The High Court in Nairobi has issued an order freezing any withdrawals from the Nairobi Alcoholic Drinks Control Fund.
The fund was established to finance expenditures related to promoting cessation and rehabilitation programmes within Nairobi county, as well as disseminating information on alcoholic beverages and addressing other related issues.
In his judgment, Justice Lawrence Mugambi declared Section 43 of the Nairobi County Alcoholic Drinks Control and Licensing Act, which establishes the fund, as unconstitutional.
The judge ruled that all funds previously deposited into the account will be redirected to the County Revenue Fund Account until a legally and constitutionally compliant public fund is established.
"Im persuaded that section 44 of the Act, which creates the fund, is misplaced as such a fund ought to have been created in strict compliance with the Public Finance Management Act," he said.
"Further scrutiny reveals that the section (of the Act) also fails to meet the transparency requirements mandated by the Public Finance Management Act," the judge added.
He noted that the Act is silent on the role of the County Executive Member in charge of Finance, despite the prominent role assigned to the county executive in other aspects of the Act.
The court’s ruling followed a case filed by Rosalind Nyawira, who sued the Nairobi County Government in 2023.
She challenged the manner in which the county was carrying out their mandate under the Nairobi City County Alcoholic Drinks Control and Licensing Act.
She argued that the Act was enacted without adhering to public participation.
The Nairobi county government on the other hand sought for the dismissal of the case claiming that it was filed in bad faith.
Acting county secretary filed an affidavit stating that the withdrawals in the fund were done in good faith.
The county argued that the Act provided for the expenditure that is supposed to be covered by the fund.
The county government argued that Nyawira's application sought to unconstitutionally prevent them from exercising their mandate as far as the role of the fund is concerned.
The county was against issuance of a stop order sought, saying it would pralayse the operations within the Nairobi County Alcoholic Drinks Control Board.
