[2022] KEHC 10887 (KLR)

Ng’ang’a (Chairman) & 2 others (Nyandarua County Recreation & Entertainment Association Suing Through Its Officials) v County Executive Committee Member for Cultural Activities, Public Entertainment & Alcoholic Drinks Control, Nyandarua County & another; County Assembly of Nyandarua (Interested Party) (Constitutional Petition 7 of 2021) [2022] KEHC 10887 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10887 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Constitutional Petition 7 of 2021

CM Kariuki, J

June 2, 2022

IN THE MATTER OF ARTICLES 1,2,3,19,20,21,23,27,28,33(1), 40,47,48,50,60,64,73,159(1) & (2), 165,174(A), 183(2), 258 & 259 OF THE CONSTITUTION OF KENYA, 2010 -AND- IN THE MATTER OF SECTIONS 4 & 5 OF THE STATUTORY INSTRUMENTS ACT, 2013 -AND- IN THE MATTER OF SECTIONS 2 & 54 OF THE NYANDARUA COUNTY ALCOHOLIC DRINKS ACT, 2019 -AND- IN THE MATTER OF THE NYANDARUA COUNTY ALCOHOLIC DRINKS CONTROL (LICENSING) REGULATIONS, 2021

Between

John Kairu Ng’ang’a (Chairman)

1st Petitioner

James Muhengo Mwaura (Secretary)

2nd Petitioner

Jackson Maina Mwangi (Treasurer)

3rd Petitioner

Nyandarua County Recreation & Entertainment Association Suing Through Its Officials

and

County Executive Committee Member for Cultural Activities, Public Entertainment & Alcoholic Drinks Control, Nyandarua County

1st Respondent

County Government of Nyandarua

2nd Respondent

and

County Assembly of Nyandarua

Interested Party

Judgment

1. The petitioner through the petition dated July 5, 2021prayed for various reliefs being as follows:-i.A declaratory order do issue that the Nyandarua County Alcoholic Drinks Control (Licensing) regulations, 2021 as made by the 1st respondent are unconstitutional for want of stakeholders’ participation before their making as well as for being a threat to the stakeholders’ rights to fair administrative action and are therefore unlawful, null and void ab initio and of no consequence whatsoever.ii.An order of permanent injunction do issue against the Respondents herein restraining them by themselves, their servants, agents and/or persons claiming under their respective titles form implementing the Nyandarua County Alcoholic Drinks Control (Licensing) Regulations, 2021 or in any way implementing their notice contained in the Daily Nation Newspaper of the June 24, 2021at page 41. iii.That costs of this petition be provided for.

2. Contemporaneously with the petition, the petitionersfiled and application of even date seeing conservatory orders buy the same was dismissed by the court vide the ruling dated 21st July 2021.

3. The petition is based on the facts set out in the face of the Petition (paragraph 36, sub paragraph (1) – (17). Additionally, the petitioners relied on the supporting affidavit a well as the supplementary affidavit sworn on 14th July 2021.

4. Primarily, the petitioners contended that the Nyandarua County Alcoholic Drinks Control Licensing Regulations, 2021 (hereinafter referred to as the ‘impugned regulations’) offend the Constitution and express provisions of the law due to the lack of public participation before enacting the regulations. They averred that the said regulations being a statutory instrument are mandatorily required by the law to be subjected to appropriate consultation before their making.

5. Moreover, the Petitioners submitted that the said impugned regulations seek to introduce application forms whose contents and/or requirements together with statutory declarations attached to them and whose contents are unrealistic, oppressive, unconstitutional and /or unlawful and hence the mandatory requirement by the law for the 1st respondent to make the appropriate consultations with persons like the instant major stakeholders in the entertainment and/or alcohol business in Nyandarua county who are likely to be affected by the proposed statutory instrument.

6. The Petition was opposed. The Respondents filed a replying affidavit dated 6th October 2021. The respondents deponed that public participation was done in accordance with the Constitution and the Statutory Instruments Act, 2013 (AMG 5- copy of stakeholders’ attendance list). They averred that the Nyandarua County Recreation & Association was represented in the said public forum where the chairperson of the association attended and participated. Further, they averred that the Daily Nation Newspaper notice dated June 24, 2021 was within the law.

