1. The petitioner moved this court via a petition filed alongside a notice of motion dated 30.01.2025 seeking for the following prayers:
i. A declaration that the arbitrary closure of the petitioner’s business by a Notice dated 23.01.2025 issued by the 1st respondent to the petitioner was illegal, unconstitutional and therefore null and void.
ii. An order of certiorari to remove into this Court and quash the decision of the 1st respondent contained in the letter dated 23.01.2025 closing the petitioner’s premises known as mugomoini bar and restaurant.
iii. An order of mandamus compelling the Kajiado County Alcoholic Drinks Control Board to afford the petitioner fair administrative process.
iv. An order of mandamus compelling the respondent to open the petitioner’s business premises.
v. A declaration that the acts and/or omissions of the respondents in interfering with the lawful activities of the petitioner, barring her access to the business establishment at Olkeri ward without any reason are null, invalid, arbitrary, illegal and unconstitutional.
vi. A declaration that the conduct of the 1st and 2nd respondents of closing of the petitioner’s beverages outlet contravenes the provisions of articles 10, 40, 47 and 73 of the constitution.
vii. Damages for loss of business.
viii. An order of prohibition do issue prohibiting the respondent whether by itself or any other person acting on its behalf from harassing the petitioner in her business.
ix. Any other order this Honourable court may deem fit and fit just to grant in the interest of justice.
x. Costs.
2. The petition was supported by an affidavit of the applicant wherein she deponed that she operates a bar and restaurant business known as Mugomoini Bar and Restaurant at Olkeri Ward, Ngong’. She averred that she holds all the requisite operating documents, including a business permit valid until 31st December 2025, an Alcoholic Drinks License, and a Food, Drug and Chemical Substances (Food Hygiene) License issued by the County Government of Kajiado. She contended that these permits and licenses authorize her to operate at the said premises.
3. She further deponed that on or about 23.012025, persons purporting to be officials from the 1st respondent board forcibly closed her premises and affixed a notice on the doors. She maintained that the closure was unlawful, unreasonable, and procedurally unfair, contrary to Article 47 of the Constitution and the Fair Administrative Action Act, 2015. She asserted that no report of any alleged violation of her licenses was made as required under section 29 of the Alcoholic Drinks Control and Licensing Act, nor was she served with any such report under section 29(a). She added that she was not notified of any meeting of the Licensing Board as required under section 29(b). The petitioner concluded that the respondents’ actions were malicious, and since the notice did not revoke her licenses, the closure of her premises was without legal basis and therefore warrants the intervention of the court.
4. Mr. Wilson Tayiai, Chief Officer of the 2nd respondent on behalf of the respondents filed a replying affidavit sworn on 18.07.2025 averring that the petition before the court was not frivolous but amounted to an abuse of the court process. He averred that on 19th January 2025, a general meeting was convened by the community to deliberate on emerging issues affecting its members. Present at the meeting were local leaders, including the Chief of Olkeri location and the Olkeri Ward Early Childhood Development Education Officer.
5. He reported that during the meeting, residents raised complaints regarding the proliferation of unapproved bars within the community. It was noted that these establishments had become a nuisance, causing noise pollution and being situated in residential areas, some in close proximity to Olkeri Primary School, contrary to the urban planning and zoning regulations of Kajiado County. The petitioner’s bar was identified among four such establishments that had drawn the ire of the residents.
6. Mr. Tayiai further stated that the Kajiado North Liquor Licensing team, present at the meeting, confirmed that the said bars had not been approved by the Kajiado Alcoholic Drinks Control Board and were therefore illegal under section 12(a) of the Alcoholic Drinks Control Act. He maintained that the closure of the bars was justified, as public interest must prevail over private interest. He emphasized that the 2nd respondent relies on public participation forums to incorporate community views into policy and decision-making processes. Finally, he contended that the petitioner had failed to demonstrate infringement of her rights, and accordingly urged the court to dismiss the suit with costs.
