Application for conservatory order
8.The Counsel for the 4-5 Respondents urged the court to consider the application along the principles for the grant of conservatory orders set out by the Supreme Court of Kenya in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Civil Application NO. 5 of 2014,  eKLR, (para. 86) that –1.“Conservatory Orders bear a more decidedly public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders therefore are not, unlike interlocutory injunctions, linked to such private party issue as “the prospects of irreparable harm” occurring during the pendency of the case; or “high probability of success” in the Applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”
9.This Court respectfully accepts that the decision whether to grant a conservatory order, is a factor of the respective parties’ cases examined through the prisms of constitutional order and public interest and a weighing of the respective merits of the parties’ causes. See previous decisions of this court on consideration of conservatory orders such as Nairobi Const. Pet. no.206 of 2016 Satinderjit Singh Matharuv.Armajit Singh Gahir& 5 others,where the court held:
10.In line with the case and materials authorities and Supreme Court’s guidance in Munya v Kithinji, the Court has considered the factors of prima facie case, the public interest in the matter and the inherent merit of the case, as below.
11.A consideration as to whether there exists a prima facie case to justify grant of conservatory orders would entail a determination of the inherent merit of the parties’ cases in the terminology of Munya v Kithinji, supra. It must be recalled that a challenge on the Alcoholic Drinks Act 2010 as an infringement of the licencee’s right to property was determined in the negative by the Court (Musinga, J. (as he then was)) in Murang’a Bar Operators & Another v Minister For State For Provincial Administration and Internal Security & 2 Others  eKLR while considering an interlocutory application for conservatory orders to restraining the interference by government officers of their licenced alcoholic drinks business in a challenge on newly enacted The Alcoholic Drinks Control Act 2010, where the Court declined the order sought and said:
12.The court must find that a prima facie case is not established because, the statute of the County Government and the National Government for the alcoholic drinks control have provisions which empower the county government to regulate the issuance of licences to Applicants for operation of business for the sale of alcoholic drinks. In addition, as discussed below the issue of discrimination in the refusal of licence for the Applicant compared to other businesses in similar situation is not well founded as no evidence of their particular situations as no licences have been shown to have been given to them and the court is not possessed of information that their businesses will be allowed to continue upon the expiry of the 2022 licences.
13.The Alcoholic Drinks Control Act 2010 applies to renewal as well as fresh applications for licences and provides at section 12 for the qualifications, with distance from educational institutions being an integral consideration, necessary for the grant as follows:1.“12. Licence for premises2.that it would be in the public interest for provision to be made for the sale of alcoholic drink for consumption on the premises in the particular locality in respect of which the application is made, and that the number of such premises in respect of which such licences have already been granted is insufficient for the requirement of the locality given the population density per square kilometre and the permitted maximum number of such premises as shall be prescribed by law:i.Provided that no licence shall be granted to sell alcoholic drinks in any institution of basic education including primary and secondary schools or any residential area as have been demarcated by or under the relevant written laws; that it would be in the public interest for provision to be made for the sale of alcoholic drink for consumption on the premises in the particular locality in respect of which the application is made, and that the number of such premises in respect of which such licences have already been granted is insufficient for the requirement of the locality given the population density per square kilometre and the permitted maximum number of such premises as shall be prescribed by law:1.Provided that no licence shall be granted to sell alcoholic drinks in any institution of basic education including primary and secondary schools or any residential area as have been demarcated by or under the relevant written laws;3.that the premises in respect of which the application is made are in good repair and are in a clean and wholesome condition, and are provided with adequate and proper sanitary arrangements;4.that the premises in respect of which the application is made are located at least three hundred metres from any nursery, primary, secondary or other learning institutions for persons under the age of eighteen years.The District Committee shall not grant a licence for the sale of an alcoholic drink in a supermarket or such other related retail chain store unless it is satisfied that the Applicant has taken measures to ensure that the area in which the sale is to take place is not accessible to persons under the age of eighteen years.”
14.According to the Report of the Deputy Registrar dated 20th December 2022 upon site visit on the directions of the Court, the Applicant’s bars namely Subira Bar, Subira Bar 2 and Forest View Wines and Spirits are, respectively, 24 feet, 150 metres, metres and 160-170 metres from learning institutions for minors being Muthangene ECDE, Muthangene Day Secondary School, MCK Muthangene Primary School and MCK Women Fellowship Academy.
15.In these circumstances, the situation of Applicant’s bar infringes the law as to the proximity in distance of alcoholic sale premises from the educational institutions. It matters not that the Respondents have previously given the Applicant licences at the same sites. If the Respondents have not enforced the law previously, it is no bar from their enforcement of it now and in the future. It is trite that there can never be any estoppel against the operation of the law by reasons of acquiescence or waiver.
16.The rule of law depends on the scrupulous and strict enforcement of the law as it stands as at the time of enforcement. The adage ‘do it now for there may be a law against it tomorrow’ says it all! If it is law, it may be enforced today and it is immaterial that it was not against the law yesterday. That the Applicant has had a licence for 3 years may, during the validity of licence, be a defence against forceful removal from the licensed premises on the ground of changed law. On expiry of a licence and consideration of a new licence, the provisions of the law may be given effect without regard to the previous licence.
17.It is also no defence that there are other bar operators within the same radius of 200 metres who have not been asked to close their businesses. Licence is personal and the fact that two or more persons may be denied a licence and asked to close is not a defence that only one has been asked to close down. It may be that the others are asked to close and have complied and do not seek to challenge the order for closure.
18.There was no evidence that the Respondents are exercising their regulatory authority in a discriminative manner. If such discrimination is proved, it may found an action for damages at the hearing of the main petition, but it cannot, in the respectful view of this court, support the grant of a conservatory order restraining the enforcement of an Act of Parliament governing the matter. In a similar matter where the Central Bank of Kenya took action against a bank allegedly for failure to observe reporting obligation of banks, something which the bank claimed other 26 banks had done, in Family Bank Ltd. & 2 Ors v. DPP & 2 Ors (Milimani HCCC NO. 488 of 2016,  eKLR this court ruled as follows:
19.It is the same for action taken, as here, in accordance with the law against one of several offenders where the determination of the offence of the one offender has been done so as to await the completion or the implementation of a policy decision against all affected persons. The regulator is entitled to proceed against one or more offenders at a time, as circumstances of each case require.
20.On the evidence before the Court, it is not possible at this stage to conclude that the applicant did not participate in the public participation meeting called upon receipt of a complaint by the community about the bar businesses, or that she was not afforded an opportunity to be heard before the decision was taken. The Respondents’ evidence is that on the register of attendees, the names and identity and mobile phone particulars of the applicant are recorded indicating her attendance. The fact that resolutions for closure of the bars including her two bars were made at the meeting does not indicate that she was not at the meeting or that she was not given an opportunity to be heard on the complaint. However, whether the applicant was heard or she participated in the public participation meeting is a matter of fact that may be resolved at the hearing of the petition. It may invite an award of damages, if it is found that she was not heard or consulted on the matter. But it does not, with respect, affect the statutory right of the respondents to take action to implement the provisions of the Alcoholic Drinks Control Act, when such implementation is adjudged to be in the public interest.