Gachagua's liquor laws on opening hours and location of bars declared illegal
Former Deputy President Rigathi Gachagua.
What you need to know:
- Justice Asenath Ongeri found that forced closure of businesses without due process amounted to an unjust deprivation of property.
- According to the petitioners, the Cabinet Secretary and Deputy President acted beyond their authority, infringing on devolved functions.
The High Court has declared as unconstitutional and void the directives issued by former Deputy President Rigathi Gachagua and former Interior Cabinet Secretary Kithure Kindiki, which mandated that all bars in the country operate only between 5pm and 11pm, and that bars located within residential areas be closed.
Justice Asenath Ongeri ruled that the directives were issued without any legal framework or public consultation, rendering them arbitrary.
The Voi Liquor Business Owners Community-Based Organisation, through its officials, sued the Voi Sub-County Police Commander, Voi Police Station Commander, Deputy County Commissioner, County Commissioner, and the Attorney General, challenging the directives.
According to the petitioners, the Cabinet Secretary and Deputy President acted beyond their authority, infringing on devolved functions and violating the principle of legality under the Constitution.
In her July 3 judgment, Justice Ongeri stated that the Taita-Taveta County Alcoholic Drinks Control and Licensing Act, 2016 governs the regulation of bars in the county.
“The national government’s directives, which purport to override county laws, violate the principle of devolution,” ruled Justice Ongeri.
She further ruled that the directives infringed on the petitioners’ rights to equality and non-discrimination, as their selective enforcement without a clear legal basis created unequal treatment.
She also found that the forced closure of businesses without due process amounted to an unjust deprivation of property.
The judge noted that evidence showed the petitioners possessed licenses issued under the Taita-Taveta County Alcoholic Drinks Control Act, and that the respondents had not followed the proper revocation procedures before closing the businesses.
“The respondents’ failure to adhere to due process renders their actions illegal and procedurally unfair,” ruled Justice Ongeri.
The petitioners argued that the directives were issued without legal authority, procedural fairness, or public participation, thus violating their constitutional rights.
They maintained that they are licensed bar owners under the county law and that the directives unlawfully overrode the constitutionally mandated powers of county governments to regulate liquor licensing.
The petitioners also argued that the directives were implemented without prior notice, a hearing, or justification, in contravention of the Fair Administrative Action Act, which requires procedural fairness, including the right to be heard and to receive written reasons for adverse decisions.
The respondents opposed the petition, arguing that the closure of the businesses was lawful and justified under the Taita-Taveta County Alcoholic Drinks Control and Licensing Act.
They contended that the petitioners were operating without valid licenses, claiming the licenses presented were issued during an ongoing inspection period, rendering them null and void.
According to the respondents, their actions were not based on directives from the Cabinet Secretary or Deputy President, but rather constituted lawful enforcement of county licensing regulations.
They denied the petitioners' claims of constitutional violations, asserting that the closures represented a reasonable limitation of rights aimed at upholding public order and safety.
The respondents also argued that the petitioners' rights to equality, fair administrative action, and due process were not infringed, as the businesses closed were non-compliant with legal requirements.
Justice Ongeri issued an order restraining the respondents from enforcing the directives and granted an injunction preventing further interference with the petitioners’ businesses.