Bar owners lose court battle against alcohol laws

FILE | NATION. Naivasha MP John Mututho displays beer bottles with health warning messages in July 2010.
Naivasha MP John Mututho displays beer bottles with health warning messages in July 2010. Photo/FILE 

The alcoholic beverages industry players face further revenue losses after High Court ordered the full implementation of the alcohol control law.

The full effect of the law on manufacturers is expected in just over a month when listed East African Breweries releases its half-year results.

An earlier interim order allowing day-time drinking was on Monday declared unconstitutional.

Bars and restaurants violating the Alcoholic Drinks Control Act 2010 now face closure with both consumers and proprietors threatened with stiff penalties.

However, a group of lawyers are seeking to appeal Mr Justice Daniel Musinga’s dismissal of the case brought by the Murang’a Bar Operators Association.


But an attempt to have the judge issue a seven-day injunction pending filing of formal notice of appeal was rejected by Mr Musinga.

“It is even against the provisions in the legal statutes,” said Mr Justice Musinga of attempts to have him stay his ruling.

The Act, commonly referred to as “Mututho Rules” prohibits the selling of alcohol before 5 pm on weekdays, 2 pm at the weekends, and after 11 pm during the week.

Further, the law states that such premises should not be located less than 300 meters from a learning institution.

A number of consumers have so far been fined Sh30,000 for drinking during the day while manufacturers are estimated to have lost heavily during the December peak season.

The judge concurred with Attorney General’s submissions that consumption of alcohol had ravaged the country leading to death, blindness, economic loss and family break-ups particularly for the youth.

He was persuaded that the government had put in place a framework under which bar owners should operate, saying he could not issue orders restraining police and provincial administration officers from performing their duties.

Bar operators had complained that the provincial administration was unlawfully harassing, arresting and intimidating bar employees and patrons in the course of their operating or selling licensed drinks.

Operators from Murang’a were on January 14 granted orders by Mr Justice John Mwera, stopping the implementation of the new law pending the hearing and determination of the case.
Murang’a Bar Operators Association Group had sued the minister of State in-charge of provincial administration and internal security, Nacada, and the AG.

Later, Mathira MP Ephraim Maina representing the Central Kenya Parliamentary Group, Njoki Mitugo on behalf of Servers of Health and Environment, and Nakuru County Consultative Forum through Chairman Francis Kiranga were enjoined in the suit as interested parties.

The interested parties are in support of the government’s efforts to implement the law arguing that bar owners were allowing people to drink during the day.

Mr Justice Mwera had issued the earlier orders on grounds that the transitional clause under Section 70 of the Act allows for nine months compliance period, which the businessmen claimed had not lapsed.

Murang’a bar operators had argued that the district liquor licensing committees had not been constituted to issue bar operators with new licences.

But on Monday, Justice Musinga said the A-G had confirmed that the district liquor licensing committee has been constituted and was operational.

District commissioners countrywide have issued a circular to businessmen directing them to close bars and restaurants that do not conform to the regulations.

A lawyer for the group opposing the new law Mr Jeremiah Mbuthia said his clients’ rights to protection of property under Article 40 of the Bill of Rights had been contravened.

The Act came into law on November 22, but the regulations, which should announce its commencement date, are yet to be gazetted. President Kibaki assented to the law on August 13.

The bar owners claim the new law exposed them to harassment and closure of their business premises if they fail to observe the stipulated operating hours.

It is as a result of this that the bar operators filed a court case on grounds that the new law is discriminative and inconsistent with the Constitution, claiming it denied them the right to enjoyment of their property.

A similar case was filed in court on December 27 by 55 Embu Bar Owners’ Welfare Association saying the new law would edge them out of business.

They also argue that its implementation contravenes their right to own property and protection as guaranteed under Article 40 of the Constitution. The case is yet to be determined.

The Act also says persons under 18 are not allowed access to areas where alcoholic drinks are sold, stored or manufactured.

This has put joints popular for family entertainment at a precarious financial situation.

Women in Murang’a County last week held a demonstration in support of the new law and condemned the ruling staying its implementation.