[2023] KEHC 25184 (KLR)

Thachuma Bar Owners Self Help Group v County Government of Tharaka Nithi (Judicial Review E003 of 2023) [2023] KEHC 25184 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25184 (KLR)

Republic of Kenya

In the High Court at Chuka

Judicial Review E003 of 2023

LW Gitari, J

November 9, 2023

IN THE MATTER OF AN APPLICATION FOR EXECUTION OF JUDGMENT DELIVERED ON 11/05/2020 IN CHUKA

Between

Thachuma Bar Owners Self Help Group

Applicant

and

County Government of Tharaka Nithi

Respondent

Judgment

1. Before this Court is the Applicant’s Notice of Motion dated 10th July, 2023 brought under the provisions of Order 50, Rule 1 and Order 9, Rules 9, 10, and 11 of the Civil Procedure Rules (2010), Sections 3A and 63(e) of the Civil Procedure Act, and Articles 47(1), 48, 50(1) and 159(2)(a)(b)(d) and (e) of the Constitution (2010). The Applicant is seeking the following orders:i.Spent.ii.Spent.iii.Spent.iv.That the Honourable Court be pleased to direct the Respondent through its County Secretary to show cause why they should not be committed to jail for disobeying this Honourable Court Orders issued on 18/08/2020. v.That this Honourable Court be pleased to compel the Respondent to forthwith obey this Honourable Court Orders issued on 18/08/2020 and in default, warrant of arrest and committal to jail be issued against the Respondent through its County Secretary.vi.That the Respondent be compelled to issue the Applicants with their respective liquor business trade licenses for the year 2023. vii.That this Honourable Court be pleased to issue further orders appropriate in the interest of justice.viii.That the cost if this application be provided for.

2. The Application is premised on the grounds on the face of it and it is supported by the affidavit sworn on 10th July, 2023 by Bramwel Mutwiri Paul who is described as the acting vice chairman of the Applicant Self Help Group.

3. The said Bramwel Mutwiri Paul deposes inter alia that the Applicant is duly registered under the Ministry of East African Community, Labour and Social Protection. That on 18/08/2020, this Honourable Court rightly restrained the Respondent through themselves or their agents from arbitrarily harassing and/or arresting the Applicant in the course of their liquor businesses until the Tharaka-Nithi Alcoholic Control Act 2015 was duly gazetted as required in law and the said order was duly served upon the Respondent through its County Secretary. Further, that the Respondent did not appeal against the judgment delivered on 11/05/2020 which gave effect to the order issued on 18/08/2020.

4. It is the Applicant’s contention that the Respondent has never served the Applicant with any Gazette Notice to operationalize the Respondent’s Alcoholic Control Act 2015 so as to enable the Applicant to apply for the necessary liquor licenses as required in law. That the Applicant verily believes that the said Tharaka-Nithi County Alcoholic Drinks Control Act 2015 has never been gazettes as directed by this Honourable Court on 11/05/2020.

5. The Applicant further claims that on 29/06/2023, the Respondent through its Chief Officer Energy and Industry cherry inspected some liquor outlets for license and left the Applicants who had filed some cases in court against the Respondent. That the actions of the Respondent are highly discriminatory and illegal as no public participation was ever conducted in suitability of the Applicant’s participation on the intended inspection for issuance of trade licenses. In addition, that after the selective participation inspection of liquor premises inspection conducted by the Respondent on 29/06/2023, the Respondent has started arbitral arrests of the Applicant and filing criminal cases in court.

6. The Applicant claims that its members are incurring huge losses on account of the impounding of their tools of trade and arbitral arrests by the Respondent through their agents. That the actions of the Respondent are highly illegal and ought to be arrested by this Court. Further, that had the Respondent complied with the judgment of this Court and served the Applicant with the necessary Kenya Gazette, the Applicant could have complied with the Respondent’s directive on the said Act. The Applicant thus maintains that it is in the interest of justice that the Respondent’s arbitral acts of harassing and arresting of the Applicant on their liquor businesses be suspended pending compliance by the Respondent of the orders of this Honourable Court in 18/08/2020.

