Sheria Mtaani na Shadrack Wambui & another v Kajiado County Assembly & another

AND IN THE MATTER OF KAJIADO COUNTY RATING ACT, 2016 BETWEEN SHERIA MTAANI NA SHADRACK WAMBUI ........................... 1ST PETITIONER LUCY WAMBUI GITHINJI ............................................................ 2ND PETITIONER AND KAJIADO COUNTY ASSEMBLY ................................................ 1ST RESPONDENT COUNTY GOVERNMENT OF KAJIADO ................................ 2ND RESPONDENT RULING (In respect of the Petitioner’s notice of motion dated 10th March 2025 brought under various provisions of the Constitution of Kenya (protection of rights and fundamental freedom) Practice and Procedure Rules seeking conservatory orders pending the hearing and determination of the petition) Background 1. This ruling is in respect of the Petitioners’ notice of motion dated 10th March 2025 principally seeking two orders as follows; a. Pending the hearing and determination of this petition, a conservatory order be and is hereby issued temporarily staying and or suspending the imposition of rates/decision as communicated through the letter from the Director Revenue Land Rent and Rates Unit stamped 1st January 2025 or any prior or subsequent correspondence listing the rent and rates payable by each township/trading center. b. Pending the hearing and determination of this petition, a conservatory order be and is hereby issued temporarily suspending the implementation and enforcement of part 2 of the eighth schedule of Kajiado County Finance Act, 2023 requiring the payment of land rates on urban trading centers, rural trading centers and adjudication section areas within the Respondents’ jurisdiction. 2. The notice of motion is premised on the grounds on the face of it and on the adavit of Lucy Wambui. The Applicants allege that the decision of the Respondents to escalate land rent on allotted land and impose additional land rates was unilateral, arbitrary and procedurally unsound. It was arrived at without justication and or adherence to statutory valuation mechanisms and without public participation. The decision is therefore not only unlawful and unconstitutional but also an aront on the fundamental principles of fair administrative action, legitimate expectation and right to property. 3. The Applicants aver that the Respondents’ Director of Revenue Land Rent and Rates unit, vide a notice stamped on 1st January 2025 published a revised rent and rates schedule for various constituencies within Kajiado County. Subsequently, in a notice dated 28th February 2025, the Respondents announced that pursuant to the Kajiado Finance Act, 2023, they were in the process of ‘earmarking for repossession’ all plots with three years consecutive arrears citing authority under https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18725/eng@2025-07-23 2

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Section 14 (7) of the Act. This, according to the Applicants means that the Act is being applied retrospectively to penalize for default predating its enactment, making it unlawful. 4. The Applicants further assert that no valuation process has been conducted in accordance with the law to justify the gures imposed. The Rating Act and the Valuation for Rating Act (both repealed) prescribed a clear sequential process for determining rates which required assessment based on an objective criterion including property valuation reports prepared by licensed valuers. The Kajiado Finance Act and the Kajiado Rating Act were enacted based on the said repealed Acts. 5. It is the Petitioners’ case that the current National Rating Act as well as the repealed Acts outline a clear step by step process for determining rates which the Respondents did not follow. Instead they arbitrarily assigned gures without justication making the impugned rates unconstitutional, procedurally awed and substantively invalid. 6. The Applicants further assert that the entire process lacked public participation, a mandatory constitutional requirement under Article 10 of the Constitution. The Respondents did not consult the property owners; neither did they aord them a reasonable opportunity to be heard before the new rates were imposed. 7. The Applicants urge this court to intervene to forestall imminent violations of property rights and to subject the impugned legal provisions to proper legal scrutiny. Responses by the Respondents 8. The 1st Respondent responded to the Petitioners’ application by way of a replying adavit sworn by one Josiah Leboo Saisa Yiaro on 25th April 2025. In the said replying adavit, the deponent arms that the imposition of rates and rent on land is a mandate of the County Government as envisioned under Articles 185 and 209 of the Constitution of Kenya. 9. The deponent further denies the allegations by the Petitioners that the Kajiado Finance Act, 2023 is being applied retrospectively rather he asserts that enforcement of the same begins in the nancial year 2023/2024. 10. The deponent faults the Petitioners for relying on the Rating Act and Valuation for Rating Act, both of which have been repealed. The applicable law according to the 1st Respondent is the National Rating Act which is designed to provide a comprehensive national framework that serves as a basis upon which individual County Governments, including the County Government of Kajiado enact their own County Rating Acts. 11. It is the 1st Respondent’s case that the Respondents undertook appropriate preparatory steps including stakeholders’ engagement foras and public notices in various local media and community barazas prior to the enactment and operationalization of the impugned provisions. The preliminary valuation assessment were done using publicly available data and GIS mapping tools to determine ratable values, with a phased approach to full implementation of the National Rating Act underway. 12. While admitting that the valuation roll under the new Act is in the process of development, the 1st Respondent asserts that Section 36 of the National Rating Act provides transitional provisions that permit counties to impose rates based on interim valuation mechanisms pending full gazettement. 13. Regarding the Petitioners’ contention concerning land rates on allotted land, the Respondents refer to Section 14 (8) of the Kajiado County Finance Act, 2023 which explicitly stipulates the obligations of payment of rates on all ratable property within the county of Kajiado. The Finance Act, 2023 establishes a clear and distinct nancial responsibility for property owners, separate from https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18725/eng@2025-07-23 3

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any considerations regarding rent arrears that were the subject of the public notice dated February 2025. The demand for land rates, according to the 1st Respondent is therefore a lawful and distinct requirement under the Kajiado Finance Act, 2023 irrespective of the ongoing administrative processes concerning rent defaults. The doctrine of legitimate expectation cannot override express statutory obligations. 14. The 1st Respondent further argues that the rationale behind the imposition of rates as established by the National Rating Act, 2024 and subsequently reected in the Kajiado County Finance Act, rests on the principle of equitable contribution. The impugned rates are neither excessive nor conscatory. The adjustment is from Kshs. 2,000/- to Kshs. 2, 500/= only which is a reasonable increment necessary to sustain and improve the quality of essential services that directly benet property owners. The adjustment is not arbitrary and is a calculated measure to ensure that the nancial burden of supporting local infrastructure, security, sanitation and other vital services is fairly distributed amongst beneciaries. 15. It is the 1st Respondent’s position that reference to potential repossession is speculative and premature as no due process has been initiated against any property owner. The fears are therefore not grounded on concrete action taken or even contemplated by the Respondents at this stage. They do not warrant the intervention of this Honourable Court at this juncture. 16. The 1st Respondent further submits that the prayers sought in the application are grossly disproportionate and would cripple the county’s nancial sustainability. It urges the court not to interfere with the legislative functions of the devolved unit, unless there is clear and manifest unconstitutionality, and outright administrative impropriety, which has not been demonstrated in this case. 17. On its part, the 2nd Respondent led a replying adavit sworn by one Alais Kisota, the County Executive Member in charge of Finance of the 2nd Respondent, on 28th March 2025. The deponent deposes that the Constitution of Kenya expressly grants powers to the County Governments to raise revenue through property rates. The governing law for imposition of rates on land is the National Rating Act, 2024. The repealed Rating Act too empowered a rating authority to come up with dierent forms of rating for purposes of levying rates. It was on the strength of the provisions of the repealed Act that the 2nd Respondent enacted the Kajiado County Rating Act, 2016 to provide for the imposition of rates in land and building within Kajiado County and for connected purposes. 18. The deponent deposes that Sections 4, 5, and 6 of the Kajiado Rating Act provides for the forms of rating, imposition of rates on all ratable property in the county and the amount of rates payable respectively. It further provides under Section 6(1) thereof that the amount of rates payable shall be determined each year by the County Assembly through the County Finance Bill. The rates becoming due on the rst day of January or such other prescribed date of each year. 19. The 2nd Respondent asserts that it was on the strength of the mandate and power vested by the Rating Act (now repealed) that the Kajiado Finance Act, 2023 and its schedules were enacted, passed and gazette into law from the 14th November 2023 to provide for revenue raising measures for the County Government of Kajiado. The allegations by the Applicants therefore that the 2nd Respondent arbitrarily and unprocedurally escalated land rent on allotted land and imposed additional land rates without justication, public participation or adherence to statutory valuation mechanisms is false and meant to delude the court. 20. The 2nd Respondent avers that the increment in rates is not sharp and arbitrary as alleged as the same is calculated based on the market value of the land which keeps appreciating and is an essential aspect https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18725/eng@2025-07-23 4

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of the County Land Management System. The obligation to pay rent is present and continuous. The Finance Act imposes sanctions for failure to comply which includes repossession on failure to pay for more than 3 consecutive years. The Finance Act became operational from 14th November 2023 following its publication in the Kenya Gazette. The 2nd Respondent denies that it intends to apply the Finance Act retrospectively. 21. The Petitioners led a further adavit by Shadrack Wanjiru further elaborating the Petitioners’ case. Submissions by the parties 22. Parties led written submissions and also had an opportunity to highlight the submissions orally before the court. 23. In highlighting the Petitioners/Applicants submissions, the Petitioners’ advocates explained that their clients’ petition was prompted by a meeting called by the ocers of the 2nd Respondent on 6th March 2025 at Elbulbul whereby they informed the residents that they would henceforth be collecting enhanced rent and rates. Further that the 2nd Respondent was in the process of earmarking all plots with 3 years’ arrears for repossession pursuant to the provisions of the Kajiado County Finance Act. 24. The record of the written and oral submissions by the parties forms part of the record of this court and I need not replicate it herein verbatim at this stage. Issues for determination 25. Having carefully considered the Petitioners’ application, the responses thereto as well as the submissions by the parties, the sole issue for determination is whether the Petitioners/Applicants have made a case for issuance of temporary conservatory orders in this matter pending the hearing and determination of the petition. Analysis and determination 26. In determining this application, I will be deliberately frugal with my words conscious of the fact that what is before me is an interlocutory application, in order not to prejudice the hearing of the main petition. Interlocutory applications are dened in the English Case of Gilbert –vs- Eden (1878) 9 CH.D, by Cotton L. J are those applications, “ …which do not decide the rights of parties, but are made for purposes of keeping things in status quo till the rights can be decided or for purposes of obtaining some directions of the court as to how the cause is to be conducted as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties”. 27. Retired Justice Ringera on the other hand in the case of Airland Tours and Travel Limited – vs- National Industrial Credit Bank Nairobi (Milimani) HCCC 1234 of 2002, opined that in an interlocutory application, the court is not required to make any conclusive or denite ndings of fact or law on the basis of the contradictory adavits’ evidence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18725/eng@2025-07-23 5

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28. Odunga J (as he then was) in the case of the Coalition for Reforms and Democracy & another –vsRepublic of Kenya & another (2015) eKLR, expressed a similar view stating that, “ The law as I understands it is that in considering an application for conservatory orders, the court is not called and is indeed forbidden from making any denitive nding either of fact or law as that is the province of the court that will ultimately hear the petition”. 29. The court at the stage of interlocutory application must be cautious not to make any comments or ndings, or express opinions on the substantive issues in controversy in order to avoid hurting the trial. 30. The threshold for the grant of conservatory orders was pronounced by the Supreme Court of Kenya in the case of Gatirau Peter Munya –vs- Dickson Mwenda Kithinji & 2 others (2014) eKLR; application number 5 of 2014, in the following words;“ Conservatory orders bear a more decided public –law connotation; for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court; in public interest. Conservatory orders therefore, are not, unlike interlocutory injunctions, linked to such private- party issues as the ‘prospect of irreparable harm’ occurring during the pendency of a case; or ‘high probability of success’ in the Applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority level attributable to the relevant causes”. 31. As I noted at the commencement of this ruling, the Petitioners seek to stay and or suspend the imposition and increment of rates and rent pursuant to part 2 of the 8th schedule of the Kajiado County Finance Act, 2023. They have cited various reasons to justify their prayers which the Respondents strenuously refuted as analyzed above. 32. In making this ruling, this court takes cognizance of the fact that County Governments are empowered under the law and the constitution to impose property rates with the only qualications to the extent that the taxation and revenue-raising powers of the county should not be exercised in a way that prejudices national economic policies, economic activities across county boundaries or the national mobility of goods, services, capital or labour in accordance with the provisions of Article 209 (5) of the Constitution of Kenya. 33. In the case of the County Government of Kwale –vs- Kenya Airports Authority (2017) eKLR, the Court of Appeal upheld the above position stating that; “ A county Government is empowered to impose property rates and such power is qualied to the extent that it should not be exercised in a manner that is prejudicial to the national economic policies, economic activities across county boundaries or the national mobility of goods, services, capital or labour”. 34. The Kajiado County Finance Act is enacted pursuant to the exercise of the legislative authority of the county which under Article 185 of the Constitution is vested in and exercised by the County Assembly of the County. The County Assembly has the mandate to make any laws that are necessary for, or incidental to, the eective exercise of the powers of the County Government under the 4th schedule of the Constitution. 35. County laws just like National laws enjoy the presumption of Constitutionality. The burden of proof therefore lies on any person who alleges otherwise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18725/eng@2025-07-23 6

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36. On the face of it the Petitioners/Applicants have not, in the court’s considered opinion demonstrated that the Respondents have acted outside their constitutional mandate. They have not demonstrated clear and manifest unconstitutionality and outright administrative impropriety. 37. It if further not lost on the court that the Petitioners seek to suspend the Kajiado Finance Act, 2023, almost 2 years after its eective date. The court is not persuaded that the Petitioners/Applicants have made a case for grant of conservatory orders pending the hearing and determination of the main petition. It would not be in the public interest to issue the conservatory orders at this stage of the proceedings. They application has not met the threshold for the grant of conservatory orders. 38. The application is therefore dismissed but with no orders as to costs considering the nature of the petition which has been led in public interest. 39. The court will issue appropriate directions with view to expediting the hearing of the main petition. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 23RD DAY OF JULY 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Shadrack Wambui for the Petitioners/Applicants Ms. Sitienei h/b for Mr. Kabata for the 1st Respondent Ms. Yala h/b for Mr. Nyaosi for the 2nd Respondent Court Assistant: Elly M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18725/eng@2025-07-23 7

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