7. In her supplementary affidavit sworn on 21.10.2025, the petitioner deponed that a chief’s baraza does not constitute a lawful decision-making organ of the respondents. She averred that the closure of a business enterprise, such as her bar, is a matter regulated by statute and requires adherence to prescribed legal procedures, which cannot be actualized in a chief’s baraza.
8. It was further contended that the respondents did not deny effecting the closure of the bar. However, they failed to exhibit any notices allegedly served upon her, which would demonstrate compliance with the requirements the respondents acted arbitrarily. On the basis of the foregoing, the petitioner urged this Honourable Court to allow her petition as prayed.
9. The suit was canvassed by way of written submissions.
10. The respondents filed submissions dated 11.11.2025 wherein this court was urged that the dispute arose from a decision made by the Kajiado Alcoholic Drinks Control Board and the County Licensing Committee following sustained complaints from residents of Olkeri Ward concerning the operation of several bars, including that of the petitioner.
11. The respondents stated that on 19.01.2025, a public baraza had been convened in Olkeri Ward and attended by community members and local administrative and county officials. During that meeting, residents had raised concerns about the increasing number of unapproved liquor outlets within residential areas. The complaints had focused on persistent noise pollution, disruption of family life, and the negative impact of the bars on children, particularly due to their proximity to Olkeri Primary School. According to the respondents, the petitioner’s bar had been singled out as one of the establishments causing the disturbance.
12. Following the baraza, the Liquor Licensing Team had confirmed that the petitioner’s bar was operating without the requisite approval or licence from the Alcoholic Drinks Control Board. The respondents contended that this community engagement amounted to proper public participation as required under the Kajiado County Alcoholic Drinks Control Act and the Constitution. They maintained that the views of residents, local leaders and relevant officers had been considered before any enforcement action was taken.
13. The respondents further explained that the applicable law prohibited the licensing of liquor outlets within residential areas and near institutions of basic education. They argued that the location of the petitioner’s bar squarely fell within these prohibited zones and was therefore unlawful. In their view, the continued operation of the bar interfered with the residents’ right to a clean and healthy environment and undermined the best interests of children living and learning nearby.
14. On this basis, the Alcoholic Drinks Control Board had resolved that the unapproved bars be closed in the public interest. A closure notice had consequently been issued to the petitioner on 23.01.2025, and enforcement officers authorized to implement the decision. The respondents maintained that the closure was neither arbitrary nor punitive but rather a lawful and proportionate administrative action taken in fulfillment of their statutory and constitutional obligations.
15. In addressing the constitutional claims raised by the petitioner, the respondents asserted that no rights had been violated. They emphasized that the right to conduct a business was not absolute and could be limited by law where such limitation was reasonable and justifiable. They contended that any limitation occasioned by the closure met the requirements of proportionality, as it was grounded in legislation, pursued a legitimate purpose, and was necessary to protect public health, environmental integrity, and the welfare of children.
16. The respondents relied on the case of Mumara Estate Residents Association vs Nairobi County & 2 Others [2015] eKLR where Mwita J. (as he was then) reiterated the need to restrict liquor outlets operating in residential areas or near schools, particularly where noise pollution and community welfare were implicated. They argued that the facts before the Court mirrored those precedent, as the petitioner’s bar had been a source of disturbance and had posed a risk to the surrounding community.
17. Ultimately, the respondents submitted that they had acted within their mandate, in accordance with the law and in the broader public interest. They maintained that the petition lacked merit as it failed to demonstrate any unlawful conduct or constitutional violation on their part. They therefore urged the Court to dismiss the petition with costs and to uphold the legality of the closure decision.
18. Having considered the pleadings, submissions and authorities relied on, the issues for determination are:
i. Whether the impugned closure violated the rights of the petitioner.
ii. What are appropriate orders.
19. On the first issue, article 47 of the Constitution on fair administrative action provides:
1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be give written reasons for the action.
