Njoroge & 19 others v County Government of Nakuru & another [2023] KEHC 24876 (KLR)

Njoroge & 19 others v County Government of Nakuru & another (Petition E12 of 2023) [2023] KEHC 24876 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24876 (KLR)

Republic of Kenya

In the High Court at Nakuru

Petition E12 of 2023

HM Nyaga, J

November 6, 2023

Between

Burton Njoroge

1st Petitioner

Simon Kamau

2nd Petitioner

Ruth Achieng

3rd Petitioner

Jane Wanjau

4th Petitioner

Lucy Wanjiku

5th Petitioner

Anne Wangare

6th Petitioner

Hannah Wanjiru

7th Petitioner

Mary Njeri

8th Petitioner

James Ngugi

9th Petitioner

Dorcas Akinyi

10th Petitioner

Emaah Mwari

11th Petitioner

Benard Kosgei

12th Petitioner

Margaret Njeri

13th Petitioner

Paul Kuria

14th Petitioner

Jane Nduta

15th Petitioner

Jeniffer Ngeta

16th Petitioner

Henry Kibet

17th Petitioner

Nderitu Mureithi

18th Petitioner

Elizabeth Wambui

19th Petitioner

Ann Nyawira

20th Petitioner

and

County Government Of Nakuru

1st Respondent

Nakuru County Office Of The Directorate Of Alcoholic Drinks And Regulations

2nd Respondent

Ruling

1. The Petitioner presented a petition dated 13th June,2023.

2. The Petition is brought under Articles 2,3 (1),10,10(2)(A)(B) &(C) 19, 20, 21, 22, 23(1) & (3), 27(1) & (2) ,28, 47, 165(3) (B) (D) (II) & (III), 258(1) & 259(1) of the Constitution of Kenya,2010, Rules 11,12,13,20 & 21 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Procedure Rules,2013, Sections 4,5(1) and 6 of the Fair Administrative Act,2015 Laws of Kenya, Section 87 of the County Government Act,2012.

3. The petition seeks the following reliefs from the court: -I. A Declaration that the Petitioners’ fundamental rights and freedoms under Articles of the Constitution have been contravened and or likely to be contravened and violated by the Respondents.II. An Order of Mandamus ordering the Respondents to issue the Petitioners with trading permit and licence.III. A declaration that the Notice dated 8th June,2023 given to the Petitioners is illegal, null and void.IV. Costs of the Petition.V. Any other orders, writs and directions the Honourable Court considers appropriate and just to grant for purposes of the Petitioner’s Constitutional Rights.

4. The petition is based on the grounds set out therein and supported by an affidavit sworn by Nderitu Mureithi, the 18th Petitioner on his behalf and on behalf of co-petitioners.

5. Contemporaneously with the Petition, the Petitioners filed a Notice of Motion, under certificate of urgency dated 13th June, 2023 seeking inter alia that pending the hearing and determination of the main suit, this Honourable Court be pleased to issue an order prohibiting the Respondents or through their agents from evicting the Petitioners/Applicants from their premises of business.

6. The Application is predicated on the grounds on its face and supported by an Affidavit sworn by the 18th Petitioner. The said affidavit largely adopts the averments contained in the Petition.

7. In a nutshell, the petitioners state that: - They are business persons within Nakuru town dealing in liquor and alcoholic drinks sales as wines and spirits shops.

That on 8th June,2023 they were served with a NOTICE that required them to relocate their business elsewhere.

That they were never allocated or shown alternative place for relocation of their businesses.

They were the only persons issued with the NOTICE that required them to relocate and other business persons dealing in the same trade but located in permanent buildings were spared.

There was no public participation or consultation before the Respondent issued the NOTICE.

The Respondents have since refused to issue them with trading licences and permits even though they are willing and ready to pay for the same.

8. The petitioners averred that the action of the Respondents to issue the aforesaid Notice to them to relocate and leaving other business persons to continue operating was discriminatory and in violations of their rights envisaged under Article 27(1) and (2).

9. They stated that the actions of the Respondents of coming up with the policy culminating into the decision to relocate them from their place of business without public participation or consultation infringed Articles 10(2)(a)(b) and (c).

10. It was their averment that the Action of the Respondent of refusing to accept their pay for trading permits licences infringed their rights to social security provided under Article 43(e).

11. That the actions of the Respondents not to involve and give them written reasons in decision making where their rights and fundamental freedoms were likely to be affected violated Article 47(2) of the Constitution.

12. They further averred that the actions of the Respondent to come up with decision requiring them to relocate elsewhere without public participation or consultation is contrary to the dictates of Section 87(a) and (b) of the County Government Act.

13. In response to the Petition and the Application, the 1st Respondent filed a Notice of Preliminary Objection (P.O) and Supplementary Notice of Preliminary Objection dated 13th July, 2023 and 17th July,2023 respectively seeking for the Petition and Notice of Motion to be struck out for the reasons inter alia: -i.The petition and the Application are premature since the petitioners have not exhausted the mechanisms envisaged by Sections 9, 10 and 17 of the Nakuru County Alcoholic Drinks Control Act of 2014 and hence this Honorable Court lacks jurisdiction.ii.The general notice placed before this Honourable Court by the Petitioners was issued by Nakuru East Sub-County Liquor Committee.iii.None of the Petitioners has a current business permit or license.iv.The 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th and 20th Petitioners have not placed any material before this Honourable Court establishing any relationship with the 1st respondent and are total strangers.v.It is imperative that where a dispute resolution mechanism exists outside court the same be exhausted before the jurisdiction of the courts is invoked.vi.Article 159(2) (c) of the Constitution of the Republic of Kenya envisages courts to embrace alternative dispute resolution mechanism.

14. The Preliminary objection was canvassed through Written Submissions.

1ST Respondent’s Submissions 15. The 1st Respondent submitted that the mandate of the Sub-County Alcoholic Drinks Regulation Committee is to hear and determine in the first instance applications made to it by an applicant seeking a licence under Section 11(8) of the Nakuru County Alcoholic Drinks Control Act.

16. The 1st respondent argued that the Nakuru County Alcoholic Drinks Control Act of 2014 outlines a clear procedure under Section 17 to be used by an Applicant whose application for renewal or issuance of licence has been denied by the Sub County Committee.

17. The 1st Respondent submitted that Section 10 and 17 of Nakuru County Alcoholic Drinks Control Act of 2014 ousts the jurisdiction of this court and posited that where there is clear procedure for the redress of a grievance provided for by an applicable statute, it would be inappropriate for this court to proceed with the instant application and petition before the said mechanism has been exhausted. In support of this proposition reliance was placed on the cases of Speaker of the National Assembly v James Njenga Karume [1992] eKLR & Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR.

18. The 1st Respondent urged the court to allow the P.O and dismiss the petitioner’s Application and petition with costs.

Petitioners’ Submissions 19. On whether the Preliminary Objection is merited, the petitioner submitted that the P.O by the 1st Respondent does not raise any point of law allegedly contravened by them. That points 2,3,4,5 and 6 are not points of law and are contestable facts that needs to be litigated and proved.

20. In support of their submissions reliance was placed on the cases of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969) EA 696; John Musakali vs. Speaker County of Bungoma & 4 others [2015] eKLR; & Anthony Miano & others v Attorney General & others [2021] eKLR.

21. On whether the exception to the doctrine of exhaustion has been met, the Petitioners submitted that there are no mechanisms envisaged under Section 9 of the Nakuru County Alcoholic Drinks Control Act to resolve their dispute.

22. They contended that the palpable fear of not getting a fair hearing before people so determined to get rid of them from their business made them decide not to exhaust the mechanisms and instead run to this court for protection of their fundamental rights.

23. They argued that committee can only handle specific issues provided for under Section 9 of the said Act which do not include eviction and it is only this court that they can find protection of their constitutional rights.

24. The petitioners submitted that this court should consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interest the party wishes to advance in a suit must not be ousted.

25. The petitioners posited that statutory provisions ousting court’s jurisdiction must be construed restrictively. In support of this position, reliance was placed on the case of Night Rose Cosmetics [1972] Ltd v Nairobi County Government & 2 others [2018] eKLR.

26. The petitioners argued that the doctrine of exhaustion does not apply as a blanket rule and a party must be exempted from the requirement to exhaust available remedies where exceptional circumstances arise. For this proposition, reliance was placed on the case of Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others [2017] eKLR, Kenya Revenue Authority v Keroche Industries Ltd. - Civil Appeal No 2 of 2008 and Section 9(4) of the Fair Administrative Action Act.

27. For the definition of exceptional circumstance, the petitioners relied on the case of Krystalline Salt Limited v Kenya Revenue Authority [2019] eKLR where the court defined exceptional circumstance as follows: -“The Fair Administrative Action Act does not define ‘exceptional circumstances.’ However, this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy”

28. The Petitioners urged this court to dismiss the objection.

Analysis & Determination 29. This court has considered the Preliminary Objection, petition and Application in question. In my considered view the following issues arise for determination: -a.Whether the Preliminary Objection by the 1st Respondent meets the fundamental threshold of a preliminary objectionb.Whether the Court is barred by the doctrine of exhaustion from entertaining the dispute.c.Who should bear the costs of the Application and the Petition?

30. A Preliminary Objection was defined by Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 as follows:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law and it is argued on the assumption that all the facts pleaded are correct. It cannot be raised if any fact needs to be ascertained or if what is sought is the exercise of judicial discretion.”

31. The Court endorsed the principle in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors [1969] EA 696, in the case of Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR [paragraph 31]:“To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696:‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.”

32. The Joho decision has been subsequently cited by this Court in Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, Civil Application No. 23 of 2014, [2014] eKLR; and in Aviation & Allied Workers Union Kenya vs Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR, in which the Court further stated [paragraph 15]:“Thus a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”

33. Applying the foregoing precedents, I am persuaded that save for grounds (i) (v) and (vi), the grounds raised in the objection by the petitioners are not pure points of law to be canvassed by way of a Preliminary Objection. These three grounds are related and they touch on whether this court is barred by the doctrine of exhaustion from entertaining the dispute herein. This issue is therefore capable of terminating the Petition if allowed.

34. The other grounds would require copious explanations and probing of evidence to unravel the correct position and are therefore not within the realm of what constitutes a preliminary objection.

35. The 1st Respondent submitted that the doctrine of exhaustion requires parties to pursue and complete all available administrative procedures and avenues before seeking judicial intervention. In this regard this court was referred to the cases of Speaker of the National Assembly v James Njenga Karume (supra) & Geoffrey Muthinja & another vs Samuel Muguna Henry & 1756 others (supra)

36. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR. The Court stated as follows: -“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.This is Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

37. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -“59. . However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics [1972] Ltd v Nairobi County Government & 2 others [2018] eKLR.62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”

38. Likewise, in Republic vs National Environment Management Authority (NEMA) [2011] eKLR the Court of Appeal restated this principle thus after reviewing the authorities on the point:“The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it - see for example R v Birmingham City Council,ex parte Ferrero Ltd.Case. The learned trial judge, in our respectful view, considered these strictures and came to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute. With respect we agree with the Judge."

39. The 1st Respondent submitted that Sections 10 & 17 of the Nakuru County Alcoholic Drinks Control Act ousts the jurisdiction of the Court as the petitioners did not utilize and exhaust the internal complaints resolution mechanisms for review/appeals against the Sub County Alcoholics Drinks Regulation Committee before filing this petition.

40. Section 10 of the said Act establishes the County Alcoholics Drinks Regulations Administrative Review Committee (hereinafter referred to as ‘the Review Committee’) which shall be responsible for reviewing, on appeal decisions made by a Sub-County Alcoholics Drinks Regulation Committee.

41. Section 17 of the said Act provides as follows: -“17. (1)An applicant whose application for a new licence, to renew or transfer a licence has been refused or cancelled may within fourteen days of such refusal, request in writing the review of such refusal to the Review Committee.

(2)A person aggrieved by the decision of the sub county committee to grant a new licence or to renew a licence may request in writing the review of such decision.(3)Upon receipt of a request under this section, the Review Committee shall notify the sub-county committee of the pending review.(4)The Review Committee shall within twenty-one days summon the person aggrieved to appear before it in person to defend the request and thereafter deliver its decision. (5) The Review Committee may- (a) dismiss the request for review if in its opinion, the request is frivolous or vexatious; (b) uphold the decision of the sub-county committee; (c) annul the decision of the sub-county committee (d) give directions to the sub-county committee with respect to any Action to be taken; (e) make any other declaration as it may deem fit.”

42. In the instant case, it is clear that the petitioners were aggrieved by the decision of the Respondents to relocate their business elsewhere. It was their contention that the notice requiring them to relocate their business was discriminatory and was issued without public participation or consultation.

43. It is also clear from the above sections that the Petitioners bypassed the available forum that would have dealt or resolved their issues. The petitioners admit as much in their submissions. Their position for doing so is that they are apprehensive they might not get quality audience before the administrative body that flouted Section 9(4) (a) of the Act by failing to conduct public participation. However, they have neither led any evidence to prove the existence of exceptional circumstances nor applied for exemption from the court as provided under section 9 (4) of the Fair Administrative Action Act.

44. I have also analyzed the facts of the petition in light of the authorities above and the exceptions to the exhaustion doctrine as set out in William Odhiambo Ramogi & 3 others vs Attorney General & 4 others(supra) and it is my view that petition does not fall within the said exceptions. The Petitioners have also failed to demonstrate that the mechanism provided was not readily available to them or that the said avenue would not have served as a way to uphold the values enshrined in the Constitution and the law.

