REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
JUDICIAL REVIEW NO. E002 2026
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF THE DECISION OF THE TIATY WEST SUB-COUNTY ALCOHOLIC DRINKS CONTROL BOARD
AND
IN THE MATTER OF ARTICLES 10, 27, 40, 47, 50 AND 232 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
BETWEEN
REGINAH MUMBI NJOKI…………………………………………..APPLICANT
-VERSUS -
COUNTY GOVERNMENT OF BARINGO…………………1 ST RESPONDENT
CHAIRPERSON, TIATY WEST SUB-COUNTY ALCOHOLIC DRINKS CONTROL BOARD…………………………………………2 ND RESPONDENT
RULING
1. The Applicant has moved this court vide a Notice of Motion Application dated 23 rd March,2026 seeking Judicial Review Orders. The Applicant is seeking:-
i. AN ORDER OF CERTIORARI do issue to remove into this Honourable Court and quash the decision of the 2 nd Respondent made against the Applicant regarding refusal to renew the Applicant's Liquor license Without giving reasons.
ii. AN ORDER OF PROHIBITION do issue prohibiting the Respondents from implementing, enforcing or acting upon the said decision.
iii. AN ORDER OF MANDAMUS do issue compelling the Respondents to issue and/or renew the Applicant's Business Liquor License.
iv. THAT this Honourable court be pleased to grant Interim orders to allow the Applicant to reopen and resume operations of her bar club business, pending the hearing and determination of the Substantive Judicial Review Application.
v. The costs of this application be provided for.
2. The application is based on the grounds in the statement filed in court on 11 th Day of March 2026 and the Verifying Affidavit of Regina Mumbi Njoki.
3. The applicant depones that she applied for a license/ renewal from the Respondents to operate her club/business and complied with all legal requirements.
4. That the Respondents made a decision not to issue and/ or renew her business license which decision was made without giving her a fair hearing, written or verbal reasons and in violation of the rules of natural justice and violates Article 47 of the constitution and fair Administrative Action Act hence the decision is unlawful, unreasonable, irrational and procedurally unfair. and unreasonable and in violation of her fundamental rights.
5. That this application for leave and stay and the substantive motion for judicial review will be rendered nugatory unless she is heard and the orders sought herein issued.
6. The application is opposed vide a replying affidavit sworn by Moses Akeno, the Sub County Administrator for Tiaty West Sub County and the Chairperson of the Tiaty West Sub-County Alcoholic Drinks Control committee sued as the 1 st Respondent herein. His duties include liquor licensing as duly provided under the Baringo County Alcoholic Drinks Control Act, 2014.
7. The Respondent avers that the Applicant applied for renewal of a liquor licence for her business known as Cool Baze Bar situated at Chemolingot within Tiaty Sub County and upon receipt of the said application, the same was registered and subjected to the statutory licensing process. which includes inspection, verification, and consideration by the Board.
8. That upon inspection of the applicant's premise there were irregularities including operating before the stipulated hours.
9. That, they notified the applicant's attendant who was present at the premise that to operate within the allowed business hours from 5:00 p.m. for retail bar owners, but did not issue a closure notice.
10. That the licensing process is currently ongoing and inspections and verification of compliance are still being conducted by the 1 st Respondent within the Sub-County. That the 1 st Respondent held a meeting on 4 th February 2026, for approval of licence for 2026 by the applicant and other bar owners, and a report made.
11. That a subsequent board meeting was held on 16 th April, 2026 in absence of the applicant who had already served a Court Order on April 2026.
12. That no final decision has been made in respect of the Applicant's application for renewal of a liquor licence for 2026.
13. The deponent avers that the Applicant has therefore misapprehended the position and prematurely moved this Honourable Court on the basis of an alleged decision that does not exist.
14. That the Respondents have at all times acted within their statutory mandate under the Baringo County Alcoholic Drinks Act, 2014 and in accordance with due process and with no malice against the applicant.
15. The 1 st Respondent avers that the Application herein is premature, misconceived, and an abuse of the court process as it seeks judicial review orders in the absence of any administrative action against the applicant. That the orders of certiorari. prohibition, and mandamus sought herein are not available in law in the absence of a final administrative decision.
16. That upon finalization of the ongoing process the Board will formally write to the unsuccessful applicants detailing reasons for non- renewal of licence this Honourable Court dismisses the Application with costs.
17. The application was canvassed by way of written submissions. The Applicant submits that the following issues arise for determination:
a. Whether the Respondents violated the Applicant's constitutional right to fair administrative action under Article 47 of the Constitution.
b. Whether the Respondents violated the principles of natural justice by condemning the Applicant unheard.
c. Whether the Respondents acted illegally, irrationally and unreasonably in refusing and/or failing to renew the Applicant's liquor licence.
d. Whether the Applicant has satisfied the threshold for grant of Judicial Review Orders of Certiorari, Prohibition and Mandamus.
e. Whether the Applicant is entitled to the reliefs sought.
