Embu County Alcoholic Drinks Control Act, no. 1 of 2021

SPECIAL ISSUE REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT EMBU COUNTY ACTS, 2021 NAmOBI, 24th May, 2021 CONTENT Act PAGE The Embu County Alcoholic Drinks Control Act, 2021.. .l ProNTED AND PUBUSHED BY THE GOVERNMENT PRINTER, NAIROBI THE EMBU COUNTY ALCOHOLIC DRINKS CONTROL ACT, 2021 No. I of2021 Date of Assent: 26th March, 2021 Date of Commencement: See Section J ARRANGEMENT OF SECTIONS Section l-Short title and commencement. 2-Interpretation. 3--Obj ect and purpose of Act. PARTll-ADMINISTRATION 4-Establishment of the Board. S-Rehabilitation facilities and programs. PARTIll-LICENSING 6-Activities to be licensed. 7-Establishment of the Sub-county committee. 8- Review of sub-county committee decisions. 9-Application for licence. 100Grant of a licence. l l=-Condition of premises. 12-Persons not eligible for a licence. 13-Validity and renewal of licences. 14-Appeal and review to Board. IS-Exhaustion of statutory mechanism. 16-Revi ew to Court. 17-Licenses to body corporates. 18-Types of licence. 19-Transfer of licence. 20-Removal of licence. 21-Licence to be displayed. 22-Underage persons not to be employed. 2 No.1 Embu County Alcoholic Drinks Control 2021 23-Exclusion of drunk and disorderly persons from premises. 24-Restliction on debt from sale of alcoholic drinks. 25-Exclusion of underage persons from premises. 26-Reports by public health officers and police officers. 27-Cancellation of licence. PART IV-GENERAL REQUIREMENTS 28-Conformity with requirements. 29-Sale to underage persons. 30-Display of signs. 31-Prohibition of sale by Vending machines. 32-Prohibition of sale in sachets. PART V- SALE AND CONSUMPTION 33-Prohibition of sale to intoxicated persons. 34- Display oflist of brands. 35-Breach of licence. 36-Sale to authorized officer. 37-Non disclosure of conviction. 38-Sale without licence. 39-Sale of adulterated alcoholic drinks. 40-Proof of sale. 41-Burden of Proof. 42-Endorsement of conviction on licence. 43-Forfeiture of licence upon conviction PART VI-ADVERTISEMENT AND PROlVIOTION 44-Prohibition of advertisement and promotion. 45-Promotion at underage events. 46-Encouraging consumption. PART Vn-COMPLIANCE 47-Authorised officers. 48-Powers of authorized officer to enter any place. 3 2021 Embu County Alcoholic Drinks Control 49-General Powers of Authorized Officers. 50-Use of records. 51-Restriction to enter dwelling place. 52-Court to issue warrant. 53-Certificate of analysis. 54-Duty to facilitate officers. 55-Authorized officer not to be obstructed. 56-Power of seizure. 57-Order for restoration of seized product or thing. 58-General penalty. 59-Offences to be cognizable. 60-Nature of evidence in proceedings. PART VIII-MISCELLANEOUS No.1 61-Regulations. 62- Repeal of No.3 of 20 14. 63-Transitional consequences. FIRST SCHEDULE-Types of Licences. SECOND SCHEDULE-Licence hours. THIRD SCHEDULE-Alcoholic Drinks Related Fee. 4 No.1 Embu County Alcoholic Drinks Control 2021 THE .EMBU COUNTY ALCOHOLIC DRINKS CONTROL ACT, 2021 AN ACT of the County Assembly of Embu to provide for the licensing and regulation of the production, sale, distribution, consumption and outdoor advertising, of alcoholic drinks, and for connected purposes ENACTED by the County Assembly ofEmbu, as follows PART I-PRELIMINARY Short title and commencement 1. This Act may be cited as the Embu County Alcoholic Drinks Control Act, 2021 and shall come into operation on the date of publication in the Gazette. Interpretation 2. Inthis Act, unless the context otherwise requires "alcohol" means the product known as ethyl alcohol or any product obtained by fermentation or distillation of any fermented alcoholic product, rectified either once or more often, whatever the origin, and shall include synthetic ethyl alcohol, but shall not include methyl alcohol and alcohol completely denatured in accordance with the prescribed formulas; "alcoholic drink" includes alcohol, spirit, wine, beer, liquor, traditional alcoholic drink, and anyone or more of such varieties containing one-half of one percent or more of alcohol by volume, including mixed alcoholic drinks, modified industrial alcohol blended for human consumption and every liquid or solid, patented or not, containing alcohol and capable of being consumed by a human being; "authorized officer" means an authorized officer within the meaning of section 48; "Authority" means the National Authority for the Campaign Against Alcohol and Drug Abuse" established under the National Authority for the Campaign Against Alcohol and Drug Abuse Act, 2012; "chief officer" means the county chief officer for the time being responsible for the alcoholic drinks control; "County" means the Embu county; "Board" means the Alcoholic Drinks Control Board established under section 4; 5 2021 Embu County A lcoholic Drinks Control No.1 "entity" includes a company, corporation, firm, partnership, association, society, trust or other organisation; whether incorporated or not; "Executive Member" means the County Executive Committee member for the time being responsible for alcoholic drinks control; "Governor" means the Governor of Embu County; "health institution" means a hospital, nursing home, convalescent home, maternity home, health centre, dispensary or other institution where health or other medical services are rendered free of charge or upon payment of a fee; "hotel" shall have the meaning assigned to it under the Tourism Act, 2011; "illicit trade" means any practice or conduct prohibited by law and which relates to production, shipment, receipt, possession, distribution, sale or purchase of alcohol or its products, including any practice or conduct intended to facilitate such activity; "licensee" means a person who holds a licence granted under this Act, "locality" unless where context otherwise provides to the contrary, means a municipality, town, urban area, sub-county or ward as the case may be; "manager" in relation to (a) a hotel, theatre or any institution dealing with alcoholic drinks, includes an assistant manager, a person holding an office analogous to that of a manager or assistant manager of the hotel or theatre or any person in charge or in control of the hotel or theatre; (b) a health institution, includes the owner or a person in charge or in control of the health institution; (c) a specified building, includes the owner, occupier, lessee or the person in charge or in control of the specified building; "manufacture" means the brewing, distilling, tapping or any processing or intermediate processing of an alcoholic drink and includes the packaging, labelling, distribution or importation of an alcoholic drink for sale in the county or anywhere in Kenya; "manufacturer", in respect of an alcoholic drink, includes any entity that is involved in its manufacture, including an entity that controls or is No.1 6 Embu County A lcoholic Drinks Control 2021 controlled by the manufacturer, or that is controlled by the same entity that controls the manufacturer; "Off-licence" means a licence for the sale of alcoholic drink to be consumed elsewhere than on the premises; "package" means the container, receptacle or wrapper in which an alcoholic drink is sold or distributed and includes the carton in which multiple packages are stored; "retailer" means a person who is engaged in a business that includes the sale of any alcoholic drink to consumers; "sell" includes (a) barter or exchange without use of money; (b) offer or expose for sale, barter or exchange without use of money; (c) supply, or offer to supply, in circumstances in which the supplier derives or would derive, a direct or indirect pecuniary benefit; (d) supply or offer to supply, gratuitously but with a view of gaining or maintaining custom, or otherwise with a view for commercial gam; "Sub-county committee" means the Sub-county Alcoholic Drinks Regulations Committee appointed under section 7. Objects and purpose of the Act 3. The object and purpose of this Act is to provide for licensing of alcoholic drinks by the County government pursuant to Part 2 of the Fourth Schedule to the Constitution so as to control the production, sale, distribution, promotion and use of alcoholic drinks and the promotion of research, treatment and rehabilitation for persons dependent on alcoholic drinks in order to (a) protect the health of the individual in light of the dangers of excessive consumption of alcoholic drinks; (b) protect persons under the age of eighteen years from negative impact on health and social development from exposure to advertisements of alcoholic drinks (c) protect consumers of alcoholic drinks from misleading or deceptive inducements and inform them of the risks of excessive consumption of alcoholic drinks; (d) protect the health of persons under the age of eighteen years by preventing their access to alcoholic drinks; 7 2021 h'mlll ( 'lI/lflfY Alcoholic Drinks Control No.1 (e) inform nnd ill 'ut - the residents in the county on the harmful health, econorui I und social consequences of the consumption of al .oholic drinks: (f) ulopt and impl 'Ill nt effective measures to eliminate illicit trade in ul '()hol including smuggling, illicit manufacturing and iountcrfcitin : (g) ensure fair and nhica! business practices related to production, distribution, promotion and sale of alcoholic drinks; (h) reduce and mitigate the negative health, social and economic impact on communities resulting from production, sale and consumptions of alcoholic drinks; and (i) provide for coordination and collaboration with other Government agencies and to support implementation of National policies on Alcoholic drinks control in the County. PART II-ADMINISTRATION Establishment of a Board 4. (1) There is established a Board to be known as Embu County Alcoholic Drinks Control Board. (2) The functions of the Board shall be to (a) support and facilitate Sub-county Committees In carrying out their functions; (b) carry out public education on alcoholic drinks control in the county directly and in collaboration with other public or private bodies and institutions; (c) facilitate citizen participation in matters related to alcoholic drinks control in accordance to framework for citizen participation established under the County Governments Act, the Urban Areas and Cities Act, Ernbu County Public Participation Act or any other relevant written law; (d) facilitate and promote in ollaboration with other county and national government institutions the establishment of treatment and rehabilitation facilities and programmes; (e) carry out rcscurch dire '11y or in collaboration with other institutions and ~ .rvc a~ the repository of data and statistics related to alcohol. 