Achoro Ventures Limited v Principal Secretary - Internal Security and National Administration , Ministry of Interior and National Administration & 1 other

2. The ex-parte Applicant was granted leave to bring the substantive Motion on 30th December,2024. 3. The prayers sought are against the Principal Secretary Internal Security and National Administration, Ministry of Interior and National Administration (1st Respondent) and the Attorney General ( 2nd Respondent) The Applicant’s Case 4. The Affidavit in support is sworn by one Alex Thuranira Maorwe who describes himself as a director of the Applicant. It is the Applicant’s case that it has been operating an establishment for sale of alcoholic drinks, food and beverages known as Safari Bar and Restaurant since the year 1965. That he learnt through the print media, that on 12th November,2024, the 1st Respondent issued a directive for closure of various drinking outlets, which included the Applicant business premises. 5. The Applicant avers that the 1st Respondent did not formally communicate or issue a prior/adequate notice to the Applicant of the decision that its business entity was to be affected by the subject decision and/or directive as necessitated under Section 4(3a) of the Fair Administrative Action Act,2010 6. The Applicant further states that he was not issued with a notice of a right to review or internal appeal against the 1st Respondent decision/or directive, and thus he is apprehensive that the 1st respondent and/or its agent will at any time proceed to implement and/or enforce the subject directive. 7. The Applicant therefore seeks this Court to urgently intervene by granting the reliefs sought. 8. The Application is unopposed. 9. The Court directed the Application to prosecute the Application by way of written submissions. Applicant’s submissions 10. It is the Applicant’s submission that the decision by the 1st Respondent was issued ultravires (sic), in total infringement of the Applicant constitutionally ordained right of fair administrative action as envisaged under Article 47 of the Constitution of Kenya. 11. The Applicant further submits that since the 1st Respondent did not accord the Applicant an opportunity to participate or attend the proceedings towards reaching of the impugned directive as required, the 1st Respondent infringed the 1st Applicant rights to fair administrative action. 12. The Applicant therefore urges this court to find that the 1st Respondent decision was ultravires and that the Applicant is entitled to the reliefs sought. Determination 13. I have considered the Application, and accompanying documents in support, as well as the Applicant’s submissions. The impugned directive was communicated through a letter dated 12th November 2024. The letter was authored by the permanent secretary (PS) in charge of interior and internal security, and addressed to all Regional and county security committees. 14. In the letter, the PS was bringing to the attention of the committees the provisions of section 12(1) ( c ) of the Alcoholic Drinks control Act, Article 53(1) (b) of the constitution, section 4(a) of the Basic Education Act, section 13 of the children’s Act and section 3 (c) of the National Authority for campaign against Alcohol and drug abuse Act. The PS pointed out that there has been breach of the aforesaid provisions of law and consequently the Government’s efforts of ensuring that learning takes place in a conducive and safe environment were being hampered. He thus directed the security committees to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11310/eng@2025-07-30 2

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close them. Attached to the list are several outlets marked for closure. The Applicant’s Bar is one of them. 15. Section 12 of the Alcoholic Drinks Control Act provides as follows: “ 12. (1) The District Committee shall not grant a new licenses for the sale of an alcoholic drink to be consumed on the premises unless the District Committee is satisfied:— (c) 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. 16. It is the above provision section of the Alcoholic drinks control Act in particular, that has prompted the Applicant to come to court. Article 53(1) (b) provides for the right of a child to free and compulsory Education; the same right is reiterated under section 4(a) of the Basic Education Act and section 13 of the children’s Act. 17. It is the Ex-parte Applicant’s contention that it was not contacted or consulted before the decision was reached, and thus their right to Fair Administrative Actions was infringed . 18. However, what the permanent secretary was conveying was not a policy directive, it was the law. The Alcoholic Drinks Control Act is a 2010 enactment. The delimitation of the of Liqour premises from learning institutions of minors has existed since then. It is apparent that the implementation has been wanting. In simple terms, it was a case of an Administrator reminding his subordinates to enforce the law as it exists. Further this was not a new enactment or a policy decision so as to bring it under the purview of the fair Administrative Action Act. 19. Looked at it differently, the Applicant’s contention is tantamount to calling upon the court to stop law Enforcement Agencies from implementing the law. That is not tenable, unless the process of enforcement in itself, infringes the law. 20. The Applicant has further argued that, the directive is discriminatory, as its predecessors had been operating the same business since 1965 . In addressing this question, I can do no more than to associate myself with the findings of Justice E. Muriithi in the case of Kaaniru v Meru County Government & 4 others [2022] KEHC 16715 (KLR) where he observed:- “….. .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 licenses 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……………. 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” 21. The judge went on to state that, the fact that the applicant has a license or has had a license previously does not operate as estoppel on the enforcement of the law as every person involved in the business of the sale of liquor must satisfy himself that his business premises does not fall within the prohibited range. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11310/eng@2025-07-30 3

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22. In the present case, the fact that the Applicant has a licence does not sanitize an illegality if the business location breaches the law. 23. In a nutshell, the Ministry was implementing the law, and issues of prior consultation, public participation or right to hearing do not apply. Those concepts belong either to instances of enactment of a new law or Administrative or policy decisions. 24. The Application is without merit. It is hereby dismissed. DATED , SIGNED AND DELIVERED AT ISIOLO ,THIS 30TH DAY OF JULY 2025. S. CHIRCHIR JUDGE In the presence of: Roba Katelo- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11310/eng@2025-07-30 4

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