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ADMINISTRATIVE LAW GROUP ASSIGNMENT.

CLASS 1.2B (GROUP 2)

ANALYSIS OF THE CLOSURE OF BARS IN KIRINYAGA IN RELATION

TO THE PRINCIPLES OF ADMINISTRATIVE LAW.

GROUP MEMBERS.
1. MOU MARTIN MAKUR……… …………… BLAW/2023/61025
2. TAMARA NATALIA……………………….... BLAW/2023/72425
3. KEMUNTO NORAH………………………… BLAW/2023/62232
4. LOISE LAUREEN………………………….… BLAW/2023/72048
5. LUMBUGU JEFFREY JAMES……….………BLAW/2023/61976
6. GABRIEL KIOK0………………………...…... BLAW/2023/72667
7. VICTOR MUNENE…………………………… BLAW/2023/61920
8. VIRGINIA WANJIRU……………………….... BLAW/2023/61965
THE RULE OF LAW
Introduction:
The rule of law sometimes called the "supremacy" of the law provides that " the
decisions should be made by application of known principles or laws without the
intervention of discretion in the application. Rule of law therefore implies that every
citizen is subject to the law including law makers themselves. Those who enforce the
law should keep within its limits. Those in power must justify their decisions by
reference to an existing law.
Principle: No one is above the law and everyone is subject to the law.

Application to Ann Waiguru's speech

In the case of Anne Waiguru, she made the decision of closure of bars, re-registration
of licenses and she asked County government staff operating liquor outlets to choose
between venturing into business and retaining their employment of which these order
goes against the views of A.V. Dicey of the rule of law that include;
No punishment without breach: whereby in this scenario most of the bar legal
owners who are operating under the right procedures are being penalized for the
breach of a few offenders who were unlicensed and those who sold illegal brew. The
decision made by Anne Waiguru was out of her own judgment and this is due to the
death of the 17 people caused by the consumption of the illicit brew. It was not in her
jurisdiction to question the county government staff for owning bars which is not
illegal under the law and she also did not have the power to put them in a position
where they had to choose between their public duty and venturing into business.
Constitution originates from judicial decisions: the judicial body is assigned
with the authority of interpretation of the constitution therefore Anne Waiguru in her
executive capacity does not have the mandate to pronounce such orders upon the
Kirinyaga bar owners without fair hearing.

SEPARATION OF POWERS.
The Theory of Separation of Powers holds that the three organs of government must
be separate and independent from one another. Any combination of these three
functions into a single or two organs is harmful and dangerous for individual liberty.
Separation of powers of the three organs is essential for the efficiency of the
government and the liberty of the people.
Separation of powers, therefore, refers to the division of government responsibilities
into distinct branches to limit any one branch from exercising the core functions of
another. The intent is to prevent the concentration of power and provide for checks
and balances.
Application to the Closure of Bars by Governor Waiguru.
Kirinyaga Governor, Anne Waiguru has ordered the immediate closure of all liquor
outlets in the county following the deaths of 17 people at Kangai primary school after
consuming illicit brew. Waiguru said that the County Government has withdrawn all
licenses issued to the bars to allow for a fresh vetting. The Governor appealed to the
judiciary not to grant relief measures to those attempting to challenge the license
verification process in court. Deputy President Rigathi Gachagua assured her of the
National Government support in her efforts to address the issue. This being an issue of
the County Government, the County Governor is under the Executive body of the
country.

Considering Separation of Powers, governor Anne Waiguru is in violation of two

propositions as stated below;
1. The county Governor Anne Waiguru does not have the jurisdiction to advise
the courts on whether they should grant relief measures to those attempting to exercise
their constitutional rights through fair hearing by challenging the license verification
process. This is because Governor Anne Waiguru did not conform with the
proposition of separation of powers where formal distinction and precision of
functions of each organ should be consider therefore it was never in her capacity to
advise the Judiciary on how to exercise its functions.
2. In her address to the judiciary, Governor Anne Waiguru also violated the
proposition of check and balances whereby she directed the Judiciary on how to
handle the complaints that will come from the people affected by her order of closure
of bars yet the judiciary has the capacity to check the actions of the Executive
(Governor) whether it is in conformity with the constitution. However, Governor
Anne Waiguru evidence procedure of check and balance by intervening with the
jurisdiction of the judiciary by directing them on what to do.

PRINCIPLE OF NATURAL JUSTICE.

RINCIPLE OF NATURAL JUSTICE.
Natural Justice is the rule against bias and the right to fair hearing.