18. They submit that Judicial Review is concerned with the legality of the decision-making process and not the merits of the decision itself. That the scope of Judicial Review was succinctly set out in Republic v Kenya Revenue Authority Ex Parte Maya Towers Limited [2008] eKLR where the Court held that Judicial Review is concerned with the decision-making process and whether the decision-maker acted lawfully, fairly and within jurisdiction.
19. They submit that similarly, in: Municipal Council of Mombasa v Republic Umoja Consultants Ltd [2002]eKLR , the Court of Appeal held that Judicial Review is concerned with the decision-making process and not the merits of the decision.
20. That further, the grounds for Judicial Review were elaborated in Council of Civil service Unions v Minister for the Civil Service [1985] AC 374 where Lord Diplock identified the grounds of Judicial Review as:
a. Illegality;
b. Irrationality;
c. Procedural Impropriety.
21. The Applicant submits that the Respondents' conduct falls squarely within all the above grounds.
22. On whether the respondents violated article 47 of the Constitution, they submit that the Fair Administrative Action Act, 2015 was enacted to give effect to Article 47, Section 4(3) of the Fair Administrative Action Act requires that where an administrative action is likely to adversely affect a person, the administrator shall give the affected person:
a) Prior and adequate notice;
b) An opportunity to be heard;
c) Reasons for the decision;
d) Notice of right to review or appeal.
23. That in the present matter, the Applicant demonstrated through the supporting Affidavit that, she lawfully operated her business; She applied for renewal of the liquor licence; She complied with all legal requirements; the Respondents refused and/or failed to renew the licence; no hearing was accorded to the Applicant and no written reasons were provided.
24. They submit that the Respondents therefore acted in total violation of Article 47 of the Constitution. That in Dry Associates Limited v Capital Markets Authority Another [2012] eKLR the Court held that Article 47 elevates the right to fair administrative action into a constitutional right and administrative bodies must act fairly and lawfully.
25. They further place reliance on Buchan Investment Limited v Ministry of National Heritage & Culture Others [2016]eKLR where the Court of Appeal emphasized that every administrative action must meet the constitutional threshold of legality, reasonableness and procedural fairness.
26. It is the applicant’s position that the impugned decision is unconstitutional and ought to be quashed.
27. They argue that it is now settled law that no person should be condemned unheard. That the Applicant was never summoned, notified, heard or informed of any complaint or reason for refusal of renewal of her licence. That the Respondents therefore condemned the Applicant unheard..
28. They place reliance on Onyango Oloo v Attorney General [1986-1989] EA 456 where the Court held that: "A decision in breach of the rules of natural justice is not cured by the fact that the same decision would otherwise have been right."
29. That similarly, in: Ridge v Baldwin [1964] AC 40 the Court held that failure to accord a party a hearing renders the decision null and void.
30. The Applicant submits that the Respondents' actions were procedurally unfair, arbitrary and unlawful.
31. On whether the respondents acted illegally, irrationally and unreasonably, the Applicant submits that the Respondents acted outside the confines of the law and exercised their powers arbitrarily, Public bodies are bound by the Constitution and cannot exercise power whimsically.
32. That Article 10 of the Constitution binds all public bodies to the national values and principles of governance which the Respondents violated.
33. That further, Article 232 of the Constitution requires public officers to uphold:
i. Responsiveness;
ii. Accountability;
iii. Transparency;
iv. Fair competition and merit.
34. They submit that the Respondents failed completely to meet these constitutional standards.
35. They place reliance on Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300 the court held that illegality, irrationality and procedural impropriety are proper grounds for Judicial Review. The Applicant submits that the impugned decision falls within all the above categories.
36. On whether the applicant is entitled to the order of Certiorari, they argue that the purpose of Certiorari is to quash an unlawful decision. They rely on Kenya National Examinations Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others [1997]eKLR the Court of Appeal held that an order of certiorari issues to quash a decision already made where the decision was made without or in excess of jurisdiction or where rules of natural justice were not complied with.
37. The Applicant maintains that the Application satisfies the threshold for grant of Certiorari.
38. On whether the Applicant is entitled to the order of Prohibition, they submit that the order of prohibition prevents a public body from continuing unlawful conduct. They rely on Kenya National Examinations Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR where the Court held that Prohibition looks to the future and prevents unlawful continuation of proceedings or implementation of illegal decisions.
39. The Applicant submits that unless restrained, the Respondents will continue implementing their unlawful decision to the detriment of the Applicant.
40. That this Honourable Court should therefore issue an order prohibiting the Respondents from enforcing the impugned decision.
41. On whether the applicant is entitled to the order of Mandamus, they submit that Mandamus compels the performance of a statutory duty. That in Republic v Kenya National Examinations Council Ex Parte Gathenji & Others I1997] eKLR the Court held that Mandamus issues to compel performance of a public duty imposed by statute.
42. They submit that the Respondents have a statutory and constitutional duty to consider applications lawfully, fairly and procedurally.
43. They submit that the Applicant complied with all legal requirements for renewal of the licence and the refusal and/ or failure to process the Applicant's licence lawfully amounts to dereliction of statutory duty. That this Honourable Court ought therefore to compel the Respondents to issue and/or renew the Applicant's liquor licence.
