Skip to content
JudgmentALEX KYALO MAINGI VS Makueni County4 min read

ALEX KYALO MAINGI VS Makueni County

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING

  1. What is before me is the petition dated 19/04/2024, together with he Notice of Motion of even date.
  2. The Notice of Motion was brought under certificate of urgency  under Article 1, 2, 3, 10, 22, 23, 27, 40, 41, 50, 159, 165, 174, 191, 196, 258 & 259 of the 2010 Constitution, & Rules 11 & 12 of the Constitution of Kenya (supervisory, jurisdiction and protection of Fundamental Rights and Freedoms of Individual) High Court, Practice and procedure Rules, The Makueni Alcoholic Drinks Control Act, 2014, Orders 53, Rule 1, 2, 3 of the Civil Procedure rules, Cap 21 Laws of Kenya.
  3. In the Notice of Motion the petitioner seeks the following orders: -
  4. That this application be certified as urgent and be heard on a priority basis on the grounds herein.
  5. That there be a stay of the notice and/or the directives issued by the Cabinet Secretary, Ministry of Interior & Coordination of National Government (1st Respondent herein) on the 6th March, 2024 for closure of all bars in Kenya and Makueni county without giving notice to the applicant/petitioner and the implementation of the notice issued by the 2nd respondent through its department of Devolution, Public participation, County Administration & Special programs on 25th March, 2024 & 26th March, 2024, pending the hearing and determination of this application.
  6. That there be a stay of the notice and/or the directives issued by the Cabinet Secretary, Ministry of Interior & Coordination of National Government (1st Respondent herein) on the 6th March 2024 for closure of all bars in Kenya and Makueni County without giving notice to the applicant/petitioner and the implementation of the notice issued by the 2nd respondent through its department of Devolution, Public Participation, County Administration & Special programs on 25th March 2024 & 26th March 2024 pending the hearing and determination of this petition.
  7. That the costs of this application be provided for.
  8. Upon perusal of the application I gave directions for parties to appear before me and address the court with respect to the interim orders sought. The appeared through counsel on the 2nd May 2024
  9. Mr. Kiluva appeared for the petitioners, Ms. Lungu for 1st & 3rd respondents and Mr. Kilonzo for the 2nd respondent, Mr. Kioko for the interested party.
  10. The gist of Mr. Kiluva’s arguments was that the directions by the respondents were unconstitutional. That the the temporary stay of those directions pending the hearing and determination of the application inter partes was necessary as the directions were given without hearing those affected and  had taken away the only source of income for the petitioners who had employees who also depended on those incomes – that – that they were seeking stay pending the hearing and determination of the Notice of Motion inter partes – and no prejudice would be suffered by respondents. In addition, it was submitted  for   the petitioner and interested party, that the petitioners were suffering prejudice especially from harassment by law enforcement, enforcing the said directives.
  11. Mr. Kioko supported these arguments, adding that each County had its own processes with respect to the business the petitioner was engaged in , in addition to being licensing and paying taxes . he urged the court to allow the interim orders on the ground that the respondents had not demonstrated any prejudice that they would suffer if the order was granted.
  12. Ms. Lungu & Mr. Kilonzo opposed the application for stay pending the hearing and determination of the application on the grounds that the directions were made in March and the petitioners could wait for a few more days for the application to be heard. They took the  position  that the petitioner’s issues would be cured if only the  matter would be expedited. 
  13. I have carefully considered the submissions of counsel – the Notice of Motion, the supporting affidavit of the petitioner and the annexures therewith.
  14. I was made aware, during submissions that there are similar petitions pending in 2 other jurisdictions  and I am not privy to the orders issued by the Hon. Judges in those jurisdictions. Hence with respect to the interim prayers I will address the immediate issue of concern of the Petitioner which is the rights of the affected business community in Makueni County.
  15. It is also my view that in the absence of a consent on the Notice of Motion it would not be appropriate to allow prayer (3) without giving the respondents the opportunity to respond.  It is the proposal of this court, as directed by Article 159(2) (c ) of the Constitution,  to all the parties to consider negotiating on the Notice of Motion  so that they proceed to deal with the Petition itself.
  16. In the event that that is not agreeable, I am persuaded that it is in the interest of justice to allow prayer (2) with respect to the Petitioner.
  17. In the event that a compromise is not reached on the Notice of Motion, the Respondents will have 14 days each to file and serve their responses to the Notice of Motion, with corresponding time to petitioner and interested party to file supplementary affidavits if need be.
  18. Thereafter each side will have 14 days to file and serve written submissions.
  19. In the event the there is a compromise on the Notice of Motion – then the same directions will apply to the hearing and determination of the Petition.
  20. Mention on 17th June 2024 for compliance
  21. Orders accordingly

In the presence of:

Ms. Nelima/Ms. Elizabeth

Mr. Kiluva for Petitioners

Mr. Kioko for Interested Party

Ms. Lungu For 1st and 3rd Respondents

Mr. Kilonzo for 2nd Respondent

    ALEX KYALO MAINGI VS Makueni County ALEX KYALO MAINGI VS Makueni County