Republic v County Government of Nyeri & another; Ngamathia t/a Woods Wines and Spirits (Ex parte Applicant) (Judicial Review Application E005 of 2026) [2026] KEHC 8944 (KLR) (11 June 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **JUDICIAL REVIEW APPLICATION NO. E005 OF 2026** **IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDER OF CETIORARI** **AND** **IN THE MATTER OF ARTICLE 47 AND 174 OF THE CONSTITUTION** **BETWEEN** **REPUBLIC ……........................................................................ APPLICANT** **VERSUS** **COUNTY GOVERNMENT OF NYERI…………..…. 1ST RESPONDENT** **DIRECTOR OF ALCOHOLIC DRINKS CONTROL & MANAGEMENT- NYERI COUNTY ………….…. 2ND RESPONDENT** **AND** **MATHEW MUCHEMI NGAMATHIA T/a** **WOODS WINES AND SPIRITS …………….….. EXPARTE APPLICANT** **JUDGMENT** 1. By the application dated 25.2.2026, the ex parte applicant sought the following reliefs: 2. An Order of certiorari be issued to remove to the High Court for purposes of quashing the decision and action by the 1st and 2nd Respondents to close the ex parte Applicant’s business Wood Wines & Spirits. 3. Costs. 4. The application was supported by the Affidavit of Mathew Muchemi Ngamathia dated 31.7.2024. It was deposed as follows: 5. The Respondents issued a notice of closure of business of the Applicant on 13.1.2026. 6. The business has operated for 9 years since 2017 for which license has been regularly issued and renewed. 7. The decision by the Respondents is arbitrary, unfair, illegal and irrational and pervasive as is against natural justice. 8. The Respondents filed a Replying Affidavit sworn by Josphat Wamaitha on 13.4.2026 in which it was deposed as follows: 9. The Court has no jurisdiction under Sections 32, 33 and 36 of the Nyeri County Alcoholics Drinks and Management Act, 2024. 10. The decision was lawful, reasonable and rational and no power was abused. 11. The Applicant was informed of the offence and the Respondents were taking all means for internal resolution of the dispute within 37 days required to conclude the dispute. Submissions 1. The Petitioner filed submissions dated 15.04.2026. It was submitted that the closure notice was issued arbitrarily and was unfair, illegal and irrational and pervasive for failure to grant the Applicant the right to be heard and so breaching rules of natural justice. They cited inter alia [**Republic v Public Procurement Administrative Review Board & another Ex parte Intertek Testing Services(EA) Pty Limited & Authentix Inc; Accounting Officer, Energy and Petroleum Regulatory Authority & another [2022]**KEHC 1135 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/1135/eng%402022-03-17). 2. It was submitted that judicial review was a substantive right under the constitution. They relied on Article 50 of the Constitution and section 4(3) of the Fair Administrative Action Act. 3. On the part of the Respondents, they filed submissions dated 13.4.2026. It was submitted that the Applicant was warned against violating section 23 of the county legislation that prohibited selling alcoholic drinks for consumption in the premises. 4. The Applicant committed the offence and the 2nd Respondent moved well within the legislation to exercise his powers. They submitted that the Applicant never exhausted the remedies for internal resolution under section 32 of the Act. 5. Reliance was placed on the case of **Republic v National Land Commission & County Government of Kiambu Ex Parte; Farmers Choice Limited [2020]**KEELC 2805 (KLR) based on which it was submitted that the decision was proper and devoid of illegality, irrationality or unfairness and judicial review should fail. Analysis 1. The issue that presents to me for determination is whether the Applicant has satisfied the criteria for issuance of Judicial review order of certiorari as to be entitled to the relief sought in the application. 2. The Applicant maintained that the acts of the Respondent in closing his business was arbitrary, illegal, unreasonable and unconstitutional and infringed on Article 47 of the Constitution as it violated the Petitioners’ right to fair administrative action. 3. The right to fair administrative action is enshrined under Article 47 of the 2010 Constitution as doth; (1) Every person has the right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. (3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b) promote efficient administration 1. The case of the Applicant is not that his license was suspended. His case was that the business was closed. The Respondents do not dispute closing of the Applicant’s business; their case was that the Applicant persistently dispenses alcohol on site contrary to section 23 of the Nyeri County Alcoholic Drinks Control and Management Act, 2024. This was according to the notice dated 13.1.2026. 2. The court has noted that the Applicant had paid the Alcoholic Drink Renewal Fee on 30.12.2025. The license was operative until 31.12.2025. The same renewal fee meant that the Applicant was due for issuance with a license in 2026. There is no dispute that the Respondent did not suspend or cancel the operation of the Applicant’s business. 