https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1049

Kariuki v Kiambu County Assembly & 3 others (Civil Appeal 155 of 2019) [2026] KECA 1049 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1049 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 155 of 2019 W Karanja, K M'Inoti & LA Achode, JJA May 29, 2026 Between James Gacheru Kariuki Appellant and The Kiambu County Assembly 1st Respondent The Kiambu County Executive Committee 2nd Respondent The Commission for Revenue Allocation 3rd Respondent The Honourable Attorney General 4th Respondent (an appeal against the judgment and decree of the high court of kenya at Kiambu (C. Meoli, J.) dated 8th February, 2019inJR. Appl. No 2 of 2017 Judicial Review Application 2 of 2017 ) Judgment 1.James Gacheru Kariuki, the appellant herein, prefers this appeal against the judgment and decree of the High Court at Kiambu (C. Meoli, J.) dated 8th February, 2019 and delivered the same day in Judicial Review Application No. 2 of 2017. In the said judgement the learned Judge dismissed the appellant’s application dated 16th January 2017 with costs. 2.In his Notice of Motion, expressed to be brought under section 1A, 1B, 3A of the Civil Procedure Act; sections 7(2)(a)(i) and (ii), (b), (c), (d), (j), (m), and (o); sections 3(c), 9(1), (2) and (3); and section 10(1) of the Fair Administrative Action Act, the appellant sought,in the main, declarations and a permanent injunction prohibiting the Kiambu County Assembly and the Kiambu County Executive, the 1st and 2nd respondents respectively, from imposing or demanding rents in respect of dwellings and business premises owned by the County Government until the necessary legislation is enacted. 3.Basically, his contention was that collection of rent by the County Government of Kiambu is currently based on a repealed law,namely the County Governments Public Finance Management Transition Act, and that the Commission on Revenue Allocation, the 3rd respondent, has failed to advise the County Government of Kiambu in accordance with Article 216(2) of the Constitution. That the rents in respect of the County dwellings and business premises were not payable upon the repeal of the County Governments Public Finance Management Transition Act. 4.His case as contained in the application and his supporting affidavit dated 16th January, 2017 was that he and his co-applicants had, before approaching the trial court, exhausted internal mechanisms under section 9(2) of the Fair Administrative Action Act and that the rents charged in respect of dwellings and business premises owned and let by the County were revenue raising measures re- enacted under the provisions of section 22 of the County Governments Public Finance Management Transition Act (hereinafter the Transition Act), repealed on 30th September, 2013 by virtue of section 31 of the Transition Act. He stated that it amounted to an illegality for the Kiambu County Government to purport to be acting under repealed laws. 5.Further, he deposed that the 1st and 2nd respondents had failed or refused to perform their statutory duty to prepare into a money bill the repealed rents of the defunct local authorities; that a county government can only be financed in accordance with the provisions of Article 216(2) of the Constitution and that it is unconstitutional to impose tax without legislation; that the 3rd respondent was in dereliction of its duty in failing to advise the 1st respondent on the matter and that the court could not turn a blind eye thereon and ought to protect the litigants from the respondents. 6.On 14th February, 2017, David Ngure, in his capacity as the Deputy Clerk and Deputy Chief Executive Officer of the 1st respondent, swore an affidavit on behalf of the 1st respondent in reply to the application. 7.John Gicaci also filed a replying affidavit on behalf of the 2nd respondent in his capacity as the Chief Executive Officer at the County Government of Kiambu. The two affidavits deposed that legislation made by the County Assembly is recognized under Article 260 of the Constitution; that the County Government may impose any licence fee or levy sanctioned by legislation and that on the matter in contest, the County Government of Kiambu enacted the Kiambu County Finance Act. 8.Further, that the repeal of the Transition Act did not have the effect of invalidating County legislation enacted in compliance with Article 209 and 210 of the Constitution; that the objects of the repealed legislation was to facilitate a smooth transition from the erstwhile local authorities to County Governments; and that, therefore, the County Government has not relied on repealed laws. They deposed that in enacting the Kiambu County Finance Act, 2016, procedural requirements of the law were fully complied with. It was contended that in demanding rent the County Government of Kiambu has acted constitutionally. Finally, they contended that the application should not be allowed as granting it would amount to allowing a backdoor challenge to the constitutionality of the Kiambu County Finance Act, 2016. 