' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CIVIL APPEAL NO. E127 OF 2024
JOYCE WAIRIMU KAMAU T/A KIBICHIKU INN……….APPELLANT
VERSUS
THE CHAIRPERSON KABETE SUB-COUNTY ALCOHOLICS DRINKS REGULATORY COMMITTEE…………….1 ST RESPONDENT
THE CHAIRPERSON KIAMBU COUNTY ALCOHOLICS DRINKS
APPEALS COMMITTEE………………………………2 ND RESPONDENT
THE OCS KINGEERO POLICE STATION…………3 RD RESPONDENT
THE OCPD KABETE…………………………...………4 TH RESPONDENT
(Being an appeal from the decision of the Kiambu County Appeals Committee 25 th July, 2023 in REF: KCG/ADC/032/VOLI: JOYCE WAIRIMU KAMAU)
JUDGMENT
BACKGROUND
Vide a meeting held on 21 st June, 2023 by the Kiambu County Alcoholic Drinks Appeal Committee, Kabete Sub-County, the Committee upheld the decision by the Sub-County whereby the Appellant’s appeal on grant of general retail licence was denied through the decision dated 25 th July, 2023.
The Appellant being dissatisfied with the decision by the Kiambu County Alcoholic Drinks Appeal Committee-Kabete Sub County dated 25 th July, 2023, has preferred the present Appeal. In her Memorandum of Appeal, she has listed five grounds of appeal being that:-
The Appeals Committee erred in law and in fact and misdirected itself in failing to accord the Appellant an opportunity to be heard contrary to the rules of natural justice.
The Appeals Committee erred in law and in fact and misdirected itself in failing without justifiable reason to issue the Appellant with a General Retail Alcoholic Drinks Licence for the years 2023 and 2024.
The Appeals Committee erred in law and in fact and misdirected itself in disallowing the Appellants appeal for reasons that her business is in a residential area, it has poor wastage management and inadequate space without sufficient evidence to support their said assertions.
The Appeals Committee erred in law and in fact and misdirected itself in failing to take into account that the 2 nd Respondent had issued the Appellant with General Retail Alcoholic Drinks Licence for the year 2022 only for the Appellant to be denied the said license for the year 2023 and 2024 for the same premises.
The Appeals Committee erred in law and in fact and misdirected itself in failing to maintain records of all its proceedings and in particular, records of the purposes for which an appeal was made, the evidence given and the arguments adduced by the parties in Kiambu County Appeals Committee REF: KCG/ADC/032/VOLI.
The parties were directed to canvass the appeal by filing and exchanging written submissions.
APPELLANT’S SUBMISSIONS.
The Appellant submits that the Appeals Committee failed to accord her an opportunity to be heard which deprived her of a fair and just hearing. Reliance was placed in the case of Republic vs Kenya National Examinations Council (1997) . The cancellation was said to disregard the rules of natural justice as well as violate its legitimate expectation which is unlawful. It was submitted that the Appellant had complied with all the necessary requirements hence the cancellation and failure to renew her licence was unjustifiable and that she is being denied a right to earn a living. Reliance was placed in the case of Keroche Breweries Ltd. Vs Cabinet Secretary Ministry of Interior and Coordination of National Government and others (2015) eKLR . The assertions by the Committee that the business is in a residential area, suffers from poor waste management and lacks adequate space were said to be unsubstantiated. The grounds should have led to sanctions and not closure of the business. The Appeals Committee was accused of failing to maintain records can have significant legal and procedural effects. Reliance was placed in the case of Bernard Muthee & another vs Anita Kamba Mwiti (2021) eKLR . Lastly the court was urged to quash the decision of the Kiambu County Appeals Committee dated 25/7/2023.
RESPONDENTS’ SUBMISSIONS
The Respondent in opposing the appeal submits that the Appeals Committee conducted independent inspection and found that the premise was in a residential area which could lead to persons under the age of eighteen accessing alcoholic drinks. The 1 st Respondent followed the due procedure in assessing the Appellant’s premises and the outcome was communicated with reasons for the denial. The Respondents submitted that Kiambu County Alcoholic Drinks Control Act 2018 (revised 2022) gives room for the Applicant to reapply for a licence after meeting the conditions highlighted by the Appeals Committee as such the Appellant should not use the Court to issue orders to the 1 st and 2 nd Respondent to issue a licence when the Appellant has not demonstrated that she has met the requirements for issuance of the same. It was submitted that for a stay of execution to issue the Appellant must satisfy to the court that she stands to suffer substantial loss and that the instant application was filed without unreasonable delay. Reliance was placed on among other cases the case of Carter & Sons Ltd vs Deposit Protection Fund Board Civil Appeal No. 291 of 1997 . The Kiambu County Alcoholic Drinks Appeal Committee was said to be a creation of a statutory legislation and its constitutionality and composition is not being challenged hence the Court cannot order a different appeals committee to hear the Appellant’s appeal. Lastly, the court was urged to dismiss the Appellant’s appeal with costs.
