[2025] KEHC 4144 (KLR)

Ndegwa v County Government of Nyandarua & 3 others (Constitutional Petition E009 of 2024) [2025] KEHC 4144 (KLR) (Civ) (1 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4144 (KLR)

Republic of Kenya

In the High Court at Nyandarua

Civil

Constitutional Petition E009 of 2024

KW Kiarie, J

April 1, 2025

Between

Josephat Muiruri Ndegwa

Applicant

and

The County Government Of Nyandarua

1st Respondent

The Hon. Attorney General

2nd Respondent

The County Assembly Of Nyandarua

3rd Respondent

The Cabinet Secretary for Interior & Coordination Of National Government

4th Respondent

Judgment

1. Josephat Muiruri Ndegwa, the petitioner, submitted a petition to the court, which was amended on July 27, 2024. He is acting on behalf of bar owners in Nyandarua County. He is seeking the following reliefs:a.A declaration be issued that the Alcoholic Drinks licensing function is a regulatory or controlling function that was devolved to the County Governments by dint of paragraph 4 (c) of Part 2 of the Fourth Schedule to the Constitution of Kenya 2010, including over the manufacture, production sale and consumption thereof and therefore, all other matters connected with licensing, including violations and enforcement must necessarily lie with the County Government.b.A declaration be issued that pursuant to the foregoing, the inclusion of National Government officers, that is, the County Commissioner or their designate and one person designated by the Kenya Bureau of Standards at Section 4 (3) (b) and (h) respectively of the Nyandarua County Alcoholic Drinks Control Act. 2024 into the Nyandarua County Alcoholic Drinks Regulation and Management Committee, as well as the inclusion of the Deputy County Commissioner(s) and the Sub-County police Commander at Section 6 (3) (a) and (b) of the Nyandarua County Alcoholic Drinks Control Act. 2024 Into the Nyandarua Sub-County Alcoholic Drinks Regulation Committee are unconstitutional.c.A declaration be issued that further the inclusion of officers appointed under the National Police Service Act, 2011, Standards Act, Weights and Measures Act and Anti-Counterfeit Act, all of whom are officers from the National Government as enforcement officers of the Nyandarua County Alcoholic Drinks Control Act, 2024 at Section 52 (3) (b) of the Nyandarua County Alcoholic Drinks Control Act. 2024 is unconstitutional.d.A declaration be issued that Section 52 (3) (c) of the Nyandarua County Alcoholic Drinks Control Act, 2024 is extremely ambiguous, one that requires grave certainty as it may mean to include National Government Officers, which would be unconstitutional and is therefore unenforceable.e.A declaration should be issued regarding the National Alcoholic Drinks Control Act. No. 4 of 2010, in so far as its object, purpose and contents captured therein are concerned, was repealed by the advent of paragraph 4 (c) of Part 2 of the Fourth Schedule to the Constitution of Kenya 2010 and is therefore null and void.f.An order of prohibition prohibiting any National Government Officer and/or Employee from regulating liquor manufacture, production, sale and consumption and any matter connected with licensing thereof, including violations and enforcement thereof in Nyandarua County.g.A declaration that the directive issued by the Cabinet Secretary, Ministry of Interior & Coordination of National Government on the 6th March 2024 for the closure of all bars in Kenya and Nyandarua County is unconstitutional, null and void.h.A declaration of the closure of business premises for the manufacture. The production, sale, and/or consumption of alcoholic drinks without issuing the relevant notices and/or without affording the owner thereof the right to a fair hearing is unconstitutional (Fair Administrative Action).i.A Declaration that the contents of Section 20 (1) (c) of the Nyandarua County Alcoholic Drinks Control Act. 2024 do not give the said section of law a retrospective effect on already existing sellers of alcoholic drinks to be consumed on the premises (bar owners/ traders) within Nyandarua County before the coming into force of the Nyandarua County Alcoholic Drinks Control Act, 2024 either by implication or expressly, are extremely ambiguous requiring grave certainty and therefore unenforceable as the same does not consider urban areas where:j.A declaration that all sellers of alcoholic drinks to be consumed on the premises (bar owners/traders) within Nyandarua County that were in business before the coming into force of the Nyandarua County Alcoholic Drinks Control Act. 2024 are not affected by the zoning introduced by section 201 (a) (c) and (d) of the Nyandarua County Alcoholic Drinks Control Act, 2024 and therefore the seizure of such traders' goods, the closure of their businesses and/or their being charge in court for violating the said section of the law is unconstitutional, if a bar within Nyandarua County preceded a school for leaners under the age of 18 years within 300m radius from the said school or a bar was already in existence within the 300m from a school for learners under the age of 18 years before the advent of then 300m rule, then such a bar-should-not-be-closed, rather the bar owner should be ordered to put in measures to ensure that the area in which the sole is to take place or is taking place is not accessible to persons under the age of eighteen yearsk.An order of prohibition prohibiting the 1st respondent and the National Government personnel within Nyandarua County, including the Officers Commanding Stations and their police officers, the County Commissioners. Deputy County Commissioners and the Assistant County Commissioners. Including area chiefs from harassing, arresting and/ or charging in court of all sellers of alcoholic drinks to be consumed on the premises (bar owners/traders) within Nyandarua County that were in business before the coming into force of the Nyandarua County Alcoholic Drinks Control Act, 2024 and/or interfering with the smooth running of their businesses on account of violation of the provisions of Section 20 (1) of Nyandarua County Alcoholic Drinks Control Act. 2024. l.A declaration that every seller of alcoholic drinks to be consumed on the premises (bar owners/ traders) within Nyandarua County who has been previously issued with a liquor licence is entitled to a liquor licence for the succeeding years unless he is not fully compliant with the Nyandarua County Alcoholic Drinks Control Act, 2024. m.A declaration that all applicants for new liquor licences for business that meets the qualifications enshrined in the Nyandarua County Alcoholic Drinks Control Act, 2024, are entitled to liquor licences.n.The costs of this petition should be provided, together with interest at the court’s rate.