3. Whereas the Respondents did not cancel or suspend issuance of a new license, they admitted to closing the Applicant’s business. The closure of the business while the license was operative was unwarranted. It was high handed and arbitrary. Even though the Respondents claimed that they were dealing with it internally, the fact remained that they had closed the business and so any outcome was detrimental to the Applicant. The Respondent, before closing the business ought to have heard the Applicant as per his response dated 14.1.2026. 4. This court is called upon to subject the acts of the Respondents to judicial review test. The Petitioner prays for certiorari order. He seeks to quash the decision of the Respondents closing his business. The principles for Judicial Review reliefs were set out in a land mark case of **Republic Vs Kenya National Examination Council Ex parte Gathenji and others Civil Appeal No.266 of 1996**, where the Court of Appeal stated **inter alia:** **‘An order of certiorari can only quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not adhered to or any other reasonable cause. It is trite law that the remedy of Judicial Review is not concerned with the merits of the case but the decision-making process. In order for an applicant to succeed in an application for Judicial Review, he must satisfy the court that a public officer has acted unprocedurally, that his decision was unreasonable and that the impugned decision was illegal**.’’ 1. In light of the matters under this Judicial Review Application, the court is **concerned with the decision-making process, not necessarily the merits of the decision itself. The procedure appertains whether the Respondents had the jurisdiction, whether the Applicant who was affected by the decision was heard before the decision was made, and whether in making the decision the Respondent took into account relevant matters or did take into account irrelevant matters.** In the case of **Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2002) eKLR,** the Court of Appeal held that: - **Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision, the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.’** 1. It has been stated and I dare to repeat for emphasis that 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 & another v Council of Legal Education & another [2017]** KEHC 2775 (KLR),John M. Mativo, as he then was, observed as follows: 13. 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. 14. As such, the Respondents actions must conform to the doctrine of legality. Put differently, a failure to exercise that power where the exigencies of a particular case require it, would amount to undermining the legality principle which, is inextricably linked to the rule of law. Guidance can be obtained from the South African case of AAA Investments (Pty) Ltd vs Micro Finance Regulatory Council and another where the court held as follows: “The doctrine of legality which requires that power should have a source in law, is applicable whenever public power is exercised . . . . Public power . . . can be validly exercised only if it is clearly sourced in law." 1. The constitutional has thus embedded into our legal system a transformative development of administrative justice which not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies but also entrenches the right to fair administrative action in the Bill of Rights. 2. Judicial review powers are entrenched in our constitutional order. The power to be heard before a decision is made is sacrosanct. It is irrelevant whether, the same decision could have been reached had the party been heard. Hiding behind order and statutory enactments does not in any way edify the exercise of power which is in public trust. In the case of **Judicial Service Commission v Mutava & another [2015]** KECA 741 (KLR), the Court ofAppeal [EM Githinji, RN Nambuye, J Karanja, W Karanja, JW Mwera, W Ouko] JJ.A held as follows: “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.” 1. 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 stated 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…” 1. As a derivative of Article 47 of the Constitution, Section **7 (2)** of the Fair Administrative Action Act, 2015 provides for grounds of Judicial Review which include bias, procedural impropriety, ulterior motive, failure to consider relevant matters, abuse or discretion, unreasonableness, violation of legitimate expectation or abuse of power. Essentially fair administration action is an embodiment of the doctrine of *audi alterum paterm*. 