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ELCPartially AllowedELC Petition No. 33 of 2021 (Mombasa)· [2024] KEELC 706 (KLR)

Okoiti v Parliament of Kenya & 2 others; County Government of Taita Taveta & 3 others (Interested Parties) (Petition 33 of 2021) [2024] KEELC 706 (KLR)

Environment and Land Court of Kenya
12 February 2024
15,258 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~61 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court paused double taxation in two disputed border towns and gave the National Land Commission extra time to fix the boundary.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Mombasa (Naikuni J) determines two applications by the Petitioner, Okiya Omtatah Okoiti, in a petition concerning boundary disputes between Taita Taveta, Kwale and Makueni counties over Mackinnon Road Town and Mtito Andei Town, and alleged double taxation of residents. The first application, dated 18th December 2023, sought an extension of the six-month timeline the Court had given the National Land Commission on 23rd March 2022 to investigate and report on the county boundaries, that timeline expiring on 31st December 2023. The 2nd and 3rd Interested Parties opposed, citing abuse of process and pending proceedings in ELC Appeal No. E036 of 2023. Applying the Salat principles and balancing fairness to all parties, the Court granted an extension but shortened it to three and a half months, to 15th April 2024. The second application, dated 19th July 2021, sought conservatory orders restoring the pre-2013 position with Taita Taveta as sole revenue collector in the two disputed towns, revenues held in joint interest-earning accounts, and prohibition against Kwale and Makueni collecting revenue there. Applying the Munya/CREAW framework (prima facie case, irreparable prejudice, public interest), the Court found the admitted boundary dispute and the counties' competing revenue claims established a prima facie case, that the petition would be rendered nugatory without orders, and that public interest favoured their grant. Both applications were allowed, conservatory orders issued as prayed, an expedited submissions timetable set with judgment fixed for 26th June 2024, and no order as to costs was made.

Key legal issues

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01

Whether to extend time for the National Land Commission to complete its boundary investigation

Holding

Allowed in part: extension granted but for three and a half months instead of the six months requested

Reasoning

The Court applied the Salat principles on extension of time and the National Union of Mineworkers test requiring a judicial balancing of fairness to both parties. The Commission's directions of 22nd November 2023 showed proceedings were in progress, but the Petitioner had not demonstrated tangible particulars of the progress made or what the Commission would achieve in the requested six months. Public importance and the absence of undue delay favoured a limited extension.

p. 22
02

Whether the Petitioner established a prima facie case for conservatory orders

Holding

Yes - the existence of the boundary dispute was effectively conceded and the counties competing for resources resulting in double taxation raised serious constitutional issues

Reasoning

The Court adopted the Mrao definition of a prima facie case. Mr Thuta's affidavit for the 3rd Interested Party admitted the existence of a boundary dispute over Mtito Andei. Each county claimed its predecessor had collected the revenues, meaning residents were being double taxed. The Court held the issues could not be wished away and that it would be unfair to the citizens of the two towns for the Court to fold its hands.

p. 26
03

Whether the Petitioner would suffer irreparable harm absent conservatory orders

Holding

Yes - the substratum of the Petition would be lost and residents would continue to be double taxed without recovery

Reasoning

The Court found that without conservatory orders the main claim would be rendered nugatory. The Interested Parties' objection that there was no legal basis for joint revenue accounts was dismissed as a misconception: revenue was only to be held in a joint interest-earning account pending hearing and determination, so no revenue would be lost, whereas continued double taxation would prejudice residents who could not recover payments.

p. 27
04

Whether public interest favoured the grant of conservatory orders

Holding

Yes - the dispute touches three counties, tax collection and historical injustices and awaits resolution by a large public

Reasoning

Relying on the Munya test and the Court of Appeal's exposition of public interest, the Court held the matter to be of great public importance affecting the whole country where similar boundary issues prevail. Public interest would not be served by declining the conservatory orders, and the Court accordingly exercised its discretion to grant them as prayed.

p. 28

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the discretion of the Court, exercised judicially on the facts of each case
  • A status quo order preserves the subject matter and state of affairs as they existed before the mischief crept in, pending determination of the dispute
  • Conservatory orders are public-law remedies granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes
  • A prima facie case in a civil application is a genuine and arguable case showing an apparent infringement calling for an explanation from the opposite party

