ALCOHOLIC BEVERAGES STAKEHOLDERS NEGATIVELY AFFECTED BY PROTOCOLS AND GUIDELINES SET DURING THE COVID-19 GLOBAL PANDEMIC PERIOD

THAT the undersigned is acting on his own behalf, in public interest and on behalf of liquor stakeholders comprising of persons domiciled within the territorial jurisdiction of the republic of kenya and who persons are subject to fair administrative actions.
We acknowledge, respect and support the measures so far taken by the National Government and the County Government to ensure safety of its citizens in regard to the fight against the spread of Covid-19 (Corona virus) which is a global pandemic. We are therefore committed to adhere to all executive, legal and constitutional decisions aimed at curbing the menace.
That on 23rd of March 2020 the order to close and suspend all bars operations was effected and with the extension of the curfew and indefinite closure of bars and restaurants simply means that liquor outlets have been closed for almost 6 months without any trading activities taking place within bars in the territorial jurisdiction of the Republic of Kenya.
However, I am acting for and in the interest of the undersigned whose rights are either denied, violated or threatened by the retrogressive measures that have affected the social economic livelihood of the undersigned, the immediate employees, their families, and a barrier to legitimate trade
It is worth noting that none of the reported and confirmed cases are traced, attached or associated to any liquor selling outlet specifically within the territorial jurisdiction of the republic of Kenya
The Government at both levels should have ensured proper application within their clear interpretation of the said procedures other than ordering closure of liquor selling outlets within their territorial jurisdiction of the republic of Kenya without consulting the stakeholders likely to be adversely affected by the administrative decisions.
The measures taken and by ordering the closure of the licensable liquor selling outlets and/or suspension of liquor licenses, in the guise of mitigating measures, left other equally vulnerable players still in operation and the Public Health Act was applied selectively to discriminate other legitimate business persons from operating while protecting the interest of others.
That a cross interrogation into the Kenya Gazette, subsidiary legislation no. 41 volume no. CXXII-No. 67 legal notice no. 50 dated 17th April 2020 basically alludes to the Public Health Act (Cap 242) whereby;
a) production
b) distribution
c) sale
d) consumption of alcoholic drinks has not been referred to or affected by the said legislation
Under the Fair Administrative Action Act No. 4 of 2015 an “administrator” means a person who takes an administrative action or who makes an administrative decision. Administrative action as per the act includes the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.
The Law ought to have been applied equally to all citizens irrespective of class, gender, race and nature of business as provided for under Article 27 (a) (b) of the Constitution of Kenya, 2010.
Every person has the right to an administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. Every person has the right to be given written reasons for any administrative action that is taken against him. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision prior and adequate notice of the nature and reasons for the proposed administrative action, an opportunity to be heard and to make representations in that regard; information, materials and evidence to be relied upon in making the decision or taking the administrative action an opportunity to be heard and to make representations in that regard.
Apparently the Government at both levels ought to have followed suit and ensure proper application of the said act as a fair administrator other than ordering closure of liquor selling outlets within its territorial jurisdiction even without giving an opportunity to the affected persons to be heard or even clear their stocks and giving reasons and/or grounds relied upon in arriving at such a decision calling for public participation with an aim of getting an amicable solutions and necessary measures that are rational to curb the menace (Covid-19) without necessarily barring or stopping trade .
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The Government acted ultra-vires by making unfair administrative decisions of discriminating against its citizens in the alcoholic beverages industry.
It is our humble petition to the Government at both levels to acknowledge that the directives and/or directions directly affected the undersigned stakeholders on the following grounds;
a) That the Government failed to compel the landlords to waive rents payable for the period that the liquor outlets remain closed as ordered.
b) That liquor traders within the country were discriminated against in the manner in which the Public Health Act Cap 242 Laws of Kenya was applied in his direction to suspend the liquor licenses for general retail bars, bars and restaurants and night clubs while other trading business categories including markets, supermarkets, matatus and shops were not affected by the said directives.
c) That the procedure of closure or suspension of liquor licensed outlets without consultations with the stakeholders and calling for public participation was not followed and the fact that the Government neglected, ignored or refused to adhere to the procedure under Article 69 (a), 118, 196 and 201 of the Constitution of Kenya 2010 and under the alcoholic drinks control act and the fair administrative action act.
d) That the able Government neglected, ignored or refused to acknowledge and appreciate the measures that had been taken by the liquor traders in support of the government's directive in containing the Covid-19 (Corona Virus).
e) That there exist no compensation plan for the affected stakeholders who have bills to pay, workers to pay, families to feed, rent and licenses to pay and the resultant consequences upon closure of their businesses for the said period as indicated in his executive directives which has sounding negative effects as herein below;
1) That there is eminent danger posed by the said directives since members of the public will be forced to turn to alternative cheap illicit liquor which is a health hazard, dangerous and results to loss of lives.
2) That the directive only affects bars and restaurants and not other businesses in the whole Republic hence making the aforementioned liquor outlets lose business and incur untold loses due to the fact that the law is being applied discriminatively.
3) Liquor trade is legitimate and all decisions made should not threaten or be used as a barrier to trade.
4) That the bars and restaurants stakeholders continue to suffer loss of business, being that the liquor/ alcoholic beverages, soft drinks, food stuffs and all other retailed stock in the liquor outlets are perishable some of which are either expired or on the verge of expiring.
5) That the directives are repugnant in that it shall in the near future open floodgate litigations within the Rent and business Tribunals emanating from inability to pay rent since the government has not put in place measures to ensure tenants either enjoy a discounted rent rate or exempted from paying rent for a given period of time.
6) That the welfare of the labour force within the liquor trade who are adversely affected by the indefinite closure has not been considered to avoid a scenario where employers will be sued for failure to pay their workers dues under the prevailing circumstances.
7) That there is eminent danger posed by the labour force rendered jobless with its related consequences of burglary, arnachy and lawlessness.
8) That the consumption of illicit blew is on the rise, a trajectory which may result to early deaths.
9) That the effect of withdrawal syndrome has been reported in most health facilities which may lead to pre-mature deaths.

Reliefs sought;
That we seek to offer an alternative to such retrogressive measures with an aim of arriving to the desired results without necessarily barring legitimate trade
Operations to be restored with necessary conditions compatible and in compliance with the current prevailing condition in curbing the spread of Covid-19;

That a task force comprising of the representatives of liquor manufacturers, distributors, wholesalers, hotels, bars and restaurant outlets and the relevant government agencies be formed to mitigate on the overlying issues.
That the government should consider lifting the ban on sale and consumption of alcoholic drinks in spacious and well ventilated outlets in strict compliance with the Covid – 19 protocols and guidelines.
That the Government should consider lifting the ban on small outlets and allow the sale of alcoholic drinks on cash and carry basis (take away).
That the good caring Government to waive all license fees and levies to caution traders from the negative effects of the closure of liquor outlets.
That the good and well-intentioned government to consider the undersigned among the vulnerable groups and offer them financial support.