ISSUES FOR DETERMINATION
Having considered the appeal and the parties submissions, the main issues arising for determination are;
Whether the Appellant was accorded a fair hearing by the Appeals Committee
Whether the Appeals Committee erred in failing to issue the Appellant with a liquor licence
ANALYSIS
This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123, this principle was enunciated thus
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
In the case of Butler v. Butler (1982) KLR 277 it was observed that a Court is supposed to give a reasonable award which is neither extravagant nor oppressive while being guided by factors including previous awards for similar injuries and the principles as developed by the Courts. However, what constitutes a reasonable award is an exercise of discretion and will depend on the peculiar facts of each case and an Appellate Court must be slow to interfere with such an exercise of discretion.
Whether the Appellant was accorded a fair hearing by the Appeals Committee
The Appellant herein was denied a general retail licence vide the decision by the Kiambu County Alcoholic Drinks Appeals Committee, Kabete Sub-County dated 25 th July, 2023.
The Appellant contends that she was not accorded an opportunity to be heard as such she was deprived of a fair and just hearing.
The Respondents on the other hand aver that the appeals committee followed due procedure in the inspection of the Appellant’s premises and the Appellant was notified of the denial of the licence with reasons thereof.
This Court has perused the record and there is indeed an extract of the minutes of the meeting held on 21/6/2023 by the Kiambu County Alcoholic Drinks Appeal Committee where the Appellant herein had appeared before the appeals committee as an Appellant from the decision of the Sub-County.
From the minutes, it can be noted that the appeals committee noted the reasons for rejection by the Sub-County Regulatory Committee being that the Appellant’s premises were located in a residential area, also that the premises were very small and had poor waste management.
In her submissions, before the appeals committee, the Appellant is recorded to have indicated that she had improved on waste management. Nevertheless, the appeals committee went ahead to record its findings that the premises had poor ventilation with inadequate space as well as poor waste management as such upheld the Sub-County decision denying the Appellant the grant of a general licence.
Bearing the above, this Court is thus satisfied that the Appellant was accorded a fair hearing as there is evidence that she participated and appeared before the appeals committee in its meeting held on 21/6/2023 and the decision therein communicated to the Appellant on 25/7/2023.
This ground of appeal that the Appellant was not accorded a fair hearing by the Appeals Committee is found to be devoid of merit and is disallowed.
Whether the Appeals Committee erred in failing to issue the Appellant with a liquor licence
Subsequently, the Appellant is dissatisfied with the decision to deny her a licence for the year 2023 and 2024 as the same disregards rules of natural justice as well as denying her a right to earn a living. The reasons given for denying the Appellant her licence were said to be unsupported by evidence as such the said decision should be quashed. In any case, the Appellant contends that she has complied with all the necessary requirements hence the failure to issue her with a licence is unjustified.
On their part, the Respondents contend that the inspection conducted at the Appellant’s premises found that the premises were in a residential area which exposes under age persons to access to alcoholic drinks. The Respondents contend that the Kiambu County Alcoholic Drinks Control Act 2018 (revised 2022) gives room for the Appellant to reapply for a licence once she meets the conditions as highlighted by the appeals committee.
The appeals committee in the meeting held on 21/6/2023 has demonstrated that it accorded the appellant an opportunity to be heard and through its inspection of the Appellant’s premises and identified that the same were still located in a residential area as such its decision to uphold the decision by the Sub-County to deny the Appellant with a liquor licence cannot be said to be arbitrary.
The Appellant is inviting this Court to quash the said decision on grounds that the same disregards rules of natural justice. This Court is of the opinion that since the Appellant has been accorded an opportunity to re-apply for the licence once she meets the highlighted conditions, quashing the decision by the appeals committee would amount to allowing the Appellant to operate her business through the back door.
This ground of appeal that the Appeals Committee erred in failing to issue the Appellant with a liquor licence is also found to be devoid of merit and it is disallowed.
In the circumstances and bearing the above, the Appellants appeal is found to be without merit in its entirety.
FINDINGS AND DETERMINATION
For the forgoing reasons this Court finds the appeal to be devoid of merit in its entirety and as such it is hereby dismissed.
Each party to bear its/ their own costs.
