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ELCOtherConstitutional Petition (Eldoret High Court) – rent increase challenge re Finance Bill No. 6 of 2013· [2014] KEELC 23 (KLR)

Samwel K. Maiyo & 5 others v County of Uasin Gishu Government & 2 others [2014] KEELC 23 (KLR)

Environment and Land Court at Eldoret
27 November 2014
737 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court nullified Uasin Gishu's 2013 rent increases because the county never consulted the public, and tenants overpaid are entitled to credits.

What this practically means

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Executive summary

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This was a constitutional petition by tenants of eight residential housing estates owned by the Uasin Gishu County Government (Mayabi, Uhuru, Kamanda, Kuria, Tom Mboya, St. Mary's Kodhetk, Kilimani and Macharia) challenging rent increases introduced through the County's Finance Act, 2013. The petitioners sought declarations that the rent increase process was neither democratic nor transparent, that it proceeded without the public participation required by Article 10(2) of the Constitution, and that the Finance Act, 2013 was illegal. The petition was argued by written submissions. Before delivering judgment, the court discovered that the same Finance Act, 2013 had already been declared unconstitutional, null and void on 2 October 2014 by Lady Justice Grace Ngenye-Macharia in Eldoret High Court Constitutional Petition No. 3 of 2014, North Rift Motor Bike Taxi Association v Uasin Gishu County Government, on the basis that it contravened Articles 1(1), 10(2)(a) and 196(1)(b) of the Constitution and Section 87 of the County Government Act, 2012. Munyao Sila J declined to re-evaluate the issues, holding that doing so would amount to sitting on appeal over a decision of a court of concurrent jurisdiction. The court instead gave effect to that prior nullification: the parties were to be restored to the position prevailing before enactment of the Finance Act, 2013, the interim order of 16 September 2014 (permitting continued residence on payment of the new rent) was effectively superseded, the pre-Act rent remained payable, and any monies paid under the new rent were to be credited to the tenants. The court made no orders as to costs. The petition was thus not adjudicated on its merits but disposed of in light of the prior judgment, with restorative orders in the tenants' favour.

Key legal issues

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01

Effect of a prior declaration of nullity of the Finance Act, 2013 by a court of concurrent jurisdiction

Holding

The court declined to re-adjudicate the constitutionality of the Finance Act, 2013, holding that the issue was already decided in North Rift Motor Bike Taxi Association v Uasin Gishu County Government, where Justice Grace Ngenye-Macharia declared the Act unconstitutional, null and void

Reasoning

The court found that the Finance Act, 2013 had already been declared unconstitutional in Petition No. 3 of 2014 decided on 2 October 2014. Re-evaluating the same issues would effectively amount to sitting on appeal over a decision of a judge of concurrent jurisdiction, which the court would not do.

p. 2
02

Consequences of nullification for rent payable by the petitioners

Holding

With the Finance Act, 2013 nullified, the interim order allowing continued residence on payment of new rent had to revert; rent payable remains that which was payable prior to the Act, and monies paid under the new rent are to be credited to the tenants

Reasoning

The court had on 16 September 2014 allowed petitioners to remain in the houses on payment of the new rent. Since the Finance Act was nullified, that interim arrangement could not stand; the position prevailing prior to the Act was restored and overpayments credited to the tenants.

p. 2

Legal principles established

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  • A court should not re-determine a matter already decided by a court of concurrent jurisdiction; the prior judgment binds the parties' rights under the impugned statute
  • Upon nullification of a Finance Act, parties are to be restored to the position prevailing before its enactment, including crediting monies paid under the invalid charges

Court orders

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  1. 1.Declared that the issue whether the Finance Act, 2013 of Uasin Gishu County is unconstitutional has already been decided in Eldoret High Court Constitutional Petition No. 3 of 2014, North Rift Motor Bike Taxi Association v Uasin Gishu County Government
  2. 2.Noted that the Finance Act, 2013 has already been held unconstitutional, null and void in that decision
  3. 3.Ordered that parties be placed in the position they were in prior to enactment of the Finance Act, 2013, and any monies paid under the new rent be credited to the tenants; status quo prevailing before the Finance Act, 2013 be maintained as far as the petitioners are concerned
  4. 4.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10(2)(a)
  • Constitution of Kenya, 2010Article 1(1)
  • Constitution of Kenya, 2010Article 196(1)(b)
  • Constitution of Kenya, 2010Article 2(4)
  • County Government ActSection 87
  • Uasin Gishu County Finance Bill/Act, 2013No. 6 of 2013

Cases cited (1)

  • The North Rift Motor Bike Taxi Association (NRMBTA) v The Uasin Gishu County Government
    Eldoret High Court, Constitutional Petition No. 3 of 2014
Jurisdiction invoked
Constitution of Kenya, 2010 – constitutional petition under Articles 1(1), 10(2)(a), 2(4) and related provisions

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, "Samwel K. Maiyo & 5 others v County of Uasin Gishu Government & 2 others [2014] KEELC 23 (KLR)", Case Analysis (2014). Constitutional Petition (Eldoret High Court) – rent increase challenge re Finance Bill No. 6 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/23/eng@2014-11-27

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