Thachuma Bar Owners Self Help Group v Tharaka Nithi County Government, Director of Public Prosecution & Attorney General [2019] KEHC 7701 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CONSTITUTIONAL PETITION NO. 3 OF 2018

IN THE MATTER OF ARTICLE 22 (1), (2); 54(2); 55(B) 199(1) OF THE CONSTIUTUTION OF KENYA 2010 AND SECTION 8(2); 25(2) AND SECTION 32(4) OF THE COUNTY GOVERNMENT ACT 2012

AND

IN THE MATTER OF DENIAL VIOLATION AND INFRINGEMENT OF THE CONSTITUTIONAL RIGHTS AND FUNDAMENTAL FREEDOM OF THE APPLICANTS

AND

IN THE MATTER OF THARAKA NITHI COUNTY APPOINTMENT OF THE COUNTY LIQUOR LICENSING COMMITTEE PURSUANT TO SECTION 4(2) OF THE THARAKA NITHI COUNTY ALCOHOLIC DRINKS ACT, 2015

BETWEEN

THACHUMA BAR OWNERS SELF HELP GROUP...............PETITIONER

VERSUS

THARAKA NITHI COUNTY GOVERNMENT...............1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION......................2ND RESPONDENT

ATTORNEY GENERAL.....................................................3RD RESPONDENT

J U D G E M E N T

1. The Petitioner herein Thachuma Bar Owners Self Help Group has sued the  County Government of Tharaka Nithi, (1st Respondent), The Director of  Public Prosecution (2nd Respondent) and the Attorney General  (the 3rd Respondent) on the basis that the 1st Respondent has been arresting its  members and charging them in court on various offences under Tharaka  Nithi Alcoholic Drinks Control Act 2013 which statute they have impugned  claiming  that it is unconstitutional and it has not been published.  They have  also faulted the constitution of the Liquor Licensing Committee stating that  the same is unconstitutional and not representative enough and that it was  appointed by the Deputy County Governor contrary to Section 32(4) of the  County Government Act 2012.

2. The Petitioners are seeking the following reliefs;

i. A mandatory injunction compelling the 1st Respondent to put in place a modified County Committee to deal with Liquor Licensing Control and Regulations under the Alcoholic Drinks Control Act, 2010 as per Section 8(12) of the County Government Act.

ii.That the operation of Tharaka Nithi Alcoholic Drinks and Control Act, 2015 be stayed until the Act is published in the Kenya Gazette as envisaged by Article 199(1) of the Constitution of Kenya 2010.

iii. That a prohibitory injunction do issue prohibiting the 1st Respondent its agents and servants from instituting and/or conducting any criminal prosecution under the Alcoholic Drinks Control Act 2010 and the Regulations thereunder in respect of the issues of licensing until the 1st Respondent puts in place the necessary County Committee (s) to issue licenses under the Act herein envisaged by the provisions of Section 8 (2) of the County Government Act.

iv. A prohibitory injunction to prohibit the 1st, 2nd and 3rd Respondents or their agents from arresting, detaining or preferring charges  over liquor licences against any person who was licenced to operate under Alcoholic Drinks Control Act 2010, until the Licensing Committee is created.

v. An order to compel the 1st Respondent to furnish the Petitioner with a copy of the gazette in which the Tharaka Nithi County Alcoholic Drinks Control Act No.6 of 2015 was published, a copy of the gazette in which the licensing regulations pursuant to the same were published, a copy of the gazette where the Liquor Licensing Committee was published, information leading to establishment of the County Licensing Committee and a copy of the Tharaka Nithi Alcoholic Drinks  Control Act No. 6 of 2015.

vi. A declaration that the provision of Section 25 (2) of the County Government Act No.17 of 2012 is inconsistent with the provisions of Article 199(1) of the Constitution to the extent of the use of the words "whichever comes earlier" and hence invalid.

vii. Costs.

3. The Petitioner's case

The Petition is supported by the affidavit of Mercy  Kainda who states that  she is the Secretary of the Petitioner and a businesswoman dealing in  alcoholic beverages.  Her main complaint is that the Liquor Licensing Committee was appointed without due regard to the law and in particular she  states that the same was done without observing the guidelines on  representation of gender, youth and persons with disabilities.  She also  complains that there was no public participation.