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 1 ST DAY OF AUGUST, 2025
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
N/A – by the Appellant
Ngugi – for the 1 st and 2 nd Respondents
N/A – for 3 rd and 4 th Respondents
'
IN THE HIGH COURT OF KENYA AT KIAMBU
CIVIL APPEAL NO. E127 OF 2024
JOYCE WAIRIMU KAMAU T/A KIBICHIKU INN……….APPELLANT
VERSUS
THE CHAIRPERSON KABETE SUB-COUNTY ALCOHOLICS DRINKS REGULATORY COMMITTEE…………….1 ST RESPONDENT
THE CHAIRPERSON KIAMBU COUNTY ALCOHOLICS DRINKS
APPEALS COMMITTEE………………………………2 ND RESPONDENT
THE OCS KINGEERO POLICE STATION…………3 RD RESPONDENT
THE OCPD KABETE…………………………...………4 TH RESPONDENT
(Being an appeal from the decision of the Kiambu County Appeals Committee 25 th July, 2023 in REF: KCG/ADC/032/VOLI: JOYCE WAIRIMU KAMAU)
JUDGMENT
BACKGROUND
Vide a meeting held on 21 st June, 2023 by the Kiambu County Alcoholic Drinks Appeal Committee, Kabete Sub-County, the Committee upheld the decision by the Sub-County whereby the Appellant’s appeal on grant of general retail licence was denied through the decision dated 25 th July, 2023.
The Appellant being dissatisfied with the decision by the Kiambu County Alcoholic Drinks Appeal Committee-Kabete Sub County dated 25 th July, 2023, has preferred the present Appeal. In her Memorandum of Appeal, she has listed five grounds of appeal being that:-
The Appeals Committee erred in law and in fact and misdirected itself in failing to accord the Appellant an opportunity to be heard contrary to the rules of natural justice.
The Appeals Committee erred in law and in fact and misdirected itself in failing without justifiable reason to issue the Appellant with a General Retail Alcoholic Drinks Licence for the years 2023 and 2024.
The Appeals Committee erred in law and in fact and misdirected itself in disallowing the Appellants appeal for reasons that her business is in a residential area, it has poor wastage management and inadequate space without sufficient evidence to support their said assertions.
The Appeals Committee erred in law and in fact and misdirected itself in failing to take into account that the 2 nd Respondent had issued the Appellant with General Retail Alcoholic Drinks Licence for the year 2022 only for the Appellant to be denied the said license for the year 2023 and 2024 for the same premises.
The Appeals Committee erred in law and in fact and misdirected itself in failing to maintain records of all its proceedings and in particular, records of the purposes for which an appeal was made, the evidence given and the arguments adduced by the parties in Kiambu County Appeals Committee REF: KCG/ADC/032/VOLI.
The parties were directed to canvass the appeal by filing and exchanging written submissions.
APPELLANT’S SUBMISSIONS.
The Appellant submits that the Appeals Committee failed to accord her an opportunity to be heard which deprived her of a fair and just hearing. Reliance was placed in the case of Republic vs Kenya National Examinations Council (1997) . The cancellation was said to disregard the rules of natural justice as well as violate its legitimate expectation which is unlawful. It was submitted that the Appellant had complied with all the necessary requirements hence the cancellation and failure to renew her licence was unjustifiable and that she is being denied a right to earn a living. Reliance was placed in the case of Keroche Breweries Ltd. Vs Cabinet Secretary Ministry of Interior and Coordination of National Government and others (2015) eKLR . The assertions by the Committee that the business is in a residential area, suffers from poor waste management and lacks adequate space were said to be unsubstantiated. The grounds should have led to sanctions and not closure of the business. The Appeals Committee was accused of failing to maintain records can have significant legal and procedural effects. Reliance was placed in the case of Bernard Muthee & another vs Anita Kamba Mwiti (2021) eKLR . Lastly the court was urged to quash the decision of the Kiambu County Appeals Committee dated 25/7/2023.
RESPONDENTS’ SUBMISSIONS
The Respondent in opposing the appeal submits that the Appeals Committee conducted independent inspection and found that the premise was in a residential area which could lead to persons under the age of eighteen accessing alcoholic drinks. The 1 st Respondent followed the due procedure in assessing the Appellant’s premises and the outcome was communicated with reasons for the denial. The Respondents submitted that Kiambu County Alcoholic Drinks Control Act 2018 (revised 2022) gives room for the Applicant to reapply for a licence after meeting the conditions highlighted by the Appeals Committee as such the Appellant should not use the Court to issue orders to the 1 st and 2 nd Respondent to issue a licence when the Appellant has not demonstrated that she has met the requirements for issuance of the same. It was submitted that for a stay of execution to issue the Appellant must satisfy to the court that she stands to suffer substantial loss and that the instant application was filed without unreasonable delay. Reliance was placed on among other cases the case of Carter & Sons Ltd vs Deposit Protection Fund Board Civil Appeal No. 291 of 1997 . The Kiambu County Alcoholic Drinks Appeal Committee was said to be a creation of a statutory legislation and its constitutionality and composition is not being challenged hence the Court cannot order a different appeals committee to hear the Appellant’s appeal. Lastly, the court was urged to dismiss the Appellant’s appeal with costs.
