The High Court has struck down directives by former Deputy President Rigathi Gachagua and former Interior CS Kithure Kindiki that restricted bar operating hours and ordered the closure of bars in residential areas, declaring them unconstitutional and void.
Justice Asenath Ongeri ruled that the two leaders issued the directives without a legal basis or public input, making their actions arbitrary and unlawful.
The case was brought by the Voi Liquor Business Owners Community-Based Organisation. Its officials sued several local authorities including the Voi Sub-County Police Commander, the Voi Police Station Commander, the Deputy County Commissioner, the County Commissioner, and the Attorney General, arguing that both Gachagua and Kindiki overstepped their roles by interfering with county affairs.
The petitioners claimed the national directives ignored the principle of legality and intruded on devolved county functions protected by the Constitution.
In her July 3, 2025, judgment, Justice Ongeri affirmed that bar operations in Taita-Taveta County are governed by the Taita-Taveta County Alcoholic Drinks Control and Licensing Act of 2016, not by national government orders.
“The national government’s directives, which purport to override county laws, violate the principle of devolution,” she ruled.
Justice Asenath Ongeri also found that the orders violated the petitioners’ right to equality and non-discrimination. She elucidated that enforcing the orders selectively, and without any legal framework, led to unequal treatment in the eyes of the law.
The judge also determined that abrupt closure of licensed businesses, and disregarding due process, amounted to unlawful deprivation of property.
She noted that the petitioners were holders of licenses granted under the Taita-Taveta County Alcoholic Drinks Control Act. The authorities, however, failed to follow the due legal processes to suspend or cancel the licenses before they closed down the premises.
“The respondents’ failure to adhere to due process renders their actions illegal and procedurally unfair,” Justice Ongeri ruled.
The petitioners told the court that the directives lacked legal authority, ignored due process, and excluded public participation – clear violations of their constitutional rights.
They explained that they held valid bar licenses issued under county law and alleged that the national government was illegally overriding the powers that the Constitution gives county governments in the regulation of liquor licensing.
They also grumbled that the directives were issued abruptly, without warning, hearing, or explanation. This, they said, was in violation of the Fair Administrative Action Act, under which all Kenyans have a right to procedural fairness, including the right to be heard and to receive written reasons for any decision prejudicial to them.
On the other hand, respondents opposed the petition, arguing that the shutdown of the businesses was legal and warranted under the Taita-Taveta County Alcoholic Drinks Control and Licensing Act.
They accused the petitioners of operating the businesses without legitimate licenses. The licenses the bar owners had produced were issued when an inspection was ongoing, which, to them, rendered them invalid.
The respondents further argued that their enforcement activities were not connected with any instructions from the then Interior Cabinet Secretary Kithure Kindiki or the then Deputy President Rigathi Gachagua. They asserted that they were enforcing county licensing laws pursuant to provisions of the law.
They denied the allegations by the petitioners of contravention of constitutional rights, arguing that the closures of businesses were a reasonable limitation of rights for the purpose of safeguarding public safety and order.
They also argued that the petitioners’ rights to equality, fair administrative action, and due process had not been infringed since only non-compliant facilities had been targeted.
Justice Asenath Ongeri disagreed. She issued an injunction stopping the respondents from enforcing the challenged directives and barred further interference with the petitioners’ businesses.
