[2017] KEHC 1771 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

JUDICIAL REVIEW MISCELLANOUS APPLICATION NO. 94 OF 2017

IN THE MATTER OF: THE MACHAKOS COUNTY LIQUOR LICENCING

ACT 2014

AND

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS,CERTIORARI AND PROHIBITION

BETWEEN

REPUBLIC OF KENYA...............................................APPLICANT

AND

THE COUNTY GOVERNMENTOF MACHAKOS....RESPONDENT

EX-PARTE

BERNARD KIOKO NTHENGE

JUDGMENT

The Application

The ex parte Applicant herein (herein referred to as “the Applicant”) has filed a substantive application for judicial review orders herein by way of a Notice of Motion dated 31st May 2017, in which the is seeking the following orders:

1. An order of Mandamus Compelling the Respondent to issue the Applicant with a liquor license.

2. An order of Certiorari quashing the decision of the Machakos Sub County Alcoholic Regulation Committee made on 1st March 2017 and communicated to the Applicant through a letter dated 20th March 2017 .

3. An order of Prohibition directed at the Respondent and its agents, Police or any other authority from closing, demanding a liquor licence or interfering with the Applicant’s business therefore allowing the Applicant to continue with his business.

The grounds for the application are that the Respondent has without good reason refused to issue the Applicant with a Liquor Licence for his business "Exodus Pub" located on 909/387 MKS TOWN/CENTRAL, and has not given any reasons or explanation to the Applicant for this refusal as required by the Machakos County Liquor Licensing Act 2014.

The Applicant expounded that he is the proprietor of "Exodus Pub" located on 909/387 Machakos Town/Central , which is a business dealing with the sale of alcoholic beverages for which a license for operation for the year 2017 has been unduly denied. Further, that he previously operated a similar business in the town of Mwala under the name "PewaPewa" before relocating to Machakos town and was allowed to use the liquor licence that he previously had to operate the business "Exodus Pub" in Machakos.

He averred that he applied for a liquor license on 9th November 2016 and paid the accompanying fees to the County Government of Machakos. However, that he received a letter dated 20th March 2017 from the Machakos Sub County Alcoholic Regulation Committee stating that his application was not successful, and was instructed to close the premises immediately. In addition, that the said letter did not give any reasons as to why his application for the liquor license has been denied as required by the Machakos County Liquor Licensing Act 2014.

The Applicant stated that he later came to learn that the reason for the refusal was because of security considerations, however that there are several similar businesses in the same building as his, and it is his belief that that the reason is an excuse rather than a real consideration. According to the Applicant, the running of his business which is his livelihood has been greatly interfered with by the actions of the Respondent, and he is going to suffer substantial financial loss if a liquor license is not issued to him.

The Applicant’s learned counsel, Wambua Kituku & Company Advocates, filed written submissions dated 25th October 2016, in which it was urged that the Respondent’s action of refusing to grant the Applicant a liquor licence, and not giving the Applicant reasons as to why that decision was reached, and therefore denying the Applicant the opportunity to be heard or to remedy any valid reason that the Respondent might have had is in contravention of the provisions of Article 47 of the Constitution.

According to the Applicant , Article 47 of the Constitution guarantees the right of every person to fair and administrative action, and provides that If a right of 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 reason for the action. It was submitted that the function of issuing of liquor licenses is an administrative action as defined by section 2 of the Fair Administrative Act 2015, and therefore falls within the ambit of Article 47 of the Constitution.

Furthermore, that the procedures to be followed when rejecting an application for a liqour licence are laid down in the Machakos County Liquor Licencing Act 2014 in section 23(4) as follows:

“Where the committee is not satisfied with the application under (l) it may-

Reject the application giving reasons and notify the applicant accordingly within thirty days of the decision to reject it or

Make comments and recommendations thereon and return to the applicant within thirty days.”

Reliance was placed on the decision in Republic vs Nairobi City County Alcoholic Drinks Control and Licensing Board & another Exparte Space Lounge Bar& Grill Limited [2017] eKLRthat it is a constitutional requirement that that person be give written reasons for the action. Therefore, that the only conclusion that can be drawn from the above is that the actions of the Respondent were done in bad faith.