44. On whether the applicant has suffered prejudice, they submit that the Applicant has demonstrated that the unlawful actions of the Respondents have caused immense prejudice including:
v. Closure of business operations;
vi. Loss of livelihood;
vii. Financial loss;
viii. Economic hardship; and
ix. Reputational damage.
45. It is argued that the Applicant has invested heavily in the business and has annexed evidence of renovations, permits and previous licences. That the continued closure of the business without lawful justification is oppressive, unconstitutional and economically devastating.
46. It is submitted that Article 40 of the Constitution protects the right to property while Article 27 guarantees equal protection of the law. The Applicant submits that the Respondents' conduct violates these constitutional protections.
47. That public bodies are creatures of statute and cannot exercise powers outside the law, they rely on Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Pelt Security Services Limited [2018] eKLR where the Court held that public bodies must exercise power strictly within constitutional and statutory limits. That in Speaker of the National Assembly v Karume [1992] KLR 21 the Court emphasized adherence to legal procedures.
48. The Applicant submits that the Respondents abused their statutory mandate and acted ultra vires and such unlawful conduct should not be permitted by this Honourable Court.
49. That the Applicant has therefore established a meritorious case deserving the intervention of this Honourable Court.
50. The court is urged to allow the Notice of Motion in its entirety, issue an Order of Certiorari quashing the Respondents' decision refusing and/or failing to renew the Applicant's liquor licence; issue an Order of Prohibition restraining the Respondents from enforcing or implementing the impugned decision; Issue an Order of Mandamus compelling the Respondents to issue and/or renew the Applicant's liquor licence; grant interim reliefs allowing the Applicant to reopen and continue operating her business pending determination and award costs of the Application to the Applicant.
51. According to the Respondents, the issues for the court's determination are:
a. Whether the 1 st Respondent has violated the applicant's rights.
b. Whether the applicant has contravened the by-laws of and any other laws governing of liquor licensing.
c. Whether there have been ongoing meeting by the Respondents to vet liquor licensing applications and whether a final decision has been made.
d. Whether the Applicant has proved her case is entitled to the orders sought.
52. On whether the 1 st Respondent has violated the Applicant's rights, they submit that the 1 st Respondent in their replying affidavit confirmed that the Applicant applied for a liquor licence and the said application was registered and kept in abeyance pending licensing process such as inspection, verification and consideration by the board just like other applicants hence the Applicant's claim that she has been denied new license is a tactic employed to defeat the board's due process.
53. That the board was still deliberating on the Applicant's application to renew her license just like any other applicants, and had not in any way violated the applicant's rights and ought to be given time to conclude the process.
54. On whether the applicant contravened the bylaws of the Respondents and any other laws governing the sale of liquor, they submit that the 1 st Respondent through a replying affidavit at paragraph 6 said that during the inspection of the Applicant's business premises, it was discovered that there were irregularities including operating before the stipulated hours.
55. That the Baringo County Alcoholic Drinks Control Act, 2014 provides that the right time to sale liquor by bars, nightclubs on weekdays is 5 p.m. – 11 p.m. while on weekend is from 2 p.m. – 11p.m and therefore, the Applicant was operating illegally and was notified and given time to correct pending approval of license for 2026.
56. It is submitted that it is undisputed that the Respondents on several dates as indicated in their replying affidavit at paragraphs 9, 10 and 11 has had meetings to deliberate on the issue of the Applicant among other applicants and there is no final outcome yet. That the High Court of Kenya at Eldoret High in Judicial Review No. E010 of 2024 (Lydia Chelimo t/a Carwash Bar v. Uasin Gishu Alcoholic Drinks Control Board & Another) enunciated the rules and procedures on Judicial Review applications which ought to be adopted in this case, the findings of the court that
‘...lt is therefore clear that in judicial review proceedings. when asking the Court to quash a decision, demonstration of the existence of such impugned decision is paramount. Where the alleged decision has not been exhibited, reasons for not exhibiting it must he disclosed. It therefore follows that in the absence of proof of existence of the alleged decision, this Court cannot entertain the Application'.
57. On whether the Applicant proved her case and whether she is entitled to the orders sought, it is submitted that the Respondents tendered in evidence the photographs of the Applicant's premise showing she was operating at the wrong time which is illegal. That the Applicant chose to contravene the rules.
58. It is their submission that the Applicant has not demonstrated any decision of the Respondents denying her license for 2026. That the upshot is that the Applicant's case has no merit and should be dismissed as prayed with costs which naturally follow the event.
Analysis and determination
59. I have considered the application, the responses and the submissions by the parties. The issues for determination are as follows:-
a. Whether, in the circumstances, the applicant is entitled to the reliefs sought; and
b. What orders ought to issue on costs.
60. The applicant seeks judicial review orders of Prohibition, mandamus and Certiorari.
61. Ordinarily, judicial review is concerned with the decision-making process as opposed to the merits of the decision itself. Accordingly, in Republic v Attorney General & others, Ex Parte Diamond Hasham Lalji & another [2014] KEHC 3713 (KLR) it was held:
91. Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.
