1. The matter coming up for determination is an ex-parte Chamber Summons dated 20 th May 2025, filed by the Applicant, Wesley Kipyegon Siele. The application is brought under Order 53 Rule 1(2) and (4) of the Civil Procedure Rules, 2010, and Sections 8(2) and 9 of the Law Reform Act, Cap. 26, Laws of Kenya.
2. The Applicant seeks leave to apply for judicial review orders of Certiorari, Prohibition, and Mandamus against the Respondents concerning the denial of an alcoholic drinks wholesale license. The application is supported by a Statutory Statement and a Verifying Affidavit sworn by the Applicant.
3. The Applicant states that on 17 th October 2024, he applied for a new Alcoholic General Wholesale License for his business premises located at Kapkatet, within Bureti Sub-County, Kericho County. The business was scheduled to commence operations in January 2025.
4. By a notice dated 12 th February 2025, the 1 st Respondent rejected the application on two grounds: first, that the Applicant had contravened regulations by selling alcoholic drinks without a license for the year 2024; and secondly, that the Applicant was involved in the sale of counterfeit alcoholic drinks.
5. The Applicant contends that the rejection was arbitrary and procedurally unfair because;
· He was not afforded a hearing before the decision was made;
· No Government Chemist report was produced to substantiate the allegation of counterfeit products;
· No goods were confiscated, no arrests were made, and no criminal charges were preferred despite the alleged offense being cognizable;
· He appealed to the 2 nd Respondent (the Administrative Review Committee) on 26 th February 2025, but no response has been received to date.
6. The Applicant asserts that his constitutional right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015, has been violated. He further contends that the Respondents’ actions are ultra vires the Kericho County Alcoholic Drinks Act, 2014.
7. At this ex-parte stage, the sole issue for determination is whether the Applicant has established an arguable case to warrant the grant of leave to apply for judicial review.
8. The law on leave to apply for judicial review is well settled. In the case of Republic v County Council of Kwale & Another ex parte Kondo & 57 Others [1998] eKLR , the Court held that leave should be granted where the Applicant demonstrates an arguable prima facie case without delving into the merits of the application. Similarly, in Republic v Kenya National Examinations Council ex parte Gathenji & 9 Others [1997] eKLR, the Court stated that the purpose of leave is to filter out frivolous and vexatious applications at an early stage.
9. At this stage, the Applicant need only show that there is a prima facie arguable case that the impugned decision was made without procedural propriety or in excess of jurisdiction.
10. I have carefully considered the Chamber Summons, the Statutory Statement, and the Verifying Affidavit. The following grounds, if proved, are capable of constituting a proper basis for judicial review;
a ) The Applicant avers that he was not heard before the 1 st Respondent made the decision to reject his license application. Section 4(3) of the Fair Administrative Action Act, 2015, provides that where an administrative action is likely to adversely affect a person’s rights, the administrator must give the person prior notice, an opportunity to be heard, and reasons for the decision. A license denial falls squarely within this ambit. The allegation that no hearing was conducted, if true, would constitute a breach of natural justice.
b) The 1 st Respondent cited “selling without a 2024 license” as a reason for rejecting a 2025 license application. The Applicant contends that his business was not operational in 2024 and that he applied for a new license in accordance with the law. If the Respondents based their decision on an irrelevant consideration or a misapprehension of the statutory framework, such a decision may be ultra vires and amenable to certiorari.
c) The Applicant states that he filed an appeal to the 2 nd Respondent on 26 th February 2025, pursuant to Section 10 of the Kericho County Alcoholic Drinks Act, 2014, but has received no response. The 2 nd Respondent is a statutory body with a duty to hear and determine appeals. A failure to discharge that duty is a proper ground for an order of mandamus.
d) The Applicant asserts that the allegation of counterfeit alcoholic drinks was made without a Government Chemist report and without any confiscation, arrest, or prosecution. While this is a matter for the substantive hearing, it raises a prima facie question as to whether the decision was based on evidence or was arbitrary.
11. I also note that the application is brought within a reasonable time. The impugned decision was made on 12 th February 2025, and the application was filed shortly thereafter. This satisfies the timeliness requirement under Order 53 Rule 2 of the Civil Procedure Rules.
