REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CONSTITUTIONAL PETITION NO E007 OF 2024
IN THE MATTER OF ARTICLES 21(1)(2), AND 23 OF THE CONSTITUTION OF KENYA, 2010
IN THE MATTER OF THE CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLES 46(1)(a)(b) and (c), 47 AND 50(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF VIOLATION OF SECTIONS 10, 11, 12, 13, 14, 15, 16 AND 17 OF THE VIHIGA COUNTY ALCOHOLIC DRINKS CONTROL ACT NO. 6 OF 2014 AND THE REGULATIONS THEREUNDER
BETWEEN
ZAKAYO AMIMO OTOLO………………………………….……. PETITIONER
AND
LUANDA SUB COUNTY ALCOHOLIC
DRINKS REGULATIONS COMMITTEE…………..……………1 ST RESPONDENT
VIHIGA COUNTY ALCOHOLIC DRINKS
REGULATIONS ADMINISTRATIVE
REVIEW COMMITTEE ……………………………………………2 ND RESPONDENT
VIHIGA COUNTY GOVERNMENT………………….…….……3 RD RESPONDENT
JUDGMENT
INTRODUCTION
1. In his Petition dated 20 th July 2024 and filed on 23 rd July 2024, the Petitioner herein sought the following orders: -
1. A declaration that the Respondents violated the Petitioner’s constitutional rights under the Bill of Rights and violated the provisions of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014.
2. An order do issue directing the Respondents to exercise their mandate under the Vihiga County Alcoholic Drinks Control Act No 6 of 2014 and issue the Petitioner with an Alcoholic Drinks licence for the year 2024.
3. An order do issue directing the Respondents to issue an unconditional apology to the Petitioner.
4. An order do issue that the Respondents do pay such appropriate compensation to the Petitioner as this Honourable Court deems appropriate.
5. An order do issue that the Respondents pay punitive and exemplary damages for abdication of duty and responsibility; and
6. Costs of the Petition.
2. On 30 th April 2025, the 1 st , 2 nd and 3 rd Respondents filed a Replying Affidavit dated 28 th April 2025. On 7 th May 2025, the Petitioner filed a Supplementary Affidavit sworn on 5 th May 2025.
3. The Petitioner’s Written Submissions were dated 6 th May 2025 and filed on 7 th May 2025 while those of the 1 st -3 rd Respondents were dated 28 th April 2025 and filed on 30 th April 2025. This judgment was based on the said Written Submissions which the parties relied upon in their entirety.
THE PETITIONER’S CASE
4. The Petitioner submitted that he had operated Butamu Bar and Restaurant at Luanda town since the year 2004. He stated that he had continuously obtained and renewed his Alcoholic Drinks Licence from the relevant authorities from the year 2004 until the year 2023.
5. He averred that on 9 th January 2024, he applied for renewal of his Alcoholic Drinks Licence for the year 2024 in the prescribed form, paid the requisite application fees, settled the charges demanded by the County Government and paid fees relating to public health inspections and medical certification of his employees.
6. He stated that his premises were inspected by the relevant public health officers and were found to comply with the applicable public health requirements. He contended that despite complying with all the requirements, the Respondents failed and/or refused to approve or reject his application for renewal of the licence.
7. He asserted that the 1 st -3 rd Respondents neither communicated any decision nor provided reasons for their failure to act. He stated that he made several follow-ups and subsequently wrote letters dated 20 th April 2024 and 30 th May 2024 to the 1 st and 2 nd Respondents respectively seeking information on the status of his application. He stated that although the said letters were received by the Respondents, no response was issued. He contended that the Respondent's failure to determine his application affected his business operations and exposed him to harassment, embarrassment and uncertainty.
8. He relied on Articles 21, 23, 40, 47 and 50 of the Constitution of Kenya, 2010 and Sections 10, 11, 12, 13, 14, 15, 16 and 17 of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014, arguing that the Respondents violated his rights and failed to discharge their statutory obligations by failing to determine and communicate the outcome of his application for renewal of an Alcoholic Drinks Licence. He relied on the case of Bar vs Nyeri county Alcoholic Drinks Control & Licensing Board & Another (2022) KEHC 3381 (KLR) to buttress his argument where the court held that a licensing authority had to exercise its statutory powers lawfully, fairly and in accordance with Article 47 of the Constitution of Kenya, and that arbitrary interference with a liquor licence without due process was unlawful.