Petitioners’ Submissions 7. The petitionersaverred that their main concern is that the subject regulations were made, passed and gazetted without the requisite and/or mandatory public participation and therefore they are unconstitutional.

8. The petitioners claimed that no appropriate consultations were conducted by the Respondents before making the impugned regulations as contemplated by section 4 & 5 of the Statutory Instruments Act, 2013 and it therefore becomes incumbent upon the respondents to demonstrate to this court what it is they did to ensure compliance with the aforesaid sections.

9. The petitioners alleged that the respondents have failed to demonstrated that they did notify the stakeholders of their intention to make the impugned regulations and/or invite the stakeholders to make submissions or attend participation in public hearings to be held and therefore the regulations offend article 73 (1) (b), 174, 183 (2) of the Constitution of Kenya, section 115 of the County Government Act 2012 and section 4(a) & 5 of the Statutory Instruments Act, 2013.

10. Additionally, the petitioners averred that the report filed in court by the Respondents in an attempt to demonstrate that public participation was conducted did not have an attendance list to enable anyone to vet whether or not the purported stakeholders consultative forum purportedly held on June 2, 2021actually involved persons having expertise in fields relevant to the impugned regulations as well as persons likely to be affected by the impugned regulations as contemplated by section 5 (2) of the Statutory Instruments Act, 2013.

11. Further reliance was also placed on Robert N. Gakuru & others vs Governor Kiambu County & 3 Others (2014) eKLR.

Respondents’ Submissions 12. The respondent’s averred that the issues of determination were whether the prayers sought by the Petitioner were overtaken by events and whether public participation was carried out on the impugned regulations.

13. On the first issue, the Respondents submitted that the newspaper notice dated 24th June 2021 was within the law and has since been implemented by the Respondents and there has been overtaken by events.

14. On the second issue, the Respondents contended that the 1st Petitioner, John Kairu Ng’ang’a, the chairperson of the Nyandarua Recreation and Entertainment Association (hereinafter referred to as ‘the association’) and Ms. Margaret Wambui Kamamia, a member of the association respectively were part of the participation exercise conducted in the making of the regulations. (Copies of the report dated 2nd June 2021 and minutes dated 16th April attached to the Respondents’’ replying affidavit (AMG 4a & AMG 4b). The 1st Petitioner did not at any event raise any objections to the making and contents of the regulations.

15. Reliance was placed on section 54 (1) of the Nyandarua County Alcoholic Drinks Control Act, 2019.

16. In conclusion, the respondents asserted that public participation was done in accordance to the Constitution and the Statutory Instruments Act, 2013 as indicated in the Respondents replying affidavit annexure AMG 5 and that the association was represented in the said public participation forums where the aforesaid chairperson of the association attended and participated.

Analysis and Determination 17. Upon consideration of the petition, affidavits, submissions and the record in its entirety the following issue arises for determination:Whether there was any and/or sufficient public participation preceding the making, passing into law and gazetting the impugned regulations?

18. Public participation is a requirement in the formulation or legislation under the new constitutional dispensation. A healthy democracy needs the involvement of the public in government decision-making that affects their lives otherwise known as participatory democracy. Public participation is defined as “a process leading to a joint effort by stakeholders, technical specialists, the authorities and the proponent who work together to produce better decisions than if they had acted independently”11(content missing)

19. The primary objective of public participation is to demonstrate to the public that the right decisions are being made on balance of scale for the right reasons.

20. It is important to differentiate public participation from consultation. Looking first at consultation, it involves actively seeking the opinions of interested and affected groups. It is a two-way flow of information, which may occur at any stage of regulatory development, from problem identification to evaluation of existing regulation. It may be a one-stage process or, as it is increasingly the case, a continuing dialogue. On one hand, consultation is increasingly concerned with the objective of gathering information to facilitate the drafting of higher quality regulation. On the other hand, participation is the active involvement of interest groups in the formulation of regulatory texts. Participation is usually meant to facilitate implementation and improve compliance, consensus, and political support.

