The High Court has declared that the popular Kikuyu brew, known as muratina, is not an illicit drink.
In a judgment on Friday, High Court judge Abigail Mshila said the Agikuyu people are at liberty to prepare and consume it as part of their culture and tradition and the cultural elders through Kiama Kia Ma with the assistance of the local chiefs regulate the preparation and consumption of the brew, without prejudice to existing laws.
The judge said the use of muratina is part of the Agikuyu culture and has not been prohibited by any law as the Alcoholic Drinks Control Act, 2010, merely regulates alcoholic drinks including traditional alcoholic drinks.
“The Act does not prohibit traditional drinks, and particularly it does not identify muratina as illicit brew. The Respondents (county authorities) were wrong in treating muratina as illicit brew,” said the judge.
The court said that actions taken by the Kiambu county commissioner and the Ndeiya sub-county police boss by arresting the council of elders for preparing the brew lack legal basis and hence unconstitutional.
The 12 elders led by Mr Anthony Ngumi Gitau under the Ndeiya Traditional Brewers sought the court’s protection arguing that police officers have been violating their constitutional rights by arresting them for preparing the brew.
They said they are duly authorised by the Kikuyu Cultural Elders (Kiama Kia Ma) to prepare muratina for traditional ceremonies and not for commercial purposes.
They said the classification of muratina as illicit suppresses the traditional celebrations under the Kikuyu culture as well as discriminates against the practices.
The elders said muratina is a Kikuyu cultural brew prepared since time immemorial for traditional ceremonies of the Agikuyu people such as dowry ceremony (ruracio), circumcision ceremony (irua), initiation to council of elders (Kiama Kia Ma), reconciliation of family members (Goima Cia Worohia), praying for rain, children and land.
Mr Alois Kihiu said in an affidavit that muratina has been around for years and the same is prepared for purposes of blessing traditional ceremonies with Kiama Kia Ma being the National Gikuyu Cultural Association overseeing matters relating to Kikuyu Culture.
He said that no traditional ceremony under the Kikuyu Culture can be performed in the absence of Muratina as such the same cannot be governed by the Alcoholic Drink Control Act.
The elders defended the brew arguing that it has no health implications as such it should not be suppressed and they should be allowed to partake and enjoy their culture without interference.
The Ndeiya sub-county police boss Roselyn Mnyolmo opposed the case stating that national statutes on regulation and control of alcohol apply uniformly and precede all other county legislation.
She said the brewing premises were closed for operating contrary to the regulatory framework and for possession of alcoholic drinks which do not conform with the requirements of the Act.
The police boss said the elders were asked to approach the relevant authorities for proper licenses for the manufacture and sale of muratina.
The court heard that the right to culture was not absolute and that the police were carrying out their mandate as per the law and the same cannot be said to be harassment, and in any case, claims of harassment should be directed to the relevant authority.
The county police boss said there was no licence allowing the elders to manufacture and sell Muratina.
Justice Mshila said unless the police officers enforce specific provisions of the Alcoholic Drinks Control Act or any other law, they cannot raid homes, confiscate property and prefer unfounded charges against authorized muratina brewers. “Those actions violate the cultural rights of the Agikuyu people,” she added.
