REPUBLIC v KITUKU - RESIDENT MAGISTRATE LAMU & ANOTHER [2011] KECA 113 (KLR)
The bottom line
#Kenya's Court of Appeal paused Lamu County's 2% accommodation levy and related criminal cases, because the council couldn't prove it followed the law.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a stay of execution of the High Court ruling and a stay of the criminal proceedings in Lamu Criminal Case Nos. 159 and 166 of 2010 should be granted pending the hearing of the intended appeal (Civil Appeal No. 23 of 2011)
- 2.Whether restraining orders against the County Council from collecting the 2% accommodation levy could properly issue
- 3.Whether the applicants' submissions on the statutory requirements under section 148(2) of the Local Government Act for imposition of the levy were frivolous
Key legal issues
#Adequacy of Ministerial approval under section 148 of the Local Government Act for imposition of a 2% accommodation levy
The applicants' contention that the gazette notice did not satisfy the requirements of section 148 was not frivolous; the respondents did not demonstrate prima facie compliance with either statutory option for imposing the levy.
Section 148(2) permits a local authority to impose fees or charges only if regulated by by-law or imposed by resolution with ministerial consent. The gazette notice of 27th February 2009 made no reference to a Council resolution, the nature of the accommodation, or any regulating by-law. Counsel's submissions raised arguable points justifying preservation of the status quo pending the intended appeal.
Availability of injunctive relief in judicial review proceedings
The court declined to consider restraining orders because at the time the judicial review proceedings were instituted, injunctive orders could not lie in judicial review proceedings.
The court noted that the applicants had sought restraining orders against the Council collecting the levy pending appeal, but since the judicial review proceedings had been commenced at a time when injunctions could not issue in judicial review, that relief was not entertained in the application.
Legal principles established
#- Fees or charges imposed by a local authority must be regulated by by-law or, if not regulated by by-law, may only be imposed by resolution of the local authority with the consent of the Minister under section 148(2) of the Local Government Act.
Court orders
#- 1.An order of stay of execution of the decision to levy the 2% accommodation levy
- 2.A stay prohibiting the continuance of the criminal proceedings in Lamu Senior Resident Magistrate's Court in Criminal Case Nos. 159 and 166 of 2010 until the determination of the intended appeal
- 3.Costs of the application to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- H.C. Judicial Review Case No. 15 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (implied by the UR application for stay pending intended appeal); underlying statute is section 148 of the Local Government Act, Cap 265
Relief refused
#Restraining orders against the County Council from collecting the levy
No injunctive orders could lie in judicial review proceedings at the time the proceedings were instituted
Costs
Costs of the application to be in 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.
In the unique circumstances of this matter, we grant an order of stay of execution of the decision to levy the 2% accommodation levy and further grant a stay prohibiting the continuance of the criminal proceedings in Lamu Senior Resident Magistrate's Court at Lamu in CR.C. NO. 159 and 166 of 2010 respectively until the determination of the intended appeal.
Costs of the application to be in the appeal.
We shall however not deal with any restraining orders since as at the time the Judicial Review proceedings were instituted, no injunctive orders could lie in Judicial Review proceedings.
Issues in the judgment
#The parties on the application are described inconsistently: the Republic and the judicial officers are listed as appellant/respondents while the moving parties appear to be Shela House Management Limited and Lamu Adventures Limited, whose intended appeal is referenced; the coram does not name them as applicants in the title.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "REPUBLIC v KITUKU - RESIDENT MAGISTRATE LAMU & ANOTHER [2011] KECA 113 (KLR)", Case Analysis (2011). Civil Application No. NAI. 276 of 2010 (UR. 194/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/113/eng@2011-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.