[2011] KEHC 1382 (KLR)
The court found that the County Council of Mandera failed to produce any by-law authorizing the levying of cess on miraa, and therefore acted without jurisdiction in imposing such cess. For the County Council of Wajir, although a by-law existed and was approved by the Minister for Local Government, it was not made...
Source-derived case information.
- Citation
- [2011] KEHC 1382 (KLR)
- Parties
- Applicant: Ali Abdullahi Ahmed; Applicant: Kuso Dahir Ali; Respondent: Clerk, County Council of Wajir; Respondent: Clerk, County Council of Mandera
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 61 & 62 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Substantive Judicial Review Application
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Judicial Review, Local Authority Powers, Cess and Levies, By Laws Validity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Abdullahi Ahmed
Applicant
Kuso Dahir Ali
Applicant
Clerk, County Council of Wajir
Respondent
Clerk, County Council of Mandera
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Substantive Judicial Review Application
Legal Issues
- 1 Whether the County Councils of Wajir and Mandera had legal authority to levy cess on miraa transported through their jurisdictions.
- 2 Whether the by-laws relied upon by the Councils were valid and complied with statutory requirements.
- 3 Whether the imposition of cess contravened section 148 of the Local Government Act and section 192A of the Agriculture Act.
Ratio Decidendi
The court found that the County Council of Mandera failed to produce any by-law authorizing the levying of cess on miraa, and therefore acted without jurisdiction in imposing such cess. For the County Council of Wajir, although a by-law existed and was approved by the Minister for Local Government, it was not made with the consent of the Minister for Agriculture as required by section 192A(1) of the Agriculture Act. Furthermore, the Local Government Act prohibits councils from making by-laws that override or derogate from the Agriculture Act. Consequently, both Councils lacked legal authority to levy cess on the applicants' miraa, rendering the imposition of such cess unlawful. The court...
Court Disposition
application allowed
Orders
- The County Councils of Wajir and Mandera are prohibited from levying cess, fees or tax on the ex-parte Applicants' miraa.
- The Councils will pay the costs of these applications.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. CIVIL APPL. NOS. 61 & 62 OF 2010 (JR) (CONSOLIDATED)
IN THE MATTER OF AN APPLICATION BY ALI ABDULLAHI AHMED AND KUSO DAHIR ALI FOR JUDICIAL ORDER OF PROHIBITION
AND
IN THE MATTER OF SECTION 148 OF THE LOCAL GOVERNMENT ACTCHAPTER 265 LAWS OF KENYA
AND
IN THE MATTER OF COUNTY COUNCIL OF WAJIR
AND
IN THE MATTER OF ALI ABDULLAHI AHMED AND KUSO DAHIR ALI
BETWEEN
REPUBLIC..............................................................................................................EX-PARTE
CLERK, COUNTY COUNCIL OF WAJIR..............................................1st RESPONDENT
CLERK, COUNTY COUNCIL OF MANDERA.......................................2ND RESPONDENT
R U L I N G
The ex-parte Applicants trade in miraa. They buy the produce from Meru County Council and transport it by road through Wajir and Mandera County Councils (the Respondents). The Councils are each levying cess on each vehicle that transports miraa through its administrative jurisdiction. Their argument is that the exparte Applicants are using roads maintained by the Councils and that this cess is what is used to fund such maintenance. It is claimed that this cess is the only source of income to the Councils.
The Clerk to the County Council of Wajir filed a replying affidavit to which he annexed a copy of the County Council of Wajir (Miraa Import Cess) By-Laws, 2008 duly approved by the Minister for Local Government on 19th December 2008. He stated that this is the basis upon which he is levying cess on miraa that is brought into the Council’s area of jurisdiction. The by-law was made under the Local Government Act (Cap.265). The Clerk to the County Council of Mandera swore a replying affidavit to say that the cess the Council is levying is legal and justifiable under the Local Government Act. He swore that the Council has a by-law in place to authorize the cess, but did not annex a copy of the same. It was the contention of the ex-parteApplicants that no such by-law is in existence and therefore that the levying of cess on their miraa was illegal. They went on to claim that if any such by-law exists, the same contravenes the provisions of section 148 of the Local Government Act and section 192A of the Agriculture Act (Cap.318).
The ex-parte Applicants, following leave, seek the judicial review order of Prohibition to prohibit the Councils from levying any miraa cess against them.
Once the ex-parte Applicants swore that the County Council of Mandera had no by-law in place to authorize the levying of cess on miraa within its jurisdiction, it fell on the Council to exhibit any such by-law. If the Council did not exhibit then it must be found that it did not have such a by-law. Under section 148 of the Local Government Act cess charged or imposed by the Council has to be authorized and regulated by a by-law which has to be approved by the Minister for Local Government. The action by the Council to levy cess on the miraa without a by-law which had been approved was done without jurisdiction.
Regarding the County Council of Wajir, there is an approved by-law. However, under section 192A(1) of the Agriculture Act, such by-law was supposed to be made with the consent of the Minister for Agriculture who was to consult with the Minister for Local Government. The Council had no power to make the by-law without such consent. Under section 202(7) of the Local Government Act, the Council had no power to make a by-law to override or derogate from the provisions of the Agriculture Act.
The result is that the imposition of cess on the ex-parte Applicants miraa was without legal authority. The County Councils of Wajir and Mandera are hereby prohibited from levying cess, fees or tax on the ex-parte Applicants miraa. The Councils will pay the costs of these applications.
DATED, SIGNED AND DLEIVERED AT EMBU THIS 19TH DAY OF SEPTEMBER 2011
A.O. MUCHELULE
JUDGE