The Nyandarua High Court on Wednesday opened the door for bar owners, manufacturers, and distributors to seek damages for the closure of their businesses and the impounding of their assets.
Judge Charles Kariuki stated that those who suffered losses due to the unconstitutional actions of the Interior Ministry could file lawsuits for special and general damages.
The judge said petitioners who have suffered loss and damage because of the unconstitutional implementation of the Interior Cabinet Secretary's impugned directive can institute lawsuits in court and prove their claims.
The court directed the Ministry of Interior and National Administration, along with the County Commissioner of Nyandarua, to cover the costs of the petition filed by the bar owners.
Other respondents included the Attorney General and Nyandarua County Government in the Constitutional Petition E002 of 2024, filed on March 13, 2024.
The petitioners, Nyandarua Bar Owners, sought conservatory orders against the ministerial directive that mandated the closure of bars near residential areas and schools.
They argued that the directive was discriminatory, violated their rights, and was implemented without due process.
In their petition, the traders said they had sought amicable solutions for the dispute about the illegal and unlawful imposition of the ministerial directions to no avail.
The directive, issued under Section 4 (2) of the Preservation of Public Security Act, directed the County Commissioner to shut down all bars operating near residential houses and schools which were not approved to operate as such.
They further raised concerns that the directive was unfair and a threat to their livelihoods. The court heard that the continued implementation of the directive would lead to the collapse of businesses and adversely affect about 500 business owners and their dependents.
In response, the government, through an affidavit by the County Commissioner, justified the action by citing numerous deaths caused by illicit alcohol consumption.
"The Cabinet Secretary, Ministry of Interior and National Government Administration issued directives on measures to curb illicit brews. The bars were closed in conformity with the same. The petitioners have not attached any licenses to prove that they were operating the business legally," read part of the government's response.
However, the court ruled in favour of the petitioners, noting that they were legally in business with county permits for 2023.
The judgment emphasized that the petitioners were entitled to fair administrative action and adequate notice before the closure of their bars.
"Given the provisions of fair administrative action, the petitioners' members were entitled to prior and adequate notice of the closure of bars due to the ministerial directive and under the Alcoholic Drinks Control Act and Nyandarua County Alcoholic Drinks Control Act, 2024, as the same was bound to affect their businesses adversely," the judgment read.
Incidentally, Nyandarua County was the first to pass alcoholic drinks laws, a move that saw DP Gachagua invite MCAs to his official Karen residence for a meeting.
Justice Kariuki declared the seizure and detention of the petitioners' assets and the closure of bars as illegal and unconstitutional.
"Order be and is hereby issued directing the respondents not to interfere with petitioners trading in their business premises, which are not within the prohibited range of proximity as prescribed by Alcoholic Control Laws. Petitioners’ members whose bars are within the prohibited range are allowed to access their premises to remove their tools of trade, stock, and belongings. They will have 60 days to make plans to close or move their businesses to alternative places of business," said the judge.
Both the petitioners and respondents will report on the implementation of the issued orders within the next two months, with a mention on July 16, 2024, for further directions.
