Can one Stop the Licensing of Bar Business?

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:

1. The county government and Liquor Licensing Committee’s decision to grant Kariuki Kimiti a licence to operate a bar in their estate.
2. 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:-

1. 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.
2. 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
3. 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.
4. 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.
5. 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.
6. 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:

1. 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.
2. 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.
3. Whatever business is being undertaken in the estate, whether by the Kariuki Kimiti or anyone else, is illegal and unlawful.

Consequently, the Judge on 30^th October 2018 allowed the petition thus:

1. issued a declaration that Kariuki Kimiti has infringed on the rights of the residents of Muimara Estate
2. 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.
3. 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.
4. Issued an order of injunction restraining Kariuki Kimiti from operating or running any alcoholic selling business within Muimara
5. Directed that Kariuki bears the cost of the petition.

Medical Trafficking Bill 2018

The Medical Trafficking Bill 2018, by Kesses MP Swarup Mishra is soon coming up for debate on the floor of the August house. The bill seeks to regulate the transfer of patients from Kenya to foreign countries for treatment. It will give teeth to regulations jointly drawn a while back by the Health Cabinet Secretary Cleopa Mailu and the Kenya Medical Practitioners and Dentists Board (KMPDB). As per these regulations, a doctor can only refer a patient abroad for treatment if there is evidence that hospitals in the country lack the capacity to take care of them. Also if the patient is using public funds, the referral has to be the most cost-effective option and approved by NHIF.

Since the 1990s, India has been celebrated as a global leader in “medical tourism. The visas to India can be ready in a week, and the country’s doctors are very qualified. These doctors are supported by world-class medical equipment, their medical procedures are approved by the World Health Organisation (WHO) and Kenyan consumers have said the cost of treatment and care is fair compared to what you get.

Although Kenya has seen quite some advancement in medical facilities and services not least buoyed by the Asians and other foreigners setting up satellite stations in Kenya, health professionals have continued to make the fast shilling by referring patients abroad for a fee. For example surgeries like the knee, shoulder or ankle joint replacement can be treated in Kenya today. Kidney transplant too. Cancer management centres are quite a number in Kenya too. When a patient is referred abroad the cost is much higher than if the treatment was done here in Kenya even without the kickback. But patients keep being referred abroad sometimes unnecessarily.

The bill seeks to tame these marauding and unscrupulous medical practitioners, charlatans, cartels and quacks who swindle suffering Kenyans off their money in the name of specialised treatment abroad.

In a nutshell the bill we put in place a mechanism to:

• pre-qualify countries and hospitals where Kenyans can go for treatment. Some parts of the world have standards for sanitation that may not meet Kenya’s specifications. Some countries may not have stringent measures to detect and eliminate counterfeit or poor quality drugs. Others may be shutting a blind eye as to organ harvesting.

• detect the ability of the patient or his handler to communicate effectively with doctors. The language spoken in a destination country may be an impediment.

•  review the agreement entered into between the health care the facility, the group arranging the trip and the patient because foreign medical facilities or country policies may make it difficult a patient to pursue a legal claim.

• facilitate the patient to assess the treatment deal by providing data. Advise the patient impartially for example if a patient is terminally ill the assessors are sure that referring him or her abroad will not do anything to save his or her life, then there is no need to refer the patient abroad.

•  detect the source the organs the patient is receiving to reduced chances of patients receiving parts source unethically e.g from children, the destitute, and prison inmates. This unethical and at worst illegal and can lead to litigation.

• ensure that the patient’s medical condition is documented and well-controlled before departure. After treatment, the patient must receive a treatment summary. The records, including any post-mortem reports, must be repatriated Kenya and registered with the Kenya National Patients Register and the Kenya National Cause of Death Register.

The law will not stop patients who choose to go abroad for treatment, rather it will monitor “the how and the who”by pre-approving and monitoring healthcare facilities, groups and individuals arranging medical trips abroad for Kenyans.

