A. Introduction
1. It is, to put it mildly, quite unfortunate that the petitioner, being the driver of its own case, has failed to file its submissions notwithstanding the express directions of this Court of 24 July 2025, and 13 November 2025. The default is not a mere procedural mishap. It is a dereliction of the most basic obligation imposed upon a litigant, in our system of law. What makes the default all the more egregious is that the Respondent, for its part, complied with the Court's directions and duly filed its submissions. The Petitioner’s conduct could not be countenanced, much less rewarded with indulgence, without doing violence to the orderly administration of justice.
2. This Court was not oblivious to the prejudice occasioned to the Respondent by the Petitioner’s failure to discharge its obligations, which distorted the very process through which the Court directed that this dispute is to be determined. Litigation is not a one-sided enterprise. The burdens of the adversarial process are reciprocal. Each party is required to pull weight.
3. In cases such as this, it requires great skill for a respondent to understand the petitioner’s case, their arguments of the facts in dispute, and their application of the law, and rebut the same without advancing the Petitioner’s case.
4. When the matter came up for mention to confirm the filling of submissions, on the 18th of February 2026, the court noting the above granted the Respondent’s prayer for a judgement date. Not doing so would have continued to prejudice the Respondent. It now appears the Petitioner never had the intention of prosecuting their case at all. I say so, because they have yet to file their submissions up to date. It therefore is not unreasonable to infer that it employed a deliberate Litigation strategy to unreasonably delay the determination of this matter. I will say no more about such (apparent) tactics employed by parties in the conduct of litigation, save to observe that the Court's process is not a playground for procedural gamesmanship.
Background
5. The Petitioner operating in Kajiado County moved this court, via a constitution petition dated 31 January 2025, challenging the Respondent’s actions to suspend its alcoholic drinks licence in a manner it termed as sudden and arbitrary causing it operational disruption, seeking the following orders and reliefs:
(a) A declaration that the act of the respondent in suspending the Petitioner’s Alcoholic Drinks Licence [violated the Petitioner’s] and its owners’ rights under Article 27(1) (2) and (3), 28, 47, and 50 of the Constitution;
(b) A declaration that the said suspension is in breach of the Petitioner’s constitutional rights as enshrined in Articles 27(1) (2), 28, 47(1) and 50 of the Constitution;
(c) A declaration that the Respondent’s actions are discriminatory and amount to selective enforcement of the law;
(d) An order of mandamus directing the respondent to reinstate the Petitioner’s Alcohol Drinks Licence in Kajiado County;
(e) An order of judicial review do issue in nature of certiorari to bring into this court the letter by the Respondent dated 23 January 2025 suspending the Petitioner’s Alcohol Drinks Licence and quashing the same; and
(f) Costs of this Petition to be borne by the Respondent.
6. The petition was supported by the supporting affidavit of James Gichuhi, the Petitioner’s director. The Petitioner’s case can be summarized as follows:
(a) The Petitioner operated under a unified business permit issued by the respondent, which allowed it to operate a bar and restaurant for several years.
(b) The Respondent issued it an alcohol restaurant drink licence no. TG813J4V dated 13 July 2023 (the Liquor Licence) allowing it to carry out its bar business.
(c) It complied with the licence’s specific conditions and did not breach any county or national legislation.
(d) That it applied for renewal of their licence but were issued on 23 January 2026 with a letter from the Respondent “suspending” their Liquor Licence without prior notice or affording them an opportunity to be heard.
(e) It avers that the suspension was unilateral, arbitrary and devoid or any reason or basis of administrative action, directly affecting its operations.
(f) It claims the impugned action violated its right to equality and freedom from discrimination, specifically its rights under article 27(1) and 27(4) by not subject other administrators to similar administrative scrutiny and punitive action through selective enforcement.
(g) It was the Petitioner’s claim that its rights to fair administrative action under article 47, section 4(3) of the Fair Administrative Action Act 2015 (the FAAA), and section 26 of the Alcoholic Drinks Control Act, Chapter 121 of the Laws of Kenya (the ADCA) were violated. Specifically, it pleads compliance with specific licensing conditions, no notice, no hearing, no explanation and no reasons given for the suspension.