'drinks onrrol; (f) develop in col laborution with other county and national government d paum 'illS strategies and plans for implementing ~ No.1 Embu County Alcoholic Drinks Control 2021 this Act: and control of alcohol abuse and any other relevant national legislation and coordinate and support their implementation; (g) advise the executive member generally on the exercise of his powers and performance of his functions under this Act, and in particular on county policy and laws to be adopted in regard to the production, manufacture, sale and consumption of alcoholic drinks; (h) in collaboration with other relevant county departments, prepare and submit an alcoholic drinks status report bi-annually in the prescribed manner to the Executive Member which shall be transmitted to the county executive committee, the County Assembly and the Authority; (i) advise the Executive Member on the necessary regulations related to alcoholic drinks; G) coordinating, monitoring and evaluating the implementation of this Act including the operations of the Sub-county Committees and advising the Executive Member on the necessary measures to be adopted; (k) carry out such other roles necessary for the implementation of the objects and purpose of this Act and perform such other functions as may, from time to time, be assigned by the executive member. (3) The Board shall comprise of (a) a chairperson appointed by the Governor with the approval of the county assembly; (b) the county chief officer responsible for trade; (c) Director responsible for trade who shall be an ex-officio member and secretary to the Board; (d) a representative of liquor dealers in the County nominated by licensed liquor dealers and appointed by Executive Committee Member with the approval of the county assembly; (e) a representative of religious groups in the County nominated by religious groups and appointed by Executive Committee Member with the approval of the county assembly; (f) a representative of Youth groups in the County nominated by the youth groups and appointed by Executive Committee Member with the approval of the county assembly; () 2021 Embu County Alcoholtc Drinks Control No.1 (g) a representative of hoteliers in the County nominated by the hoteliers and appointed by Executive Committee Member with the approval of the county assembly; and (h) a representative of persons with disability in the County nominated by the persons with disability groups and appointed by Executive Committee Member with the approval of the county assembly (4) In nominating persons under subsection (3) paragraphs (d), (e), (f) (g) and (h), the respective bodies shall nominate two persons of either gender and forward them to the Executive Committee Member for consideration for appointment. (5) A person shall be qualified for appointment as a chairperson or member of the Board under subsection 3 paragraphs (d),(e).(t),(g) and (h) if that person (a) is a citizen of Kenya and a resident of Embu County; (b) holds a bachelor degree from learning institution recognized in Kenya; (c) has knowledge and experience either in the public or private sector of at least five years, in case of the Chairperson or three years in the case of a member, in matters relating to the field of Economics, Law, Finance, Accounting, Public administration or any other relevant field; and (d) meets the requirements of chapter six of the Constitution. (6) The term of office for the chairperson or a member appointed under subsection 3 paragraphs (d),(e).(t),(g) and (h) shall be three years, which may be renewed for one further term, after which the person shall retire from the Board. (7) The Chairperson and members of the Board shall serve on the Board on a part-time basis. (8) Not more than two thirds of the members of the Board under sub section (3) shall be of the same gender. (9) The office of the Chairperson or a member of the Board shall become vacant at the expiry of the term of contract or if the holder (a) dies; (b) resigns from office by giving a 30 days' notice in writing addressed to the Executive Committee Member; or (c) is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months. 10 No.1 Embu County Alcoholic Drinks Control 2021 (10) The Chairperson or member of the Board may be removed from office on any of the following grounds-s (a) violation of the Constitution or any other written law; (b) gross misconduct" , (c) pbvsical or mental incapacity that leads to inability to perform the functions of office', (d) incompetence; (e) bankruptcy; (t) absence from three consecutive meetings of the Board without justifiable cause' or, (g) if the chairperson or member is convicted of a criminal offence and sentenced to imprisonment for a period of more than six months. Provided that where a position becomes vacant before the expiry of the term of the contract, the appointing authority shall within 60 days ensure the position is filled using the prescribed procedures. (11) The Executive Member shall ensure that the Board has adequate human resource and other necessary resources to enable it carry out the functions assigned under this Act. (12) The report referred to in sub section (2) (h) shall contain among others (a) data on status of alcoholic drinks use and impact disaggregated in terms of age, gender, geographical location; (b) impact of alcoholic drinks in the county; (c) measures adopted to control and reduce negative impact of alcoholic drinks in the county; (d) level of public participation in implementing the Act and feedback from residents of the county in relation to appropriate processes for mitigating impact of alcoholic drinks use; (e) data on use of treatment and rehabilitation services in each Ward; (f) challenges faced in implementation of the Act; (g) level of collaboration with other county and national government agencies; (h) any matter relevant to the implementation of the Act. 2021 11 Embu County Alcoholic Drinks Control No.1 Establishment of rehabilitation facilities and programs 5. (1) The Board shall (a) in collaboration with other relevant county and national governm ent agencies establish treatment and rehabilitation facilities and programs for persons dependent on alcoholic drinks in each sub- county and one referral facility in the county; (b) ensure that the treatment and rehabilitation facilities have the necessary human resources for effective operation and service delivery; and (c) ensure that the treatment and rehabilitation services are designed in a manner that is accessible and affordable to persons dependent on alcoholic drinks. PART ill-LICENSING Activities to be licensed 6. (1) No person sha11 (a) manufacture or otherwise produce; (b) sell, distribute or dispose of, or deal with; any alcoholic drink in the county except under and in accordance with a licence issued under this Act. (2) Any person who contravenes the provisions of subsection (1) commits an offence. (3) Subsection (1) shall not apply to (a) the importation of alcoholic drinks into the country if the alcoholic drink has been imported to the country pursuant to an import license issued by the Authority; (b) the bona fide administration or sale for purely medical purposes, and in accordance with any written law for the time being in force governing the administration and sale of medicine, by a medical practitioner, a veterinary surgeon registered under the Veterinary Surgeons Act or a pharmacist registered under the Pharmacy and Poisons Act, of a medicine containing alcoholic drink; (c) the sale of spirituous or distilled perfume, or perfumery; (d) the sale of industrial alcohol; (e) the sale by auction by an auctioneer, licensed under the Auctioneers Act, 1996, of an alcoholic drink in quantities not less than those authorized to be sold under a wholesale alcoholic drink 12 No.1 Embu County Alcoholic Drinks Control 2021 licence belonging to a wholesale dealer, on the licensed premises of the dealer; (f) the sale by a deceased person's legal personal representative of an alcoholic drink forming part of the estate of the deceased person; (g) the sale by a trustee in bankruptcy of an alcoholic drink forming part of the bankrupt's estate; (h) the sale by the liquidator of a company of an alcoholic drink forming part of the company's assets; (i) the sale of alcoholic drink at the County Assembly Buildings, if sold with the permission of the Speaker; G) the sale of alcoholic drink to the members only of any canteen, club, institute, mess or similar institution of the disciplined forces for reasons other than for personal profit. Establishment of the sub-county committee 7. (1) There shall be, for every Sub-county, a committee to be known as the Sub-county Alcoholic Drinks Regulation Committee which shall (a) grant licenses in accordance with this Act; (b) be a quasi-judicial organ with power to enforce the provisions of this Act; (c) perform such other functions as may, from time to time be assigned to it by the Board. (2) The Sub-county Committee may, in the discharge of its functions under this Act, make inspection or other visits to premises at such times as it may deem appropriate: Provided that not more than six months shall pass before conducting an inspection on licensed premises. (3) The sub-county Committee shall issue an inspection report in the prescribed form for each inspection carried out. (4) In carrying out its functions, the Sub-county Committee shall (a) ensure that there is effective public participation in accordance with the framework for citizen participation established under the County Governments Act, the Urban Areas and Cities Act, Embu County Public Participation Act or any other relevant written law; (b) collaborate with ward administrators and village administrators and councils appointed under the County Governments Act, 13 2021 Embu County Alcoholic Drinks Control No.1 2012 and the officers in charge of co-ordination of national government functions in the wards and villages; (c) collaborate with similar committees in other counties for effective implementation of the Act. (5) The sub-county committee shall consist of (a) the Sub-county administrator appointed under the County Governments Act who shall be the Chairperson; (b) a representative of liquor dealers in the Sub-County nominated by licensed liquor dealers and appointed by Executive Committee Member; (c) a representative of religious groups in the Sub-County nominated by religious groups and appointed by Executive Committee Member; (d) A representative of Youth groups in the Sub-County nominated by the youth groups and appointed by Executive Committee Member; (e) a representative of hoteliers in the Sub-County nominated by the hoteliers and appointed by Executive Committee Member; (f) a representative of persons with disability in the Sub-County nominated by the persons with disability groups and appointed by Executive Committee Member; (g) the Director responsible for trade or his or her representative who shall be the secretary to the Committee; (h) the sub-county public health officer; (i) the officer responsible for coordination of national government functions in the sub-county or hislher designated representative who shall be an ex-officio member; G) the officer for the time being responsible for physical planning in the sub-county who shall be an ex-officio member; (k) the sub-county enforcement officer; (I) ward administrators in the respective sub-county; and (m) the officer commanding National Police Service in the sub county who shall be an ex-officio member. (6) In any quasi-judicial proceedings of the Committee, the chairperson shall prosecute a matter, and an accused person shall not be denied the right of defence, including the right to legal representation. 