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High CourtPartially AllowedConstitutional Petition (Nakuru High Court)

Reliable Concrete Works Ltd v Municipal Council of Nakuru

High Court of Kenya
30 June 2009
David Kenani MaragaD.K. Maraga
8,603 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's High Court struck down a law letting councils appoint the very tribunal that hears property rate disputes against them, calling it unfairly biased.

What this practically means

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Executive summary

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Reliable Concrete Works Ltd petitioned the High Court at Nakuru under Sections 75, 77(9) and 84(1) of the former Constitution, challenging the Valuation Court constituted by the Municipal Council of Nakuru to hear objections to rate increments. It sought declarations that the Valuation Court was not an independent and impartial tribunal, that Section 12 of the Valuation for Rating Act (Cap 266) was unconstitutional in authorizing the Council to appoint the Court, and that the resulting Valuation Roll was null and void. The Council raised a preliminary objection attacking the petition's competence: absence of a board resolution, an affidavit sworn before the petition date, improper invocation of Section 84 instead of Section 65 or 67, and improper inclusion of conservatory orders. The court overruled all preliminary points, holding that procedural technicalities should not defeat substantive justice and that Section 84(1) expressly preserves concurrent remedies. On the merits, the court set out a liberal, purposive approach to constitutional interpretation, expressly departing from Republic v El Mann, and applied the purpose-and-effect test from Big M Drug Mart. It held the Valuation Court is an adjudicating authority determining civil rights and obligations, and that a tribunal appointed, paid and controlled by a party to the disputes it determines cannot be independent or seen to be independent, offending natural justice and Section 77(9). The petition was allowed: Section 12(1) was declared unconstitutional and null and void to that extent, the Nakuru Valuation Court was prohibited from further proceedings, and the Petitioner received costs, not certified for two counsel.

Key legal issues

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01

Jurisdiction under Section 84(1) of the Constitution

Holding

The petition properly invokes Section 84(1); Section 67 reference procedure is not exclusive and the 'without prejudice' clause preserves concurrent remedies.

Reasoning

Section 84(1) permits any person alleging contravention of Sections 70-83 to apply to the High Court 'without prejudice to any other action lawfully available'. The declaration sought was a pure point of law enforcing the right to property under Section 75, so no plenary factual trial was needed and the Constitutional Rules (Rules 11 and 12) were properly used. Procedural objections were overruled as technicalities.

p. 3
02

Independence and impartiality of the Valuation Court

Holding

Section 12 of the Valuation for Rating Act is unconstitutional to the extent it lets the Council appoint the Valuation Court.

Reasoning

The Valuation Court is an adjudicating authority determining civil rights and obligations (rates and property). Applying the purpose-and-effect test from Big M Drug Mart, its decisions impose monetary obligations on ratepayers. Natural justice (nemo judex in sua causa) and the appearance of justice require independence from the parties; a council appointing and paying the tribunal that hears disputes against itself fails that test.

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Method of constitutional interpretation

Holding

Constitutions are sui generis and must be construed generously and purposively, not by ordinary statutory construction rules.

Reasoning

The court rejected the El Mann approach equating constitutional and statutory construction, distinguishing parliamentary sovereignty (Britain) from constitutional supremacy (Kenya, Canada, Botswana, South Africa). Citing Minister of Home Affairs v Fisher, Hunder v Southam and Unity Dow, it held constitutional rights provisions must be read broadly to expand, not restrict, their protection.

p. 4

Legal principles established

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  • A tribunal determining civil rights and obligations must be independent and impartial; a rating authority cannot appoint members of the tribunal that adjudicates disputes to which it is a party.
  • A supreme constitution must be interpreted broadly and liberally, differently from ordinary statutes, as a living document.
  • Both purpose and effect of legislation are relevant in determining its constitutionality.

Court orders

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  1. 1.Declaration that Section 12(1) of the Valuation for Rating Act, by authorizing local authorities to appoint valuation courts to resolve rate disputes to which they are parties, undermines ratepayers' rights under Sections 75 and 77(9) of the Constitution and is unconstitutional and null and void
  2. 2.Prohibition of the Valuation Court appointed by the Municipal Council of Nakuru from carrying on any further proceedings
  3. 3.Costs of the petition to the Petitioner, not certified for two counsel
Jurisdiction invoked
Section 84(1) of the Constitution (former Constitution of Kenya)

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, "Reliable Concrete Works Ltd v Municipal Council of Nakuru", Case Analysis (2009). Constitutional Petition (Nakuru High Court). Source:

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