https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12881

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E189 OF 2021** **RURAL PRIVATE HOSPITALS** **ASSOCIATION OF KENYA (RUPHA)…............................... PETITIONER** **-VERSUS-** **MOMBASA COUNTY .......................................................1ST RESPONDENT** **KWALE COUNTY........................................................... 2ND RESPONDENT** **KILIFI COUNTY ............................................................ 3RD RESPONDENT** **TANA RIVER COUNTY ................................................ 4TH RESPONDENT** **LAMU COUNTY ............................................................. 5TH RESPONDENT** **TAITA-TAVETA COUNTY .......................................... 6TH RESPONDENT** **GARISSA COUNTY .........................................................7TH RESPONDENT** **WAJIR COUNTY ............................................................ 8TH RESPONDENT** **MANDERA COUNTY .................................................... 9TH RESPONDENT** **MARSABIT COUNTY ..................................................10TH RESPONDENT** **ISIOLO COUNTY ...........................................................11TH RESPONDENT** **MERU COUNTY ............................................................ 12TH RESPONDENT** **THARAKA NITHI COUNTY ....................................... 13TH RESPONDENT** **EMBU COUNTY ............................................................ 14TH RESPONDENT** **KITUI COUNTY ............................................................ 15TH RESPONDENT** **MACHAKOS COUNTY ................................................ 16TH RESPONDENT** **MAKUENI COUNTY .................................................... 17TH RESPONDENT** **NYANDARUA COUNTY .............................................. 18TH RESPONDENT** **NYERI COUNTY ........................................................... 19TH RESPONDENT** **KIRINYAGA COUNTY ................................................ 20TH RESPONDENT** **MURANG'A COUNTY ....................................................21st RESPONDENT** **KIAMBU COUNTY ....................................................... 22ND RESPONDENT** **TURKANA COUNTY .................................................... 23RD RESPONDENT** **WEST POKOT COUNTY ............................................. 24TH RESPONDENT** **SAMBURU COUNTY .................................................... 25TH RESPONDENT** **TRANS-NZOIA COUNTY ............................................ 26TH RESPONDENT** **UASIN GISHU COUNTY .............................................. 27TH RESPONDENT** **ELGEYO MARAKWET COUNTY ............................. 28TH RESPONDENT** **NANDI COUNTY .......................................................... 29TH RESPONDENT** **BARINGO COUNTY ..................................................... 30TH RESPONDENT** **LAIKIPIA COUNTY ...................................................... 31ST RESPONDENT** **NAKURU COUNTY ....................................................... 32ND RESPONDENT** **NAROK COUNTY ......................................................... 33RD RESPONDENT** **KAJIADO COUNTY ...................................................... 34TH RESPONDENT** **KERICHO COUNTY ..................................................... 35TH RESPONDENT** **BOMET COUNTY ......................................................... 36 TH RESPONDENT** **KAKAMEGA COUNTY ................................................ 37TH RESPONDENT** **VIHIGA COUNTY ......................................................... 38TH RESPONDENT** **BUNGOMA COUNTY ................................................... 39TH RESPONDENT** **BUSIA COUNTY ........................................................... 40TH RESPONDENT** **SIAYA COUNTY ............................................................ 41ST RESPONDENT** **KISUMU COUNTY ........................................................ 42ND RESPONDENT** **HOMABAY COUNTY .................................................. 43RD RESPONDENT** **MIGORI COUNTY ....................................................... 44TH RESPONDENT** **KISII COUNTY .............................................................. 45TH RESPONDENT** **NYAMIRA COUNTY .................................................... 46TH RESPONDENT** **NAIROBI CITY COUNTY ........................................... 47TH RESPONDENT** **JUDGMENT** **Introduction** 1. **The Petitioner**, Rural Private Hospitals Association of Kenya (RUPHA), describes itself as an association registered under *Section 10 of the Societies Act (Cap. 108*), and that it represents various privately owned medical centres, outpatient clinics, nursing homes and hospitals operating across the 47 counties of Kenya. 2. **The Respondents** are the 47 County Governments of the Republic of Kenya, established under *Article 176 (1) of the Constitution* and *the County Governments Act*, responsible for local governance, county legislation and revenue collection within their respective territorial boundaries. 3. The Petitioner filed this Petition dated 29th April, 2021, challenging the constitutionality of single business permit fees levied on its members operating within the 47 Counties by the respective 47 County Governments. 4. The Petitioner asserts that its members are healthcare professionals governed under specific national legislation namely- the ***Medical Practitioners and Dentists Act, the Clinical Officers (Training, Registration and Licensing) Act, the Nurses Act andthat they are regulated by their respective national councils being (the Kenya Medical Practitioners and Dentists Council, the Clinical Officers Council,*** and ***the Nursing Council of Kenya).*** That these national regulatory bodies inspect, register and issue annual practicing licenses to the Petitioner's members upon payment of prescribed fees. RUPHA contends that through their respective Finance Acts, the County Governments impermissibly attempt to regulate medical professionals by forcing them to acquire single business permits. **The Petitioner's Case** 1. In its Petition dated **29th April 2021** and is supported by the sworn affidavit of Brian Lishenga on the even date, the Petitioner seeks the following reliefs: 2. ***A DECLARATION that the Respondents’ purported acts of imposing single business permit fees or any other fee or levy against members of the Petitioner are illegal, discriminatory, unconstitutional and invalid.*** 3. ***A DECLARATION that the professional practice of member of the Petitioner is exclusively regulated under the Medical Practitioners and Dentists Act (Cap. 253), the Clinical Officers (Training, Registration and Licensing) Act No. 20 of 2017 and The Nurses Act.*** 4. ***A DECLARATION that the Respondents’ acts purporting to levy single business licence fees against members of the Petitioner constitutes a violation of their fundamental rights and freedoms.*** 5. ***An ORDER of prohibition does hereby issue to permanently prohibit the Respondents from imposing single business licence fees or any other levies against members of the Petitioner.*** 6. ***The Respondents do bear the costs of the Petition.*** 7. The Deponent asserts that the Petitioner’s members are statutory medical entities regulated under The Medical Practitioners and Dentists Act Cap. 253, The Clinical Officers (Training, Registration and Licensing) Act and The Nurses Act and that the licensing and oversight are executed by national bodies, including the Kenya Medical Practitioners and Dentists Council (KMPDC), which issue annual trading and operational licenses. 8. The Petitioner claims that despite national regulation, the Respondent County Governments have routinely enacted County Finance Acts to demand Single Business Permit (SBP) fees and associated levies from private medical facilities. The Petitioner asserts that County Governments have resorted to harassing, intimidating, arresting and criminally prosecuting its members for instance, the cases in Embu, Kajiado, Garissa, Kakamega and have resorted to impounding medical equipment for failure to pay SBP fees. 9. It is averred that under the ***Fourth Schedule, Part II, Paragraph 7(b): of the Constitution****,* there is an explicit limitation to county authority over trade development and licensing by imposing the exception: *“excluding regulation of professions.”* It is asserted that levying Single Business Permits (SBP) on medical facilities constitutes an illegal attempt to regulate a national profession. 10. The deponent avers that **Article 191(2) of the Constitution** provides for national legislation governing medical practice in a uniform manner across Kenya and that it prevails over conflicting County Finance Acts. That under **Article 209(2) & (5**), county revenue-raising powers must not be exercised in a manner that prejudices national mobility of health services, economic policies, or constitutional rights. 11. **The Petitioner avers** that **t**he Respondents’ actions infringe upon constitutional guarantees, including equality before the law under ***Article 27(1),*** protection of property under ***Article 40*** and the realization of human dignity and social justice under ***Articles 19(2), 21(1)***. 12. The deponent refers to the cases of ***Republic v. County Assembly of Nakuru & 2 Others Ex-Parte Dr. John Njenga Ngethe & 117 Others (JR No. 14 of 2014)*** stating thatCertiorari and Prohibition orders were issued quashing the levying of SBPs on medical professionals; and ***Medina Hospitals Ltd & 5 Others v. County Government of Garissa (2015 eKLR)****,* where the court is said to have held that counties lack jurisdiction to levy SBPs on medical practice facilities. **Responses** 1. In response to the Petition, the Respondents filed several documents being a Notice of Preliminary Objection, Grounds of Opposition and Replying Affidavits. 