THE 1 ST - 3 RD RESPONDENTS’ CASE
9. The 1 st - 3 rd Respondents contended that the Petition herein was premature, misconceived and devoid of merit because the Petitioner had not paid the prescribed Alcoholic Drinks Licence fees for the year 2024 when he approached this court. They averred that the payment of Kshs 13,500/= he relied upon related to a Single Business Permit and not an Alcoholic Drinks Licence, which were separate licences attracting different charges.
10. They contended that the Petitioner was aware that he had not paid the prescribed Alcoholic Drinks Licence fees when he filed the Petition and, therefore, could not claim that the Respondents unlawfully failed to issue him with a licence. They stated that he paid a sum of Kshs 50,000/= for the Alcoholic Drinks Licence on 30 th September 2024, after filing the Petition, and was issued with the licence on 3 rd October 2024.
11. They asserted that the issuance of the licence after payment demonstrated that they had not refused to licence the Petitioner's business but had only required him to comply with the statutory requirements. They asserted that the Petition had been overtaken by events since the Petitioner subsequently obtained the licence during the pendency of the proceedings.
12. They maintained that they had not violated his constitutional rights because they neither closed his business nor prevented him from operating during the period in question. They thus urged this court to dismiss the Petition with costs.
LEGAL ANALYSIS
13. Having considered the Petition, the affidavits filed by the parties and the Written Submissions, it did appear to this court that the issues that had been placed before it for determination were as follows: -
a. Whether or not the Petition was premature and devoid of merit on account of the Petitioner having to pay the prescribed Alcoholic Drinks Licence fees for the year 2024 before filing the Petition;
b. Whether or not the Respondents violated the Petitioner’s constitutional rights and breached the provisions of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014 by failing to determine and communicate the outcome of his application for renewal of an Alcoholic Drinks Licence;
c. Whether or not the Petitioner was entitled to the reliefs sought; and
d. Who was to bear the costs of the Petition.
I. COMPETENCE OF THE PETITION
14. The 1 st – 3 rd Respondents submitted that the Petition was premature because the Petitioner had not complied with the statutory requirements for issuance of an Alcoholic Drinks Licence.
15. On the other hand, the Petitioner submitted that the Petition was not premature because he had complied with the requirements for renewal of his Alcoholic Drinks Licence. He argued that under Sections 11 and 12 of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014, the licensing authority was required to consider and approve an application before payment of licence fees, and therefore his complaint was based on the Respondents’ failure to determine and communicate the outcome of his application. He further submitted that the subsequent payment of Kshs 50,000/= and issuance of the licence did not cure the Respondents’ earlier failure to act.
16. This court considered Section 8(1) of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014 which provides as follows:-
“(1) No person shall-
(a) manufacture or otherwise produce;
(b) sell, distribute or dispose of, or deal with; any alcoholic drink in the county except under and in accordance with a license issued under this Act.”
17. Further, Section 11(1) of the Vihiga County Alcoholic Drinks Control Act provides as follows: -
“(1) A person intending to produce, manufacture,distribute any alcoholic drink in the county or to operate anestablishment for the sale of an alcoholic drink shall make anapplication in a prescribed form to the sub-county Committee inthe sub-county where the premise is to be situated and shall paya prescribed fee.”
18. In addition, Section 12(2) and (4)(a) of the Vihiga County Alcoholic Drinks Control Act provides as follows: -
“(2) Where the Sub-county Committee has no objection tothe application under section 11, it shall grant a license to theapplicant upon payment of the prescribed fee…(4) Where the Sub-county Committee is not satisfied withthe application under subsection (1), it may-(a) reject the application giving reasons and notifythe applicant accordingly within thirty days ofthe decision to reject.”
19. It was evident that Section 8(1) of the Vihiga County Alcoholic Drinks Control Act prohibited any person from manufacturing, selling, distributing or dealing in alcoholic drinks within Vihiga County unless such person held a valid licence issued under the Act. Section 11(1) of the Vihiga County Alcoholic Drinks Control Act required a person intending to operate an establishment dealing in alcoholic drinks to apply for a licence in the prescribed form and pay the prescribed fee. Section 12 of the Vihiga County Alcoholic Drinks Control Act provided for consideration of an application and issuance of a licence upon approval by the relevant committee and payment of the prescribed fee.