62. In Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR , the Court of Appeal held:
“…These remedies are only available against public bodies such as the Council in this case. What does an ORDER OF PROHIBITION do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY’S LAW OF ENGLAND, 4th Edition, Vol.1 at pg.37 paragraph 128. When those principles are applied to the present case, the Council obviously has the power or jurisdiction to cancel the results of an examination. The question is how, not whether, that power is to be exercised. If the Council of prohibition would be ineffectual against the conviction because such an order would not quash the conviction. The conviction could be quashed either on an appeal or by an order of certiorari. The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.”
63. As for Certiorari, the Court of Appeal added:
“…Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons…”
64. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.
65. The Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 Others the Supreme Court cautioned that:
“76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialized institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Action Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.
66. It is now trite therefore that some measure of merit review is acceptable to enable the Court properly adjudicate a judicial review matter. The Supreme Court acknowledged as much in the Saisi thus:
“For the court to get through an extensive examination of section 7 of the FAAA, there had to be some measure of merit analysis. That was not to say that the court had to embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly in the circumstances of the case without examining those circumstances and measuring them against what was reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. It was to be limited to the examination of uncontroverted evidence. The controverted evidence was best addressed by the person, body or authority in charge. There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination of the process only led to intolerable superficiality. That would be against article 259 of the Constitution which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the development of the law and contributes to good governance.”
67. Since the applicants approached the Court under various provisions of the Constitution, including Article 47 as well as Section 4 of the Fair Administrative Action Act, a merit analysis based on uncontested facts is permissible. The Applicant alleges that she applied for a license/ renewal from the Respondents to operate her club/business and complied with all legal requirements.
68. The Respondents on their part argues that the application by the Applicant is premature considering that a final decision has not been made. That the process is still under review hence the applicant is not entitled to the orders sought.
69. I have perused the documents presented by the Applicant. The record show that objections were raised on operation of business by the applicant which include from her landlord. Having considered arguments by all the parties herein and the provisions of law cited, there is no doubt that public interest should prevail over any private interests of the Applicants as was held in Republic -vs-National commission on Human rights Ex-parte Uhuru Muigai Kenyatta Misc. Civil appeal no 86 of 2009, [2010] eKLR .
70. I have carefully considered the application, the affidavit, the submissions on record. I have also considered the authorities cited – and the applicable law and principles on Judicial Review. It is about a decision, and how the decision was made. Was there a decision made in this case?
71. The applicant has an outfit by the name Cool Baze Bar. In 2025 she was licenced by Baringo County Government to run a small bar. On 18 th March,2025 she was issued with a single business permit. She paid Ksh. 4,000/=, on 28 th March,2025. The County Government received Ksh. 1,5000/= from her to run a Liquor Licence Retail Business under the Alcoholic Drinks Licence. Without any reasons/giving her a hearing the respondent declined to issue her with a licence for 2026.
72. The respondent through the 1 st Respondent concedes that they received the applicant’s application for renewal of licence. That as at 4 th May,2026, the respondent had not made a final decision with respect to the applicant’s application.
73. That as at 4 th May,2026, the respondent had held 2 meetings on the issue of licences for 2026 – on 4 th February,2026, and on 16 th April,2026. The minutes of 4 th February,2026 allege that the applicant’s bar was found operating illegally at noon and she was to appear at a given time to explain that issue meaning she was to appear before the board at a given time – The minutes shows that on 4 th February,2026 the Board did not approve the renewal of her licence. The reason was that the approval was….. “Pending awaiting board inspection and summon.”
74. A meeting held on 16 th April,2026 the board decided not to discuss her case because according to them, she had sued them – and determined to await the verdict of the court. The record shows that a notice for the meeting of 16 th April,2026 was issued by the sub county administrator – but there is no evidence that any time between 4 th February,2026, and 13 th April,2026 a summons was issued to the applicant to appear before the board to explain herself .
75. In addition, there was no evidence of the alleged violation of the rules (Operating outside hours).
76. The impugned decision was made on 4 th February,2026. By the time this application was made on 23 rd March,2026, there was no summons to the applicant to appear before the board, yet the decision not to issue her with a renewal clearly remained in force . I noted that the 1 st respondent deponed that they had not made any decision to close down the applicant’s business. For the 1 st respondent to depone that they had not closed her bar was dishonest as evidently the board arrived at a decision not to issue her with renewal – on the ground that they needed to inspect her premises and summon her to go and appear before the board. Clearly until that had been done, what did they expect the applicant to do?
77. A reading of minutes 7 th April,2026 of the board shows that no date is indicated as to when the applicant’s bar is said to have operated illegally, yet for the other culprit named as Santiago Bar it was clearly indicated that it was on the eve of 1 st January,2026 if indeed the offences were committed on 1 st January,2026 – Then the applicant ought to have been summoned to be heard before they denied her renewal of her licence because it was already a new year, and the board was meeting to approve licences for the year 2026.
78. To have the applicant wait for the length of time without any idea as to when she would appear, and to be put in a position where she could be accused of operating without a licence/illegally – an offence by its right – was unfair, and violated her right to fair administrative action.
