[2023] KEHC 27293 (KLR)

Mbuthia v Kajiado County Government (Constitutional Petition E001 of 2022) [2023] KEHC 27293 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27293 (KLR)

Republic of Kenya

In the High Court at Kajiado

Constitutional Petition E001 of 2022

SN Mutuku, J

November 21, 2023

IN THE MATTER OF ARTICLES 2(1), 3(1), 10, 19, 20, 22,23, 27, 28, 39, 40 47,48,159,162(b) & 258(1) OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF ALLEGED INFRINGEMENT, AND/OR ONGOING INFRINGEMENT OF ARTICLES27,28,40, 43, 73, 174, 186, 209 AND 232 OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDERMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 AND IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT AND IN THE MATTER OF KENYA ROADS ACT

Between

Mark Kairu Mbuthia

Petitioner

and

Kajiado County Government

Respondent

Judgment

Petitioner’s Case 1. The Petitioner filed this Petition dated 27th January 2022 against the Respondent alleging contravention of his constitutional rights. The Petitioner states that he undertakes various agricultural activities in his farmland located at Namanga within Kajiado County where he resides; that he uses his motor vehicle registration number KDC 162M to ferry farm produce within and outside Kajiado County; that in 2021, while moving his farm produce along Namanga-Nairobi Highway and Isinya-Kiserian Road, his vehicle was severally stopped by officers of the Respondent who demanded for payment of road cess for using the said road; that his agents have been constantly harassed by the Respondent’s officers who have detained the motor vehicle when the agents failed to make payment as demanded; that the said payments are levied without issuance of receipts.

2. The Petitioner has alleged that the Respondent has violated his constitutional rights and that of other road users by imposing road cess tax, a function that is a preserve of the national government; that the Respondent has unlawfully exercised powers that are oppressive and unfair to him and which violate his constitutional rights to fair administrative action that is lawful and reasonable.

3. The Petitioner seeks the following reliefs:i.A declaration that the Respondent’s actions are brazen, illegal, egregious, discriminatory and violation of the petitioner’s constitutional rights.ii.A declaration that the actions of the Respondent above have violated rights of the petitioner under the Articles 10, 23, 24, 27, 28, 29, 39, 40, 43 and 47 of the Constitution.iii.A declaration that the actions of the Respondent above violates the provisions of Articles 185(2) and 209 of the Constitution to the extent that the Respondent has abrogated itself the powers to levy cess in respect of national roads within Kajiado County.iv.An order of permanent injunction be issued to prohibit the County Government of Kajiado from levying cess in respect of national roads owned and managed by the national government within Kajiado County.v.A declaration that the decisions by the Respondents to levy cess on the national roads without any backing legislation or involving the public or interested parties was contrary to the Constitution and the County Governments Act 2012, hence ultra vires.vi.An order of certiorari to remove into this honourable court for the purpose of quashing the decision by the Respondent to levy additional cess amounting to double taxation.vii.A declaration be issued to declare that by dint of Articles 62(3), 185(2) and 209 of the Constitution, the Kajiado County Assembly has no power to collect or enact a law providing for the levying of cess in respect of national roads within Kajiado county.viii.A declaration be issued to declare that the imposition of road cess by the Respondent against the Petitioner and other road users in respect of national roads owned and managed by the National government within Kajiado County contravenes Article 209(5) of the constitution which prohibits counties from exercising taxation and other revenue raising powers in a way that, inter-alia, prejudices national economic policies and economic activities across county boundaries.ix.A declaration be issued to declare that the imposition of road cess by the Respondent against the petitioner in respect of national roads owned and managed by the national government within Kajiado county contravenes Article 209(4) for levying a charge without providing any service to the petitioner.x.A declaration be issued to declare that the decision of the Respondent requiring the petitioner to acquire distribution license for ferrying his farm produce within Kajiado county violates the petitioner’s right to equal protection of law protected by Article 27 of the constitution for imposing a tax prohibited by Articles 62, 185(2) and 209 of the Constitution.xi.An order for compensation of the petitioner for the violation of its rights and freedoms under Articles 27, 40 and 47 of the Constitution.xii.An order that cost of this petition be borne by the Respondents.xiii.Any other relief that this honourable court may deem fit to issue for the interest of justice.

Respondent’s case 4. The Respondent opposed this Petition through a Replying Affidavit dated 24th July 2023 sworn by Felix Tirike, who describes himself as the Chief Officer in charge of the Finance Department. He has deposed that the Constitution, under the Fourth Schedule, confers the Respondent with the legislative authority to make laws that are necessary for the effective performance of the functions and exercise of its powers; that one such law is the Kajiado County Finance Act, 2020 which provides for methods of paying revenue to the Respondent; that the Act provides that a receipt be issued for all payments made and that its mandatory for the Respondent’s revenue collectors to have identification documents and that unauthorized individuals are prohibited from receiving or collecting any money on behalf of the Respondent.

5. It is further deposed that the Petitioner should have issued a formal complaint to the Respondent on the payment being charged without being issued with receipts; that therefore the Petitioner is the author of his own misfortune as all payments to the Respondent must be evidenced by an official receipt; that the Petitioner’s allegations of acquiring a distribution channel are baseless; that the Petitioner’s allegations are unsubstantiated, are not based on any evidence and are premised on falsehoods and therefore they are an abuse of court process.

6. The Respondents urged that this Petition should therefore be dismissed.

Petitioner’s submissions 7. The Petition was canvassed through written submissions. The Petitioner filed his submissions dated 22nd June 2023 in which he argued on one issue: Whether the Cess charge imposed by the Kajiado County Government upon the truck was a charge on services as contemplated under article 209 of the Constitution of Kenya 2010; He submitted that the Respondent’s levy against the truck contravenes article 209 (4) and (5) of the Constitution; that movement of goods in Kenya is governed by the Kenya Roads Act under which the Kenya Highways Authority (KENHA) is established for among others, “constructing, upgrading, rehabilitating and maintaining roads, controlling and implementing policies relating to national roads.

8. The Petitioner relied on Council of County Governors -vs- Attorney General & 4 Others [2015] eKLR, where the court clarified that the County Governments will be in charge of classes D, E, F and G (County Roads), whilst the National Government is in charge of classes A, B and C (National Trunk Roads). He submitted that the responsibility to develop, rehabilitate, manage and maintain all National Trunk Roads comprising classes S, A and B roads rests with KENHA; that the Namanga – Nairobi Highway falls under class A and should be managed by the national government and that Kiserian – Isinya Road is a class B road and also falls under KENHA.

9. He submitted that the County Government cannot therefore enact any legislation granting them authority to levy cess on a national road where there is no service provided by the County. He cited Base Titanium Limited -vs- County Government of Mombasa & another (Petition 22 of 2018) [2021] KESC 33 (KLR) (16July 2021) (Judgement) where it held that:“Flowing from the above, we underline that it is the National government that is the provider of the road service in this instance. It is clear therefore that should an access fee be owing, then the proper entity to which that amount is owed should be the National government not the County government. In that regard, we find that the cess imposed by the County Government of Mombasa under Item 90 of the schedule to the Mombasa County Act 2014 was improperly imposed as a charge for services rendered for services provided by the County Government and is not a charge for service as contemplated by article 209 (4) of the Constitution of Kenya.45. We, therefore, fault the superior courts’ interpretation and application of article 209(4) of the Constitution in their finding that the cess levied by the 1st Respondent was in line Constitution.”

10. It is the Petitioner’s submission that there is no substantive response to the Petition; that the Respondents did not dispute the Cess and only referred to receipts to be issued upon payment.

Respondent’s submissions 11. The Respondent filed their submissions dated 11th August 2023. They submitted on one issue: Whether the Respondent levied any Cess charge upon the petitioner.

12. It is the submission of the Respondent that Article 185(2) of the Constitution empowers them with the legislative authority to make laws that are necessary for, or incidental to, the effective performance of the functions and exercise of its powers under the Fourth Schedule of the Constitution; Article 209(4) of the Constitution empowers the Respondent to impose levy and other charges applicable at the county level.

13. The Respondent argued that it enacted the Kajiado County Finance Act in exercise of its mandate to impose levy and other charges; that the said Act outlines the permitted methods of paying revenue and that it prohibits the collection of levies without issuing official receipts; that the Petitioner has not given any evidence of any official receipt issued; that the payments the Petitioner made was to unknown and unauthorized individuals and that an official receipt is the only proof that the Respondent levied road cess tax against the petitioner.

14. It is submitted that it is trite law that he who alleges must proof as per sections 107, 108 and 109 of the Evidence Act and relied on a number of cases on this issue including Christian Juma Wabwire -vs- Attorney General (2019) eKLR where the he Judge relied on the decision in Lt. Col Peter Ngari Kagume and 7 others v AG, Constitutional Application No. 128 of 2006 where it was held that:“….it is incumbent upon the Petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violations could be true, but the court is enjoined by law to go by the evidence on record. The Petitioners’ allegations ought to have been supported by further tangible evidence such as medical records, witnesses…… the court is deal to speculation and imaginations and must be guided by evidence of probative value. When the court is faced by a scenario where one side alleges and the rival side disputes and denies, the one alleging assumes the burden to prove the allegation… However, mere allegation of incarceration without providing evidence of the same does not at all assist the court. It was incumbent upon the Petitioners to provide evidence of long incarceration beyond the allowed period and not to be presumptuous that the court knows what happened….."

15. It is submitted that the Petitioner has not discharged the burden of proof; that the Petitioner has not adduced evidence to the effect that money was purportedly paid to the Respondent, which evidence would have been critical in supporting the contention that indeed the Respondent levied road cess tax against him and that the Petitioner has also failed to demonstrate that the alleged payments made to the unknown individuals was based on a written directive of the Respondent. The Respondent asked this court to decline this Petition and dismiss it with costs to the Respondent.

Analysis and Determination 16. I have read the pleadings in this Petition, submissions of parties and the authorities they have relied on. The burden of proving violation of constitutional provisions or infringement of constitutional rights lies with the Petitioner. The standard of proof is set out in Anarita Karimi Njeru -vs – the Republic 1976-1980 KLR where it was held that:“If a person is seeking redress from the High court on a matter which involves a reference to the Constitution, it is important if only to ensure that justice is done to his case that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.’’

17. Further, in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, it was stated that:“It is our finding that the petition before the High Court was not pleaded with precisions as required in constitutional petitions. Having reviewed the petition and supporting affidavit, we have concluded that they did not provide adequate particulars of the claims relating to the alleged violations of the Constitution of Kenya and the Ethics and Anti-Corruption Commission Act, 2011. Accordingly, the petition did not meet the standard enunciated in the Anarita Karimi Njeru case.”

18. The Petitioner has alleged that the Respondent has imposed road cess tax on him and other road users, a function that is a preserve of national government contrary to Article 186(1), 209(5) of the Constitution and that by collection of this levy at various barrier points without legislative backing and issuance of receipts is a violation of articles 185 and 232 of the constitution. He also argued that the impounding of his motor vehicle for failure to pay that illegal cess is in violation of Articles 24, 27, 40, 47 and 48 of the constitution.

19. Article 185(2) of the Constitution allows county assemblies to make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the County Government under the Fourth Schedule.

20. Article 209 of the Constitution classifies what the National Government can impose as taxes and charges as follows:Power to impose taxes and charges(1)Only the national government may impose—(a)income tax;(b)value-added tax;(c)customs duties and other duties on import and export goods; and(d)excise tax.(2)An Act of Parliament may authorise the national government to impose any other tax or duty, except a tax specified in clause (3)(a) or (b).

21. Under sub-article (3) it provides what the County Government may impose as taxes and charges as follows:(3)A county may impose—(a)property rates;(b)entertainment taxes; and(c)any other tax that it is authorised to impose by an Act of Parliament.(4)The national and county governments may impose charges for the services they provide.(5)The taxation and other revenue-raising powers of a county shall 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.

22. It is the submission of the Petitioner that under Article 209(4) the Respondent is authorized to impose charges for services provided and therefore levies applied by the counties are restricted to what they offer in return of such charges.

23. I agree with the Petitioner that Nairobi-Namanga Highway and Kiserian-Isinya Roads are classified under the Kenya Roads Act, No. 2 of 2007, as National Roads under the Act’s First Schedule. National Roads include Class A Roads- International trunk roads linking centres of international importance and crossing international boundaries or terminating at international ports; Class B Roads – National trunk roads linking nationally important centres and Class C Roads – primary roads linking provincially important centres to each other or two higher class roads.

24. From this classification, it is clear that Namanga-Nairobi Highway and Isinya-Kiserian Road are National Roads (see Council of County Governors -vs- Attorney General & 4 Others [2015] eKLR). National Roads are under Kenya National Highways Authority established under Section 3 of the Act whose responsibility is management, development, rehabilitation and maintenance of the national roads. The Authority’s functions are spelt out under Section 4 of the Act. County Government have not role to play in these functions as pronounced by the courts in the above case and Base Titanium Limited -vs- County Government of Mombasa & another (Petition 22 of 2018) [2021] KESC 33 (KLR) (16July 2021) (Judgement) where it held that:“Flowing from the above, we underline that it is the National government that is the provider of the road service in this instance. It is clear therefore that should an access fee be owing, then the proper entity to which that amount is owed should be the National government not the County government. In that regard, we find that the cess imposed by the County Government of Mombasa under Item 90 of the schedule to the Mombasa County Act 2014 was improperly imposed as a charge for services rendered for services provided by the County Government and is not a charge for service as contemplated by article 209 (4) of the Constitution of Kenya.45. We, therefore, fault the superior courts’ interpretation and application of article 209(4) of the Constitution in their finding that the cess levied by the 1st Respondent was in line Constitution.”

25. Basing on the threshold in Anarita Karimi and Mumo Matemu authorities, the Petitioner is required to not only plead his case with precision but tender evidence to support the pleadings. He claims that officers of the Respondent have on several occasions stopped his agents at various points on Namanga-Nairobi Highway and demanded road cess for using that road. He ought to have provided evidence of such demands and payments through the evidence of his agents who fell victim of such demands. He ought to have presented evidence that the officers of the Respondent have been continually and consistently demanding payments from his agents every time these officers spot his vehicle along those roads and evidence that his motor vehicle had been detained whenever his agents fail to pay the levied cess.

26. On its part, the Respondent pleads that it enacted the Kajiado County Finance Act as sanctioned by Article 185 (2) of the Constitution and that this legislation allows it to collect levies but prohibits the said collection without issuance of official receipts. The said Act is described as “an Act of the County Assembly of Kajiado to provide for the imposition and variation of certain fees, charges, levies, rents and rates for services, other revenue-raising measures by the county government, and for matters incidental thereto.”

27. The Act provides for authorized channel under section 2 through which all payments required to be made and issuance of receipts under section 19 of the Act after such payments have been made. Specifically, section 19 provides that:(1)All payments to the county government shall be made through an authorized channel.(2)A collector of revenue or any other officer duly authorized to collect on behalf of the county government shall have identification card issued by the county government.(3)The identification card issued under subsection (2) shall be worn visibly by the county public officer when carrying out any of the functions under this Act.(4)An official receipt shall be issued for all payments made to the county government.(5)Any payment made to the county government shall be evidenced by an official receipt.(6)A person shall not receive or collect any money on behalf of the county government unless he has been authorized to do so.(7)A person who contravenes the provisions of this section commits an offence.

28. After careful reading of the Petition and the Supporting Affidavit, the Respondent’s Replying Affidavit and submissions of both parties, it is my finding that the Petitioner has not provided evidence to prove that the actions of the Respondent are brazen, illegal, egregious, discriminatory and a violation his rights. I did not find evidence that the Petitioner’s vehicle was stopped at various points along Namanga-Nairobi Highway or Isinya-Kiserian Road and payment of cess demanded of his agents. I did not find evidence that any payment was done by the Petitioner or his agents nor did I find evidence on the identity of such officers of the Respondent and therefore prayer one (1) cannot issue.

29. For this court to find that the constitution of Kenya has been violated as prayed under Prayer 2, there has to be evidence to prove to the required standard that the Respondents violated Articles 10, 23, 24, 27, 28, 29, 39, 40, 43 and 47 of the Constitution. The same case applies to prayer 3.

30. For this court to grant the injunction sought under prayer 4, there has to be evidence proving that the Respondent is levying cess in respect of national roads, which evidence is lacking. The same finding applies to prayer numbers 5. The Petitioner did not provide evidence of the decision he alleges was made by the Respondent to levy additional cess.

31. Central to the Petitioner’s claim is lack of evidence that the officers of the Respondent stopped his vehicles, demanded for payments of cess on national roads, the identity of such officers and the evidence of money paid to such officers. Without this evidence, as I have found is the case in this Petition, this court cannot issue the prayers sought.

32. It is true as the law stands that the officers of the Respondent have no power to collect or enact a law providing for levying of cess on national roads within Kajiado County. But for this court to make such a declaration, it must rely on available evidence that this is what is happening.

33. I have noted from the Petitioner’s pleadings, that he has not challenged the constitutionality of the Kajiado Finance Act of 2020. A party is bound by its pleadings and without such a prayer and evidence to prove that indeed the Respondent is levying charges for services it does not provide by dint of that Act, this court cannot venture in an area outside the pleadings of the Petitioner.

34. Consequently, it is the finding of this court that the Petitioner has failed to reach the threshold of a constitutional claim. He has failed to prove his case and therefore, the Petition cannot stand and is hereby dismissed with costs to the Respondent.

35. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 21ST DAY OF NOVEMBER 2023. S. N. MUTUKUJUDGE