20. It was not disputed that the Petitioner applied for renewal of his Alcoholic Drinks Licence on 9 th January 2024 and paid certain charges including the Single Business Permit fees, inspection charges and medical certification fees.
21. However, the evidence before this court demonstrated that he had not paid the prescribed Alcoholic Drinks Licence fees at the time he filed the Petition. Indeed, this court noted the Petitioner relied on the payment of Kshs 13,500/= as evidence of compliance. However, the documents produced before the court showed that the said amount related to a Single Business Permit and not to an Alcoholic Drinks Licence.
22. This court, therefore, found and held that the Petitioner had not completed the statutory licensing process contemplated under Sections 11 and 12 of the Vihiga County Alcoholic Drinks Control Act by the time he instituted the Petition herein.
II. VIOLATION OF THE PETITIONER’S CONSTITUTIONAL RIGHTS
23. The Petitioner submitted that the Respondents violated his right to fair administrative action by failing to determine his application for renewal of an Alcoholic Drinks Licence and failing to communicate the outcome thereof. He argued that the Respondents, being public bodies exercising statutory powers, were required to act expeditiously, reasonably, lawfully and procedurally fairly. He submitted that the failure by the Respondents to respond to his letters dated 20 th April 2024 and 30 th May 2024 amounted to a violation of Article 47 of the Constitution.
24. On the other hand, the Respondents denied of having violated the Petitioner’s constitutional rights because he had not fulfilled the statutory requirements for issuance of an Alcoholic Drinks Licence. They maintained that the application was incomplete due to non-payment of the prescribed licence fees and that the licence was issued immediately after the Petitioner complied with the requirements.
25. This court considered Article 47(1) of the Constitution of Kenya, 2010 which stipulates as follows: -
"Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair."
26. The right to fair administrative action under Article 47 requires public bodies exercising statutory powers to act fairly and communicate decisions affecting persons who submit themselves to administrative processes. A person was entitled to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Having said so, the right to fair administrative action did not relieve an applicant from complying with statutory requirements necessary for the grant of the benefit being sought.
27. In the present matter, this court had already found that the Petitioner had not completed the statutory licensing process because he had not paid the prescribed Alcoholic Drinks Licence fees when he filed the Petition. Although the Respondents did not demonstrate that they communicated this position to the Petitioner after receiving his correspondence, the failure to communicate in the circumstances of this case did not amount to a constitutional violation entitling the Petitioner to the remedies sought.
28. The evidence before this court showed that after the Petitioner paid the prescribed Alcoholic Drinks Licence fees on 30 th September 2024, the Respondents issued the licence on 3 rd October 2024. This demonstrated that the Respondents had not unlawfully refused to licence the Petitioner’s business but had required compliance with the statutory framework.
29. The court was guided by the principle in Anarita Karimi Njeru vs Republic (No 1) [1979] KLR 154, as affirmed by the Court of Appeal in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR , that a party alleging violation of constitutional rights must plead such violations with reasonable precision by identifying the constitutional provisions violated, the manner of violation and the persons affected.
30. Accordingly, the court was not satisfied that the Petitioner had proved, on a balance of probabilities, any violation of his rights under Articles 40, 47 or 50 of the Constitution or a breach of the provisions of the Vihiga County Alcoholic Drinks Control Act or unlawful administrative action by the Respondents.
III. RELIEFS
31. The Petitioner submitted that he was entitled to the reliefs sought because the Respondents had failed to discharge their statutory obligations and violated his constitutional rights. He sought declaratory orders, issuance of the Alcoholic Drinks Licence, compensation and punitive damages, arguing that the Respondents’ failure to process his application affected his business operations and occasioned him loss.
32. The 1 st – 3 rd Respondents submitted that the Petitioner was not entitled to any of the reliefs sought. They argued that the Petition was founded on the mistaken belief that the Respondents had unlawfully refused to issue the licence, yet the Petitioner had not paid the prescribed fees at the time he approached the court.
33. They submitted that the prayer seeking an order compelling issuance of the Alcoholic Drinks Licence had been overtaken by events because the Petitioner had already obtained the licence after payment of the prescribed fees.
34. This court considered the nature of the remedies that the Petitioner had sought herein. It noted that constitutional remedies were discretionary and could only issue where a petitioner had demonstrated that a constitutional right or fundamental freedom had been violated, infringed or threatened.