2. **Mombasa County, the 1st Respondent** herein filed **Grounds of Opposition** dated **12th November 2024**, opposing the main Petition and the accompanying Application. The 1st Respondent urged the Court to strike out or dismiss the entire Petition with costs on the grounds that the issues raised are *res judicata* having already been conclusively ruled upon in ***Nakuru JR No. 14 of 2014 Republic v County Assembly of Nakuru and 2 Others ex parte John Njenga and 117 others***. 3. The County of Mombasa asserts that the Petition lacks specificity, relies on pre-emptive presumptions and fails to cite the specific County Finance Act provisions alleged to be unconstitutional or in conflict with national medical statutes. It is also asserted that the Petitioner has not disclosed a valid cause of action or presented evidence linking Mombasa County to the alleged violations. The 1st Respondent argues that the Petitioner approached the Court with unclean hands through misrepresented facts, making the Petition incompetent, defective and an abuse of the court process. 4. **Kilifi County, the 3rd Respondent** also filed **Grounds of Opposition** dated **1st October 2024** seeking the outright dismissal of the Petition, asserting its legal right to levy single business permits and trade licenses on private healthcare facilities under ***Part I Schedule Two of the County Government of Kilifi Finance Act, 2021.*** 5. It is contended that constitutionally, ***Paragraph 7(b), Part 2 of the Fourth Schedule to the Constitution*** explicitly empowers county governments to handle trade development and regulation including trade licensing while excluding only the regulation of professions. It is further asserted that trade licensing is a service function rendered by the county, entitling it under ***Articles 185(2) and 209(4) of the Constitution*** to impose and recover business permit fees from commercial premises, including private medical institutions. 6. In its Grounds of Opposition, the 3rd Respondent contends that the ***Trade Licensing Act Cap 497*** whose ***2nd Schedule*** previously exempted medical professionals from payment of Single Business Permits, was officially repealed by the ***Licensing Law (Repeals Amendment) Act No. 17 of 2006 at Section 112*** and further emphasizes that all statutes carry a legal presumption of constitutionality, which the Petitioner is said to have failed to displace; and that granting the requested orders would upset the balance of convenience. 7. The 3rd Respondent asserts that the Petition fails to disclose a valid cause of action or to present evidence linking Kilifi County to the alleged constitutional violations. Further, that the petitioner relies on pre-emptive presumptions and presents generalized allegations against all 47 counties without providing particulars of the specific county finance laws being challenged or the precise loss and damage suffered by the Petitioner’s members. 8. The 3rd Respondent states that it was not a party to the previous judicial review cases cited in the Petition and was never notified of them. Referencing *Nairobi Constitutional Petition No. 97 of 2016 (Kenya Pharmaceutical Association v. Nairobi City County & Others)*, the 3rd Respondent maintains that the petition is speculative, hypothetical and *res judicata*, as the core issues regarding trade permit demands have already been conclusively determined by the court. That further, the petition lacks specificity regarding the 47 individual county finance acts and presents no evidence of actual loss or violation by the 3rd Respondent. 9. Finally, the 3rd Respondent states that the Petitioner will not suffer irreparable loss if the Petition is dismissed, as any alleged financial prejudice can be adequately compensated through damages. That the Petition misrepresents facts and provisions of the law, making it misguided, fatally defective, frivolous and an abuse of the court process. Consequently, the 3RD Respondent urges the Court to dismiss the Petition with costs. 10. **Meru County**, **the 12th Respondent** filed **Grounds of Opposition** dated **14th March 2025** seeking a dismissal of the Petition with costs on grounds that the petition fails to disclose a *prima facie* case and does not meet the necessary constitutional threshold, rendering it incompetent, misconceived and an abuse of court process. 11. The 12th Respondent highlights that the petition improperly attempts to deter county governments from executing their legitimate mandates bestowed upon them by the Constitution and the County Governments Act to collect revenues. It contends that the Petition improperly seeks to deter the county from executing its legitimate constitutional and statutory mandate. The 12th Respondent emphasizes that the Petitioner’s pleadings suffer from a critical lack of clarity and specificity. In particular, that the Petitioner fails to cite any express provision within the Medical Practitioners and Dentists Act, the Clinical Officers (Training, Registration and Licensing) Act, or the Nurses Act that allegedly conflicts with the local revenue and finance legislation enacted by the counties. 12. Further contention is that rather than presenting precise legal conflicts, the Petitioner engages in a broad, generalized condemnation of the Finance Acts passed across all 47 counties without articulating any specific, individual claim or violation attributable directly to the 12th Respondent. 13. Finally, the 12th Respondent states that there is a clear legal distinction between professional oversight and local taxation, affirming that the collection of trade license fees from commercial business premises does not constitute or amount to the regulation of a profession. For these reasons, the 12th Respondent prays that the Court dismisses the Petition in its entirety with costs. 14. **The County Government of Nyandarua the 18th Respondent** filed their **Grounds of Opposition** dated **29th June 2023** and primarily challenging the Petitioner’s *locus standi* to institute court proceedings on behalf of its members without demonstrating express written authority or permission from them. 15. Nyandarua County asserts that the Petition discloses no cause of action, as the Petitioner failed to produce any evidence, finance bill clauses, or specific proof showing that Nyandarua County has imposed illegal business permit fees or infringed upon constitutional rights. 16. It is their contention that the *Trade Licensing Act (Cap 497)* relied upon by the Petitioner was repealed, leaving no statutory exemption against local trade licenses. Citing revenue-raising powers under *Article 209(3), Part 2 of the 4th Schedule of the Constitution* and the decision in ***Nairobi Constitutional Petition No. 97 of 2016 Kenya Pharmaceutical Association v Nairobi City County and Others,*** the 18th Respondent contends the matter is *res judicata* and should be dismissed with costs to them. 17. **The 19th Respondent Nyeri County** filed its r**eplying Affidavit** sworn by County Secretary Benjamin Wachira Gachichio on dated **16th May 2024**. The deponent states that the Petition is fatally incompetent for failing to adhere to the constitutional pleading precision standards established in ***Anarita Karimi Njeru v. Republi,c*** specifically, because the Petitioner advances generalized allegations against all the 47 counties and alludes to the unconstitutionality of the county Finance Acts without identifying specific sections of Nyeri’s Finance Act or national medical laws that conflict. 18. The 19th Respondent’s deponent states that the Petitioner challenges the county governments’ mandate to raise revenue through the Single Business Permits but that while professional practice fees regulate professional bodies, private medical facilities also engage in commercial trade by selling and distributing pharmaceutical products, which legally subjects their premises to county single business permits. 19. Citing the case of ***Kenya Pharmaceutical Association v. Nairobi City County & 46 Others (2017) eKLR****, the 19th Respondent* highlights that selling pharmaceuticals is classified as a trade and that exempting private hospitals would violate the constitution and public policy and equal taxation principles under ***Article 201 of the Constitution***. They assert that the entire Petition has been brought in bad faith to aid the Petitioner to evade trade licenses by shielding one entity from paying legally imposed county taxes and jeopardizing the Respondents’ mandate to collect revenue for its citizens’ benefit. 20. **The County Government of Kiambu, the 22nd Respondent** filed its **Grounds of Opposition** dated **19th January 2026** contending that the Petition fails to satisfy the constitutional threshold set out in ***Anarita Karimi Njeru v. Republic*** ***(1976-1980) KLR 1272,*** due to a complete lack of precision regarding alleged rights violations. The 22nd Respondent states that the dispute is administrative and statutory rather than constitutional and that the Petitioner failed to exhaust available statutory dispute resolution mechanisms before approaching the Court. 21. Further contention is thatthe Petition improperly constitutionalizes disputes that are otherwise governed by statute and invites the court to breach the doctrine of separation of powers and judicial restraint by interfering with lawful legislative and executive authority without displacing the legal presumption of statutory constitutionality. That the petition also fails to demonstrate any clear inconsistency with the Constitution. 22. It was asserted that the allegations concerning a lack of public participation are generalized and unsupported by evidence required to prove that the constitutional standard for public participation was breached. 23. It is contended that the reliefs sought are imprecise, legally untenable and incapable of enforcement and it is deposed further that granting the requested reliefs would disrupt public administration, prejudice service delivery and cause administrative paralysis. They urged the dismissal of the Petition with costs for want of merit. 