Base Titanium Ltd v County Government of Mombasa & another
The bottom line
#County cannot charge for services it doesn't provide, especially on national roads.
What this practically means
#The Supreme Court ruled that Mombasa County's Kshs 3,000 cess per truck on Base Titanium was unconstitutional. The County charged for using a national road (A14) maintained by KeNHA, not a county road. The County offered no service in return, and receipts vaguely said 'miscellaneous income', violating constitutional openness. The Court ordered a refund of Kshs 1,542,000 paid by December 2014, with later payments to be pursued in the High Court.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the cess charge imposed by the Mombasa County Government upon each of the appellant’s truck was a charge on services as contemplated under article 209(4) & (5) of the Constitution of Kenya , and if so
- 2.What remedies should the court offer?
Key legal issues
#Whether the cess charge imposed by the Mombasa County Government upon each of the appellant’s trucks was a charge on services as contemplated under Article 209(4) & (5) of the Constitution.
The cess was not a charge for services under Article 209(4) because the road used (A14) was a national road maintained by KeNHA, not a county road, and the County did not demonstrate any service provided in exchange for the charge. The charge also violated Article 209(5) by potentially prejudicing national mobility of goods.
The Supreme Court examined the classification of roads under the Kenya Roads Act and found that the Likoni-Ukunda Road (A14) used by the appellant's trucks to access the Port of Mombasa is a national road under the mandate of KeNHA, not a county road. The County Government of Mombasa did not illustrate how it provided any road services on that road. The Court also noted that receipts issued for the charge were marked 'miscellaneous income' or 'Likoni Revenue Barrier', which were vague and did not disclose the nature of the service, violating Article 201's requirement for openness and accountability. The Court concluded that the charge was improperly imposed and not a charge for service as contemplated by Article 209(4).
Whether the appellant was entitled to a refund of the cess paid.
The appellant was entitled to a refund of KES 1,542,000 paid as of December 31, 2014, as the charge was declared unconstitutional. Additional sums paid after that date may be pursued at the High Court.
The Court noted that the claim for a refund was pleaded and proven, and neither the High Court nor the Court of Appeal had considered it. Having nullified the 1st respondent's action to collect the cess, the Court found the appellant entitled to a refund of the amount remitted as of December 31, 2014. For sums paid after January 1, 2015, the Court directed that they be pursued at the High Court, as the record did not clearly establish the exact amounts.
Legal principles established
#- A county can only charge for services it actually provides, not as a general tax.
- Charges for using a national road belong to the national government, not the county.
- County receipts must clearly state what the payment is for, not vague terms like 'miscellaneous income'.
- A county's charge must not prejudice national economic policies, like free movement of goods.
- Unconstitutional charges must be refunded to the payer.
Court orders
#- 1.The Petition of Appeal dated August 14, 2018 and filed on August 15, 2018 is hereby allowed.
- 2.The Judgment of the Court of Appeal dated July 5, 2018 is hereby set aside.
- 3.The Judgment of the High Court dated February 21, 2018 be and is hereby set aside.
- 4.A declaration is hereby issued declaring that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs 3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s County is unconstitutional, null and void.
- 5.The 1st respondent is hereby directed to refund to the appellant the sum of Kshs 1,542,000 paid by the appellant to the 1st respondent as of December 31, 2014.
- 6.Any other additional sums that the appellant has so paid to the 1st respondent from January 1, 2015 to the date of this judgment as cess on trucks transporting goods across the 1st respondent’s boundaries shall be pursued at the High Court.
- 7.The 1st respondent shall bear the costs of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Mombasa
- Civil Appeal No 69 of 2017
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Costs of the appeal before the Court of Appeal
The Court of Appeal made no order as to costs on the ground that this was a public interest matter, and that discretion was not challenged by the Appellant.
Costs
The 1st respondent shall bear the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Whereas a County can levy charges, it must do so in exchange for an amenity. Put differently, a County does not have the authority to charge a cess, levy or tax where they do not offer anything in return.
having established that it is not a county road, it is then improper for County Government of Mombasa to levy a charge for road service for the same road that vests in the National Government.
It is imperative that any payments to Counties must clearly state in precise, unambiguous words what the payments are for.
The Petition of Appeal dated August 14, 2018 and filed on August 15, 2018 is hereby allowed.
The Judgment of the Court of Appeal dated July 5, 2018 is hereby set aside.
a declaration is hereby issued declaring that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs 3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s County is unconstitutional, null and void.
The 1st respondent is hereby directed to refund to the appellant the sum of Kshs 1,542,000 paid by the appellant to the 1st respondent as of December 31, 2014.
Key timeline
#Practical implications
#Challenge county charges on service basis
When advising clients facing county levies, scrutinize whether the county provides a specific service in exchange. If the charge is for using a national road or other national asset, argue it violates Article 209(4). Also, demand clear receipts—vague descriptions like 'miscellaneous income' are grounds for nullification. Use this case to seek refunds for past unconstitutional payments.
Audit county levies for legality
Review all county charges your business pays. If a county imposes a fee for using roads or infrastructure, check who maintains that asset—national or county. If national, the charge is likely illegal. Also, ensure receipts specify the service. If vague, you may have a claim for refund. Document all payments and consult a lawyer to recover amounts paid under unconstitutional charges.
Know your rights on county fees
If a county asks you to pay for using a road or service, ask what service they provide. If it's a national road (like A14), they cannot charge you. Also, demand a receipt that clearly states what the payment is for. If the receipt is vague, the charge may be unconstitutional. You can challenge such fees in court and potentially get a refund.
Frequently asked questions
#Can a county government in Kenya charge for using a national road?+
No. The Supreme Court ruled that a county cannot charge for using a national road, as it is maintained by the national government (KeNHA). The county must provide a service in exchange for any charge, and using a national road is not a county service.
What is a cess in Kenya and is it legal?+
A cess is a charge or levy. It is legal only if a county provides a specific service in return, like waste collection or road maintenance on a county road. If the county offers no service, or charges for a national road, the cess is unconstitutional.
Can I get a refund if a county charged me an illegal fee in Kenya?+
Yes. The Supreme Court ordered Mombasa County to refund Kshs 1,542,000 to Base Titanium for an illegal cess. If you paid an unconstitutional county charge, you can seek a refund in court, especially if the receipt was vague or no service was provided.
What does Article 209(4) of the Kenyan Constitution say about county charges?+
Article 209(4) allows counties to impose charges for services they provide. The Supreme Court clarified that this means the county must actually offer a service in exchange—like road maintenance on a county road. A charge without a service, or for a national road, is unconstitutional.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Government of Meru v Liberty Mall Ltd & another (Environment and Land Appeal E065 of 2025) [2026] KEELC 3569 (KLR)[2026] KEELC 3569 (KLR)2 Jun 2026applied
- Chebugei & 3 others (Suing on their own behalf and on behalf of all members of the public using the Muserech - Orinie- Kapsatek Road) v Kenya Rural Roads Authority & 4 others (Environment and Land Petition E04 of 2022) [2026] KEELC 526 (KLR)[2026] KEELC 526 (KLR)6 Feb 2026applied
Cite this brief
#Cite this brief
Caselaw, "Base Titanium Ltd v County Government of Mombasa & another", Case Analysis (2021). Petition 22 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/33/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.