

March 27, 2025

Between

Hellen Njeri Mworia t/a Silent Bar

Applicant

and

County Government Of Nyeri

1st Respondent

Nyeri County Alcoholic Drinks Control And Licensing Board

2nd Respondent

Nyeri County Director Liquor Licensing Board

3rd Respondent

Judgment

1. This is a Judgment in respect of the Judicial Review Application dated 27. 6.2024. The Applicant is seeking for orders as follows:a.An Order of Mandamus be directed against the Respondents compelling them to issue a liquor trading license for the year 2023/2024 to last for 1 calendar year from the date of issuance.d)Costs

2. The Application is premised on the grounds on its face and is supported by the affidavit of the even date, sworn by the Applicant.

3. It is deposed as follows:i.The Applicant is the owner of the subject bar and is a person living with congenital disability.ii.By minutes dated 8. 2.2024, the committee of the Respondents conducting public participation on issuance of license approved issuance of a license to the Applicant but when the Applicant wrote to the 2nd Respondent requesting for issuance of the license on 19. 2.2024 and 31. 5.2024, no response or license was given.iii.The decision to decline issuing a license to the Applicant was ultravires, illegal and contrary to Fair Administrative Action and the Nyeri County Alcoholic Drinks Control Act.

4. The Respondents filed a Replying Affidavit sworn buy Josphat Wamaitha on 5. 8.2024 on the grounds inter alia that:i.Section 21 of the Nyeri County Alcoholic Drinks Control Act 2024 reserves the role of liquor licensing to the County Liquor Committee.ii.On 15. 1.2024 a complaint was raised by 44 objectors addressed to the County Commissioner on behalf of Hubuini Residents objecting to a bar being brought up at a neighboring Hubuini Primary School and Nursery.iii.The Nursery School will be relocated to the Applicant’s current location and so will be near the bar.iv.The Applicant did not have legitimate expectation since the decision was lawful.

Submissions 5. The Applicant filed submissions dated 2. 9.2024 by which it was submitted that the denial of the license was unreasonable, unlawful and procedurally unfair and against fair administrative justice. Reliance was placed on Republic v Public Procurement Administrative Review Board, Shenzoh Instrument Co Ltd & Another ex parte Kenya Power & Lighting Co Ltd [2019] eKLR.

6. It was submitted that there was procedural impropriety since the 2nd Respondent instructed that license be issued but the 3rd Respondent declined.

7. It was submitted that Section 20 of the Act permitted an aggrieved party following a decision of the committee to appeal to the High Court.

8. The Respondents also filed submissions by which it was submitted that the Application should be considered in line with the County Alcoholic Drinks Control Act, 2024.

9. The Respondents further submitted that the Applicant had failed to show that the decision was tainted with illegality, irrationality and procedural impropriety. They cited Republic v Public Procurement Review Administrative Board & Another ex parte Intertek Testing Services (EA) Pty Ltd & Others [2022] eKLR.

Analysis 10. The issue for determination is whether the Respondents’ failure to issue a liquor license to the Applicant warrants a judicial review order of mandamus.

11. The Applicant maintained that the acts of the 3rd Respondent in decling to issue her business permit in respect of the Silent Bar when the 2nd Respondent had approved such issuance was arbitrary, illegal, unreasonable and unconstitutional and infringed on Article 47 of the Constitution as it violated the Applicant’s right to fair administrative action. On the other hand, the Respondents appear to maintain the position that the decision was proper and in compliance with the Nyeri County Alcoholic Drinks Control Act.

12. The right to fair administrative action is enshrined under Article 47 of the 2010 Constitution as doth;(1)Every person has the right to fair 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—provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b) promote efficient administration

13. An administrative decision must satisfy administrative law that it meets the tenants of the law. The reason stated for the failure to issue the Applicant with a license was that the Applicant’s Silent Bar was near a primary and nursery school. The minutes show that it was less than 300 meters away. These are the minutes dated 8. 2.2024 by Tetu Sub County Alcoholic Drinks Committee. It was also the understanding of the meeting that the nursery school was only temporarily where it then was as it would be moved back to its original place after the construction of a road. It was not said the proximity of the said nursery school from the Silent Bar upon relocation. Further, no reason was advanced as to the proximity and effect of the Silent Bar to the School. The court also notes the Applicant’s letter dated 19. 2.2024 by which the Appellant appealed to the Committee to issue her with the license but which solicited no response.

14. In light of the matters under this Judicial Review Application, the court is concerned with the decision-making process, not with the merits of the decision itself. The procedure appertains whether the Respondent had the jurisdiction, whether the Applicant who was affected by the decision was heard before the decision was made and whether in making the decision the Respondent took into account relevant matters or did take into account irrelevant matters. In the case of Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2002) eKLR, the Court of Appeal held that: -Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.’

