[2005] KEHC 2355 (KLR)
The court found that the appellant was operating a medical facility, school, and mortuary without a valid business permit as required by section 163 of the Local Government Act. The appellant's claim that the institution was an NGO did not exempt him from the requirement to obtain a permit, as there was no evidence...
Source-derived case information.
- Citation
- [2005] KEHC 2355 (KLR)
- Parties
- Appellant: Robert Osano; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 154 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- K Bauni
- Legal Topics
- Business Licensing, Local Authority Regulation, Ngo Exemptions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Osano
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant operated a business without a valid licence contrary to section 163 of the Local Government Act.
- 2 Whether the appellant's institution qualified for exemption from licensing as an NGO or self-help group.
Ratio Decidendi
The court found that the appellant was operating a medical facility, school, and mortuary without a valid business permit as required by section 163 of the Local Government Act. The appellant's claim that the institution was an NGO did not exempt him from the requirement to obtain a permit, as there was no evidence of an exemption having been sought or granted by the council. The court accepted the prosecution's evidence that the appellant was in charge of the operations and that the facilities were not run for the community or under the auspices of a recognized NGO for exemption purposes. The magistrate's findings were upheld, and the appeal was dismissed for lack of merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII Criminal Appeal 154 of 2003
(From original conviction and sentence of the SRM’s court at Homa Bay in criminal case No. 12 of 2001. )
ROBERT OSANO ……………….……………………………………. APPELLANT VERSUS REPUBLIC …………………………………………………………… RESPONDENT
JUDGMENT:
The appellant was convicted by Senior Resident Magistrate Homa Bay for the offence of operating a business without a licence contrary to s.163 of the Local Government Act.
Particulars were that on 25th October 2001 at were he was found operating a private school and private hospital without a single business permit contrary to s.163 of the Act.
Prosecution evidence was that on 25. 10. 01 Dickson Martin Jaoko (PW1) a Revenue officer with Homa Bay council visited Ndhiwa market. He was with George Mango Ochanda (PW2) an enforcement officer.They found the appellant operating a secondary school, and a clinic with wards, outpatient wing and a mortuary. He had no permit from the council. He was therefore charged and bonded to appear in court.
In defence the appellant stated that he was the director of Institute for rural Development an N.G.O. situated in Ndhiwa. It was found in 1971 and registered as a self help group but later was registered as a private company.In 1993 it was registered as an N.G.O. He said it was not a profit making body and do not require a business permit. He admitted that they provided Health facilities and a mortuary. He said they used to run a school but it was closed in the year 2001. He said he was not the owner of the institute.
There was no dispute that the appellant was running a medical facility though he said it belonged to an N.G.O. However the evidence of PW1 was very candid. He said he found appellant operating a school, a clinic and a mortuary. He talked to the appellant. He had talked to him about the licence even before that. He said the school was not for the community. There was nothing to show that the hospital was run by a N.G.O. If this was so they should have sought an exemption from the council from paying licence. A N.G.O. could not have set up a community hospital and school without the county council’s knowledge. The appellant was the one found running the two institutes as PW1 testified. True he could have registered as N.G.O. but it was not the N.G.O. running the institute. The magistrate therefore reached a proper finding that the appellant had not paid for the permit. He believed the evidence of PW1 and there is nothing to show that PW1 did not tell the truth.
In the circumstances the appeal has no merit. It is dismissed with costs.
Dated 4th May 2005
KABURU BAUNI
JUDGE
Cc Auma
Mr. Kemo for state
Appellant and counsel absent
KABURU BAUNI
JUDGE