[2018] KEHC 3513 (KLR)
The court found that the respondent's demand for tea cess and the impounding of the applicant's vehicles were not supported by the Nyamira County Finance Act, 2016, which only provides for a manufacturing levy that the applicant had already paid. Since the respondent did not oppose the application or attend the...
Source-derived case information.
- Citation
- [2018] KEHC 3513 (KLR)
- Parties
- Applicant: Mogeni Tea Factory Limited; Respondent: Nyamira County Government
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 1 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application
- Outcome
- Application allowed in part; conservatory and injunctive orders granted as prayed in prayers 3 and 4; costs to abide the petition.
- Judges
- EM Muchoki
- Legal Topics
- County Finance Act, Unlawful Levies, Injunctive Relief, Conservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mogeni Tea Factory Limited
Applicant
Nyamira County Government
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the respondent is lawfully entitled to levy and collect tea cess not provided for in the Nyamira County Finance Act, 2016.
- 2 Whether the respondent's impounding of the applicant's vehicles and goods for non-payment of such cess is lawful.
- 3 Whether the applicant is entitled to conservatory and injunctive relief restraining the respondent from demanding or collecting unlawful levies.
Ratio Decidendi
The court found that the respondent's demand for tea cess and the impounding of the applicant's vehicles were not supported by the Nyamira County Finance Act, 2016, which only provides for a manufacturing levy that the applicant had already paid. Since the respondent did not oppose the application or attend the hearing, and the orders sought were conservatory in nature, the court granted the injunctive relief sought in prayers 3 and 4 of the application, restraining the respondent from seizing the applicant's vehicles or demanding levies not prescribed by law, pending determination of the petition.
Court Disposition
Application allowed in part; conservatory and injunctive orders granted as prayed in prayers 3 and 4; costs to abide the petition.
Orders
- Pending the hearing and determination of this suit, the respondent, its agents, servants, workmen and/or employees are restrained by way of temporary injunction from seizing and/or detaining the applicant’s motor vehicles in the course of their business and/or depriving and/or trespassing upon the goods of the...
- A temporary injunction is issued restraining the respondent through its agents, employees and servants from demanding levies and charges not prescribed for in the Nyamira County Finance Act, 2016, pending the hearing and determination of the petition.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAMIRA
CONSTITUTIONAL & HUMAN RIGHT DIVISION PETITION NO. 1 OF 2018
MOGENI TEA FACTORY LIMITED.........................PETITIONER
=VERSUS=
NYAMIRA COUNTY GOVERNMENT....................RESPONDENT
RULING
By the Notice of Motion filed herein, the petitioner seeks orders that: -
1. This application be certified urgent and be heard exparte in the first instant.
2. The honourable court be pleased to issue an interim mandatory injunction directing the Defendant/Respondent by itself, its agents, servants, workmen and/or employees to release and/or deliver to the Plaintiff/Applicant motor vehicle Registration Number KAR 254Y and the computer weighing machine pending the hearing and determination of this application inter parties.
3. Pending the hearing and determination of this suit, the Defendant/Respondent by itself, its agents, servants, workmen and/or employees be restrained by way of temporary injunction from seizing and/or detaining the applicant’s motor vehicles in the cause of there business and/or depriving and/or trespassing upon the goods of the Plaintiff/Applicant in whatsoever manner.
4. A temporary injunction be issued restraining the respondent through its agents, employees and servants from demanding levies and charges not prescribed for in the Nyamira County Finance Act, 2016, pending the hearing and determination of the petition.
5. Costs of this application be provided for.
The application is supported by the affidavit of Kennedy Bosire Mogeni sworn on 31st January 2018 in which at paragraph 2 he has listed the registration numbers of several motor vehicles which he deposes were unlawfully impounded by the respondent on account of failure to pay cess which is not provided for in the Respondent’s County Finance Act 2016. The Act is annexed to the application.
The application is not opposed as despite given time on 7th February 2018 to file its response Counsel for the respondent did not file the same. Neither did Counsel for the respondent attend the hearing despite being notified as evidenced by the affidavit of service filed on 5th July 2018 and which has a Nyamira County received stamp.
At the hearing Mr. Bosire for the petitioner pointed out that prayers 1 and 2 of the application were spent and that he was only urging prayers 3, 4 and 5. He submitted that the tea cess levied by the respondent is not provided for in the Nyamira County Finance Act 2016. He contended that even erecting road blocks on the highway to collect the cess is not provided for and is illegal. He contended that other than a manufacturing levy which the applicant has paid for the petitioner is not obligated to pay any other levy. He prayed for the orders.
The orders sought are conservatory in nature and as the application is not opposed, I shall allow it and grant prayers 3 and 4. The costs of the application shall however abide the petition.
It is so ordered.
Signed, dated and delivered in open court this 12th day of October 2018.
E. N. MAINA
JUDGE