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Court of AppealAllowedNot stated in the judgment

H Young & Co (EA) v County Government of Lamu (Civil Appeal E033 of 2021) [2024] KECA 359 (KLR)

Court of Appeal
22 March 2024
4,982 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled Lamu County couldn't charge cess on soil and murram because those items weren't listed in its Finance Act.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment of the High Court dated 3rd June 2021, which had dismissed a petition by H. Young & Co (E.A.) Ltd challenging the County Government of Lamu's demand for cess on soil and murram excavated for the construction of the Garsen-Witu-Lamu road. The appellant contended that soil and murram are not listed as cessable items under the Fourth and Fifth Schedules to the Lamu County Finance Act, 2016, and that under Article 210(1) of the Constitution no tax or licensing fee may be imposed except as provided by legislation. The respondent maintained that its demand was lawful under section 4 and 5 of the Lamu County Revenue Administration Act, 2015 and items 1173, 1174 and 1175 to 1201 of the Second Schedule to the Finance Act. The Court of Appeal, comprising Murgor, Laibuta and Odunga JJA in a single unanimous judgment, reviewed the statutory framework and authorities on statutory interpretation. It held that section 2 of the Act expressly defines cess as fees charged for goods specified in the Fourth Schedule, and neither the Fourth nor Fifth Schedules include soil or murram. The Second Schedule, which concerns permit and license fees, cannot support a cess demand. The demand for cess was therefore unlawful and unconstitutional. Allowing the appeal, the Court set aside the High Court judgment, issued the declarations sought, and granted both prohibitory and mandatory injunctions restraining the respondent from levying cess on soil for the road project until it enacts a supporting legal framework, with costs of the appeal to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Lamu County Finance Act, 2016 provides for levying of cess on soil and murram
  2. 2.Whether the learned judge rightly found that the respondent was entitled to levy cess on the excavation of murram for the construction of the Garsen-Witu-Lamu road

Key legal issues

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01

Whether the Lamu County Finance Act, 2016 authorises the levying of cess on soil and murram

Holding

The appeal is allowed; the demand for cess on soil and murram was unlawful and unconstitutional because they are not listed as cessable items under the Fourth Schedule to the Lamu County Finance Act, 2016.

Reasoning

Section 2 of the Act expressly defines cess as fees charged for goods specified in the Fourth Schedule. The court adopted a literal interpretation, examined the Fourth Schedule (land-based fees) and the Fifth Schedule (market produce and services), and found neither includes soil or murram for road construction. The respondent's reliance on the Second Schedule (permit/license fees) was rejected because the definition of cess makes no reference to the Second Schedule. The demand therefore lacked legislative authority contrary to Article 210(1) of the Constitution.

p. 9
02

Whether the Second Schedule to the Lamu County Finance Act, 2016 can support a demand for cess on construction materials

Holding

No. Cess cannot be levied on items other than those listed in the Fourth Schedule because the statutory definition of cess does not refer to the Second Schedule.

Reasoning

The respondent argued that items 1173, 1174 and 1175 to 1201 of the Second Schedule, covering permit and license fees for construction materials, authorised the cess demand. The court held that the definition of cess under section 2 is confined to the Fourth Schedule, so items in the Second Schedule, which concerns permit and license fees for businesses, cannot be the basis of a cess demand. The trial judge's contrary conclusion was a misdirection warranting appellate interference.

p. 9
03

The applicable approach to statutory interpretation in tax and revenue matters

Holding

Where statutory words are clear and unambiguous, a literal interpretation applies; tax demands must fall within the terms of the statute without ambiguity, and any ambiguity is for the legislature to remedy.

Reasoning

Drawing on the Supreme Court's purposive approach in Munya, the Reserve Bank of India text-and-context principle, the Swedish Match literal rule, and the Court of Appeal's own strict-construction jurisprudence in tax matters (Barclays Bank), the court held that since section 2 of the Act unambiguously confines cess to the Fourth Schedule, the definition must be construed literally and the demand must fall squarely within the statute. Ambiguity cannot be cured by judicial intendment.

p. 7

Legal principles established

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  • A county government may only impose a tax or levy through legislation, and a cess demand must fall within the items expressly specified in the statute; where the statutory definition of cess limits it to goods in a specified schedule, items outside that schedule are not cessable.
  • Where a statute defines a term with explicit reference to a particular schedule, the statutory definition must be construed literally and cannot be expanded to cover items not listed in that schedule.
  • Levying a tax or cess without supporting legislation is unlawful and unconstitutional under Article 210(1) of the Constitution.

Court orders

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  1. 1.A declaration that the respondent's demand for cess fees from the appellant in respect of soil for the Garsen-Witu-Lamu road project, which is not a cessable item under the Lamu County Finance Act, 2016, is unlawful, unconstitutional, null and void
  2. 2.A declaration that the actions of the respondent in continuing to levy or charge cess fees for soil used in the construction of the Garsen-Witu-Lamu road project without any supporting legal framework expressly violates the provision of the Constitution
  3. 3.A Prohibitory Injunction to stop the respondent from levying or charging cess fees for soil for the Garsen-Witu-Lamu road project in the area of its jurisdiction until such time as they have enacted the supporting legal framework
  4. 4.A mandatory injunction to stop the respondent from levying or charging cess fees for soil for the Garsen-Witu-Lamu road project in their area of jurisdiction until such time as they have enacted the supporting legal framework
  5. 5.Costs of the appeal to be paid to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal against a decision of the High Court

Quotable passages

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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 sum, we find that the appeal is merited and is hereby allowed. Tthe judgment of the High Court dated 3rd June 2021 is hereby set aside and substituted therefor
p. 9Final orders - appeal allowed and High Court judgment set aside
A Prohibitory Injunction is hereby issued to stop the respondent from levying or charging cess fees for soil for the Garsen-Witu-Lamu road project in the area of its jurisdiction until such time as they have enacted the supporting legal framework
p. 9Prohibitory injunction against unlawful cess levies
the County government’s demand for payment of cess on items outside the Fourth Schedule is unenforceable since such items are not cessable.
p. 9Cess limited to items specified in the statutory schedule
since soil or murram are not included within the items specified in the Fourth Schedule, any demand for payment of cess by the respondent on soil or murram was unlawful and unconstitutional.
p. 9Unconstitutionality of taxation without legislative authority
We are therefore enjoined to adopt a literal interpretation of the provision, and to construe section 2 as meaning that cess is only to be imposed to the items in the Fourth Schedule.
p. 8Literal interpretation of the statutory definition of cess

Issues in the judgment

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material

The judgment appears to contain a typographical error where it concludes that soil and murram ARE cessible under section 6, apparently contradicting its own reasoning and holding elsewhere that they are not cessible.

minor

A typographical error in the disposition paragraph ('Tthe').

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "H Young & Co (EA) v County Government of Lamu (Civil Appeal E033 of 2021) [2024] KECA 359 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/359/eng@2024-03-22

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