A fresh constitutional petition filed at the High Court in Kiambu has raised serious questions over the legality of the arrest, prosecution and continued detention of two women accused of violating alcohol and public health laws, with the petitioners claiming the criminal case defies an existing High Court order and is founded on defective charges.
The petition, filed by Richard Mungai Kagiri on behalf of Susan Njeri Ndungu and Eunice Njeri, seeks to halt criminal proceedings before the Kikuyu Chief Magistrate’s Court and have the High Court invoke its supervisory jurisdiction to quash the charges and order the women’s immediate release or grant them reasonable bail pending determination of the case.
The two women were arrested on July 23, 2026, by officers attached to Kikuyu Police Station before being charged in Criminal Case No. MCCGCR/E099 of 2026 with exposing and offering alcoholic drinks for sale contrary to the Alcoholic Drinks Control Act and handling alcoholic drinks without a medical approval permit under the Food, Drugs and Chemical Substances Act. They pleaded not guilty but were remanded at Lang’ata Remand Prison pending preparation of a pre-bail report.
In the constitutional petition, the applicants argue that the prosecution violates an earlier High Court order issued on March 29, 2026, in Civil Appeal No. E029 of 2026, which allegedly restrained authorities from closing their business, harassing, arresting, detaining or prosecuting them over liquor licensing matters pending further directions from the court.
According to the petition, the new criminal charges amount to a deliberate attempt to circumvent and disobey the existing court orders.
The petition further contends that liquor licensing is a devolved function regulated under the Kiambu County Alcoholic Drinks Control Act rather than the national Alcoholic Drinks Control Act cited in the charge sheet. It also argues that no Kenyan law expressly prohibits the sale of a 750-millilitre bottle of alcohol in measured tots or shots.
A major pillar of the case concerns the second count relating to handling alcoholic drinks without a medical approval permit.
The petition claims the cited statutory provisions do not create such an offence and that the prosecution relied on regulations that either do not exist in the cited form or relate to different matters altogether. It argues that Regulation 15 under the relevant law concerns cosmetics rather than alcoholic drinks and that the cited provisions fail to disclose an offence recognized under Kenyan law.
The applicants also fault investigators for allegedly charging the suspects without involving an authorized public health officer, despite the alleged offence requiring specialized public health enforcement.
They maintain that the Food, Drugs and Chemical Substances Act defines an authorized officer as a Medical Officer of Health, Public Health Officer or another duly authorized person, none of whom is listed as an investigator or principal witness in the case.
The petition further accuses the trial court of failing to exercise its powers under Section 89(5) of the Criminal Procedure Code to reject a defective charge sheet before plea was taken.
It also argues that the court failed to record compelling reasons for denying the accused immediate bail despite the prosecution allegedly not demonstrating that they posed a flight risk.
The applicants describe the continued detention of the two women as disproportionate, arguing that remanding suspects accused of what they term minor regulatory offences violates the constitutional right to liberty and departs from standard sentencing principles applicable to such offences.
The petition invokes Articles 27, 28, 29, 47, 49, 50 and 157(11) of the Constitution, alleging violations of the rights to equality, dignity, freedom from arbitrary detention, fair administrative action, reasonable bail, fair trial and proper exercise of prosecutorial discretion.
Among the remedies sought, the petitioners ask the High Court to declare that the constitutional rights of the two accused persons have been violated, declare the arrest and prosecution unconstitutional, quash the entire criminal proceedings before the Kikuyu Chief Magistrate’s Court, award general damages for alleged constitutional violations and grant any other relief the court considers appropriate.
The Director of Public Prosecutions, the Kikuyu Chief Magistrate’s Court, the Officer Commanding Kikuyu Police Station, the Inspector General of Police and the Attorney General have all been named as respondents in the petition.
The High Court is expected to determine whether the criminal prosecution should proceed or whether the applicants’ constitutional challenge warrants intervention through the court’s supervisory and revisionary jurisdiction.
