Republic v County Government of Kisumu Ex parte John Michael Obure Obure [2022] KEELC 1836 (KLR)
The bottom line
#The Kisumu court struck down a county valuation roll that raised property rates by up to 7,275% because the public was never genuinely consulted before it was drafted.
What this practically means
#Executive summary
#Key legal issues
#Whether public participation occurred in the preparation and development of the Draft Valuation Roll 2017
No public participation took place in the development of the Draft Valuation Roll 2017; the exhibits showed only notification of valuation, not involvement of the public
The court examined the newspaper advertisement of 11th July 2017, the Gazette Notices of 28th September 2018 and the letter of 7th December 2018 relied on by the Respondent. It found these only notified the public that valuation was to occur and requested sensitization, without confirming any sensitization occurred. The burden was on the Respondent to demonstrate participation, which it failed to discharge.
At which stage public participation is required in the valuation roll process
Public participation is required in the preparation and development of the draft valuation roll, not merely at the stage after it is laid before the County Assembly; the Assembly has no role in developing the draft
The court reasoned that the Draft Valuation Roll is complete by the time it is laid before the County Assembly under section 9(2) of the Valuation for Rating Act, at which point the public is only invited to inspect and lodge objections. The Respondent's claim that participation was still pending before the Assembly could not cure the absence of participation at the formative stage.
Whether the application was premature
The application was not premature; the absence of participation at the preparation stage was already a complete breach entitling the Applicant to judicial review orders
The Respondent argued the process had not reached the public participation stage and the Assembly would conduct it under Standing Order 123(3). The court rejected this, holding that the development of the draft roll was already tainted and that the Assembly plays no role in developing the draft, so the pending Assembly-stage process could not regularise the defect.
Whether the proposed rate increases of up to 7,275% on freehold and 5,343% on leasehold land were lawfully founded
The Respondent did not follow the law in proposing to increase property rates and failed to demonstrate how it prepared the Draft Valuation Roll 2017
Relying on Robert N. Gakuru, the court accepted that county governments may impose property rates under Article 209(3) and need reliable revenue under Article 175(b), but the power must be exercised in accordance with the Constitution and the law. The proposed increases, unaccompanied by lawful process or demonstrated participation, could not stand.
Legal principles established
#- Public participation must be real and evidenced; a public body alleging participation must demonstrate it, and mere notification of an impending process does not amount to public participation
- Notification that valuation was to take place does not constitute involvement of the public in the preparation of a draft valuation roll
- The County Assembly has no role in the development of a draft valuation roll; its role is to receive the completed draft under section 9(2) of the Valuation for Rating Act, whereafter the public is invited for inspection
- County revenue-raising measures must conform to the constitutional principles in Articles 10, 174, 201, 209 and 232
Court orders
#- 1.An order of certiorari quashing Gazette Notice No. 11063 published on 24th December 2020 in the Kenya Gazette Vol. CXXII No. 235
- 2.An order of prohibition prohibiting the Respondent from commencing, instituting, undertaking, continuing or proceeding with all and any proceedings and processes on, of and concerning the Draft Valuation Roll 2017 arising from the Gazette Notice No. 11063 published on 24th December 2020
- 3.An order of mandamus compelling the Respondent to undertake the process for preparation of the Draft Valuation Roll 2017 and any supplementary rolls, including policy decisions on valuation, in strict compliance with Article 201(a) of the Constitution, Sections 125(2) and 207 of the Public Finance Management Act (No.13 of 2012), sections 36 and 39 of the Urban Areas and Cities Act (No.13 of 2011), section 6(6), Part VIII and Section 115 of the County Governments Act (No.17 of 2012), section 4 and 8(1) and (6) and paragraphs 6, 7 and 13 of the First Schedule to the Kisumu County Public Participation Act, 2015, and in full adherence to Sections 132, 161, 162 and 207 of the Public Finance Management Act (No.18 of 2012)
- 4.The costs of the application to be paid by the Respondent
- Jurisdiction invoked
- Constitution of Kenya, 2010 - supervisory/judicial review jurisdiction (orders of certiorari, prohibition and mandamus); order of leave granted to institute judicial review proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Kisumu Ex parte John Michael Obure Obure [2022] KEELC 1836 (KLR)", Case Analysis (2022). Judicial Review Application (substantive Notice of Motion dated 29th January 2021; statement dated 15th January 2021) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1836/eng@2022-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.