21. However, there are instances where participation and consultation merge. For instance public participation usually involves notification (to publicize the matter to be consulted on), consultation (a two-way flow of information and opinion exchange) as well as participation (involving interest groups in the drafting of policy or legislation).

22. In Kenya, public participation is enshrined as one of our national values and principles of good governance that bind all state organs, state officers, public officers and all persons whenever any of them applies or interprets the constitution, enacts, applies any law or makes or implements public policy decisions.

23. Article 10(2)(a) of the Constitution of Kenya, 2010 provides that:-“(2) The national values and principles of governance include––(a)patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people………….”

24. All the levels of government are obliged by the Constitution of Kenya, 2010 to engender public participation in their governing processes. Article 196(1) (b) of the Constitution provides for public participation in county assemblies. They are obligated to facilitate public participation and involvement in the legislation and other business of the assembly and committee.“196. (1) A county assembly shall—(b)facilitate public participation and involvement in the legislative and other business of the assembly and its committees.”

25. The same mandatory requirement is reiterated under section 3(f) of the County Government Act No. 17 of 2012 which provides:-“the object and purpose of this Act is to……………..provide for public participation in the conduct of activities of the County Assembly as required under article 196 of the constitution.”

26. Furthermore, section 87 of the County Government Act provides for principles of citizen participation in counties. It states that:-“Citizen participation in county governments shall be based upon the following principles:-(a)timely access to information, data, documents, and other information relevant or related to policy formulation and implementation.(b)reasonable access to the process of formulating and implementing policies, law and regulations, including the approval of developments, proposals, projects and budges, the granting of permits and establishment of specific performance standards.”

27. In addition, sections 3 and 4 of the Statutory Instruments Act, 2013 state that:3 (1) This Act applied to every statutory instrument made directly or indirectly under any Act of Parliament or other written legislation.(2) Nothing under this section may be construed as precluding parliament from applying the provisions of this Act to any published bills awaiting parliamentary consideration4 The object of the Act is to provide a comprehensive regime for the making, scrutiny, publication and operation of statutory instruments by-a)requiring regulation- making authorities to undertake appropriate consultation before making statutory instruments;b)requiring high standards in the drafting of statutory instruments to promote their legal effectiveness, clarity ad intelligibility to anticipated users;c)improving public access to statutory instruments;d)establishing improved mechanisms for parliamentary scrutiny of statutory instruments; ande)establishing mechanisms to ensure that statutory instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed.

28. As referenced by the petitioners, the High Court in Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others (2014) eKLR while referring to the South African decision in Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) adopted the following definition of public participation: -According to their plain and ordinary meaning, the words public involvement or public participation refers to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process.

29. The Court of Appeal in Legal Advice Centre & 2 Others v County Government of Mombasa & 4 Others (2018) eKLR, highlighted the importance of public participation in the law making process as follows:-“The purpose of permitting public participation in the law-making process is to afford the public the opportunity to influence the decision of the law-makers. This requires the law-makers to consider the representations made and thereafter make an informed decision. Law-makers must provide opportunities for the public to be involved in meaningful ways, to listen to their concerns, values, and preferences, and to consider these in shaping their decisions and policies. Were it to be otherwise, the duty to facilitate public participation would have no meaning.”