7. In response to the Application, the Respondent filed a Replying Affidavit sworn on 18th July, 2023 by Lilian G. Kiruja, the legal officer of the Respondent. She conceded that judgment was delivered by this Court on 11/05/2020 to the effect that the Tharaka Nithi County Alcoholic Drinks Control Act was not properly gazetted in the Kenya Gazette. She however deposed that in complying with the judgment of the court, the Respondent caused the Tharaka Nithi County Alcoholic Drinks Control Act, 2015 to be gazetted and published through Kenya Gazetted supplement No. 23. That the allegation that the said Act has never been gazette is therefore based on ignorance of the law on the part of the Applicant. Further, she deposed that that through County Assembly of Tharaka Nithi a new Act was formulated and gazetted, the same being Tharaka Nithi County Alcoholic Drinks Control Act, 2021 which repealed the 2015 Alcoholic Drinks Control Act.

8. It is thus the Respondent’s case that as it stands today, the relevant law relating to the production, distribution, sale or any other matters concerning liquor within the counting government of Tharaka Nithi is the Tharaka Nithi County Alcoholic Drinks Control Act, 2021 (the “Act”) which was duly gazette in the Kenya gazette and has never been challenged before any court of law. Further, that the Act provides for mechanisms of applying for liquor licenses and other procedures such as appeal where one has been denied a licence. According to the Respondent, the Applicant has not demonstrated where they have applied and have been denied licenses under the Act and as such, it is the Respondent’s contention that the Applicant cannot claim to have been discriminated against. Further, that the Applicants have not demonstrated how the Respondent is harassing them. It is thus the Respondent’s case that the present application should be dismissed with costs to it as the same is frivolous, a non-starter, and an abuse of the court process.

9. The Applicant filed a further replying affidavit sworn on 21st July, 2023 by the herein above mentioned Bramwel Mutwiri Paul. The said affidavit is in response to the Respondent’s response to the application. The said Bramwel contends that the Respondent’s Replying Affidavit refers to Kenya Gazette supplement no. 23 whereas what is annexed as the alleged Act is No. 2. That the Kenya Gazette Supplement No. 2 and what is in the Kenya Gazette is a mismatch of what is annexed and filed before this court. Further, that the gazette notice no. 23 of 2021 does not in any way relate to Tharaka Nithi Alcoholic Drinks Control Act as per the Kenya Gazette.

10. According to the Applicant, they are yet to be supplied with the correct date, gazette notice number, and volume number of the Kenya Gazette which gazette the purported Act since there is no publication of any Kenya Gazette Notice whatsoever on 8th April, 2021 as annexed by the Respondent in its Replying Affidavit. The Applicant thus maintains that it us within the limits of the aforesaid judgment of this Court hence the reason for moving this Court through the present Application. Further, that the Applicants have not received any of harassment from the Respondent form the date of the judgment until this year when the Respondent, through its agents, started harassing the applicants. On the contention that there is no proof of the alleged harassment, the Applicant states that it has attached various charge sheets demonstrating the claimed harassment. The Applicant thus maintains that they are not aware of the alleged Act under which they can apply for their licenses and that they stand to suffer irreparable loss that cannot be compensated by an award of damages.

11. The respective counsel for the parties argued the application by way of oral submissions.

12. It was submitted by Mr. Murigi, the learned counsel for the Applicant, that the Respondent has never complied with the judgment of this Court delivered by Justice Limo on 11/05/2020. That the Tharaka Nithi County Alcoholic Drinks Control Act 2015 has never been properly gazetted. That the gazette adduced by the Respondent to support its claim that the Tharaka Nithi County Alcoholic Drinks Control Act 2015 presupposes that the Act was gazette before the said judgment. Further, that the supplement Gazette Supplement annexed to the Respondent’s affidavit refers to different gazette notices that does not refer to the impugned Act.

