[2023] KEHC 27213 (KLR)

Stockist) & 3 others v County Government of Nandi & 3 others (Judicial Review Miscellaneous Application E002 of 2023) [2023] KEHC 27213 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27213 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Judicial Review Miscellaneous Application E002 of 2023

JR Karanja, J

December 14, 2023

Between

Republic (Ex-Parte Shadrack Kemboi t/a Malter Stockist)

1st Applicant

Republic (Ex-Parte Isaac Kiplagat t/a Namgoi Wine Centre)

2nd Applicant

Republic (Ex-Parte Nicholas Kosgey t/a Starehe Bar & Restaurant)

3rd Applicant

Republic (Ex-Parte Jacob Bett t/a Junior Stockist)

4th Applicant

and

The County Government of Nandi

1st Respondent

The Directorate of Alcohol Drinks Control

2nd Respondent

The Emgwen Sub-County Alcoholic Drinks Control Committee

3rd Respondent

The Mosop Sub-County Alcoholic Drinks Control Committee

4th Respondent

Ruling

1. Pursuant to the leave granted by this court on the 22nd June, 2023, the Notice of Motion dated 11th July, 2023 was filed by the four ex-parte applicants being Shadrack Kemboi t/a Malter stockiest, Isaac Kiplagat t/a Namgoi Wine Centre, Nicholas Kosgey t/a Starehe Bar and Restaurant and Jacob Bett t/a Junior Stockist, seeking Judicial Review Orders of certiorari, prohibition and Mandamus against the four Respondents being, the County Government of Nandi, the Directorate of Alcoholic Drinks Control Nandi County, the Emgwen Sub-County Alcoholic Drinks Control Committee and the Mosop Sub-County Alcoholic Drinks Control Committee, all Public entities responsible for the issuance of permits and licenses for the sale and distribution of alcoholic drinks within specified area of Nandi County and the larger Nandi County.

2. Thus, the ex-parte Applicants seek an order of certiorari to remove to this court for the purpose of quashing and quash the decision of the third and fourth Respondent (i.e. the Emgwen and Mosop Sub-Counties Alcoholic Drinks Control Committees) contained in the letter dated 8th June 2023 addressed to the Applicants and an order of prohibition to prohibit the Respondents by themselves, their agents, workers, employees, servants or agencies from closing and/or interfering with the operation of the Applicant’s licenses.

3. Further, the Applicant seek an order of mandamus to compel the third and fourth Respondents to withdraw their decision contained in their letter dated 8th June 2023 and unconditionally renew all the Applicant’s liquor licenses for the year 2023. In addition, declaratory orders are also sought against the third and fourth Respondents to the effect that the decision to deny and refuse to renew the Applicants’ liquor licenses for the year 2023 was invalid, null and void and also against the first Respondent to the effect that it infringed the Applicants right to fair administrative action as enshrined under Article 47 of the Constitution.

4. The statutory statement annexed to the Notice of Motion indicates that the Applicant’s major complaint is the refusal by the Respondents, in particular, the third and fourth Respondents to renew their liquor licenses for the year 2023 thereby impacting heavily on their respective businesses and occasioning them damages for loss of business.In the supporting affidavit, dated 11th July, 2023 deponed by the first Applicant, Shadrack Kemboi on behalf of all the Applicants it is averred that the Applicants’ business are duly registered as per the provisions of the Registration of Business Names Act for the purpose of carrying out the business of sale and distribution of alcoholic drinks within Nandi County. As such, necessary permits had to be applied for and issued by the County Government of Nandi (first Respondent and the Directorate of Alcoholic Drinks Control - Nandi County (second Respondent) upon payment of requisite amounts/ fee. In addition, liquor licenses had to be applied for and approved by the local alcoholic drinks control committees such as the third and fourth Respondents.