When Can A Judge Disqualify Himself?

According to Lord Hewart CJ in R vs Sussex, “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

That is why sometimes a party to a court process, including the judge, may want a presiding judge (or magistrate) to disqualify himself from hearing the matter in court. Most commonly this happens when there is a perception that the judge may be biased in favour of or against one party or that a reasonable objective observer would think he might be. This could arise if, for example, the judge has:

• a financial interest in the outcome of the case. The rationale being that one cannot be a judge in his own cause
• a personal interest in the subject matter, or has a relationship with someone who is interested in it
• personal knowledge about the parties or the facts of the case to a point where he can be a material witness
• a background or experience, such from his prior work as a lawyer has acted as counsel for a party
• communicated with lawyers or non-lawyers of one party in absence of the others
• made biased rulings, comments or conduct during the hearing

In 2013 at Eldoret High court, (miscellaneous criminal application no. 82 of 2013), Barnaba Kipsongok Tenai applied for the Magistrate to be disqualified from hearing his criminal case on the grounds that she had shown open animosity towards him and his lawyer, Mr Omwenga.

Tenai, the applicant was arraigned in an Eldoret Magistrate's court on 27th May 2008 on a criminal charge. He was released on bond. While out on bond, he failed to attend the court because, on the day he was expected in the court, he was attending a different court. Tenui had been expected in court on an earlier date, but this day, the trial Magistrate was absent. So he was informed by the court's Clerk to return to court on 17^th September, 2012. But on 17^th, he also had another criminal trial at the Kapsabet Law Courts. He attended the Kapsabet Court and so was absent from the Eldoret Court. The Eldoret court cancelled his bond.

So, Tenai went to High court and had the bond terms were reinstated (Criminal Application No.137 of 2012).
The magistrate refused to honour the bail terms. For this Mr Tenui was of the view that from the trial Magistrate's attitude and behaviour, she cannot be deemed as impartial and if the trial continues before her, there was a likelihood of a miscarriage of justice. Therefore having no more trust in the trial court, he made an application that the trial Magistrate Hon. Dolphina Alego disqualifies herself from hearing the matter and the case to be transferred and heard before a different magistrate.
During this application hearing, a twenty-minute altercation between the magistrate and Tanui’s lawyer ensued in an open court during which exchange Hon. Dolphina told him that she had been seen him at the Judges and Magistrates Vetting Board. She dismissed the application to disqualify herself.

Not satisfied, MrTenui, went to the High court. Here, under oath, he testified that the altercation that ensued between his counsel and the learned Magistrate Hon. Dolphina Alego on 20th May, 2013 for 20 minutes was about a personal grievance that the Honourable Magistrate had against his counsel. Yet despite his advocate's plea that the personal scores be privately settled in Chambers, she insisted that the application seeking that she recuses herself from the trial be heard in an open court.

Miss Ruto appearing for Dolphina Alego, the magistrate, did not oppose the application. In her own words, she submitted that for justice to be seen to be done, the criminal trial should be heard by another Magistrate other than the current trial Magistrate. She also stated that there was a likelihood of a miscarriage of justice on grounds that are personal between Mr Tenu's Lawyer and the Magistrate.

After a full hearing at the High court, the Judge concluded that the only issue for determination was whether the trial Magistrate had exhibited bias against the Applicant and by and large his lawyer to warrant a transfer of the criminal trial from her court.

The Judge found that the facts of the case spoke for themselves. The trial Magistrate by openly quarrelling the Applicant's Counsel on matters not related to the trial before her was a clear signal that she was angry or bitter with him. This set the stage for the perception that the ends of justice would not be met and that justice would not prevail. As such the Judge concurred with Tenui that due to the exhibited bias by the Hon. Magistrate, It was clear that fairness in the administration of justice would not prevail and that the trial was unlikely to proceed in an impartial manner.

On 23rd July 2014, the High Court ruled that Tanui’s criminal case be transferred for trial before another Magistrate.