[2017] KEHC 4563 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW MISCELLANEOUS CIVIL APPLICATION NO22 OF 2017

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 53 OF THE CIVIL PROCEDURE RULES 2010.

AND

IN THE MATTER OF AN APPLICATION BY JOB KIRUKI KIAIRA &MARY KIRIGO KIAIRAFOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND MANDAMUS

AND

IN THE MATTER OF ARTICLE 40 &47 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE VALUATION OF RATING ACT CAP 266 LAWS OF KENYA, THE RATING ACT CAP 267 LAWS OF KENYA, ORDER 53 OF THE CIVIL PROCEDURE RULES AND SECTIONS 8 AND 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA

BETWEEN

REPUBLIC………….….…………….…………..………....APPLICANT

-VERSUS-

THE NAIROBI CITY COUNTY..........……………….....RESPONDENT

AND

JOB KIRUKI KIAIRA

&MARY KIRIGO KIAIRA.…………....……EX PARTE APPLICANTS

Introduction

1. By a Motion dated 14th February, 2017, the ex parte applicants herein, Job Kiruki Kiaira &Mary Kirigo Kiaira seek the following orders:

1)THATthis Honourable court be pleased to issue an Order of Certiorari to bring to the High Court and quash the decision of the respondent made on 27th July 2016 levying arrears in unpaid rates of Kshs. 1,151,462 with respect to the applicant’s property LAND REFERENCE NAIROBI BLOCK 110/1004 .

2)THATthis Honourable court be pleased to issue an Order of Mandamus to compel the respondent to refund Kshs. 847,172 to the exparte applicant being amount irregularly demanded by the respondent and paid by the ex parte applicant and to comply with the provisions of the Valuation of Rating Act, Cap 266 and the Rating Act, Cap 267; to carry out and disclose to the applicant a fresh valuation and basis thereof of LAND REFERENCE NAIROBI BLOCK 110/1004.

3)THAT the costs of this application be provided for

Applicants’ Case

2. According to the applicants who are husband and wife respectively, they are the joint proprietors of land reference Nairobi Block 110/1004 (hereinafter referred to as “the suit land”).

3. According to the applicants, this suit arises from the illegal decision of the respondent dated 27th July 2016, demanding for payments and interest of rates over the suit land. Yet the applicants have been diligently paying land rates, with respect to the aforesaid property, to the defunct Nairobi City Council prior to 1997 before the parcel file got lost.

4. It was averred that sometime in 1997, the parcel file of the property went missing or got lost at the premises of the Nairobi City Council hindering the applicants from continuing to pay my rates. The 1st applicant personally visited the Nairobi City Council several times to inquire about the missing file but no assistance was forthcoming. Even when the Nairobi City County Government took over from the Nairobi City Council the said file of the property remained missing and the 1st applicant’s visits to its premises to rectify the situation did not bear any fruits prompting him to hire a lawyer to intervene by way of a letter dated 4th June 2016 instructing his lawyers on the matter.

5. The applicants disclosed that on 7th July 2016 the respondent, the Nairobi City County Government, announced a waiver on rates for properties situate in Nairobi declaring 90% waiver on penalties and interest on outstanding land-rates from 1st - 31st July 2016, and through his lawyers the 1st applicant applied for reconstruction of the said land parcel file to qualify for the waiver. In response thereto, the Respondent on 27th July 2016 demanded for unpaid rates of Kshs. 304,290. 00 and derivative interest on rates of Kshs. 847,172. 00 making the total demanded as Kshs. 1,151,462. 00. It was the applicants’ case that the aforesaid figures demanded as principal rates arrears and interest thereof, were arrived at secretly and without disclosure to them as required by the Valuation of Rating Act, Cap 266 and the Rating Act, Cap 267. Based on legal advice the applicants contended that the action was a unprocedural, irregular and with a dearth of transparency and that in fixing the principal rates arrears and interest thereof the respondent did not comply with the law namely carrying out valuation, preparation of a valuation roll and valuation rates of the property, publication of the same and giving notice to them which rendered the action to be ultra vires.

