Mombasa court declines to lift Muguka ban by Coast counties

The High Court in Mombasa has declined to lift the ban on Muguka and Miraa in three coastal counties. The bans were imposed by governors of Kilifi, Mombasa and Taita Taveta counties.

Justice Olnga Sewe said the orders sought by petitioners Peter Odhiambo Agoro and Michael Mutembei Makarina had been issued by another court.

The High Court in Embu suspended the ban imposed by governors Abdulswamad Nasir of Mombasa, Gideon Mung'aro of Kilifi and Andrew Mwadime of Taita Taveta and their governments.

The governors resorted to raising the revenue for the herbs in an escalated fight against the chewable herbs by youths.

The county executive had banned the entry, transportation, trade and consumption of Muguka through respective gazette notices two months ago.

Then Angoro and Makarina filed an application seeking the ban to be declared unconstitutional and asked the court to issue a conservatory order putting the bans on hold pending a hearing and final determination of the petition.

They have argued that the restrictions imposed on the herbs were unconstitutional, illegal and amount irregularity – seeking the High Court to nullify them.

But Justice Sewe said she is aware and takes judicial notice that a series of suits were filed at the High Court of Mombasa and elsewhere following the issuance by the respondents (the three county governments) of the disputed executive orders.

"In one such matter, the High Court at Embu issued conservatory orders in respect of the same executive orders. Since those orders are still subsisting, it would be absurd for this court to issue similar orders as urged by the petitioner," stated Justice Sewe.

The judge said the orders sought would not change anything as much has happened and they have already been overtaken by events, adding that no court of law will knowingly act in vain.

"The general attitude of courts of law is that they are loathed in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose," the judge said.

"In the premises, the application dated May 24, 2024 (by Angoro and Makarina) is bereft of merit and is hereby dismissed with no order as to costs."

Mombasa County government's lawyer Jimmy Waliaula had argued that the interim orders sought by the petitioners if granted, would occasion great and irreversible harm to the residents of Mombasa County.

Waliaula urged for the dismissal of the application by the court.

The petitioners claim that the counties issued their respective orders before conducting public participation as required by the Constitution, and consequently posited that the orders are illegal, null and void as the responsibility to ban the sale or use of Muguka is vested on the Parliament.

They had sought an injunctive order be issued restraining the effect or implementation of the ban orders imposed by the counties.