12. The Applicant seeks leave to apply for orders of Certiorari, Prohibition, and Mandamus. I am satisfied that the Applicant has demonstrated an arguable case with respect to all three remedies;
· On certiorari, the decision of the 1 st Respondent is prima facie susceptible to quashing for procedural impropriety and potential ultra vires action.
· On prohibition, the Applicant’s business operations appear to have been interfered with, and an order prohibiting further unlawful interference may be warranted.
· On the issue of mandamus, the 2 nd Respondent has a statutory duty to review the decision on appeal. Its failure to act is a proper case for mandamus.
13. The Applicant also prays for an order directing the 2 nd Respondent to grant the license. I note that this prayer overreaches. Mandamus is a remedy to compel the performance of a public duty; it cannot dictate the outcome of that duty. The 2 nd Respondent may be compelled to hear and determine the appeal, but the substantive decision to grant or deny the license lies within its discretion. However, this is a matter for the substantive motion and does not bar the grant of leave.
14. Having found that the Applicant has established an arguable case, the application is meritorious giving rise to the issuance of the following orders that;
a) The Applicant be and is hereby granted leave to apply for an order of certiorari to remove into the High Court and quash forthwith the decision of the 1 st Respondent to decline/ fail to issue license to the applicant.
b) The Applicant be and is hereby granted leave to apply for an order of prohibition to prevent the Respondents from disallowing, cancelling, revoking and/or otherwise from interfering with the Applicant’s business premise within Kapkatet in breach of the Constitution of Kenya and in breach of the Kericho County Alcoholic drinks Act,2014.
c) The Applicant be and is hereby granted leave to apply for an order of mandamus to compel the Respondents to follow the Kericho County Alcoholic Drinks Act, 2014, to follow the law and the Constitution of Kenya and forthwith stop interfering with the Applicant’s liquor business in Kapkatet without regard to article 47 of the Constitution of Kenya on Fair Administrative Action.
d) The Applicant to file and serve the substantive application for judicial review within 21 days from the date hereof.
e) Costs of this application shall be in the cause.
Orders accordingly.
Dated, Signed and Delivered at Nakuru this 21 st Day of May 2026.
J.K. SERGON
JUDGE
In the presence of: -
C/Assistant- Rutoh
N/A for parties
2. The Applicant seeks leave to apply for judicial review orders of Certiorari, Prohibition, and Mandamus against the Respondents concerning the denial of an alcoholic drinks wholesale license. The application is supported by a Statutory Statement and a Verifying Affidavit sworn by the Applicant.
3. The Applicant states that on 17 th October 2024, he applied for a new Alcoholic General Wholesale License for his business premises located at Kapkatet, within Bureti Sub-County, Kericho County. The business was scheduled to commence operations in January 2025.
4. By a notice dated 12 th February 2025, the 1 st Respondent rejected the application on two grounds: first, that the Applicant had contravened regulations by selling alcoholic drinks without a license for the year 2024; and secondly, that the Applicant was involved in the sale of counterfeit alcoholic drinks.
5. The Applicant contends that the rejection was arbitrary and procedurally unfair because;
· He was not afforded a hearing before the decision was made;
· No Government Chemist report was produced to substantiate the allegation of counterfeit products;
· No goods were confiscated, no arrests were made, and no criminal charges were preferred despite the alleged offense being cognizable;
· He appealed to the 2 nd Respondent (the Administrative Review Committee) on 26 th February 2025, but no response has been received to date.
6. The Applicant asserts that his constitutional right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015, has been violated. He further contends that the Respondents’ actions are ultra vires the Kericho County Alcoholic Drinks Act, 2014.
7. At this ex-parte stage, the sole issue for determination is whether the Applicant has established an arguable case to warrant the grant of leave to apply for judicial review.
8. The law on leave to apply for judicial review is well settled. In the case of Republic v County Council of Kwale & Another ex parte Kondo & 57 Others [1998] eKLR , the Court held that leave should be granted where the Applicant demonstrates an arguable prima facie case without delving into the merits of the application. Similarly, in Republic v Kenya National Examinations Council ex parte Gathenji & 9 Others [1997] eKLR, the Court stated that the purpose of leave is to filter out frivolous and vexatious applications at an early stage.
