Analysis and Determination
17.Upon consideration of the Petition, affidavits, submissions and the record in its entirety the following issue arises for determination:
18.Public participation is a requirement in the formulation or legislation under the new constitutional dispensation. A healthy democracy needs the involvement of the public in government decision-making that affects their lives otherwise known as participatory democracy. Public participation is defined as “a process leading to a joint effort by stakeholders, technical specialists, the authorities and the proponent who work together to produce better decisions than if they had acted independently”1
19.The primary objective of public participation is to demonstrate to the public that the right decisions are being made on balance of scale for the right reasons.
20.It is important to differentiate public participation from consultation. Looking first at consultation, it involves actively seeking the opinions of interested and affected groups. It is a two-way flow of information, which may occur at any stage of regulatory development, from problem identification to evaluation of existing regulation. It may be a one-stage process or, as it is increasingly the case, a continuing dialogue. On one hand, consultation is increasingly concerned with the objective of gathering information to facilitate the drafting of higher quality regulation. On the other hand, participation is the active involvement of interest groups in the formulation of regulatory texts. Participation is usually meant to facilitate implementation and improve compliance, consensus, and political support.
21.However, there are instances where participation and consultation merge. For instance public participation usually involves notification (to publicize the matter to be consulted on), consultation (a two-way flow of information and opinion exchange) as well as participation (involving interest groups in the drafting of policy or legislation).
22.In Kenya, public participation is enshrined as one of our national values and principles of good governance that bind all state organs, state officers, public officers and all persons whenever any of them applies or interprets the constitution, enacts, applies any law or makes or implements public policy decisions.
24.All the levels of government are obliged by the Constitution of Kenya, 2010 to engender public participation in their governing processes. Article 196(1) (b) of the Constitution provides for public participation in county assemblies. They are obligated to facilitate public participation and involvement in the legislation and other business of the assembly and committee.
25.The same mandatory requirement is reiterated under Section 3(f) of the County Government Act No. 17 of 2012 which provides:-
26.Furthermore, Section 87 of the County Government Act provides for principles of citizen participation in counties. It states that:-
27.In addition, Sections 3 and 4 of the Statutory Instruments Act, 2013 state that:
28.As referenced by the petitioners, the High Court in Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others (2014) eKLR while referring to the South African decision in Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05)  ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) adopted the following definition of public participation: -
29.The Court of Appeal in Legal Advice Centre & 2 Others v County Government of Mombasa & 4 Others (2018) eKLR, highlighted the importance of public participation in the law making process as follows:-
30.In Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others Machakos,  eKLR the High Court developed the following six principles to be taken into account whenever the application of the doctrine of public participation comes into issue:
31.That being the case, the Nyandarua County Assembly has a constitutional obligation to facilitate public participation and consultation on policy formulation, legislative process and any other decision affecting residents of the county. It is important to note that in most instances of legislative and policy formulation, participation and consultation merge. The burden of proof lies with the Respondents to demonstrate there was public participation. In the case of Kenya Human Rights Commission v Attorney General & Another  eKLR, it was stated that:-
32.The Petitioners contended that the Nyandarua County Alcoholic Drinks Control Licensing Regulations, 2021 offend the Constitution and express provisions of the law due to the lack of public participation before enacting the regulations.
33.The Petitioners averred that the impugned regulations clearly have a direct and/or substantial indirect effect on the businesses of the Petitioners, the members of the association who are all bar and wines and spirits shops’ owners, distributors and/or manufacturers of alcohol and other such traders who are not necessarily members of the said association in Nyandarua county. That they were not consulted by the 1st Respondent during the making of the said regulations and neither were they notified of any consultative meetings held by the 1st Respondent for the making of the impugned regulations and were only surprised to read in the said newspaper advert that they were already such regulations in force.
34The Petitioner reiterated that the said regulations being a statutory instrument are mandatorily required by the law to be subjected to appropriate consultation before their making.
35.On the other hand, the Respondents argued that the 1st Petitioner, John Kairu Ng’ang’a, the chairperson of the association and Ms. Margaret Wambui Kamamia, a member of the association respectively were part of the participation exercise conducted in the making of the regulations by virtue of them being members of the Management Committee as pronounced in Section 54 (1) of the Nyandarua County Alcoholic Drinks Act, 2019. (Copies of the Appointment Letters dated 14th April 2021 attached and marked ‘AMG 3’)
36.Further, the Respondents asserted that the 1st Petitioner did not at any event raise any objections to the making and contents of the regulations. (Copies of the report dated 2nd June 2021 and minutes dated 16th April attached to the Respondents’’ replying affidavit ‘AMG 4a & AMG 4b’).
37.I have thoroughly examined the Respondents affidavit dated evidence presented by the Respondents to counter the Petitioners’ claims that there was no and/or sufficient public participation preceding the enactment of the impugned regulations. The 1st Petitioner, as the chairman of the association and Ms. Margaret Wambui Kamamia, as a member of the association were effectively appointed as members of the Nyandarua Alcoholic Drinks Management Committee as evidenced by the letters of appointment (marked “AMG 3”).
38.Subsequently, I have reviewed the minutes of the aforesaid committee and attendance list dated 16th April 2021 and could not ascertain to which degree if any the impugned regulations were discussed making it a public participation exercise. The Respondents also attached attendance lists dated 22/4/2021 and 23/4/2021 titled ‘Nyandarua Alcoholic Drinks Management Committee Induction’ which in my view is not evidence of a public participation fora in relation to the impugned regulations. The record of the day’s proceedings from the aforementioned meeting were not attached to disclose and ascertain what was discussed in relation to the impugned regulations and therefore I am unable to determine effectiveness and adequacy of public participation in that meeting. However, the report of the Stakeholders’ Consultative Forum dated 2nd June 2021 (marked AMG 4a) indicated that the impugned regulations were discussed and the 1st Petitioner was present and even participated. The same is evidenced by the attendance lust (marked AMG 5).