79. In any event this is an issue that would have been dealt with before the applicant came to Court
[...truncated]
IN THE HIGH COURT OF KENYA AT KABARNET
JUDICIAL REVIEW NO. E002 2026
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF THE DECISION OF THE TIATY WEST SUB-COUNTY ALCOHOLIC DRINKS CONTROL BOARD
AND
IN THE MATTER OF ARTICLES 10, 27, 40, 47, 50 AND 232 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
BETWEEN
REGINAH MUMBI NJOKI…………………………………………..APPLICANT
-VERSUS -
COUNTY GOVERNMENT OF BARINGO…………………1 ST RESPONDENT
CHAIRPERSON, TIATY WEST SUB-COUNTY ALCOHOLIC DRINKS CONTROL BOARD…………………………………………2 ND RESPONDENT
RULING
1. The Applicant has moved this court vide a Notice of Motion Application dated 23 rd March,2026 seeking Judicial Review Orders. The Applicant is seeking:-
i. AN ORDER OF CERTIORARI do issue to remove into this Honourable Court and quash the decision of the 2 nd Respondent made against the Applicant regarding refusal to renew the Applicant's Liquor license Without giving reasons.
ii. AN ORDER OF PROHIBITION do issue prohibiting the Respondents from implementing, enforcing or acting upon the said decision.
iii. AN ORDER OF MANDAMUS do issue compelling the Respondents to issue and/or renew the Applicant's Business Liquor License.
iv. THAT this Honourable court be pleased to grant Interim orders to allow the Applicant to reopen and resume operations of her bar club business, pending the hearing and determination of the Substantive Judicial Review Application.
v. The costs of this application be provided for.
2. The application is based on the grounds in the statement filed in court on 11 th Day of March 2026 and the Verifying Affidavit of Regina Mumbi Njoki.
3. The applicant depones that she applied for a license/ renewal from the Respondents to operate her club/business and complied with all legal requirements.
4. That the Respondents made a decision not to issue and/ or renew her business license which decision was made without giving her a fair hearing, written or verbal reasons and in violation of the rules of natural justice and violates Article 47 of the constitution and fair Administrative Action Act hence the decision is unlawful, unreasonable, irrational and procedurally unfair. and unreasonable and in violation of her fundamental rights.
5. That this application for leave and stay and the substantive motion for judicial review will be rendered nugatory unless she is heard and the orders sought herein issued.
6. The application is opposed vide a replying affidavit sworn by Moses Akeno, the Sub County Administrator for Tiaty West Sub County and the Chairperson of the Tiaty West Sub-County Alcoholic Drinks Control committee sued as the 1 st Respondent herein. His duties include liquor licensing as duly provided under the Baringo County Alcoholic Drinks Control Act, 2014.
7. The Respondent avers that the Applicant applied for renewal of a liquor licence for her business known as Cool Baze Bar situated at Chemolingot within Tiaty Sub County and upon receipt of the said application, the same was registered and subjected to the statutory licensing process. which includes inspection, verification, and consideration by the Board.
8. That upon inspection of the applicant's premise there were irregularities including operating before the stipulated hours.
9. That, they notified the applicant's attendant who was present at the premise that to operate within the allowed business hours from 5:00 p.m. for retail bar owners, but did not issue a closure notice.
10. That the licensing process is currently ongoing and inspections and verification of compliance are still being conducted by the 1 st Respondent within the Sub-County. That the 1 st Respondent held a meeting on 4 th February 2026, for approval of licence for 2026 by the applicant and other bar owners, and a report made.
11. That a subsequent board meeting was held on 16 th April, 2026 in absence of the applicant who had already served a Court Order on April 2026.
12. That no final decision has been made in respect of the Applicant's application for renewal of a liquor licence for 2026.
13. The deponent avers that the Applicant has therefore misapprehended the position and prematurely moved this Honourable Court on the basis of an alleged decision that does not exist.
14. That the Respondents have at all times acted within their statutory mandate under the Baringo County Alcoholic Drinks Act, 2014 and in accordance with due process and with no malice against the applicant.
15. The 1 st Respondent avers that the Application herein is premature, misconceived, and an abuse of the court process as it seeks judicial review orders in the absence of any administrative action against the applicant. That the orders of certiorari. prohibition, and mandamus sought herein are not available in law in the absence of a final administrative decision.
16. That upon finalization of the ongoing process the Board will formally write to the unsuccessful applicants detailing reasons for non- renewal of licence this Honourable Court dismisses the Application with costs.
17. The application was canvassed by way of written submissions. The Applicant submits that the following issues arise for determination:
a. Whether the Respondents violated the Applicant's constitutional right to fair administrative action under Article 47 of the Constitution.
b. Whether the Respondents violated the principles of natural justice by condemning the Applicant unheard.
c. Whether the Respondents acted illegally, irrationally and unreasonably in refusing and/or failing to renew the Applicant's liquor licence.
d. Whether the Applicant has satisfied the threshold for grant of Judicial Review Orders of Certiorari, Prohibition and Mandamus.
e. Whether the Applicant is entitled to the reliefs sought.