ISSUES FOR DETERMINATION
Having considered the appeal and the parties submissions, the main issues arising for determination are;
Whether the Appellant was accorded a fair hearing by the Appeals Committee
Whether the Appeals Committee erred in failing to issue the Appellant with a liquor licence
ANALYSIS
This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123, this principle was enunciated thus
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
In the case of Butler v. Butler (1982) KLR 277 it was observed that a Court is supposed to give a reasonable award which is neither extravagant nor oppressive while being guided by factors including previous awards for similar injuries and the principles as developed by the Courts. However, what constitutes a reasonable award is an exercise of discretion and will depend on the peculiar facts of each case and an Appellate Court must be slow to interfere with such an exercise of discretion.
Whether the Appellant was accorded a fair hearing by the Appeals Committee
The Appellant herein was denied a general retail licence vide the decision by the Kiambu County Alcoholic Drinks Appeals Committee, Kabete Sub-County dated 25 th July, 2023.
The Appellant contends that she was not accorded an opportunity to be heard as such she was deprived of a fair and just hearing.
The Respondents on the other hand aver that the appeals committee followed due procedure in the inspection of the Appellant’s premises and the Appellant was notified of the denial of the licence with reasons thereof.
This Court has perused the record and there is indeed an extract of the minutes of the meeting held on 21/6/2023 by the Kiambu County Alcoholic Drinks Appeal Committee where the Appellant herein had appeared before the appeals committee as an Appellant from the decision of the Sub-County.
From the minutes, it can be noted that the appeals committee noted the reasons for rejection by the Sub-County Regulatory Committee being that the Appellant’s premises were located in a residential area, also that the premises were very small and had poor waste management.
In her submissions, before the appeals committee, the Appellant is recorded to have indicated that she had improved on waste management. Nevertheless, the appeals committee went ahead to record its findings that the premises had poor ventilation with inadequate space as well as poor waste management as such upheld the Sub-County decision denying the Appellant the grant of a general licence.
Bearing the above, this Court is thus satisfied that the Appellant was accorded a fair hearing as there is evidence that she participated and appeared before the appeals committee in its meeting held on 21/6/2023 and the decision therein communicated to the Appellant on 25/7/2023.
This ground of appeal that the Appellant was not accorded a fair hearing by the Appeals Committee is found to be devoid of merit and is disallowed.
Whether the Appeals Committee erred in failing to issue the Appellant with a liquor licence
Subsequently, the Appellant is dissatisfied with the decision to deny her a licence for the year 2023 and 2024 as the same disregards rules of natural justice as well as denying her a right to earn a living. The reasons given for denying the Appellant her licence were said to be unsupported by evidence as such the said decision should be quashed. In any case, the Appellant contends that she has complied with all the necessary requirements hence the failure to issue her with a licence is unjustified.
On their part, the Respondents contend that the inspection conducted at the Appellant’s premises found that the premises were in a residential area which exposes under age persons to access to alcoholic drinks. The Respondents contend that the Kiambu County Alcoholic Drinks Control Act 2018 (revised 2022) gives room for the Appellant to reapply for a licence once she meets the conditions as highlighted by the appeals committee.
The appeals committee in the meeting held on 21/6/2023 has demonstrated that it accorded the appellant an opportunity to be heard and through its inspection of the Appellant’s premises and identified that the same were still located in a residential area as such its decision to uphold the decision by the Sub-County to deny the Appellant with a liquor licence cannot be said to be arbitrary.
The Appellant is inviting this Court to quash the said decision on grounds that the same disregards rules of natural justice. This Court is of the opinion that since the Appellant has been accorded an opportunity to re-apply for the licence once she meets the highlighted conditions, quashing the decision by the appeals committee would amount to allowing the Appellant to operate her business through the back door.
This ground of appeal that the Appeals Committee erred in failing to issue the Appellant with a liquor licence is also found to be devoid of merit and it is disallowed.
In the circumstances and bearing the above, the Appellants appeal is found to be without merit in its entirety.
FINDINGS AND DETERMINATION
For the forgoing reasons this Court finds the appeal to be devoid of merit in its entirety and as such it is hereby dismissed.
Each party to bear its/ their own costs.
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 1 ST DAY OF AUGUST, 2025
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
N/A – by the Appellant
Ngugi – for the 1 st and 2 nd Respondents
N/A – for 3 rd and 4 th Respondents
'