4. In their written submissions made through learned counsel Mr. Ashford  Gerrard Riungu Advocate, the Petitioners have insisted that the County  Alcoholic Control Act was not gazetted properly in accordance with the law  and that the same is unforceable.  They have faulted the charges preferred    against their members on the basis of the impugned statute insisting that the  same are misconceived.

5. They have also taken issue with the appointment of Liquor Licensing  Committee stating that the gazette notice was irregularly signed by the  Deputy Governor Hon. Francis Kagwima.  It is their view that the same  violated Article 179(5) of the Constitution of Kenya and Section 32 (4) of  the County Government Act 2012 which in their view  limits the powers of  a Deputy Governor as he cannot nominate, appoint or dismiss any officer  assigned any duty by the Governor.

6. The Petitioners have, in response to the questions on locus standi posed by  Respondent, stated that Article 258 of the Constitution, the law gives them the  leeway to institute this proceedings and have relied on the decision of the  case of Michael Osundwa Sakwa -vs- Honourable the Chief Justice and Another [2012] eKLR where the court held that the current constitutional  dispensation permits the court to be liberal in interpreting the question of  locus.

7.  The 1st Respondent's case

The first Respondent through a Replying Affidavit sworn on 19th  September, 2018 by Aggrey Karani Riungu the Chief Officer Department of  Trade, Industry and Cooperative Development has opposed this petition.

8. The  1st Respondent has deposed that Article 199(1) of the Constitution has  not been violated as Tharaka Nithi County Alcoholic Drinks Control Act,  2015 was gazetted on 25th August, 2015 by the Government printer,  through  County Gazette Notice No.6626 dated 17th May, 2018.

9. The 1st Respondent has further stated that there was no violation of Section  32(4) of the County Government Act 2012 as the liquor Licensing  Committee was appointed by the County Executive Committee member in charge of trade and industry as provided under Section 4(1) of the Tharaka  Nithi County Alcoholic Drinks Control Act 2015.  It is further contended  that the County Executive Committee doubles up as the Deputy Governor.

10. The 1st Respondent has also denied violating Article 54(2), 55(b) and 27(8)  of the Constitution asserting in the appointment of the Liquor Licensing  Committee persons representing the Youth and Women were appointed to  the Committee.

11. The 1st Respondent has contended that the petitioner has not pleaded any  particulars of infringements of their rights and to that extent the petition is   bad in law.

12. In its written submissions done through learned counsel Mr. Dennis  Muthomi Advocate, the 1st Respondent contends that a self-help group lacks  capacity to sue in its own name adding that the Petitioner did not attach any evidence to show that its members are engaged in bar operations.  It is  further submitted that the charge sheets attached to their written submissions  indicate that the persons charged were in relation to manufacture and selling  of illicit brews which indicate that they are unlikely to be bar owners.

13. The 1st Respondent has also referred to the decision in Michael Osundwa  (supra) and contended that the court also observed that liberal interpretation  of locus standi does not mean that locus standi is no longer relevant in  Constitutional Petitions and that if the courts permit proceedings where the  petitioner has completely no business brining the matter, then the court  would also be abetting abuse of court process.

14. The 1st Respondent has termed the petition vexatious and misleading  pointing out that the appointment of Liquor Licensing Committee was done  by the County Executive Committee member in charge of Trade and  Industry.

15. It is the 1st Respondent's contention that the Petitioners have not clearly  shown how the 1st Respondent has violated their rights, stating that they  have no power to arrest and charge people and that in any event persons  arrested were arrested  for manufacturing illicit brews and there are no rights  infringed in the circumstances.

16. The 1st Respondent has also denied that the county Legislation violated  Article 199(1) of the Constituition submitting that Section 25(2) of the  County Government Act 2012 provides that County Legislation shall come into effect 14 days after publication in the Kenya Gazette or County  Gazette whichever comes earlier.  It has relied on the case of Africa Rafiki Ltd and 2 Others -vs- Nairobi City County Government and 3 Others  where Lenaola J was of the view that the Nairobi City County Betting  Lotteries and Gaming Act 2014 which had been published as a special issue  of the Nairobi County Gazette Supplement was in compliance with Article  199(1) of the Constitution.

