Whether the respondents’ decision to cancel the ex parte applicant’s licence should be quashed
19.The three traditional grounds for judicial review being illegality, irrationality and procedural impropriety were explained in the case of Council of Civil Service Unions vs Minister for the Civil Service (1985) AC 374, 410 where Lord Diplock spoke of these grounds as follows:-
20.In the instant case, the ex parte applicant states that her business was shut down following a public participation meeting held on 9th December 2020 where the residents of Ring Road complained about the ex parte applicant’s business. It is the respondents’ case that following complaints by the residents of ring road, the Sub County Alcoholic Drinks Regulation Committee held a public participation meeting on 9th December 2020 and after careful deliberations, the Sub County Alcoholic Drinks Regulation Committee recommended to the County Alcoholic Drinks Regulation Committee that the ex parte applicant be denied a liquor licence. I have perused the minutes of the public participation meeting held on 9th December 2020 and I have noted that the ex parte applicant was not among the people in attendance. I have further noted that one Mr. Benson Muriuki was present who was listed as an investor.
21.Following that meeting, the Sub County Alcoholic Drinks Regulation Committee held a meeting on 10th December 2020 and resolved that the ex parte applicant’s business be denied a liquor licence. On 15th March 2022, the County Alcoholic Drinks Regulation Committee held a meeting and resolved that following the recommendation by the Sub County Alcoholic Drinks Regulations Committee and pursuant to the meeting held on 10th December 2020, the ex parte applicant be denied a liquor licence. It was also recommended that the business ought to be closed.
22.The respondents argue that they declined to renew the ex parte applicant’s licence as she did not adhere to Section 15(2) of the Nyeri County Alcoholic Drinks Control and Management Act 2014. Section 15(2) provides:-(2)The County Committee shall not grant a licence for the sale of an alcoholic drink in:-a.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;b.In an outlet or premises located within a fuel station or a fast food restaurant.
23.The respondents have argued that the ex parte applicant ought to have furnished them with an approved P.P.2 Form which indicates a change of user of her business location. The minutes by the County Alcoholic Drinks Regulation Committee for the meeting held on 15th March 2022 indicate that the Director reported that the ex parte applicant had submitted P.P.A.2 Forms but thereafter withdrew them after they were invalidated by the Physical Planning Department.
24.The respondents have further annexed a letter by the ex parte applicant dated 27th September 2021 where she states that the change of user was processed under registration number 2013/282 and not 2013/120 as she had earlier indicated. She further indicated that she paid Kshs. 7,000/- for the same and a receipt was issued to her on 7th October 2013. Upon perusal of the documents of both parties it is noted that the change of user the respondents are referring to was one of 2013 from residential premises to a guest house. As far as the exparte applicant is concerned, her licence was revoked on 4th April 2022. The ex parte applicant was issued with a certificate by the registration of business names on 20th April 2015. The county government has since been issuing the ex parte applicant liquor licences without any problem. Thus, it is my considered view that the issue of change of user is something that was long deliberated before the respondent revoked the exparte applicant’s licence.
25.The ex parte applicant was served with a letter dated 4th April 2022 informing her of closure of her business. In R vs County Government of Mombasa ex parte Outdoor Advertising Association  eKLR the court held that the duty of a public body is to provide a forum in accordance with the law where the ex parte applicant or their members are granted an opportunity to be heard. The respondents had a duty to give a hearing to the ex parte applicant as provided by the rules of natural justice. Article 47 of the Constitution provides:-1.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2.If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
26.The ex parte applicant has a constitutional right to be accorded fair administrative action by the respondents. There is no evidence that the ex parte applicant was accorded the right and as such the respondents failed to comply with Article 47 of the Constitution. The rules of natural justice were clearly flouted in the instant case and blatantly trampled upon.
27.The other issue to consider is whether the respondent’s decision to revoke the ex parte applicant’s licence was taken through public participation and whether the said public participation met the threshold set by the Constitution and the statues as interpreted by superior courts. Article 10 of the Constitution spells out the national values and principles of governance which “bind all State organs, state officers, public officers and all persons”. In particular, Article 10(2)(a) provides for participation of the people as one of the national values:10(2)“ The national values include:-a.patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;”Article 8 of the County government Act provides for public participation and the principles to be applied thereto.
28.The applicant states that there was no public participation that was conducted by the respondent. It is argued by the respondent that public participation that was conducted by the respondent on 9th December 2020 and a list of names with accompanying signatures was produced in evidence through the replying affidavit. I have perused the minutes and the list of participants. The name of the applicant is missing from the list. The respondent says that one Benson to represented the ex parte applicant in the meeting. However, no letter of authority for the said Benson represent the ex parte applicant in the meeting was produced by the respondent. The respondent produced no evidence of invitation to the meeting addressed to the ex parte applicant or even to the other participants.
29.In the case of Minister of Health vs New Clicks South Africa (PTY) Ltd & Others (2006) 2 SA 311 it was held:-The forms of facilitating an appropriate degree of participation in the law making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.
31.The ex parte applicant has established that she was not accorded an opportunity to be heard and that public participation did not meet the standards established by the law. As such, the decision to revoke the business licence of the ex parte applicant was tainted with illegality, it was unlawful and unprocedural. By not granting the applicant an opportunity to be heard, the respondent violated the rules of natural justice. The Court of Appeal in Kenya National Examinations Council vs Republic ex parte Geoffrey Gathenji Njoroge (1997) eKLR court stated:-Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.
32.During the pendency of this case and in existence of the order of leave to operate as stay, the respondent demanded the ex parte applicant to pay Kshs.15,555/- which was paid. The amount was said to be for liquor charges Kshs.120,000/-, penalties of Kshs.32,555/- and for late application Kshs.2,000/- for the 2021 liquor licence. It is not in dispute that such licence for the year 2021 was not issued to the ex parte applicant despite making the said payments. The respondent is a service provider and ought to provide services for which it has received payment. In my view, the demand of the said funds and the failure to render services which was done during the pendency of these proceedings was improper and unprocedural.
33.I am of the considered view that the ex parte applicant has established her case and in regard to the issue of the orders sought. I hereby find these proceedings successful and issue the following orders:-a.That an order of certiorari to remove to the High court and quash the respondents decision to close and revoke the ex parte applicant’s business namely Annabelle Guest House is hereby issued.b.That the respondent shall issue the licence of the said business for the current year upon payment of the required fees.c.That the respondent shall refund the amounts of Kshs.154,555/- paid by the ex parte applicant during the pendency of the case.d.That the respondents shall meet the costs of these proceedings.
34.It is hereby ordered.