14 No.1 Embu C01I11~YAlcoholic Drinks Control 2021 (7) A person shall not be a member of the Sub-county Committee if such person is (a) undischarged bankrupt; (b) a person who has been convicted of an offence under this Act or ofa felony. (8) The conduct of business and affairs of the sub-county committee shall be in public and in such manner as may be prescribed. (9) Notwithstanding the generality of subsection (8), where a member of the Sub-County Committee has reasons to believe that his or her presence shall bring conflict of interest, the member shall declare his or her interest before taking part in any deliberation. Review of sub-county committee decisions 8. The Board shall be responsible for reviewing on application, decisions made by a sub-county Committee. Application for a licence 9. (1) A person intending to produce, manufacture and distribute any alcoholic drink in the county or to operate an establishment for the sale of an alcoholic drink shall make an application in a prescribed form to the sub-county Committee in the sub-county where the premise is situate or is to be situated. (2) The application under subsection (1) shall contain (a) a comprehensive information on the nature, orientation and other justification for the establishment of the manufacturing plant or establishment for sale; (b) an indication as to whether the manufacture or sale of the alcoholic drink is licensed in another county and if so the evidence of such licensing; (c) for a manufacturer's licence, certification from Kenya Bureau of Standards; (d) such other matters as may be prescribed. (3) The Sub-county Committee shall, within twenty- one days after the submission of application for a licence, prepare a notice setting forth the names of all applicants, the types of licences applied for, the premises in respect of which the licences are applied for and the time, date and place of the meeting, and shall forthwith cause a copy of the notice to be 15 Embu County Alcoholic Drinks Control No.1 (a) published t~t.the offi~es of the Sub-county Administrator and Ward Administrator tor a period of not less than twenty-one consecutive days; (b) poste.d in some conspicuous place at or near the applicant's premises: (c) sent to the National police service commanding officer in the sub county; (d) sen.t to the sub-county public health officer in the sub-county in which the premises in respect of which the licences are applied for are situated; and (e) sent to the sub-county physical planning officer. (4) The sub-county public health officer; and the sub- county physical planning officer shall within 14 days after receipt of the notice, report as fully as possible to the Sub-county Committee on all matters which may be relevant to the consideration of the application. 2021 (5) The National police service commanding officer in the sub county shall submit a report to the sub-county Committee on any matter relevant to the application if in his opinion the applicant should not be granted a license. (6) Any person may lodge objection to an application. (7) Every objection to an application shall be made in writing to the Secretary to the Sub-county Committee, and the objector shall serve notice of the grounds of the objection on the applicant, personally or by post, at least seven days before the hearing of the application and the onus of proof of such service shall be on the objector. (8) A Sub-county Committee may in its own motion take notice of any matter or thing which, in the opinion of the Committee, constitutes an objection to an application, whether or not any objection has been otherwise lodged. (9) Where in respect of an application a Sub-county Committee acts in pursuance of subsection (7), the Committee shall inform the applicant of the nature of the objection, and shall, if the applicant so requests, adjourn the hearing for such period, not being less than seven days, as the Sub-county Committee considers necessary to enable the applicant to reply thereto. (10) Every person making an application shall, save as otherwise provided, appear in person or by an advocate before the Sub~county Committee, and shall satisfy the Sub-county Committee that there IS need to No.1 Etnbu County Alcoholic Drinks Control 2021 for the grant of a licence of the type applied for in the particular locality in respect of which the application is made, (1 I) A Sub-county Committee may require the personal appearance before it of the applicant, or of the manager of the premises to which the application relates, or of both of them and of any other person whose attendance is considered by the committee to be necessary, (12) Any objector may appear personally or by an advocate at the hearing of the application, (13) A Sub-county committee may authorize, in writing, any person to appear before any Sub-county Committee having jurisdiction in any part of the area within the jurisdiction of the County for the purpose of representing the inhabitants of that part in respect of any objection lodged to an application. (14) Where a Sub-county Committee considers it necessary to take evidence respecting any question to be determined by the court, such evidence shall be given on oath, and the chairman shall be empowered to administer oaths. (15) For the purposes of Chapter XI of the Penal Code (which concerns offences relating to the administration of justice), all proceedings before a Sub-county committee shall be deemed to be judicial proceedings, (16) Every Sub-county Committee shall maintain records of all its proceedings, and, in particular, of the purpose for which an application was made, and notes of the evidence given and of the arguments adduced and the decision of the court thereon: Provided that no decision shall be quashed on review solely by reason of any omission or error in such record, unless it appears that a substantial miscarriage of justice has thereby been occasioned, (17) The Sub-county Committee shall, within twenty- one days of receipt of the application under subsection (1), record the application and assess the same on the basis of the objections received if any and the interests of the sub- county, and shall ensure that (a) the available premises are suitable with regard to the nature of the licence being sought; (b) the premi ses conform to the prescri bed requirements of the occupational health and safety regulations; (c) the applicant possesses the infrastructure and equipment necessary to carry out the business applied for; 2021 17 Embu COUI1(Y Alcoholic Drinks Control No.1 (d) the applicant for a licence to brew, distil, bottle or manufacture an alcoholic drink possesses necessary qualifications and relevant requirements stipulated under Standards Act or any other relevant written law; and (e) the premises has sufficient number of competent staff in line with such norms as may be prescribed. Grant of a licence 10. (1) The Sub-county Committee shall, after considering the application under section 9, indicate in writing whether it objects to the grant of the licence applied for. (2) Where the Sub-county Committee has no objection to the application under section 9, it shall grant a licence to the applicant upon payment of the fee as prescribed in the Third Schedule. (3) The licence issued shall be in such form as may be prescribed and subject to such conditions as the Sub-county Committee may consider fit. (4) Where the Sub-county Committee is not satisfied with the application under subsection (1), it may (a) reject the application giving reasons and notify the applicant accordingly within thirty days of the decision to reject; or (b) make comments and recommendations thereon and return it to the applicant within fourteen days. (5) The applicant to whom the application is returned under subsection (4) (b) may re-submit a revised application within thirty days of the date of notification .. (6) On receipt of any revised application under subsection (5), the Sub-county Committee shall, within thirty days determine the application in accordance with this Act and upon such determination, if satisfied, issue a licence. (7) Where the Sub-county Committee grants a licence under this section it shall, publish the licence so granted in the respective ward administrator's office. Condition of premises 11. (l) The Sub-county Committee shall not grant a new licence for the sale of an alcoholic drink to be consumed on the premises unless the Sub-county committee is satisfied (a) that it would be in the public interest for provision to be made for the sale of alcoholic drink for consumption on the premises in the 18 No. t Embu County A lcoholic 1 rinks Control 2021 particular locality in respect of which the application is made, and that the number of such premises in respect of which such licences have already been granted is insufficient for the requirement of the locality given the population density per square kilometre and the permitted maximum number of such premises as shall be prescribed by law: Provided that no licence shall be granted to sell alcoholic drinks in any institution of basic education including primary and secondary schools or any residential area or premises as have been demarcated by or under the relevant written laws; (b) that the premises in respect of which the application is made are in good repair and are in a clean and wholesome condition, and are provided with adequate and proper sanitary arrangements; (c) that the