The response by the Respondent was in Grounds of Opposition dated 27th October 2017 filed on 3oth October 2017. It opposed the application on the following grounds:

1. The application and the entire proceedings herein are misconceived and misdirected as the decision complained about was not made by the Respondent.

2. The application and the proceedings herein are incompetent having been brought by a stranger to the proceedings in which the decision complained about was made.

3. The application lacks merit and is otherwise and abuse of the court process.

4. The application is incompetent having been brought against the wrong party.

5. The application is premature as the applicant has failed to first invoke the right of appeal under section 10 and 15 of the Alcoholic Drinks Control Act, 2010 before filing suit in court.

6. The orders sought cannot be granted in a judicial review application .

Gichimu Mung’ata & Company Advocates, the Respondent’s Advocates, filed submissions dated 28th October 2017, wherein it was contended that

liquor licensing and Alcoholic Drinks Regulation is a shared mandate of both the National Government and the County Government as established under Article 176 of the constitution.

Further, that the applicable statutes are the Alcoholic Drinks Control Act No 4 of 2010 which is the national legislation governing liquor licensing and related activities, and the Machakos County Liquor Licensing Act No. 7 of 2014 enacted by the County Government of Machakos whose application commenced on 29th December, 2014. In addition, that the two statutes make provisions relating to the role and mandate of multi agencies in liquor licensing, which agencies variously fall under either the national government or the county government.

According to the Respondent, the decision complained about communicated vide a letter dated 20th March 2017, is by the Deputy Commissioner, Machakos Sub County, an office falling under the presidency and National government exclusively. That this officer and the holder thereof is not answerable to the Respondent, thus the proceedings herein are misdirected at the County Government of Machakos which is not responsible for the decision to deny the applicant a liquor licence.

Moreover, that the license dated 1st December, 2015 annexed to the Applicant’s supporting affidavit is clearly issued under the Alcoholic Drinks Control Act, 2010, a national legislation. It was averred that section 8 of the Alcoholic Drinks Act, 2010 establishes the District Alcoholic Drinks Regulation Committee as the statutory body responsible for issuing liquor licenses and section 8(3) of the said Act sets out the composition of the committee and provides that the same is to be chaired by the District Commissioner, who as a matter of public knowledge is an officer in the national government.

According to the Respondent, the payment of trade licence fees to the county government in itself does not transfer the decision making as to whether to grant a licence or not to the county government. At the very least, that the Applicant out to have enjoined the national government and the District Alcoholic Drinks Regulation Committee to these proceedings as necessary parties, and yet he is seeking to quash a decision of the District alcoholic Drinks Regulation Committee which is a statutory committee under the national government without joining the committee or its chairman in these proceedings.

The Respondent further contended that the process through which the decision complained about was arrived at was lawful and procedural as provided for in the Alcoholic Drinks Control Act 2010, sections 8-10. In addition, that the Applicant has not alleged want of jurisdiction or excess of jurisdiction in arriving at the decision, and his sole claim that he was not provided with reasons is untrue because he expressly acknowledges knowing the reason for rejection in his own affidavit.

In any event that the question as to whether a person has been supplied with reasons for a decision will depend on the nature and circumstances of a case, as stated in R vs Commission for Administrative justice ex-parte Nyoike [2017] eKLR. Lastly, that the applicant cannot claim discrimination on grounds that there are similar businesses in the vicinity because as a matter of public policy, the liquor licensing committee must control the liquor licenses issued and the liquor licence in itself is not an automatic right of the Applicant.

The Issues and Determination

I have considered the pleadings and submissions by the Applicant and Respondent. I have also considered the nature and purpose of the judicial review remedies sought by the Applicant as explained by the Court of Appeal in Kenya National Examinations Council vs. RepublicEx parteGeoffrey Gathenji Njoroge & 9 Others [1997] eKLR inter alia as follows:

“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…Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings….Only an order ofcertiorarican quash a decision already made and an order ofcertiorariwill issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the present appeal the respondents did not apply for an order ofcertiorariand that is all the court wants to say on that aspect of the matter.”

The order of mandamus on the other hand is defined in the Halsburys Laws of England, 4th Edition, Vol 1 at page 111 as follows:

“The order of mandamus is of most extensive remedial nature and is in the form of 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 of 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 it may issue in cases where although there is an alternative remedy, yet the mode of redress is not convenient, beneficial and effectual.”