24. **The 23rd Respondent** herein, **Turkana County** filed its **Replying Affidavit** sworn by Ruth Emanikor on **20th September 2023**. She deposes that the Petitioner is registered as a society under the Societies Act and lacks the legal capacity or *locus standi* to sue in its own name or to represent members without explicit authorization. It is further deposed that the Petition fails to plead with constitutional precision, relying instead on vague blanket allegations without specifying any conflicting sections between the national healthcare acts and Turkana’s Finance Act. 25. The deponent explains that county revenue powers ***under Article 209(3) and Part II of the 4th Schedule of the Constitution***, allow business permits to be charged on the commercial premises or shops such as pharmacies and chemists selling drugs, which is separate from individual professional licensing. Additionally, the County points out that the ***Trade Licensing Act (Cap 497)*** granting historical exemptions was repealed, meaning, no statutory exemption exists for the Petitioner to omit paying the Business Permits and trade licences by law. They urge the court to dismiss the suit as an abuse of process with costs. 26. **The 34th Respondent, the County Government of Kajiado** filed its **Replying Affidavit** sworn by CEC Trade, Investments & Enterprise Development Leah N. Marias on **13th February 2024.** The deponent states that the single business permit is not an illegal tax on individual medical professionals, but a lawful charge under ***Article 209(4) of the Constitution*** imposed on business premises and shops which include pharmacies and chemists that sell pharmaceutical products, a fact that the Petitioner failed to disclose to the Court. She highlights that the petition was not brought by medical professionals themselves but by medical facilities and institutions operating commercial enterprises who are not individual professionals. It is further contended that the fee paid by the Petitioner’s members to their respective professional regulatory bodies is a professional levy paid to those regulators and has no correlation with the trading component of the shops selling the pharmaceutical products. 27. The deponent further states that professional fees paid to national regulatory bodies do not cover local trade operations or remove commercial establishments from county revenue jurisdiction. She reiterates that the Finance Act for the County does not attempt to regulate the medical profession. That exempting private hospital shops from trade permits while charging all other traders in the county would be unfairly discriminatory and contrary to public interest. They further state that granting the reliefs would challenge the constitutionality of ***Section 7 (b) of Part 2 of the 4th Schedule of the Constitution***. 28. It is urged that the Petition is unsubstantiated and should be dismissed with costs to the 34th Respondent. 29. **The 37th Respondent, the County Government of Kakamega** filed its **Notice of Preliminary Objection** dated **29th March 2022** and a **Replying Affidavit** sworn by the County Secretary Dr. Lawrence Omuhaka on **19th August 2024**. 30. In the **Notice of Preliminary Objection**, the Applicant/37th Respondent seeks the striking out of the entire Petition on the following grounds: - 31. ***THAT, the Petitioner herein has no capacity to sue on its own name.*** 32. ***THAT, the petitioner lacks the locus standi to institute this Petition and therefore depriving this Honourable Court the jurisdiction to hear and determine this Petition.*** 33. ***THAT, no provision under the Society Act allows a Society to sue or be sued in its own name.*** 34. ***THAT, Section 41(1) of the Societies Act stipulates that a Society can only appear in a suit through an appointed representative acting on its behalf.*** 35. ***THAT, lack of capacity to sue or be sued is a weighty matter that goes to the root of the validity of the proceeding before a court and such a suit is incompetent and proceedings flowing from it are a nullity in law.*** 36. ***THAT, the Court in African Orthodox Church of Kenya v Charles Omuroka & another (2014) stated that:*** ***"I have considered the rival arguments by both counsel on this matter. I have also perused the pleadings and documents filed by the parties herein. The Plaintiff was registered on 5/7/1965 under the Societies Act and issued with Certificate Number 3801. On the other hand, the 2nd Defendant was registered on 5/1/2006 under the same Act (Cap. 108) and issued with Certificate Number 25689. There is no doubt therefore, that both the Plaintiff and the 2nd Defendant as Societies or Associations registered under the Societies Act are not legal entities capable of suing and being sued in their own names. They have no legal capacity to institute proceedings in any court in their own names and cannot maintain such proceedings. They can only sue through Trustees, if they have one, or in the names of their officials in a representative capacity."*** 1. ***THAT, the instant Petition is therefore an abuse of court process, vexatious and frivolous and should be stuck out.*** 2. In its **Replying Affidavit**, **the 37th Respondent** urges the dismissal of the Petition, on grounds that Kakamega County’s revenue-raising authority is constitutionally anchored under ***Article 209(3) and Part 2 of the Fourth Schedule of the Constitution***. 3. The County Secretary deposes that the Petitioner failed to cite any specific section of the Kakamega County Finance Act or demonstrate how it conflicts with national medical statutes, creating no actionable cause against the 37th Respondent. 4. While acknowledging that medicine as a profession is exempt from county trade regulation under ***paragraph 7(b) of the Fourth Schedule***, the 37th Respondent asserts that selling medical items and pharmaceuticals constitutes commercial trade and consequently, shielding medical facilities from trade licensing would violate ***Article 201(b)(i) of the Constitution***regarding the fair sharing of the tax burden, making the Petition an attempt to facilitate tax evasion. 5. It is urged that the Petition is in bad faith, is misconceived, misplaced and an abuse of the court process by seeking to have the Court aid the Petitioners to evade paying lawful trade license fees for activities that do not fall within the realm of the profession. 6. **The 47th Respondent, the Nairobi City County** filed its **Grounds of Opposition** dated **14th March 2025** urging the Court to dismiss the Petition with costs, stating that the Petition fails to disclose a *prima facie* case or meet the requisite threshold for constitutional petitions making it incompetent, misconceived and an abuse of the court process. The Nairobi City County contends that the petition improperly attempts to block the County from executing its constitutional and statutory mandates under the Constitution and the County Government Act. 7. The 47th Respondent emphasizes that the pleadings are vague and unspecific, offering only a blanket condemnation of all 47 county finance acts without citing specific conflicting provisions of The Medical Practitioners and Dentists Act Cap. 253, The Clinical Officers (Training, Registration and Licensing) Act and The Nurses Act against the Finance Acts passed by the 47th Respondent or detailing any direct claim against Nairobi City County. The 47th Respondent reinforces that collecting trade licenses from commercial premises does not constitute regulating a profession. 8. The Notice of Preliminary Objection and the main Petition were canvassed by way of written submissions. **The Petitioner’s Submissions** 1. The Petitioner’s submissions are dated **29th November 2024** in which Counsel for the Petitioner sets out the following issues for determination: 2. *whether imposing single business permit licence fees upon the Petitioner by the Respondents is unconstitutional;* 3. *whether the imposing of single business permit licence fees upon the Petitioner by the Respondents amounts to double taxation;* 4. *Whether the Petitioner warrants grant of the prayers sought; and Who is to bear the costs of the Petition*? 5. On the first issue, Counsel for the Petitioner submits that under ***Article 209(3) of the Constitution***, county governments may only impose taxes authorized by an Act of Parliament and that ***Article 209(5)*** prohibits revenue-raising powers from being exercised in a manner that prejudices national economic policies or economic activities across county boundaries. The Petitioner relies on ***Article 191(2) & (3)*** to show that national statutes prevail over county legislation when uniform national regulation is required. Counsel for the Petitioner highlights that ***Part 2, Paragraph 7(b) of the Fourth Schedule to the Constitution***, explicitly excludes the regulation of professionals from the trade licensing powers allocated to county governments. 6. Counsel relies on ***Republic vs. Nakuru County Assembly & Others, Nakuru HCCC JR No. 14 of 2014,*** in addressing the second issue, where the High Court is said to have established that county governments have no power to pass laws directed at regulating medical practitioners by levying single business permits ***because Clause 7(b) of Part Two of the Fourth Schedule*** specifically excludes professional regulation and ***Medina Hospital Limited & 5 others vs. County Government of Garissa [2015] eKLR*** in which the High Court sitting at Garissa is said to have held that levying additional county licensing fees on medical practitioners already licensed by national bodies like the Medical Practitioners and Dentists Board amounts to double taxation, violating the Constitution irrespective of county revenue-raising mandates. 7. Counsel submits that these county levies infringe upon ***Article 27(1)*** on the right to equality and freedom from discrimination by subjecting medical providers in rural areas to extra burdens not faced by other non-trading professionals and violate ***Article 21(1)*** regarding the state’s obligation to fulfill fundamental rights. 