premises in respect of which the application is made are located at least three hundred metres from any nursery, primary, secondary or other learning institutions for persons under the age of eighteen years. (2) The Sub-county Committee shall not grant a licence for the sale of an alcoholic drink in a supermarket or such other related retail chain store, in an outlet or premises located within a bus park, fuel station, or a fast food restaurant unless it is satisfied that the applicant has taken measures to ensure that the area in which the sale is to take place is not accessible to persons under the age of eighteen years. (3) The Sub-county Committee shall not grant a licence for sale of an alcoholic drink to any person if the proposed location of the business for the sale of an alcoholic drink is not situated in an urban centre, town, commercial centre, shopping center, or a market place within Embu County. (4) For purposes of subsection (3), an urban centre, town, commercial centre, shopping centre, or a market place means centre registered or c1assified as such in a national or county legislation. (5) Despite subsection (1), the Sub-county Committee may issue a licence to a premise located within three hundred metres of any nursery, primary, secondary or other learning institution for persons under the age of eighteen years only if (a) the premises do not share a wall with the institution and are sealed off by a physical and non-transparent barrier that ensures zero visibility of the premise from the locality of the institution; (b) the premises displays on its outside any of the prescribed health messages in a clear and visible manner; 19 Embu County Alcoholic Drinks Control No.1 (c) the premises do not bear any outdoor alcoholic drinks promotion or advertisement; (d) the applicant does not engage in activities that interfere with learning in the institution or activities that calculated to attract persons under the age of eighteen to the premises; (e) in respect of subsection l(c) and subject to public interest which may come into perspective upon consideration of the Physical Planner's report on government projects," no new nursery, primary or secondary school or any other learning institutions will be licensed if it is within three hundred metres from a licensed alcoholic drinks premises. The officer responsible for the physical planning in the Sub-County shall advice on the existing or record future plans prior to issuing of either licence. Persons not eligible for a licence 12. (1) The Sub-County committee shall not grant a new licence or transfer a licence to any person who (a) has failed to satisfy the Sub-County Committee, if called upon to do so, of his good character and standing in relation to the expectati ons in thi s Act; or (b) has been convicted of an offence under this Act or of any offence of which the sentence is imprisonment without the option of a fine in Kenya or elsewhere for a period in excess of six months; 2021 or (c) in the case of a retail licence, is not resident in Kenya; or (d) is under eighteen years of age; or (e) is an un-discharged bankrupt. (2) The Sub-county committee may refuse to renew an existing licence only when the Sub-county Committee is satisfied that (a) the licensee is not a fit and proper person to hold the licence; or (b) the licensee has been convicted of an offence under this Act or any Act at any time in force regulating the manufacture, distillation, distribution sale of an alcoholic drink for more than three times within one year; or (c) has been convicted of an offence and sentenced to imprisonm~nt without the option of a fine in Kenya or elsewhere for a penod in excess of six months; or 20 No.1 Embu County Alcoholic Drinks Control 2021 (d) the business to which the licence relates is conducted in a manner that is in breach of this Act, or any other rules and regulations for the time being in effect, or conditions set by the Sub-county Committee; or (e) the conditions of the licence have not been satisfactorily fulfilled; or (f) the premises to which the licence relates are not in a proper state of repair, or are not provided with proper sanitary arrangements, or do not comply with the reasonable requirements of the Sub county public health officer and the owner of the premises or the licensee refuses or is unable to give satisfactory guarantees that the necessary repairs will be carried out, or due compliance effected, as the case may be, within a time specified by the Sub county Committee. Licensing power of sub-county committee 13. (1) Except as otherwise provided in this Act, a Sub- county Committee may, subject to this Part, grant, renew, transfer or remove a licence, and may embody therein such conditions as it may deem appropriate, or it may refuse to grant, renew, transfer, withdraw or cancel a licence. (2) Every licence and every renewal, transfer, withdrawal or cancellation thereof shall be sufficiently authenticated by the Sub-county Committee. (3) Every grant of a licence or its every renewal or transfer shall (a) be subject to the payment of such fee or fees as may be prescribed under this Act; (b) expire on thirty first day of December each year; (c) specify in the licence, the hours stipulated under the First Schedule or as national legislation may provide within which the sale of alcohol is permitted and any other relevant condition. (4) Where an application for the renewal of a licence has been made and the Sub-county Committee has not by the date of expiration of the licence reached a decision thereon, such licence shall continue in force until the decision of the Sub-county Committee is made known. (5) Where an application for a licence has been refused, or a licence has been cancelled, no subsequent application by the former applicant or licensee for a licence of the same description shall be considered by the Sub- county Committee during the period of six months from the date of 2021 such refusal Committee. 2) Embu County Alcoholic Drinks Control No.1 or cancellation, except at the discretion of the Sub-county Appeal and review to the Board. 14., (I) ~Il applicant whose application for a new licence, to renew or transfer a hcel,lce has been refused or cancelled may within fourteen da~~ of such refusal or cancellation, appeal or request for review in wntmg, of such refusal or cancellation to the Board. (2) Upon receipt of a request under this section the Board shall notify the sub-county committee of the pending review dr appeal. (3) The Board shall within twenty-one days consider and make a final determination on the appeal or request for review. (4) The Board may (a) dismiss the request for review if in its opinion, the request is frivolous or vexatious; (b) uphold the decision of the sub-county committee; (c) annul the decision of the sub-county committee (d) give directions to the sub-county committee with respect to any action to be taken; (e) make any other declaration as it may deem fit. Exhaustion of statutory mechanism. 15. An appeal to the Board shall constitute a statutory mechanism requiring to be exhausted before appeal to court is made. Review to Court 16. An applicant under section 14 who is not satisfied with the decision of the Board may within twenty-one days seek judicial Court redress. Licences to body corporate 17. (1) A licence issued to a body corporate shall be issued in the name of the body corporate: Provided that the Sub-county committee may require prior disclosure of the directorship of the body corporate or refuse to grant a licence to the body corporate if any of the directors does not qualify to be granted the licence individually. (2) No transfer of a licence issued to a body corporate shall be necessary on any change in the office of secretary, but any person for the 22 No.1 Embu County Alcoholic Drinks Control 2021 time being holding such office shall be entitled to the privileges granted by, and shall be subject to the duties and liabilities imposed upon the holder of, such licence. Types of licences 18. (1) The several licences which may be granted under this Act shall be those specified in the Second Schedule, and the provisions of that Schedule and of any rules made under this Act shall have effect in relation to the respective licences therein specified. (2) Save as otherwise provided in this Act, no licence may be granted so as to be applicable to more premises than one. (3) The Sub-county Committee shall, when a licence is granted, renewed, withdrawn or cancelled, include in the licence a sufficient description of the licensed premises. Transfer of licence 19. (1) Where a licensee sells or leases or otherwise disposes of the premises or business specified in the licence, the licensee may apply in writing to the Sub-county committee for the transfer of the licence to the purchaser or lessee or otherwise of such premises, and the Sub-county Committee may, if it thinks fit, grant a transfer of such licence. (2) No further fee shall be payable in respect of a licence granted under subsection (3) if, at the date of the grant, the licence which was temporarily transferred was valid for a period of more than six months. (3) In the event of the death, bankruptcy or unsoundness of mind of a licensee, or in any similar event to which the Sub-county committee declares in writing that this section should be applied, it shall be lawful, for the purposes of this Act for the executor. administrator, trustee or manager, as the case may be or any other person approved by the Sub county committee, to carry on the business of the licensee without any transfer or grant of a licence either personally or by an agent approved by the Sub-county committee. (4) Every person to whom a licence may have been transferred under subsection (1), and every person permitted to carry on a business without a transfer or grant of a licence in pursuance of subsection (3), shall possess all the rights and be liable to all the duties and obligations of the original licensee Removal of licences 20. (1) If the renewal of a licence is refused, the licensee shall, on payment of the proportionate part of the fee for the appropriate licence, be 23 2021 Embu County Alcoholic Drtnks Control No.1 entitled to a licence of such description and for such period, not exceeding three months, as the Sub-county Committee may consider necessary for the purpose of disposing of the alcoholic drink or apparatus on the premises, such period to commence 011 the day after the last sitting of the Sub- county Committee at which the renewal of his licence has been refused, or on the day after the termination of his existing licence, whichever day is the later. Licence to be displayed 21. (1) Every original licence shall be prominently and conspicuously displayed on the premises to which it relates, and any licensee who fails or neglects so to display his licence commits an offence. (2) Any person causing or permitting to be on his premises or on premises under his control any words, letters or sign falsely importing that he is a licensee commits an offence. Under age persons not to be employed 22. (1) Notwithstanding the provisions of any other written law, no licensee shall employ a person under the age of eighteen years, to sell, control or supervise the sale of alcoholic drinks or to have the custody or control of alcoholic drinks on licensed premises. (2) Where a licensee permits another person to manage, superintend or conduct the day-to-day business of the premises in respect of which he is licensed, the licensee shall not be relieved of his duties and obligations under this Act. (3) Any person who contravenes the provisions of this section commits an offence. Exclusion of drunk and disorderly persons from premises. 