[2025] KEHC 4587 (KLR)

Njoroge & 2 others v Ministry of Interior and National Administration Kenya & 2 others (Judicial Review Application 2 of 2024) [2025] KEHC 4587 (KLR) (Judicial Review) (7 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4587 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application 2 of 2024

RE Aburili, J

April 7, 2025

Between

Simon Njoroge

1st Applicant

Boniface Gachoka

2nd Applicant

Bar, Hotels and Liquor Traders Associationof Kenya (BHALITA)

3rd Applicant

and

Ministry of Interior and National Administration Kenya

1st Respondent

National Government Administrative Officers

2nd Respondent

Inspector General of Police

3rd Respondent

Judgment

1. The Applicants before this Court were granted leave on 16th July 2024 to file the substantive Notice of Motion for judicial review orders. Subsequently, they filed their substantive notice of motion dated 20th July 2024 seeking the following orders:i.That this Honourable court be pleased to grant to the applicants an order in the nature of certiorari to quash the directives issued by the Cabinet Secretary for Interior and National Administration Kenya on the 6th of March 2024 and purporting to nullify the licenses and permits issued to bars and other alcohol outlets by County governments on the basis that it was made in excess of jurisdiction, contrary to the rules of natural justice and in violation of the applicant’s constitutional right to property and carry on legitimate business.ii.That this Honourable court be pleased to grant to the applicants an order in the nature of certiorari to quash the directives issued by the Cabinet Secretary for Interior and National Administration Kenya and purporting to limit the operational hours for bars and alcoholic outlets and imposing a fine or term of imprisonment if found in defiance on the basis that it was made in excess of jurisdiction, contrary to the rules of natural justice and in violation of the applicant’s constitutional right to own property and conduct lawful business in Kenya.iii.That this Honourable court be pleased to grant to the applicants an order in the nature of certiorari to quash the directives issued by the Cabinet Secretary for Interior and National Administration Kenya and purporting to prohibit Public Officers attached to the Kenya Revenue Authority, Kenya Bureau Of Standards, Anti- Counterfeit Authority, National Authority for the Campaign Against Alcohol and Drug abuse, National Government Administration Officers and those from the National Police Services and if in defiance resign from service on the basis that it was made in excess of jurisdiction, contrary to the rules of natural justice and in violation of the said Officer’s constitutional right to own property and conduct lawful business in Kenya as well as in violation of their Labour Rights.iv.That this Honourable court be pleased to grant to the applicants an order in the nature of certiorari to quash the directives issued by the Cabinet Secretary for Interior and National Administration Kenya and purporting to nullify licenses issued to bars and other alcoholic outlets nearby residential areas and basic educational institutions on the basis that it was made in excess of jurisdiction, contrary to the rules of natural justice and in violation of the applicant’s constitutional right to own property and conduct lawful business in Kenya as well as not specifying the distance between the alcoholic outlets and any of the aforementioned areas.v.That this Honourable court be pleased to grant to the applicants an order in the nature of prohibition to prohibit the law enforcement and compliance officers from Kenya Revenue Authority, Kenya Bureau Of Standards, Anti-Counterfeit Authority, National Authority for the Campaign Against Alcohol and Drug abuse, National Government Administration Officers and those from the National Police Services from implementation of the directives issued by the Cabinet Secretary for Interior and National Administration Kenya on the 6th of March 2024 on the basis that the enforcement of the said directives is illegal and deprives innocent Kenyan Businessmen and women of the opportunity to earn a living and own property in Kenya.vi.That this Honourable court be pleased to grant to the applicants an order in the nature of Mandamus-to compel the Ministry of Interior and Administration and Law Enforcement organs under it to return the stocks and tools of trade of legitimate bar owners and alcohol outlets as well as reinstate the licenses of the said bar owners and alcohol outlets.vii.That this Honourable court be pleased to grant to the applicants an order in the nature of Mandamus to compel the national and county governments to account for the liquor fund proceeds established under Section 5 of the Alcoholic Drinks Control Act and use the proceeds from the fund to establish rehabilitation programmes in the fight against the prevailing illicit liquor menace.viii.That the costs of this application be awarded to the applicants.

