Ngaywa v Minister of State for Internal Security and Provincial Administration & another (Petition 4 of 2011) [2011] KEHC 3869 (KLR) (3 February 2011) (Ruling)
KIZITO MARK NGAYWA v MINISTER OF STATE FOR INTERNAL SECURITY AND PROVINCIAL ADMINISTRATION & another [2011] eKLR
Neutral citation:
[2011] KEHC 3869 (KLR)
Republic of Kenya
Petition 4 of 2011
MK Ibrahim, J
February 3, 2011
Between
Kizito Mark Ngaywa
Petitioner
and
The Minister of State For Internal Security And Provincial Administration
1st Respondent
Attorney General
2nd Respondent
Ruling
1The applicant, Kizito Mark Ngaywa filed this Petition on 25.01.2011 under the provision of Constitution in which he alleged contraventions of his fundamental right and freedom under Articles 27,28,29,32,33,35,36,46 and 47.
2In the Petition he seeks the following orders:-(a)A declaration that the provisions of Section 7(3)(i) and 68(2) (d) of the Alcoholic Drinks Control Act, 2010 and Rule 16 and the Fourth Schedule of the Alcoholic Drinks Control (Licensing) Regulations 2010 are inconsistent with the Constitution of Kenya thus are null and void.(b)General Punitive and Exemplary damages against the Respondents for the violations of the fundamental rights and freedoms of the individual in application of the Alcoholic Drinks Control Act.
3The Petitioner named the following as Respondents:-1.The Minister of State for Internal Security and Provincial Administration and2.The Attorney General Simultaneous with the filing of the Petitioner, the said Petitioner filed an Application and Rules 20 and 21 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedom of the Individual) High Court Practice and Procedure Rules 2006 seeking the following conservancy Orders:-
4The application sets out the following grounds that:-1.The Alcoholics control Act 2010 is not being interpreted and applied in such a way as to accord with the Constitution as demanded by Section 7 of the Transitional Clause of the Constitution of Kenya 2010.
5The said law has regulatory provisions that contradicts the letter and spirit of the Constitution to the extent to countermand the freedom of choice enjoyed by the individual.PARAGRAPH 3.
6The said law enacts discriminatory provisions and seeks to afford a privilege to access and consume alcoholic drinks to Members of Parliament the rich and powerful who belong to exclusive membership clubs and members of the disciplined forces while at the same time subjecting many people to potential arrest and criminal trial for exercising the freedom of choice.
7The impugned law particularly does not promote the public interest rather undermine “the since” (sic) of human dignity and freedom of the individual.PARAGRAPH 5.
8The continued application of the Section set out in the Petition is demeaning to the Petitioner and the people of Kenya generally.
9The application is also supported by an affidavit sworn by the Petitioner on 25.01.2011.
10The Petitioner’s advocate appeared in court under certificate of urgency on 25.1.2011. Counsel summarized what the petition was all about and sought exparte orders in the nature of a conservatory order i.e. an interim order suspending the enforcement of Regulation 16 and the particulars in the fourth schedule of the Alcoholic Drink Control (Licensing) Regulations 2010. The court did not make any orders in this regard but certified the application as urgent and fixed it for hearing for 2.02.2011.
11On 2.02.2011, Mr. Ndubi appeared for the Applicant/Petitioner, Mr. Njoroge for the Respondents and Mr. Kimondo for the National Campaign Against Drug Abuse Authority (NACADA) which applied to be joined as an Interested Party.
12Counsel recorded a consent making NACADA an Interested party in this Petition. Mr. Njoroge then applied for adjournment to enable him file his client’s/Respondent’s Replying Affidavit. He asked for 14 days. Mr. Ndubi did not object but applied that the court grant conservatory orders pending the inter partes hearing of the application. He submitted that it was crucial that the interim conservatory orders are granted at this stage to protect the fundamental rights and individual freedoms of the Applicant and other Kenyans. That it was in the interest of justice and the balance of convenience filled in favour of his client. He said that the Respondents will not be prejudiced by the said orders being granted.
13Mr. Ndubi urged the court to grant early dates and for the petition to be heard on priority basis.
14The application for immediate grant of interim conservatory orders pending the inter partes hearing of the application was opposed by the Respondents and NACADA. Mr. Njoroge said that the matter await the fair and full hearing of the application. He said that he had not had sufficient time to obtain instructions from the Respondents. He said that the Act has yet to be declared un-Constitutional and it was premature to suspend the Regulations.
15I have considered the application for adjournment and that for temporary suspension of the regulations and the submissions by Counsel. When considering the matter, I recalled my decision in Petition No. 669 Of 2009, Mombasa Bishop Joseph Kimani & Others –v- Attorney General, Committee Of Experts And Anotherwhich I Delivered On 6-10-2010. In The Said Case I Was Guided By The Decisions Of The Constitutional Court In Tanzania In Ndyanabo –v- Attorney General (2001) 2 EA 485in which the said court presided over by the Hon. Chief Justice Samatta Stated as follows:-
16I do find and hold that at this stage the presumption of Constitutionality of the Alcoholic Drinks Control Act and the Regulations still subsists and has not been rebutted. It can only be rebutted after full and fair hearing of the Petition and upon the court declaring that the said Act and regulations or parts thereof are unconstitutional.I am still of the view that “there is no place for conservatory or interim order in Petitions, which seek to nullify or declare legislation/statutes unconstitutional, null and void.” It is even more premature at this stage where the application has not been heard or is not being heard to seek such conservatory orders. The Applications must be heard first.
17In view of the foregoing, I decline to grant the orders sought at this stage. Since I have made my position or opinion on such applications known, I am of the view that I should disqualify myself from hearing the application inter partes or step aside for that matter and it be heard by another judge with a fresh mine on the issue. This will only be fair unless the Applicant thinks that he is up to the uphill task of persuading me to change my mind.
18I do hereby grant leave to the Respondents and Interested Party to file Replying Affidavits within 14 days. The Petitioner is granted leave to file a further affidavit within 7 days of service, if necessary. Costs in the application.
DATED AND DELIVERED AT MOMBASA THIS 3RD DAY OF FEBRUARY 2011.M. K. IBRAHIMJ U D G ECoram:Ibrahim, J Court clerk – Kazungu Mr. Ndubi for the Petitioner/Applicant Mr. Kamau h/b for Mr. Njoroge for the Respondents. No appearance for NACADA Ruling delivered in their presence. Ibrahim, J