REPUBLIC v PERMANENT SECRETARY MINISTRY OF STTE FOR PROVINCIAL ADMINISTRATION AND INTERNAL SECURITY & 2 others Exparte ROSE WANGARI KINYUA & another [2011] KEHC 995 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

MISC. APP. NO. 61 OF 2011 (JR)

IN THE MATTER OF LEAVE TO APPLY FOR ORDERS OF PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF THE ALCOHOLIC DRINKS CONTROL ACT, 2010

AND

IN THE MATTER OF MANUFACTURE AND DISTRIBUTION OF ALCOHOLIC DRINKS

IN THE MATTER OF LICENSING UNDER THE ALCOHOLIC DRINKS

AND

IN THE MATTER OF LICENSING UNDER THE ALCOHOL DRINKS CONTROL ACT

REPUBLIC..................................................................................................APPLICANT

VERSUS

THE PERMANENT SECRETARY MINISTRYOF STTE FOR PROVINCIAL

ADMINISTRATIONAND INTERNAL SECURITY..................................1ST RESPONDENT

THE COMMISSIONER OF POLICE....................................................2ND RESPONDENT

THE PROVINCIAL COMMISIONERCENTRAL PROVINCE...............3RD RESPONDENT

EXPARTE

ROSE WANGARI KINYUA

DAVID MUNENE KINYUA JR

DAVID MUNENE KINYUAT/A ROSKIN AGENCIES..................................APPLICANTS

R U L I N G

The Applicant’s prayer for Leave vide his exparte application (Chamber Summons) dated 22/9/2011 was granted by consent.

The issue of the Leave operating as stay was argued by both learned Counsels. Mr. Okwaro says what the Applicants manufacture does not fall under section 31(1) (2a & b) of the Alcoholic Drinks Control Act. He wants this court to allow the Applicants to continue packaging “Opaque bear and the wine” their style and distributing them. The State says its not known what the contents are.

One of the annextures filed herein shows that Lazarus Chomba Gichima has been charged for selling the Kabuga & Viena in plastic bottles instead of glass. Section 31 specifically talks of the alcoholic drink known as Changaa or any other distilled alcoholic drink. The licences availed to the court do not explain how these two kinds of drinks should be and/or are packaged.

It’s the assertion by the Applicant that these 2 drinks are fermented and not distilled and hence not subject to section 3(2) (b) of the Act.

This too is not in the Licences so I take it to be a matter for real evidence. There is nothing from KEBS to confirm what they are. This will either be dealt with in the Criminal case or during the hearing of the substantive application.

The Respondents are however cautioned that as they discharge their duty they should not be seen to harass the Applicants or any other law abiding citizens.

The prayer for leave to operate as stay is therefore not granted.

DATED, SIGNED AND DELIVERED AT EMBU THIS 18th  DAY OF NOVEMBER 2011.

H. I ONG’UDI

J U D G E