Bar v Nyeri County Alcoholic Drinks Control & Licensing Board & another; Bar (Exparte) [2022] KEHC 3381 (KLR) | Judicial Review | Esheria

Bar v Nyeri County Alcoholic Drinks Control & Licensing Board & another; Bar (Exparte) [2022] KEHC 3381 (KLR)

Full Case Text

Bar v Nyeri County Alcoholic Drinks Control & Licensing Board & another; Bar (Exparte) (Judicial Review Application 4 of 2019) [2022] KEHC 3381 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3381 (KLR)

Republic of Kenya

In the High Court at Nyeri

Judicial Review Application 4 of 2019

FN Muchemi, J

May 5, 2022

IN THE MATTER OF: AN APPLICATION FOR AN ORDER OF CERTIORARI AND IN THE MATTER OF: AN APPLICATION FOR AN ORDER OF PROHIBITION AND IN THE MATTER OF: LAW REFORM ACT SECTION 8 & 9 (CAP 26 LAWS OF KENYA) AND IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACT AND IN THE MATTER OF: SECTION 30 AND 31 OF THE NYERI COUNTY ALCOHOLIC DRINKS CONTROL ACT KENYA AND IN THE MATTER OF: ARTICLE 10, 22, 23, 47, 48 & 50 OF THE CONSTITUTION OF KENYA 2010

Between

Peter Githaiga Mwangi t/a Konyu Bar

Applicant

and

Nyeri County Alcoholic Drinks Control & Licensing Board

1st Respondent

Nyeri County Alcoholic Drinks Control & Licensing Board

2nd Respondent

and

Peter Githaiga Mwangi t/a Konyu Bar

Exparte

Judgment

BriefFacts 1. By way of Judicial Review, the ex parte applicant filed these proceedings through the Chamber Summons dated 3rd July 2019 which was amended on 23rd June 2021 seeking for orders of certiorari to remove into this honourable court and quash the decision of the 1st respondent letter of 28th February 2019 to revoke/cancel his liquor licence and business permit issued for Konyu bar. The application is supported by the Statutory Statements and Verifying Affidavit dated 26th June 2019.

2. In opposition to these proceedings, the respondent filed grounds of opposition dated 16th July 2019 and two Replying Affidavits dated 3rd February 2020 and 7th April 2021.

DIVISIOEx parte Applicant’s Case 3. The ex parte applicant deposes that he is the owner and sole proprietor of Konyu Bar and he states that by a letter dated 28th February 2019, the 1st respondent served the OCS Mweiga Police Station with a letter of closure of business following a purported public participation meeting held on 22nd February 2019 in respect of his premises. On 22nd February 2019, the sub chief of Mweiga area notified the women of Mweiga area that he was donating beans. However no beans were being donated and the sub chief asked the women if Konyu Bar should be closed and the women unanimously responded in the affirmative. The ex parte applicant further states that he was thereafter ordered verbally to close down his business by the OCS Mweiga police station citing letters from the liquor board which he states he was not given a copy.

4. The ex parte applicant states that he called his advocate after the OCS Mweiga paid him incessant visits to his business premises. Further, the OCS delivered to the ex parte applicant’s advocate offices, the closure order which the ex parte applicant states was not copied to him. As such, the ex parte applicant states that the 1st respondent summarily revoked his liquor licence and business permit on the basis of purported public participation forum. The said decision was made without any due regard to the legal requirements for such actions, thereby rendering such actions both substantive and procedural ultra vires. Furthermore, the said decision is prima facie unconstitutional, illegal and is contrary to Article 47 of the Constitution, Fair Administrative Action Act and the Nyeri County Alcoholic Drinks Control Act, 2016. As such, the ex parte applicant prays that the court grants him the orders of certiorari and prohibition.

The Respondent’s Case 5. It is the respondent’s case that the application is misconceived, incompetent, bad in law and untenable. The respondent states that although the ex parte applicant is seeking an order of certiorari to quash the decision to revoke/cancel his liquor licence, he has not annexed any liquor licence. Moreover, the letter dated 28th February 2019 is about the closure of Konyu Bar not cancellation of licence.

6. The respondent contends that as at 3rd July 2019, the ex parte applicant had no licence to operate a bar capable of being reinstated as his licence expired on 30th June 2019. As such, the respondent argues that this application has been overtaken by events.