2. The court is therefore not concerned with the question whether the respondents had powers under some Act of Parliament or county legislation to act the way they did. It is whether in exercising their powers they acted fairly and heard the other side. In the case of [**Kenya Revenue Authority v Export Trading Company Ltd [2022]** KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/31/eng%402022-06-17), the Supreme Court [PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaol] posited as follows: 45. In [Communications Commission of Kenya & 5 others v. Royal Media Services Limited & 5 others](https://new.kenyalaw.org/akn/ke/judgment/kesc/2015/13), SC Petitions No 14, 14A, 14B and 14C of 2014; [2014] eKLR “[CCK](https://new.kenyalaw.org/akn/ke/judgment/kesc/2015/13)case” where Rawal, SCJ discussed the right to fair administrative action as provided for under article 47 of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2000/2) by finding:“[404] The concept of legitimate expectation has been admirably captured in the main Judgment (paragraphs 256-291) and my intention is to capture its essence while considering its implication within our constitutional purpose, and the concept of its remedies through the administrative process stipulated under article 47 of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2000/2). A state under the rule of law is obliged to balance administrative action and the claims of legitimate expectation as has been claimed by the 1st, 2nd and 3rd respondents in this case. Article 47 in the circumstances is a deliberate step towards the attainment of a fair and dependable government advancing expeditious, efficient, lawful, reasonable and procedurally fair public policies. The doctrine of legitimate expectation requires the entrenchment of a duty to act fairly. A breach of article 47 attracts remedies in Judicial Review especially where an aggrieved person had cause to expect that the attendant aspects of fair administrative action would be adhered to. It is clear that the essence of article 47 is to protect a party’s legitimate claim of entitlement that is, procedural solidity and not a mere promise of consideration. As such, the court can quash any decision arrived at un-procedurally or unfairly but reserves itself no right to engage in the administrative duties of the body in question. The court must remain a court.” [Emphasis own] 46.The two superior courts, in considering whether the appellant acted reasonably and fairly, while acknowledging that [EACCMA](http://kenyalaw.org/kl/fileadmin/pdfdownloads/EALA_Legislation/East_African_Community_Customs_Management_Act_2004.pdf) empowers the appellant to demand short levied duty, reminded themselves that they should not be concerned only with the power granted to the appellant. The superior courts concerned themselves with ensuring that the process of demanding the duty was fair and whether the appellant acted fairly or not. It was the findings that if fair procedure was not followed, every court is bound to come to the assistance of an aggrieved party irrespective of the merits of the allegations against a party, as the High Court and Court of Appeal did. 47.This court in [Martin Wanderi & 106 others v Engineers Registration Board & 10 others,](http://kenyalaw.org/caselaw/cases/view/156701/) SC Petition No 19 of 2015; [2018] eKLR found that the question of legality or the lawfulness of an act lies at the core of article 47(1) by finding:“[126] In examining article 47(1) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2000/2), the starting point is a presumption that the person exercising the administrative power has the legal authority to exercise that authority. Once satisfied as to the lawfulness of the power exercised, is when the court will delve into inquiring whether in the carrying out of that administrative action, there was violation of article 47(1). This is the test of legality. So that the question of the unlawfulness or otherwise to act is at the onset of the inquiry. Where the act done was ultra vires the mandate of the administrative entity, the act is void ab initio and the inquiry stops there as there is an outright violation of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2000/2). The question of legality or the lawfulness of an act lies at the core article 47(1).” 1. The allegations that the Applicant’s bar was dispensing alcohol in the premises was a matter for investigation and was not to be conclusively taken as reason to abruptly close the Applicant’s premises. The 2nd Respondent acted beyond the scope of his powers. It was the duty of the Respondent to bring materials before this court to justify the assertion that the Applicant’s business establishment was trading illegally and with impunity. The only assurance given to the Applicant was the right of appeal to the Liquor Committee. The right of appeal was inconsequential because the details of the facts based on which the decision was made were not revealed to the Applicant, he was not heard and the business was already closed. 2. I find that the decision of the Respondents was tainted with illegality, irrationality or procedural impropriety and without jurisdiction and cannot stand the test of judicial review. 