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ELCOtherConstitutional Petition (Uasin Gishu County rent increases - Finance Act, 2013)· [2014] KEELC 71 (KLR)

Samwel K. Maiyo & 5 Others v County of Uasin Gishu Government & 2 Others [2014] KEELC 71 (KLR)

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

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Kenya's Environment and Land Court confirmed Uasin Gishu's 2013 rent increases were invalid and ordered tenants' extra payments credited back to them.

What this practically means

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Executive summary

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This was a constitutional petition by tenants in Uasin Gishu County Government residential estates (Mayabi, Uhuru, Kamanda, Kuria, Tom Mboya, St. Mary's Kodhetk, Kilimani and Macharia) challenging rent increases introduced through the Uasin Gishu County Finance Act, 2013 (Finance Bill No. 6 of 2013). The petitioners sought declarations that the rent increase process was undemocratic and non-transparent, that there was no public participation as required by Article 10(2) of the Constitution, and that the Finance Bill was illegal. The petition was argued by written submissions. In preparing judgment, Munyao Sila J found that the same Finance Act, 2013 had already been declared unconstitutional, null and void by Ngenye-Macharia J on 2 October 2014 in Eldoret High Court Constitutional Petition No. 3 of 2014 (North Rift Motor Bike Taxi Association v Uasin Gishu County Government), which held that the Act contravened Articles 1(1), 10(2)(a) and 196(1)(b) of the Constitution and Section 87 of the County Government Act, 2012. The court declined to re-evaluate the issues, reasoning that doing so would amount to sitting on appeal over the prior decision. The court instead directed that the parties be restored to the position prevailing before the enactment of the Finance Act, 2013; monies paid under the new rents are to be credited to the tenants and the pre-Act status quo maintained in respect of the petitioners, superseding the interim orders of 16 September 2014. No orders as to costs were made.

Key legal issues

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01

Res judicata effect of a prior nullification of the Finance Act, 2013

Holding

The court did not independently determine the constitutionality of the Finance Act; the Act had already been declared unconstitutional, null and void by Ngenye-Macharia J in Petition No. 3 of 2014, and the court adopted that outcome for the petitioners' benefit

Reasoning

The court discovered after receiving submissions that the same Finance Act, 2013 had been struck down in a separate petition decided on 2 October 2014. Re-opening the question would place the court in the position of reviewing a coordinate court's decision. The court therefore simply aligned the parties with the earlier judgment's consequences rather than re-deciding the issues.

p. 2
02

Consequences of nullification for tenants who paid the increased rents

Holding

The interim arrangement permitting payment of the new rent had to revert; rents revert to pre-Finance Act levels and monies paid under the new rents 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. With the Finance Act nullified, the legal basis for the increased rents fell away, so the court restored the pre-Act status quo and directed that payments made under the new rent be credited to the tenants rather than requiring refund.

p. 2

Legal principles established

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  • Where another court of competent jurisdiction has already declared the same county legislation unconstitutional, a court should not re-evaluate the same issues, as that would amount to sitting on appeal over the prior decision
  • Upon nullification of a county Finance Act, parties affected must be restored to the position prevailing before the Act, and monies paid under the increased rents must be credited to the tenants

Court orders

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  1. 1.Declared that the issue whether or not the Finance Act, 2013 of Uasin Gishu County is unconstitutional has already been decided in Eldoret High Court Constitutional Petition No. 3 of 2014, The North Rift Motor Bike Taxi Association (NRMBTA) v The Uasin Gishu County Government
  2. 2.Noted that in the said decision the Finance Act, 2013 of Uasin Gishu County has already been held to be unconstitutional, null and void
  3. 3.Ordered that the parties be placed in the position they were in prior to the enactment of the Finance Act, 2013, and any monies paid under the new rent be credited to the tenants; the status quo prevailing prior to the Finance Act, 2013 be maintained in so far as the petitioners are concerned
  4. 4.Made 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)
  • Uasin Gishu County Finance Act, 2013 (Finance Bill No. 6 of 2013)
  • County Government Act, 2012Section 87

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 - original constitutional petition jurisdiction (Articles 1(1), 10(2), 2(4) invoked; county legislation impugned)

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 71 (KLR)", Case Analysis (2014). Constitutional Petition (Uasin Gishu County rent increases - Finance Act, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/71/eng@2014-11-27

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