5. It is also averred that while the first, second and third Applicants fall under the Emgwen Sub-County, the fourth Applicant falls under the Mosop Sub-County and over the years they have been applying and renewing their business liquor license on an yearly basis without any issues being raised in that regard. However, on or about the month of April 2023, being aware that their existing yearly liquor licenses were due for expiry at the end of the month of May 2023, they made applications for renewal but these were denied or rejected for allegedly failing to comply with the conditions stipulated in the letter dated 4th April, 2023 including failure to comply with Public Health and Food Hygiene Standards, failure to comply with the requisite license provisions of the Nandi County Alcoholic Drinks Control Act, 2014 and for the second, third and fourth Applicants, failure to comply with the principal planning requirements expoused under the physical planning and land use Act 2019.

6. The Applicants further averred that they filed an appeal against the decision but it was upheld by the appeal, Committee, yet they had complied with the requirements aforementioned in particular, that related to Public Health for which they received receipts from officials of the Respondents after visiting and inspecting their respective business premises. That as regards the second and third conditions, these were ambiguous and were not specifically explained to them thereby requiring a hearing on the same rather than a mere letter.

7. The Applicants contend that the Respondents acted in an arbitrary manner which is capable of causing irreparable damage to their business as well as job losses. That, with the non-renewal of their licenses they cannot sustain their operation given that they have monthly loan payments to make and a risk of their stock expiring.It is for the foregoing reasons that the Applicants seek the Judicial Review and declaration orders against the Respondents.

8. In response, the director, Alcoholic Drinks Control Nandi County, Biwott Stephen Kirwa, on behalf of the first and second Respondents and impliedly, the third and fourth Respondent, deponed a replying affidavit dated 7th July 2023, which addresses a Notice of Motion dated 22nd June 2022 which is non-existent, hence irrelevant for the purpose of the subject Notice of Motion dated 11th July 2022. Apparently, what was dated the 22nd June 2022 is the application vide the ex-parte chamber summons for leave to apply for judicial review.

9. It would appear that the Respondents through the second Respondent got it all mixed up as they also referred to leave granted on 31st January 2003, about twenty (20) years ago.Despite the glaring error or mix up, the replying affidavit referred at length to the impugned decision contained in the letter dated 8th June 2023, subject of the present application under the Notice of Motion dated 11th July, 2023. It is thus averred by the Respondents that the present application is vexatious, frivolous, scandalous, misconceived, incompetent, bad in law and an abuse of the court process as it seeks to review the decision of the sub-county committees, yet there is a valid decision made by the Nandi County Alcoholic Drinks Regulations Administrative Review Committee.

10. That, the application is fatally and incurably defective for failure to attach a copy of the impugned decision contrary to Rule 7(1) of the Civil Procedure Rules which decision dated 8th June, 2023 was made by the Nandi County Alcoholic Drinks Regulations Administrative Review Committee which is not party herein. That, the impugned decision was made by the said Nandi County Alcoholic Drinks Regulations Administrative Review Committee and not the second, third or fourth respondent as alleged by the Applicants. That the application is brought in bad faith with the intention of obtaining licenses to manufacture, sell, distribute or otherwise deal with alcoholic drinks within the county other than through the procedure provided for under the Nandi County Alcoholic Drinks Control Act, 2014.

11. The Respondents also averred that the Applicants applied for the year 2023 liquor licenses to the various Sub County Alcoholic Drinks Regulation Committees but were denied and the reasons thereof communicated to them as required by the Law. That, the Applicants sought review of the Sub County Alcoholic Drinks Regulation Committee to the Nandi County Alcoholic Drinks Regulations Administrative Review Committee while admitting the reasons given by the Sub county Committees. That, upon receipt of the Applicants’ appeals the Nandi County Alcoholic Drinks Regulations Administrative Review Committee (Review Committee) conducted its own inspection and made the necessary reports. That, the Applicants having admitted the non-compliance the Review Committee upheld the decision of the Sub-County Committees and communicated the same to the Applicants.