3. It is also the finding of this court that the doctrine of exhaustion of internal remedies though submitted by the Respondents as applicable cannot limit the intervention of this court in the circumstances of this case. From the acts and conduct of the Respondents, it cannot be anticipated that the Applicant could access justice through the Respondent’s internal process as his business was already arbitrarily closed. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 [**William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)**](http://kenyalaw.org/caselaw/cases/view/203303/) **[2020]** eKLR. The Court stated as follows: The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the [Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) and was aptly elucidated by the High Court in *R v Independent Electoral and Boundaries Commission (I E B C)* ex parte *National Super Alliance (NASA) Kenya and 6 others* [2017] eKLR, where the Court opined thus:42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in *Speaker of National Assembly v Karume* [1992] KLR 21 in the following oft-repeated words: Where there is a clear procedure for redress of any particular grievance prescribed by the [Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.43.While this case was decided before the [Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. 1. Therefore, whereas it is true that where dispute resolution mechanism exists outside Courts, the same should be exhausted before the jurisdiction of the Courts is invoked, and this required is also to promote the application of Article 159 of the constitution, the said doctrine is not absolute. In [**Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2015/304) **[2015]** eKLR, the Court of Appeal stated that: *It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The ex parte Applicants argue that this accords with Article 159 of the* [*Constitution*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) *which commands Courts to encourage alternative means of dispute resolution.* 1. There exists exceptions to the doctrine of exhaustion. In ***R* vs Independent Electoral and Boundaries Commission (I E B C) & Others ex parte The National Super Alliance Kenya (NASA) (supra),** after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus: What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (*supra*), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the [Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 others v Aelous (K) Ltd and 9 others.) 1. Therefore, this court will in exceptional circumstances consider, and determine whether the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. This places the burden upon this Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised. 2. Moreover, the jurisdiction of this Court to consider disputes on constitutional breaches from parties who lack adequate audience before a forum created by a statute, or the quality of audience before the forum is in doubt, must not be ousted from the seat of this Court. Therefore, statutory provisions ousting Court’s jurisdiction are not cast in stone and must be construed restrictively, on case-to-case basis. This was extensively elaborated by Mativo J in **Night Rose Cosmetics [1972] Ltd v Nairobi County Government & 2 others [2018]** eKLR as doth: In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court. 1. This court thus has the requisite jurisdiction. The jurisdiction of this court is circumscribed under Article 165(3) of the Constitution of Kenya, which posits as follows: - **(3) Subject to clause (5), the High Court shall have-** **(a) unlimited original jurisdiction in criminal and civil matters;** **(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;** **(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;** 1. On costs, an award of costs in this court are governed by Section 27 of the Civil Procedure Act. They are discretionally. The Supreme Court has set forth guiding principles applicable in the exercise of that discretion in the case of **Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014]** eKLR, as follows: - **“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.** 1. Since costs follow the event, I find no reason to deny the Applicant costs. I award Ksh. 55,000/= as costs. The Respondents shall pay the costs. Determination 1. The upshot is that I make the following orders: - 2. The *ex parte* judicial review Application dated 25.2.2026 is merited and allowed. An Order of Certiorari be and is hereby issued to remove to this Court for purposes of being quashed and quashing the decision of the Respondents to close the Applicant’s business and order immediate closure of the Applicant’s business namely Wood Wines & Spirits. 3. The Respondents shall bear the costs of this Application payable to the Applicant assessed at Kshs. 55,000/=. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **11th** day of **June, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of:-** Mr. Kibicho for the Ex-parte Applicant Mr. Irungu for the Respondent Court Assistant – Martin