6. It was further averred that the respondent also declared the rate arrears plus interest payable before the end of July 2016 which was 4 days of the demand threatening to impound and dispose the applicants’ aforesaid property if it went unpaid compelling them to settle the same through coercion within a short notice. The said demand, they contended resulted in them getting into financial difficulties as they were forced to borrow the demanded amount from a lender and at exorbitant interest rates.

7. It was further the applicants’ case that the accrual of the arrears in principal and interest was contributed by the negligence of the defunct Nairobi City Council and its successor, the respondent, in its handling of records including the file of the aforesaid property, causing the same to go missing or get lost and delaying in reconstructing a new file, and punishing the applicants with exorbitant arrears of rates and interest thereof for no fault of theirs is unfair and an affront to the rules of natural justice.

8. According to the applicants, the said decision was in contravention of the Constitution on ground that the respondent made the decision without affording the ex parte applicant a fair hearing thus in breach of the tenets of natural justice and in violation of Articles 47 & 50 of the Constitution and had the effect of depriving the ex parte applicants of their property and thus in violation of Article 40 of the Constitution.

9. It was further averred that the same decision of the respondent made on 27th July 2016 was illegal on ground that it was in violation of the express provisions of section 4 of the Fair administrative action Act as it was made without hearing the ex parte applicants and was made in express violation of sections 8, 9, 10, 11 & 15 of the Valuation for Rating Act.

10. In addition it was averred that the same decision was in breach of the principles of Natural Justice on the grounds that the ex parte applicants were not afforded a fair hearing as such the proceedings were biased and violated the applicants’ legitimate expectations.

11. It was submitted on behalf of the ex parte applicants that section 16 of the Rating Act stipulates that the Government or a County Government can levy rates on rateable properties. Further the said section provides that a County Government has powers and rights to demand for rates on rateable property when the same falls due and that when the rates remains unpaid for a period of 30 days, a County Government can levy interests at a rate of 3% per month. However, the Act provides that the amount demanded as penalties and interests should not at any time be higher than the amount due. It is therefore follows that the Rating Act applies the duplum rule applied in banking terms.

12. It was submitted that Part II of the Valuation for Rating Act provides that a County Government must prepare a valuation roll, which must be notified to the owners of rateable owners, so that they may consent to it or object to it. Article 47 of the Constitution of Kenya stipulates that a person must be subjected to administrative processes that are fair, impartial and expeditious. Further, section 4 of the Fair Administrative Action Act provides that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision prior and adequate notice of the nature and reasons for the proposed administrative action; an opportunity to be heard and to make representations in that regard; notice of a right to a review or internal appeal against an administrative decision, where applicable; a statement of reasons; notice of the right to legal representation, where applicable; notice of the right to cross-examine or where applicable; or information, materials and evidence to be relied upon in making the decision or taking the administrative action.

13. The applicants further relied on Article 50 of the Constitution of Kenya, which stipulates that every person must be afforded a fair hearing, which hearing must comply with the principles of Natural Justice. To the applicants Natural Justice is the inherent entitlement which demands that all human beings in any dealings which might adversely affect their rights must be treated fairly. In this respect the applicants relied on Ridge vs. Baldwin and Onyango Oloo vs. Attorney General [1986-1989] EA 456.

14. To the applicants, what is envisaged by Article 50 is not necessarily a suspect in a trial but is any person whose rights are to be adjudicated upon through a process and who stand to face some sort of consequences after the process, such persons are like the ex parte- applicants whose property was on the verge of being lost as a result of the respondent’s variation of rates on their property. They relied on Stephen Nendela vs. County Assembly of Bungoma (2014) eKLR in which the court stated inter alia that;

“……although Article 50 uses the term an accused person, I am of the view and so hold that an accused person in this case does not denote or refer to a person accused in a criminal trial only but also to any person accused of any allegations which if proved against him the consequences would be prejudicial to him……”

15. To the applicants, a decision by an administrative body, the respondent included must be reasonable and must not be rash or abrupt as it may frustrate the citizens’ legitimate expectations and may be termed as oppressive and unfair and supported this submission by the holding in Keroche Industries Limited vs. Kenya Revenue Authority & 5 OthersNairobi, HCMA No 743 of 2006 [2007] KLR 240. They contended that every entity, the respondents included undertaking an administrative action, must adhere to the principles of fairness as enshrined under Article 47 of the Constitution and the Fair Administrative Action Act.