2. The application was premised on the following grounds:a.Section 3 (f) of the County Governments Act provides for public participation in the conduct of the County Assembly's activities, as required under Article 196 of the Constitution.b.Section 115 of the County Governments Act emphasizes and makes mandatory public participation as provided for under Article 196 of the Constitution and provides various mechanisms for facilitating it.c.That the preamble of the Nyandarua County Alcoholic Drinks Control Act, 2024, provides that the said Act is an Act of the County Assembly of Nyandarua to provide for the management, control, licensing and regulation of the production and sale of alcoholic drinks. distribution and consumption of alcoholic beverages and related purposes.d.Section 3 (1) of the Nyandarua County Alcoholic Drinks Control Act, 2024 provides for the Act, which provides for the licensing of alcoholic drinks to control the production, sale, distribution, promotion and consumption of alcoholic drinks and the promotion of research, treatment and rehabilitation of persons dependent on alcoholic drinks; while Section 3 (2) of the said Act provides avoidance of doubt, the said Act shall not apply to any matter in respect of me motions of the National Government regarding the prescribing and enforcement of standards of production, manufacture, importation and exportation of alcoholic drinks.e.Section 4 (3) (b) of the Nyandarua County Alcoholic Drinks Control Act, 2024 provides for the inclusion of the County Commissioner or their designate into the Nyandarua County Alcoholic Drinks Regulation and Management Committee while Section 4 (3) (h) provides for the inclusion of one person designated by the Kenya Bureau of Standards into the said committee.f.Section 6 (3) (a) of the Nyandarua County Alcoholic Drinks Control Act, 2024 provides for the inclusion of the Deputy County Commissioner into the Nyandarua Sub-County Alcoholic Drinks Regulation and Management Committee, while Section 6 (3) (b) provides for the inclusion of the Sub-County Police Commander into the said committee.g.That Section 52 (3) (b) and (c) of the Nyandarua County Alcoholic Drinks Control Act, 2024, introduce authorized officers for purposes of the said Act as enforcement officers appointed under the National Police Service Act. Weights and Measures Act and Anti-Counterfeit Act, and other persons upon whom any written law vests functions of the maintenance of law and order, respectively.h.Section 3 of the Alcoholic Drinks Control Act, No. 4 of 2010, provides that the object and purpose of the said Act is to provide for the control of the production. sale, and use of alcoholic drinks.

3. The respondent opposed the application on the following grounds:a.The Fourth Schedule of the Constitution of Kenya, 2010, provides for the distribution of functions between the National Government and the County Government.b.The aforementioned Schedule, Part 2, Paragraph 4, outlines the County Government's functions and duties, which include issuing liquor licenses, organizing cultural activities, providing public entertainment, and maintaining public amenities.c.In the spirit of the said Article, it informed the 1st respondent to have the composition of the National Government agencies in the management Committees and Sub-County Committees in Sections 4 and 6 of the Nyandarua County Alcoholic Drinks Control Act, 2024. d.That it is only practical to manage, control, and regulate the sale, distribution and consumption of alcoholic drinks within the county involving all the relevant bodies, both National and County.e.The County Government, having the constitutional mandate under the Fourth Schedule to license alcoholic drinks, requires technical and enforcement personnel, who are the County Commissioner, Police, and Kenya Bureau of Standards, to assist it in achieving the purpose and objectives of the Act.f.That including the County Commissioner, the police and the Kenya Bureau of standard does not erode the constitutional function of the County Government to license alcoholic drinks but strengthens the process and breaths life to Article 6(2) of the Constitution.g.All laws, both National and County, should be interpreted to complement each other; hence, the application of the National Police Act, 2011, Standards Act, Weights and Measures Act, and Anti-counterfeit Act in managing and controlling Alcoholic Drinks at the two levels of Government.h.In paragraph 6 of the petition, the petitioner fails to demonstrate knowledge of the existence of the management committees and sub-county committees that the County Assembly approved on 7th November 2024. i.In paragraph 9 of the petition, the petitioner refers to the issuance and inspection of licenses annually as a violation of Article 40 of the Constitution. Annual licensing is a consumer protection practice, as provided for in Article 46 of the Constitution, to ensure that proper standards are maintained in accordance with laws and regulations. Traders should be up to date with the existing relevant laws and regulations.j.That the Petitioner, in paragraph 11, refers to Section 20(1) of the Act on the license of premises where alcoholic drinks are sold. These provisions and the entire Act must be read together with the Regulations for proper interpretation. The licensing regulations shall guide the inspection criteria for new applicants.k.That the petitioner has not paid for alcoholic drinks licensed for Seed Bar and Restaurant since 2016, as demonstrated in his exhibit JMN1, but has continued to operate the alcoholic drinks business. This demonstrates to his honourable court that the petitioner has been operating this business illegally.l.That the petitioner has not paid for Alcoholic drunk licenses for Heshima Bar since 2012, as demonstrated in his Exhibit JMN3, but has continued to operate the alcoholic drinks business. This demonstrates to this honourable court that the petitioner has been operating this business illegally.m.That this application is incompetent, misconceived and intended to mislead the court into granting the orders prayed to the detriment of