12. It is further averred by the Respondents that the inclusion of the third and fourth Respondents was misconceived as their decision was upheld by the Review Committee and that they followed the right procedure provided for under the applicable Act. The Respondents contended that the hearing of the Applicants’ liquor license applications were done at their own premises thereby affording them a reasonable opportunity to be heard after which decisions reached were effectively and timely communicated as required by the law. That, the Applicant approached this court with unclean hands and unjustifiably sanitize their non-compliance with the applicable Act. That, the due process of law was followed and decisions reached legally and it would be in the interest of justice that the present application be dismissed with costs.

13. The hearing of the application proceeded by way of written submissions and affidavit evidence as was directed by the court on 13th July, 2023. The Applicants submission were filed on 8th November 2023 through Lugano & Achura Advocates and those of the Respondents were filed by the office of the County Attorney Nandi County.Upon due consideration of the application on the basis of the supporting grounds and those in opposition thereto and in the light of the rival submissions, this court would hold that the decision primarily in dispute in the one contained in the letter dated 8th June 2023 addressed to the applicants respectively by the second Respondent, directorate of Alcoholic Drinks Control, through the secretary Nandi County Alcoholic Drinks Regulations Administrative Review Committee which impliedly falls under the directorate. Therefore, the deeds and functions of the Review Committee could be deemed to be those of the second Respondent.

14. Although the Review Committee was not enjoined in this application as a party on its own, the inclusion of the second Respondent sufficed in its absence as they are joined together like “Siamese twins” and the decision of the committee under the letter dated 8th June, 2023 was in actual sense a decision of a review committee of the second Respondent which incidentally was also responsible for the sub-county alcoholic drinks regulation committee such as the third and fourth respondents as may be deciphered from the documents annexed to the application and the replying affidavit. Clearly, the directorate (Second Respondent) falls under the first Respondent’s department of trade, tourism, industrialization and Enterprise Development and is the organ responsible for the control of alcohol drink and issuance of liquor licenses through its Sub County Committees and any other matter that appertains to alcoholic drinks within the County of Nandi.

15. It would follow that the submissions by the Respondents that the application is fatally defective cannot stand as the decision of the Review Committee contained in the letters dated 8th June 2023 was a decision of the second Respondent encumbering all the other Respondents. The impugned letter may not have been marked properly as an annexture to the Applicants’ supporting affidavit but it is contained in the bundle of documents annexed to the notice of motion as a whole.

16. And, even if there was an error on the part of the Applicants it pointed towards a procedural lapse which would not render an application fatally defective. Be that as it may, the basic issue arriving for determination is whether the Applicants have sufficiently and Credibly demonstrated through evidence that they are deserving of the discretionary judicial review and declaratory orders sought by themselves against the Respondent.

17. Basically, an order of Certiorari will issue if the impugned 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. However, an order of prohibition looks to the future such that 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 while an order of mandamus compels the performance of a public duly imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same, but if the complaint is that the duty has been wrongfully performed i.e. that the duly has not been performed according to the law, then mandamus is the wrong remedy to apply for because like an order of prohibition, an order of mandamus cannot quash what has already been done.

18. The foregoing factors constitute the parameters of Judicial Review set out by the court of Appeal in RepublicvKenya National Examination Council Ex-parte Gathenji &others Civil Appeal No. 266 of 1996 and applying the same to this case, it is without doubt the Applicants main or substantial complaint against the Respondents is the failure by the Respondents to accord them adequate and effective opportunity to be heard before the impugned decision was made thereby affecting them adversely in their business and livelihoods. They are complaining against a decision which has already been made and effected there being no stay order. In the circumstances the orders of prohibition and mandamus that they are herein seeking would not be efficacious as they cannot quash what has already been done even if wrongly or unlawfully done.

19. That would leave us with the order of certiorari which can quash a decision already made without or in excess of jurisdiction and or without complying with the rules of natural justice. Generally, Judicial Review is concerned with the decision making process, not with the merits of the impugned decision.In Republic v Kenya Revenue Authority Exparte Yaya Towers [2008] eKLR, it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is not part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power (see, Habburys Laws of England 4th Edition Vol (1) (1) paragraph 80).

