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ELCAllowedJudicial Review Application (substantive Notice of Motion dated 29th January 2021; statement dated 15th January 2021) - number not stated in judgment· [2022] KEELC 1836 (KLR)

Republic v County Government of Kisumu Ex parte John Michael Obure Obure [2022] KEELC 1836 (KLR)

Not named in the judgment (High Court-style judicial review; delivered at Kisumu)
28 January 2022
5,424 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant, a Kisumu resident and tenant, sought judicial review orders quashing Gazette Notice No. 11063 of 24th December 2020 notifying the public of the Draft Valuation Roll 2017, prohibiting the County Government of Kisumu from collecting rates based on that roll, and compelling the Respondent to redo the valuation process in compliance with statutory public participation requirements. The Applicant alleged that the preparation of the Draft Valuation Roll, which proposed rate increases of up to 7,275% on freehold land and 5,343% on leasehold land, was undertaken without public participation, contrary to Article 201(a) of the Constitution, the Public Finance Management Act, the County Governments Act, the Urban Areas and Cities Act and the Kisumu County Public Participation Act, 2015. The Respondent denied the allegations, asserting that public participation was budgeted for, that notification of the valuation was given by advertisement and Gazette Notices, and that public participation would be conducted by the County Assembly under Standing Order 123(3), rendering the suit premature. The court found that the Respondent's exhibits showed only notification that valuation was to take place, not actual involvement of the public, and that the burden of demonstrating participation lay on the Respondent. It held that public participation must occur during the preparation and development of the draft roll, at which stage the County Assembly has no role, its function being limited to receiving the completed draft under section 9(2) of the Valuation for Rating Act. The Respondent's prematurity argument therefore failed. The court granted all three substantive orders - certiorari quashing the Gazette Notice, prohibition against processes on the Draft Valuation Roll, and mandamus to redo the process in compliance with the cited constitutional and statutory provisions - and awarded costs to the Applicant.

Key legal issues

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01

Whether public participation occurred in the preparation and development of the Draft Valuation Roll 2017

Holding

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

Reasoning

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.

p. 6
02

At which stage public participation is required in the valuation roll process

Holding

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

Reasoning

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.

p. 6
03

Whether the application was premature

Holding

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

Reasoning

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.

p. 7
04

Whether the proposed rate increases of up to 7,275% on freehold and 5,343% on leasehold land were lawfully founded

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.An order of certiorari quashing Gazette Notice No. 11063 published on 24th December 2020 in the Kenya Gazette Vol. CXXII No. 235
  2. 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. 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. 4.The costs of the application to be paid by the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(1),(2),(3); 10; 174; 175(b); 196(1)(b); 201(a); 209(3); 210(1); 232; 260
  • Valuation for Rating Act (Cap 266)Sections 3; 9 (including 9(2) and 9(3))
  • Public Finance Management Act (No.13 of 2012)Sections 125(2) and 207
  • Public Finance Management Act (No.18 of 2012)Sections 132, 161, 162 and 207
  • Urban Areas and Cities Act (No.13 of 2011)Sections 36 and 39
  • County Governments Act (No.17 of 2012)Section 6(6), Part VIII, Section 115, Section 87
  • Kisumu County Public Participation Act, 2015Sections 4 and 8(1) and (6); First Schedule paragraphs 6, 7 and 13
  • Kisumu County Assembly Standing OrdersOrder 123(3)

Cases cited (8)

  • Wilfred Manthi Musyoka v County Assembly of Machakos, Governor-County Government of Machakos & 2 Others (Interested Parties)
    (2019) eKLR
  • Kenya Human Rights Commission vs. Attorney General & Another
    [2018] eKLR
  • Richard Owuor & 2 others (suing on behalf of Busia Sugarcane Importers Association) v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 7 others
    [2021] eKLR
  • Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others (Constitutional Petition Nos. 305 of 2012, 34 of 2013 and 12 of 2014)
    [2015] eKLR
  • John Muraya Mwangi & 495 Others v. Minister for State for Provincial Administration & Internal Security & 2 Others
    Petition no. 21 of 2013
  • Bradbury and others vs. Enfield London Borough Council
    (1976) I WLR P 1311
  • Republic –vs- County Government of Kiambu Ex-parte Robert Gakuru & Another
    (2016) eKLR
  • Robert N. Gakuru and others –versus- The Governor, Kiambu County and Others
    Petition Number 532 of 2013 Consolidated with Petition Numbers 12, 35, 36, 42 and 72 of 2014
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

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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, "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.