9. At this stage, the Applicant need only show that there is a prima facie arguable case that the impugned decision was made without procedural propriety or in excess of jurisdiction.
10. I have carefully considered the Chamber Summons, the Statutory Statement, and the Verifying Affidavit. The following grounds, if proved, are capable of constituting a proper basis for judicial review;
a ) The Applicant avers that he was not heard before the 1 st Respondent made the decision to reject his license application. Section 4(3) of the Fair Administrative Action Act, 2015, provides that where an administrative action is likely to adversely affect a person’s rights, the administrator must give the person prior notice, an opportunity to be heard, and reasons for the decision. A license denial falls squarely within this ambit. The allegation that no hearing was conducted, if true, would constitute a breach of natural justice.
b) The 1 st Respondent cited “selling without a 2024 license” as a reason for rejecting a 2025 license application. The Applicant contends that his business was not operational in 2024 and that he applied for a new license in accordance with the law. If the Respondents based their decision on an irrelevant consideration or a misapprehension of the statutory framework, such a decision may be ultra vires and amenable to certiorari.
c) The Applicant states that he filed an appeal to the 2 nd Respondent on 26 th February 2025, pursuant to Section 10 of the Kericho County Alcoholic Drinks Act, 2014, but has received no response. The 2 nd Respondent is a statutory body with a duty to hear and determine appeals. A failure to discharge that duty is a proper ground for an order of mandamus.
d) The Applicant asserts that the allegation of counterfeit alcoholic drinks was made without a Government Chemist report and without any confiscation, arrest, or prosecution. While this is a matter for the substantive hearing, it raises a prima facie question as to whether the decision was based on evidence or was arbitrary.
11. I also note that the application is brought within a reasonable time. The impugned decision was made on 12 th February 2025, and the application was filed shortly thereafter. This satisfies the timeliness requirement under Order 53 Rule 2 of the Civil Procedure Rules.
12. The Applicant seeks leave to apply for orders of Certiorari, Prohibition, and Mandamus. I am satisfied that the Applicant has demonstrated an arguable case with respect to all three remedies;
· On certiorari, the decision of the 1 st Respondent is prima facie susceptible to quashing for procedural impropriety and potential ultra vires action.
· On prohibition, the Applicant’s business operations appear to have been interfered with, and an order prohibiting further unlawful interference may be warranted.
· On the issue of mandamus, the 2 nd Respondent has a statutory duty to review the decision on appeal. Its failure to act is a proper case for mandamus.
13. The Applicant also prays for an order directing the 2 nd Respondent to grant the license. I note that this prayer overreaches. Mandamus is a remedy to compel the performance of a public duty; it cannot dictate the outcome of that duty. The 2 nd Respondent may be compelled to hear and determine the appeal, but the substantive decision to grant or deny the license lies within its discretion. However, this is a matter for the substantive motion and does not bar the grant of leave.
14. Having found that the Applicant has established an arguable case, the application is meritorious giving rise to the issuance of the following orders that;
a) The Applicant be and is hereby granted leave to apply for an order of certiorari to remove into the High Court and quash forthwith the decision of the 1 st Respondent to decline/ fail to issue license to the applicant.
b) The Applicant be and is hereby granted leave to apply for an order of prohibition to prevent the Respondents from disallowing, cancelling, revoking and/or otherwise from interfering with the Applicant’s business premise within Kapkatet in breach of the Constitution of Kenya and in breach of the Kericho County Alcoholic drinks Act,2014.
c) The Applicant be and is hereby granted leave to apply for an order of mandamus to compel the Respondents to follow the Kericho County Alcoholic Drinks Act, 2014, to follow the law and the Constitution of Kenya and forthwith stop interfering with the Applicant’s liquor business in Kapkatet without regard to article 47 of the Constitution of Kenya on Fair Administrative Action.
d) The Applicant to file and serve the substantive application for judicial review within 21 days from the date hereof.
e) Costs of this application shall be in the cause.
Orders accordingly.
Dated, Signed and Delivered at Nakuru this 21 st Day of May 2026.
J.K. SERGON
JUDGE
In the presence of: -
C/Assistant- Rutoh
N/A for parties