16. The ex parte applicants averred that in the instant case it is evident that the rates payable on the suit property were increased by the respondent from Kshs10,465. 00 in 1997 to Kshs 27,370. 00 in 2016 and that Kshs 842,172. 00 demanded as penalties and interests exceeded 3 percent interests of the amount due and it was more than what was due. In their view, were it not for the irregularity and the respondent’s negligence notwithstanding, the amount payable on the property as rates, ought to have been Kshs 270,415. 60(being Kshs198,835. 00 for the 19 years rates at the rate of Kshs 10,465. 00 and Kshs 71,580. 60 being 3 percent interest per month for 19 years). They also contended that it is clear that the variation was without the preparation and the advertisement of the valuation Roll, a fact that was never controverted by the respondent, as such the ex-pate applicant did not get an opportunity to consent or object to it as such their right to a fair administrative action as enshrined in Article 47 of the constitution and section 4 of the Fair Administrative Action Act was violated. It was their case that the non-preparation and advertisement of the valuation roll and the subsequent demand dated 27th July 2017 of rates that were varied in secrecy, violated the ex parte applicants’ right to a fair hearing as enshrined in Article 50 of the Constitution.

17. It was submitted that the respondent frustrated the legitimate expectations of the ex parte applicants when they misplaced the property file and when the applicants applied for a waiver, they were slapped with an exorbitant demand to be paid within four (4) days. Accordingly, the variation of the rates payable on the suit property was done in violation of the express provisions of the Rating Act and Valuation for Rating Act as well as section 4 of the Fair Administrative Act and therefore tainted with illegality.

18. According to the applicants, the law presupposes a situation where a County Government like the respondent, prepares a valuation roll and advertises it for owners to consent or object to it, as such failure to prepare a valuation roll and advertise it will automatically negate the invocation of the jurisdiction of the Valuation Court. It was therefore submitted that since the respondents did not grant the ex parte applicants an opportunity to consent or object to the variation, the said variation of rates violated the ex parte applicants’ right to be subjected to a fair administrative action and the right to fair hearing as guaranteed under Articles 47 and 50 of the Constitution respectively, as such the said Variation and the subsequent demand of 27th July 2016 was unconstitutional, illegal ,unreasonable and in breach of Natural justice and the legitimate expectations of the ex parte applicants.

19. The Applicants cited Article 191 of the Constitution of Kenya which stipulates that a National Statute providing for a matter of national importance and which requires uniformity across the county will prevail over a County Assembly Statute. In the applicants’ view, the Rating Act and the Valuation for Rating Act are national statutes providing for valuation of rates and payments of rates, which matters are of national importance and the procedure of conducting the same ought to have uniformity across the county. It was therefore submitted that the provisions of the Rating Act and Valuation for Rating Act supersede, the respondent’s Finance Act of 2015. Though the Exparte applicants are not challenging the respondent’s authority to levy rates as stipulated in the Respondent’s County Finance Act of 2015, they challenged the variation of rates in secrecy and without following the due process of Law.

20. The applicants therefore submitted that the application herein dated 14th February 2017 is merited and the prayed for the orders sought.

Respondent’s Case

21. The application was opposed by the Respondent.

22. According to it, section 17 of the Rating Act provides that:

If, after the time fixed for the payment of any rate, any person fails to pay any such rate due from him and any interest on any such unpaid rate as provided in section 16 of this Act, the rating authority may cause a written demand to be made upon such person to pay, within fourteen days after service thereof on him, the rate due by such person and interest thereon calculated in accordance with section 16(3) of this Act which demand shall be in the appropriate form in the Second Schedule.

23. Based on legal advice the Respondent averred that section 2 of the Rating Act states that:

“the rating authority” means— (a) in respect of a municipality and any local council area situate therein, the municipal council thereof; (b) in respect of a county and any urban, area or local council situate therein, the county council thereof; (c) in respect of a township, the town council thereof;

24. The Respondent therefore averred that based on the provisions above it has the authority to enforce the payments of rates and interest against the rate payer who has defaulted in payment and it enforces this payments of rates by sending written demand notes to the rate payer to enable the applicant make payments within the specified time of which if the ratepayer does not then the respondents may institute proceedings to recover these rates.