20. Herein, the second Respondent and by extension the first, third and fourth Respondent was the authority empowered by law to issue and review the Applicants’ liquor licenses.The broad grounds on which the court exercises its Judicial Review jurisdiction were restated in the Uganda Case of Pastoli v Kabale District Local Government Council andothers [2008] 2 EA 300 as follows: -“in order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationally and procedural impropriety ………….Illegality is when the decision making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra-vires, or contrary to the provisions of a law or its principles are instances of illegality. It is for example, illegality, where a chief administrative officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are rested by law in the District Service Commission…………………..irrationally is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards…………procedural impropety is when there is a failure to act fairly on the part of the decision making authority in the process of making a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a stature of legislative instrument by which such authority exercises jurisdiction to make a decision.”

21. The material legislative instrument in this case was like Nandi County Alcoholic Drinks Control Act, 2014, which provides for applicable procedures of obtaining licenses to manufacture, sell, distribute or otherwise deal with alcoholic drinks within the County. It was under this instrument or statute that the impugned decision as expressed in the letter dated 8th June 2023 was made. The contents thereof are partly as follows: -“Ref: Review Committee Decision on your 2023 Liquor License Appeal Application)Reference is made to your application for review of the decision of the Sub County Alcoholic Drinks Regulations Committee as pertaining your 2023 liquor license for your premises. (Take Notice) that pursuant to the provisions section 17(5) (b) of the Nandi County Alcoholic Drinks Regulations Administrative Review Committee has upheld the decision of the Sub County Alcoholic Drinks Regulations Committee.By copy of this decision, the DCC, SCA, OCDPD, OCS, Sub County PHO, Head of County Enforcement Unit and the Directorate and Liquor Control shall ensure compliance of the implications of this decision thereof.”

22. The letter was signed by Pwambok Jonah, the Secretary of the Nandi County Alcoholic Drinks Regulations Administrative Review Committee and appeared to be the ultimate fate of the Applicants application for renewal of their liquor license which according to the Applicants started in the month of April 2023. They stated that the application was made in the normal course of business but was rejected or declined by the respondent on grounds that they had failed to comply with applicable laws and/or regulations including the Public Health and Food Hygiene Standards, the Nandi County Alcoholic Drinks Control Act, 2014 and the Physical Planningand Land UseAct 2019.

23. The Applicants stated that they later complied with the requirements on Public Health and were issued with the necessary receipts by the first respondent as the overall authority to confirm compliance. However, the other requirement could not be complied with as they were ambiguous and lacked specific explanation on the alleged breaches of the law for which they expected to be accorded a hearing rather than being informed of the impugned decision by a mere letter.

24. It was the Applicants’ contention that they were not accorded fair treatment and an opportunity to be heard before the impugned decision on their appeal was taken. That, the decision was arrived at arbitrarily.In the statutory statement dated 22nd June 2023, the Applicants contended that they have operated their business over the years and have been compliant with all the requisite statutory provisions respecting the renewal of their liquor licenses, but vide a letter dated 4th April, 2023, the Respondents decided to deny them renewal of their licenses for failure to comply with various conditions. They later complied with the conditions and then appealed that initial decision to the Nandi Review Committee which upheld their decision in the letter dated 8th June 2023 without given plausible reasons and without according them the right to be heard and/or right to a fair administrative action.

25. The Applicants further contended that they have obtained the licenses over the years on the basis of the nature and locations of their businesses for which they have invested based on their legitimate expectation that they would continue to enjoy the licenses issued to them as long as the nature and location of the business remained the same. However, the Respondents without any demonstration of a change of circumstances shattered their legitimate expectation by arriving at the impugned decision which they considered to be illegal and prejudicial to their interests.

26. The Applicants contended that they were not provided with a legitimate reason for the Respondents’ action of failing to renew their liquor licenses for the current year, yet they had complied with all the relevant provisions of the law.In defence, the Respondents contended that the proper procedure was followed before taking the decision to deny the Applicants their respective application for renewal of their liquor license. That the impugned decision on the appeal made to the Review Committee from an earlier decision of the Sub-Counties Committees was made in a manner which was proper and devoid of any breach of the Applicant’s rights to be heard and to a fair administrative action or even to their legitimate expectation.