4. The petitioners have criticised the role of the National Government of Kenya in issuing a directive and ordering the closure of all bars in Kenya and Kisumu County [sic], as licensing is a devolved function of the County Governments.

5. The first respondent has contended that the two levels of government complement each other to execute their mandates for the good of the Public.

6. From the issues raised by the petitioner, are the issues that emerge for determination:a.Whether the National Alcoholic Drinks Control Act No. 4 of 2010 has been repealed and whether it applies to the Counties.b.Whether involving the National Government officers in the devolved functions contravenes the Constitution.c.Whether the directive issued by the Cabinet Secretary, Ministry of Interior & Coordination of National Government on the 6th March 2024 for the closure of all bars in Kenya and Nyandarua County is unconstitutional.d.Whether the zoning introduced by section 201 (a) (c) and (d) of the Nyandarua County Alcoholic Drinks Control Act, 2024, is unconstitutional.e.Whether the arrest of bar owners who violate the provisions of Section 20 (1) of the Nyandarua County Alcoholic Drinks Control Act. 2024 is unconstitutional.f.Whether a declaration should be issued that every seller of alcoholic drinks to be consumed on the premises (bar owners/traders) within Nyandarua County who has previously been issued a liquor license is entitled to a liquor license for the subsequent years unless he is not fully compliant with the Nyandarua County Alcoholic Drinks Control Act, 2024. g.Should a declaration be issued that all applicants for new liquor licenses for businesses that meet the qualifications enshrined in the Nyandarua County Alcoholic Drinks Control Act, 2024, are entitled to liquor licenses?

7. Paragraph 4 (c) of the Fourth Schedule to the Constitution of Kenya provides for the county's functions and powers to include liquor licensing. Both parties in this dispute acknowledge this fact. I do not, therefore, need to belabour this point.

8. Who can suspend a License? A liquor license can only be suspended by the entity that issued it. In this case, it is the County Government of Nyandarua, not the National Government. The National Government lacked the capacity to suspend the liquor licenses.

9. The National Alcoholic Drinks Control Act No. 4 of 2010 has not been repealed, as the applicants contended.

10. The petitioners' primary contention is that the members of the National Government were included in the management committees and Sub-County Committees outlined in Sections 4 and 6 of the Nyandarua County Alcoholic Drinks Control Act, 2024. The first respondent has argued that this does not compromise the execution of their devolved function as envisaged in the Constitution.

11. We recognize that county governments are still evolving, and there is a genuine need to tap into members of the National Government where such functions were previously domiciled. In my opinion, this will ensure that institutional memory is retained. They can build upon previous successes and avoid potential pitfalls. Provided that these members of the National Government are not the ones steering the process, no party can suffer detriment due to their inclusion. The framers of the Kenyan Constitution anticipated this. Article 6(2) of the Constitution provides as follows: -The governments at the national and county levels are distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation.

12. Governments at each level are expected to collaborate in fulfilling their functions and may establish joint committees and authorities. This is provided for under Article 189 (2) of the Constitution. It provides:Government at each level, and different governments at the county level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities.

13. The claim that including members of the National Government in the management committees and Sub-County Committees contravened Sections 4 and 6 of the Nyandarua County Alcoholic Drinks Control Act 2024 and the Constitution was misguided.

14. Section 52 (3) (c) of the Nyandarua County Alcoholic Drinks Control Act, 2024, provides:In addition to the authorised officer appointed under this section, the following officers shall be deemed to be authorised officers for this Act—(c)any other person upon whom any written law vests functions of the maintenance of law and order.

15. This section does not contradict the Constitution of Kenya but is drafted in the spirit of Articles 6(2) and 189(2) of the Constitution.

16. Except the finding in paragraph 8 that the National Government lacked the capacity to suspend the liquor licenses, all the other prayers have no basis, and they are accordingly dismissed.

17. Each party will bear its costs.

DELIVERED AND SIGNED AT NYANDARUA THIS 1ST DAY OF APRIL 2025KIARIE WAWERU KIARIEJUDGE