30. In Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others Machakos, [2015] eKLR the High Court developed the following six principles to be taken into account whenever the application of the doctrine of public participation comes into issue:First, it is incumbent upon the government agency or public official involved to fashion a programme of public participation that accords with the nature of the subject matter. It is the government agency or public official who is to craft the modalities of public participation but in so doing the government agency or public official must take into account both the quantity and quality of the governed to participate in their own governance. Yet the government agency enjoys some considerable measure of discretion in fashioning those modalities.Second, public participation calls for innovation and malleability depending on the nature of the subject matter, culture, logistical constraints, and so forth. In other words, no single regime or programme of public participation can be prescribed and the Courts will not use any litmus test to determine if public participation has been achieved or not. The only test the Courts use is one of effectiveness. A variety of mechanisms may be used to achieve public participation.Third, whatever programme of public participation is fashioned, it must include access to and dissemination of relevant information. See Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya (JR Misc. App. No. 374 of 2012). In relevant portion, the Court stated:Participation of the people necessarily requires that the information be availed to the members of the public whenever public policy decisions are intended and the public be afforded a forum in which they can adequately ventilate them….Fourth, public participation does not dictate that everyone must give their views on the issue at hand. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs. A public participation programme, must, however, show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or public official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.Fifth, the right of public participation does not guarantee that each individual’s views will be taken as controlling; the right is one to represent one’s views – not a duty of the agency to accept the view given as dispositive. However, there is a duty for the government agency or public official involved to take into consideration, in good faith, all the views received as part of public participation programme. The government agency or public official cannot merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box.Sixthly, the right of public participation is not meant to usurp the technical or democratic role of the office holders but to cross-fertilize and enrich their views with the views of those who will be most affected by the decision or policy at hand.

31. That being the case, the Nyandarua County Assembly has a constitutional obligation to facilitate public participation and consultation on policy formulation, legislative process and any other decision affecting residents of the county. It is important to note that in most instances of legislative and policy formulation, participation and consultation merge. The burden of proof lies with the respondents to demonstrate there was public participation. In the case of Kenya Human Rights Commission v Attorney General & Another [2018] eKLR, it was stated that:-Once apetitioner attacks the legislative process on grounds that the law making process did not meet the constitutional standard of public participation, the respondent is under a legal obligation to demonstrate that the legislative process did meet the constitutional standards of public participation.

32. The petitioners contended that the Nyandarua County Alcoholic Drinks Control Licensing Regulations, 2021 offend the Constitution and express provisions of the law due to the lack of public participation before enacting the regulations.

33. The petitioners averred that the impugned regulations clearly have a direct and/or substantial indirect effect on the businesses of the Petitioners, the members of the association who are all bar and wines and spirits shops’ owners, distributors and/or manufacturers of alcohol and other such traders who are not necessarily members of the said association in Nyandarua county. That they were not consulted by the 1st respondent during the making of the said regulations and neither were they notified of any consultative meetings held by the 1st respondent for the making of the impugned regulations and were only surprised to read in the said newspaper advert that they were already such regulations in force.

34Thepetitioner reiterated that the said regulations being a statutory instrument are mandatorily required by the law to be subjected to appropriate consultation before their making.

35. On the other hand, the respondents argued that the 1st petitioner, John Kairu Ng’ang’a, the chairperson of the association and Ms. Margaret Wambui Kamamia, a member of the association respectively were part of the participation exercise conducted in the making of the regulations by virtue of them being members of the Management Committee as pronounced in Section 54 (1) of the Nyandarua County Alcoholic Drinks Act, 2019. (Copies of the Appointment Letters dated 14th April 2021 attached and marked ‘AMG 3’)

36. Further, the respondents asserted that the 1st Petitioner did not at any event raise any objections to the making and contents of the regulations. (Copies of the report dated June 2, 2021 and minutes dated 16th April attached to the respondents’’ replying affidavit ‘AMG 4a & AMG 4b’).

37. I have thoroughly examined the respondents affidavit dated evidence presented by the respondents to counter the Petitioners’ claims that there was no and/or sufficient public participation preceding the enactment of the impugned regulations. The 1st petitioner, as the chairman of the association and Ms. Margaret Wambui Kamamia, as a member of the association were effectively appointed as members of the Nyandarua Alcoholic Drinks Management Committee as evidenced by the letters of appointment (marked “AMG 3”).