8. Invoking ***Article 23*** of the Constitution on the Court’s power to redress rights violations and referencing ***Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [2022] eKLR*** regarding orders of prohibition against unlawful jurisdiction, the Petitioner’s Counsel submits on the third issue that the Respondents’ actions are *ultra vires* because **paragraph 7 (b) at Part 2 of the 4th Schedule of the Constitution** prohibits the Respondents from regulating the Petitioner’s members who are medical professionals. That accordingly, having established that their actions were unconstitutional, the Court should declare the county levies unconstitutional, invalidate the impugned provisions of the County Finance Acts and award costs to the Petitioner. **The Respondents’ Submissions** 1. **The 1st Respondent**, Mombasa County filed its written Submissions dated **19th June 2024** raising two issues for determination: *Whether the Petition by the Petitioner is merited and the costs of the Application as well as the Petition.* 1. Counsel for the 1st Respondent argues that the Petition is unmeritorious, incompetent, generalized and should be dismissed with costs. Counsel for the 1st Respondent raises the preliminary defense of ***res judicata*** asserting that identical issues were previously settled in ***Nakuru JR No. 14 of 2014: Republic Versus the County Assembly of Nakuru and 2 others Exparte John Njenga and 117 others***. 2. It is contended that the Petition lacks specificity and violates established constitutional pleading standards because the Petitioner herein makes blanket and generalized allegations against all 47 counties without identifying the specific sections or individual County Finance Acts being challenged. 3. On the substantive constitutional question, Counsel submits that ***Article 185*** and ***Article 209(3)(c) of the Constitution*** bestow express legislative authority on County Assemblies to enact Finance Acts imposing trade licenses, service charges and local taxes to fund devolved functions. Counsel contends that imposing single business permits does not amount to regulating a profession, rather, it regulates commercial trade premises operating within the county. 4. Distinguishing pure professional service providers such as lawyers, architects and accountants, Counsel for the 1st Respondent highlights that private medical facilities actively engage in the commercial trade, sale and distribution of pharmaceutical products within their establishments and heavily relies on ***Kenya Pharmaceutical Association & another v Nairobi City County and the 46 other County Governments & another [2017] eKLR***, where the High Court is said to have held that while pharmacy is a profession, operating business premises to sell pharmaceutical products constitutes a trade and paying trade licenses for business premises does not amount to controlling the profession. 5. Refuting the Petitioner’s claims of double taxation, Counsel for the 1st Respondent cites ***Gideon Ndambuki Munyao & others v County Government of Machakos & another [2020] eKLR,*** in which the Court is said to have held that validly enacted county trade licenses do not constitute double taxation when professional fees paid to national boards serve distinct regulatory purposes. Counsel further cites ***Thuku Kiroro & 4 Others vs. County Government of Muranga [2014] eKLR*** to emphasize that courts must interpret the Constitution purposively to encourage county governments to deliver on their devolved mandates rather than curtailing their constitutional revenue-raising efforts. 6. Counsel submits that the Petitioner failed to properly plead its case and invokes the landmark *locus classicus* ***Anarita Karimi Njeru v Republic [1979] eKLR*** in reference to the High Court standard affirmed in ***Mumo Matemu vs Trusted Society of Human Rights case***, which mandates that a party alleging constitutional violations must plead with a high degree of precision the specific rights violated and the exact manner of infringement. 7. Counsel for the Respondent also cites ***Rashid Odhiambo Aloggoh and 245 Others vs. Haco Industries Misc. Appli. 1520 of 1999*** regarding the evidentiary burden on petitioners to prove factual instances of rights violations, and ***Moses Munyendo & 908 Others v Attorney General & Another [2013] eKLR*** for the principle that statutes are presumed constitutional until the burden of proof is discharged. 8. Counsel submits that exempting private health facilities from single business permits would violate public policy and jeopardize devolved public service delivery and terms the Petition as defective, misconceived, scandalous and an abuse of the Court warranting dismissal with costs against the Petitioner. 9. **The 3rd Respondent (Kilifi County)** filed written submissionsdated **26th July 2022**, in support of the 37th Respondent’s **Notice of Preliminary Objection** dated 29th March 2022 raising three issues as follows: *Whether the 3rd Respondent is prevented from charging a single business permit from members of professional bodies such as the Applicants; Whether the Petition is merited; and Who should bear the costs?* 1. Counsel submitted on behalf of the 3rd Respondent that the primary issue raised was whether the Petitioner, Rural Private Hospitals Association of Kenya (RUPHA), possessed the legal capacity (*locus standi*) to institute court proceedings in its own name. Counsel argued that because RUPHA described itself as a society registered under the **Societies Act Cap 108, Laws of Kenya**, it is an unincorporated entity devoid of legal personality. That as an unincorporated association, it lacks corporate status and cannot sue or be sued in its corporate name; instead, that any litigation must be brought by its *bona fide* members, officials, or trustees in a representative capacity under **Order 1 Rule 8 of the Civil Procedure Rules, 2010**. 2. Relying on **Section 41 of the Societies Act, 1968**, Counsel for the 3rd Respondent submitted that a representative appointed by a society is only authorized to act for specific statutory purposes and does not grant the society standing to institute suits in its own name. To support this principle, Counsel extensively cited ***Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969) EA 696*** as cited in ***John Kipkoech Lelei v. Stephen Kipchirchir Meli & 3 Others [2022] eKLR*** to argue that a proper preliminary objection must consist of a pure point of law arising from pleadings that can dispose of the suit; ***Football Kenya Federation v. Kenyan Premier League Limited & 4 Others [2015] eKLR***, which affirmed a consistent line of authorities including ***African Orthodox Church of Kenya v. Rev. Charles Omuroka & Another (2014) eKLR***, ***Matinyani Women Development Group v. Group Four Security Limited (2005) eKLR***, ***Simu Vendors Association v. Town Clerk, City Council of Nairobi (2005) eKLR***, ***Eritrea Orthodox Church v. Wariwax Generation Limited (2007) eKLR***, and ***Living Water Church International v. City Council of Nairobi (2008) eKLR***, holding that incorporated societies cannot sue or be sued in their own names and finally, ***Baskins v. United Mine Workers (1921) 150 Ark. 398***, illustrating the common-law rule that voluntary, unincorporated associations are merely collections of individuals with no distinct legal entity. 3. Counsel further submitted that the Petitioner’s lack of capacity directly divests the Court of jurisdiction. Citing ***Peter Taracha & Another v. Holiness Church & Another [2016] eKLR***, Counsel underscored that suing without legal capacity is a grave jurisdictional defect rendering proceedings a nullity. Additionally, citing ***Robert Nelson Ng’ethe v. Koinange Investment & Development Ltd [2014] eKLR***, where ***Apex International Ltd & Anglo Leasing & Finance International Ltd v. KACC [2012] eKLR*** was referenced and the Supreme Court of Nigeria decision in ***Goodwill & Trust Investments Ltd & Another v. Will & Bush Ltd***), Counsel for the 3rd Respondent contended that proper parties are essential for jurisdiction and proceedings instituted by a non-suable entity are void *ab initio*. Counsel urged that the Preliminary Objection be allowed and the Petition dismissed with costs. 4. **The 3rd Respondent** also filed **written submissions** opposing the main Petition,dated **13th December 2024,** arguing that the single business permit fees imposed under **Part I, Schedule Two of the County Government of Kilifi Finance Act, 2021** do not regulate the medical profession itself, but rather apply to the commercial premises such as private medical centres, outpatient clinics, nursing homes and diagnostic centres, to ensure compliance with health standards under the **Public Health Act**. 5. Counsel for the 3rd Respondent relied on constitutional and legislative provisions granting County Governments fiscal and regulatory powers under ***Article 185 and Article 185(2) of the Constitution of Kenya,*** which empower County Assemblies to enact county laws; ***Article 209(1), Article 209(3)(c),*** and ***Article 209(4) of the Constitution***, which authorize County Governments to impose taxes and service charges, provided they do not prejudice national economic policies; under ***Article 209(5)****;* ***Article 260 of the Constitution***, which defines valid legislation to include laws enacted by a County Assembly and ***Legal Notice 157 of 2013***, which delegates powers to inspect and license medical premises to county governments. 6. Addressing the burden of proof, Counsel for the 3rd Respondent contended that statutes carry a presumption of constitutionality, and the Petitioner failed to demonstrate that the local finance legislation violated the Constitution. In support, Counsel cited ***Law Society of Kenya v. Attorney General & Another [2013] eKLR***, where the High Court affirmed that the onus of establishing statutory unconstitutionality rests entirely on the person challenging the statute. 