The basis for the rule against bias is the need to maintain public confidence in the
legal system .In the case of Governor, Anne Waiguru ,her remarks and directive about
the immediate closure of all liquor outlets in Kirinyaga County which happened on the
17th February 2024 can be seen as an attack on the rule against bias ;as closure of
liquor outlets should take the natural and legal process bestowed in the legal system
on the closure of liquor outlets and not being made in a public event address by the
county governor .
This event does not breed a lot of public confidence in the legal system, we have in
place and it has been made a mockery by governor, Anne Waiguru just calling for the
Closure of liquor outlets at her will in a public function .In normal circumstances, it
should be a memo issued to the matter at hand.

The erosion of public confidence undermines the structure of the legal system and
leads to chaos and the one in power and making decisions can be seen as biased.

In conclusion ,as much as Governor ,Anne Waiguru is a person of public

authority ,her remarks on the closure of liquor outlets can be seen as a violation
against rule against bias ,as the legal system ,we have in place should breed
confidence to the public and on this particular instance ,it does not .

FAIR HEARING (AUDI ALTERAM PARTEM).

First and foremost, fair hearing is a judicial proceeding that is conducted in such a
manner as to conform to fundamental concepts of justice and equality.
Fair hearing composes of a fair and public hearing within a reasonable time. Fair
hearing is a principle under Natural justice.

Application to Waiguru’s order of closure of bars.

In the case of Governor Anne Waiguru, the licensed bar owner should go and seek for
a fair hearing so as to get a court decision on whether to close down the bars as
instructed by the governor or to overturn her commands. The bar owners would
require right to representation and an interpreter if needed, and a court decision which
has a reasoning behind it.
Therefore, no man should be condemned unheard or both sides must be heard before
passing any order.
There should be a question on Notice in a legal sense: Any decision passed without
giving a notice in its strictest form as seen in our case of our Governor Ann Waiguru
is against the principles of natural justice.
If notice does not specify the action proposed to be taken, it is taken as vague and
improper. Therefore, a fair hearing ought to be done so as to ensure there is equity and
justice served to both the executive, Governor Waiguru Anne, and the business
owners whose businesses are at a threat.

LEGITIMATE EXPECTATION.
It is an expectation of a benefit, relief or remedy that may ordinarily flow from a
promise or established practice. The term 'established practice' refers to a regular,
consistent predictable and certain conduct, process or activity of the decision-making
authority.
The expectation should be legitimate, that is, reasonable, logical and valid. Any
expectation which is based on sporadic or casual or random acts, or which is
unreasonable, illogical or invalid cannot be a legitimate expectation.
Legitimate expectation relates to the ethics of fairness and reasonableness. This is
usually applicable where a person has an expectation in retaining a long-standing
practice or in the fulfilment of what was practiced.

Application to Waiguru’s closure of Bars.

The doctrine of legitimate expectation will ensure that the bars in Kirinyaga comply
with the set liquor licensing regulations put up by the governor. It allows the county
government to close bars that have been operating without a license or have a history
of selling unauthorized products. This ensures the safety and well-being of the
community.

REMEDIES TO BE AWARDED TO THE AFFECTED.

In the case of the governor of Kirinyaga governor ordering the closure of all the bars
in the county and immediately revoking all the issued licenses to the registered owners
can be challenged in court to be beyond the scope of power and if found by the court
to be ultra-vires then the following are remedies that are available:

1. Judicial review: The most common remedy available for individuals affected
by ultra vires actions of the government is to challenge the legality of the action
through judicial review. Judicial review is a process where a court reviews the
decision or action of a public authority to ensure that it was lawful, rational,
and within the scope of its legal authority. In this case if the licensed bar
owners decide to challenge the order to close all bars and to the court that the
county Governor acted beyond its capacity, it can declare the action to be ultra
vires and unlawful.

2. Quashing orders: If a court finds that the government acted ultra vires, it can
issue a quashing order. A quashing order nullifies the decision or action by the
government and restores the legal position to what it was before the illegal
action was taken. The bar owners in Kirinyaga may challenge the order by the
 governor to close all bars that it was unlawfully enacted and if it is proved the
court issues an order to quash the closure order.

3. Damages: In some cases, individuals affected by ultra vires actions of the

government may be entitled to damages. Damages may be awarded to
compensate for any loss or harm suffered as a result of the illegal action. If the
order to close all bars in Kirinyaga county by the governor is enacted and later
ruled to be unlawfully done, then the bar owners may be awarded damages by
the court if they proved they suffered the loss.

4. Injunctions: An injunction is a court order that prevents the government from

taking a particular action or requires the government to take a particular action.
Injunctions may be available in cases where the harm caused by the ultra vires
action cannot be adequately compensated by damages. The bar owners may
move to court to prevent the governors order to be enacted.