Eintreten Association v Kajiado County Executive Committee; Tata Chemicals Magadi Limited

RULING 1. This ruling is on the notice of motion dated 10/7/2023. The motion seeks the following orders: b. That a conservatory order do issue staying and/or suspending and/or halting any demand and/ or receipt of any monies in the name of property rates in Kajiado pending the hearing and determination of the petition or until further orders of this court. c. That the court be pleased to certify the petition herein as raising very important and substantial points of law and place the le before the Honourable the Chief Justice to constitute a bench of preferably ve (5) judges to hear and determine the matter herein on a priority basis. e. That the costs of this application be in the cause. 2. The motion which is under Section 13 of the Constitution of Kenya (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules 2013, Section 11 (1) (i) of the Fair Administrative Actions Act (Act No. 4 of 2015) Article 165 of the Constitution and all other enabling provisions of the law is based on twelve (12) grounds and is supported by an adavit of James Gacheru Kariuki dated 10/7/2023 which has ve (5) annexures. 3. The gist of the grounds, adavit and annexures is as follows: Firstly, the respondent has been levying property rates under the County Government Public Finance Management Transition Act (Act No. 8 of 2013 despite the Act having been self repealed on 31/9/2013. 4. Secondly, the respondent has neglected, ignored and or refused to implement Sections 8 (2), 52, 53, part VIII, IX and X of the County Government Act (Act No. 17 of 2012), Section 3 of the Valuation for Rating Act (Cap 266), the Rating Act (Cap 267) which is a Constitutional requirement under Article 183 (1) (b)of the Constitution of Kenya. 5. Thirdly, the respondent has placed the people of Kenya in a perpetual transition mode in Kajiado County notwithstanding the fact that the statutory transition to the Devolved System of Governance lapsed on 9/3/2016. 6. Fourthly, what the respondent collects is money and not revenue, which cannot be accounted for. 7. Fifthly, if the orders sought are allowed neither the respondent nor the interested party will suer any prejudice since the unlawfully paid property rates do not have a limitation period within which they must be paid. 8. Sixthly, the petition herein raises substantial points of law as the matter in controversy falls within the provision of Article 165 (3) (d) of the Constitution of Kenya, the issue directly and substantially aects the rights of petitioners, the issue is of great public interest and the prayers sought have a great eect in the public domain, that because of the complexity of the issue, substantial time is required to dispose of the same and the petition meets the constitution threshold for certication as raising substantial points of law. 9. Finally, the points of law in the matter herein have eluded the Honourable the Attorney General and the superior courts up to the level of the Supreme Court for 10 years and therefore without much ado are very substantial points of law. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22345/eng@2023-12-20 2

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10. The motion though served upon the respondent and the interested party as per the adavit of service dated 2/10/2023, is not opposed. 11. I have carefully considered the motion in its entirety and I nd that it raises the following issues: a. Whether a case has been made, prima facie, for staying, suspending or halting the respondent’s demand or receipt of property rates; pending the hearing of the petition. b. Whether the petition, as presented, raises a substantial question of law to warrant its being placed before the Hon, the Chief Justice for appointing a bench of ve judges to determine it. 12. On the rst issue it is trite law that for a conservatory order to issue, the applicant must demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory order he is likely to suer prejudice. The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specic right or freedom in the Bill of Rights. Thirdly, the court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. The nal principle for consideration is whether the public interest will be served or prejudiced by the discretion to grant or deny a conservatory order. See the Board of Management of Uhuru Secondary School v City County Director of Education and 2 others (2015) eKLR 13. Applying the above test to the current motion, I nd that it falls short of the same for the following reasons. The petitioners have not demonstrated a prima facie case with a likelihood of success. There is nothing to support the deposition in the adavit about the law applicable in demand or receipt of property rates in Kajiado County. The newspaper report in the Daily Nation of December 2, 2022 does not mention the applicable Law 14. Secondly, the petitioner has not shown what the respondent has demanded from it. There is no mention of any interest that they have in land or environment within Kajiado County that is at risk if the order sought is not issued. Thirdly, the urgency of the matter has not been demonstrated. If the respondent has been levying illegal property rates since 2013, why is it urgent that an interlocutory order be issued about ten (10) years later? The petition does not bring this out. 15. Coming to the second issue for determination, I nd that the motion and the entire petition as presented fails the test for the Constitution of a bench of uneven number of judges not being less than three as per the case of Maina Kiai v The IEBC and another (2017) eKLR where the test was set as follows: a. Whether, directly, or indirectly, it aects the substantial rights of the parties, b. Whether the question is of general public importance or c. Whether it is an open question in the sense that the issue has not been settled by pronouncement of the Supreme Court or any other superior court or d. The issue is not free from diculty and e. It calls for a discussion of an alternative view. The rights of the petitioner have not been demonstrated because it has not named any property that it owns in Kajiado County. The general public Kajiado is not involved in the petition which is signed by ve people who seem to be residents of Kiambu County. The issue is not a dicult one because if the petition is proved, then the respondent will only be compelled to operate under then current law rather than the repeated one and the issue has not invoked a debate of an alternative way of demanding and https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22345/eng@2023-12-20 3

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levying property rates. For the above stated reasons, I dismiss the motion dated 10/7/2023. Costs in the cause. It is so ordered. DELIVERED, SIGNED AND DATED VIRTUALLY AT KAJIADO THIS 20TH DAY OF DECEMBER 2023 M. N. GICHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22345/eng@2023-12-20 4

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