35. Having found that the Petitioner failed to establish any violation of his rights under the Constitution of Kenya as he had not completed the statutory licensing process at the time he instituted the Petition, and having had due regard to the demonstration by the Respondents that they did not unlawfully refuse to issue the licence but required him to comply with the statutory requirements and the fact that the order seeking to compel the Respondents to issue the Petitioner with an Alcoholic Drinks Licence for the year 2024 had been overtaken by events, this court came to the firm conclusion that the Petitioner was not entitled to the declaratory orders, compensation, punitive damages or any other reliefs sought in the Petition.
IV. COSTS
36. The Petitioner submitted that he was entitled to costs because he had been compelled to institute proceedings due to the Respondents’ failure to determine his application and communicate their decision. He maintained that the Petition was not frivolous because it sought to enforce his constitutional right to fair administrative action.
37. The 1 st – 3 rd Respondents submitted that they were entitled to costs because the Petition was premature and had been filed without the Petitioner complying with the statutory requirements for issuance of an Alcoholic Drinks Licence. They argued that the Petitioner had subjected them to unnecessary litigation despite knowing that he had not paid the prescribed licence fees.
38. Notably, costs were awarded at the discretion of the court as shown in Section 27(1) of the Civil Procedure Act Cap 21 (Laws of Kenya) which provides as follows: -
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”
39. The general principle was that the successful party was ordinarily entitled to costs. However, in constitutional litigation, the award of costs remained a matter of judicial discretion and depended on the circumstances of each case, including the nature of the dispute, the conduct of the parties and whether the proceedings raised matters of public interest.
40. Although the Petition was unsuccessful, this court was not persuaded to grant costs to the government against its own citizen. That would not only be punitive but the same would be immoral to have a government execute a decree for costs against its own citizen.
DISPOSITION
41. For the foregoing reasons, the upshot of this court’s decision was that the Petition dated 20 th July 2024 and filed on 23 rd July 2024 lacked merit and the same be and is hereby dismissed. Each party shall bear its own costs of this Petition.
42. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of July 2026
J. KAMAU
JUDGE
constITUTIONAL petition no e007 of 2024 2
IN THE HIGH COURT OF KENYA AT VIHIGA
CONSTITUTIONAL PETITION NO E007 OF 2024
IN THE MATTER OF ARTICLES 21(1)(2), AND 23 OF THE CONSTITUTION OF KENYA, 2010
IN THE MATTER OF THE CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLES 46(1)(a)(b) and (c), 47 AND 50(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF VIOLATION OF SECTIONS 10, 11, 12, 13, 14, 15, 16 AND 17 OF THE VIHIGA COUNTY ALCOHOLIC DRINKS CONTROL ACT NO. 6 OF 2014 AND THE REGULATIONS THEREUNDER
BETWEEN
ZAKAYO AMIMO OTOLO………………………………….……. PETITIONER
AND
LUANDA SUB COUNTY ALCOHOLIC
DRINKS REGULATIONS COMMITTEE…………..……………1 ST RESPONDENT
VIHIGA COUNTY ALCOHOLIC DRINKS
REGULATIONS ADMINISTRATIVE
REVIEW COMMITTEE ……………………………………………2 ND RESPONDENT
VIHIGA COUNTY GOVERNMENT………………….…….……3 RD RESPONDENT
JUDGMENT
INTRODUCTION
1. In his Petition dated 20 th July 2024 and filed on 23 rd July 2024, the Petitioner herein sought the following orders: -
1. A declaration that the Respondents violated the Petitioner’s constitutional rights under the Bill of Rights and violated the provisions of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014.
2. An order do issue directing the Respondents to exercise their mandate under the Vihiga County Alcoholic Drinks Control Act No 6 of 2014 and issue the Petitioner with an Alcoholic Drinks licence for the year 2024.
3. An order do issue directing the Respondents to issue an unconditional apology to the Petitioner.
4. An order do issue that the Respondents do pay such appropriate compensation to the Petitioner as this Honourable Court deems appropriate.
5. An order do issue that the Respondents pay punitive and exemplary damages for abdication of duty and responsibility; and
6. Costs of the Petition.
2. On 30 th April 2025, the 1 st , 2 nd and 3 rd Respondents filed a Replying Affidavit dated 28 th April 2025. On 7 th May 2025, the Petitioner filed a Supplementary Affidavit sworn on 5 th May 2025.
