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Court of AppealDismissedCivil Appeal No. 212 of 2009· [2017] KECA 17 (KLR)

Tom Wambua Reuben & 169 others v Municipal Council of Nakuru [2017] KECA 17 (KLR)

Court of Appeal of Kenya
22 November 2017
HOH. M. OkwenguPKP. O. KiageJMJ. Mohammed
6,015 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed 170 Nakuru ratepayers' challenge to a property valuation roll, confirming councils can implement new rates even while objections are pending.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (sitting in Nakuru), in a single judgment of the whole court delivered by Okwengu, Kiage and J. Mohammed, JJ.A., dismissed this appeal by 170 Nakuru ratepayers against a ruling of Maraga, J dismissing their judicial review application seeking prohibition against the Municipal Council of Nakuru's implementation of the 2007 draft valuation roll. The Court first restated the appellate function in judicial review matters: it confines itself to the process of decision-making, not the merits, and noted Article 47 of the 2010 Constitution expanded judicial review but could not apply retrospectively to a pre-2010 decision. On the substance, the Court held that ministerial approval under Section 3 of the Valuation for Rating Act is mandatory where a roll is prepared outside the ten-year period, but that a local authority may initiate the process through any of its organs without a full-council resolution, and that approval may be given retrospectively before the roll becomes effective. Although Gazette Notice No. 2245 purported to act under Section 6, read as a whole it conveyed the Minister's consent for the process to proceed beyond the statutory period, and the learned Judge's conclusion was not so perverse as to justify interference. The Court further found no irregularity in the gazettement of three officers of Apex Valuers Ltd as implementation of the Council's competitive procurement; held that the Council's adoption of the site value rate was duly approved; that the draft roll was laid before the council and made available for public inspection; and that under Section 18 the roll took effect notwithstanding pending objections, with recompense available under Section 28(1). The appeal was dismissed with each party bearing its own costs, the appellants having acted in a public-spirited manner.

Key legal issues

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01

Scope of judicial review as an appellate exercise

Holding

The Court on appeal considers only whether the judge properly exercised discretion on the process of decision-making, not the merits of the decision itself

Reasoning

Applying Municipal Council of Mombasa vs Republic Ex-parte Umoja Consultants Ltd, the Court reiterated that judicial review concerns the decision-making process - jurisdiction, hearing, relevant considerations - not the merits. The Court noted Article 47 of the 2010 Constitution expanded judicial review through fair administrative action, but could not apply retrospectively to the pre-2010 decision under review.

p. 3
02

Ministerial approval under Section 3 of the Valuation for Rating Act

Holding

Ministerial approval for a valuation roll outside the ten-year period is mandatory but may be given retrospectively; the approval by Gazette Notice No. 2245, though 'not happily worded', sufficed and the judge's finding was not an inferential error warranting interference

Reasoning

The Court held approval is required at two levels - commencement of the process outside ten years, and upon the resolution for the date the roll comes into force. Although the Gazette Notice purported to act under Section 6 and did not mention Section 3, read as a whole the Minister was plainly consenting to the process proceeding after the statutory period. The judge's conclusion was neither an inferential error nor perverse.

p. 5
03

Appointment of valuers under Section 7 of the Rating Act

Holding

Gazettement of three individuals who were officers of Apex Valuers Ltd was mere implementation of the Council's procurement of Apex Valuers Ltd and involved no irregularity

Reasoning

The Council, through competitive bidding, resolved to appoint Apex Valuers Ltd. A body corporate can act only through its agents or servants; since the gazetted valuers were officers of Apex Valuers Ltd communicated as the valuation team, the gazettement did not constitute procurement of different valuers or flout procurement procedures.

p. 5
04

Effect of a valuation roll under Section 18 pending objections

Holding

A draft valuation roll laid before the council comes into force at the commencement of the financial year notwithstanding pending objection proceedings; excess payments are recoverable under Section 28(1)

Reasoning

Section 18 deems the draft roll to be the valuation roll once laid before the local authority, and Section 28(1) provides that an appeal from the valuation court does not operate as a stay. Hence charging rates under the new roll before conclusion of objections did not violate natural justice, the ratepayer's right to object remaining intact with recompense for any excess.

p. 7

Legal principles established

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  • A local authority may initiate preparation of a valuation roll outside the ten-year period through any of its organs without a full-council resolution, and ministerial approval for such valuation may be given retrospectively before the roll becomes effective
  • An appellate court will not interfere with the exercise of a judge's discretion unless the judge misdirected himself or was clearly wrong, resulting in misjustice
  • Once a valuation roll comes into force under Section 18, objection proceedings before the valuation court or an appeal therefrom do not, of themselves, stay the implementation of the new roll
  • On a first appeal against the refusal of judicial review orders, the appellate court's task is to reconsider whether the judge properly exercised discretion, not to substitute its own

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Valuation for Rating ActSection 3
  • Valuation for Rating ActSection 2
  • Valuation for Rating ActSection 5
  • Valuation for Rating ActSection 6
  • Valuation for Rating ActSection 9(2)
  • Valuation for Rating ActSection 18
  • Valuation for Rating ActSection 28(1)
  • Rating Act (Cap 267)Section 4
  • Rating Act (Cap 267)Section 5
  • Rating Act (Cap 267)Section 7
  • Public Procurement and Disposal Act No. 3 of 2005Section 27(1) as read with Section 29(1)
  • Civil Procedure Rulesrepresentative suits provisions
  • Constitution of Kenya 2010Article 47

Cases cited (4)

  • Municipal Council of Mombasa vs. Republic: Exparte Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Mbogo vs Shah
    [1968] EA 93
  • United India Insurance Co. Ltd vs East African Underwriters
    [1985] KLR 898
  • Pithon Waweru Maina vs Thuka Mugiria
    1983 eKLR
On appeal from
High Court of Kenya at Nakuru
H.C. JR. Application No. 49 of 2009 & No. 31 of 2009
Jurisdiction invoked
First appeal from the High Court in judicial review proceedings under the Court's appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tom Wambua Reuben & 169 others v Municipal Council of Nakuru [2017] KECA 17 (KLR)", Case Analysis (2017). Civil Appeal No. 212 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/17/eng@2017-11-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.