There are two issues for determination arising from the arguments made by the parties herein. The first is whether the decision that is the subject of the proceedings herein was made by the Respondent, and secondly, whether the Applicant is entitled to the orders sought.

Section 4(3) of the Machakos County Liquor Licencing Act 2014 sets up a Liquor Licencing Committee as follows:

“There shall be a Liquor Licensing Committee whose members shall be appointed by the Executive Committee Member and which shall be comprised of-

(a) One representative each from the county departments responsible for-

(i) finance;

(ii) health;

(iii) decentr alized units ;

(iv) education;

(v) trade,

(b) one representative each from-

(i) hotel industry;

(ii) civil society and;

(iii) private sector; and

(c) the Director who shall be the Secretary.

The Director referred to in the section is an office established pursuant to section 4(1) and (2) of the Act to be in charge of the Machakos County Directorate of Liquor Control which is a public office in the County Government. The power to grant a liquor license is set out in section 4(5) which provides that the Committee shall receive and consider applications for liquor licenses and make recommendations to the Director in accordance with the Act.

A detailed procedure for making an application is set out in sections 20 to 23 of the Act, with an applicant being required to make an application in the prescribed form specifying where the premises is to be situated and which shall contain inter alia a comprehensive proposal on the nature, orientation and other justification for the establishment of the alcoholic plant or establishment for sale. The Applicant is also required to appear in person before the Committee or such other manner as the Committee may permit, and shall satisfy the Committee that there is need for the grant of a licence of the type applied for in the particular locality in respect of which the application is made.

Under the Alcoholic Drinks Control Act, the decision making power as regards alcoholic liquor licencing is granted to the District Alcoholic Drinks Regulation Committee established under section 8 of the Act, and which Committee consists of—

(a) the District Commissioner of the district who shall be the chairperson;

(b) the District Medical Officer of Health;

(c) Officer Commanding Police Division;

(d) one person nominated by every local authority in the district;

(e) three residents of the district, appointed by the Minister at least two of whom shall be women;

(f) one person designated by the relevant agency who shall be the secretary to the District Committee.

Similar provisions and procedures as those in the Machakos County Liquor Licencing Act 2014 on the application for a liquor license are set out in sections 9 and 10 of the Alcoholic Drinks Control Act .

It is evident that the powers that the Respondent exercises and procedures it is required to follow as regards liquor licensing are those set out in the Machakos County Liquor Licencing Act 2014. I note in this respect that other than evidence of payment of the application fee to the Machakos County Government annexed as “Annexure BK2” to the Applicant’s supporting affidavit to the Chamber Summons dated 17th May 2017 seeking leave to commence these proceedings, the Applicant herein did not bring any evidence of compliance with the procedure set out in the Act.

More fundamentally, the decision that is being impugned by the Applicant which he annexed to his affidavit in support of the Chamber Summons dated 17th May 2017 as ‘Annexure BK 1’, is shown to have been made by the Machakos Sub County Alcoholic Regulation Committee, chaired by one George Onyango who communicated the same in a letter dated 20th March 2017.

The letterhead indicates that the said chairman is the Deputy Commissioner of Machakos Sub County, an office that is shown to be under the Ministry of Interior and Coordination in the National Government. This Committee therefore is the one set up pursuant to the provisions of the Alcoholic Drinks Control Act , as modified to respond to the devolved governance structure introduced by the Constitution of 2010.

There was no evidence brought by the Applicant of any application to, or decision by the County liquor licencing committee set up under the Machakos County Liquor Licencing Act 2014 that can be the subject of, or give rise to the orders he seeks of mandamus and prohibition against the Respondent or its agents.

Likewise, the decision of the Machakos Sub County Alcoholic Regulation Committee cannot be quashed, as the said Committee is a separate and distinct statutory body that is not under the control or direction of the Respondent as shown by the applicable legal provisions in the foregoing. Moreover, the said Committee was not made a party to these proceedings, and has not been given the opportunity to defend itself.

In the premises, I find that the Applicant’s Notice of Motion dated 31st May 2017 is not merited, and it is accordingly dismissed with costs to the Respondent.

Orders accordingly.

DATED AND SIGNED AT MACHAKOS THIS 21ST DAY OF NOVEMBER 2017

P. NYAMWEYA

JUDGE