2. The application is predicates on the grounds outlined in the accompanying Verifying Affidavit of Boniface Gachoka the 2nd Applicant.

3. The Applicants’ case is that on 6th March 2024, the 1st Respondent through the Cabinet Secretary in charge of the Ministry of Interior and Administration issued various directives aimed towards combating the manufacture, distribution and sale of illicit alcohol.

4. The 1st Respondent is said to have issued the said directives pursuant to the provisions of the various Acts of Parliament including but not limited to the Preservation of Security Act, the Public Health Act, the Alcoholic Drinks Control Act, the Narcotic Drugs and Psychotropic Substances Control Act, the Pharmacy and Poisons Act among others.

5. That the issuance of the said directives was followed by a myriad of instances of Law Enforcement officers from the National Government Administration Office and those from the National Police Service harassing and arbitrarily arresting bar owners and alcohol retailers as well as their patrons and the same is done arbitrarily without due regard to their constitutional right to humane treatment and dignity.

6. The police and law enforcement agencies are said to have even confiscated the stock of Retailers and alcohol distributors despite there being no lined out and reasoned regulation by the executive or legislation by Parliament.

7. The applicants assert that the directives issued by the Cabinet Secretary were excessive and unlawful, lacking legal backing. They contend that the directives were issued without a regulatory impact assessment, failed to consult relevant stakeholders or the public, and were procedurally flawed. The directives are said to be punitive, causing financial harm to legal alcohol traders and the country’s economy due to lost revenue. They are also said to have resulted in job losses and failed to differentiate between legitimate and illicit alcohol, giving authorities excessive discretion.

8. It the applicants’ further case that the directives are ambiguous, particularly regarding restrictions on the proximity of alcohol-selling establishments to schools, churches and residential areas. Additionally, the applicants suggest that the government should focus on implementing the liquor fund and rehabilitation programs instead of imposing punitive bans, which could lead to the rise of illegal alcohol sales. The alcohol sector, they argue, is already heavily regulated, and the additional restrictions are unnecessary.

9. They also urge that the Kenya Bureau of Standards conducts regular product checks, while physical planners are responsible for societal planning and approving buildings, distinguishing between commercial and residential structures. However, that the Cabinet Secretary's directives are considered unwarranted and beyond executive authority, with their enforcement by law enforcement being unlawful as it infringes on the rights and freedoms of legitimate business operators in Kenya.

10. According to the applicants, the BHALITA (Bar, Hotels, and Liquor Traders Association of Kenya) is said to represent licensed members who comply with all legal and regulatory requirements. Further, that while the Association supports efforts to combat the sale of illicit and harmful alcohol, it opposes the enforcement of regulations issued by the Cabinet Secretary for Interior on 6th March 2024, arguing that they are unlawful and should only target illegal traders not compliant and licensed members.

11. It is the Applicants’ case that BHALITA’s licensed members comply with all regulatory requirements and should not be unfairly targeted by law enforcement executing the disputed directives. The Applicants urge the Court to differentiate between legal businesses and illicit traders and to ensure that any enforcement measures apply strictly to those dealing in illegal and harmful alcoholic beverages, in the interest of justice and fairness.

12. The respondents did not file any response to the application despite service upon them and neither did they enter any appearance.

Submissions__** 13. In their written submissions dated 22nd October,2024, the Applicants argue, reiterating the grounds and depositions that the Cabinet Secretary's powers must be exercised in strict accordance with the Constitution of Kenya, 2010, and relevant statutes. They rely on Article 10, which outlines national values and principles of governance including public participation, transparency, accountability and the rule of law as well as Article 47, which guarantees every person the right to administrative action that is lawful, reasonable, and procedurally fair.