18. They submit that Judicial Review is concerned with the legality of the decision-making process and not the merits of the decision itself. That the scope of Judicial Review was succinctly set out in Republic v Kenya Revenue Authority Ex Parte Maya Towers Limited [2008] eKLR where the Court held that Judicial Review is concerned with the decision-making process and whether the decision-maker acted lawfully, fairly and within jurisdiction.
19. They submit that similarly, in: Municipal Council of Mombasa v Republic Umoja Consultants Ltd [2002]eKLR , the Court of Appeal held that Judicial Review is concerned with the decision-making process and not the merits of the decision.
20. That further, the grounds for Judicial Review were elaborated in Council of Civil service Unions v Minister for the Civil Service [1985] AC 374 where Lord Diplock identified the grounds of Judicial Review as:
a. Illegality;
b. Irrationality;
c. Procedural Impropriety.
21. The Applicant submits that the Respondents' conduct falls squarely within all the above grounds.
22. On whether the respondents violated article 47 of the Constitution, they submit that the Fair Administrative Action Act, 2015 was enacted to give effect to Article 47, Section 4(3) of the Fair Administrative Action Act requires that where an administrative action is likely to adversely affect a person, the administrator shall give the affected person:
a) Prior and adequate notice;
b) An opportunity to be heard;
c) Reasons for the decision;
d) Notice of right to review or appeal.
23. That in the present matter, the Applicant demonstrated through the supporting Affidavit that, she lawfully operated her business; She applied for renewal of the liquor licence; She complied with all legal requirements; the Respondents refused and/or failed to renew the licence; no hearing was accorded to the Applicant and no written reasons were provided.
24. They submit that the Respondents therefore acted in total violation of Article 47 of the Constitution. That in Dry Associates Limited v Capital Markets Authority Another [2012] eKLR the Court held that Article 47 elevates the right to fair administrative action into a constitutional right and administrative bodies must act fairly and lawfully.
25. They further place reliance on Buchan Investment Limited v Ministry of National Heritage & Culture Others [2016]eKLR where the Court of Appeal emphasized that every administrative action must meet the constitutional threshold of legality, reasonableness and procedural fairness.
26. It is the applicant’s position that the impugned decision is unconstitutional and ought to be quashed.
27. They argue that it is now settled law that no person should be condemned unheard. That the Applicant was never summoned, notified, heard or informed of any complaint or reason for refusal of renewal of her licence. That the Respondents therefore condemned the Applicant unheard..
28. They place reliance on Onyango Oloo v Attorney General [1986-1989] EA 456 where the Court held that: "A decision in breach of the rules of natural justice is not cured by the fact that the same decision would otherwise have been right."
29. That similarly, in: Ridge v Baldwin [1964] AC 40 the Court held that failure to accord a party a hearing renders the decision null and void.
30. The Applicant submits that the Respondents' actions were procedurally unfair, arbitrary and unlawful.
31. On whether the respondents acted illegally, irrationally and unreasonably, the Applicant submits that the Respondents acted outside the confines of the law and exercised their powers arbitrarily, Public bodies are bound by the Constitution and cannot exercise power whimsically.
32. That Article 10 of the Constitution binds all public bodies to the national values and principles of governance which the Respondents violated.
33. That further, Article 232 of the Constitution requires public officers to uphold:
i. Responsiveness;
ii. Accountability;
iii. Transparency;
iv. Fair competition and merit.
34. They submit that the Respondents failed completely to meet these constitutional standards.
35. They place reliance on Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300 the court held that illegality, irrationality and procedural impropriety are proper grounds for Judicial Review. The Applicant submits that the impugned decision falls within all the above categories.
36. On whether the applicant is entitled to the order of Certiorari, they argue that the purpose of Certiorari is to quash an unlawful decision. They rely on Kenya National Examinations Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others [1997]eKLR the Court of Appeal held that an order of certiorari issues to quash a decision already made where the decision was made without or in excess of jurisdiction or where rules of natural justice were not complied with.
37. The Applicant maintains that the Application satisfies the threshold for grant of Certiorari.
38. On whether the Applicant is entitled to the order of Prohibition, they submit that the order of prohibition prevents a public body from continuing unlawful conduct. They rely on Kenya National Examinations Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR where the Court held that Prohibition looks to the future and prevents unlawful continuation of proceedings or implementation of illegal decisions.
39. The Applicant submits that unless restrained, the Respondents will continue implementing their unlawful decision to the detriment of the Applicant.
40. That this Honourable Court should therefore issue an order prohibiting the Respondents from enforcing the impugned decision.
41. On whether the applicant is entitled to the order of Mandamus, they submit that Mandamus compels the performance of a statutory duty. That in Republic v Kenya National Examinations Council Ex Parte Gathenji & Others I1997] eKLR the Court held that Mandamus issues to compel performance of a public duty imposed by statute.
42. They submit that the Respondents have a statutory and constitutional duty to consider applications lawfully, fairly and procedurally.
43. They submit that the Applicant complied with all legal requirements for renewal of the licence and the refusal and/ or failure to process the Applicant's licence lawfully amounts to dereliction of statutory duty. That this Honourable Court ought therefore to compel the Respondents to issue and/or renew the Applicant's liquor licence.
