The determination of case between Muimara Estate Residents Association vs Nairobi City County & 2 others regarding a bar in the estate should be of interest to many long-suffering residents.
The Resident’s Association of Muimara Estate filed a petition against the City County of Nairobi (CCN), The Liquor Licensing Committee and a Kariuki Kimiti, challenging:
- The county government and Liquor Licensing Committee’s decision to grant Kariuki Kimiti a licence to operate a bar in their estate.
- Kariuki Kimiti of operating a bar within Muimara estate.
Appearing before Justice Mwita of the constitutional and human rights division of the High Court in Nairobi Kenya, Muimara Estate Residents Association stated that the Estate has young and School going children. Yet that notwithstanding, the Liquor Licensing Committee, which operates under the supervisory role of the City County of Nairobi (CCN), granted a liquor license to Kariuki Kimiti who in turn used the said license to build a bar in the estate.
They complained that the noise, quarrels and yells from the bar infringe on their right to dignity and healthy environment, given the obscene language used by patrons in the bar and sought the following reliefs:-
- A declaration that the CCN had infringed on their rights by allowing the establishment and operation of a bar and alcoholic selling business within the estate.
- A declaration that the CCN and Liquor Licensing Committee were in breach of the law governing the sale of alcoholic drinks and had failed in their constitutional mandate by allowing Kariuki to operate a bar and nightclub within Muimara Estate
- An order directed to the CCN and Liquor Licensing Committee ordering them to withdraw, cancel and revoke all licenses or permits granted to Kariuki Kimiti or any other persons for the operation of a bar, club or alcoholic selling business within their Estate.
- An order of injunction restraining the CCN and Liquor Licensing Committee from licensing, allowing or permitting Kariuki or any other persons to operate a bar, club or alcoholic sells business within Muimara Estate.
- An order of injunction restraining Kariuki Kimiti or any other person from opening, operating or running a bar, club or alcoholic selling business in the estate.
- The respondents to pay the costs of this petition.
In their reply, the County Government and Liquor Licensing Committee stated that although they are responsible for regulating licensing of liquor trading within the county, they had not issued Kariuki a liquor license and so he was illegally operating contrary to the Alcoholic Drinks Control and Licensing Act 2014.
On his part, Kariuki replied that he is only a landlord but not a proprietor or licensee of any liquor selling license(s) and that he has been wrongly enjoyed in this petition.
The Judge on considering the petitions and responses concluded that the petition raised only one issue for determination, namely; whether Kimiti’s bar business had caused a violation of the rights of the members of Muimara Estate to live in dignity, tranquillity and without disturbance in a residential area but the City County of Nairobi and the Liquor Licensing Committee had illegally allowed Kimiti to operate a liquor selling business within the estate deleteriously to this right.
He found the following:
- The CCN and Liquor Licensing Committee had denied granting a liquor license to Kariuki Kimiti and had agreed with Muimara Estate Residents Association that the law does not allow selling of liquor in residential areas, and so Kimiti is illegally operating a liquor selling business.
- The state must demonstrate that it is committed to the protection of Human dignity, one of the most important of human rights and the source of all other personal rights. Selling liquor in a residential estate violates the residents’ right to privacy guaranteed under Article 31 of the constitution and therefore violates the residents’ right to live in dignity.
- Whatever business is being undertaken in the estate, whether by the Kariuki Kimiti or anyone else, is illegal and unlawful.
Consequently, the Judge on 30th October 2018 allowed the petition thus:
- issued a declaration that Kariuki Kimiti has infringed on the rights of the residents of Muimara Estate
- Issued a declaration that the City County of Nairobi and Liquor Licensing Committee had failed in their constitutional mandate by allowing Kimiti to operate a bar and nightclub within a residential area.
- Issued an order of injunction restraining the City County of Nairobi and Liquor Licensing Committee from licensing, allowing or permitting the Kariuki or any other persons to operate a bar; club or alcoholic selling business within Muimara Estate in Nairobi.
- Issued an order of injunction restraining Kariuki Kimiti from operating or running any alcoholic selling business within Muimara
- Directed that Kariuki bears the cost of the petition.