Businessman seeks to have alcohol control law quashed

A Mombasa businessman whose entertainment club was closed down by the police wants the court to declare the Alcoholic Drinks Control Act 2010 unconstitutional.

Stephen Waita, the proprietor of the Magongo Day and Night club in Mombasa, claims the Act cannot be enforced in the manner the Changamwe OCPD is doing since it is invalid.

Mr Waita says actions by the OCPD are without basis in law since the function of licensing liquor is devolved and police can only deal with enforcement on instructions of the county government.

“It has subsequently been confirmed by the county government that the function of liquor licensing belongs to it and they have not authorised the OCPD to enforce the rules,” reads the petition.

Justice Maureen Odero certified the case filed last week as urgent and set August 27 as the mention date.

The OCPD Changamwe and the Attorney General who are named as respondents in the case have not yet filed their responses.

The businessman is seeking a declaration that the OCPD has no powers to enforce provisions of the Act without authority from the county government.

Through lawyer Stephen Oddiaga, he also wants the court to quash an order by the OCPD closing his entertainment joint.

The businessman claims that the OCPD invaded his business premises on July 22 and ordered it closed without giving proper reasons.

Mr Waita says before he re-opened the premises he sought directions from the Mombasa county officers who confirmed to him that they are responsible for issuing liquor licences.

On August 5, Mr Waita says police officers went back to his club, closed it and ordered all revelers to leave.

Through the petition, Mr Oddiaga claims his client feels aggrieved by the harassment and especially the closure of his business, which has crippled him financially that he is unable to raise money for his upkeep.

The petitioner claims the OCPD has never given him any notice of his intention to inspect any licence and that he has applied to the county government, which allowed him to operate while awaiting the processing of his application.

He further claims that the actions of the OCPD in raiding and closing his business is discriminatory and illegal.

Mr Waita claims the raids are malicious since there are other businesses that have not been closed yet they do not have licences.

In his supporting affidavit, the petitioner said he operates a legitimate business and he believes it is unfair for the OCPD to disrupt it by relying on an obsolete law.

“The OCPD, even if he was enforcing the law as he alleges to have been doing, could not act without a court order,” said Mr Waita.