(h) The Petitioner also claimed violating of its rights to dignity (article 28), fair hearing (article 50) and Access to justice (article 48) on similar grounds as listed above.
7. The Respondent opposed the application through the replying affidavit of its Chief Officer for Public Service, Inspectorate and Social Services Mr. Wilson Tayiai. Its case is similarly summarized below:
(a) On or about 19 January 2025, residents of the Olkeri Ward held a meeting alongside county, local and community leaders and complained about bars operating without approval. The said residents later petitioned the Respondent for the closure of the unlicensed bars.
(b) The residents identified the Petitioner’s bar along with four others that operated without approval from the Kajiado Alcoholic Drinks Control Board (the Board).
(c) That the Board was required under section 12(1) of the ADCA not to grant Liquor Licences unless they were satisfied: (1) that doing so would be in the public interest; (2) the number of already licensed premises was insufficient for the requirements of the locality, given the population density and legal prescriptions as to the maximum number of such licensed premises; (3) the premises are not situated in any institution of basic education being a primary and secondary school; or in any residential area demarcated by law.
(d) That the Petitioner’s rights were not infringed as the Board had not approved it to operate the bar.
(e) That the Petitioner’s private rights were subservient to public interest, in particular, the rights of the general public to clean and healthy environment under article 42.
(f) In response to the residents’ petition, the Board held a meeting and resolved that the unapproved bars be closed. Pursuant to which the impugned letter dated 23 January 2025 was issued directing the closure of the Petitioner’s bar.
8. Having gone through the petition, the supporting affidavit, the replying affidavit, the respective annexture evidence and the Respondent’s Submissions, I frame the following issues for determination:
i. whether the Petitioner was licensed or otherwise approved to operate its bar during the year in question;
ii. whether the Petitioner’s rights were violated by the Respondent’s letter dated 23 January 2025 directing the closure of its bar; and
iii. costs
Issue 1- whether the Petitioner was licensed or otherwise approved to operate its bar during the year in question.
9. From the outset, the Petitioner has advanced its case as if it held a valid Liquor Licence in the year in question. I have carefully analyzed the evidence before this court, specifically annextures 1-3 of Mr. Gichuhi’s affidavit.
10. The first one is a unified business permit issued on 05 May 2024 and set to expire on 31 December 2024. The second is the Liquor Licence issued on 13 July 2023 and set to expire on 30 June 2024 and the third is a cash deposit receipt of a payment to the Board for the sum of Kenya Shillings twenty-three thousand (KES 23,000).
11. From this evidence, we see that the Respondent was not issued with a Liquor Licence to operate its bar from 01 July 2024 up to the date of the impugned letter dated 23 January 2025. The Respondent’s assertion’s that the Petitioner was “unapproved” or better put unlicenced to operate the bar are therefore true, at least in part.
12. We cannot however, ignore the cash deposit payment received by the Respondent through the Board. In not ignoring it though, I am cautious that the Petitioner did not advance a claim grounded in legitimate expectation, nor did they challenge the denial of the issuance of a permit after making the application. Its Petition was drafted and advanced as the unconstitutional suspension of its existing Liquor Licence.
13. This distinction is important on two broad points. Firstly, the Respondent answered the petition as drafted, pleaded and advanced. Secondly, it joined issue with this very ground, which this court must first determine.
14. For the Petitioner to succeed, they ought to have brought material that proved the existence of the licence as a matter of fact, or as by operation of law after they applied for renewal and paid for the licence. Both parties failed to provide this court with the mechanisms, procedures and steps of the application of the Liquor Licence, the Board’s deliberation, communication of the decision and appeal and review of the same.
15. I have reviewed the ADCA, the Alcoholic Drinks Control (Licensing) Regulations, Legal notice 206 of 2010 (the ADCA Regulations), and the Kajiado County Alcoholic Drinks Control Act, 2014 (the Kajiado ADCA). I could not find any automatic licensing regime in aforementioned national and county laws.
16. On renewals, sections 14 of ADCA and 15 of the Kajiado ADCA both stipulate that where an application has been made and the Board has not reached a decision by the date of expiration of the licence thereon, such licence shall continue in force until the decision is made. As already established above, the Petitioner’s Liquor Licence had already lapsed at the time that the payment for renewal was made. Other than the cash deposit receipt, which the Petitioner alleged to be for the renewal of the license, it did not provide the court with any other evidence to prove that it had made the renewal application at all. I however note that the Respondent did not deny receipt of the money or offer any explanation as to why the Board received it. I am sure the board has records of who made payments and for what purpose, if the payment was say, in relation to a fine hypothetically, nothing would have been easier than for the Respondent to produce evidence saying so. They did not try at all to deal with this evidence, I am therefore inclined to make an adverse inference against them, that indeed the receipt was payment for renewal of the Licence, and that therefore that indeed a Renewal application was made.
17. As stated above, however, the Petitioner’s case was one not challenging the lack of a decision to renew the licence. In any case, both laws have statutory appellate and review mechanisms that were available to the Petitioner. I am therefore satisfied that this was not an error of drafting that mischaracterized the Petition. The Petitioner did not have a licence as they allege, the law did not provide them with an automatic renewal of their existing licence and neither did the Board issue them with any valid licence during the year in question.
Issue 2- whether the Petitioner’s rights were violated by the Respondent’s letter dated 23 January 2025 directing the closure of its bar.
18. Having determined the first issue against the Petitioner, the rest of the petition therefore falls away, they did not have any right to operate the bar and therefore none of their rights were violated with the Respondent enforcing the law.
19. I further find no merit to the claim that the Respondent in enforcing the law violated the Petitioner’s right to equality and freedom from discrimination. Firstly, not all forms of different treatment rise to the level of discrimination see FEDERATION OF WOMEN LAWYERS KENYA (FIDA-K) & 5 others v ATTORNEY GENERAL & another [2011] KEHC 2099 (KLR). It must be shown that the differentiation was arbitrary or unreasonable, none of which was proved here. More importantly however, the Petitioner did not make a case as to whether the differentiation amounted to direct or indirect discrimination and one, which led to it or its employer facing a disadvantage based on any ground or protected characteristics.
Issue 3- who should bear the cost of this petition.
20. On the question of costs, the general rule is that costs follow the event. The Respondent shall have the cost of this suit.
Disposition
21. The Petition is accordingly dismissed with costs to the Respondent.
It is so ordered.
1. It is, to put it mildly, quite unfortunate that the petitioner, being the driver of its own case, has failed to file its submissions notwithstanding the express directions of this Court of 24 July 2025, and 13 November 2025. The default is not a mere procedural mishap. It is a dereliction of the most basic obligation imposed upon a litigant, in our system of law. What makes the default all the more egregious is that the Respondent, for its part, complied with the Court's directions and duly filed its submissions. The Petitioner’s conduct could not be countenanced, much less rewarded with indulgence, without doing violence to the orderly administration of justice.
2. This Court was not oblivious to the prejudice occasioned to the Respondent by the Petitioner’s failure to discharge its obligations, which distorted the very process through which the Court directed that this dispute is to be determined. Litigation is not a one-sided enterprise. The burdens of the adversarial process are reciprocal. Each party is required to pull weight.
3. In cases such as this, it requires great skill for a respondent to understand the petitioner’s case, their arguments of the facts in dispute, and their application of the law, and rebut the same without advancing the Petitioner’s case.
4. When the matter came up for mention to confirm the filling of submissions, on the 18th of February 2026, the court noting the above granted the Respondent’s prayer for a judgement date. Not doing so would have continued to prejudice the Respondent. It now appears the Petitioner never had the intention of prosecuting their case at all. I say so, because they have yet to file their submissions up to date. It therefore is not unreasonable to infer that it employed a deliberate Litigation strategy to unreasonably delay the determination of this matter. I will say no more about such (apparent) tactics employed by parties in the conduct of litigation, save to observe that the Court's process is not a playground for procedural gamesmanship.
Background
5. The Petitioner operating in Kajiado County moved this court, via a constitution petition dated 31 January 2025, challenging the Respondent’s actions to suspend its alcoholic drinks licence in a manner it termed as sudden and arbitrary causing it operational disruption, seeking the following orders and reliefs:
(a) A declaration that the act of the respondent in suspending the Petitioner’s Alcoholic Drinks Licence [violated the Petitioner’s] and its owners’ rights under Article 27(1) (2) and (3), 28, 47, and 50 of the Constitution;
(b) A declaration that the said suspension is in breach of the Petitioner’s constitutional rights as enshrined in Articles 27(1) (2), 28, 47(1) and 50 of the Constitution;
(c) A declaration that the Respondent’s actions are discriminatory and amount to selective enforcement of the law;
(d) An order of mandamus directing the respondent to reinstate the Petitioner’s Alcohol Drinks Licence in Kajiado County;
(e) An order of judicial review do issue in nature of certiorari to bring into this court the letter by the Respondent dated 23 January 2025 suspending the Petitioner’s Alcohol Drinks Licence and quashing the same; and
(f) Costs of this Petition to be borne by the Respondent.
6. The petition was supported by the supporting affidavit of James Gichuhi, the Petitioner’s director. The Petitioner’s case can be summarized as follows:
(a) The Petitioner operated under a unified business permit issued by the respondent, which allowed it to operate a bar and restaurant for several years.
(b) The Respondent issued it an alcohol restaurant drink licence no. TG813J4V dated 13 July 2023 (the Liquor Licence) allowing it to carry out its bar business.
(c) It complied with the licence’s specific conditions and did not breach any county or national legislation.
(d) That it applied for renewal of their licence but were issued on 23 January 2026 with a letter from the Respondent “suspending” their Liquor Licence without prior notice or affording them an opportunity to be heard.
(e) It avers that the suspension was unilateral, arbitrary and devoid or any reason or basis of administrative action, directly affecting its operations.
(f) It claims the impugned action violated its right to equality and freedom from discrimination, specifically its rights under article 27(1) and 27(4) by not subject other administrators to similar administrative scrutiny and punitive action through selective enforcement.
(g) It was the Petitioner’s claim that its rights to fair administrative action under article 47, section 4(3) of the Fair Administrative Action Act 2015 (the FAAA), and section 26 of the Alcoholic Drinks Control Act, Chapter 121 of the Laws of Kenya (the ADCA) were violated. Specifically, it pleads compliance with specific licensing conditions, no notice, no hearing, no explanation and no reasons given for the suspension.
(h) The Petitioner also claimed violating of its rights to dignity (article 28), fair hearing (article 50) and Access to justice (article 48) on similar grounds as listed above.
7. The Respondent opposed the application through the replying affidavit of its Chief Officer for Public Service, Inspectorate and Social Services Mr. Wilson Tayiai. Its case is similarly summarized below:
(a) On or about 19 January 2025, residents of the Olkeri Ward held a meeting alongside county, local and community leaders and complained about bars operating without approval. The said residents later petitioned the Respondent for the closure of the unlicensed bars.
(b) The residents identified the Petitioner’s bar along with four others that operated without approval from the Kajiado Alcoholic Drinks Control Board (the Board).
(c) That the Board was required under section 12(1) of the ADCA not to grant Liquor Licences unless they were satisfied: (1) that doing so would be in the public interest; (2) the number of already licensed premises was insufficient for the requirements of the locality, given the population density and legal prescriptions as to the maximum number of such licensed premises; (3) the premises are not situated in any institution of basic education being a primary and secondary school; or in any residential area demarcated by law.
(d) That the Petitioner’s rights were not infringed as the Board had not approved it to operate the bar.
(e) That the Petitioner’s private rights were subservient to public interest, in particular, the rights of the general public to clean and healthy environment under article 42.
(f) In response to the residents’ petition, the Board held a meeting and resolved that the unapproved bars be closed. Pursuant to which the impugned letter dated 23 January 2025 was issued directing the closure of the Petitioner’s bar.
8. Having gone through the petition, the supporting affidavit, the replying affidavit, the respective annexture evidence and the Respondent’s Submissions, I frame the following issues for determination:
i. whether the Petitioner was licensed or otherwise approved to operate its bar during the year in question;
ii. whether the Petitioner’s rights were violated by the Respondent’s letter dated 23 January 2025 directing the closure of its bar; and
iii. costs
Issue 1- whether the Petitioner was licensed or otherwise approved to operate its bar during the year in question.
9. From the outset, the Petitioner has advanced its case as if it held a valid Liquor Licence in the year in question. I have carefully analyzed the evidence before this court, specifically annextures 1-3 of Mr. Gichuhi’s affidavit.
10. The first one is a unified business permit issued on 05 May 2024 and set to expire on 31 December 2024. The second is the Liquor Licence issued on 13 July 2023 and set to expire on 30 June 2024 and the third is a cash deposit receipt of a payment to the Board for the sum of Kenya Shillings twenty-three thousand (KES 23,000).
11. From this evidence, we see that the Respondent was not issued with a Liquor Licence to operate its bar from 01 July 2024 up to the date of the impugned letter dated 23 January 2025. The Respondent’s assertion’s that the Petitioner was “unapproved” or better put unlicenced to operate the bar are therefore true, at least in part.
12. We cannot however, ignore the cash deposit payment received by the Respondent through the Board. In not ignoring it though, I am cautious that the Petitioner did not advance a claim grounded in legitimate expectation, nor did they challenge the denial of the issuance of a permit after making the application. Its Petition was drafted and advanced as the unconstitutional suspension of its existing Liquor Licence.
13. This distinction is important on two broad points. Firstly, the Respondent answered the petition as drafted, pleaded and advanced. Secondly, it joined issue with this very ground, which this court must first determine.
14. For the Petitioner to succeed, they ought to have brought material that proved the existence of the licence as a matter of fact, or as by operation of law after they applied for renewal and paid for the licence. Both parties failed to provide this court with the mechanisms, procedures and steps of the application of the Liquor Licence, the Board’s deliberation, communication of the decision and appeal and review of the same.
15. I have reviewed the ADCA, the Alcoholic Drinks Control (Licensing) Regulations, Legal notice 206 of 2010 (the ADCA Regulations), and the Kajiado County Alcoholic Drinks Control Act, 2014 (the Kajiado ADCA). I could not find any automatic licensing regime in aforementioned national and county laws.
16. On renewals, sections 14 of ADCA and 15 of the Kajiado ADCA both stipulate that where an application has been made and the Board has not reached a decision by the date of expiration of the licence thereon, such licence shall continue in force until the decision is made. As already established above, the Petitioner’s Liquor Licence had already lapsed at the time that the payment for renewal was made. Other than the cash deposit receipt, which the Petitioner alleged to be for the renewal of the license, it did not provide the court with any other evidence to prove that it had made the renewal application at all. I however note that the Respondent did not deny receipt of the money or offer any explanation as to why the Board received it. I am sure the board has records of who made payments and for what purpose, if the payment was say, in relation to a fine hypothetically, nothing would have been easier than for the Respondent to produce evidence saying so. They did not try at all to deal with this evidence, I am therefore inclined to make an adverse inference against them, that indeed the receipt was payment for renewal of the Licence, and that therefore that indeed a Renewal application was made.
17. As stated above, however, the Petitioner’s case was one not challenging the lack of a decision to renew the licence. In any case, both laws have statutory appellate and review mechanisms that were available to the Petitioner. I am therefore satisfied that this was not an error of drafting that mischaracterized the Petition. The Petitioner did not have a licence as they allege, the law did not provide them with an automatic renewal of their existing licence and neither did the Board issue them with any valid licence during the year in question.
Issue 2- whether the Petitioner’s rights were violated by the Respondent’s letter dated 23 January 2025 directing the closure of its bar.
18. Having determined the first issue against the Petitioner, the rest of the petition therefore falls away, they did not have any right to operate the bar and therefore none of their rights were violated with the Respondent enforcing the law.
19. I further find no merit to the claim that the Respondent in enforcing the law violated the Petitioner’s right to equality and freedom from discrimination. Firstly, not all forms of different treatment rise to the level of discrimination see FEDERATION OF WOMEN LAWYERS KENYA (FIDA-K) & 5 others v ATTORNEY GENERAL & another [2011] KEHC 2099 (KLR). It must be shown that the differentiation was arbitrary or unreasonable, none of which was proved here. More importantly however, the Petitioner did not make a case as to whether the differentiation amounted to direct or indirect discrimination and one, which led to it or its employer facing a disadvantage based on any ground or protected characteristics.
Issue 3- who should bear the cost of this petition.
20. On the question of costs, the general rule is that costs follow the event. The Respondent shall have the cost of this suit.
Disposition
21. The Petition is accordingly dismissed with costs to the Respondent.
It is so ordered.