23. (1) A licensee or an agent or employee of a licensee may refuse to admit to, and shall expel from, the premises to which the licence relates any person who is drunk and disorderly, violent, or quarrelsome, or whose presence would subject the licensee to a fine or penalty under this Act. (2) Any person referred to in subsection (1) who, on being requested by the licensee or his agent or employee, or by a police officer, to quit the licensed premises, refuses to do so, commits an offence. (3) On the demand of a licensee or licensee agent or employee, a police officer shall expel or assist in expelling from the licensed premises the person referred to in subsection (1). (4) A licensee who permits any drunkenness leading to violent, quarrelsome or riotous conduct to take place on the premises to which the licence relates commits an offence. 24 No.1 Embu County A lcoholtc Drinks Control 2021 Restrictions on debt from sale of alcoholic drinks. 24. No suit shall be maintainable to recover any debt alleged to be due in respect of the sale of any alcoholic drink which was delivered for consumption on the premises where it was sold unless proof of sale as provided for in section 40, is established. Exclusion of underage persons from premises 25. (1) No person holding a licence to manufacture, store or sell alcoholic drinks under this Act shall allow a person under the age of eighteen years to enter or gain access to the area in which the alcoholic drink is manufactured, stored, sold or consumed. (2) A person shall not enter or gain access to an area referred to under subsection (1) if such a person is in custody or accompanied by a person under the age of eighteen years. (3) Any person who contravenes the provisions of subsection (1) and (2) commits an offence. Reports by public health officer 26. (1) A Sub-county public health officer within whose jurisdiction the premises fall shall report to the Sub- county Committee any licensed premises which are deficient in their state of sanitary or drainage conditions, or which are in bad repair. (2) A Sub-county public health officer or any person authorized by him in writing in that behalf may enter and inspect any licensed premises for the purpose of ascertaining whether a report under subsection (1) is required. (3) A police officer not below the rank of Inspector shall report in writing to the chairperson of the appropriate Sub-county Committee every case in which a licensee is of drunk and disorderly habits or commits any breach of any of the provisions of this Act or of the licence. (4) A police officer not below the rank of Inspector may without written authority enter and inspect any licensed premises for the purpose of ascertaining whether a report under subsection (1) is required. Cancellation of licence 27. (1) Upon receipt of a report made under section 26 the Sub county Committee shall (a) send, by registered post or other verifiable mode of dispatch, a copy of the report to the licensee concerned therewith, informing the licensee that at a meeting of the Sub-county Committee to be 9 2021 ":mhll ( '01111/1' r,III'o!,,.lIlt: Drinks Control No.1, held on a dat II Ii tIP II" l, but not less than thirty days there from, th I' l" \II \V II II con ,Idored by the Sub-county Committee; (b) send n 'OP)' nl' til ItIIHII·t to every member of the Sub-county committ 't~\II I In 0, nnlecl' Commanding Police Services in the Suh- ounty; (c) inform the Suh rOllllly public health officer or the police officer, as the .ase may b . nr the date upon which the Sub-county comruitt ' will unll."Iid I' the report, and require him to attend on the date sp \ iii d. (2) Any Iicens e con' rni n whom a report is to be considered may appear in person or by ndvo 'ut ' before the Sub-county Committee. (3) The Sub-county Committee, having duly considered the report and having heard the licensee, if the licensee appears, may, if it considers fit, cancel or suspend the licence of the I icensee reported upon, or it may make such an order in respect of such licence or the licensed premises specified therein as, in the opinion of the Sub-county Committee, is necessary. (4) Any person aggrieved by the decision of the Sub- county committee upon any such report may within twenty- one days appeal against the decision to the Board. (5) The Board, on an appeal under this section, may confirm or reverse the decision of the Sub- county Committee. (6) If a licence is cancelled or if on appeal under sub section (5), the appeal is dismissed by the Board, the licensee shall be entitled, on payment of the proportionate part of the fee for the appropriate licence, to a licence of such description and for such period, not exceeding three months, as the Sub-county committee may deem necessary for the purpose of disposing of the alcoholic drink or apparatus on the premises, such licence to run from the date of the decision of the Sub-county Committee or of the Court as the case may be. PART fV-GENEr~AL REQUIREMENTS Conformity with requirements of the Act 28. (1) No person shall manufacture, or distribute or sell an alcoholic drink in the county I.hal docs not conform to the requirements of this Act or any other written I<·IW rcgulnting alcoholic drinks. (2) A person who contruvcncs the provisions of this section in relation to manufacture and distribution of an alcoholic drink commits an offence and shall be liable to a fin • not exceeding two million shillings, or to imprisonment for a term m11 exceeding f e years, or to both. 26 No.1 Embu County Alcoholic Drinks Control 2021 (3) A person who contravenes the provisions of this section in relation to sale of an alcoholic drink commits an offence and shall be liable to a fine not exceeding one hundred and fifty thousand shillings, or to imprisonment for a term not exceeding one year, or to both. Sale to under age persons. 29. (1) No person shall sell, supply or provide knowingly an alcoholic drink to a person under the age of eighteen years. (2) Subject to subsection (3), a person who contravenes the provisions of subsection (1) commits an offence and shall be liable to a fine not exceeding one hundred and fifty thousand shillings, or to imprisonment for a term not exceeding one year, or to both. (3) Notwithstanding the provisions of subsection (1), it shall be a defence to an offence under this section if it is established that the accused person attempted to verify that the young person was at least eighteen years of age by asking for and being shown any of the documents specified in subsection (4) for the purpose of verifying the age of the young person and believed, on reasonable grounds, that the documentation was authentic. (4) For the purposes of this section, the following documentation may be used to verify a person's age (a) a national identity card issued by the Republic of Kenya; (b) a passport issued by the Republic of Kenya or any other country; or (c) any other documentation as the Executive Member may prescribe. Display of signs 30. (1) Every retailer shall post, in the prescribed place and manner, signs in the prescribed form and with the prescribed content, that inform the public that the sale or the availing of an alcoholic drink to a person under the age of eighteen years and sale of alcoholic drinks to an intoxicated person is prohibited by law. (2) Every sign required to be posted under subsection (1) shaIl (a) be displayed on a surface measuring not less than 24 inches by 18 inches in size; (b) bear the word "WARNING" in capital letters followed by the prescribed health warning which shall appear in conspicuous and legible type and shall be black on a white background or white on 2021 27 Embu County Alcoholic Drinks Control No.1 a black background and shall be enclosed by a rectangular border that is the same colour as the letters of the statement' , (c) be in English or in Kiswahili. (3) A retailer who contravenes any of the provisions of this section commits an offence and shall be liable to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding six months, or to both. Prohibition of sale by vending machines 31. (1) No person shall sell or permit an alcoholic drink to be sold by way of an automatic vending machine. (2) A person who contravenes this section commits an offence and shall be liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding twelve months, or to both. Prohibition of sale in sachets 32. (1) No person shall sell, manufacture, pack or distribute an alcoholic drink in sachets or such other form as may be prescribed under this Act or any other relevant written law. (2) Notwithstanding the provisions of subsection (1) (a) no person shall manufacture, pack, distribute or sell in the county an alcoholic drink in a container of less than 250 millilitre; (b) any other distilled or fortified alcoholic drink shall only be manufactured, packed, sold or distributed in glass bottles of the kind specified in paragraph (a) or as may be prescribed in the National or County legislation related to control of alcoholic drinks. (3) A person who contravenes this section commits an offence and shall be liable to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding six months, or to both. PART V-SALE AND CONSUMPTION Prohibition of sale to an intoxicated person 33. Any licensee who sells an alcoholic drink to a person already in a state of intoxication and disorderliness or by any means encourages such person to consume an alcoholic drink commits an offence and shall be liable to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding six months, or to both. 28 No.1 Embu County Alcoholic Drinks Control 2021 Display of list of brands 34. (1) A person licensed as a distributor shall have in addition to distributor's licence, a depot licence and shall keep and display at the licensed depots, a list of al1 brands the person deals in and the manufacturer of such brands. (2) A person licensed to sell an alcoholic drink to end consumer shall keep and display at the licensed premises, a list of all brands the person deals in and the manufacturer of such brands. Breach of licence 35. (1) Any person who sells an alcoholic drink or offers or exposes it for sale or who bottles an alcoholic drink except under and in accordance with, and on such premises as may be specified in a licence issued in that behalf under this Act commits an offence and is liable (a) for a first offence, to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding nine months, or to both; (b) for a second or subsequent offence, to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year or to both, and in addition to any penalty imposed under paragraph (a) or (b), the court may order, the forfeiture of all alcoholic drinks found in the possession, custody or control of the person convicted, together with the vessels containing the alcoholic drink. (2) Except as may be provided for in this Act, no person shall (a) sell, an alcoholic drink in any workplace, office, factory, public park or any public recreational facility, public transport vehicle, public beach, sports stadium or public street; (b) sell, purchase or consume an alcoholic drink in an alcoholic drink selling outlet after the expiry of the hours for which the outlet is licensed to sell the alcoholic drink. (3) In order to promote traceability and safety, all alcoholic drinks sold at licensed retail outlets shall be distributed only from registered or licensed warehouses or wholesalers within the County. (4) Any person who contravenes the provisions of subsection (2) or (3) commits an offence and shall be liable to the penalties specified under subsection (1). 29 2021 Embu County Alcoholic Drinks Control No.1 Sale to an authorized officer 36. Any person who knowingly sells, supplies or offers an alcoholic drink to an authorized officer or to a police officer in uniform or who harbours or suffers to remain on licensed premises any such police officer except for the purpose of keeping or restori ng order or otherwise in the execution of his duty, commits an offence and is liable to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding three months or to both. Non-disclosure of conviction 37. Any person who is required by any provision of this Act to disclose any conviction and fails to do so when making any application commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding six months, or to both. Sale without licence 38. (1) If any person purchases any alcoholic drink from a licensee whose licence does not cover the sale of that alcoholic drink for consumption on the premises, and drinks the alcoholic drink on the premises where it is sold, or in any premises adjoining or near to those premises, if belonging to the seller of the alcoholic drink or under his control or used by his permission, or on any highway adjoining or near any such premises, and it is proved to the court that the drinking of the alcoholic drink was with the privity or consent of the licensee who sold the alcoholic drink, the licensee commits an offence. (2) If a licensee whose licence does not cover the sale of alcoholic drink to be consumed in the licensed premises takes or carries, or employs or suffers any other person to take or carry, any alcoholic drinks out of or from the licensed premises for the purpose of being sold on licensee account, or for licensee benefit or profit, and of being drunk or consumed in any place (whether enclosed or not, and whether or not a public thoroughfare) other than the licensed premises, with intent to evade the conditions of the licence, the licensee commits an offence, and, if the place is any house, tent, shed or other building belonging to the licensee or hired, used or occupied by licensee, the licensee shall be deemed, unless the contrary is proved, to have intended to evade the conditions of the licence. Sale of adulterated drinks 39. (1) No person shall keep for sale, offer for sale or sell (a) any alcoholic drink which has been in any way adulterated, or diluted by any person; 30 No. 1 Embu County Alcoholic Drinks Control 2021 (b) any non-alcoholic drink which has been in any way adulterated with alcohol, or which contains any of the substances prohibited under section 61 (b) of this Act" . (2) Any person who contravenes the provisions of this section commits an offence and shall be liable to a fine not exceeding ten million Kenya shillings or to imprisonment for a term not exceeding ten years, or to both. (3) On the conviction of a licensee of an offence under subsection (2), the court may, in addition to any other penalty it may lawfully impose, if it finds that the drink in respect of which the offence was committed was adulterated by a substance or substances which rendered the drink unfit for human consumption, and unless the licensee proves to the satisfaction of the court that he or she took all reasonable precautions against such adulteration and that such adulteration took place without his or her knowledge or consent, order that his or her licence be forfeited, and no licence shall thereafter be granted or transferred to him or her. Proof of sale 40. (1) In any proceedings under this Act relating to the sale or consumption of an alcoholic drink, such sale or consumption shall be deemed to be proved if the court is satisfied that a transaction in the nature of a sale took place, whether or not any money has been shown to have passed, or as the case may be, if the court is satisfied that any consumption was about to take place. (2) Evidence of consumption or intended consumption of an alcoholic drink, on licensed premises by some person other than the licensee or a member of licensee family or licensee employee or agent shall be prima facie evidence that the alcoholic drink was sold by or on behalf of the licensee to the person consuming or about to consume the alcoholic drink. Burden of proof 41. (1) The onus of proving that a person is licensed under this Act shall lie on that person. (2) The fact that a person not licensed under this Act to sell alcoholic drinks has a signboard or notice upon or near licensee premises fitted with a bar or other place containing bottles, casks or vessels so displayed as to induce a reasonable belief that alcoholic drink is sold or served therein, or having alcoholic drink concealed, or more alcoholic drink than is reasonably required for the person residing therein, shall be deemed to be prima facie evidence of the unlawful sale of alcoholic drink by that person. 31 2021 12'l11buCounty Alcoholic Drinks Control No.1 (3) In any proceedings under this Act, where a person is charged with selling alcoholic drink without a licence or without an appropriate licence, such alcoholic drink being in a bottle and appearing to be unopened and labelled by its bottler, the contents of such bottle shall be deemed, unless the contrary is proved, to be alcoholic drink of the description specified on the label thereof. Endorsement of conviction on licence 42. Every licensee who is convicted of an offence under this Act shall produce his licence to the court convicting him, and the court shall endorse every such conviction on the licence and the relevant administrative officer of the court shall inform the relevant Sub-county committee. Forfeiture of licence upon conviction 43. If in any proceedings before a Board or court it appears that a licensee (a) whether he was present in the licensed premises or not, has permitted an unlicensed person to be the owner or part owner of the business of the licensed premises or to have a substantial interest in that business, except with the consent of the Sub county committee; or (b) is convicted of an offence under this Act and a previous conviction within the preceding twelve months of the same or any other offence under this Act or three such previous convictions within the preceding five years is or are proved; or (c) is twice convicted within twelve months of selling, offering or keeping for sale any adulterated alcoholic drink, then the Board or court may, in addition to any other penalty which it may lawfully impose, order that his licence be forfeited, and that no licence shall be issued or transferred to him for such period as the court may order. PART VI-ADVERTISING AND PROMOTION Prohibited advertisement and promotion 44. (1) No person shall promote an alcoholic drink by way of outdoor advertisement (a) in a manner that is false, misleading or deceptive or that are likely to create an erroneous impression about the characteristics, health effects health hazards or social effects of the alcoholic, drink; and 12 No. I /"111/1" ( '(1/(11/1' AIt'ollO/le I ninks Control 2021 (b) in pla . 'S dll\\ tr 'nit d und r filly written law as residential areas or within \ ti ~1\tH'l' or Ihr 'C hundred metres from nursery, primary, s , 't ndt 1\ ~ 'h ,\)1. 01' 01II 'J' i 1l~1 j t uti 011 of Icarni ng for persons un i .r the n, \ of l'igltl ,lill years or a place of worship, health fa ~lli1y r n publ« play zround or any other public land or pr pcrtv or in public s nvicc vehicle. 