7. The respondent further states that the ex parte applicant was present at the public meeting where the members of the public resolved through public participation, that his bar should be closed. He was thus given an opportunity to be heard and respond to the accusations by members of the public. As such, the decision to close the bar was not summarily but due process was followed as the ex parte applicant was given a hearing.

8. The respondent further states that the bar was in a residential area which had not been designated for commercial purposes resulting to a protest from members of the public. Moreover, the bar has not been operational since February 2019 and the Public Health department has never inspected the same to approve its operations. As such, the respondent states that the application lacks merit and the same ought to be dismissed.

9. Parties hereby disposed of the application by way of written submissions. A summary of their rival submissions is as follows:-

The Ex parte Applicant’s Submissions 10. The ex parte applicant submits that the procedure for licensing is provided in Section 12 to 19 of the Nyeri County Alcoholic Drinks Control and Management Act of 2014. Cancellation of a licence is contemplated under Section 30 and 31 which provides an elaborate procedure where the licensee is always granted a right to be heard. The ex parte applicant submits that the respondent did not strictly comply with the law regarding the cancellation of the licences. This is demonstrated in the letter dated 28/2/2019 where it is evident the respondents did not follow the laid out procedure for closure under sections 30 and 31. No inspections or reports were ever filed and meeting as per the law called with notice to the licensee to attend himself or with an advocate. It thus follows that public participation cannot be a mode known to law for closure of business and revocation of licence. The ex parte applicant relies on the cases of Egal Mohammed Osman vs Inspector General Police & 3 Others [2015] eKLR and Ridge vs Baldwin [1963] 2 All ER 66 to support his contention. The ex parte applicant further calls upon this court to review that kind of decision and declare it short on procedure, the law is consequently, unlawful. The elaborate procedures under section 30 to 31 were enacted to ensure fairness and the strict observance of the legal and natural justice requirement of the right to be heard. The reports and the committee sittings cannot be substituted by a public participation meeting.

11. The ex parte applicant further submits that the decision was never communicated to him which goes against all rules of fair play. To support his contention, the ex parte applicant relies on the case of Republic vs Public Procurement Administrative Review Board, Shenzoh Instrument Co. Ltd & Another Exparte Kenya Power and Lighting Co. (2019) eKLR. The ex parte applicant states that he only became aware of the decision through protest letters done to the OCS Mweiga Police Station after the said office made raids at his premises. The ex parte applicant further states that he instructed his advocate to write a letter dated 21/3/2019 which was answered on 30/5/2019 where the OCS enclosed the communication dated 28/2/2019. The ex parte applicant reiterates that the communication dated 28/2/2019 was never copied to him. As such, the ex parte applicant submits that by the respondents’ actions, they denied him his right under Section 30(5) which allows the ex parte applicant to appeal a decision of the County Committee to the High Court. The ex parte applicant relies on the case of Board of Education vs Rice [1911] AC 179 to support his contention and submits that the failure by the respondent to communicate the decision was malicious, contra statute and meant to entrench administrative high handedness and unfair practice.

12. The ex parte applicant submits that as regards to the allegation by the respondent that the ex parte applicant did not display a license, the letter dated 28/2/2019 instructed the OCS to take immediate possession of the licence and surrender to the relevant authority which the OCS did and corresponded on the same. The ex parte applicant states that requiring him to produce the license after it was confiscated by the respondent portrays dishonesty on the part of the respondent.

13. On the issue that the license has expired, the ex parte applicant relies on Section 17(5) which bars a person whose licence has been cancelled from applying for a fresh one before expiry of six (6) months from the date of the cancellation. The ex parte applicant reiterates that the decision to cancel was never communicated to him and he only obtained the impugned letter dated 28/2/2019 on 30/5/2019. By such time, the period of 6 months had not even expired. The ex parte applicant relies on the cases of Geothermal Development Company Limited vs Attorney General & 3 Others [2013] eKLR and Republic vs Baringo County Government & Others (Judicial Review No. 4 of 2017 in HC Kabarnet) and submits that the respondent acted ultravires the law and was in violation of the ex parte applicant’s right to fair administrative action. As such, the ex parte applicant prays that the orders sought be granted as prayed.