Court orders

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  1. 1.Notice of Motion dated 18th December 2023 allowed: time for the National Land Commission to comply with the Court's orders of 23rd March 2022 extended from 31st December 2023 to 15th April 2024
  2. 2.Notice of Motion dated 19th July 2021 allowed as prayed: conservatory order appointing the County Government of Taita Taveta as the sole authority issuing permits and levying county taxes in Mackinnon Road Town, revenues deposited in an interest-earning bank account opened jointly with the Kwale County Government
  3. 3.Conservatory order appointing the County Government of Taita Taveta as the sole authority issuing business permits and levying county taxes in Mtito Andei Town, revenues deposited in an interest-earning bank account opened jointly with the Makueni County Government
  4. 4.Order of prohibition against the County Government of Kwale and its agents collecting revenue in Mackinnon Road Town where its predecessor did not collect revenue before the establishment of county governments
  5. 5.Order of prohibition against the County Government of Makueni and its agents collecting revenues in Mtito Andei where its predecessor did not collect revenues before establishment of the county governments
  6. 6.Matter to be mentioned on 22nd April 2024 to ascertain full compliance; Petitioner granted 21 days from 22nd April 2024 to file and serve written submissions; Respondents and Interested Parties granted 14 days thereafter; each party 10 minutes to highlight submissions on 6th June 2024
  7. 7.Judgment of the main Petition to be delivered on 26th June 2024
  8. 8.There shall be no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 6, 20, 22, 23(3), 258, 40(3), 47(1), 50(1), 67(2)(e), 94(3), 159(2)(d), 162(2)(b), 165(5), 174, 188, 207(1), 1st Schedule
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 23, 26(1), 30
  • Civil Procedure Act, Cap. 21Section 95
  • Civil Procedure Rules, 2010Order 40 Rule 1; Order 50 Rules 6 and 7
  • Public Finance Management ActSection 109
  • Districts and Provinces Act, 1992 (No. 5 of 1992)Part 2 of Second Schedule
  • County Government Act, No. 17 of 2012General
  • Transition to Devolved Government Act, 2013General (assets and financial transition of Mtito Andei Town Council)
  • National Assembly Constituencies and County Assembly Wards Order, 2012Legal Notice No. 14 of 2012

Cases cited (26)

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
  • Giella v Cassman Brown and Co. Ltd
    1973 EA 360
  • Speaker of National Assembly v Karume
    {1992} KLR 21
  • Mrao Ltd v First American Bank of Kenya and 2 others
    (2003) KLR 125
  • Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others
    (2014) eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General
    [2011] eKLR
  • Judicial Service Commission v Speaker of the National Assembly & Another
    [2013] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 Others
    Civil Application No. 5 of 2014 [2014] eKLR
  • Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board and others
    [2016] eKLR
  • Platinum Distillers Limited v Kenya Revenue Authority
    (2019) eKLR
  • Kenya Association of Manufacturers & 2 Others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 Others
    (2017) eKLR
  • Republic v National Environment Tribunal, Ex-Parte Palm Homes Limited & Another
    [2013] eKLR
  • TSS Spinning & Weaving Company Limited v Nic Bank Limited & another
    [2020] eKLR
  • Kenya Airline Pilots Association (KALPA) v Co-operative Bank of Kenya Limited & another
    [2020] eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    [2015] eKLR
  • Okiya Omtatah Okoiti & Others v The Cabinet Secretary for National Treasury & Planning & Others
    Petition No. E181 of 2023
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another
    (2015) eKLR
  • American Cyanamid v Ethicon Limited
    (1975) AC 396
  • Re Bivac International SA (Bureau Veritas)
    (2005) 2 EA 43
  • Isaiah Luyara Odando & another v Kenya Revenue Authority & 6 others; Nairobi Branch Law Society of Kenya (Interested party)
    [2022] eKLR
  • Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR
  • National Union of Mineworkers v Council of Mineral Technology
    (1993) ZALC 22
  • The National Assembly & Another v Okiya Omtata Okoiti & others
    Civil Application no. E577 of 2023 (consolidated)
  • Reids Heweet & Company v Joseph
    AIR 1918 cal. 717
  • Myres v Defries
    (1880) 5 Ex. D. 180
Jurisdiction invoked
Articles 20, 22, 23(3), 50(1), 159(2)(d), 162(2)(b), 165(5) and 258 of the Constitution of Kenya, 2010; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Okoiti v Parliament of Kenya & 2 others; County Government of Taita Taveta & 3 others (Interested Parties) (Petition 33 of 2021) [2024] KEELC 706 (KLR)", Case Analysis (2024). ELC Petition No. 33 of 2021 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/706/eng@2024-02-12

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