20. Pursuant to article 47(3), Parliament enacted the Fair Administrative Action Act. Under Section 2 of the said Act, "administrative action" is expressed to include:
i. The powers, functions and duties exercised by authorities or quasi- judicial tribunals; or
ii. any act, omission or decision of any person, body, or authority that affects the legal rights or interests of any person to whom such action relates.
21. Furthermore, Sections 4(1), (2) and (3) thereof provides:
1. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
2. Every person has the right to be given written reasons for any administrative action against him.
3. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision
a. prior and adequate notice of the nature and reasons for the proposed administrative action;
b. an opportunity to be heard and to make representations in that regard;
c. notice of a right to a review or internal appeal against an administrative decision, where applicable;
d. a statement of reasons pursuant to section 6;
e. notice of the right to legal representation, where applicable; f.
f. notice of the right to cross-examine or where applicable; or
g. information, materials and evidence to be relied upon in making the decisions or taking administrative action.
22. It follows therefore that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Additionally, that every person has the right to be given written reasons for any administrative action against him.
23. The commonly quoted case from the Constitutional Court of South Africa, in the case of President of the Republic of South Africa and Others vs South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated that;
“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”
24. Closer home, in the case of Nancy Waithera Njoroge vs County Government of Murang'a & 2 others [2019] eKLR found that stopping a salary based on allegations of absconding without giving the employee a right to be heard violated Article 47 and natural justice principles.
25. In the instant case, the petitioner urged that she holds all the requisite operating documents, including a business permit valid until 31.12.2025, an Alcoholic Drinks License and a Food, Drug and Chemical Substances (Food Hygiene) License issued by the County Government of Kajiado, the 2nd respondent herein. She contended that these permits and licenses authorize her to operate at the said premises.
26. She further urged that 23.01.2025, she received a WhatsApp message on her mobile phone from the respondents, informing her that her business had been closed. She further reported that on the following day, 24.01.2025, personnel acting on behalf of the respondents came physically to her premises, forcibly shut the doors and affixed to them a copy of the same notice that had earlier been transmitted to her via WhatsApp.
27. The respondents, in their defence, contended that the process undertaken amounted to proper public participation within the meaning of the Kajiado County Alcoholic Drinks Control Act and the Constitution, asserting that the views of residents, local leaders and relevant officers had been duly considered before enforcement action was taken. Additionally, that the applicable law expressly prohibits the licensing of liquor outlets in residential areas and near institutions of basic education and maintained that the petitioner’s bar was situated within such restricted zones. In their view, the continued operation of the establishment was unlawful, interfered with the residents’ right to a clean and healthy environment and undermined the best interests of children residing and learning in the vicinity.
28. It is evident from the respondents’ own averments that they did not deny the petitioner’s compliance with the requisite documentation necessary for the establishment and operation of her business. Their contention, rather, is that the continued operation of the said business interferes with the welfare of the community.
29. Ordinarily, before the issuance of permits of this nature, the law imposes upon the applicant/petitioner the duty to disclose the precise location and nature of the business. If indeed the petitioner discharged this duty, then the responsibility lay squarely upon the respondents to evaluate the suitability of the business within that environment.
30. The Court is compelled to inquire why, if the establishment was truly inimical to the community as alleged, the respondents nonetheless proceeded to authorize and issue the permit documents. If, for a moment, it be conceded that the respondents acted under an oversight or without proper factual background, then the law provides a clear and proper procedure for rectifying such an error. Administrative bodies cannot abdicate responsibility by shifting the burden onto the petitioner, who acted within the confines of the law.
31. Accordingly, the issuance of the permit, once lawfully obtained, cannot be invalidated by mere allegations of harm without recourse to the established statutory mechanisms for review, amendment or revocation. And I say so for the reason that it is a settled principle that public interest must be properly balanced against individual rights. Blanket suspensions or restrictions imposed without adherence to procedural fairness are inherently arbitrary and cannot withstand constitutional scrutiny. The invocation of public interest, however weighty, does not absolve a body from the duty to act within the confines of the law and to respect the rights of those affected.