44. On whether the applicant has suffered prejudice, they submit that the Applicant has demonstrated that the unlawful actions of the Respondents have caused immense prejudice including:
v. Closure of business operations;
vi. Loss of livelihood;
vii. Financial loss;
viii. Economic hardship; and
ix. Reputational damage.
45. It is argued that the Applicant has invested heavily in the business and has annexed evidence of renovations, permits and previous licences. That the continued closure of the business without lawful justification is oppressive, unconstitutional and economically devastating.
46. It is submitted that Article 40 of the Constitution protects the right to property while Article 27 guarantees equal protection of the law. The Applicant submits that the Respondents' conduct violates these constitutional protections.
47. That public bodies are creatures of statute and cannot exercise powers outside the law, they rely on Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Pelt Security Services Limited [2018] eKLR where the Court held that public bodies must exercise power strictly within constitutional and statutory limits. That in Speaker of the National Assembly v Karume [1992] KLR 21 the Court emphasized adherence to legal procedures.
48. The Applicant submits that the Respondents abused their statutory mandate and acted ultra vires and such unlawful conduct should not be permitted by this Honourable Court.
49. That the Applicant has therefore established a meritorious case deserving the intervention of this Honourable Court.
50. The court is urged to allow the Notice of Motion in its entirety, issue an Order of Certiorari quashing the Respondents' decision refusing and/or failing to renew the Applicant's liquor licence; issue an Order of Prohibition restraining the Respondents from enforcing or implementing the impugned decision; Issue an Order of Mandamus compelling the Respondents to issue and/or renew the Applicant's liquor licence; grant interim reliefs allowing the Applicant to reopen and continue operating her business pending determination and award costs of the Application to the Applicant.
51. According to the Respondents, the issues for the court's determination are:
a. Whether the 1 st Respondent has violated the applicant's rights.
b. Whether the applicant has contravened the by-laws of and any other laws governing of liquor licensing.
c. Whether there have been ongoing meeting by the Respondents to vet liquor licensing applications and whether a final decision has been made.
d. Whether the Applicant has proved her case is entitled to the orders sought.
52. On whether the 1 st Respondent has violated the Applicant's rights, they submit that the 1 st Respondent in their replying affidavit confirmed that the Applicant applied for a liquor licence and the said application was registered and kept in abeyance pending licensing process such as inspection, verification and consideration by the board just like other applicants hence the Applicant's claim that she has been denied new license is a tactic employed to defeat the board's due process.
53. That the board was still deliberating on the Applicant's application to renew her license just like any other applicants, and had not in any way violated the applicant's rights and ought to be given time to conclude the process.
54. On whether the applicant contravened the bylaws of the Respondents and any other laws governing the sale of liquor, they submit that the 1 st Respondent through a replying affidavit at paragraph 6 said that during the inspection of the Applicant's business premises, it was discovered that there were irregularities including operating before the stipulated hours.
55. That the Baringo County Alcoholic Drinks Control Act, 2014 provides that the right time to sale liquor by bars, nightclubs on weekdays is 5 p.m. – 11 p.m. while on weekend is from 2 p.m. – 11p.m and therefore, the Applicant was operating illegally and was notified and given time to correct pending approval of license for 2026.
56. It is submitted that it is undisputed that the Respondents on several dates as indicated in their replying affidavit at paragraphs 9, 10 and 11 has had meetings to deliberate on the issue of the Applicant among other applicants and there is no final outcome yet. That the High Court of Kenya at Eldoret High in Judicial Review No. E010 of 2024 (Lydia Chelimo t/a Carwash Bar v. Uasin Gishu Alcoholic Drinks Control Board & Another) enunciated the rules and procedures on Judicial Review applications which ought to be adopted in this case, the findings of the court that
‘...lt is therefore clear that in judicial review proceedings. when asking the Court to quash a decision, demonstration of the existence of such impugned decision is paramount. Where the alleged decision has not been exhibited, reasons for not exhibiting it must he disclosed. It therefore follows that in the absence of proof of existence of the alleged decision, this Court cannot entertain the Application'.
57. On whether the Applicant proved her case and whether she is entitled to the orders sought, it is submitted that the Respondents tendered in evidence the photographs of the Applicant's premise showing she was operating at the wrong time which is illegal. That the Applicant chose to contravene the rules.
58. It is their submission that the Applicant has not demonstrated any decision of the Respondents denying her license for 2026. That the upshot is that the Applicant's case has no merit and should be dismissed as prayed with costs which naturally follow the event.
Analysis and determination
59. I have considered the application, the responses and the submissions by the parties. The issues for determination are as follows:-
a. Whether, in the circumstances, the applicant is entitled to the reliefs sought; and
b. What orders ought to issue on costs.
60. The applicant seeks judicial review orders of Prohibition, mandamus and Certiorari.
61. Ordinarily, judicial review is concerned with the decision-making process as opposed to the merits of the decision itself. Accordingly, in Republic v Attorney General & others, Ex Parte Diamond Hasham Lalji & another [2014] KEHC 3713 (KLR) it was held:
91. Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.