13. On the issue raised in the Respondent’s Preliminary Objection that the present application was brought without prior leave of court as required for judicial review applications, it is the Respondent’s submission that the application is brought under the provisions of Articles 47, 48, 50 and 159 of the Constitution and that since the application is brought under the provisions of the Constitution, leave is not an issue. To this end, counsel referred to the case of James Gacheru Kariuki & 22 Others v. Kiambu County Assembly & 2 Others [2017] eKLR stating that the Court found that one does not have to seek leave in such circumstances. Counsel further submitted that under Article 159 of the Constitution, courts are required to do justice without regard to procedural technicalities.

14. On the merits of the application, learned Counsel for the Applicant urged this court to be guided by the case of Dande & 4 others v Inspector General, National Police Service & 2 others (Civil Appeal 246 of 2016) [2022] KECA 170 (KLR) (18 February 2022) (Judgment). Counsel relied on the grounds in the application and the annexures thereto.

15. For the Respondent, it was submitted by Mr. Muthomi, learned Counsel for the Respondent, that there is a special procedure that governs executions of orders and decrees against government which is provided for under Section 21 of the Government Proceedings Act. That Section 21(4) of the Government Proceedings Act provide that ‘government’ includes the county government.. Further, that there is a requirement that the Applicant extracts a certificate containing the particulars of the order and the certificate is to be served on the Attorney General or County Secretary. Mr. Muthomi submitted that the Applicants have disregarded the law as there is no certificate that the Applicants have attached to show that the certificate was extracted and served. That the application is thus defective and cannot stand.

16. On the issue of whether leave is required before the institution of judicial review proceedings, Mr. Muthomi submitted that Order 53, Rule 1 of the Civil Procedure Rules is specific that leave is mandatory before filing an application for judicial review. That the Applicant did not seek the stipulated leave and therefore did not follow the laid down procedure in law. Mr. Muthomi thus submitted that the application was incompetent for want of leave. He referred this Court to the case of R. v. County Council of Kwale & Another ex-parte Conlaw (1998) KLR. He further submitted that it is a principle of law, procedure, and practice that the only orders that can be issued in Judicial Review are mandamus, prohibition, and certiorari. That the present application is therefore defective as the Applicant is not seeking any of the said orders.

17. On whether the Tharaka Nithi County Alcoholic Drinks Control Act 2015 was gazetted, Mt. Muthomi submitted that the said Act was gazette in the Kenya Gazette and that the Respondent has attached the notice of the Kenya Gazette in its response to the application. Further, that the Respondent has adduced a letter from the Government Printers, the custodian of the Kenya Gazette, confirming that the Act was gazetted in the Kenya Gazette.

18. Finally, Mr. Muthomi submitted that the operational law is the Tharaka Nithi County Alcoholic Drinks Control Act, 2021 as it the said Act repealed the Tharaka Nithi County Alcoholic Drinks Control Act 2015.

19. Mr. Muthomi maintained that the allegation by the Applicant that the application raised constitutional issues is not true. That there are no allegation of any constitutional violations. According to the learned counsel, the present application seeks to enforce or execute orders against government and yet they have not adhered to the laid down procedure. Mr. Muthomi asserts that the application is vexatious and thus prayed for the same to be dismissed with costs.

20. In a brief rejoinder, it was submitted on behalf of the Applicant that the Respondent has admitted has admitted that judgment was entered against them. That the allegation that the proper procedure was not complied is far-fetched. That the application is brought under the provisions of the constitution seeking to enforce court orders. Further, that the Applicant is not seeking for the orders of mandamus, prohibition, and certitorari under Order 53 of the Civil Procedure Rules. In addition, that contempt order can be issued against the counties.

21. On the question of the operative law, counsel for the Applicant urged this court to consider Chuka High Court Judicial Review No. 1 of 2019 (Republic v County Government of Tharaka Nithi, Ex Parte By Thachuma Bar Owners Self Help Group [2020] eKLR) where the court considered the question on whether the Act was gazetted.