45. For the foregoing reasons, and in agreement with the respondent, I find the petition offends the doctrine of constitutional exhaustion.

46. Although not raised by the parties, I have also considered the matter under the doctrine of constitutional avoidance. What is constitutional avoidance?The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR stated as follows:-“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue,that is the course which should be followed.”Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v Tennessee Valley Authority, 297 U.S. 288, 347 [1936].”

47. In Sumayya Athmani Hassan v Paul Masinde Simidi & Another [2019] eKLR the Court of Appeal stated:“… Where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case (supra).In conclusion, we find that the alleged unlawful interdiction and termination of a contract of employment was not a constitutional issue and thus the petition did not disclose a cause of action anchored on the Constitution. Accordingly, the petition being incompetent, the court acted in excess of jurisdiction and erred in law in determining the petition. …”

48. The court in KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) stated that Constitutional avoidance has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved.

49. Flowing from above, it is clear that one of the circumstances which would deprive the petitioner hearing before a constitutional court is the doctrine of constitutional avoidance.

50. As I have stated, if the petitioners were aggrieved by the alleged actions of the respondents under the Act.

51. To me, this is a licensing issue that ought to be dealt with under the Act, and not as a Constitutional petition. Whereas all our laws derive their authority from the Constitution it is not every action that is to be brought as a constitutional petition. That would be rendering the laws impotent.

52. If the petitioners feel that the decision in question was wrong or unprocedural, then they had an option to file an application for Judicial Review. Judicial Review is the avenue provided by the Constitution and the Fair Administrative Actions Act to check on excesses, impropriety or even correctness of the decision of any administrative body or tribunal.

53. For the above reasons, I find this petition to be misconceived and is struck out.

54. I will now deal with the issue of costs. Section 27 of the Civil Procedure Act provides: -“(1)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; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: 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.”

55. A reading of Section 27 indicates that it is considered trite law that costs follow the cause/event. Sir Dinshah Fardunji Mulla in his book The Code of Civil Procedure, 18th Edition, 2011 reprint 2012 at 540, states that costs must follow the event unless the court, for some good reasons, orders otherwise.

56. It is thus trite law that the issue of costs is a discretionary award, that is awarded to a successful party. In the case of Party of Independent Candidate of Kenya & another vs Mutula Kilonzo & 2 others [2013] eKLR which cited with approval the words of Murray C J in Levben Products v Alexander Films (SA) (PTY) Ltd 1957 (4) SA 225 (SR) at 227 that it stated:“It is clear from authorities that the fundamental principle underling the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion ... But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at.... In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so."

57. The import is that a successful party is entitled to costs unless he or she is guilty of any misconduct or there exist some other good reasons and or cause for not awarding costs to the successful party.

58. In Reid, Hewitt & Co v Joseph, AIR 1918 Cal 717 and Myres v Defries [1880] 5 Ex D 180, the house of Lords noted that: -“The expression ‘costs shall follow the event’ means that the party, who, on the whole, succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it.”

59. Although the petitioners came to this court before they had exhausted the legal mechanisms provided, they felt wronged. Their petition has been found wanting due to the manner that they came to court, and not in the substance of their case. The 1st respondent, being successful in the objection, would ordinarily be entitled to costs. However I am of the view that this is a matter that the court ought not burden the petitioners further, as they genuinely felt wronged by the denial of their liquor licences.

60. In Valentine Odhiambo & 2 others v HF Development & Investment Ltd & another [2021] eKLR, in regards to costs the court opined as follows:-“The Court wishes to express itself on the issue of costs. Although the Court rules that the petition offends the doctrine of Constitutional avoidance, and will indeed proceed to strike it out for being an abuse of the process of Court, it does not mean that the Court does not have the jurisdiction to adjudicate over the issues between the Petitioners and the Respondents when they are brought in the proper form. The Court agrees with the statement by Odunga J in the Martin Lemaiyan Makoosio Case (Supra). The Court’s finding is only that the dispute ought to have been brought as an ordinary Civil Suit not a constitutional petition. For this reason the Court will not condemn the petitioners to pay the costs of the suit. The striking-out has also happened early enough even before the close of pleadings.”

61. Guided by this decision, I think that it is only fair that each party bears their own costs.

62. In summary, I proceed to make the following orders;i. The Petition together with the Notice of Motion dated 13th June,2023 are hereby struck out.ii. Each party to bear their own costs.

Dated, Signed & delivered in Nakuru this 6th day of November, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A JenifferMiss Mungai for Orege for 1st respondentMr Matoke for applicants