14. The applicants further argue that the directives issued by the Cabinet Secretary on 6th March 2024 exceeded his statutory and constitutional mandate. Specifically, they claim the Cabinet Secretary acted ultra vires, as the directives-imposed obligations and possible penalties not authorized by law, functions that belong to Parliament or independent regulatory bodies.

15. Further submissions are that owing to the doctrine of separation of powers, the executive cannot arrogate to itself law-making or judicial powers. Additionally, the applicants argue that the Cabinet Secretary violated Article 10(2)(a) by failing to conduct public participation, a mandatory requirement in significant governmental actions or policy shifts. It is their submission that the directives are unconstitutional, procedurally unfair, and legally invalid.

16. The rely on the case Minister for Health vs New Chicks South Africa Pty Ltd CCT 59/04, where the South African Court observed that in public participation, “what matters is that a reasonable opportunity is offered to the members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case”.

17. The applicants also rely on the Court of Appeal case Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR where the court emphasized the significance of public participation.

18. Additionally, they submit that the Statutory Instruments Act provides that directives or regulations must follow due process, including public participation and parliamentary oversight, before they can be enforced. Further, that if the directives were issued without adhering to these legal requirements, they are susceptible to judicial review.

19. It is also the applicants’ submission that judicial review is a constitutional remedy that allows courts to review the actions or decisions of public bodies to ensure they comply with the law. According to the applicants, it is not concerned with the merits of the decision itself but rather with the legality, fairness, and rationality of the decision-making process. To support this position, they rely on the case of Haviv Kenya Revenue Authority (Judicial Review Application E129 of 2023) [2024] KEHC 3006 (KLR) (Judicial Review) (25 March 2024) (Ruling).

20. The applicants they seek certiorari on three grounds: first, they argue that the Cabinet Secretary acted beyond legal authority by issuing blanket directives affecting licensed traders, as the relevant laws do not grant such powers, making the directives illegal. Second, they contend that the directives are unreasonable as they fail to distinguish between law abiding businesses and those involved in the sale of illicit alcohol, thereby unfairly impacting legitimate businesses. Third, they claim that the directives were issued without public participation or parliamentary approval, which is required by the Statutory Instruments Act, rendering the decision procedurally flawed.

Analysis and determination 21. I have considered the application and the accompanying affidavit, statutory statement and annextures which include the impugned directive. I have also considered the submissions and arguments in support of the application. The issue for determination is whether the prayers sought are available to the applicant, in this application which is unopposed.

22. The central issue in this case revolves around whether the Cabinet Secretary exceeded his authority in issuing the 6th March, 2024, directives. The Applicants argue that the Cabinet Secretary acted ultra vires, meaning, beyond the scope or in excess of legal power or authority, in issuing the impugned directives without proper statutory authority.

23. In the case of Ndegwav County Government of Nyandarua & 3 others (Constitutional Petition E009 of 2024) [2025] KEHC 4144 (KLR) (Civ) (1 April 2025) (Judgment) it was observed thus:“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.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.”[emphasis added]

24. It is this court’s humble view that the Cabinet Secretary’s directives were issued outside the scope of his powers and authority, contrary to the Constitution and without the necessary legal backing. The Ndegwa v. County Government of Nyandarua (supra) decision provides strong support for this position, reaffirming that certain powers, such as liquor licensing, are the exclusive domain of the relevant local authorities, and national government’s intervention in these matters without legal authority is illegal.

25. Articles 185(2), 186(1) and 187(2) of the Constitution on distribution of functions between the National Government and the County Government as read with the Fourth Schedule Part 2 clearly places the function of liquor licensing and drug control in the County Governments and not the National Government.

26. Additionally, the Constitution places a strong emphasis on the separation of powers between the executive, legislature, and judiciary. As such, the Cabinet Secretary’s authority is derived from specific enabling legislation. While the Ministry of Interior and National Administration may have a role in enforcing laws related to public health and security, where a crime has been committed, it is not within their mandate to issue directives or impose penalties in areas that are exclusively in the domain of Parliament or independent regulatory bodies.