27. As regards the right to be heard, the Respondents stated in their replying affidavit that they carried out inspections and enquiries on the premises thereby affording the Applicants an opportunity to be heard. In that regard, they annexed the inspections reports made by the third and fourth Respondents. However, there was no indication that the reports were signed and or served upon the applicants nor indication that the applicant were allowed to comment on them assuming that they were present at the scene during inspection.

28. The right to be heard is a tenet of natural justice which does not necessarily predict an oral hearing unless the context requires otherwise. It is however, a cardinal requirement of natural justice that quasi judicial bodies cannot make a decision adverse to an individual without giving him an effective opportunity of meeting any relevant allegations against him, but this does not have to be a personal hearing as a hearing can also be by written representation e.g the hearing of this application by written submissions.

29. What is normally regarded by the courts as appropriate is that the person affected should have an opportunity of adequately meeting the case against him and of presenting his case. That, may be achieved through written representation and explanation and not necessarily through an oral hearing. If this, shall we say, irreducible minimum does not take place, the principles of natural justice would be violated (see, Principles of Administration law 4th Edition 1998 by M.P. Jain and S.N. Jain).

30. Under Article 47 of the Constitution; every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and 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 reasons for the action.Article 50 guarantees a right to a fair hearing to the extent that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or if appropriate another independent and impartial tribunal body.

31. Form the foregoing, it is evident that contrary to what the respondents indicated, the Applicants were not afforded an adequate, effective and efficient opportunity to be heard either orally or in written form before the impugned decision on their appeals was made. The Applicants were also not given adequate or any reason which informed the impugned decision. The material letter dated 8th June 2023, did not even attempt to explain and give the reasons why the decision of upholding the earlier decision was arrived at. This clearly meant that the Respondents arrived at the decision without adhering to the rules and principles of natural justice.

32. In so doing, the Respondents violated and/or breached the Applicants’ fundamental rights of being heard and fair administrative action thereby rendering the decision unreasonable and contrary to the Applicants’ legitimate expectation.A party’s legitimate expectations as was held in the English Case of Republic v Devon County Counsel exparte P. Baker (1995) 1. All ER is: -“…….. the interest rather than the benefit that is the substance of the expectation. In other words, the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness the law recognizes that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision.”

33. And, in council of Civil Service v Minister for Civil Service [1984] 3 All ER 935. Lord Diplock stated that for a legitimate expectation to be thwarted, the impugned decision:-“…………. Must affect such other persona.By altering rights or obligations of that person which are enforceable by or against him in private law orb.By depriving him of some benefit or advantage which earlieri.He has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do with there has been communicated to him relational ground for withdrawing it on which he has been given opportunity to comment orii.He has received assurance from the decision never will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.”

34. It is therefore clear that a benefit or right cannot be withdrawn until the reasons for its withdrawal has been given and the person concerned has been given an opportunity to comment on the reason. In this case, nothing of that sort was done by the Respondents before arriving at the impugned decision which upheld and confirmed the initial decision of the third and fourth Respondents in rejecting the Applicants’ applications for renewal of their liquor licenses for the year 2023.

35. Consequently, the present application is merited and allowed but only to the extent that an order of certiorari hereby issues quashing the Respondents’ decision contained in the letter dated 8th June 2023, upholding the earlier decisions made against the Applicants by the third and fourth Respondents.The Applicants’ appeals be and are hereby restored for hearing afresh by the Respondents’ Review Committee in accordance with applicable Constitutional principles, principals of natural justice and principles of fair administrative action.

36. The “status-quo” existing between the parties immediately after the initial decisions of the third and fourth Respondents be restored and maintained until after the re-hearing and determination of the Applicants’ appeals or otherwise.

37. The Respondents shall bear the costs of the application.

DELIVERED AND DATED THIS 14TH DAY OF DECEMBER, 2023J. R. KARANJAH,JUDGE