38. Subsequently, I have reviewed the minutes of the aforesaid committee and attendance list dated April 16, 2021and could not ascertain to which degree if any the impugned regulations were discussed making it a public participation exercise. The respondents also attached attendance lists dated 22/4/2021 and 23/4/2021 titled ‘Nyandarua Alcoholic Drinks Management Committee Induction’ which in my view is not evidence of a public participation fora in relation to the impugned regulations. The record of the day’s proceedings from the aforementioned meeting were not attached to disclose and ascertain what was discussed in relation to the impugned regulations and therefore I am unable to determine effectiveness and adequacy of public participation in that meeting. However, the report of the Stakeholders’ Consultative Forum dated 2nd June 2021 (marked AMG 4a) indicated that the impugned regulations were discussed and the 1st Petitioner was present and even participated. The same is evidenced by the attendance lust (marked AMG 5).

39. In Mui Coal Basin Local Community & 17 Others v Permanent Secretary Ministry of Energy & 15 Others (supra), the court observed that public participation did not mean that everyone must give their views, which is impracticable. Rather that there ought to be evidence of “intentional inclusivity” in the participation program and which, on the face of it, took into account the principle that “those most affected by a policy, legislation or action must have a bigger say: and their views more deliberately sought and put into account.” That notwithstanding, there is no attendant requirement that each individual’s views will be included in the final policy or law: the public authority has no duty to accept any and every view, the opposite of which would effectively neutralize and stall the exercise of the authority’s mandate.

40. Further, in the case of Doctors for Life International v The Speaker of the National Assembly & Others CCT 12 of 2005 [2006] ZACC 11 the court held that there are at least two aspects of the duty for facilitate public participation and stated thus:“What is intimately important is that the legislature has taken steps to afford the public a reasonable opportunity to participate effectively in the law-making process. Thus construed there are at least two aspects of the duty to facilitate public involvement. The first is the duty to provide meaningful opportunities for public participation in the law-making process. The second is the duty to take measures to ensure that people have the ability to take advantage of the opportunities provided. In this sense, public involvement may be seen as a continuum that ranges from providing information and building awareness to partnering in decision making. This construction of the duty to facilitate public involvement is not only consistent with our participatory democracy, but it is consistent with the international law right to political participation. As pointed out that right not only guarantees the positive right to participate in the public affairs, but it simultaneously imposes a duty on the state to facilitate public participation in the conduct of public affairs by ensuring that this right can be realized it will be convenient here to consider each of these aspects beginning with the broader duty to take steps to ensure that people have the capacity to participate.”

41. In Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others v County Government of Nairobi & 3 Others[2014] where the court held that“public participation does not imply that each of the county residents must give their oral views in the public forums or otherwise write their memoranda, respecting that views on a Bill. But simple acts of say conducting random public forums posting programmes, on popular radio stations and publishing the bill in the dailies with wide circulation would do.”

42. I find as persuasive the decision of the court in Commission for The Implementation of the Constitution vs. Parliament of Kenya & Another & 2 Others & 2 Others where it was expressed as follows:“The National Assembly has a broad measure of discretion in how it achieves the object of public participation. How this is affected will vary from case to case but it must be clear that a reasonable level of participation has been afforded to the public. Indeed, as Sachs J observed in Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC) at para. 630, “The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”

43. I take the view that given the precedence of the concept of public participation in legislative processes in Kenya, it is time the national and especially the county governments take significant steps to ensure that it is entrenched in all legislative process as a matter of importance. The process should no longer overlook such an important aspect as public participation which should have already been weaved in the legislative process particularly since the inauguration of the Constitution of Kenya, 2010. Indeed, in the South African case of Borbet South Africa Ply Ltd & Others v Nelson Mandela Bay Municipality 3751 of 2011 [2014] ZA EA PEHC 35 [2014] 5 SA 256 the court held:“The obligation to encourage public participation at local government level goes beyond a mere formulation in which public meetings are convened and information shared. The concept of participating democracy as envisaged by the constitution requires that the interplay between the affected representatives’ structures and the participating community is addressed by means of appropriate mechanisms. It is this relationship to which the constitution court speaks when it states that there must not only be meaningful opportunities for participation, but that steps must be taken to ensure that people have the ability and capacity to take advantage of those opportunities.”