27. The Alcoholic Drinks Control Act, Public Health Act and other related laws have specific provisions for regulations, but they do not grant the Cabinet Secretary unrestricted powers to create and enforce directives. I am therefore persuaded that the directives by the Cabinet Secretary were issued ultra vires his mandate, powers and authority.

28. The Applicants further contend that the Cabinet Secretary’s directives amount to a usurpation of Parliament’s legislative authority, contrary to Article 94(5) of the Constitution, which provides that no person or body other than Parliament has the power to make provisions having the force of law.

29. While Cabinet Secretaries are empowered to implement legislation by preparing regulations under the Statutory Instruments Act and therefore tabling them before Cabinet for approval before they are presented to Parliament for enactment, they cannot create new legal obligations or prohibitions through proclamations and imposition of penalties without express statutory authority.

30. In the present case, the directives in question sought to regulate commercial activity in the alcohol sector without the backing of any enabling legislation, thereby exceeding the limits of executive power and intruding into legislative authority as stipulated in Article 94(5) of the Constitution.09oi

31. This court concurs with the applicants' position and finds that the directives issued by the Cabinet Secretary are in essence, an exercise of legislative power, in direct violation of the doctrine of separation of powers. Executive directives cannot substitute or override statutes enacted by Parliament. By issuing measures that have the effect of law such as closure of licensed premises and seizure of goods without following legislative or regulatory procedures, the Cabinet Secretary acted ultra vires. Consequently, these directives are constitutionally void and invalid.

32. On the alleged violation of the right to fair administrative action, Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. This right has been given effect through the Fair Administrative Action Act, 2015, particularly Section 4(3), which requires that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, such person must be given prior and adequate notice, a reasonable opportunity to be heard, and reasons for the decision supplied.

33. In the present case, the Applicants contend and this Court agrees that the directives issued on 6th March 2024 were implemented without any form of notice to the affected stakeholders, including licensed alcohol traders, consumer groups or regulatory agencies. There is no evidence that public consultations or stakeholder engagement were conducted prior to issuing the said directives. I am therefore in agreement with the applicants that the Cabinet Secretary failed to adhere to the basic tenets of procedural fairness.

34. The absence of notice, explanation, or consultation constitutes a violation of the duty to act fairly, transparently, and reasonably. The directives were issued in a unilateral manner and had far reaching implications on businesses, including closure of premises and seizure of stock. As correctly asserted by the applicants, there was no regulatory impact assessment done before issuance of such directives, which are administrative actions. And being adverse in nature, required strict compliance with Article 47 and the Fair Administrative Action Act.

35. In Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] KECA 459 (KLR), the Court of Appeal emphasized that public participation and procedural fairness are not mere formalities but substantive rights that ground the validity of administrative decisions. Similarly, in Olkalou Sub-County Liquor Traders Association v Ministry of Interior & National Administration & Others [2024] KEHC 5791 (KLR), the High Court underscored the illegality of abrupt closure of businesses without due process or prior notice to the affected traders.

36. This Court, therefore, finds that the failure to consult, notify or engage the affected parties renders the directives by the Cabinet Secretary’s to be procedurally unfair and thus in violation of Article 47 of the Constitution. Accordingly, the impugned directives ate found to be unconstitutional and susceptible to being quashed by way of judicial review orders of certiorari.

37. In Njogu v Director of Alcoholic Drinks Control & Management, Nyeri County [2025] KEHC 2161 (KLR), the High Court in Nyeri quashed the decision by the Director of Alcoholic Drinks Control and Management, Nyeri County, to withdraw the liquor license of the applicant, Stephen Mwangi Njogu, and ordered the immediate closure of his business premises. The court found that the decision was arbitrary, illegal, unreasonable and unconstitutional, as it violated the applicant's right to fair administrative action under Article 47 of the Constitution. The court observed as follows:“The powers assumed by the respondent were not there. They were plucked from the air and exercised. 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.”34. the Constitution 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 vs. 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.”35. 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 vs. 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…”36. 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 of discretion, unreasonableness, violation of legitimate expectation or abuse of power.