2) p crson who contravenes the provisions of this section mmits an offence nil i shall be liable to a fine not exceeding five hundred th usand shillinu«, or to imprisonment for a term not exceeding three y ars, (.r t both. (3) I ursuant to Article 24(2) of the Constitution, the right to freedom f expr ssion set out in Article 33 of the Constitution is limited to the extent spe ified in this section for the purpose of a) pr tecting consumers of alcoholic drinks from misleading or deceptive inducements to use alcoholic drinks; and (b) protecting persons under the age of eighteen years from negative impact on health and social development from exposure to advertisements of alcoholic drinks. Promotion at events for the underage 45. (1)No person shall promote an alcoholic drink (a) at any event or activity associated with persons under the age of eighteen years; (b) using such things or materials that are associated with persons under the age of eighteen years. (2) Any person who contravenes the provisions of this section commits an offence and shall be liable to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding three years or to both such fine and imprisonment. (3) Pursuant to Article 24 (2) of the Constitution, the right to freedom of expression set out in Article 33 of the Constitution is limited to the extent specified in this section for the purpose of protecting persons under the age of eighteen years from negative impact on health and social development from exposure to advertisements of alcoholic drinks. Encouraging consumption 46. (1) A licensee shall Jlol (a) award, grant or gj ve to a person an alcoholic drink for consumption ill 01' outside the licensed premises without any consideration cqui VIti enl to the market price of the alcoholic drink' or, 33 2021 Embu County Alcoholic Drinks Control No.1 (b) promote any alcoholic drink in such a manner as to encourage more consumption of an alcoholic drink in order to win an award or prize. (2) A person who contravenes any of the provisions of this section commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both. (3) Pursuant to Article 24 (2) of the Constitution, the right to freedom of expression set out in Article 33 of the Constitution is limited to the extent specified in this section for the purpose of protecting consumers of alcoholic drinks from misleading or deceptive inducements to use alcoholic drinks and also for the purpose of protecting persons under the age of eighteen years from negative impact on health and social development from exposure to advertisements of alcoholic drinks. PART VII-COMPLIANCE Authorized officers 47. (1) The Executive Member shall appoint for each Sub- county, qualified persons whether in the employment of the county government or not, to be authorised officers for purposes of this Act. (2) The Executive Member shall issue a certificate of appointment to every person appointed under this section. (3) Notwithstanding the provisions of this section, the following officers shall be deemed to be authorised officers for the purposes of this Act (a) public health officers appointed under the Public Health Act; (b) sub-county Administrators and ward administrators appointed under county governments act, 2012; (c) officers appointed as enforcement officers under County Legislation, the National Police Service Act, Standards Act, Weights and Measures Act or Anti -counterfeit Act; (d) any other person upon whom any written law vests functions of the maintenance of law and order. Power of authorized officer to enter any place 48. (1) For the purposes of ensuring compliance with this Act, an authorised officer may, at any reasonable time, enter any place in which the officer believes on reasonable grounds that any person or persons is in any way contravening the provisions of this Act. 34 No.1 Embu County Alcoholic Drinks Control 2021 (2) An authorised officer entering any premises under this section shall, if so required, produce for inspection by the person who is or appears to be in charge of the premises the certificate issued to him under section 47 (2). (3) Pursuant to Article 24 (2) of the Constitution, the right to privacy set out in Article 31 of the Constitution is limited to the extent specified in this section for the purpose of protecting consumers of alcoholic drinks by ensuring fair and ethical business practices related to production, distribution, promotion and sale of alcoholic drinks as specified in this Act. General Powers of an authorized officer. 49. (1) In carrying out an inspection In any place pursuant to section 52, an authorised officer may (a) examine an alcoholic drink or anything referred to in that section; (b) require any person in such place to produce for inspection, in the manner and form requested by the officer, the alcoholic drink or thing; (c) open or require any person in the place to open any container or package found in the place that the officer believes on reasonable grounds contains the alcoholic drink or thing; (d) conduct any test or analysis or take any measurements; or (e) require any person found in the place to produce for inspection or copying, any written or electronic information that is relevant to the administration or enforcement of this Act. (2) Pursuant to Article 24 (2) of the Constitution, the rights to privacy and property set out in Articles 31 and 40 of the Constitution are limited to the extent specified in this section for the purpose of enforcement of this Act and for protecting consumers of alcoholic drinks by ensuring fair and ethical business practices related to production, distribution, promotion and sale of alcoholic drinks as specified in this Act. Use of records 50. (l) In carrying out an inspection in a place, an authorised officer may (a) use or cause to be used any computer system in the place to examine data contained in or available to the computer system that is relevant to the administration or enforcement of this Act; (b) reproduce the data in the form of a print-out or other intelligible output and take it for examination or copying; 35 2021 Embu County Alcoholic Drinks Control No.1 (c) use or cause to be used any copying equipment in the place to make copies of any data, record or document; (d) scrutinize any other record system in use in that place. (2) Pursuant to Article 24 (2) of the Constitution, the lights to privacy and property set out in Articles 31 and 40 of the Constitution are limited to the extent specified in this section for the purpose of protecting consumers of alcoholic drinks by ensuring fair and ethical business practices related to production, distribution, promotion and sale of alcoholic drinks as specified in this Act. Restriction to enter dwelling place 51. An authorised officer may not enter a dwelling place except with the consent of the occupant or under the authority of a warrant issued under section 53. Court to issue warrant 52. (1) Upon an ex-parte application, a magistrate or judge of the High Court, may issue a warrant authorising the authorised officer named in the warrant to enter and inspect a dwelling place, subject to any conditions specified in the warrant, if the magistrate or judge is satisfied by information on oath that (a) the dwelling place is a place referred to in section 50; (b) entry to the dwelling place is necessary for the administration or enforcement of this Act; (c) the occupant does not consent to the entry, or that entry has been refused or there are reasonable grounds for believing that it will be refused. (2) The time of such entry shall be between six o'clock in the forenoon and six o'clock in the afternoon of any day of the week. Certificate of analysis 53. An authorised officer who has analysed or examined an alcoholic drink or thing under this Act, or a sample of it, shall issue a certificate or report setting out the results of the analysis or examination. Duty to facilitate officers 54. (1) The owner of a place inspected by an authorised officer under this Act or the person in charge of the place and every person found in the place shall (a) provide all reasonable assistance to enable the authorised officer to carry out his duties under this Act; 36 No.1 Embu County Alcoholic Drinks Control 2021 (b) furnish the authorised officer with such information as the officer reasonably requires for the purpose for which entry into the place has been made. (2) The inspecting agent in subsection (1) shall issue the respective inspection completion and certification certificate once satisfied with the inspection. Authorized officer not to be obstructed. 55. It is an offence for any person who obstructs or hinders, or knowingly makes a false or misleading statement to an authorised officer who is carrying out duties under this Act. Power of seizure 56. (1) During an inspection under this Act, an authorised officer may seize any alcoholic drink or thing by means of which or in relation to which the officer believes, on reasonable grounds, that this Act has been contravened and a full inventory thereof shall be made at the time of such seizure by the officer. (2) The authorised officer may direct that any alcoholic drink or thing seized be kept or stored in the place where it was seized or that it be removed to another place. (3) Unless authorised by an officer, no person shall remove, alter or interfere in any manner with any alcohol, alcoholic drink or other thing seized. (4) Any person from whom an alcoholic drink or thing was seized may, within thirty days after the date of seizure, apply to the High Court for an order of restoration, and shall send notice containing the prescribed information to the Executive Member within the prescribed time and in the prescribed manner. (5) Pursuant to Article 24 (2) of the Constitution, the rights to privacy and property set out in Articles 31 and 40 of the Constitution are limited to the extent specified in this section for the purpose of protecting consumers of alcoholic drinks by ensuring fair and ethical business practices related to production, distribution, promotion and sale of alcoholic drinks as specified in this Act.. Order for restoration 57. (1) The Sub-County Committee, Board or Court may order that the alcoholic drink or thing be restored immediately to the applicant if, on hearing the application, the court is satisfied that 37 2021 Embu County Alcoholic Drinks Control No.1 (a) the applicant is entitled to possession of the alcoholic drink or thing seized; and (b) the alcoholic drink or thing seized is not and will not be required as evidence in any proceedings in respect of an offence under this Act. (2) Where upon hearing an application made under subsection (1) the court is satisfied that the applicant is entitled to possession of the alcoholic drink or thing seized but is not satisfied with respect to the matters mentioned in paragraph (b) of subsection (1), the court may order that the alcoholic drink or thing seized be restored to the applicant on the expiration of one hundred and eighty days from the date of seizure if no proceedings in respect of an offence under this Act have been commenced before that time. General penalty 58. Any person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both. Offences to be cognizable 59. (1) Offences under this Act, other than the offences specified under Part VI, shall be cognizable offences. (2) Where a corporation, registered society or other similar legal entity commits an offence under this Act, any director or officer of the corporation, society or legal entity who acquiesced in the offence commits an offence and shall, on conviction, be liable to the penalty provided for by this Act in respect of the offence committed by the corporation, society or legal