44. I also associate myself with the statements made by Lenaola J in Nairobi Metropolitan PSV Sacco (Supra). He observed that:The Petitioners have attacked the impugned legislation on grounds that it failed to comply with the process of public participation as required by the Constitution. Where legislation fails to comply with the Constitution, courts have powers to make necessary orders in that regard as was held in the Constitutional Court of South Africa in the case of Doctor's for Life International v The Speaker National Assembly and Others (CCT 12/05) 2006 ZACC II where it was stated as follows;“It is trite that legislation must conform to the Constitution in terms of both content and the manner in which it is adopted. Failure to comply with the manner and form requirements in enacting legislation renders the legislation invalid. And courts have the powers to declare such legislation invalid”.

45. Further, the learned Judge observed that:The essence of the duty for the public to participate in legislative process is to my mind an aspect of the right to political participation in the affairs of the State. In this aspect, the Constitutional Court of South Africa in the case of Doctors for Life International v The Speaker National Assembly (supra) explained the importance of public participation as follows;“The international law right to political participation encompasses a general right to participate in the conduct of public affairs and a more specific right to vote and or be elected into public office. The general right to participate in the conduct of public affairs includes engaging in public debate and dialogue with elected representatives at public hearings. But that is not all, it includes the duty to facilitate public participation in the conduct of public affairs by ensuring that citizens have the necessary information and effective opportunity to Ngcobo J also observed in the South African case of Matatiele Municipality & Others -Vs- President of the Republic of South Africa & Others (2) CCT73 05A [2006] ZACC 12; 2007 (1) BCLR 47 (CC) that democracy envisages both direct participation by citizens and through representation by those elected as representatives”.

46. Moreover, Odunga J in Robert N. Gakuru case (supra) stated that:“Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process…… Parliament and the provincial legislature must be given a significant discretion in determining how best to fulfill their duty to facilitate public participation. This discretion will apply in relation to the standard rules promulgated for public participation and the particular modalities appropriate for specific legislature programmes. Yet however great leeway given to the legislature, the courts can, and appropriate cases will, determine whether there has been the degree of involvement that is required by the constitution. What is required ……will no doubt vary from one case to case.”

47. It is evident that the requirement as to what constituted public participation differs from case to case. However, what stands out is that both the national and county governments should instill intentional inclusivity in legislative processes and afford the public a reasonable opportunity to know and understand the issues and thereafter have adequate say on those issues. What amounts to a reasonable opportunity will depend on the circumstances of each case. (See Commission for the Implementation of the Constitution -vs- Parliament of Kenya & Another (2013) eKLR)

48. As observed in John Kinyua Munyaka & 11 others v County Government of Kiambu & 3 others [2014] eKLR:The concept of public participation was explained relatively comprehensively in several decisions cited by both counsel for the Petitioners and the Respondents. These are the Doctors for Life International versus Speaker of the National Assembly and Others (CC12/05)(supra) and the Minister for Health & Another versus New Clicks South Africa(Pty) Ltd & Others (2006) (2) SA 311 which was cited with approval in Nairobi Metropolitan PSV Saccos versus County of Nairobi Government (supra).The common denominator in all these decisions is that what matters in the ultimate is that a reasonable opportunity has been given to the members of the public and all interested parties to know about the issue and to have an adequate say. There is a caveat, however, that it cannot be expected of the legislature that a personal hearing will be given to every individual who claims to be affected by the laws or regulations that are being made. What is necessary is that the nature of the concerns of different sectors of the parties should be communicated to the law maker and taken in formulating the final regulations.

49. In this case, what is in dispute is the constitutionality of the impugned regulations by virtue of lack of stakeholders’ participation. There is no doubt that alcoholic drinks control involves several sector players. The impugned regulations, no doubt, affected the public and more particularly those licensed to sell alcoholic drinks and, of course, all the third parties involved.

50. In the Robert N. Gakuru Case (Supra), the adequacy of public participation was discussed as follows: -…. In my view to huddle a few people in a 5 star hotel on one day cannot by any stretch of imagination be termed as public participation for the purposes of meeting constitutional and legislative threshold. Whereas the magnitude of the publicity required may depend from one action to another a one day newspaper advertisement in a country such as ours where a majority of the populace survive on less than a dollar per day and to whom newspapers are a luxury leave alone the level of illiteracy in some parts of this country may not suffice for the purposes of seeking public views and public participation.