3. The Petitioner’s Written Submissions were dated 6 th May 2025 and filed on 7 th May 2025 while those of the 1 st -3 rd Respondents were dated 28 th April 2025 and filed on 30 th April 2025. This judgment was based on the said Written Submissions which the parties relied upon in their entirety.
THE PETITIONER’S CASE
4. The Petitioner submitted that he had operated Butamu Bar and Restaurant at Luanda town since the year 2004. He stated that he had continuously obtained and renewed his Alcoholic Drinks Licence from the relevant authorities from the year 2004 until the year 2023.
5. He averred that on 9 th January 2024, he applied for renewal of his Alcoholic Drinks Licence for the year 2024 in the prescribed form, paid the requisite application fees, settled the charges demanded by the County Government and paid fees relating to public health inspections and medical certification of his employees.
6. He stated that his premises were inspected by the relevant public health officers and were found to comply with the applicable public health requirements. He contended that despite complying with all the requirements, the Respondents failed and/or refused to approve or reject his application for renewal of the licence.
7. He asserted that the 1 st -3 rd Respondents neither communicated any decision nor provided reasons for their failure to act. He stated that he made several follow-ups and subsequently wrote letters dated 20 th April 2024 and 30 th May 2024 to the 1 st and 2 nd Respondents respectively seeking information on the status of his application. He stated that although the said letters were received by the Respondents, no response was issued. He contended that the Respondent's failure to determine his application affected his business operations and exposed him to harassment, embarrassment and uncertainty.
8. He relied on Articles 21, 23, 40, 47 and 50 of the Constitution of Kenya, 2010 and Sections 10, 11, 12, 13, 14, 15, 16 and 17 of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014, arguing that the Respondents violated his rights and failed to discharge their statutory obligations by failing to determine and communicate the outcome of his application for renewal of an Alcoholic Drinks Licence. He relied on the case of Bar vs Nyeri county Alcoholic Drinks Control & Licensing Board & Another (2022) KEHC 3381 (KLR) to buttress his argument where the court held that a licensing authority had to exercise its statutory powers lawfully, fairly and in accordance with Article 47 of the Constitution of Kenya, and that arbitrary interference with a liquor licence without due process was unlawful.
THE 1 ST - 3 RD RESPONDENTS’ CASE
9. The 1 st - 3 rd Respondents contended that the Petition herein was premature, misconceived and devoid of merit because the Petitioner had not paid the prescribed Alcoholic Drinks Licence fees for the year 2024 when he approached this court. They averred that the payment of Kshs 13,500/= he relied upon related to a Single Business Permit and not an Alcoholic Drinks Licence, which were separate licences attracting different charges.
10. They contended that the Petitioner was aware that he had not paid the prescribed Alcoholic Drinks Licence fees when he filed the Petition and, therefore, could not claim that the Respondents unlawfully failed to issue him with a licence. They stated that he paid a sum of Kshs 50,000/= for the Alcoholic Drinks Licence on 30 th September 2024, after filing the Petition, and was issued with the licence on 3 rd October 2024.
11. They asserted that the issuance of the licence after payment demonstrated that they had not refused to licence the Petitioner's business but had only required him to comply with the statutory requirements. They asserted that the Petition had been overtaken by events since the Petitioner subsequently obtained the licence during the pendency of the proceedings.
12. They maintained that they had not violated his constitutional rights because they neither closed his business nor prevented him from operating during the period in question. They thus urged this court to dismiss the Petition with costs.
LEGAL ANALYSIS
13. Having considered the Petition, the affidavits filed by the parties and the Written Submissions, it did appear to this court that the issues that had been placed before it for determination were as follows: -
a. Whether or not the Petition was premature and devoid of merit on account of the Petitioner having to pay the prescribed Alcoholic Drinks Licence fees for the year 2024 before filing the Petition;
b. Whether or not the Respondents violated the Petitioner’s constitutional rights and breached the provisions of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014 by failing to determine and communicate the outcome of his application for renewal of an Alcoholic Drinks Licence;
c. Whether or not the Petitioner was entitled to the reliefs sought; and
d. Who was to bear the costs of the Petition.
I. COMPETENCE OF THE PETITION
14. The 1 st – 3 rd Respondents submitted that the Petition was premature because the Petitioner had not complied with the statutory requirements for issuance of an Alcoholic Drinks Licence.