7. Counsel also cited the South African Constitutional Court decision in ***Doctors for Life International v. Speaker of the National Assembly & Others [2006] ZACC 11*** as referenced in ***LSK v. AG*** regarding constitutional requirements for enacting legislation, asserting that its Finance Act complied fully with proper form and procedure. Furthermore, citing ***Moses Munyendo & 908 Others v. Attorney General & Another [2013] eKLR***, Counsel emphasized that claims of unconstitutionality or lack of public participation must be strictly proven by evidence, which the Petitioner failed to do. 8. On costs, Counsel maintained that costs should follow the event pursuant to **Section 27 of the Civil Procedure Act (Cap 21)**. Citing ***Orix (K) Limited v. Paul Kabeu & 2 Others*** as quoted in ***Cecilia Karuru Ngayu v. Barclays Bank of Kenya & Another [2016] eKLR***), Counsel for the 3rd Respondent argued that a successful party is entitled to costs absent any misconduct or deviant factors, and thus, they prayed that the Petition be dismissed in its entirety with costs awarded to the Respondents. 9. The 12th and 47th Respondents (the County Government of Meru and the Nairobi City County Government respectively), filed joint Submissions dated 14th April 2026. The 12th and the 47th Respondents isolated one issue for determination being: *Whether the Petition meets the threshold of a Constitutional Petition*. 1. Relying on their Grounds of Opposition dated 14th March 2025, the 12th and 47th Respondents submitted that the Petition was incurably defective, lacked constitutional merit and constituted an abuse of the court’s constitutional jurisdiction. They submitted that while the petition was framed as a constitutional challenge regarding property rights under ***Article 40,*** revenue delegation under ***Article 209***, intergovernmental revenue dynamics under ***Article 191(2),*** and general human rights guarantees under ***Articles 19(2), 21(1), 22, 23, 24(2)(a) & (b), 27(1), and 258 of the Constitution***, it was in reality a routine dispute over municipal revenue-raising and licensing administrative law. 2. The 12th and 47th Respondents argue that the Petition failed to satisfy the requisite standard of pleading precision established for constitutional disputes. They relied on the *locus classicus* authority in ***Anarita Karimi Njeru v Republic (1979) eKLR***, which rule was affirmed by the Court of Appeal in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR****.* Counsel submitted that the Petitioner mounted a generic, omnibus attack against all 47 County Governments without identifying any specific unconstitutional decision, act, or county legislation attributable directly to Meru or Nairobi City. 3. They also argued that the Petitioner failed to specify which statutory provisions conflict with which local enactments or how its ***Article 40*** property rights were infringed, thereby creating severe prejudice to the Respondents’ ability to defend themselves. To reinforce this standard, Counsel for the Respondents cited ***Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR***, where the Supreme Court reaffirmed that constitutional petitions must set forth the specific constitutional provisions violated and the exact manner of violation to disclose a *prima facie* case. 4. Lastly, Counsel for the 12th and 47th Respondents argued that the High Court’s constitutional jurisdiction is a forum of last resort that should not be used to bypass regular statutory procedures or dispute resolution channels. They cited ***Speaker of the National Assembly v Karume [2008] eKLR****,* which established that where the Constitution or a specific statute provides a clear procedure or dispute resolution mechanism, that path must be exhausted before invoking constitutional litigation. 5. The 12th and 47th Respondents argued that because the Petitioner’s core complaint concerned single business permit fees under the County Governments Act and county revenue frameworks, the matter ought to have been pursued through established administrative law remedies rather than broad constitutional litigation. Consequently, the 12th and 47th Respondents prayed for the Petition to be dismissed with costs. 6. **The** **13th Respondent** the County Government of Tharaka Nithi filed its s**ubmissions o**n **10th March 2025**. It submits that ***paragraph 7(b) of Part 2 of the Fourth Schedule of the Constitution*** exempts the regulation of professionals from county trade licensing, private health facilities themselves but that the said health facilities do not enjoy a blanket exemption when conducting commercial trading activities. To ground this distinction, Counsel cited ***Republic v Kisii County Assembly & 4 Others Ex Parte John Aboko Kumenda & Another; Kisii County Secretary & 2 Others (Interested Parties) [2021] eKLR,*** where the court is said to have held that medical practitioners practicing their professions were exempt from county levies, but if they engaged in bartering goods or services outside the scope of a profession, they were required to pay the levies, charges, or fees prescribed by County Governments. 7. Counsel for the 13th Respondent argued that enacting the Tharaka Nithi County Finance Act, 2021 to impose a single business license fee on healthcare premises was a lawful exercise of its devolved legislative and revenue-raising powers under ***Article 185*** and ***Article 209 (1), Article 209(3),*** and ***Article 209(4)) of the Constitution of Kenya***. Counsel stressed that the fee levied by professional regulatory councils is an annual practicing certification for an individual professional, whereas the county license fee applies to the commercial facility operating trade within the county. 8. To demonstrate the distinct nature of professional regulation versus local trade licensing, Counsel for the 13th Respondent relied on ***Anne Wanjiru Kingori & 13 Others v Kajiado County Assembly & 7 Others [2017] eKLR****,* which quoted ***Andrew Wasswa Atetwe t/a Kilimanjaro Auctioneers & 21 others v Mombasa County Government & another [2015] eKLR***. 9. On the Petitioner’s claim of double taxation, the 13th Respondent relied on ***Okello & another v National Assembly & 2 others; Shop & Deliver Limited t/a Betika & 7 others (Interested Parties); Kiragu & 2 others (Cross Petitioner) (Constitutional Petition E010 of 2021) [2022] KEHC 3059 (KLR)****,* which cited ***Kenya Pharmaceutical Association & another v Nairobi City County and the 46 other County Governments & another [2017] eKLR***and***Cantonment Board, Poona v Western India Theatres Ltd., AIR 1954 Bom 261***, to explain that levying two distinct levies of different legal natures that is, a professional licensing fee and a local business trade fee, does not constitute double taxation. 10. Finally, the 13th Respondent contended that the petition is *res judicata* under the doctrine defined in ***John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR)***. Counsel for the 13th Respondent pointed out that the exact issues had already been conclusively adjudicated on merit in ***Kenya Pharmaceutical Association & another v Nairobi City County and the 46 other County Governments & another [2017] eKLR***, where the court dismissed the Petition for want of merits. Consequently, the 13th Respondent prayed that the Petition be dismissed with costs. 11. **The** **19th Respondent,** theCounty Government of Nyeri filed **written submissions to the Preliminary Objection** dated 16th **September 2022**, fully supporting the objection raised by the 37th Respondent seeking the ultimate dismissal of the Petition and Application for lack of *locus standi*. 12. Counsel for the 19th Respondent grounded its argument on the principles enunciated in ***Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696*** and asserts that a preliminary objection must consist of a pure point of law capable of disposing of the suit. It was submitted that the Petitioner described itself in paragraph 1 of its Petition as an association registered under the **Societies Act, Cap 108 of the Laws of Kenya.** Relying on ***Islamia Madrassa Society v Zafar Niaz & 8 others* [2021] eKLR, *Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank* Nairobi HCCC No. 4116 of 1992,** and ***Geoffrey Ndirangu & 5 Others v Chairman of Mariakani Jua Kali Association & 2 Others* [2005] eKLR,** Counsel submits that a society is an unincorporated body without legal personality to sue or be sued in its own name. 13. It was submitted further that such proceedings must be brought through named officials in a representative capacity under ***Order 1 Rule 8 of the Civil Procedure Rules.*** Citing the decision of the Supreme Court of Nigeria in ***Goodwill and Trust Investment Ltd and Another v Witt and Bush Ltd Nigerian SC 266/2005*** as cited in ***Mediamax Network Ltd v William Momanyi & 2 others [2022] eKLR,*** Counsel for the 19th Respondent submits that bringing an action without proper parties deprives the court of jurisdiction, rendering the suit fatally defective, incompetent *ab initio* and a nullity that cannot be saved by the Oxygen Principles. 14. **The** **19th Respondent** also filed written **submissions** dated **23rd January 2026** in opposition to the **main Petition** raising the following four issues: *Whether the Petition is fatally defective; Whether the Respondents have the constitutional mandate to raise revenue; Whether there is double taxation or discrimination; and Whether the Petition is brought in bad faith.* 15. Counsel submits on the first issue of whether the Petition is fatally defective and cites ***Anarita Karimi Njeru v Republic* [1979] KLR 154** and ***Trusted Society of Human Rights Alliance v Attorney General & another* [2012] eKLR**, arguing that constitutional petitions must set out with reasonable precision the specific provisions infringed and the manner of infringement. It is contended that the Petitioner made generalized, vague allegations against all 47 counties without identifying specific unconstitutional provisions in the 19th Respondent’s County Finance Act. 16. On the second issue of revenue generation, Counsel for the 19th Respondent submits that ***Article 209(5) of the Constitution*** grants county governments the constitutional mandate to impose fees, charges and single business permit levies on commercial trading enterprises within their borders. Relying on ***Kenya Pharmaceutical Association & another v Nairobi City County and the 46 other County Governments & another [2017] eKLR,*** it is submitted that while professional medical services are regulated nationally, operating a private facility that also trades in goods or pharmaceutical products constitutes a commercial trade subject to county trade licensing. 