62. In Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR , the Court of Appeal held:
“…These remedies are only available against public bodies such as the Council in this case. What does an ORDER OF PROHIBITION do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY’S LAW OF ENGLAND, 4th Edition, Vol.1 at pg.37 paragraph 128. When those principles are applied to the present case, the Council obviously has the power or jurisdiction to cancel the results of an examination. The question is how, not whether, that power is to be exercised. If the Council of prohibition would be ineffectual against the conviction because such an order would not quash the conviction. The conviction could be quashed either on an appeal or by an order of certiorari. The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.”
63. As for Certiorari, the Court of Appeal added:
“…Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons…”
64. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.
65. The Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 Others the Supreme Court cautioned that:
“76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialized institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Action Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.
66. It is now trite therefore that some measure of merit review is acceptable to enable the Court properly adjudicate a judicial review matter. The Supreme Court acknowledged as much in the Saisi thus:
“For the court to get through an extensive examination of section 7 of the FAAA, there had to be some measure of merit analysis. That was not to say that the court had to embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly in the circumstances of the case without examining those circumstances and measuring them against what was reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. It was to be limited to the examination of uncontroverted evidence. The controverted evidence was best addressed by the person, body or authority in charge. There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination of the process only led to intolerable superficiality. That would be against article 259 of the Constitution which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the development of the law and contributes to good governance.”
67. Since the applicants approached the Court under various provisions of the Constitution, including Article 47 as well as Section 4 of the Fair Administrative Action Act, a merit analysis based on uncontested facts is permissible. The Applicant alleges that she applied for a license/ renewal from the Respondents to operate her club/business and complied with all legal requirements.
68. The Respondents on their part argues that the application by the Applicant is premature considering that a final decision has not been made. That the process is still under review hence the applicant is not entitled to the orders sought.
69. I have perused the documents presented by the Applicant. The record show that objections were raised on operation of business by the applicant which include from her landlord. Having considered arguments by all the parties herein and the provisions of law cited, there is no doubt that public interest should prevail over any private interests of the Applicants as was held in Republic -vs-National commission on Human rights Ex-parte Uhuru Muigai Kenyatta Misc. Civil appeal no 86 of 2009, [2010] eKLR .
70. I have carefully considered the application, the affidavit, the submissions on record. I have also considered the authorities cited – and the applicable law and principles on Judicial Review. It is about a decision, and how the decision was made. Was there a decision made in this case?
71. The applicant has an outfit by the name Cool Baze Bar. In 2025 she was licenced by Baringo County Government to run a small bar. On 18 th March,2025 she was issued with a single business permit. She paid Ksh. 4,000/=, on 28 th March,2025. The County Government received Ksh. 1,5000/= from her to run a Liquor Licence Retail Business under the Alcoholic Drinks Licence. Without any reasons/giving her a hearing the respondent declined to issue her with a licence for 2026.
72. The respondent through the 1 st Respondent concedes that they received the applicant’s application for renewal of licence. That as at 4 th May,2026, the respondent had not made a final decision with respect to the applicant’s application.
73. That as at 4 th May,2026, the respondent had held 2 meetings on the issue of licences for 2026 – on 4 th February,2026, and on 16 th April,2026. The minutes of 4 th February,2026 allege that the applicant’s bar was found operating illegally at noon and she was to appear at a given time to explain that issue meaning she was to appear before the board at a given time – The minutes shows that on 4 th February,2026 the Board did not approve the renewal of her licence. The reason was that the approval was….. “Pending awaiting board inspection and summon.”
74. A meeting held on 16 th April,2026 the board decided not to discuss her case because according to them, she had sued them – and determined to await the verdict of the court. The record shows that a notice for the meeting of 16 th April,2026 was issued by the sub county administrator – but there is no evidence that any time between 4 th February,2026, and 13 th April,2026 a summons was issued to the applicant to appear before the board to explain herself .
75. In addition, there was no evidence of the alleged violation of the rules (Operating outside hours).
76. The impugned decision was made on 4 th February,2026. By the time this application was made on 23 rd March,2026, there was no summons to the applicant to appear before the board, yet the decision not to issue her with a renewal clearly remained in force . I noted that the 1 st respondent deponed that they had not made any decision to close down the applicant’s business. For the 1 st respondent to depone that they had not closed her bar was dishonest as evidently the board arrived at a decision not to issue her with renewal – on the ground that they needed to inspect her premises and summon her to go and appear before the board. Clearly until that had been done, what did they expect the applicant to do?
77. A reading of minutes 7 th April,2026 of the board shows that no date is indicated as to when the applicant’s bar is said to have operated illegally, yet for the other culprit named as Santiago Bar it was clearly indicated that it was on the eve of 1 st January,2026 if indeed the offences were committed on 1 st January,2026 – Then the applicant ought to have been summoned to be heard before they denied her renewal of her licence because it was already a new year, and the board was meeting to approve licences for the year 2026.
78. To have the applicant wait for the length of time without any idea as to when she would appear, and to be put in a position where she could be accused of operating without a licence/illegally – an offence by its right – was unfair, and violated her right to fair administrative action.
79. In any event this is an issue that would have been dealt with before the applicant came to Court
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