25. The Respondent also referred to section 17(2) of the Rating Act.

26. The respondent averred that it served the applicants with the written demand requesting them to make these payments, within the required specified time of which if they did not act there upon then the Respondent had a right to institute proceeding to recover the same. According to the Respondent, section 4 of the Fair Administrative Act provides that a person is to be given a notice by the administrative body before the proposed administrative action is taken by the body. In the Respondent’s view, it adhered to the rules as provided in the Rating Act and the Fair Administrative Act by giving the applicant a notice of having unpaid rates and demanding the same to be paid through a demand note dated 27th July, 2016.

27. The Respondent denied that the applicants have not been able to pay rates since 1997 hence they are in default of payment of the required rates which the respondent demanded them to pay through the demand note.

28. The Respondent averred that the first approach in solving this matter before this court was to go to subordinate court of the first class which the applicant did not go and address their grievances before they could embark on making the payments. To the Respondent section 17(2) of the Rating Act is provided to enable both the applicant and the respondent to canvass issues arising of default of payment of rates and therefore the applicant should have approached the subordinate court to complain about the rates demanded from them by the respondent.

29. With respect to the allegations that the respondent violated section 8,9,10,11 and 15 of the Valuation for Rating Act by arriving at amount secretly and without disclosure, the Respondent averred that the Respondent’s right to levy land rates now derives directly from the Constitution of Kenya, 2010, not from the Valuation for Rating Act (Cap 266) Laws of Kenya and the Rating Act (Cap 267) Laws of Kenya. Therefore the Respondent is constitutionally mandated to levy property rates in terms of legislation passed by its County Assembly, which in this case is the Nairobi City County Finance Act, 2015,the current applicable law in levying of property rates.

30. It was contended that there is an elaborate procedure for the enactment of county legislation with public participation playing a pivotal role and there was adequate public participation in the enactment of the Nairobi County Finance Act, 2015 which also addressed the issue of increase in the land rates for properties under the jurisdiction of the respondent.

31. It was averred that the Rating Act and the Valuation for Rating Act must be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them into conformity with the Constitution. For the said legislation to conform to the Constitution, it was averred that they must be interpreted in a manner that gives recognition to the principle of devolution including the independence of the devolved governments. Under Article 185 the legislative authority of a county is vested in, and exercised by, its county assembly and the a county assembly is empowered 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. Under Article 209(1)(a) of the Constitution a county is empowered to impose property rate. In support of its case the Respondent relied on Republic vs. Nairobi City County Ex-Parte Pius Omollo & 6 Others [2015] eKLR.

32. According to the Respondent, it is clear that it is the Nairobi City County Finance that dictates the rates to be charged on properties within the jurisdiction of the respondent and as it is, the rates to be charged on the applicant’s property would be 34% of the unimproved site value thus making the annual rates to be Kshs.27,370. 00.

33. On the authority of Livingstone Kunini Ntutu vs. Minister for Lands & 4 others [2014] eKLRit was averred that the order of Mandamus claimed by the applicant to compel the respondent to refund Kshs.847,172. 00 to the applicant being amount illegally and irregularly demanded by the respondent cannot stand as the decision was made and the applicant acted upon it thus making the claim to be overtaken with events of the applicant paying the amount. With respect to the prayer for an order of certiorari, it was contended that the respondent has not acted in excess of their jurisdiction, as it is mandated under the Constitution and has the authority to levy tax which it did as provided under the Nairobi City County Finance Act.

Determination

34. I have considered the issues raised in this application. The first issue for determination is whether there is an alternative remedy to the exercise of this Court’s judicial review jurisdiction.

35. In Republic vs. National Environment Management Authority [2011] eKLR, the Court of Appeal held that:

“The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal process, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it. – see for example R v BIRMINGHAM CITY COUNCIL, ex parte FERRERO LTD case. The Learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute with respect we agree with the judge.”