17.  2nd Respondent's Case

The 2nd Respondent has also opposed this petition through grounds of  opposition dated 19th September, 2018 and the written submissions.

18. The 2nd Respondent has also faulted the petition filed for lacking specificity  in relation to the alleged infringements of the constitutional rights.

19. The 2nd Respondent has contended that its presence in court in this petition is  unnecessary as in its view their mandate under Article 157 of the  constitution and Section 4 of the Office of the Director of Public  Prosecution  Act is to prefer charges and present criminal cases.

20. In its written submissions the 2nd Respondent contends that the petition  herein is incurably defective and on this score it has relied on the case of  Zubeda Waziri -vs- Speaker of the National Assembly and 4 others where the court stated that a Constitutional Petition must be specific and clear and  state the particulars of the acts complained of and that it is important  for a  party to filed good and proper pleadings.  The 2nd Respondent has contended  that the petitioners have listed various articles of the constitution  in the head of the petition but left the violations unspecified  against the  Respondents.  The 2nd Respondent has cited Rule 10(2) (d) of the  Constitution of Kenya (protection of Rights and Fundamental Freedoms)  Practice and Procedure Rules 2013) which makes it a mandatory  requirement  that the nature of the injury caused or likely to be caused to the  petitioner be disclosed.  It also makes it mandatory to disclose details  relating to any civil or criminal cases related to the petition.

21. The 2nd Respondent has pointed out that the petition has no supporting  documents or evidence  and that the documents annexed to the application  were never canvassed.  It has further faulted the annextures to the written  submissions stating that the same was frowned upon in the Court of Appeal  case of Douglas Odhiambo Apel and Another -vs- Telkom Kenya Ltd (2014] eKLR.

22. The 2nd Respondent has justified the prosecution of the cases it is  prosecuting stating that it is carrying out its mandate as the persons charged  in their view committed an offence known in law.

23.  The3rd Respondent's Case

The 3rd Respondent filed a Preliminary Objection to this petition dated 31st  July, 2018  which Preliminary Objection was to the effect that the Petitioner  has no locus standi to bring this petition.

24. The 3rd Respondent in its written submissions has contended that the law  under which the Petitioner is registered  is not clear stating  that the affidavit  in support of the petition does not attach any authority by the members to the  Secretary to plead on their behalf and that the constitution of the group has  not been provided.

25. It is the 3rd Respondent's case that unincorporated groups such as the  Petitioner cannot sue in their own names  or through its members and has  cited the provision of Article 22(2) (b)  of constitution and the decision in  Kipsiwo Community Self Help Group -vs- AG and 6 Others [2013]eKLR  to back up the contention.  It has also contended that the Petitioner has not disclosed locus standi.

26. The 3rd Respondent has denied that the County Legislation impugned by the  Petitioner is not enforceable or that it contravened Article 199(1) of the  Constitution stating that the impugned  legislation was properly gazetted and  has cited Article 260 which defines a 'gazette' as "Kenya Gazette published  by the authority of the National  Government or a supplement to the  Kenya Gazette". It has also cited the provisions of Section 25(2) of the  County Government Act  which states "subject to subsection (3) the County  Assembly Legislation  shall come into force on the 14th day after its  publication in the County Gazette & Kenya Gazette whichever comes  earlier, unless the legislation  stipulates a different date or time at which it  shall  come into force."-

27. The 3rd Respondent in a twist has also poked holes on the provisions of  Section 25(2) of the County Government, contending that the use of words  "whichever comes earlier" places that provisions at variance with Article  199(1) which places Kenya Gazette higher than County Gazette which  appears not to be the case with Section 25 (2) of the County Government  Act which places the two gazettes at par with each other.  In its view the  County Legislation can only gain legitimacy after publication in the Kenya  Gazette or as a supplement to the Kenya Gazette.  This position appears to  land credence to the petition herein

28.  The Interested Party's  Case

The Interested Party in this case, Tharaka Nithi  Bar Owners Self Help  Group has supported this petition vide an affidavit  sworn on 29th October,  2018 by one Nicholas Mutua Justine Gitari who states that he is the  chairman for the said Interested Party.