38. The constitutional protections enshrined in Article 47 of the Constitution, which guarantees the right to fair administrative action, are central to this case. The actions of the Cabinet Secretary fall short of these constitutional standards by failing to provide notice or engage in proper administrative procedures, such as public participation and consultation.

39. It is this court’s finding and holding that the Cabinet Secretary’s directives were issued ultra vires, violated the principles of separation of powers, due process, and fair administrative action.

40. The applicants, in my view, have made a compelling case for the quashing of these directives through judicial review, as the directive as issued not only overstep the Cabinet Secretary's legal authority but also undermines constitutional safeguards which are designed to protect citizens' rights against arbitrary executive action.

41. The said directives are also unreasonable as they fail to distinguish between businesses which are being operated lawfully as licensed by the relevant authorities within the respective counties, and who should take responsibility in the event that they are found to have erred in the licensing and those involved in the sale of illicit alcohol and in places which are not licensed, thereby unfairly impacting legitimate businesses.

42. It is not lost to this court that the Counties have the District licensing committees and enforcement officers who monitor the compliance with the licensing conditions and where there is breach, there are lawful means to be employed, where the National and County Governments cooperate and collaborate to ensure there is compliance.

43. On whether certiorari should issue, in the case of Kenya National Examination Council v Republic ExParte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR) it was observed as follows on the order of certiorari:“Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”

44. In the same case, the Court observed as follows on the efficacy of the order of mandamus:“The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again, we turn to Halsbury’s Law Of England, 4th Edition Volume 1 at page 111 From Paragraph 89. That learned treatise says:“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.” At paragraph 90 headed “the mandate” it is stated:“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

45. The court also stated as follows concerning prohibition:“That is why it is said prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision.”

46. Finally, on the proximity of liquour sales to educational facilities and residential areas, that again is a legal issue which the applicants ought to know the law and must comply with that law and not to scream when the law is being enforced.

47. In Kenya, the sale of alcoholic drinks is prohibited within 300 meters of educational institutions or areas catering to individuals under 18, as mandated by the Alcoholic Drinks Control Act. Section 12(1)(c) of the Alcoholic Drinks Control Act (2010) specifies that alcoholic drinks outlets must be located at least 300 meters from any nursery, primary, secondary, or other learning institution for persons under the age of 18.

48. The role of the National Authority for the Campaign against Alcohol and Drug Abuse (NACADA) has been tasked with enforcing this law, including cracking down on bars and liquor dispensing establishments located within the prohibited radius. The rationale

49. behind this law is to prevent the lure of alcohol consumption by young people, which could lead to unruly behavior, violence, and disturbances, affecting their right to education.

50. In the end, having considered the merits of the application and the orders sought, this court makes the following orders:a.An order of certiorari is hereby issued bringing into this court and quashing the directives issued on the 6th of March 2024 by the then Cabinet Secretary for Interior and National Administration.b.Having quashed the directives as a whole, prohibition is unnecessary and superfluous. Furthermore, some of the directives were only but unnecessary since the law exists and what is critical is enforcement by the law enforcement agencies and not through directives.c.Mandamus sought is declined as the prayer is generalized. It does not disclose who those specific legitimate owners of bars are ad exactly what was confiscated from them and none of them swore any affidavit listing the items taken by the law enforcement agents.d.I decline to issue prayer (vii) of the motion as the applicants have not demonstrated before this court that the national and county governments have failed to account for the liquor fund proceeds established under Section 5 of the Alcoholic Drinks Control Act as required by law, and that their action or inaction directly harms public interest such as the failure to fund rehabilitation programs for illicit liquor control.e.I order that each party bear their own costs of the application, this being a matter that affected the entire public in the Republic and awarding costs to the applicants amounts to punishing the innocent tax payers for the mistakes of Government who made the impugned directives and pronouncements.f.This file is closed.

DATED SIGNED AND DELIVERED AT NAIROBI VIRTUALLY THIS 7TH DAY OF APRIL 2025R.E. ABURILIJUDGE