39.In Mui Coal Basin Local Community & 17 Others v Permanent Secretary Ministry of Energy & 15 Others (supra), the court observed that public participation did not mean that everyone must give their views, which is impracticable. Rather that there ought to be evidence of “intentional inclusivity” in the participation program and which, on the face of it, took into account the principle that “those most affected by a policy, legislation or action must have a bigger say: and their views more deliberately sought and put into account.” That notwithstanding, there is no attendant requirement that each individual’s views will be included in the final policy or law: the public authority has no duty to accept any and every view, the opposite of which would effectively neutralize and stall the exercise of the authority’s mandate.
40.Further, in the case of Doctors for Life International v The Speaker of the National Assembly & Others CCT 12 of 2005  ZACC 11 the court held that there are at least two aspects of the duty for facilitate public participation and stated thus:
41.In Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others v County Government of Nairobi & 3 Others  where the court held that
42.I find as persuasive the decision of the court in Commission for The Implementation of the Constitution vs. Parliament of Kenya & Another & 2 Others & 2 Others where it was expressed as follows:
43.I take the view that given the precedence of the concept of public participation in legislative processes in Kenya, it is time the national and especially the county governments take significant steps to ensure that it is entrenched in all legislative process as a matter of importance. The process should no longer overlook such an important aspect as public participation which should have already been weaved in the legislative process particularly since the inauguration of the Constitution of Kenya, 2010. Indeed, in the South African case of Borbet South Africa Ply Ltd & Others v Nelson Mandela Bay Municipality 3751 of 2011  ZA EA PEHC 35  5 SA 256 the court held:
44.I also associate myself with the statements made by Lenaola J in Nairobi Metropolitan PSV Sacco (Supra). He observed that:
45.Further, the learned Judge observed that:
46.Moreover, Odunga J in Robert N. Gakuru case (supra) stated that:
47.It is evident that the requirement as to what constituted public participation differs from case to case. However, what stands out is that both the national and county governments should instill intentional inclusivity in legislative processes and afford the public a reasonable opportunity to know and understand the issues and thereafter have adequate say on those issues. What amounts to a reasonable opportunity will depend on the circumstances of each case. (See Commission for the Implementation of the Constitution -vs- Parliament of Kenya & Another (2013) eKLR)
48.As observed in John Kinyua Munyaka & 11 others v County Government of Kiambu & 3 others  eKLR:
49.In this case, what is in dispute is the constitutionality of the impugned regulations by virtue of lack of stakeholders’ participation. There is no doubt that alcoholic drinks control involves several sector players. The impugned regulations, no doubt, affected the public and more particularly those licensed to sell alcoholic drinks and, of course, all the third parties involved.
50.In the Robert N. Gakuru Case (Supra), the adequacy of public participation was discussed as follows: -
51.Similarly, in Kenya National Chambers of Commerce and Industry (Kilifi Chapter) v County Government of Kilifi & 3 others  eKLR the court observed the significance and importance of taking into account the views of the public by administrative authorities as follows: -
52.In Richard Owuor & 2 others (suing on behalf of Busia Sugarcane Importers Association) v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 7 others  eKLR, the court stated that:-
53.Accordingly, I take the view that the public participation and stakeholders’ consultation carried out in respect to the impugned regulations does not pass the test of effectiveness and adequacy. It is my opinion that the evidence of one stakeholders’ forum in the process of coming up with the impugned regulations was in the circumstances inadequate. The Petitioners and other stakeholders were not given a reasonable opportunity to interact with the impugned regulations with just the one stakeholders’ consultative forum that was held. The Respondents latched on that forum and a number of others that cannot be ascertained as public participation forums to prove that public participation was held in relation to the impugned regulations. The process proffered by the Respondent was in the circumstances inadequate.
54.Resulting from the foregoing, and by taking into account the circumstances of this case, the Respondents’ averment that the stakeholder consultative forum held on 2nd June 2021, the meeting held on 16th April 2021and the attendance lists dated 22nd April 2021 and 23rd April 2021 constitutes evidence that adequate public participation does not hold water. There was need for the Nyandarua County Government to consult widely and to be alive to the mandatory nature of active public participation within the new constitutional dispensation. I resolve that the Respondents have failed in demonstrating that there was elaborate and comprehensive public participation and stakeholder engagement in relation to the impugned regulations.
55.The upshot is that the Petition succeeds thus the court makes the following orders;i.A declaratory do hereby issue that the Nyandarua County Alcoholic Drinks Control (Licensing) Regulations, 2021 as made by the 1st Respondent are unconstitutional for want of stakeholders’ participation before their making as well as for being a threat to the stakeholders’ rights to fair administrative action and are therefore unlawful, null and void ab initio and of no consequence whatsoever.ii.An order of permanent injunction do hereby issue against the Respondents herein restraining them by themselves, their servants, agents and/or persons claiming under their respective titles form implementing the Nyandarua County Alcoholic Drinks Control (Licensing) Regulations, 2021 or in any way implementing their notice contained in the Daily Nation Newspaper of the 24th June, 2021 at page 4iii.That parties bear their own costs for the Petition.
56.However, the orders granted above will not take effect immediately thus the regulations will continue to operate as directed here below;
57.The order of invalidity above (i) and (ii) are suspended for a period of twelve (12) months from the date of this judgment.
58.The county government Nyandarua county and assembly Nyandarua county may remedy the defect within that period of 12 months, otherwise the impugned regulations shall stand invalidated at the expiry of the twelve (12) months or may be earlier repealed whichever comes first.