15. The actions by the Respondents were contradictory, irrational and unreasonable. It would not be that the 2nd Respondents finds no hardship in issuing the license and the 3rd Respondent declines to issue it. The court finds no reason to decline issuing the license to the Applicant. The procedure was flawed. The alleged school was not represented and its views were not sought in terms of how it would be affected by the presence of the Silent Bar. Even if this were the case, it was clear that the Bar and the School were not in the reasonable vicinity of each other as to placed the operation of the school to jeopardy by the presence of the Bar. The minutes of the 3rd Respondent Committee returned a finding that even members of the public vide the public participation forum recommended the presence of the Bar. As such location appears to be the only reason the 3rd Respondent declined to issue the license, I find it irrational and unreasonable and dismiss it.

16. The cadre of judicial review under our constitutional dispensation is higher and administrative law is now hinged on Article 47 of the Constitution whose effect is to be enforced as a threat to the right to fair administrative action. Under this pretext, the state’s administrative bodies only act within their mandate and not more and for whatever is done outside the mandate, judicial review is the corrective measure. In Daniel Ingida Aluvaala and another vs Council of Legal Education & Another,[ Pet No. 254 of 2017]I observed that:-“Public bodies, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution. It follows that for the impugned decisions to be allowed to stand, it must be demonstrated that the decision is grounded on law.

17. The constitutional has thus embedded into our legal system a transformative development of administrative justice which not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies but also entrenches the right to fair administrative action in the Bill of Rights. In Judicial Service Commission v Mbalu Mutava & Another[ [2015] eKLR] the Court of Appeal held that:-“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”

18. The importance of fair administrative action as a Constitutional right was appreciated in the South African case of President of the Republic of South Africa and Others v South African Rugby Football Union and Others CCT16/98) 2000 (1) SA 1 at paragraphs135 -136 as follows with regard to similar provisions on just administrative action in Section 33 of the South African Constitution:-“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”

19. As a derivative of Article 47 of the Constitution, Section 7 (2) of the Fair Administrative Action Act, 2015 provides for grounds of Judicial Review which include bias, procedural impropriety, ulterior motive, failure to consider relevant matters, abuse or discretion, unreasonableness, violation of legitimate expectation or abuse of power.

20. It was the duty of the Respondent to bring materials before this court to justify the assertion that the Applicant’s business establishment was but an interference to the school or system of schools within the locality. The only assurance given to the Applicant was the right of appeal to the Liquor Committee which I note she applied and no result has been given to date. It would be expected that by this time, the Respondents have sorted out the issue and issued the Applicant with a current license. The expeditiousness of the judicial review process was in my view jeopardized by the inaction by the 3rd Respondent and which entitled the Applicant to the relief sought. It does not matter that the mandamus order in this Application sort issuance of the 2023/2024 license and we are now in 2025. As the court is satisfied that the Respondents ought to have issued a license but they failed, and the irregularity persists, the Applicant is entitled to a Judicial Review Order.

21. The indefinite imbergo on the Applicant’s license placed her life upon the rack influenced by the Respondents who hyped themselves to a position such that they would choose only what is their desire to achieve motives other than justice by keeping her out of trade, ad infinitum. This court will intervene where it is demonstrated that the administrative acts of the Respondents have caused the Applicant and other citizens at large to live and operate their businesses at the mercy of state authorities. This reminds me of the Act 3 Scene 2 in William Shakespeare’s “The Merchant of Venice” as doth:Bassanio:Let me chooseFor as I am, I live upon the rack.Portia: Upon the rack, Bassanio! then confessWhat treason there is mingled with your love.Bassanio:None but that ugly treason of mistrust,Which makes me fear the enjoying of my love:There may as well be amity and life‘Tween snow and fire, as treason and my love.Portia:Ay, but I fear you speak upon the rack,Where men enforced do speak anything.

22. On costs, an award of costs in this court are governed by Section 27 of the Civil Procedure Act. They are discretionally. The Supreme Court has set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -“(18)It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.

23. Since costs follow the event, I find reason to award the Applicant costs. I award Ksh. 105,000/- as costs. The Respondent shall pay the costs jointly and severally.

Determination 24. The upshot is that I make the following orders: -a.The Notice of Motion Application dated 27. 6.2024 is merited and allowed.b.An Order of Mandamus is hereby issued directed jointly and severally at the Respondents compelling them to issue a liquor trading license to the Applicant in respect of Silent Bar for the current trading period.c.The Respondents shall jointly and severally pay costs of Ksh. 105,000/- to the Applicant.

DELIVERED, DATED AND SIGNED AT NYERI ON THIS 27TH DAY OF MARCH, 2025. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:No appearance or parties.Court Assistant - MichaelM.D. KIZITO, J.