32. In the case of Olkalou Sub-County Liquor Traders Association vs Ministry of Interior & National Administration & 3 others (Constitutional Petition E002 of 2024) [2024] KEHC 5791 (KLR), the Court observed that enforcement against illicit alcohol must be conducted within the law, respecting individual rights and statutory structures.
33. In my considered view therefore, the closure of the petitioner’s premises was not only procedurally flawed but substantively unreasonable. Accordingly, the petitioner was entitled to prior and adequate notice of the suspension of her licenses due to the concerns raised by the community.
34. Accordingly, the respondent's suspension of the petitioner's business was procedurally unfair for lacking notice, hearing and reasons, substantively unreasonable for being unsupported by any evidence of non-compliance, and constitutionally impermissible as a violation of Article 47 and the FAAA thus making the impugned action unlawful.
35. As a consequence of the foregoing, I make the following orders:
i. A declaration is Hereby issued that the arbitrary closure of the petitioner’s business by a Notice dated 23.01.2025 issued by the 1st respondent to the petitioner was illegal, unconstitutional and therefore null and void.
ii. An order of certiorari is issued to remove into this Court and quash the decision of the 1st respondent contained in the letter dated 23.01.2025 closing the petitioner’s premises known as mugomoini bar and restaurant.
iii. An order of mandamus is issued compelling the Kajiado County Alcoholic Drinks Control Board to afford the petitioner fair administrative process.
iv. An order of mandamus is issued compelling the respondent to open the petitioner’s business premises.
v. A declaration that the acts and/or omissions of the respondents in interfering with the lawful activities of the petitioner, barring her access to the business establishment at Olkeri ward without any reason are null, invalid, arbitrary, illegal and unconstitutional.
vi. A declaration that the conduct of the 1st and 2nd respondents of closing of the petitioner’s beverages outlet contravenes the provisions of articles 10, 40, 47 and 73 of the constitution.
vii. THAT as a consequence of Breach, the Petitioner is awarded Ksh 300,000 as General damages.
i. A declaration that the arbitrary closure of the petitioner’s business by a Notice dated 23.01.2025 issued by the 1st respondent to the petitioner was illegal, unconstitutional and therefore null and void.
ii. An order of certiorari to remove into this Court and quash the decision of the 1st respondent contained in the letter dated 23.01.2025 closing the petitioner’s premises known as mugomoini bar and restaurant.
iii. An order of mandamus compelling the Kajiado County Alcoholic Drinks Control Board to afford the petitioner fair administrative process.
iv. An order of mandamus compelling the respondent to open the petitioner’s business premises.
v. A declaration that the acts and/or omissions of the respondents in interfering with the lawful activities of the petitioner, barring her access to the business establishment at Olkeri ward without any reason are null, invalid, arbitrary, illegal and unconstitutional.
vi. A declaration that the conduct of the 1st and 2nd respondents of closing of the petitioner’s beverages outlet contravenes the provisions of articles 10, 40, 47 and 73 of the constitution.
vii. Damages for loss of business.
viii. An order of prohibition do issue prohibiting the respondent whether by itself or any other person acting on its behalf from harassing the petitioner in her business.
ix. Any other order this Honourable court may deem fit and fit just to grant in the interest of justice.
x. Costs.
2. The petition was supported by an affidavit of the applicant wherein she deponed that she operates a bar and restaurant business known as Mugomoini Bar and Restaurant at Olkeri Ward, Ngong’. She averred that she holds all the requisite operating documents, including a business permit valid until 31st December 2025, an Alcoholic Drinks License, and a Food, Drug and Chemical Substances (Food Hygiene) License issued by the County Government of Kajiado. She contended that these permits and licenses authorize her to operate at the said premises.