36. However the law is clear that where the so called alternative legal remedy or redress is less convenient, beneficial and effectual this Court will nor shirk from its constitutional duty to ensure justice is done. As to whether there exist an effective alternative remedy section section 17(2) of the Rating Act which states that:

If any person who has had such demand served upon him makes default, the rating authority may take proceedings in a subordinate court of the first class to secure the payment of such rate and interest in the manner hereinafter Prescribed.

37. The side-note to the said section 17 is “enforcement of payment of rate”. From the reading of both the side note and the section itself it is clear that the provision only deals with the powers of the enforcement of the payment of the rate. To interpret the same to also apply to the power to bar the Respondent from enforcing the payment of rate would be to subvert the legislative intent. Accordingly, it is my view that section 17(2) cannot be invoked to bar a ratepayer from invoking this Court’s jurisdiction.

38. It is clear that both the Rating Act and the Valuation for Rating Act were pieces of legislation which were in force before the effective date of the Constitution of Kenya, 2010. Section 7 of the Transitional and Consequential Provisions of the Constitution of Kenya states that:

All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

39. Article 191 of the Constitution provides:

(1) This Article applies to conflicts between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government.

(2) National legislation prevails over county legislation if—

(a) the national legislation applies uniformly throughout Kenya and any of the conditions specified in clause (3) is satisfied; or

(b) the national legislation is aimed at preventing unreasonable action by a county that—

(i) is prejudicial to the economic, health or security interests of Kenya or another county; or

(ii) impedes the implementation of national economic policy.

(3) The following are the conditions referred to in clause (2)

(a) the national legislation provides for a matter that cannot be regulated effectively by legislation enacted by the individual

counties;

(b) the national legislation provides for a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by

establishing—

(i) norms and standards; or

(ii) national policies; or

(c) the national legislation is necessary for—

(i) the maintenance of national security;

(ii) the maintenance of economic unity;

(iii) the protection of the common market in respect of the mobility of goods, services, capital and labour;

(iv) the promotion of economic activities across county boundaries;

(v) the promotion of equal opportunity or equal access to government services; or

(vi) the protection of the environment.

(4) County legislation prevails over national legislation if neitherof the circumstances contemplated in clause (2) apply.

(5) In considering an apparent conflict between legislation of different levels of government, a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict.

(6) A decision by a court that a provision of legislation of one level of government prevails over a provision of legislation of another level of government does not invalidate the other provision, but the other provision is inoperative to the extent of the inconsistency.

40. Article 259 of the Constitution defines “national legislation” as meaning:

“an Act of Parliament, or a law made under authority conferred by an Act of Parliament”.

41. “County legislation” on the other hand is defined by the same provision as:

“a law made by a county government or under authority conferred by a county Assembly”.

42. From the foregoing it is clear that whereas Nairobi City County Finance Act, 2015is a county legislation, the Valuation for Rating Act (Cap 266)andthe Rating Act (Cap 267)are clearly national legislation. That there is a conflict between the county legislation and the national legislation with regard to the manner in which rates are to be imposed within the Nairobi County is not in doubt. If there had been no such conflict these proceedings would have been rendered unnecessary. Under Article 191 aforesaid the first condition for the national legislation to override county legislation is that the national legislation must apply uniformly throughout Kenya and further that the provisions of Article 191(3) must have been fulfilled in that firstly, the national legislation must provide for a matter that cannot be regulated effectively by legislation enacted by the individual counties; secondly, the national legislation provides for a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing norms and standards or national policies; and thirdly, the national legislation must be necessary for the maintenance of national security; the maintenance of economic unity; the protection of the common market in respect of the mobility of goods, services, capital and labour; the promotion of economic activities across county boundaries; the promotion of equal opportunity or equal access to government services; or the protection of the environment.

43. Under the Rating Act “rating authority” is defined in section 2 thereof to encompass three kinds of local authorities. Section 5 thereof provides for alternative methods of area rating. What comes out clearly from the foregoing is that even before the devolved system of government came into existence by the promulgation of the Constitution of Kenya, 2010, there was no uniform rate in the Country. It follows that the Rating Act cannot be said to apply uniformly throughout Kenya when it comes to the rates payable by the property owners. Accordingly, Article 191(2)(a) cannot be invoked in order for the Rating Act to supersede the Nairobi County Finance Act, 2015.

44. The next provision for consideration is Article 191(2) and that is whether the Rating Act is aimed at preventing unreasonable action by a county that is prejudicial to the economic, health or security interests of Kenya or another county; or impedes the implementation of national economic policy. The Rating Act, is expressed in its preamble to be:

An Act of Parliament to provide for the imposition of rates on land and buildings in Kenya; to amend the law relating to valuation and rating in Kenya; and for purposes connected therewith and incidental thereto.

45. It is clear that the Rating Act is an enabling Act. It is neither restrictive in its purpose nor regulatory on the powers of the County Assemblies to impose rates. In my view, it is meant to enable the County Assemblies collect funds necessary for them to meet their obligations of providing services to the residents of the County. In other words it is not aimed at preventing unreasonable action by a county that is prejudicial to the economic, health or security interests of Kenya or another county; or impedes the implementation of national economic policy. Accordingly, it is my view and I so hold that the Rating Act cannot supersede the provisions of a County legislation in the event of a conflict therewith. This decision is informed by the requirement under Article 191(5) of the Constitution for the Court to “prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict”. I must hasten to add that the mere fact that the Court makes a determination on the conflict does not as is stipulated in Article 191(6) of the Constitution “invalidate the other provision, but the other provision is inoperative to the extent of the inconsistency.” Therefore the two national legislation the subject of these proceedings would not, in the event of a conflict, be invalidated but would only be rendered inoperative to the extent of their inconsistency. It follows that there is nothing inherently wrong in referring to other provisions of the same as long as they are not in conflict with the county legislation.

46. The importance of the devolved system of governance was appreciated by the Supreme Court in Speaker of the Senate & Another vs. Hon. Attorney-General & Another & 3 Others Advisory Opinion Reference No. 2 of 2013 [2013] eKLR in which Mutunga, CJ expressed himself as follows:

“The current devolution provisions in Chapter 11 of the new Constitution are a major shift from the fiscal and administrative decentralisation initiatives that preceded it. It encompasses elements of political, administrative and fiscal devolution. There is a vertical and horizontal dispersal of power that puts the exercise of State power in check... Devolution is the core promise of the new Constitution. It reverses the system of control and authority established by the colonial powers and continued by successive Presidents. The large panoply of institutions that play a role in devolution-matters, evidences the central place of devolution in the deconstruction-reconstruction of the Kenyan state...”

47. The learned President of the Supreme Court continued:

“Given Kenya’s history, which shows the central government to have previously starved decentralized units of resources, the extent to which the Constitution endeavours to guarantee a financial lifeline for the devolved units is a reflection of this experience and, more specifically, an insurance against recurrence. Indeed, in practically all its eighteen Chapters, only in Chapter Twelve (on public finance with respect to devolution) does the Constitution express itself in the most precise mathematical language. This is not in vain. It affirms the “constitutional commitment to protect”; and itacknowledges an inherent need to assure sufficient resources for the devolved units... Article 96 of the Constitution represents the raison d'êtreof the Senate as “to protect” devolution.Therefore, when there is even a scintilla of a threat to devolution, and the Senate approaches the Court to exercise its advisory jurisdiction under Article 163 (6) of the Constitution, the Court has a duty to ward off the threat. The Court’s inclination would not be any different if some other State organ approached it. Thus, if the process of devolution is threatened, whether by Parliamentary or other institutional acts, a basis emerges for remedial action by the Courts in general, and by the Supreme Court in particular... It is relevant to consider the range of responsibilities shouldered by these nascent county governments. The Bill of Rights (Chapter 4 of the Constitution) is one of the most progressive and most modern in the world. It not only contains political and civil rights, but also expands the canvas of rights to include cultural, social, and economic rights. Significantly, some of these second-generation rights, such as food, health, environment, and education, fall under the mandate of the county governments, and will thus have to be realized at that level. This means that county governments will require substantial resources, to enable them to deliver on these rights, and fulfil their own constitutional responsibilities…..National values and principles are important anchors of interpretive frameworks of the Constitution, under Article 259 (a). Devolutionis a fundamental principle of the Constitution. It is pivotal to the facilitation of Kenya’s social, economic and political growth, as the historical account clearly indicates. In my view, the constitutional duty imposed on the Supreme Court to promote devolution is not in doubt. The basis of developing rich jurisprudence on devolutioncould not have been more clearly reflected than in the provisions of the Constitution and the Supreme Court Act.”