51. Similarly, in Kenya National Chambers of Commerce and Industry (Kilifi Chapter) v County Government of Kilifi & 3 others[2021] eKLR the court observed the significance and importance of taking into account the views of the public by administrative authorities as follows: -“That being the case public participation is not a mere cosmetic venture or a public relations gimmick. Whereas it is not to be expected that administrative authorities would at all times be beholden to the public in a manner which enslaves such authorities to the public, to contend that public views ought not to count at all in making a decision to draft a Valuation Roll that touches on their property and other rights would be to negate the spirit of public participation as enshrined in the Constitution and the Fair Administrative Action Act, 2015. In my view, public views ought to be considered in the decision-making process and as far as possible the product of the legislature ought to be a true reflection of the public participation so that the end product bears the seal of approval of the public. That is the only way the end product can be said to be owned by the public.”

52. In Richard Owuor & 2 others (suing on behalf of Busia Sugarcane Importers Association) v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 7 others [2021] eKLR, the court stated that:-Consultation or stakeholders’ engagement tends to give more latitude to key sector stakeholders in a given field to take part in the process towards making laws or formulation of administrative decisions which to a large extent impact on them. That is because such key stakeholders are mostly affected by the law, policy or decision in a profound way. Therefore, in appropriate instances a Government agency or a public officer undertaking public participation may have to consider incorporating the aspect of consultation or stakeholders’ engagement.

53. Accordingly, I take the view that the public participation and stakeholders’ consultation carried out in respect to the impugned regulations does not pass the test of effectiveness and adequacy. It is my opinion that the evidence of one stakeholders’ forum in the process of coming up with the impugned regulations was in the circumstances inadequate. The petitioners and other stakeholders were not given a reasonable opportunity to interact with the impugned regulations with just the one stakeholders’ consultative forum that was held. The respondents latched on that forum and a number of others that cannot be ascertained as public participation forums to prove that public participation was held in relation to the impugned regulations. The process proffered by the Respondent was in the circumstances inadequate.

54. Resulting from the foregoing, and by taking into account the circumstances of this case, the Respondents’ averment that the stakeholder consultative forum held on 2nd June 2021, the meeting held on 16th April 2021and the attendance lists dated 22nd April 2021 and 23rd April 2021 constitutes evidence that adequate public participation does not hold water. There was need for the Nyandarua County Government to consult widely and to be alive to the mandatory nature of active public participation within the new constitutional dispensation. I resolve that the Respondents have failed in demonstrating that there was elaborate and comprehensive public participation and stakeholder engagement in relation to the impugned regulations.

55. The upshot is that the Petition succeeds thus the court makes the following orders;i.A declaratory do hereby issue that the Nyandarua County Alcoholic Drinks Control (Licensing) Regulations, 2021 as made by the 1st Respondent are unconstitutional for want of stakeholders’ participation before their making as well as for being a threat to the stakeholders’ rights to fair administrative action and are therefore unlawful, null and void ab initio and of no consequence whatsoever.ii.An order of permanent injunction do hereby issue against the Respondents herein restraining them by themselves, their servants, agents and/or persons claiming under their respective titles form implementing the Nyandarua County Alcoholic Drinks Control (Licensing) Regulations, 2021 or in any way implementing their notice contained in the Daily Nation Newspaper of the 24th June, 2021 at page 4iii.That parties bear their own costs for the Petition.

56. However, the orders granted above will not take effect immediately thus the regulations will continue to operate as directed here below;

57. The order of invalidity above (i) and (ii) are suspended for a period of twelve (12) months from the date of this judgment.

58. The county government Nyandarua county and assembly Nyandarua county may remedy the defect within that period of 12 months, otherwise the impugned regulations shall stand invalidated at the expiry of the twelve (12) months or may be earlier repealed whichever comes first.

DATED AND SIGNED AT NYAHURURU THIS 2ND DAY JUNE 2022………………………………CHARLES KARIUKIJUDGE