9.George Ooko swore a replying affidavit on behalf of the 3rd and 4th respondents. He deposed that the application does not seek any adverse orders against the 3rd and 4th respondents and that their names ought to be expunged from the proceedings. He stated that the Commission has a general duty to make recommendations on the financing of and financial management of county governments, but is not under any obligation to take a step further and/or to stipulate specific methods a county government ought to take to enhance its revenue sources. 10.The appellant submitted that, the collection of rent as revenue raising measures stood repealed on 30th September, 2013 simultaneously with the repeal of the Transition Act. It was thus submitted that the County Government of Kiambu was under a duty to enact appropriate county legislation through the procedure envisaged in the County Governments Act to enable collection of rent. It was further submitted that such law had to be consistent with the Rent Restriction Act, the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act (Cap 301) regarding the publication of such legislation. 11.Finally, the appellant took issue with the published Kiambu County Acts filed in court by the 1st and 2nd respondents in compliance with the court’s order issued by the trial court, asserting that the proffered supplements were only prima facie evidence and their legality was disputed as the said evidence consisted of supplements of the Kenya Gazette without the relevant primary Gazette to which the supplement was an addendum. 12.In opposing the application, the 1st respondent submitted that Article 185 of the Constitution donates authority to the County Assembly to enact necessary legislation. Further, that the 1strespondent had enacted the Finance Act, 2016 in compliance with the law, as authority to impose/collect rents; those tenancies involving the county governments are exempted from the application of the two laws cited by the appellant. 13.On behalf of the 2nd respondent, it was submitted that the appellant has admitted that the County Government of Kiambu had, in compliance with the law guiding enactment, passed a county legislation, namely, the Kiambu County Finance Act, 2016. Hence, the collection of rents continues to be a valid and constitutional revenue raising mechanism. Further, that a tenancy created between the County Government and its tenant was not a controlled tenancy subject to the provisions of Cap. 301 of the Rent Restriction Act as held in Petition 13 of 2012: Doris Wanjiru and 53 others v Clerk Meru Municipal Council of Meru (2013)eKLR. 14.The 3rd and 4th respondents submitted that the appellant has not demonstrated any failure by the 3rd respondent to perform its role as mandated by the Constitution. Further, that the appellant did not seek any orders against them and as such they should be expunged from the proceedings. 15.In her judgment of 8th February 2019, Meoli J. identified the central question as whether the 1st and 2nd respondents had failed in their statutory duty to enact legislation authorizing the imposition and collection of rent, or whether they were improperly relying on a repealed statute. The court found that the appellant’s grievance was premised on the claim that the respondents had not enacted a Finance Act to legitimize rent collection, and instead relied on the repealed County Governments Public Finance Management Transition Act, 2013, with the 3rd respondent allegedly failing to advise them. 16.The Judge held, inter alia, that the Transition Act had established county treasuries and provided for transitional budgets, including revenue from rental income, and that section 22 of the Act preserved revenue measures from the 2012/2013 financial year until new county budgets were approved. She further noted that repeal of the Transition Act did not extinguish accrued liabilities under the Interpretation and General Provisions Act. Accordingly, the necessary legal infrastructure existed to authorize rent collection during the transition. 17.On the tenancy contracts, the court emphasized that the relationship between the county and tenants was contractual and private, obliging tenants to pay rent while in occupation. The repeal of the Transition Act did not nullify tenancy agreements, nor did it amount to a repeal of rent obligations. Accepting the appellant’s contrary position would destabilize county finances. 18.The Judge also found that the respondents had eventually enacted the Kiambu County Finance Act, 2016, and republished it in compliance with constitutional requirements and prior judicial orders. She held that the appellant had not exhausted internal dispute resolution mechanisms under the Fair Administrative Action Act, rendering the suit procedurally improper. 19.As regards the Commission on Revenue Allocation, the court held that its role under Article 216 of the Constitution is recommendatory, not coercive, and it cannot compel counties to enact specific revenue laws. 20.In conclusion, the court found that the respondents had acted within the law, both under the transitional provisions and through subsequent legislation, and that tenants remained contractually bound to pay rent. The appellant’s claims were therefore dismissed with costs. 21.Aggrieved, the appellant filed this appeal challenging the judgment of the High Court on 17 grounds of appeal which he narrowed to two broad issues, namely:i.whether the trial judge misdirected herself by invoking section 23(3)(b) and (c) of the Interpretation and General Provisions Act; andii.whether the learned Judge erred when she found a vertical public law upon the respondents’ duty to enact legislation and a horizontal private contract between landlord and tenant and that the tenants remained contractually obligated to pay rent as long as they occupied the premises even if the statutory duty to enact legislation was delayed. 22.When the appeal came up for hearing on a virtual platform on 13th May 2025, the appellant appeared in person. There was no representation by the respondents and neither had they filed submissions. 23.The appellant filed written submissions dated 26th October 2020.Briefly highlighting the submissions, as to whether the learned Judge misdirected herself by invoking section 23(3)(b) and (c) of the Interpretation and General Provisions Act, it was submitted that the appellants case at the trial court was simply on what should lawfully happen to the revenue raising measures of the defunct local authorities after re-enactment into the County Government Public Finance Management Transition Act No 8 of 2013 and the repeal of the same Act on 30th September 2013 by dint of the provisions of section 31 of the Act without any added words re-enacting any provision of revenue raising measures. 24.It was submitted that all local authorities in Kiambu ceased to exist upon the coming into force of the County Government Act on 8th March 2013 and that the cities of Nairobi, Mombasa and Kisumu were subjected to the operations of the Urban Areas and Cities ActNo. 13 of 2011 on the same day. It was contended that by invoking the provisions of section 58 of the Urban Areas and Cities Act No. 13 of 2011, the trial Judge failed to find that the County Government Act No. 17 of 2012 and the Urban Areas and Cities Act No. 13 of 2011 took effect on the same day on 8th March 2013. 25.Further, it was contended that the reference to a local authority in the provisions of section 58 of the Urban Areas and Cities Act No. 13 of 2011 must be a reference to Nairobi City incorporated by the Royal Charter dated 20th March 1950, the municipal council of Mombasa and Municipal Council of Kisumu and the reference to a body corporate in the section of written law aforesaid must be a reference to the cities established by the provisions of section 60 of the Urban Areas and Cities Act No. 13 of 2011 namely Mombasa and Kisumu. 26.Finally on the first issue, it was submitted that the trial Judge failed to make any determination regarding the failure by the 1st and 2nd respondents to perform a statutory duty of enacting, which includes and is not limited to publishing in the Kenya Gazette and Kiambu County Gazette in line with Article 199 of the Constitution, a Kiambu Finance Bill and/or Act as prescribed by the provisions of section 132 and 133 of the Public Finance Management Act No. 18 of 2012. 27.On the second issue, the appellant argued that the trial court misdirected itself in treating the matter as a purely horizontal and private tenancy relationship. He contended that no rent demands had been tendered in evidence, and that the suit was not about private tenancy obligations but rather about the failure of Kiambu County to enact legislation imposing rents after the repeal of the County Governments Public Finance Management Transition Act, 2013. He submitted that the trial judge erred in holding that repeal of the Transition Act did not affect rent obligations, insisting that the court should have left the County Government to cure the legislative gap instead of attempting to resolve it judicially. 28.It was further argued that the trial Judge improperly reviewed the High Court’s judgment in James Gacheru Kariuki and 3 others v Attorney General and 11 others [2017] eKLR without a formal application for review, by substituting the word “republish” for “regularize” in relation to the publication of county legislation. The appellant emphasized that Lenaola J.’s (as he then was) order required regularization of publication within three months, failing which the legislation would lapse, but until then such legislation remained operative. 29.The appellant also faulted the trial Judge for invoking section 82(d)(ii) of the Evidence Act without adapting it to the constitutional framework as required by section 7 of the Sixth Schedule, and for misquoting Article 260 of the Constitution by omitting a comma in the definition of “Gazette,” thereby altering its meaning. He submitted that the Fair Administrative Action Act, being constitutional in nature, made the High Court the proper forum to challenge the omission by the County Government to publish its legislation in the Kenya Gazette, contrary to the trial court’s finding. 30.The appellant further contended that the learned judge erred in holding that he had failed to exhaust internal dispute resolution mechanisms, arguing that no such mechanisms existed in respect of the omission to publish county legislation. Finally, on costs, the appellants submitted that they had not sought personal reliefs and that awarding costs against them was punitive, discouraging litigants from challenging unlawful conduct by state agencies. They relied on Kenya Human Rights Commission and Another v Attorney General and 6 others [2019] to support their position. 31.We are urged to allow the appeal. 32.This being a first appeal it is this Court’s cardinal duty to re- evaluate and re- analyse the evidence on the record in order to come to its own independent conclusion on the evidence and the law, as mandated by rule 31 (1)(a) of the Court of Appeal Rules. 33.In our view, and after a careful analysis and evaluation of the record before us, along with the appellant’s submissions as summarised above, we arrive at the conclusion that the main issue in this appeal is whether the appeal is moot. 34.Our careful and detailed perusal of the Judicial Review Notice of Motion Application dated 16th January 2017 filed by the applicant and his co-applicants clearly shows that what was in issue was the lack of necessary legislation by the 1st and 2nd respondents to collect rents from the applicants or what the appellant referred to as a “money bill”. The overriding concern in the application was that the 1st and 2nd respondent had not published the necessary legislation in the Kenya Gazette as required under the Constitution. 35.From our further perusal of the record, we note that by the time the said application was filed, the Kiambu County Finance Act of 2016 was already in existence in compliance with the orders made in Petition No. 52 of 2016 as consolidated with Petition No. 308 of 2015 and Petition No. 7 of 2016); James Gacheru Kariuki and 2 others v The Hon. Attorney General and 11 others [2017] eKLR. The appellant was a party in the said suit where Lenaola, J, (as he then was) ordered that:“iii.The Kiambu County Government shall regularize the publication of all its county legislation in the Kenya Gazette within 3 months failure to which such legislation shall lapse and be invalid. For avoidance of doubt, until such an eventuality, the said legislation continue to be operative.” 36.The requirement of publication of county legislation to be published in the Kenya Gazette pursuant to Article 199 (1) of the Constitution was put to rest in James Gacheru Kariuki (supra) where the High Court stated:“38.As I have already stated above in my analysis of the first issue, a County Gazette is neither a Kenya Gazette nor a supplement to the Kenya Gazette and as such, County legislation only gains legitimacy upon its publication in the Kenya Gazette or a supplement to the Kenya Gazette. Further, as already elaborated upon, the definition of a County Gazette completely departs from the meaning of the term ‘Gazette’ as used in Article 199 and defined in Article 260 of Constitution. A County Gazette and which is a creation of the County Governments Act and not the Constitution cannot in any event supersede in its publication, the Kenya Gazette.” 37.This position was affirmed by this Court in County Government of Kiambu v Kariuki and 3 others (Civil Appeal 137 of 2017) [2021] KECA 351 (KLR) in the judgement dated 17th December 2021 as follows:“33.We note with approval that the learned judge’s findings that a County Gazette is neither a Kenya Gazette nor a supplement to the Kenya Gazette, as it departs from the definition of a County Gazette used in article 199 and defined in article 260. Indeed, pursuant to Article 199 of the Constitution, section 25 of the County Governments Act was enacted to provide additional requirements with regards to publication of County Legislation. We agree with the learned judge that any additional requirements contemplated under article 199 should not derogate from the mandatory duty necessitating publication of County Legislation in the Kenya Gazette or its supplement, and no legislation can waive the need for such publication.” 