https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1156

Mogeni Tea Factory Ltd v Nyamira County Government (Civil Appeal E144 of 2021) [2026] KECA 1156 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1156 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E144 of 2021 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Mogeni Tea Factory Limited Appellant and Nyamira County Government Respondent (Being an appeal from the Judgment of the High Court of Kenya at Nyamira (E.N. Maina, J.) dated 25th March, 2021 in Nyamira H.C. Petition No. 1 of 2018 Petition 1 of 2018 ) Judgment 1.This is an appeal from the judgment and decree of the High Court of Kenya at Nyamira (the trial court) in Petition No. 1 of 2018, between Mogeni Tea Factory Limited, “the appellant”, and Nyamira County Government, “the respondent”. By the said judgment and decree, the High Court dismissed the appellant’s petition with costs to the respondent. 2.The genesis of the dispute is traced to the petition filed in the trial court on 31st January 2018. In the petition, the appellant claimed that on 23rd January 2018, the respondent’s revenue officers erected a road barrier, stopped and impounded 24 lorries that were transporting fresh tea leaves to its factory. The fresh tea leaves had been purchased by the appellant from various tea farmers in the locality and the lorries were on their way to deliver them to its factory when they were restrained as aforesaid. It was not until the appellant’s officers sought the intervention of the police officers from Nyamira Police Station that the lorries were realised. 3.Again, the following day, the respondent’s officers seized the appellant’s lorry, KAR 254Y whilst it was transporting fresh tea leaves to the same factory. The lorry was towed and detained at the county yard not just with the tea leaves but also with a weighing machine which contained data of all the farmers from whom the fresh tea leaves had been purchased. 4.That the lorries were impounded because the appellant had refused to pay cess demanded by the respondent. Despite the appellant’s officers several demands for the release of the lorries, the respondent’s officers refused to purge. That at the time impoundment, the lorries had between them fresh tea leaves weighing 82,803 kilograms valued at Kshs.5,133,225/=. All the tea leaves went to waste as a result of being scorched by the sun and consequently the appellant incurred a loss in the aforesaid amount. It was the case of the appellant that the seizure of the lorries was illegal, arbitrary and unconstitutional as it violated its right to property and fair administrative action provided for in Article 40(3) of the Constitution of Kenya. 5.Ultimately, the appellant prayed that; an order do issue directed at the respondent to forthwith release the lorry registration number KAR 254Y to the appellant; Declarations that the respondent violated the appellant’s constitutional rights to property pursuant to Article 40(2) of the Constitution; the erection of barriers and demand of cess was illegal, null and void; compensation, costs and interest. 6.The respondent in its defence conceded to the erecting of the barriers and blocking the appellant’s lorries for passing through for refusing to pay the cess demanded by it. That the demand for cess was constitutionally anchored in Article 209 (4), of the Constitution, Sections 5(1) and (2) of Nyamira County Finance Act 2016, and that the appellant was in breach of county laws by failing or refusing to pay. Accordingly, no fundamental rights of the appellant had been violated. In any event, the appellant had failed to particularize the rights allegedly infringed or demonstrate how they were breached. The respondent denied that 82,803 kilograms of fresh tea leaves went to waste and rejected claims that lorry registration number KAR 254Y was detained together with weighing machine which contained data of all the farmers. Ultimately, the respondent concluded that the petition was defective, failed to meet the constitutional threshold, and invited the court to dismiss it with costs. 7.The petition was heard by way of viva voce evidence. PW1 Joseph Ageta Ondieki, a driver employed by the appellant to transport fresh tea leaves from the local tea farmers was on 24th January 2018, driving a lorry Registration No. KAR 254Y, when he was stopped by the respondent’s county officials at Kebirigo, where a barrier had been placed across the road. They demanded payment of cess and when he refused, they impounded the lorry together with a digital weighing machine, which contained farmers’ data. 8.PW2 Nahason Siro, also a driver, on 23rd January 2018, while transporting tea leaves from Kemera area, with other lorries belonging to appellants were stopped at a barrier erected by respondent’s officials who demanded cess payment. He confirmed that the lorries were detained for hours until a traffic police officer intervened, by which time the tea leaves had been scorched to waste. 9.PW3 Joshua Onchana Abuga, the Chief Accountant of the appellant, confirmed that on 23rd January 2018, 24 lorries ferrying 82,803 kilograms of fresh tea leaves to the appellant’s factory were detained for about 7 hours. He further stated that on 24th January 2018, a lorry registration number KAR 254Y was impounded for fifteen days together with a digital weighing machine, which contained farmers’ data critical for payments. He tabulated the financial losses suffered by the appellant, to over Kshs.5,133,225/=, as the seizure disrupted operations and caused wastage of the fresh tea leaves. 10.PW4 Kennedy Bosire Mogeni, the Transport Manager, confirmed that the appellant had contracted lorries, including KAR 254Y to collect fresh tea leaves from local tea farmers. That prior to 23rd January 2018, the respondent had not demanded cess. However, following detention of the lorries aforesaid, the appellant successfully sought and obtained court intervention. He emphasized that the appellant had paid the annual single business permit for Kshs.80,000/= under the County Finance Act 2016, which covered its operations, and that the demand for cess was unlawful, unconstitutional, null and void. 11.The respondent in opposing the petition testified through DW1 Ateji Dennis Muruli, a county revenue officer. He stated that on 24th January 2018 he was instructed by the County Government to collect revenue at Kebirigo. He stated that a lorry KAR 254Y was stopped and a cess fee of Kshs.200/= demanded for transporting fresh tea leaves within the county. He explained that fresh tea leaves are raw material, and transporting them to the factory was not part of manufacturing but a separate activity deserving separate payment. He maintained that the barrier erected at Kebirigo was a designated revenue collection point and that the demand was lawful under the Finance Act of Nyamira County, 2016. 12.DW2 Douglas Kegwaro Ogega, an enforcement officer of the county, produced a report made at the police station on 24th January 2018 regarding lorry KAR 254Y, which had refused to pay cess demanded. The lorry was impounded and taken to the county yard. He explained that cess was payable for hawking or transporting fresh tea leaves within the county, and that the county was empowered to collect such revenue. He denied knowledge of any other lorries being impounded and insisted that the barrier was not illegal, as it was a recognized point for revenue collection for the county. 13.DW3 Isaac Basweti, from the County Revenue Department, confirmed that cess was levied on all vehicles transporting goods, including tea leaves, within Nyamira County. He referred to the Nyamira County Finance Act, 2016, specifically the schedule on “Tea Leaf Hawking/Transport,” and explained that the cess was distinct from the annual business permit of Kshs.80,000/= paid by the appellant. He emphasized that the business permit covered manufacturing operations but not transportation, which was separately chargeable. He further stated that the barriers erected were lawful and that the impoundment of the lorries was justified since they had failed to pay cess demanded on behalf of the respondent. 14.Collectively therefore, the respondent’s witnesses maintained that the cess levied was a lawful charge for transportation of fresh tea leaves within the county, sanctioned by the County Finance Act, 2016, and that the barriers erected at Kebirigo were legitimate revenue collection points. They denied that the actions of the county officers were arbitrary or unconstitutional, and urged the court to dismiss the petition. 15.In its determination the trial Court held that the Nyamira County Finance Act, 2016, authorized the respondent to impose charges for transportation of fresh tea leaves within the county. It found that the appellant had not demonstrated that its rights under Article 40(3) of the Constitution were violated, nor that the charges amounted to double taxation. The petition was in the premises dismissed with costs to the respondent. 16.Aggrieved by the judgment and decree aforesaid, the appellant lodged the instant appeal on several grounds to wit; that the trial court erred in law and fact by holding that: it was liable to pay cess; placing mechanisms for imposing such charges were not lawful, null and void; the cess imposed was sanctioned by the Nyamira County Finance Act 2016; the barriers were mounted with the blessings of the relevant public body; the seizure and detention of its motor vehicles did not breach its constitutional rights to property and fair administrative action and lastly, the appellant faults the trial court for failing to award damages. 17.The appeal was heard by way of written submissions with limited oral highlights. When the appeal was called out for plenary hearing, Mr. Bosire Gichana, learned counsel appeared for the appellant while Mr. Nyachiro, learned counsel appeared for the respondent. 18.Counsel for the appellant submitted that the appellant’s case arose from the unlawful actions of the respondent’s revenue officers who, on 23rd and 24th January, 2018 respectively mounted barriers and detained lorries transporting fresh tea leaves to the appellant’s factory. He emphasized that the fresh tea leaves weighing 82,803 kilograms purchased from local farmers, perished after being held for over 7 hours, occasioning a loss in excess of Kshs.5,133,225/=. Further lorry registration number KAR 254Y when impounded had a digital weighing machine containing farm data, thereby crippling the appellant’s operations. 19.Counsel argued that the seizure of the lorries was illegal, arbitrary and unconstitutional and violated the appellant’s rights to property under Articles 40(3) and 47 of the Constitution of Kenya as well as fair administrative action Act. He contended that the demand for cess was unlawful, pointing to section 17(2) of the Crops Act, which only provides for a trade licence and not cess, and stressed that only the National Government under sections 7 and 17(1) of the Crops Act could impose levies on scheduled crops such as fresh tea leaves. He also relied on Article 209(3) of the Constitution, which limits county taxation powers to property rates, entertainment taxes, and other taxes authorized by an Act of Parliament, and submitted that the respondent’s actions were not sanctioned by law. 20.To buttress these submissions, counsel cited Raiply Woods (K) Ltd v Baringo County [2017] eKLR and Eastern Produce Kenya Ltd v County Government of Nandi [2019] eKLR, where courts held that counties lacked authority to levy cess on crops, as this was the preserve of the National Government. He maintained that the appellant had already paid Kshs.80,000/= for its annual manufacturing licence and was not liable for any other or further levies. 21.Counsel also challenged the legality of the barriers, citing section 69A of the Traffic Act, which vests the power to designate such barriers solely in the Inspector General of Police, and section 90(2) which criminalizes obstruction of free passage on public roads. He argued that the respondent’s barriers were unlawful in the circumstances. On damages, counsel submitted that the appellant suffered special damages amounting to Kshs.6,800,220/=, comprising of unlawfully demanded cess, value of fresh tea leaves gone to waste, and lost revenue due to seizure of the digital weighing machine. He urged the court to award general, exemplary, aggravated, and punitive damages, noting that the respondent’s conduct was oppressive and unconstitutional. 22.Counsel for the respondent in turn, submitted that the appeal was devoid of merit and ought to be dismissed with costs. He argued that the trial Court properly evaluated the evidence and correctly interpreted the Constitution, the County Governments Act, and the Fourth Schedule, and the Nyamira County Finance Act, 2016. 23.Counsel submitted that the transportation charges levied by the respondent were lawful, being imposed pursuant to Articles 209(3) and (4) of the Constitution of Kenya, which empower counties to impose taxes authorized by an Act of Parliament and charges for services they provide. He emphasized that the Nyamira County Finance Act, 2016, was valid legislation enacted by the County Assembly under Article 185(2) of the Constitution of Kenya, and that the charges were not a tax on the fresh tea leaves as an agricultural commodity but rather a levy on the transportation of goods within the county. He distinguished the authorities cited by the appellant, such as Raiply Woods v Baringo County and Eastern Produce Kenya v County Government of Nandi, (all supra), noting that those cases involved counties attempting to tax crops directly, whereas in this case the charges were transportation related. 24.Counsel submitted that the barriers erected were lawful administrative mechanisms intended to ensure compliance with County revenue laws. He argued that the appellant failed to produce evidence showing that the barriers were mounted contrary to law or without consultation with relevant authorities. He maintained that section 69A of the Traffic Act relates to police barriers for policing purposes, not county revenue enforcement mechanisms, and therefore the appellant’s reliance on that provision was misconceived. Counsel further submitted that no violation of Articles 40 and 47 of the Constitution had been proved. He argued that temporary detention of the motor vehicles during lawful revenue enforcement does not amount to arbitrary deprivation of property, and that the appellant failed to establish ownership of several vehicles allegedly affected, as they were hired from third parties. He emphasized that constitutional petitions must be pleaded with precision, citing Anarita Karimi Njeru v Republic [1979] KLR 154, and Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR and argued that the appellant’s pleadings fell short of the required threshold. 25.On damages, counsel submitted that the appellant failed to strictly prove the alleged losses, noting that special damages must be specifically pleaded and strictly proved as held in Hahn v Singh [1985] KLR 716. He contended that the claims relating to wasted tea leaves, projected income, and business disruption were speculative and unsupported by any credible evidence. He further argued that exemplary and punitive damages are only awardable in exceptional circumstances involving oppressive or unconstitutional conduct by a party, which had not been demonstrated in this case. 26.We note and appreciate that this is a first appeal and thus our duty is circumscribed by statute and case law. In the case Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123, the Court stated:“This court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 27.Having considered the record of appeal, the respective submissions of learned counsel, the authorities cited, the law and bearing in mind our duty as stated above, the issues we discern for our consideration are fourfold; whether: the cess imposed by the respondent was lawful and constitutional; the enforcement mechanisms, particularly the erection of barriers and detention of the appellant’s vehicles, were valid in law; the appellant’s rights to property and fair administrative action under Articles 40 and 47 of the Constitution were violated and lastly whether the appellant was entitled to any damages. 28.Article 260 of the Constitution empowers the County government to enact legislation. It provides:“legislation” includes––a.an Act of Parliament, or a law made under authority conferred by an Act of Parliament; orb.law made by an assembly of a County Government, or under authority conferred by such a law;”Regarding taxation, the Constitution specifies under Article 209 that:“(1)Only the national government may impose—a.income taxb.value-added tax;c.customs duties and other duties on import and export goods; andd.excise tax2.An Act of Parliament may authorize the national government to impose any other tax or duty, except a tax specified in clause (3) (a) or (b).3.A County may impose—a.property rates entertainment taxes; andc.any other tax that it is authorized to impose by an Act of Parliament.4.The National and County Government 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.”Article 210 (1) of the Constitution provides that,“No tax or licensing fee may be imposed, waived or varied except as provided by legislation.” 29.In this regard, County Governments are vested with power to make legislation under Article 185(2) of the Constitution of Kenya which provides inter alia:“A County assembly may 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.” 30.Section 5(2)(a) of the County Governments Act operationalizes Article 185(2) of the Constitution, by affirming the legislative authority of county assemblies to enact laws necessary for the effective performance of county functions. Further, section 21(4) of the County Governments Act provides for the implementation of bills relating to taxation and revenue matters. It defines a “money bill” as one that contains provisions dealing with:a.taxes;b.the imposition of charges on a public fund or the variation or repeal of such charges;c.the appropriation, receipt, custody, investment or issue of public money;d.the raising or guaranteeing of any loan or its repayment; ore.matters incidental to any of the above. 31.In essence, these provisions collectively empower county assemblies to legislate on financial matters, including taxation and charges, provided such enactments are consistent with the Constitution and national legislation. The respondent relied on the Nyamira County Finance Act, 2016, which prescribes charges for tea leaf hawking and transportation, to justify its demand for cess. We are satisfied just like the trial court that the charges in question were not a tax on tea as a crop, which is reserved for the national government under the Crops Act but rather a levy on the transportation of goods within the county jurisdiction. As correctly submitted by counsel for the respondent, this cess is supposed to go towards the maintenance of the county roads. The appellant did not dispute this fact. Further, the appellant did not demonstrate that where the barriers had been mounted were not County roads. Accordingly, the appellant’s submission that the respondent was imposing tax for no service rendered at all is incorrect. 32.In Base Titanium Ltd v County Government of Mombasa & Attorney General [2018] eKLR, this Court held that counties may impose charges under Article 209(4) only where such charges are tied to a service actually rendered, and arbitrary cess demands without corresponding services are unconstitutional. Likewise, in H Young & Co (EA) Ltd v County Government of Lamu [2024] KECA 359 (KLR), the Court struck down a cess levy not supported by legislation, reiterating that counties must strictly adhere to Article 210(1), of the Constitution which requires that no tax or licensing fee may be imposed except as provided by law. Further, in Kenya Breweries Ltd v Kiambu County Government [2020] eKLR, this Court cautioned against double taxation, holding that counties cannot impose levies that duplicate national taxes or fail to demonstrate a devolved service. 33.Given the holdings in the above authorities we are satisfied that the appellant did not discharge the burden of proving that the Nyamira County Finance Act, 2016 was unconstitutional. The Act, on its face, authorized transportation charges, and unless shown to be inconsistent with the Constitution or national legislation, it enjoys a presumption of validity. Thus, the levy imposed by the respondent was within the scope of devolved functions, though subject to the constitutional requirement that it be connected to an actual service rendered. Borrowing from Ndyanabo v Attorney General [2001] EA 495, which underscores the presumption of constitutionality of statutes, we are satisfied that the transportation charges were lawfully imposed. We may also add that to the extent that the said legislation was not struck down as unconstitutional, we are unable to appreciate how actions flowing therefrom can be termed as unconstitutional. 34.Regarding enforcement mechanisms, the appellant challenged the legality of the barriers mounted by the respondent, arguing that only the Inspector General of Police may designate barriers under section 69A of the Traffic Act. The respondent countered that the barriers were administrative mechanisms for revenue collection enforcement mechanisms by the respondent and not police. This Court has emphasized time without number, that enforcement barriers of county legislation is a legitimate exercise of devolved functions. In the present case, the appellant failed to tender any evidence demonstrating that the barriers were unauthorized or contrary to law. Nor did it proof that they were mounted without the authority or permission of the Inspector General of Police. The burden of proof lies on the party alleging illegality, as reaffirmed in Kirugi & another v Kabiya & 3 others [1987] KLR 347. 35.We are therefore satisfied that the enforcement mechanisms employed by the respondent, though perhaps inconvenient, were not shown to be unlawful or unconstitutional. It was not a police road barrier perse that required the authority of the Inspector General of Police to mount since it was not to counter any criminal activities but to enforce County legislation. In any event, as already stated, the appellant did not demonstrate that the barriers were not mounted without the authority, permission or in consultation with the Inspector General of Police. It appears to us therefore that the appellant’s assertions on this aspect is purely speculative. 36.On the alleged violation of Articles 40 and 47, of the Constitution the appellant argued that the detention of lorries and the spoilage of tea leaves as a result amounted to violation of its constitutional rights to property and fair administrative action. However, the Court has consistently held that lawful regulatory enforcement mechanisms does not amount to unconstitutional deprivation of property. In Commissioner of Customs & Excise v Doshi Iron Mongers Ltd [2016] eKLR, the Court affirmed that enforcement actions undertaken pursuant to statutory authority are not arbitrary deprivation of property. We note though that the impounded lorries did not even belong to the appellant.Rather, the appellant had leased them from third parties. How then can the appellant genuinely claim violation of its constitutional right to property, for a property it does not own. To our mind therefore, the proper complainants here should have been the real owners of the lorries and not the appellant even if it was by proxy. 37.As regards the wasted fresh tea leaves, though the appellant claimed that they went to waste following the impoundment, there was no credible evidence to that effect. No evidence was led to show that they were spoiled beyond redemption. In any event, it was open to the appellant to take mitigation measures. However, from the record, it appears that the appellant merely sat on its laurels, without taking measures in mitigation thereof as it was expected of it. 38.Constitutional petitions are supposed to be pleaded with specifity and precision. In Anarita Karimi Njeru v Republic (supra), as reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance (supra), this Court held that a petitioner must specify the rights violated, the manner of violation, and the injury suffered. The appellant’s pleadings fell far too short of this threshold, particularly as ownership of several vehicles was not established, and no independent evidence was produced to prove spoilage of tea or loss of income. Accordingly, we are satisfied that the appellant failed to prove violation of Articles 40 and 47 of the Constitution. 39.On damages, we agree with the submissions of counsel for the respondent that the appellant failed to strictly prove the alleged losses. It is an old hut that special damages must be specifically pleaded and strictly proved. See for instance Hahn v Singh (supra). It is obvious that claims relating to wasted fresh tea leaves, projected income, and business disruption were speculative and unsupported by independent evidence such as valuation reports or audited accounts. We also appreciate that exemplary and punitive damages often used interchangeably are only awardable in exceptional circumstances involving extremely egregious, oppressive or unconstitutional conduct of a party so as to deter similar behavior in future, which had not been demonstrated in the circumstances of this case. We also note that, it is an accepted best practice and standard judicial practice for a trial court to assess damages even if the primary claim is dismissed. This is because, if an appellate court overturns the dismissal and finds liability, having the damages assessed prevents the case from having to be sent all the way back to the trial court just for quantum calculations. See Selle v Associated Motor Boat Company Limited (supra) and Ombeti v Muthure [2024] KEHC 3377. The trial court failed to do so in the circumstances of this appeal though it dismissed the petition. It is only on this aspect that we fault the trial court. However, it is neither here nor there! 40.In light of the foregoing, we are satisfied that the cess imposed by the respondent was lawful and constitutional, being sanctioned by the Nyamira County Finance Act, 2016; that the enforcement mechanisms employed, including the erection of barriers, were not demonstrated to be unlawful or unconstitutional; and that the appellant failed to establish any violation of its constitutional rights to property or fair administrative action to entitle it to damages of whatever kind. We are further satisfied that the trial court properly directed itself on both fact and law, and we have no reason(s) to disturb the said judgment and decree. 41.Accordingly, the appeal is devoid of merit and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA………………………………JUDGE OF APPEALE.C. MWITA ………………………………JUDGE OF APPEALB. ONGAYA………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR