[2011] KEHC 995 (KLR)
The court found that the applicants had not demonstrated that their products were outside the scope of section 31 of the Alcoholic Drinks Control Act, 2010, as there was insufficient evidence to establish whether the drinks were fermented or distilled. The court noted the absence of confirmation from the Kenya...
Source-derived case information.
- Citation
- [2011] KEHC 995 (KLR)
- Parties
- Applicant: Republic; Respondent: Permanent Secretary Ministry of State for Provincial Administration and Internal Security; Respondent: Commissioner of Police; Respondent: Provincial Commissioner Central Province; Applicant: Rose Wangari Kinyua; Applicant: David Munene Kinyua Jr; Applicant: David Munene Kinyua t/a Roskin Agencies
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 61 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Judicial Review and Stay
- Outcome
- leave to operate as stay not granted; leave to apply for judicial review previously granted by consent
- Legal Topics
- Judicial Review, Licensing of Alcoholic Drinks, Statutory Interpretation, Regulatory Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Permanent Secretary Ministry of State for Provincial Administration and Internal Security
Respondent
Commissioner of Police
Respondent
Provincial Commissioner Central Province
Respondent
Rose Wangari Kinyua
Applicant
David Munene Kinyua Jr
Applicant
David Munene Kinyua t/a Roskin Agencies
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Judicial Review and Stay
Legal Issues
- 1 Whether leave to apply for orders of prohibition and mandamus should operate as a stay against enforcement actions under the Alcoholic Drinks Control Act, 2010.
- 2 Whether the applicants' products are subject to section 31(1) and (2) of the Alcoholic Drinks Control Act, 2010.
- 3 Whether the packaging of Kabuga and Viena in plastic bottles contravenes the Act.
Ratio Decidendi
The court found that the applicants had not demonstrated that their products were outside the scope of section 31 of the Alcoholic Drinks Control Act, 2010, as there was insufficient evidence to establish whether the drinks were fermented or distilled. The court noted the absence of confirmation from the Kenya Bureau of Standards regarding the nature of the products and held that such factual disputes should be resolved in the substantive hearing or in the related criminal proceedings. Consequently, the court declined to grant leave to operate as a stay, emphasizing that regulatory authorities must not harass law-abiding citizens while discharging their duties.
Court Disposition
leave to operate as stay not granted; leave to apply for judicial review previously granted by consent
Orders
- The prayer for leave to operate as stay is not granted.
- Respondents are cautioned not to harass the applicants or other law-abiding citizens.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. APP. NO. 61 OF 2011 (JR)
IN THE MATTER OF LEAVE TO APPLY FOR ORDERS OF PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF THE ALCOHOLIC DRINKS CONTROL ACT, 2010
AND
IN THE MATTER OF MANUFACTURE AND DISTRIBUTION OF ALCOHOLIC DRINKS
IN THE MATTER OF LICENSING UNDER THE ALCOHOLIC DRINKS
AND
IN THE MATTER OF LICENSING UNDER THE ALCOHOL DRINKS CONTROL ACT
REPUBLIC..................................................................................................APPLICANT
VERSUS
THE PERMANENT SECRETARY MINISTRYOF STTE FOR PROVINCIAL
ADMINISTRATIONAND INTERNAL SECURITY..................................1ST RESPONDENT
THE COMMISSIONER OF POLICE....................................................2ND RESPONDENT
THE PROVINCIAL COMMISIONERCENTRAL PROVINCE...............3RD RESPONDENT
EXPARTE
ROSE WANGARI KINYUA
DAVID MUNENE KINYUA JR
DAVID MUNENE KINYUAT/A ROSKIN AGENCIES..................................APPLICANTS
R U L I N G
The Applicant’s prayer for Leave vide his exparte application (Chamber Summons) dated 22/9/2011 was granted by consent.
The issue of the Leave operating as stay was argued by both learned Counsels. Mr. Okwaro says what the Applicants manufacture does not fall under section 31(1) (2a & b) of the Alcoholic Drinks Control Act. He wants this court to allow the Applicants to continue packaging “Opaque bear and the wine” their style and distributing them. The State says its not known what the contents are.
One of the annextures filed herein shows that Lazarus Chomba Gichima has been charged for selling the Kabuga & Viena in plastic bottles instead of glass. Section 31 specifically talks of the alcoholic drink known as Changaa or any other distilled alcoholic drink. The licences availed to the court do not explain how these two kinds of drinks should be and/or are packaged.
It’s the assertion by the Applicant that these 2 drinks are fermented and not distilled and hence not subject to section 3(2) (b) of the Act.
This too is not in the Licences so I take it to be a matter for real evidence. There is nothing from KEBS to confirm what they are. This will either be dealt with in the Criminal case or during the hearing of the substantive application.
The Respondents are however cautioned that as they discharge their duty they should not be seen to harass the Applicants or any other law abiding citizens.
The prayer for leave to operate as stay is therefore not granted.
DATED, SIGNED AND DELIVERED AT EMBU THIS 18th DAY OF NOVEMBER 2011.
H. I ONG’UDI
J U D G E