15. On the other hand, the Petitioner submitted that the Petition was not premature because he had complied with the requirements for renewal of his Alcoholic Drinks Licence. He argued that under Sections 11 and 12 of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014, the licensing authority was required to consider and approve an application before payment of licence fees, and therefore his complaint was based on the Respondents’ failure to determine and communicate the outcome of his application. He further submitted that the subsequent payment of Kshs 50,000/= and issuance of the licence did not cure the Respondents’ earlier failure to act.
16. This court considered Section 8(1) of the Vihiga County Alcoholic Drinks Control Act No 6 of 2014 which provides as follows:-
“(1) No person shall-
(a) manufacture or otherwise produce;
(b) sell, distribute or dispose of, or deal with; any alcoholic drink in the county except under and in accordance with a license issued under this Act.”
17. Further, Section 11(1) of the Vihiga County Alcoholic Drinks Control Act provides as follows: -
“(1) A person intending to produce, manufacture,distribute any alcoholic drink in the county or to operate anestablishment for the sale of an alcoholic drink shall make anapplication in a prescribed form to the sub-county Committee inthe sub-county where the premise is to be situated and shall paya prescribed fee.”
18. In addition, Section 12(2) and (4)(a) of the Vihiga County Alcoholic Drinks Control Act provides as follows: -
“(2) Where the Sub-county Committee has no objection tothe application under section 11, it shall grant a license to theapplicant upon payment of the prescribed fee…(4) Where the Sub-county Committee is not satisfied withthe application under subsection (1), it may-(a) reject the application giving reasons and notifythe applicant accordingly within thirty days ofthe decision to reject.”
19. It was evident that Section 8(1) of the Vihiga County Alcoholic Drinks Control Act prohibited any person from manufacturing, selling, distributing or dealing in alcoholic drinks within Vihiga County unless such person held a valid licence issued under the Act. Section 11(1) of the Vihiga County Alcoholic Drinks Control Act required a person intending to operate an establishment dealing in alcoholic drinks to apply for a licence in the prescribed form and pay the prescribed fee. Section 12 of the Vihiga County Alcoholic Drinks Control Act provided for consideration of an application and issuance of a licence upon approval by the relevant committee and payment of the prescribed fee.
20. It was not disputed that the Petitioner applied for renewal of his Alcoholic Drinks Licence on 9 th January 2024 and paid certain charges including the Single Business Permit fees, inspection charges and medical certification fees.
21. However, the evidence before this court demonstrated that he had not paid the prescribed Alcoholic Drinks Licence fees at the time he filed the Petition. Indeed, this court noted the Petitioner relied on the payment of Kshs 13,500/= as evidence of compliance. However, the documents produced before the court showed that the said amount related to a Single Business Permit and not to an Alcoholic Drinks Licence.
22. This court, therefore, found and held that the Petitioner had not completed the statutory licensing process contemplated under Sections 11 and 12 of the Vihiga County Alcoholic Drinks Control Act by the time he instituted the Petition herein.
II. VIOLATION OF THE PETITIONER’S CONSTITUTIONAL RIGHTS
23. The Petitioner submitted that the Respondents violated his right to fair administrative action by failing to determine his application for renewal of an Alcoholic Drinks Licence and failing to communicate the outcome thereof. He argued that the Respondents, being public bodies exercising statutory powers, were required to act expeditiously, reasonably, lawfully and procedurally fairly. He submitted that the failure by the Respondents to respond to his letters dated 20 th April 2024 and 30 th May 2024 amounted to a violation of Article 47 of the Constitution.
24. On the other hand, the Respondents denied of having violated the Petitioner’s constitutional rights because he had not fulfilled the statutory requirements for issuance of an Alcoholic Drinks Licence. They maintained that the application was incomplete due to non-payment of the prescribed licence fees and that the licence was issued immediately after the Petitioner complied with the requirements.
25. This court considered Article 47(1) of the Constitution of Kenya, 2010 which stipulates as follows: -
"Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair."
26. The right to fair administrative action under Article 47 requires public bodies exercising statutory powers to act fairly and communicate decisions affecting persons who submit themselves to administrative processes. A person was entitled to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Having said so, the right to fair administrative action did not relieve an applicant from complying with statutory requirements necessary for the grant of the benefit being sought.
27. In the present matter, this court had already found that the Petitioner had not completed the statutory licensing process because he had not paid the prescribed Alcoholic Drinks Licence fees when he filed the Petition. Although the Respondents did not demonstrate that they communicated this position to the Petitioner after receiving his correspondence, the failure to communicate in the circumstances of this case did not amount to a constitutional violation entitling the Petitioner to the remedies sought.
28. The evidence before this court showed that after the Petitioner paid the prescribed Alcoholic Drinks Licence fees on 30 th September 2024, the Respondents issued the licence on 3 rd October 2024. This demonstrated that the Respondents had not unlawfully refused to licence the Petitioner’s business but had required compliance with the statutory framework.
29. The court was guided by the principle in Anarita Karimi Njeru vs Republic (No 1) [1979] KLR 154, as affirmed by the Court of Appeal in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR , that a party alleging violation of constitutional rights must plead such violations with reasonable precision by identifying the constitutional provisions violated, the manner of violation and the persons affected.
30. Accordingly, the court was not satisfied that the Petitioner had proved, on a balance of probabilities, any violation of his rights under Articles 40, 47 or 50 of the Constitution or a breach of the provisions of the Vihiga County Alcoholic Drinks Control Act or unlawful administrative action by the Respondents.
III. RELIEFS
31. The Petitioner submitted that he was entitled to the reliefs sought because the Respondents had failed to discharge their statutory obligations and violated his constitutional rights. He sought declaratory orders, issuance of the Alcoholic Drinks Licence, compensation and punitive damages, arguing that the Respondents’ failure to process his application affected his business operations and occasioned him loss.
32. The 1 st – 3 rd Respondents submitted that the Petitioner was not entitled to any of the reliefs sought. They argued that the Petition was founded on the mistaken belief that the Respondents had unlawfully refused to issue the licence, yet the Petitioner had not paid the prescribed fees at the time he approached the court.
33. They submitted that the prayer seeking an order compelling issuance of the Alcoholic Drinks Licence had been overtaken by events because the Petitioner had already obtained the licence after payment of the prescribed fees.
34. This court considered the nature of the remedies that the Petitioner had sought herein. It noted that constitutional remedies were discretionary and could only issue where a petitioner had demonstrated that a constitutional right or fundamental freedom had been violated, infringed or threatened.
35. Having found that the Petitioner failed to establish any violation of his rights under the Constitution of Kenya as he had not completed the statutory licensing process at the time he instituted the Petition, and having had due regard to the demonstration by the Respondents that they did not unlawfully refuse to issue the licence but required him to comply with the statutory requirements and the fact that the order seeking to compel the Respondents to issue the Petitioner with an Alcoholic Drinks Licence for the year 2024 had been overtaken by events, this court came to the firm conclusion that the Petitioner was not entitled to the declaratory orders, compensation, punitive damages or any other reliefs sought in the Petition.
IV. COSTS
36. The Petitioner submitted that he was entitled to costs because he had been compelled to institute proceedings due to the Respondents’ failure to determine his application and communicate their decision. He maintained that the Petition was not frivolous because it sought to enforce his constitutional right to fair administrative action.
37. The 1 st – 3 rd Respondents submitted that they were entitled to costs because the Petition was premature and had been filed without the Petitioner complying with the statutory requirements for issuance of an Alcoholic Drinks Licence. They argued that the Petitioner had subjected them to unnecessary litigation despite knowing that he had not paid the prescribed licence fees.
38. Notably, costs were awarded at the discretion of the court as shown in Section 27(1) of the Civil Procedure Act Cap 21 (Laws of Kenya) which provides as follows: -
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”
39. The general principle was that the successful party was ordinarily entitled to costs. However, in constitutional litigation, the award of costs remained a matter of judicial discretion and depended on the circumstances of each case, including the nature of the dispute, the conduct of the parties and whether the proceedings raised matters of public interest.
40. Although the Petition was unsuccessful, this court was not persuaded to grant costs to the government against its own citizen. That would not only be punitive but the same would be immoral to have a government execute a decree for costs against its own citizen.
DISPOSITION
41. For the foregoing reasons, the upshot of this court’s decision was that the Petition dated 20 th July 2024 and filed on 23 rd July 2024 lacked merit and the same be and is hereby dismissed. Each party shall bear its own costs of this Petition.
42. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of July 2026
J. KAMAU
JUDGE
constITUTIONAL petition no e007 of 2024 2