22. Learned counsel for the Respondent then addressed the issue of the prayer of contempt by submitting that the prayer cannot be granted at this stage. That the only relief should be an order of mandamus to compel the Respondent to do what it has not done. He relied on the case of R v. AG ex-parte James Koros to buttress this position.

Issues for Determination 23. I have considered the application dated 10th July, 2023 by the Applicant, the response thereto and the submissions by counsels for the parties. In my view, the main issues that arise for determination are:i.Whether the Applicant has followed the correct procedure in instituting the present proceedings against the Respondent;ii.Whether leave of the court was required before the institution of the present application;iii.Whether the Tharaka Nithi County Alcoholic Drinks Control Act 2015 was gazetted;iv.Whether the Notice of Motion application dated 10th July, 2023 is meritorious.

Analysis On Whether The Correct Procedure Was Followed In Instituting The Present Application 24. The Respondent contends that the certificates required by Section 21(1) of the Government Proceedings Act were not obtained by the Applicant and/or served on the Respondent. For this reason, the Respondent claims that the application is defective.

25. Section 21(1) of the Government Proceedings Act provides as follows:“(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.”“Section 21(4) safe as aforesaid no execution or attachment or processes in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid and no person shall be individually liable under any order for payment by the Government or any Government department or any officer of Government as such if any money or costs. Under sub-section (5) the section shall apply to civil proceedings against a County Government…….”

26. My reading of the above provision is that the certificates required by Section 21(1) of the Government Proceedings Act are only required as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government. This by dint of Section 21(5) applies to any civil proceedings against a County Government. The applicants have not proved that they complied with Section 21 of the Government proceedings. The applicants have not complied with the law under Section 21. The application is therefore not properly before the court. The law is not made in vain. None compliance with law renders the application to be defective and as such it cannot see the light of the day.b.On whether leave of the court was required before instituting the present application

27. As noted above, the present application is expressed to be brought under the provisions of, inter alia, Articles 47(1), 48, 50(1) and 159(2)(a)(b)(d) and (e) of the Constitution. It is not brought under the provisions of Order 53, Rule 1 of the Civil Procedure Rules that require the grant of leave prior to the institution of an application for judicial review remedies.

28. In the persuasive case of Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment), the Court found that in Kenyan jurisprudence, the co-existence of common law prerogative writs and constitutional judicial review remedies had created an inconclusive piece of jurisprudence and a perception of conflict on the question of the applicable law. It meant that there was a two-track judicial review process and that where a judicial review application was brought under Sections 8 and 9 of the Law Reform Act, the Civil Procedure Rules under Order 53, were applicable but those Civil Procedure Rules were inapplicable where judicial review remedies were sought under the provisions of the Constitution.

29. The Court further found that the Fair Administrative Action Act was enacted pursuant to Article 47 of the Constitution. It brought the practice of judicial review into conformity with the Constitution. That the Fair Administrative Action Act did not make provision for leave to be obtained before judicial review proceedings could commence. Particularly, Section 10(1) of the Fair Administrative Action Act provides that an application for judicial review had to be heard and determined without undue regard to procedural technicalities.See James Gacheru Kariuki & 22 Others –v- Kiambu Couinty Assembly & 2 Others 2017 eKLR. Article 159 (2) (d) of the Constitution enjoins the court to do substantive justice. I note that the applicants are not seeking judicial review orders of mandamus, Certiorai and prohibition.

30. Persuaded by the above decision by Justice W. Korir, it is my view that the present application is properly before this Court and as such, this ground of opposition by the Respondent fails.

On Whether The Tharaka Nithi County Alcoholic Drinks Control Act 2015 Was Gazetted 31. It is not in dispute that on 11/05/2020, judgment was delivered by Justice Limo in Chuka High Court Judicial Review No. 1 of 2019 where the Applicant herein had sought injunctive and judicial review reliefs against the Respondent herein. More specifically, the Applicant sought for the following substantive orders:i.An order of Mandamus compelling the Respondent to issue the Applicant’s members with liquor licenses for the year 2019 on account of payment made for the licences in 2019. ii.An order of injunction directed towards prohibiting and restraining the Respondent from arbitrary harassment by arresting the said members and/or impounding/confiscating business equipment/tools belonging to the Applicant’s members.

