https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8111

Kagiri v Office of Director Public Prosecution & 2 others (Criminal Revision E015 of 2025) [2026] KEHC 8111 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8111 (KLR) Republic of Kenya In the High Court at Thika Criminal Revision E015 of 2025 TW Ouya, J June 11, 2026 Between Richard Mungai Kagiri Applicant and Office of Director Public Prosecution 1st Respondent Ocs Membley Police Station 2nd Respondent Attorney General 3rd Respondent Ruling 1.The Applicant moved this honourable court vide an Application dated 13th March 2025 requiring this honourable court to exercise its supervisory powers to ascertain the correctness of the decision of the trial magistrate dismissing his objection that sought to declare the charge sheet defective. 2.The Applicant had been charged with the offence of operating a bar without license contrary to Section 7 (1) (b) as read with Section 62 of the Alcoholic Drinks Control Act. The Particulars of the offence were that on the 15th day of October 2024 at Githurai area in Ruiru Sub-county within Kiambu County, the Applicant was found operating a bar without a license for the year ending December 2024. The Applicant denied the charges and a plea of not guilty was entered. 3.Consequently, the Applicant raised an objection that the charge sheet was defective. The Trial Magistrate dismissed the Application on the basis that the Alcoholic Drinks Control Act was a valid statute and that the Kiambu County had no regulations relating to liquor licensing. Therefore, although liquor licensing is a devolved function, the Alcoholic Drinks Control Act, 2010 has not been repealed and is still in force. Nevertheless, the jurisdiction on the conflict of laws between the national government and the county government fell within the High Court and not the trial court. 4.The 1st Respondent opposed the Application vide the Replying Affidavit dated 25th April 2025 on the basis that the charge as framed did not in any way prejudice the Applicant as he was able to understand the substance of the charge read to him and even plead to it as required by law. Moreover, the Alcoholic Drinks Control Act is a lawful statute having the force of law within Kenya and had not been declared unconstitutional by any court. 5.The court directed that the Application be canvassed through written submissions. 6.The Applicant submitted that the issuance of licenses to retail liquor outlets and the contravention and penalties under the Alcoholic Drinks Control Act No. 4 of 2010 became invalid immediately after the County Assembly of Kiambu enacted the Kiambu County Alcoholic Drinks Control Act. It was submitted that the Alcoholic Drinks Control Act is endowed with international trade, a function of the national government and therefore incapable of issuing licenses for retail liquor outlets which is an exclusive function of the county governments. Reliance was placed on the case of Joseph Nduvi Mbuvi vs Republic [2019] eKLR to urge the position that the court had jurisdiction to entertain the instant Application. 7.The Respondent submitted that the act upon which the Applicant was charged is legal and has not been repealed thus operational within all counties in Kenya. The Respondent therefore urged that the Application be dismissed. 8.I have considered the material before, the submissions as well as the authorities cited and this is the view I form of the matter. 9.Section 362 of the Criminal Procedure Code provides that:“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.” 10.A strict reading of Section 362 of the Criminal Procedure Code, in my considered view, is that the object of the revisional jurisdiction of the High Court is to enable the Court, in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well. 11.In this case, what falls for determination is whether the trial court was right in dismissing the objection by the Applicant on the defective charge sheet. 12.It has been held that a court must consider the defects in a charge sheet from a two-step test. First is to determine whether the charge is defective and if so, whether such defect can be remedied. This was stated by the Court of Appeal in Peter Ngure Mwangi v Republic [2014] eKLR thus:“On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not.” 13.The Court of Appeal gave guidance on determining whether a defect in a charge is fatal in Bernard Ombuna v Republic [2019] eKLR as follows:“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” 14.Section 382 of the Criminal Procedure Code provides that unless an error in the judgment has occasioned a failure of justice, the order or sentence of a court shall not be reversed. The Section provides as follows:“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 15.In the instant case, the Applicant’s contention was that he ought to have been charged under the Kiambu County Alcoholic Controls Act and not the Alcoholic Drinks Control Act, 2010. The trial Court observed that although liquor licensing is a devolved function, the Alcoholic Drinks Control Act was still in operation and had not been declared unconstitutional. Therefore, the Respondent were right in instituting criminal charges against the Applicant for selling alcohol without a license contrary to Section 7 (1) (b)as read with Section 62 of the Alcoholic Drinks Control Act. Nevertheless, the jurisdiction to determine conflict of laws between county governments and national government laws fell on the High Court. 16.The Fourth Schedule of the Constitution of Kenya provides that criminal law is a function of the national government while liquor licensing is a function of the county government. 17.Therefore, in so far as selling alcoholic drinks without a license amounts to a criminal offence, the same can be said to be an aspect of criminal law thus falling within the purview of the national government. On the other hand, the specific task of issuing liquor licensing is a function of the County Government. 18.The question that emanates from the above is that what happens when a person sells alcohol without a license? Section 9 of the Alcoholic Drinks Control Act states thus:“Application for licence(1)A person intending to manufacture or otherwise produce any alcoholic drink in Kenya or to operate an establishment for the sale of an alcoholic drink shall make an Application in a prescribed form to the District Committee in the district where the premises is to be situated and shall pay a prescribed fee.” 19.The above section therefore demonstrates that an Application for a license is made to the district committee where the premises is equated, tantamount to the current County Government systems. 20.Section 7 of the Act provides that:“7.Control of alcoholic drinks(1)No person shall—(a)manufacture or otherwise produce;(b)sell, dispose of, or deal with;(c)import or cause to be imported; or(d)export or cause to be exported, any alcoholic drink except under and in accordance with a licence issued under this Act.” 21.So, the question would be whether the Applicant fell among the categories of persons or entities authorized to handle alcohol under section 7, without authority, and if not, whether he had the requisite license to handle the alcohol. If he had no authority, then he needed a license under the Act, and that license could only be issued under sections 9 and 12 of the Act, for the purpose of sale for consumption. Under sections 9 and 12 of the Act, that license should be tied to some premises where the alcohol is to be sold. The licensing, therefore, is of the premises where the alcohol is to be sold. It is not a license to handle alcoholic drinks generally, but at defined premises, for the purpose of its sale. 22.From the facts therein, the Applicant was not a person authorized under section 7 to handle alcoholic drinks. He required a license, therefore, to handle them, for the purposes of sale. 23.As indicated above, under sections 9, 10, 11 and 12 of the Act, the licensing to sell alcohol for consumption is tied to premises, and in fact, it should be licensing of the premises. It should not be a license to a person to handle alcoholic drinks, but of premises where such drinks are to be sold. 24.It follows therefore that the argument that the Applicant ought to have been charged under the Kiambu Alcoholic Control Act is not material as the bottom line is that the Applicant was operating a bar without a license. I therefore find no reason to disturb the finding of the trial court in dismissing the Applicant’s objection. 25.I have also outlined that whereas liquor licensing is a function of the National Government, criminal law is a function of the National Government. Therefore, the Applicant’s recourse in dealing with the apparent conflict of laws was by filing the necessary Application to the High Court as ordered by the trial court. 26.The upshot is that the Application is without merit and is hereby dismissed. I direct further that the trial file be placed before the Deputy Registrar to be assigned to another judicial officer other than the one who ruled on the Application subject of this revision. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 11TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of: