[2021] KEELC 4518 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

MISCELLANEOUS CIVIL APPLICATION NO. E3 OF 2021

IN THE MATTER OF THE CONSTITUTION OF KENYA

THE VALUATION FOR RATING ACT (CAP 266)

THE RATING ACT (CAP 267)

THE REPUBLIC FINANCE MANAGEMENT ACT (NO. 18 OF 2012)

THE COUNTY GOVERNMENTS ACT (NO. 17 OF 2012)

THE URBAN AREAS AND CITIES ACT (NO. 17 OF 2011)

THE KISUMU COUNTY PUBLIC PARTICIPATION ACT, 2015

AND

IN THE MATTER OF AN APPLICATION BY JOHN MICHAEL OBURE FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, PROHIBITAION AND MANDAMUS

AND

IN THE MATTER OF THE COUNTY GOVERNMENT OF KISUMU

AND

THE DRAFT VALUATION ROLL, 2017

RULING

This notice of motion is brought pursuant to the provisions of order 53 rules 2 of the Civil Procedure Rules 2010, Cap 21 and Sections 1A and 3A of the Civil Procedure Act Cap 21 laws of Kenya by John Michael Obure. He prays that this honourable court be pleased to grant to the applicant leave to apply for orders of certiorari, prohibition and mandamus in terms of the statement dated the 15th January 2021 lodged herein.

That the grant of leave do operate as a suspension of gazette Notice No. 11063 published on the 24th December 2020 in the Kenya Gazette Vo. CXXII No. 235 and as a stay of all and any proceedings and processes arising therefrom pending the hearing and determination of the applicant’s application for judicial review or further orders.

The grounds of application are that the respondent proposes to increase property rates within the County of Kisumu on the basis of valuations contained in its Draft Valuation Roll 2017 laid before the County Assembly of the respondent on the 23rd December 2020 which proposes to increase of up to 7,275% on freehold land and of up to 5,343% on leasehold land which is so exorbitant as to be unreasonable and oppressive.

The proposed increases in property rates have been undertaken by a process that violates the law as no public participation was done in the development of the Draft Valuation Roll 2017 as is mandatorily required by the Constitution, the Public Finance Management Act, the County Governments Act and the Kisumu County Public Participation Act.

The proposed increase in property rates are certain to distort levels of rent and the price of commodities and services within the County of Kisumu at a time that the public are grappling with the depressed state of the economy within the Count of Kisumu and the Republic of Kenya given the effects of the worldwide COVID-19 pandemic, in violation of the rights of the public to be consulted and involved in the process and to have their contributions taken into consideration;

That the respondent’s Gazette Notice No. published on the 24th December 2020 in the Kenya Gazette Vo. CXX11 NO. 235 requires objections to the Draft valuation roll 2017 to be lodged before the 21st January 2021 wherefore already members of the public are being compelled to incur costs to object and yet the process is incurably tainted by the failure of the respondent to adhere to the aforesaid mandatory provisions of the law requiring that public participation be an integral part of the process in the preparation of the draft Valuation Roll 2017.

The court ordered the applicant to serve the application and in response the applicant filed grounds of opposition whose import is that the application is misconceived, bad in law and abuse of court process and should be dismissed with costs.

On the inter-parte hearing on the issue of leave to commence Judicial Review proceedings and leave to operate as stay. It was argued by Mr Okero, learned counsel for the applicant that the members of public are being required to pay the rates for 2021 and arrears before they can file objection to their new rates. Mr. Kadede, learned counsel for the respondent argued that the draft valuation role that has been subjected for scrutiny by members of public and the issues will be further subjected to valuation court.

Mr Kadede was ready to undertake on behalf of the respondent that no member of public will be prohibited from filing an objection to the draft valuation Bill by virtue of having not paid the arrears of rates.

I have considered the application and do find that the applicant has raised enough grounds for leave to be granted and I do grant the applicant leave to apply for orders of certiorari, prohibition and mandamus in terms of the statement dated the 15th January 2021 lodged herein.

On leave to operate as stay, I do find that the applicant has raised the issue of Public participation. Though the respondent has clarified and undertaken that no member of public will be prohibited from filing any objection to the draft valuation Bill by virtue of having not paid the arrears of the rates, public participation is a constitutional requirement that cannot be wished away.

I do grant an order that the leave granted to operate as a suspension of gazette Notice No. 11063 published on the 24th December 2020 in the Kenya Gazette Vo. CXXII No. 235 and as a stay of all and any proceedings and processes arising therefrom pending the hearing and determination of the applicant’s application for judicial review or further orders.

The applicant to file and serve the substantive notice of motion within 3 days. The respondent to file a reply within 5 days of service. The applicant to file a supplementary affidavit with submissions within 5 days of service. The respondent to file submissions within 5 days of service. Highlighting on the 24th February 2021. Costs in the cause.

DATED AT KISUMU THIS 28th DAY OF JANUARY, 2021

ANTONY OMBWAYO

JUDGE

This Judgment has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2019.

ANTONY OMBWAYO

JUDGE