3. She further deponed that on or about 23.012025, persons purporting to be officials from the 1st respondent board forcibly closed her premises and affixed a notice on the doors. She maintained that the closure was unlawful, unreasonable, and procedurally unfair, contrary to Article 47 of the Constitution and the Fair Administrative Action Act, 2015. She asserted that no report of any alleged violation of her licenses was made as required under section 29 of the Alcoholic Drinks Control and Licensing Act, nor was she served with any such report under section 29(a). She added that she was not notified of any meeting of the Licensing Board as required under section 29(b). The petitioner concluded that the respondents’ actions were malicious, and since the notice did not revoke her licenses, the closure of her premises was without legal basis and therefore warrants the intervention of the court.
4. Mr. Wilson Tayiai, Chief Officer of the 2nd respondent on behalf of the respondents filed a replying affidavit sworn on 18.07.2025 averring that the petition before the court was not frivolous but amounted to an abuse of the court process. He averred that on 19th January 2025, a general meeting was convened by the community to deliberate on emerging issues affecting its members. Present at the meeting were local leaders, including the Chief of Olkeri location and the Olkeri Ward Early Childhood Development Education Officer.
5. He reported that during the meeting, residents raised complaints regarding the proliferation of unapproved bars within the community. It was noted that these establishments had become a nuisance, causing noise pollution and being situated in residential areas, some in close proximity to Olkeri Primary School, contrary to the urban planning and zoning regulations of Kajiado County. The petitioner’s bar was identified among four such establishments that had drawn the ire of the residents.
6. Mr. Tayiai further stated that the Kajiado North Liquor Licensing team, present at the meeting, confirmed that the said bars had not been approved by the Kajiado Alcoholic Drinks Control Board and were therefore illegal under section 12(a) of the Alcoholic Drinks Control Act. He maintained that the closure of the bars was justified, as public interest must prevail over private interest. He emphasized that the 2nd respondent relies on public participation forums to incorporate community views into policy and decision-making processes. Finally, he contended that the petitioner had failed to demonstrate infringement of her rights, and accordingly urged the court to dismiss the suit with costs.
7. In her supplementary affidavit sworn on 21.10.2025, the petitioner deponed that a chief’s baraza does not constitute a lawful decision-making organ of the respondents. She averred that the closure of a business enterprise, such as her bar, is a matter regulated by statute and requires adherence to prescribed legal procedures, which cannot be actualized in a chief’s baraza.
8. It was further contended that the respondents did not deny effecting the closure of the bar. However, they failed to exhibit any notices allegedly served upon her, which would demonstrate compliance with the requirements the respondents acted arbitrarily. On the basis of the foregoing, the petitioner urged this Honourable Court to allow her petition as prayed.
9. The suit was canvassed by way of written submissions.
10. The respondents filed submissions dated 11.11.2025 wherein this court was urged that the dispute arose from a decision made by the Kajiado Alcoholic Drinks Control Board and the County Licensing Committee following sustained complaints from residents of Olkeri Ward concerning the operation of several bars, including that of the petitioner.
11. The respondents stated that on 19.01.2025, a public baraza had been convened in Olkeri Ward and attended by community members and local administrative and county officials. During that meeting, residents had raised concerns about the increasing number of unapproved liquor outlets within residential areas. The complaints had focused on persistent noise pollution, disruption of family life, and the negative impact of the bars on children, particularly due to their proximity to Olkeri Primary School. According to the respondents, the petitioner’s bar had been singled out as one of the establishments causing the disturbance.
12. Following the baraza, the Liquor Licensing Team had confirmed that the petitioner’s bar was operating without the requisite approval or licence from the Alcoholic Drinks Control Board. The respondents contended that this community engagement amounted to proper public participation as required under the Kajiado County Alcoholic Drinks Control Act and the Constitution. They maintained that the views of residents, local leaders and relevant officers had been considered before any enforcement action was taken.
13. The respondents further explained that the applicable law prohibited the licensing of liquor outlets within residential areas and near institutions of basic education. They argued that the location of the petitioner’s bar squarely fell within these prohibited zones and was therefore unlawful. In their view, the continued operation of the bar interfered with the residents’ right to a clean and healthy environment and undermined the best interests of children living and learning nearby.
14. On this basis, the Alcoholic Drinks Control Board had resolved that the unapproved bars be closed in the public interest. A closure notice had consequently been issued to the petitioner on 23.01.2025, and enforcement officers authorized to implement the decision. The respondents maintained that the closure was neither arbitrary nor punitive but rather a lawful and proportionate administrative action taken in fulfillment of their statutory and constitutional obligations.
15. In addressing the constitutional claims raised by the petitioner, the respondents asserted that no rights had been violated. They emphasized that the right to conduct a business was not absolute and could be limited by law where such limitation was reasonable and justifiable. They contended that any limitation occasioned by the closure met the requirements of proportionality, as it was grounded in legislation, pursued a legitimate purpose, and was necessary to protect public health, environmental integrity, and the welfare of children.
16. The respondents relied on the case of Mumara Estate Residents Association vs Nairobi County & 2 Others [2015] eKLR where Mwita J. (as he was then) reiterated the need to restrict liquor outlets operating in residential areas or near schools, particularly where noise pollution and community welfare were implicated. They argued that the facts before the Court mirrored those precedent, as the petitioner’s bar had been a source of disturbance and had posed a risk to the surrounding community.
17. Ultimately, the respondents submitted that they had acted within their mandate, in accordance with the law and in the broader public interest. They maintained that the petition lacked merit as it failed to demonstrate any unlawful conduct or constitutional violation on their part. They therefore urged the Court to dismiss the petition with costs and to uphold the legality of the closure decision.
18. Having considered the pleadings, submissions and authorities relied on, the issues for determination are:
i. Whether the impugned closure violated the rights of the petitioner.
ii. What are appropriate orders.
19. On the first issue, article 47 of the Constitution on fair administrative action provides:
1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be give written reasons for the action.
20. Pursuant to article 47(3), Parliament enacted the Fair Administrative Action Act. Under Section 2 of the said Act, "administrative action" is expressed to include:
i. The powers, functions and duties exercised by authorities or quasi- judicial tribunals; or
ii. any act, omission or decision of any person, body, or authority that affects the legal rights or interests of any person to whom such action relates.
21. Furthermore, Sections 4(1), (2) and (3) thereof provides:
1. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
2. Every person has the right to be given written reasons for any administrative action against him.
3. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision
a. prior and adequate notice of the nature and reasons for the proposed administrative action;
b. an opportunity to be heard and to make representations in that regard;
c. notice of a right to a review or internal appeal against an administrative decision, where applicable;
d. a statement of reasons pursuant to section 6;
e. notice of the right to legal representation, where applicable; f.
f. notice of the right to cross-examine or where applicable; or
g. information, materials and evidence to be relied upon in making the decisions or taking administrative action.
22. It follows therefore that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Additionally, that every person has the right to be given written reasons for any administrative action against him.
23. The commonly quoted case from the Constitutional Court of South Africa, in the case of President of the Republic of South Africa and Others vs South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated that;
“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”
24. Closer home, in the case of Nancy Waithera Njoroge vs County Government of Murang'a & 2 others [2019] eKLR found that stopping a salary based on allegations of absconding without giving the employee a right to be heard violated Article 47 and natural justice principles.
25. In the instant case, the petitioner urged that she holds all the requisite operating documents, including a business permit valid until 31.12.2025, an Alcoholic Drinks License and a Food, Drug and Chemical Substances (Food Hygiene) License issued by the County Government of Kajiado, the 2nd respondent herein. She contended that these permits and licenses authorize her to operate at the said premises.
26. She further urged that 23.01.2025, she received a WhatsApp message on her mobile phone from the respondents, informing her that her business had been closed. She further reported that on the following day, 24.01.2025, personnel acting on behalf of the respondents came physically to her premises, forcibly shut the doors and affixed to them a copy of the same notice that had earlier been transmitted to her via WhatsApp.