entity, whether or not such corporation, society or legal entity has been prosecuted. (3) In any prosecution for an offence under this Act, it shall be sufficient proof of the offence to establish that the offence was committed by an employee or agent of the accused. (4) Any act done or omitted to be done by an employee in contravention of any of the provisions of this Act shall be deemed also to be the act or omission of the employer, and any proceedings for an offence arising out of such act or omission may be taken against both the employer and the employee. Nature of evidence in proceedings 60. (1) In any prosecution for an offence under this Act, a copy of any written or electronic information obtained during an inspection under .lH No. 1 Embu ( 'ountv A/c'O/lOlll' nt/nics Control 2021 I this Act and certifio I 1\) h \ 1I uu .opy thereof shall be admissible in evidence and shall, in the nhs nee of evidence to the contrary, be proof of its contents. (2) ubje t to this Put'l, ,I c ntificate or report purporting to be signed by an off cr stnting thui the olflcer analysed anything to which this Act applies and st lltnf til ' results or the analysis, shall be admissible in evidence in any prose cution for (111 offence under this Act without proof of the signature or official .luuu '(' 'I' of the person appearing to have signed the certificate or report. (3) The certificate or report may not be received in evidence unless the party intending to produce it has) before the trial, given the party against whom it is intended to be produced notice of not less than seven days of that intention together wi th a copy of the certificate or report. (4) The party against whom the certificate or report provided for under subsection (3) is produced may, with leave of the court, require the attendance of the officer for purposes of cross examination. (5) In a prosecution for a contravention of this Act (a) information on a package indicating that it contains an alcoholic drink is, in the absence of evidence to the contrary, proof that the package contains an alcoholic drink; and (b) a name or address on a package purporting to be the name or address of the person by whom the alcoholic drink was manufactured is, in the absence of evidence to the contrary, proof that it was manufactured by that person. PART Vill-MISCELLANEOUS PROVISIONS Regulations 6.1. (1) The Executi ve Member may, on recommendation of the Board make Regulations generally for the better carrying out of the objects of this Act. (2) Without prej udicc to the generality of subsection (1), the Regulations may (a) prescribe anything required by this Act to be prescribed or prohibit anything n.:qllil't;d by rhis Act to be prohibited; (b) prescribe substances UH h 11'I1If'ul constituents of an alcoholic drink. (c) Prescribe the fees pUYllhlc lind r this Act; (d) Prescribe the form.' or upplicillions, notices, licences and other documents for use und "I lid: Act: and 39 Embu County Alcoholic Drinks Control No.1 make further regulations on application of licence, details of licence granted, conditions of licensed premises and any other area under this Act provided the said regulations are consistent with this Act. (3) Pursuant to Article 94 (6) of the Constitution, the legislative authority delegated to the Executive Member in this section shall be exercised only for the purpose and intent specified in this section and in accordance with the principles and standards set out in the Interpretation and General Provisions Act and the Statutory instrument Act, 2013. Repeal of No.3 of 2014 2021 (e) 62. The Embu County Alcoholic Drinks Control Act, 2014 is hereby repealed. Transitional Consequences 63. (1) Notwithstanding any other provisron of this Act to the contrary, a person who, immediately before the commencement of this Act was in accordance with Embu County Alcoholic Drinks Control Act, 2014 a manufacturer, distributor or retailer of any alcoholic drink under that Act shall be deemed to be a manufacturer, distributor or retailer of any alcoholic drink under this Act. (2) The manufacturer, distributor or retailer of any alcoholic drink licensed under the Act referred to in subsection (1) or national legislation shall, within four months upon commencement of this Act, comply with the requirements of this Act. 40 Embu County Alcoholic Drinks Control FIRST SCHEDlJLE (S.'I3 (3)) LICENCE nouns LJCENCE HOURS No.1 2021 4. Hotel Alcoholic Drink Authorized to sell alcoholic drink on any Licence day of the week to a lodger - for his or her own consumption and his or her guest's consumption on the premises, at any hour. LICENCE 1. General Retail Alcoholic Drink Licence (on licence) 2. General Retail Alcoholic Drink Licence (Oft Licence) Wines and Spirits Retailers 3. Supermarket or Franchised Retail Chain Stores Alcoholic Drink Licence (Off-Licence) 5. Restaurant Alcoholic Drinks license 6. Members' Club Alcoholic Drinks Licence CON OITIONS AND EXKMPTIONS Authorized to sell alcoholic drink: (a) From Monday to Friday during the hours of 4.00 p.m. to 1] .00 p.m. (b) During weekends and public holidays during the hours of 11:00 am to 11:00 p.m. Authorized to sell alcoholic drink on any day of the week during the hours of 2.00pm. to 8:30 p.m. Authorised to sell alcoholic drink on any day of the week during the hours of 10.00 a.m. to 8:30 p.m. (a) Authorized to sell alcoholic drinks on any day of the week at any person taking meals in the restaurant, for consumption with such meals. (b) Authorized to sell alcoholic drinks from Monday to Friday during the hours of 4.OOpmto 11.OOpm (c) Authorized to sell alcoholic drinks from on weekends and public holidays during the hours of2.00 Pm to 1l.00pm Authorized to sell alcoholic drink to members on any day of the week at any hour of the day. 2021 41 Hmb71 County A lcoholic Drinks Control No.1 . 7. Proprietary Club Authorized to sel1 alcoholic drink any (Including Night Club and day of the week during the hours of Discotheques) 2.00pm to 3.00 am. 8. Theatre Alcoholic Drink Authorized to sell alcoholic drink during Licence. the hours of 4.00 p.m. to 11.00. p.m. 9. Travellers' Lodges Authorized to sell alcoholic drink on any Alcoholic Drinks License day of the week at any hour of the day to bonafide travellers 10. Temporary or Occasional Authorised to sell alcoholic drink on the license. day and during the hours stipulated in the license by the Sub-county Committee for the purposes of specific occasions, ceremorues or events as indicated in the application. 42 No.1 Embu County Alcoholic Drinks Control SECONO SCBEI)ULE 2021 (s.18(1» TYPES OF LICENCES The following licences may be granted under this Act 1. Manufacturer's Licence Subject to the conditions specified in the licence, a Manufacturer's licence authorizes the holder to (a) manufacture and store the manufactured alcoholic drink in his depot; (b) sell the product of his manufacturing plant by wholesale in accordance with the conditions that are for the time being, applicable to a holder of a wholesale licence or by delivery from depot throughout Kenya in accordance with the Alcoholic Drinks Control Act, 2010; and (c) bottle the alcoholic drink subject to such conditions as may be prescribed. For the purposes of this paragraph, "depot" means premises of whatever description, which are occupied by a lManufacturer for of his trade. 2. Wholesale Licence A wholesale licence authorizes the licensee to sell an alcoholic drink at the premises specified in the licence, subject to such conditions as may be prescribed. 3. Retail Licence A retail licence authorizes the licensee to sell an alcoholic drink on the premises, at the hours and subject tc such other conditions as are specified in the licence. 4. Temporary Licence Authorised to sell alcoholic drink on the day and during the hours stipulated ltl the license by the Sub-county Committee for the purposes of specific occasions, ceremonies or events as indicated in the application. 5. Distributors' Licence Authorizes the licensee to distribute alcoholic drinks as may be prescribed. 2021 43 Embu County Alcoholic Drinks Control No.1 THIRD SCHEDULE (Section 10(2» ALCOHOLIC ORIN.(S I{ELATED ANNUAL CHARGES Classification Classification Classification A B C,D General Retail alcoholic 40,000 35,000 20,000 drinks General retail alcoholic 35,000 30,000 30,000 drinks license (off license) tBrewers alcoholic Drinks All license Categories 1,000,000 or more litres per 1,000,000 annum 500,000 t0999,999 litres per 500,000 annum From 12,00lto 499,999 250,000 ~itres per annum 12,000 litres per annum and 50,000 Ibelow IWholesale local alcoholic 50,000 drinks license (pel IPremises)- all categories. IWhole Sale, Imported (cross All Categories County and across Country) alcoholic drinks [icense (NB: alcoholic drinks so imported must have a licensed depot within ~mbu County) 1,000,000 and above litres 1,000,000 per annum 500,000 to 999,999 litres 500,000 Below 500,000 litres 250,000 BOTTLERS LICENSER Bottlers alcohol drinks 250,000 license Depot License ( Additional 50,000 ~o Bottlers licenses above 44 No.1 Embu County Alcoholic Drinks Control 2021 Classification Classification Classification A B C,D DISTRJBlJTORS ALCOHOLIC DRINKS LICENSE Distributors license 50,000 Depot License ( Additional 20,000 ~o distributors licenses above) Hotels Alcoholic Drinks 100,000 60,000 60,000 License Restaurant alcoholic drinks 60,000 40,000 30,000 license Members Club 100,000 80,000 80,000 Proprietary Clubs and 100,000 80,000 80,000 Discotheques alcohol License Franchise retail store / 80,000 50,000 50,000 Supermarkets alcoholic drinks license Theatre alcoholic drinks 15,000 15,000 15,000 lcense [Traveller lounge alcoholic If Iicense has If Iicense has drinks licence class" A" no no class" A" charge 30,000 ~ilway and Airport 30,000 30,000 30,000 alcoholic drinks License per pub Cross county distribution of 500,000 500,000 500,000 alcoholic drinks license ( all ItYpes)Class "P" Temporary /Occasi onal 1,000 1,000 1,000 alcoholic drinks License Removal of an alcoholic 1,000 1,000 1,000 drink license Issue of an assurance for an 1,000 1,000 1,000 alcoholic drink License Issue of a duplicate license 1,500 1,500 1,500 of any kind 2021 45 Embu County A lcoholic Drinks Control No.1 Classification Classification Classification A B C,D Application fee 1,000 1,000 1,000 Penalty for late 500/0of the annual license fees (All application/operating Categories) without a license NOTE: THE CLASSIFICATION ABOVE IS AS PROVIDED FOR IN THE RELEVANT COUNTY LEGISLATION ON CLASSIFICATION OF COMMERCIAL CENTRES OR AS AMMEDED FROM COUNTY FINANCE LEGISLATION FROM TIME TO TIME.