The Respondents’ Submissions 14. The respondents submit that it is trite law that a judicial review application must be brought in the name of the Republic and prerogative orders issued in the name of the republic. The amended Notice of Motion is brought in the name of “Peter Githaiga Mwangi t/a Konyu Bar” and is described as an exparte applicant. To that extent, the respondent submit that the application is mis conceived and incompetent. To support this contention, the respondents rely on the cases of Mohammed Ahmed vs R [1957] EA 523 and Framers Bus Service & Others vs The Transport Licensing Appeal Tribunal [1959] EA 779 and submits that the amended notice of motion be dismissed as this is not a technical objection as it goes to the root of the amended notice of motion. Moreover, the amended notice of motion is not supported by any statement of facts or verifying affidavit and as such, it is untenable in law.

15. The respondents further submit that on 21st June 2021, the court granted the ex parte applicant leave of seven (7) days to file an Amended Notice of Motion. However, the Amended Notice of Motion was not filed until 2nd July 2021, outside the time granted. No extension of time was sought, and thus the amended notice of motion is not properly before the court and is equally incompetent on this ground.

16. The respondents submit that the ex parte applicant’s license expired on 30/6/2019 and there is no averment in the verifying affidavit by the ex parte applicant that he applied for any licence after 30/6/2019. Thus, this court cannot issue an order for certiorari to quash a decision in respect of which a licence expired and does not exist. Moreover, the license having expired on 30/6/2021, by the time the notice of motion dated 3rd July 2021 was filed, there was no license capable of being reinstated by this honourable court. Thus, the notice of motion dated 3rd July 2019 and the amended notice of motion had already been overtaken by events. Moreover, the ex parte applicant did not pray for the orders of mandamus and thus both applications are incompetent.

17. The respondent submits that the letter dated 28/2/2019 does not talk of any cancellation of a licence but closure of the premises. Pursuant to Article 10(2) of the Constitution, the decision to close the premises was arrived at during public participation and the ex parte applicant was one of the participants and was heard. As such, the decision is binding on him. The public participation was due to the fact that the bar was in a residential area not designated for commercial purposes and the members of the public had protested. The respondent reiterates that the ex parte applicant was duly heard and his views taken into account during the public participation. As such, the respondent states that the application is therefore seeking the wrong orders as the letter dated 28/2/2019 did not cancel the licence but closed the premises. The respondent further submits that the ex parte applicant has a right of appeal pursuant to section 31 (5) of the Nyeri County Alcoholic Drinks Control and Management Act, 2014. The respondent submits that the matter before the court is not cancellation of licence but closure of the bar and thus section 31(5) does not apply. As such, the respondents state that the application lacks merit and pray that the same be dismissed with costs.

Reply to the Respondents’ Submissions 18. The ex parte applicant filed further submissions dated 14th March 2022 and stated that the amended notice of motion dated 23/6/2021 only related to the correction of the sections of the law wrongly quoted and the said amendments did not in any way alter any other issue in the motion dated 3/7/2019. The ex parte applicant further submits that the law is that the application for leave, the statutory statements thereof, the affidavits in support form an integral part of the main motion. Furthermore, in the motion for leave and the original main motion were all phrased with the republic being the ex parte applicant and party. As such, the ex parte applicant prays that the technical error does not embarrass the proceedings herein at all. The original document instituting the cause herein was done correctly in the name of the republic.

19. The ex parte applicant submits that the sum total of the letter dated 28/2/2019 is to cancel the licence and enforce closure of the business. Moreover, the ex parte applicant submits that it matters not that the licence that had been cancelled has expired subsequently, the crucial timeline is when the decision was made to cancel the licence, was it valid and was the decision fair and lawful. The ex parte applicant further submits that a right to a relief is not lost by the mere effluction of time for a licence. It is a right that crystallises on the making of the decision to cancel a licence.

Issues for determination 20. After careful analysis, the main issues for determination are:-a.Whether the Amended Notice of Motion as filed is competently before the court to warrant a determination on merit of the prayers sought;b.Whether the respondent’s decision to cancel the ex parte applicant’s licence should be quashed.c.What remedies are available to the ex parte applicant.The Law Whether the Amended Notice of Motion as filed is competently before the court to warrant a determination on merit of the prayers sought.

21. The respondents contend that the Amended Notice of Motion is misconceived and incompetent as it has not been brought in the name of the republic and further it has not been supported by any statement of facts or a verifying affidavit. Further, the respondents contend that the ex parte applicant was granted leave of 7 days to file the Amended Notice of Motion but instead filed it on 2nd July 2021 which is well outside the time granted.

22. The ex parte applicant on the other hand argues that the application for leave, the statutory statements and the affidavits in support form an integral part of the main motion. Further he states that the motion for leave and the original main motion were all phrased with the republic being the applicant and that the said amendments in the Amended motion did not in any way alter any substantive issue in the motion dated 3/7/2019 but the amendments were in relation to the sections of the law.

23. I have perused the pleadings filed and do note that the original documents filed were done in the name of the “Republic” which was in order. Further, the amendments made in the Amended Motion did not have the “Republic” as a party. However, the omission does not render the motion defective in my view because it does not alter any substance in the motion. In my considered view, the issues raised by the respondents do not go to the substance of the application but are merely technical errors. As such, I rely on Article 159 of the Constitution which calls upon courts to determine cases without undue regard to technicalities. As for filing the Amended motion 4 days late, this is not sufficient reason to strike out the motion bearing in mind the provisions of Section 2A and 2B of the Civil Procedure Rules and Article 159 of the Constitution. In the interests of justice, I hold that the Amended Notice of Motion is properly filed and drafted.Whether the respondent’s decision to cancel the ex parte applicant’s licence should be quashed

24. The three traditional grounds for judicial review being illegality, irrationality and procedural impropriety were explained in the case of Council of Civil Service Unions vs Minister for the Civil Service (1985) AC374, 410 where Lord Diplock spoke of these grounds as follows:-My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’ the second ‘irrationality’ and the third ‘procedural impropriety.’ That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By ‘illegality’ as a ground for judicial review I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (Associated Provincial Picture Houses Ltd vs Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defence of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court’s exercise of this role, resort I think is today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards vs Bairstow [1956] AC 14 of irrationality as a ground for a court’s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision maker. ‘Irrationality’ by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.In cases where a person’s rights or fundamental freedoms are likely to be affected by an administrative decision, the administrator must give the person affected by the decision prior and adequate notice of the nature and reasons for the proposed administrative action; an opportunity to be heard and to make representations; notice of a right to a review or internal appeal against where applicable; a statement of reason; notice of the right to legal representation and right to cross-examine; as well as information, materials and evidence to be relied upon in making the decision or taking the administrative action.

25. In the instant case, theex parte applicant states that his business was shut down and his licence cancelled after public deliberations held on 22/2/2019. He further states he did not receive any communication of the decision to cancel his licence until his advocates wrote to the OCS Mweiga police station. The ex parte applicant contends that the procedure for cancelling a licence under the Nyeri County Alcoholic Drinks Control and Management Act was not followed.

26. I have perused the Nyeri County Alcoholic Drinks Control and Management Act and note that the law on cancellation of a liquor licence is provided for in Sections 30 and 31. Section 30 provides:-1. A sub-county public health officer within whose jurisdiction the premises fall shall report to the sub-county committee any licensed premises which are deficient in their state of sanitary or drainage conditions, or which are in bad repair.2. A sub-county public health officer or any person authorized by him in writing in that behalf may enter and inspect any licensed premises for the purposes of ascertaining whether a report under subsection (1) is required.3. A police officer not below the rank of an inspector shall report in writing to the chairperson of the appropriate sub county committee every case in which a licensee is of drunken habits or keeps a disorderly house, or commits any breach of any of the provisions of this Act or of his licence.4. A police officer not below the rank of inspector may without written authority enter and inspect any licensed premises for the purpose of ascertaining whether a report under sub section (1) is required.

28. Section 31 provides:-1. Upon receipt of a report made under Section 30 the sub county committee shall:-a.Send by registered post or other verifiable mode of dispatch, a copy of the report to the licensee concerned therewith informing him that a meeting of the sub county committee to be held on a date to be specified, but not less than thirty days therefrom, the report will be considered by the sub county committee;b.Send a copy of the report to every member of the sub county committee and to the officer commanding police services in the sub county;c.Inform the sub county public health officer of the police officer as the case may be, of the date upon which the sub county committee will consider the report and require him to attend on the date specified.2. Any licensee concerning whom a report is to be considered may appear in person or by an advocate before the sub county committee.3. The sub county committee, having duly considered the report and having heard the licensee, if he appears, may, if it thinks fit, submit the report to the County Committee for cancellation of the licence of the licensee reported upon.4. Upon receipt of the report under sub section (3), the County Committee may cancel the licence or it may make such order in respect of such licence or the licenced premises specified therein, as in the opinion of the County Committee is necessary.5. Any person aggrieved by the decision of the County Committee upon any such report may within twenty one days appeal against the decision to the High Court.6. The High Court, on appeal under this section, may confirm or reverse the decision of the County Committee.7. If a licence is cancelled or if an appeal under sub section (5), the appeal is dismissed by the High Court, the licensee shall be entitled, on payment of the proportionate part of the fee for the appropriate licence, to a licence of such description and for such period, not exceeding three months, as the sub county committee may deem necessary for the purposes of disposing of the alcoholic drinks or apparatus on the premises, such licence to run from the date of the decision of the County Committee or of the High Court as the case may be.

29. The respondents told the court that the 1st respondent held a meeting with members of the public on 22nd February 2019 to discuss the ex parte applicant’s business. It is said, the public voted to have the bar closed. The members present in the said meeting were the area Chief and his assistant for Mweiga sub-location and the Sub County liquor officer. The minutes indicate that theex parte applicant was asked to speak and he said that they were grudges against his business from other members of the public. After the said meeting there was no communication to the ex parte applicant on the closure of the bar or the deliberations made from the said meeting. The letter by the OCSMweiga Police Station addressed to the ex parte applicant’s counsel was to the effect that he was ordered to close down the ex parte applicant’s business and surrender the liquor licence to the relevant authority. Evidently, the respondents did not follow due procedure laid down in sections 30 and 31 of the Nyeri CountyAlcoholic Drinks Control Act. The respondents did not serve the ex parte applicant with the inspection as required by Section 30 of the Act. Neither was he called for a meeting for the report to be considered by the Sub County Committee. Further, the respondents did not give theex parte applicant a chance to be heard or to appear with an advocate to the said meeting. It is evident that the respondents did not carry out any inspections and file reports pursuant to the law. Further there was no indication that any Sub County Health Public officer or Police officer not below the rank of an inspector visited the said premises to inspect and write a report. There were no complaints by the public of any sanitary, drainage or bad repair issues. Neither were there any complaints of theex parte applicant being drunken and disorderly or that he breached any of the provisions of the act as alleged by the 1st respondent.

30. Moreover, the letter leading to the closure of the premises is dated 28/2/2019 communicated to the Sub County administrator reads:Following public participations meeting held on 22/2/2019 in respect of the alcoholic premises the premises should cease to operate and be closed forthwith.

31. Article 47 of the Constitution provides:-1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

32. The ex parte applicant has a constitutional right to be accorded fair administrative action by the respondents. Theex parte applicant was not accorded his right and as such the respondents violated this right and resulted to a procedure unknown in the relevant law of conducting public participation. Even if such a requirement was provided for, and I state it is not, the same would not meet the standards set by Article 47 of the Constitution. The rules of natural justice were clearly flouted in the so called public participation. There was no invitation or public announcement to hold such a process.

33. In the instant case, the rules of natural justice were blatantly trampled upon. The 1st respondent’s decision to cancel the ex parte applicant’s liquor licence was marred with procedural impropriety as seen with their correspondence dated 28/2/2019.

34. Furthermore, even after the respondents decided to cancel the ex parte applicant’s liquor licence, they did not communicate the same to him. The ex parte applicant only found out this position when his counsel wrote to the OCS Mweiga Police station. Evidently, Counsel for the ex parte applicant wrote to the OCS Mweiga on 21st March 2019 and the OCS Mweiga replied to his letter on 30th May 2019 which is a duration of two months after the closure of the ex parte applicant’s business. In his letter, the OS Mweiga enclosed the decision dated 28/2/2019 which the ex parte applicant states was unprocedural since the law was not followed. The 1st respondent did not adduce any evidence that the said letter had been served on the ex parte applicant. As I have noted the letter dated 28/2/2019 was issued contrary to the procedure provided by the law.

35. The respondents have argued that at the time the ex parteapplicant made the instant application in court his licence had expired and therefore there was no licence to renew. The letter dated 28/2/219 is instructive, it reads:-Ensure the premise is closed and ceases operationTake immediate possession of the license for the subsequent surrender to this office.

36. In response to letter by the OCSMweiga states:The same orders me to ensure the premises is closed and cease operation. The licence of the same has been surrendered to the relevant authority.

37. I have perused the liquor licence in question and note that the licence was valid from 1st July 2018 to 30th June 2019. Thus I do note that the respondents are being untruthful when they say that the orders were to close the business premises and not to cancel the licence. Further, at the time the 1st respondent was cancelling theex parte applicant’s licence which was still valid under the law. The issue which arises is whether the respondents had any authority to cancel or revoke the licence which they did through the letter dated 28/02/2019.

38. In the case of Congreve vs Home Office[1976] QB 629, Lord Denning expressed himself as follows:-But now the question comes: can the Minister revoke the overlapping licence which was issued so lawfully? He claims that he can revoke it by virtue of the discretion given to him by Section 1(4) of the Act. But I think not. The licensee has paid 12 pounds for the 12 months. If the licence is to be revoked- and his money forfeited- the Minister would have to give good reasons to justify it. Of course, if the licensee had done anything wrong- if he had given a cheque for 12 pounds which was dishonoured, or if he had broken the conditions of the licence- the Minister could revoke it. But when the licensee had done nothing wrong at all, I do not think the Minister can lawfully revoke the licence at any rate, not without offering him his money back, and not even then except for good cause. If he should revoke it without giving reasons, or for no good reason, the courts can set aside his revocation and restore the licence. It would be a misuse of power conferred on him by Parliament; and these courts have the authority – and I would add, the duty to correct a misuse of power by the Minister or his department, no matter how much they resent it or warn us of the consequences if we do. Padfield vs Minister of Agriculture, Fisheries and Food [1968] AC 997 is proof of what I say. It shows that when a Minister is given a discretion – and exercises it for reasons which are bad in law the courts can interfere so as to get him back on the right road.

39. In the case of Republic vs Kombo & 3 Others ex parte WaweruNairobi HCMCA No. 1648 of 2005 [2008] 3KLR (EP) 478 the court observed:-The rule of law has a number of different meanings and corollaries. Its primary meaning is that everything must be done according to the law. Applied to the powers of government, this requires that every government authority which does some act which would otherwise be wrong (such as taking a man’s land), or which infringes a man’s liberty (as by refusing him planning permission), must be able to justify its action as authorised by law- and nearly in every case this will mean authorised directly or indirectly by an Act of Parliament. Every act of government power that is to say, every act which affects the legal rights, duties or liberties of any person, must be shown to have a strict legal pedigree. The affected person may always resort to the Courts of law, and if the legal pedigree is not found to be perfectly in order the court will invalidate the act, which he can safely disregard.

40. In my view, the respondents have no authority to close a licensed business or to cancel or revoke a valid licence unless authorised by the law. Evidently, it is clear that the 1st respondent’s action was unlawful, unprocedural and ultra vires.

41. Having found that the respondents’ actions were unlawful, illegal and unprocedural, the issue is what reliefs are available to the ex parte applicant. The ex parte applicant sought judicial review orders of certiorari and prohibition. A useful guide on the appropriate reliefs is found in the decision of the Court of Appeal in Kenya National Examinations Council vs Republic ex parte Geoffrey Gathenji Njoroge (1997)eKLR where the court stated:-Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision….Prohibition 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 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…..Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.

42. The ex parte applicant prays that this court grants orders of certiorari to remove into this honourable court and quash the decision of the 1st respondent by a letter dated 28th February 2019. The valid licence expired on 30/06/2019 and as such this court shall not grant the order of prohibition in vain because the licence has since expired. As such, orders to quash the letter of the respondent dated 28/02/2019 would not serve any useful purpose.

43. It is evident that the ex parte applicant suffered loss and damages as a result of the unlawful and illegal act of the respondents and is under the law entitled to damages though not pleaded.

44. It is my finding that these proceedings are successful in that the ex parte applicant has proved that the respondents acted ultra vires in closing his business and revoking his liquor licence on 28/02/2019 at a time that the said licence was still valid leading to loss of business. This court finds that the respondents are jointly and severally liable to compensate the ex parte applicant in way of damages for the period of four (4) months that the business was closed.

45. I therefore enter judgment in favour of the ex parte applicant against the respondents jointly and severally in the following terms:-a.Compensatory damages of Kshs. 300,000/=.b.Costs of the suit and interest at court rates.

46. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 5TH DAY OF MAY, 2022. F. MUCHEMIJUDGERuling delivered through videolink this 5th day of May, 2022.