County Government of Makueni & another v Okoiti & 7 others (Civil Application E019 & E031 of 2024 (Consolidated)) [2024] KECA 1166 (KLR)
The bottom line
#The Court of Appeal allowed Makueni and Kwale counties to keep collecting revenue in Mtito Andei and Mackinnon Road towns while they challenge a ruling favouring Taita Taveta County.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable; the respondents conceded this condition
The applicants proposed to argue that the Environment and Land Court lacked jurisdiction over county boundary disputes; that the orders issued were not anchored in the petition; and that the orders contravened Article 207(1) of the Constitution and section 109(2) of the Public Finance Management Act. Following National Industrial Credit Bank v Wasike, grounds need only be pointed out, not argued. The Court found the issues deserving of consideration and warranting a response from the opposite party.
Whether the intended appeal would be rendered nugatory absent stay
Compliance with the impugned order could compel the applicants to act contrary to Article 207(1) of the Constitution and section 109(2) of the Public Finance Management Act, an illegality not reversible by damages, so the appeal would be rendered nugatory
The Court reasoned that a constitutional violation cannot be undone even if funds are later available, and the failure to render essential services is likewise irreversible. Because the applicants draw funds from the National Government, the 5th respondent could recover its share if the appeal ultimately fails. Proportionality and the public interest in constitutional compliance tipped the balance in favour of granting the conservatory orders.
Public interest in granting stay
Public interest weighed in favour of protecting constitutional provisions and ensuring services are rendered to the public, following the Supreme Court's decision in Munya v Kithinji
Relying on Gatirau Peter Munya v Dickson Mwenda Kithinji, the Court held that the expanded scope of the Bill of Rights and the public spiritedness running through the Constitution require consideration of whether stay serves the public interest. The claim of double taxation was unsupported by material and is a matter for the main petition.
Legal principles established
#- Under rule 5(2)(b), an applicant must demonstrate, conjunctively and sequentially, that the appeal or intended appeal is arguable and that it would be rendered nugatory absent stay or injunction
- A single bona fide arguable ground suffices for the arguability condition; the grounds need not be argued, only identified
- In deciding whether an appeal will be rendered nugatory, the Court weighs the conflicting claims of both parties and applies the principle of proportionality under the overriding objective
- In matters engaging the Bill of Rights and public interest, the public interest in constitutional compliance is a relevant consideration in the nugatory test
Court orders
#- 1.An injunction restraining the implementation of the Public Notice to members of the public, business owners and traders in Mtito Andei and Mackinnon Road Towns published in the newspapers on 25th March 2024 by the 5th respondent, pending the hearing and determination of the intended appeal
- 2.A stay of execution of the order prohibiting the County Governments of Kwale and Makueni and their agents from collecting revenue in Mackinnon Road Town and Mtito Andei Town where their predecessors did not collect revenue before the establishment of the county governments
- 3.A stay of execution of the order appointing the County Government of Taita Taveta to be the sole authority issuing business permits and levying county taxes in Mackinnon Road and Mtito Andei Towns and directing it to deposit all revenues collected into a joint interest-earning bank account
- 4.Costs of the Motions to be in the intended appeals
- On appeal from
- Environment and Land Court, Mombasa
- Petition No. 33 of 2021 - Okiya Omtatah Okoiti v The Parliament of Kenya & Others
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Makueni & another v Okoiti & 7 others (Civil Application E019 & E031 of 2024 (Consolidated)) [2024] KECA 1166 (KLR)", Case Analysis (2024). Civil Application Nos. E. (Makueni - Notice of Motion dated 1st March 2024) and (Kwale - Notice of Motion dated 28th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1166/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.