27. The respondents, in their defence, contended that the process undertaken amounted to proper public participation within the meaning of the Kajiado County Alcoholic Drinks Control Act and the Constitution, asserting that the views of residents, local leaders and relevant officers had been duly considered before enforcement action was taken. Additionally, that the applicable law expressly prohibits the licensing of liquor outlets in residential areas and near institutions of basic education and maintained that the petitioner’s bar was situated within such restricted zones. In their view, the continued operation of the establishment was unlawful, interfered with the residents’ right to a clean and healthy environment and undermined the best interests of children residing and learning in the vicinity.
28. It is evident from the respondents’ own averments that they did not deny the petitioner’s compliance with the requisite documentation necessary for the establishment and operation of her business. Their contention, rather, is that the continued operation of the said business interferes with the welfare of the community.
29. Ordinarily, before the issuance of permits of this nature, the law imposes upon the applicant/petitioner the duty to disclose the precise location and nature of the business. If indeed the petitioner discharged this duty, then the responsibility lay squarely upon the respondents to evaluate the suitability of the business within that environment.
30. The Court is compelled to inquire why, if the establishment was truly inimical to the community as alleged, the respondents nonetheless proceeded to authorize and issue the permit documents. If, for a moment, it be conceded that the respondents acted under an oversight or without proper factual background, then the law provides a clear and proper procedure for rectifying such an error. Administrative bodies cannot abdicate responsibility by shifting the burden onto the petitioner, who acted within the confines of the law.
31. Accordingly, the issuance of the permit, once lawfully obtained, cannot be invalidated by mere allegations of harm without recourse to the established statutory mechanisms for review, amendment or revocation. And I say so for the reason that it is a settled principle that public interest must be properly balanced against individual rights. Blanket suspensions or restrictions imposed without adherence to procedural fairness are inherently arbitrary and cannot withstand constitutional scrutiny. The invocation of public interest, however weighty, does not absolve a body from the duty to act within the confines of the law and to respect the rights of those affected.
32. In the case of Olkalou Sub-County Liquor Traders Association vs Ministry of Interior & National Administration & 3 others (Constitutional Petition E002 of 2024) [2024] KEHC 5791 (KLR), the Court observed that enforcement against illicit alcohol must be conducted within the law, respecting individual rights and statutory structures.
33. In my considered view therefore, the closure of the petitioner’s premises was not only procedurally flawed but substantively unreasonable. Accordingly, the petitioner was entitled to prior and adequate notice of the suspension of her licenses due to the concerns raised by the community.
34. Accordingly, the respondent's suspension of the petitioner's business was procedurally unfair for lacking notice, hearing and reasons, substantively unreasonable for being unsupported by any evidence of non-compliance, and constitutionally impermissible as a violation of Article 47 and the FAAA thus making the impugned action unlawful.
35. As a consequence of the foregoing, I make the following orders:
i. A declaration is Hereby issued that the arbitrary closure of the petitioner’s business by a Notice dated 23.01.2025 issued by the 1st respondent to the petitioner was illegal, unconstitutional and therefore null and void.
ii. An order of certiorari is issued to remove into this Court and quash the decision of the 1st respondent contained in the letter dated 23.01.2025 closing the petitioner’s premises known as mugomoini bar and restaurant.
iii. An order of mandamus is issued compelling the Kajiado County Alcoholic Drinks Control Board to afford the petitioner fair administrative process.
iv. An order of mandamus is issued compelling the respondent to open the petitioner’s business premises.
v. A declaration that the acts and/or omissions of the respondents in interfering with the lawful activities of the petitioner, barring her access to the business establishment at Olkeri ward without any reason are null, invalid, arbitrary, illegal and unconstitutional.
vi. A declaration that the conduct of the 1st and 2nd respondents of closing of the petitioner’s beverages outlet contravenes the provisions of articles 10, 40, 47 and 73 of the constitution.
vii. THAT as a consequence of Breach, the Petitioner is awarded Ksh 300,000 as General damages.