38.The Constitution explicitly requires County Legislation to be published in the Kenya Gazette for the same to take effect. The Kiambu County Finance Act, 2016 was enacted and re-published as ordered by Lenaola, J. (as he then was) and we thus agree with the learned trial Judge that it was too late in the day for the appellant to commence a new line of attack through the application filed on 17th January 2017 in respect of an Act demonstrated to have been duly passed and later re-published as ordered by Lenaola J. 39.We agree with the trial Judge that though the 1st and 2nd respondents delayed to enact legislation regarding the raising of revenue by way of rents in compliance with the Public Finance Management Act, they did so eventually in a process culminating in the Finance Act of 2016 which was the necessary legislation. In our view, the appeal does not present a real or live controversy as the issues raised are already moot. 40.This Court in National Assembly of Kenya and another v Institute for Social Accountability and 6 others [2017] eKLR stated:“(14)The mootness doctrine is entrenched in the common law. The Black’s Law Dictionary, Ninth Edition, defines a moot case as:“A matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights.”In an article entitled “Federal Jurisdiction to Decide Moot Cases” published in the University of Pennsylvania Law Review [1946] Vol. 94 – No. 2, the author, Sidney A. Diamond explains the essence of the doctrine thus:“Common – law courts have long recognized the strict requirement that permits only cases presenting judicial controversies to be decided. This is a jurisdictional limitation. If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, the case is moot and the court is without power to render a decision.”14.1In the United States of America, it is a constitutional requirement that federal judicial power extends to “cases” and to “controversies” [section 2(1) of Article 111 of the American Constitution]. Neither our Constitution nor our laws explicitly prohibits the courts from determining abstract, hypothetical or contingent cases or appeals. It follows that the common law is the exclusive source of the mootness doctrine in our jurisdiction. The doctrine is based on judicial policy whose main functions are to protect the functional competence of the courts to make law by ensuring adequate adversity of the parties and judicial economy – that is, rationing scarce judicial resources amongst competing claimants…” 41.In similar terms, the Supreme Court, in Institute for Social Accountability & another v. National Assembly & 3 others & 5 others [2022] KESC 39 (KLR) held that:“47.The common thread from the above decisions is that a matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a court is rendering its decision. If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot.” 42.Subsequently, the Supreme Court, in Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) held that:“The doctrine of mootness requires that controversy must exist throughout judicial proceedings including at the appellate level. An appeal or an issue is moot when a decision will not have the effect of resolving a live controversy affecting or potentially affecting the rights of parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The doctrine of mootness is therefore based on the notion that judicial resources ought to be utilized efficiently and should not be dedicated to an abstract proposition of law and that courts should avoid deciding on matters that are abstract, academic, or hypothetical.” 43.The situation in this appeal mirrors closely the decision of the Supreme Court in The Cabinet Secretary for the National Treasury and Planning & others v Okiya Omtatah & others,SC Petition Nos. 31, 32 and 33 of 2024 where one of the questions was whether the challenge to the Housing Levy was moot. In holding that the issue was moot, the Supreme Court reasoned as follows:“[190]Bearing these principles in mind, has the actual and substantial dispute regarding the affordable housing levy been resolved or spent, thus making the issues purely academic? As correctly noted by the Court of Appeal, the issue of the affordable housing levy was a live controversy before the High Court. However, taking a cue from the decision rendered by the High Court, the National Assembly sought to remedy the pitfalls noted by the court by entrenching the affordable housing levy in legislation to wit, the Affordable Housing Act. The purpose of the Act was to give effect to Article 43(1) (b) of the Constitution; to provide a framework for development and access to affordable housing and institutional housing. However, by the time the dispute was at the Court of Appeal, the Affordable Housing Act was already in force. It follows that by the subsequent enactment of the Affordable Housing Act, all issues relating to the affordable housing levy were overtaken by the subsequent legislation. As such, we find that Petition Nos. E031, E032 & E033 of 2024 Page 104 of 137by the time the Court of Appeal was considering the consolidated appeal before it, there was no live issue relating to the affordable housing levy.” 44.We need not say more. Our ultimate finding is that from our above analysis, this appeal lacks merit and is hereby dismissed with no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026.W. KARANJAJUDGE OF APPEAL..........................................K. M’INOTIJUDGE OF APPEAL..........................................K. ACHODEJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.