29. The Interested Party has adopted the petition and the submissions made by  the Petitioner adding that the current Liquor Licensing Committee of the 1st  Respondent is unconstitutional because one member Mr. M' Muturuchiu  Murungi is a bar owner who runs a club known as Eagles Club and his  appointment was in breach of Section 8(4) of the Tharaka Nithi County  Alcoholic Control Act 2015.

30. The Interested Party has also contended that the committee was formed in  contravention of court order issued vide Judicial Review No. 5 of 2016  which had suspended the operations of the committee.  It is their contention that the order was in force until 14th June 2018 while the committee was  appointed on 17th May, 2018.  They have further added that there was no  public participation and that persons with disabilities were not engaged.

31. In their written submissions the Interested Party has contended that the  Respondents opposition of the petition was based on technicalities and have  urged this court to consider that the Respondent's illegal action would result  to many people losing their businesses and livelihoods.

32.  Analysis and Determination

This court has considered this petition and the respective responses  to the same.  The following issues in my view are up for determination namely:

i. Whether the Petitioner has locus standi.

ii. Whether Tharaka Nithi County Alcoholic Drinks Control Act 2015 is lawful and enforceable.

iii. Whether Section 25(2) of the County Government Act No.17 of 2012 is inconsistent with Article 199(1) of the Constitution.

iv. Whether the County Liquor Licensing Committee was properly and lawfully constituted.

33. (i) Locus standi:

According to Black's Law Dictionary,10th edition at page 1084, Locus  standi  is defined as,

" Place of standing.  The right to bring an action or to be heard in a    given forum."

In the case of Afred Njau & 5 Others -vs- City Council of Nairobi [1983] eKLR the court adopted the following definition.

" The term locus standi means a right to appear in court and conversely as is stated in Jowitt's Dictionary of English Law, to say  that a person has no locus standi means that he has no right to  appear or be heard in such and such proceedings.  Barring her from approaching the seat of justice even when it was evident that she was not a busy body in the matter negated the cardinal rules of  natural justice.  There was no injustice in our view which would have been occasioned to other parties  had the 7th Respondent been heard.  All the parties would have an opportunity to ventilate their claim and leave it to the court to determine whether the 7th  Respondent's claim could succeed or not."

34. The Petitioner herein is a Self Help Group and the Respondents have stated  that they do not have locus to bring this action which as per the above  definition means that they ought not to have brought this action.  The Petitioner in this case appears to have provided ammunition to the  Respondents' claim because they have not clearly described themselves save  that Mercy Kainda in her affidavit in support of the petition states that she is  a Secretary of the Petitioner and a businesswoman dealing with alcoholic  beverages and that is all.

In the case of Mirara & 2 Others -vs- Romano K. Mikigu [2013] eKLR,  where court considered the issue of locus standi raised at the trial and  observed as  follows:

"The law on suits by or against unincorporated bodies is well     settled.  It was held by Bosire J (as he then was) in Free Pentecostal  Fellowship in Kenya -vs- Kenya Commercial Bank (Nairobi HCCC No.5116 of 1992 (O.S) that a suit by or against unincorporated    bodies of persons must be brought in the names of, or against all the   members of body or bodies".

The alternative is for the suit to be instituted by one or more persons in a  representative capacity pursuant to the provisions of Order 1 Rule 8 of the   Civil Procedure Rule.  The same position was adopted  in Voi Jua KaliAssociation -vs- Sange & Others (2002) 2 KLR 474. In Kipsiwo Community  Self Help Group -vs- A.G & 6 Others [2013] eKLR,where  Honourable  Munya Sila J held inter alia that,

"Self Help Groups having no legal personality cannot institute  proceedings in their own name and that Kipsiwo Self Help Group had no  capacity to  institute  an action in its own  name.  A person recognized in   law had to sue on behalf of members of Kipsiwo Self Help Group and such  members had to be named and identified with precision. The person  bringing the action has to demonstrate that he has permission to bring the  action on behalf of the members of the group or on behalf of the people he  seeks to represent if it is a representative suit.  The importance of this, is to  recognize the persons who seek legal redress and so that orders are not  issued in favour or against people who cannot be  precisely identified. This  may look minor but it is extremely significant.  In litigation, rights and  duties will be imposed on the litigants.  If the court does not know who the  litigants are, then it becomes impossible for the court to  enforce its own  orders, for it will never be clear, who the beneficiary of the order was,  or who had the obligations to obey or enforce such order.

