The High Court has dismissed a second attempt by bar owners in Nyeri to knock down "Gachagua laws" on alcoholic drinks control, which was enacted by the County Government to eradicate illicit brews, drugs, and substance abuse.
The law, Nyeri County Alcoholic Drinks Control Act, 2024, was developed as part of harmonized efforts by both county and national governments to curb alcoholism and drugs, an exercise that was being led by former Deputy President Rigathi Gachagua.
Under the auspices of the Nyeri County Bar Owners Association, the traders claimed that the law had made their business operations difficult such as a requirement for branding of motor vehicles transporting alcoholic beverages.
Among the legal provisions in the disputed law is a section that designates specific areas as alcohol-free zones, prohibiting the sale or consumption of alcohol in some locations to maintain public order.
Another provision that irked the traders is the prohibition of hotels from selling alcohol to non-lodgers and mandates designated bar areas. This was meant to ensure responsible consumption, especially in hotels accommodating children.
They were also aggrieved that the law locks out ex-convicts from the business. It bars individuals previously convicted for breaching alcoholic drinks control regulations or any other imprisonable offence from obtaining alcohol sale licenses without the option of a fine. According to the County Government, this was aimed at ensuring compliance with regulatory standards.
The traders wanted court to declare various provisions of the law unconstitutional, null and void and subsequently block the County Government from enforcing the law.
But Justice Kizito Magare dismissed the case on grounds that the issues raised in the petition were similar to another case filed by the same bar owners in May last year and which was dismissed.
"It is my considered view that the issues in the Petition and parties are similar and the matter had already been decided. A party cannot mount a piece meal challenge to an Act," said the judge.
Justice Magare observed that the Act had earlier been challenged over alleged lack of public participation. The court made its decision on September 26, 2024, indicating that the petition was devoid of merit.
The same parties filed another matter, now challenging the law on different grounds, such as allegations of discrimination and that the conditions for grant of a license were unlawful.
"A party cannot challenge an Act and then reposition himself to challenge the same on different grounds. The finding in the former suit was enough to dispose of the matter. This is true, in particular, where the court dismissed the process of arriving at a decision. The same challenge has been mounted in a more cavalier manner, without setting out the particulars of unconstitutionality," said Justice Magare.
The traders sued after the Government released a circular dated March 6, 2024, titled ‘Notification of Government Action on Eradication of Illicit Brews, Drug, and Substance Abuse.’ The circular indicated that President William Ruto had assigned his then Deputy Mr Gachagua the role of leading the war on illicit brew.
They said that the Governor Mutahi Kahiga-led county administration later started enforcing the Nyeri County Alcoholic Drinks Act, 2024, which became a source of harassment of the business persons. The Act came into force on April 30, 2024.
Through the Association's chairman, Mr Teobald Mukundi Wambugu, the traders complained that later in July, the county government threatened that licenses would not be extended and late application would not be considered.
They also complained that they lacked representation in the decision-making process and that they had been subjected to double jeopardy.
"The 2024 Act allows impunity by legalizing withdrawal of license without notice to the holder. The time for transport of alcoholic drinks is limited between 6am to 6pm, which is unreasonable. The requirement for branding of motor vehicles is unnecessary," they complained to court.
In response, the County Government told court that the legal provisions been attacked by the traders were reasonable and meant to cure a social vice in the community. It insisted that there was no unconstitutionality.
It explained that Section 22 of the Act, which petitioners wanted invalidated, prohibits licensing alcohol sales in residential areas, near schools (within 300 meters), and designated alcohol-free zones. It indicated to court that this was to ensure children are protected from alcohol exposure and enforcement is accessible.
"Section 43 regulates alcohol transportation, limiting it to the hours between 6am and 6pm and requiring vehicles to be branded. This reduces illicit trade and enhances distributor accountability," the county government advocates informed court in response to the petition.
Regarding a section of the law that prohibits license holders from selling alcohol to intoxicated individuals or encouraging further consumption, the county government said this aimed to address risks such as alcohol poisoning, violent behaviour and drunk driving while promoting responsible sales practices.
