Clerk, County Council of Wajir & another v Ahemd & another; Republic (Ex parte)

The court construed the word 'may' as vesting discretion in the local authority whether or not to impose cess. However, once the authority elects to impose cess, the statutory scheme in Section 192A(1) requires the Minister for Agriculture to consent and then consult the Minister for Local Government; approval must follow before the cess can lawfully be imposed. Consent, consultation and approval are mandatory preconditions.

The court examined the Local Government Act and confirmed Section 202(7) does not exist; the record of appeal referred to Section 202(3). The court agreed with the respondent that the reference was typographical and held the error did not go to the root of, or form the ratio of, the High Court's final decision.

Section 202(3) bars local authorities from making by-laws overriding or derogating from other written law. Since Section 192A(1) makes ministerial consent mandatory before cess is imposed, the general power to impose cess under Section 202(1) cannot override that requirement. The Judge therefore did not err in finding ministerial approval mandatory.

Relying on Sections 107, 109 and 112 of the Evidence Act, the court held the respondents laid a factual basis that the Mandera by-law was unapproved, shifting the evidential burden to the Council. Section 206 of the Local Government Act prescribes the mode of proving approval; no Section 206(1) evidence or 206(2) certificate was tendered, and approval was a fact within the Council's knowledge.

Section 192A(3) provides that the procedure for making, approving and publishing by-laws under Section 192A(1) is that prescribed by the law establishing the local authority. The Gazette Notice of 5th September 2008, read with the Wajir (Miraa Import Cess) By-law, 2008 and a Section 206(1) certificate, was sufficient proof of ministerial approval, rendering the Wajir cess legal.