35. This court has noted that the petitioner in its submissions perhaps upon  reflection and hindsight attempted to give a description of who it is and what  it  does so as to have an interest in matters dealing with liqour licensing  regulations and laws regulating the sector.  The attempt however came rather  late because the same ought to have been disclosed to enable the  Respondents respond and defend themselves.  They were entitled to know  who the petitioner was and what interest it had have with the Tharaka Nithi  Alcoholic Drinks Control Act 2015 and other cited constitutional provisions  and how the stipulated rights had been violated or threatened to be violated  so that they are not taken by surprise as stipulated under the provisions of  Order 2 Rule 4(1) of the Civil Procedure Rule.

36. This court, on the other hand is alive to the provisions of Article 258(1)of  the Constitutionwhich also shades some light on locus.  It states as follows;

" Every person has the right to institute court proceedings, claiming that this constitution has been contravened or is threatened with    contravention.

2) in addition to a person acting in their own interest court     proceedings under clause (1) may be instituted by;

a) A person acting on behalf of another person who cannot act in their own name.

b) A person acting as a member of, or in the interest of, a group or class of persons.

c) A person acting in public interest or

d) An association acting in the interest of one or more persons."

A further reading of  Article 22 (1) of the Constitution provide as follows:

" Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of     Rights has been denied, violated  infringed or is  threatened".

The above constitutional provisions shows that the latitude of locus standi  has really been expanded by the new constitutional dispensation because  even the definition given about a person under Article 260 shows that a  person "includes a company, association or other body of persons whether  incorporated or unincorporated." What flows from the above  constitutional provision  in my view indicate that even Self Help Groups,  which are not normally body corporate or incorporated, can bring an action  so long as they that their interests or rights have been infringed or  about  to be infringed. They cannot be faulted for lacking locus standi on account  of merely not being unincorporated or lacking legal personality.

In this petition however, the descriptive part of the petition is wanting for  specificity.  The Petitioner through its Secretary does not state that the   membership has given her authority to plead on behalf of the entire  membership to qualify as a representative suit as provided under the  provisions of Order 1 Rule 13 Civil Procedure Rules.  Mercy Kainda in  her affidavit in support of the petition has not stated that she is swearing the  affidavit on behalf of other members  and that omission in my  view is fatal  given the fact that the Respondents have questioned the  capacity and the  locus of the petitioner.  I also note that the petitioner failed  to describe  the involvement of all the Respondents in the acts complained of and why  they have been sued.  It is therefore understandable why the 2nd  Respondent  felt aggrieved and posed a valid question as to why his presence in this  petition was necessary.  I of course note that in its written submissions,  the Petitioner has gone ahead and given the requisite descriptions on all the  Respondents and why they have been sued but that in my view is equally  belated because the petition ought to have contained sufficient details and  particulars to enable the Respondents defend themselves adequately.

37. The affidavit in support of the petition in my view is bare and wanting  because for one to know who the petitioners  are in this petition you must  look at the Notice of Motion dated 23rd July, 2018 and the affidavit in support which is a bit detailed enough in respect to the description of the  petitioner.   That in my view shows that either the petitioner was in a hurry  in drawing the petition and therefore omitted crucial details in the petition or  it is not very sure who its members are and that is why perhaps the deponent  does not state that she had the authority and capacity to plead on their behalf. Whatever the case, this court finds that the Petitioner has not clearly established its locus standi in this petition and despite the latitude given  under the above cited provisions (Article 22, 258 and 260) this court is  unable to save this petitioner on account of locus standi.

38. Whether Tharaka Nithi County Alcoholic Drinks Control Act 2015 is lawful and enforceable and whether Section 25(2) of the County Government Act  No. 17 of 2012 is inconsistent with Article 199(1) of the Constitution.

The 2nd and 3rd issues are related and I shall determine them  contemporaneously.

The Petitioner has raised on important issue which is the legality of Section  25 of the County Government Act and Tharaka Nithi Alcoholic Drinks  Control Act 2015 on this basis that the latter legislation was never and has  never been gazetted.  The provisions of Article 199(1) of the Constitution  clearly states as follows:-

" County Legislation does not take effect unless published in the    gazette."

A look at Article 260 of the Constitution clearly defines that a Gazette,

"The Kenya Gazette published by the authority of the National    Government or a Supplement to the Kenya Gazette."

There is no dispute that Tharaka Nithi County Alcoholic Drinks Control Act,  2015 was properly passed in the County Assembly and assented to by the  Governor. What is in dispute is that it was not properly gazetted.  The 1st Respondent has defended itself and exhibited a copy of a special issue of  County Gazette Supplement showing that the impugned legislation was  published via County gazette as provided under Section 25 of the County  Government Act.  The provisions of Section 25 of County Government  Act provides as follows:-

1) " A legislation passed by County Assembly and asserted to by the Governor shall be published in the County Gazette and Kenya Gazette within 7 days after assent.

2) Subject to the subsection (3) the County Assembly legislation shall come into force on the fourteenth day after its publication in the County Gazette and Kenya Gazette whichever comes earlier unless legislation stipulates a different date or time at which it shall come into force." (Emphasis added).

The 3rd Respondent has conceded that the above provision is problematic  because it is in conflict with Article 199(1) of the Constitution.  Section 25  (2) of the County Government Act appear  to suggest that publication of  the legislation in the County Gazette is at par or in equal with publication in  Kenya Gazette which runs afoul of Article 199(1) as read with Article 260.  The publication of bills emanating from County Assembly just like in the  National Assembly acquires the force  of law upon publication in Kenya  Gazette in accordance with Article 199(1) of the Constitution.  To that  extent, this court has no hesitation in finding that the phrase "whichever comes earlier" used in Section 25 (2) of the County Government Act  unconstitutional for being inconsistent with Article 199(1) of the  Constitution.  The finding of this court is persuaded by the decision James Gacheru Kariuki & 3 Others -vs- A.G & 11 Others [2017] eKLR which  arrived at the same conclusion and  declared invalid the phrase  "whichever comes earlier" in Section 25(2) of  the County Government  Act invalid and found that a County Legislation  does not take effect  unless it is published as such in the Kenya Gazette.

39. In light of the above and for the sole reason that Tharaka Nithi Alcoholic  Drinks Control Act 2015 was and has not been published in accordance with  Article 199(1) of the Constitution the said Legislation does not take effect or  have the force of law until its publication in the Kenya Gazette is clearly  stipulated under Article 199(1) of the Constitution.

For avoidance of doubt and in the interest of law and order in the alcoholic  sector I shall give the County Government of Tharaka Nithi 90 days to  regularize the publication of the said legislation.  (The Tharaka Nithi County  Alcoholic Drinks Control Act), in the Kenya Gazette.  In default  the  legislation shall lapse and be invalid.  Until then it shall continue operating  in the interest of justice.

40. My above finding of course has a bearing to my finding on the last issue for  determination which is whether the County Liqour Licensing Committee  was lawfully and properly constituted.  My finding is that it follows  naturally that in the absence of valid legislation the Constitution of the  Licensing Committee of Tharaka Nithi was irregular and improper.  That  committee needs to be properly constituted in accordance with the law once  the 1st Respondents regularizes its position.

In conclusion, this petition for the reasons I have stated above fails save that  this court having looked at the legality of both Section 25(2) of the County  Government Act particularly the wording or the phrase "whichever is  earlier" and the Tharaka Nithi Alcoholic Drinks Control Act 2015, I am  satisfied that both are inconsistent with the Constitution of Kenya 2010  (Article 199(1) thereof) and are invalid to that extent.  For the reasons   advanced and as observed the County Government of Tharaka Nithi are  hereby given 90 days from the date of this ruling to regularize the said  impugned legislation and in default the said legislation shall stand nullified  and rendered invalid.

I shall not make any order as to costs so each party shall bear own costs.

Dated, signed and delivered at Chuka this 16th day of May, 2019.

R. K. LIMO

JUDGE

16/5/2019

Judgment signed, dated and delivered in the open court in presence of Petitioner, Momanyi  for 2nd Respondent, Muthomi, for 1st Respondent and holding brief for Mberkyata for 3rd Respondent and Kaaria holding brief for Mugo for Interested Party.

R. K. LIMO

JUDGE

16/5/2019