32. It was the judgment of this court that the Applicant’s application was partially successfully to the extent that the application for an order of injunction to prohibit and restrain the Respondent from arbitrary harassment was merited. It was the reasoning of the court that the Applicant had not established a basis for the grant of the order of mandamus as prayed. In addition, that the capacity for the Respondent to issue license or deal with liquor business was wanting because of absence of proper legal backing. The Court thus ordered that the Respondent was restrained from arbitrary harassment or arresting the Applicant’s members in their liquor business until the Tharaka Nithi Alcoholic Drinks Control Act, 2015 is duly gazetted.

33. I have carefully read the decision of Justice Limo in Republic v County Government of Tharaka Nithi, Ex Parte By Thachuma Bar Owners Self Help Group [2020] eKLR in which the court found that the Tharaka Nithi Alcoholic Drinks Control Act, 2015 had not been duly gazetted. It was the reasoning of the court that the claim by the Respondent that the said statute had been duly gazetted was wanting on the sole basis of the evidence that had been presented before the court. The Court observed that while it was claimed that the said Act had been gazetted, the only evidence that had been placed before the Court to prove that fact was a letter dated 17th May 2019 authored by one Lilian Kiruja addressed to Government Printer requesting it to publish the said statute in the Kenya Gazette as well as an invoice and a receipt No.6335579 acknowledge Kshs.36,540/-. There was however no Gazette notice indicating that the said statute has been gazetted to operationalize it. It was for this reason that the Court issued injunctive orders against the Respondent restraining it form harassing the Applicant herein pending the gazettement of the said statute.

34. In the present application, the Respondent has attached evidence that the Tharaka Nithi Alcoholic Drinks Control Act, 2015 was published in a Special Issue of the Kenya Gazette. The letter dated 14th July, 2023 by one Abdi Hassan Ali from the Government Printer confirms that the Tharaka Nithi Alcoholic Drinks Control Act, 2015 is authentic and was gazetted under the Kenya Gazette supplement No. 23 (Tharaka Nithi County Act No. 6). In my view, the said statute was duly gazetted.

On Whether The Present Application Is Merited 35. Having found that the Tharaka Nithi Alcoholic Drinks Control Act, 2015 was duly gazetted and operationalized, it follows that its provisions came into force upon gazzettment. Notably however, the Tharaka Nithi Alcoholic Drinks Control Act, 2015 was repealed by the Tharaka Nithi County Alcoholic Drinks Control Act, 2021. The above mentioned letter dated 14th July, 2023 by Abdi Hassan Ali from the Governemnt Press also confirms that the Act is authentic and stands gazetted.

36. The Act was enacted by the County Assembly of Tharaka Nithi to repeal the Tharaka Nithi County Alcoholic Drinks Control Act, 2015 and for connected purposes. The Act came into operation on 8th April, 2021. It is thus the law in force to date. As such, it is the law that governs the applications and issuance of licenses to liquor businesses within the Tharaka Nithi County. As such, the Applicant cannot hide behind the previous judgment of this Court as the same has since been complied with by the Respondent.

Conclusion 37. The upshot of the above analysis, is that the application dated 10th July, 2023 lacks merit for the reasons that:-1. There was none compliance with the provisions of Section 21 of the Government Proceedings Act and therefore the application was not properly before this court.2. The Respondent has in place the Tharaka Nithi County Alcoholic Drinks Control Act 2021 which is the law that governs the issuance of licences to liquor businesses within the County.3. The application is without merits and is dismissed.

In view of the nature of the application, I make no orders as to costs.

L.W. GITARIJUDGEOrder:The Deputy Registrar to serve the parties with the certified copy of the ruling.