48. There is an elaborate procedure for the enactment of county legislation with public participation playing a pivotal role therein. This procedure was not available during the tenure of the local authorities as opposed to County Governments. In this scheme of things, to subject the enactment of a county legislation which is otherwise in compliance with the Constitution to the ministerial fiat would be to defeat the letter and the spirit of devolution. As section 7(1) of the Transitional and Consequential Provision of the Constitution of Kenya provides:

All laws in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

49. Accordingly both the Rating Act and the Valuation for Rating Act must be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them into conformity with this Constitution. For the said legislation to conform to the Constitution, they must be interpreted in a manner that gives recognition to the principle of devolution including the independence of the devolved governments. Under Article 185 the legislative authority of a county is vested in, and exercised by, its county assembly and the a county assembly is empowered 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. Under Article 209(1)(a) of the Constitution a county is empowered to impose property rates.

50. However as it was held in Robert N. Gakuru and others –versus- The Governor, Kiambu County and Others, Petition Number 532 of 2013 Consolidated with Petition Numbers 12, 35, 36, 42 and 72 of 2014:

“In my view the spirit of the devolved system of governance in this country was meant to bring services to the people and to ensure equitable sharing of the resources by the people of the Republic of Kenya. It was meant to bring to end the hitherto existing centralised system of governance which was geared towards rewarding the cronies, supporters and court jesters. However the drafters of the Constitution were well aware of the risk of the country being compartmentalised into semi-states with god fathers or war lords as the chief executives. Accordingly, proper safeguards were put into place to ensure that in spite of the devolved system of governance the country remained a one unitary State and was not transformed into a confederacy. Accordingly, in legislating the County Assemblies in the devolved governments must take into account the fact that their devolved units must co-exist with other units and that their actions do not unduly infringe upon the rights of residents of other units as enshrined under the Constitution. Unless this restriction and limitation on the powers of the devolved units is observed there is a risk of some counties being a preserve of a certain class by making life intolerable for certain classes of people hence forcing them out of those counties to other counties where less stringent legislation prevail. In other words devolution was not meant to balkanise the country into fiefdoms.”

51. In other words in performing its functions a county assembly must adhere to the letter and spirit of the Constitution and as was held by Mahomed, Ag. JA in Namibian case of S v Acheson1991 (2) SA 805 (Nm HC) at 813:

“the constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed. It is a mirror reflecting the national soul, the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the constitution must therefore preside and permeate the processes of judicial interpretation and judicial discretion.”

52. Where a County Assembly acts contrary to what is expected, its decision if unmerited is capable of challenge on the ground of arbitrariness. In this case, the applicants contended that the Respondent’s decision of implementing the new rate without adherence to the provisions Constitution and the Fair Administrative Action Act is in contravention of the applicants’ fundamental rights and a negation of the rules of natural justice. Based on the material before me, I am however unable to find that the decision by the Respondent was arbitrary particular since in these proceedings no challenge has been taken to the legality of the Nairobi County Finance Act, 2015.

53. The issues raised in this application were substantially dealt with in Republicvs. Nairobi City County Ex-Parte Pius Omollo & 6 Others [2015] eKLR.

54. With respect to the allegation of the missing file it must be appreciated that judicial review is a constitutional supervision of public authorities involving a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or through a failure for any reason to take into account a relevant matter, or through the taking into account of an irrelevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. While the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies, it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence. See Reid vs. Secretary of State for Scotland [1999] 2 AC 512.

55. For this Court to embark on an inquiry as to whether the file went missing or not would be an invitation to stray into the merits of the case.

56. Having considered all the issues raised before me in the instant application, I find no merit therein.

Order

57. In the result the Notice of Motion dated 14th February, 2017 fails and is hereby dismissed with costs.

58. It is so ordered.

Dated at Nairobi this 14th day of July, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Chege Kamau for the applicants

CA Mwangi