17. Addressing the third issue of double taxation and discrimination, the 19th Respondent invokes ***Keroche Industries Limited v Kenya Revenue Authority & 5 others [2007] eKLR*** to argue that double taxation only occurs when the same tax is levied twice on the same subject matter for the same period. It clarifies that professional fees paid to regulatory bodies differ fundamentally from local trade permit fees. Citing ***Republic v Karisa Maitha & Another ex parte Devani [2014] eKLR, Mohammed Abduba Dida v Debate Media Limited******& another [2017] eKLR, and Patrick Ouma Onyango & 12 Others v the Attorney General & 2 Others Misc. Appl. No. 677 of 2005,*** Counsel for the 19th Respondent submitted that the Petitioner failed to prove discrimination or present a justiciable controversy. 18. Lastly, citing ***Judicial Service Commission v Speaker of the National Assembly & another [2014] eKLR,*** Counsel submits that the Petition was brought in bad faith to evade lawful tax obligations and prays for its dismissal with costs. 19. **The 22nd Respondent, Kiambu County** filed written Submissions dated **19th January 2026** raising four issues for determination: *Whether the Petition meets the threshold of a constitutional petition; Whether this Honourable Court has jurisdiction; Whether the Petition offends the doctrine of exhaustion; and Whether the reliefs sought are available and merited.* 20. Counsel submits relying on their Grounds of Opposition dated 19th January 2026 to assert that the Petition filed by the Petitioner is incompetent, premature and an abuse of court process. Counsel argued that the Petitioner improperly invoked the High Court’s constitutional jurisdiction to challenge statutory, administrative and policy-oriented matters without demonstrating any actual violation of the Constitution. Consequently, the 22nd Respondent urges the Court to dismiss the Petition *in limine*. 21. On whether the Petition meets the requisite constitutional threshold, Counsel submits that constitutional claims must be pleaded with reasonable precision, clearly stating the specific constitutional provisions infringed and the exact manner of violation anchoring this principle on the established authority of ***Anarita Karimi Njeru v. Republic [1979] eKLR,*** and reaffirmed by the Court of Appeal in ***Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR*** to discourage vague and generalized constitutional claims. 22. Counsel also relied on ***Maya Duty Free Limited v. Hon. Attorney General & 3 Others\* (Petition No. 45 of 2017),*** where the High Court is said to have affirmed the doctrine of constitutional avoidance and cautioned litigants against prematurely instituting constitutional petitions under ***Article 47(1)*** or other rights when alternative legal remedies exist. Counsel argues on behalf of Kiambu County that because the Petitioner makes sweeping claims without establishing a factual nexus to any constitutional breach, the Petition is fatally defective. 23. Regarding jurisdiction and separation of powers, Counsel submits that jurisdiction is foundational, citing ***Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] eKLR*** for the proposition that a court without jurisdiction must down its tools. That by asking the Court to interfere with the legislative functions of County Assemblies and the executive discretion of administrative bodies, the Petitioner invites the Court to act in excess of its statutory mandate, breaching the separation of powers. Further reliance was placed on ***Speaker of the National Assembly v. Karume [1992] eKLR*** to emphasize that where a specific legal or statutory procedure for redress is prescribed, it must be strictly followed. 24. On the doctrine of exhaustion, Counsel submitted that the dispute should have been submitted to statutory dispute resolution mechanisms prior to judicial intervention. Relying on ***Geoffrey Muthinja Kabiru & 2 Others v. Samuel Henry Ndungu & 1756 Others [2015] eKLR*** and ***Republic v. National Environment Management Authority exparte Sound Equipment Limited [2011] eKLR,*** Counsel for the 22nd Respondent submits that courts must exercise judicial restraint and allow statutory bodies to resolve disputes in the first instance. 25. Counsel further relied on Samuel ***Kamau Macharia & Another v. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR*** to highlight that judicial jurisdiction flows strictly from the Constitution or statute rather than judicial discretion. Finally, Counsel argues that no constitutional violation has been established. Referencing ***Communications Commission of Kenya & 5 Others v. Royal Media Services Ltd & 5 Others [2014] eKLR***, he cautions against converting ordinary policy disagreements or speculative apprehensions into constitutional matters. 26. Citing ***Ndyanabo v. Attorney General [2001] EA 495,*** Counsel further underscored that public actions and statutes enjoy a presumption of constitutionality, placing the un-discharged burden of proof on the Petitioner. Relying on ***Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General [2011] eKLR,*** Counsel argues that the remedies sought are vague, overbroad and would result in administrative paralysis, urging the dismissal of the Petition with costs. 27. **The 23rd Respondent Turkana County** filed its written **Submissions** dated **5th May 2026** raising four issues for determination namely: *Whether the Petition meets the constitutional threshold; Whether the Petitioner has proved any violation of rights by Turkana County; Whether Turkana County levied licensing fees against doctors; and Whether the Petition against the 23rd Respondent should be dismissed*. 28. It was submitted that the Petition fails to establish any cause of action or proof of infringement against Turkana County. Counsel for Turkana County submitted that Turkana County does not levy licensing fees on doctors, nurses, or medical practitioners for private practice, nor has the Petitioner produced any demand notices, enforcement actions, receipts of payment, or complaints emanating from Turkana County. Counsel argues that the Petitioner improperly lumps all 47 counties together without distinguishing individual county practices, making the Petition against Turkana County entirely speculative. 29. On the doctrines of ripeness, justiciability and the burden of proof, Counsel relies on ***KKB v. SCM & 5 Others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR***) and stresses that constitutional avoidance and ripeness principles prevent courts from determining constitutional issues prematurely where non-constitutional legal avenues can resolve the dispute. Counsel asserts that a petitioner must prove an actual, non-speculative breach resulting from a demonstrable act or omission by the respondent. 30. On the question of *locus standi* and corporate capacity, Counsel for Turkana County submits that the Petitioner, as an unincorporated society registered under the ***Societies Act (Cap 108),*** lacks legal capacity to institute court proceedings in its own name without express authorization or representative resolutions from its members. They rely on the landmark Supreme Court decision in ***Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2014] KESC 6 (KLR),*** examining ***Articles 22, 47, 48, 159(2)(d), 258,*** and ***260 of the Constitution*** alongside ***Sections 2, 10, 12,*** and ***16 of the Non-Governmental Organizations Co-ordination Act (Cap 134***). Counsel cites further supporting authorities to substantiate this threshold in ***African Orthodox Church of Kenya v. Rev. Charles Omuroka & Anor [2014] eKLR, Football Kenya Federation v. Kenyan Premier League Ltd & 4 Others [2015] eKLR, Eritrea Orthodox Church v. Wariwax Generation Ltd [2007] eKLR*** and ***Kisumu Bar Owners Association v. Cabinet Secretary, Ministry of Interior & 2 Others [2024] KEHC 6003 (KLR)*** for the proposition that societies operating under the Societies Act lack corporate status to sue in their own names, rendering such suits incurably defective despite ***Article 159(2)(d***). 31. Regarding the merits of county trade licensing versus professional regulation, Counsel outlines the statutory framework governing devolved revenue. Under ***Paragraph 7(b) of Part 2 of the Fourth Schedule to the Constitution of Kenya 2010,*** county governments are mandated to handle trade development and licensing, excluding the regulation of professions. However, drawing on ***Peter Owino (Chairman, Kenya Pharmaceutical Association) & Another v. Nairobi City County & 46 Other County Governments [2017] eKLR*** and ***Republic v. Kisii County Assembly & 4 Others Ex parte Dr. John Aboko Kumenda & Another [2021] eKLR***, Counsel argues that while pure medical practice is regulated by professional national bodies, such as under the Pharmacy and Poisons Act, Cap 244; or the Medical Practitioners and Dentists Act, Cap 253; any ancillary commercial activities such as dispensing and selling drugs, operating commercial laboratories or providing funeral home and hearse services constitute taxable trade. That therefore, charging trade licenses for commercial premises does not infringe upon professional regulation. 32. Finally, Counsel for the 23rd Respondent incorporates the authorities in ***Anarita Karimi Njeru v. Republic [1979] eKLR*** and ***David Gathu Thuo v. Attorney General & Another [2021] eKLR*** which set the standard requiring factual precision and proper evidentiary foundations in constitutional petitions and ***Eng. David Mathu Kimingi v. SMEC International Pty Limited [2021] eKLR*** which emphasized that statutory employment disputes cannot be disguised as constitutional petitions. 33. Counsel submitted that the Petition lacks merit and prays that it be dismissed as against the 23rd Respondent with costs. 34. The **37th Respondent** theCounty Government of Kakamegafiled its Written Submissions dated **10th December 2024** in which they raise four issues namely: *Whether the Respondent herein has capacity to sue in its own name; Whether the Petition discloses any cause of action that competently arises as against the 37th Respondent; Whether County governments may levy fees from the Petitioner’s members for services ancillary to the profession of medicine; and Whether the Petitioner is entitled to the remedies sought.* 35. Counsel urged the Court to dismiss or strike out the Petition and in addressing the first issue, it is asserted that RUPHA the Petitioner herein lacks legal personality or l*ocus standi* to sue in its own name. That by virtue of its registration under ***Section 10 of the Societies Act***, it is an unincorporated association and not a body corporate. 36. Basing its argument on ***Republic v Registrar of Societies Ex-Parte Narok Muslim Welfare Association [2017] eKLR***, Counsel highlights that ***Section 41(1) of the Societies Act*** does not confer legal personality on a society to institute proceedings in its own name. Citing ***Kisumu Bar Owners Association v Cabinet Secretary, Ministry of Interior & Coordination of National Government & 2 Others [2024] KEHC 6003 (KLR)***, Counsel notes that while Public Benefit Organizations under the *Public Benefit Organizations Act No. 18 of 2013* are clothed with statutory capacity to sue as bodies corporate, societies under the *Societies Act* must institute actions through named officials. That this point is reinforced by ***African Orthodox Church of Kenya v Rev. Charles Omuroka & Anor [2014] eKLR***, establishing that lack of legal capacity is a fundamental defect that goes to the root of the suit rather than a mere procedural technicality under ***Article 159 of the Constitution***. 37. On whether the Petition discloses a cause of action, Counsel submits that RUPHA failed to satisfy the threshold of constitutional precision. That the Petitioner casually listed ***Articles 19(2), 191(2), 209(3) & (5), and Schedule 4 Part 2 Paragraph 7(b) of the Constitution*** without demonstrating specific acts of infringement by Kakamega County. That this failure violates ***Rule 10(2)(d) of the Constitution******(Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013*,** which mandatorily requires disclosure of the precise nature of the injury suffered. 38. Invoking the principles in ***Anarita Karimi Njeru v Republic [1979] eKLR*, *David Mathu Kimingi v SMEC International PTY Limited [2021] eKLR*, and *David Gathu Thuo v Attorney General & Another [2021] eKLR* (which relied on *Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR*** and ***Dr. Rev. Timothy Njoya v Attorney General & Kenya Revenue Authority [2013]*),** Counsel argues that constitutional allegations must be pleaded with clarity, precision and supporting evidence. Counsel also relies on ***Peter Owino & 2 Others (Kenya Pharmaceutical Association) v Nairobi City County & 46 Others [2017] eKLR*** and submits that levying a blanket condemnation against all 47 County Finance Acts without specifying offending clauses renders the suit incompetent. 39. On the third issue, Counsel for the 37th Respondent concedes that while the practice of medicine is a profession exempt from county trade regulation under ***Schedule 4 Part 2 Paragraph 7(b) of the Constitution***, commercial activities connected to medical practices remain subject to county licensing. That where medical centres sell physical goods such as pharmaceuticals or operate non-professional ancillary services such as funeral homes, hearse services and ambulatory care, their operations transition into taxable trade. 40. Counsel submits that pursuant to ***Article 209(3)(c) of the Constitution***, counties maintain the constitutional authority to levy trade licenses on commercial premises. Counsel substantiates this position using ***Peter Owino v Nairobi City County [2017] eKLR*** and ***Republic v Kisii County Assembly & 4 Others Ex Parte John Aboko Kumenda & Another [2021] eKLR***, both of which held that taxing trade premises or non-professional commercial operations does not amount to regulating or controlling a profession. Consequently, the 37th Respondent prays for the Petition to be struck out or dismissed with costs. **Analysis and Determination** 1. From the extensive and comprehensive rival submissions, and the relevant law, the Grounds of Opposition and respective replying affidavits considered against the prayers in the Petition, I note the following issues for determination: - 2. ***Whether the Petitioner had the requisite locus standi and legal capacity to institute the petition in its own name under the Societies Act.*** 3. ***Whether the Petition satisfies the threshold of constitutional pleading precision under the doctrine in Anarita Karimi Njeru v. Republic.*** 4. ***Whether the Petition is merited and therefore whether County Governments levying Single Business Permit (SBP) fees on private medical facilities violates Part 2, Paragraph 7(b) of the Fourth Schedule to the Constitution or constitutes double taxation/unconstitutional regulation of a profession?*** 5. ***Who bears the costs?*** 6. The 37th Respondent raised a Notice of Preliminary Objection. It is therefore necessary to determine this at the onset before delving into the merits of the Petition. ***Whether the Notice of Preliminary Objection is merited*** 1. The law governing Notices of Preliminary Objection is well-settled in the case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** where Law JA stated: - ***“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. Sir Charles Newbold P added in the same case that a preliminary objection should consist of a pure point of law which, if decided one way, disposes of the entire suit or application. Thus, a Preliminary Objection can only be raised on a pure point of law where the facts are not contested. 2. In this Petition, the point of law raised in the Notice of Preliminary Objection are that of *locus standi and in addition,* the 1st Respondent (Mombasa County), 3rd Respondent (Kilifi County), 13th Respondent (Tharaka Nithi County) and the18th Respondent (Nyandarua County) in their responses and submissions raised objections on account that the petition is *res judicata.* 3. I will first address the issue of *locus standi*. The 37th Respondent (Kakamega County), supported by the 3rd, 18th, and 23rd Respondents, advanced an objection to the Petition contending that the Petitioner, RUPHA, lacks legal personality to sue in its own name. They submitted that the Petitioner being a society under the **Societies Act (Cap. 108, Laws of Kenya)**, could only bring the petition in the name of its registered officials. 4. Black’s Law Dictionary, 9th Edition at page 1026 defines **locus standi** as: - “***the right to bring an action or to be heard in a given forum”.*** 1. On the other hand, **Articles 22 and 258** enlarged the scope of persons or bodies that can institute constitutional petitions seeking redress of violations or threats to fundamental rights and freedoms. **Article 22 of the Constitution** provides: - ***(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.*** ***(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by–*** ***(a) a person acting on behalf of another person who cannot act in their own name;*** ***(b) a person acting as a member of, or in the interest of, a group or class of persons;*** ***(c) a person acting in the public interest; or*** ***(d) an association acting in the interest of one or more of its members.*** 1. **Article 258** provides: - 2. ***Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.*** 3. ***In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—*** 4. ***a person acting on behalf of another person who cannot act in their own name;*** 5. ***a person acting as a member of, or in the interest of, a group or class of persons;*** 6. ***a person acting in the public interest; or*** 7. ***an association acting in the interest of one or more of its members.*** 8. As to who a person is**, Article 260** defines who a person is as follows: - ***“person” includes a company, association or other body of persons whether incorporated or unincorporated;*** 1. In **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014] KESC 6 (KLR) (9 December 2014) (Ruling),** the Supreme Court recognized that the Constitution enlarged the scope of *locus standi* especially in matters of public interest and constitutional litigation. The Court held thus:- ***“Public Interest Litigation plays a transformative role in society. It allows various issues affecting the various spheres of society to be presented for litigation. This was the Constitution’s aim in enlarging locus standi in human rights and constitutional litigation. Locus standi has a close nexus to the right of access to justice. In instances where claims in the interest of the public are threatened by administrative action to the detriment of constitutional interpretation and application, the Court has discretion on a case by case basis, to evaluate the terms and public nature of the matter vis a vis the status of the parties before it. This discretion is drawn from the command of Article 259 (1), to interpret the Constitution in a manner that promotes its values and purposes, advances the rule of law, human rights and fundamental freedoms, permits the development of the law and contributes to good governance.”[emphasis added]*** 1. The Supreme Court further held that even if deregistration had occurred, when read together with the Constitution, the NGO Act does not automatically deprive an NGO of *locus standi* in public interest constitutional litigation. 2. The question for this Court’s determination is whether the Petitioner herein had the legal status to sue on behalf of its members being an Association, to challenge the levying of SBP on their respective trades. 3. The Court **Kisumu Bar Owners Association v Cabinet Secretary, Ministry of Interior & Coordination of National Government & 2 Others** dealt with an application for conservatory orders filed by the Kisumu Bar Owners Association seeking to stay a national government directive issued under the **Kisumu County Alcoholic Drinks Control Act** and the **Fair Administrative Action Act, 2015** regarding bar closures. In exercising its jurisdiction under **Article 165(3) of the Constitution**, the court raised *suo motu* the threshold issue of whether an unincorporated society registered under the Societies Act possesses the legal standing to file a constitutional petition in its own name. 4. In its analysis of **Articles 22, 258,** and **260 of the Constitution**, the Court acknowledged that while an association falls within the constitutional definition of a "person," the procedural manner of approaching the court requires representation by natural persons or named officials to ensure accountability for orders and costs. The court citing the cases of **Kipsiwo Community Self Help Group v Attorney General & 6 Others [2013] eKLR, Kituo Cha Sheria v John Ndirangu Kariuki & Another [2013] eKLR, Law Society of Kenya v Commissioner of Lands & 2 Others, Dennis Ololoigero & 2 Others v The Art of Ventures Limited & 2 Others [2006] eKLR, Naka Residents Associates v Ease Ltd & 33 Others [2023] eKLR, Trustees Kenya Redeemed Church & Another v Samuel M'Obiya & 5 Others [2011] eKLR,** and **African Orthodox Church of Kenya v Rev. Charles Omuroka & Another [2014] eKLR** and carefully distinguished societies from entities registered under ***Section 10(3) of the Public Benefit Organizations Act No. 18 of 2013 (formerly NGOs***), which are explicitly granted corporate status once registered, with perpetual succession to sue and be sued. The Court held that: - ***“15. It should also be noted that the question is not whether the association can sue or be sued but how it should approach the court since it is also a ‘person’ under Article 260 of the Constitution, which term includes a company, association or other body of persons, whether incorporated or unincorporated. It is therefore not doubtful that an association can commence proceedings but the manner in which such unincorporated bodies can commence or institute proceedings and this is an issue that courts have settled through Judicial Constitutional interpretation.*** ***16. In the Kituo cha Sheria vs. John Ndirangu Kariuki & Another (Supra) case, a Petition was filed by the Kituo cha Sheria and an application was filed seeking to strike out the petition on account that the Petitioner lacked the legal standing to file and prosecute the petition. Kimondo J found that Kituo cha Sheria is not a legal entity capable of bringing an action in its own name and that it could only maintain an action through its officials or other person nominated by its Board.*** ***17.Again, in Dennis Ololoigero & 2 Others vs. The Art of Ventures Limited & 2 Others [2006] eKLR. Members of a Community Based Organization (CBO) registered under the Ministry of Gender, Sports, Culture and Social Services filed suit which the court held that the organization had no legal capacity to sue in its own name without its officials and struck out the suit.*** ***18. It follows that a person recognized in law can only sue on behalf of members of the association or a group and such persons will then demonstrate that they have the consent of the other members to bring the action on their behalf.*** ***19. The rationale behind this requirement was aptly captured by the court (Sila Munyao J in the Kipsiwo Community Self Help Group vs Attorney General & 6 Others [2013] eKLR as follows:-*** ***“The importance of this, is so as to recognize the persons who seek legal redress, and so that orders are not issued in favour of or against people who cannot be precisely identified. This may look minor, but it is extremely significant. In litigation, rights and duties will be imposed on the litigants. If the court does not know who the litigants are, then it becomes impossible for the court to enforce its own orders, for it will never be clear who the beneficiary of the order was, or who had the obligation to obey or enforce the order.”*** 1. In **Peter Taracha & Anor vs Holiness Church & Anor (2016) eKLR, the court stated as follows**: ***“I have carefully gone through the entire***[***Societies Act***](https://kenyalaw.org/akn/ke/act/1968/4)***Chapter 108 of the Laws of Kenya and I have not come across a single provision that provides for the institution of suits by or against entities registered under the Act. I thus wholly agree with the sentiments expressed by Justice Bosire (as he then was) in John Ottenyo Amwayi & others V Rev. George Abura & others HCCC No. 6339 of 1990 when he stated as follows:-*** ***“The***[***Societies Act***](https://kenyalaw.org/akn/ke/act/1968/4)***does not contain provisions with regard to the presentation and prosecution of suits by or against unincorporated societies. It would appear to me that the legislature did not intend that suits be brought by or against those societies in their own names ….”*** 1. In **Mavoko Land Development Company Limited vs Mlolongo Catholic Church & 2 others (2022) eKLR**, the court held that it is trite that a society registered under the [*Societies Act*](https://kenyalaw.org/akn/ke/act/1968/4), including a religious organization, can only sue or be sued through its officials. See also **Republic v Registrar of Societies & another; Kenya International Freight & Warehousing Association (Nairobi Branch) (Ex parte) (Judicial Review Application E032 of 2024) [2025] KEHC 4789 (KLR) (Judicial Review) (7 April 2025) (Ruling) Neutral citation: [2025] KEHC 4789 (KLR).** 2. The law is thus settled that an entity registered under the Societies Act is an unincorporated body. Unlike a body corporate incorporated under the Companies Act or established by a specific Act of Parliament, an unincorporated society possesses no corporate identity, lacks a common seal and cannot sue or be sued in its registered name. Since the Petitioner herein is not a legal entity, it may bring an action, courtesy of Articles 22 and 258 of the Constitution, but with the express authority of its members. 3. This stems from the substantive rule on juridical capacity that where a suit has been instituted for the private commercial benefit of an association’s members as is the present Petition, the Petitioner is expected to strictly comply with the provisions of **Order 1 Rule 8 of the Civil Procedure Rules** which stipulate thus: - ***8. One person may sue or defend on behalf of all in same interest [Order 1, rule 8]*** ***(1) Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.*** ***(2) The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.*** ***(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may******apply to the court to be made a party to such suit.*** 1. In **African Orthodox Church of Kenya v. Charles Omuroka & Another [2014] eKLR**, the High Court succinctly restated this fundamental legal principle thus: - ***“Societies or Associations registered under the Societies Act are not legal entities capable of suing and being sued in their own names. They have no legal capacity to institute proceedings in any court in their own names and cannot maintain such proceedings. They can only sue through Trustees, if they have one, or in the names of their officials in a representative capacity."*** 1. In balancing the strict procedural rules of legal capacity against the broad, liberalized access to justice provisions mandated by the**Constitution under Article 22, 159 and 258,** I find and hold that, the procedural mechanism of how an association appears before the Court remains anchored in capacity. The upshot of this is that, since the Petitioner herein is a registered society and lacks the status as stipulated in **Section 41 the Societies Act**, it lacks the juridical capacity to institute this Petition in its name. 2. I find further that instituting a petition directly in the name of the society goes to the root of the court’s jurisdiction and cannot be cured by application of **Article 159(2)(d) of the Constitution**.I therefore concur with the submissions of Counsel for the 3rd Respondent who underscored that suing without legal capacity is a grave jurisdictional defect rendering proceedings a nullity. 3. Assuming the petitioner has the necessary locus standi to bring this petition in its own name, the next issue is whether the petition is *res judicata*. Section **7 of the Civil Procedure Act** provides that: - ***7. No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.*** 1. As to what *res judicata entails,* the Supreme Court in the case of **Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another, Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case)** held as follows regarding the doctrine of *res judicata*: - ***“52. Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No. 0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment.*** ***53. In Silas Make Otuke v Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.*** ***54. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively*** ***55. It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.*** ***56.The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):*** ***“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”*** ***57. The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:*** ***“… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].*** ***58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.*** ***59. That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, [2012] eKLR, thus: -*** ***The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…”*** 1. In **John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment),** the apex court held thus: - ***“59. For res judicata to be invoked in a civil matter the following elements must be demonstrated:*** ***a) There is a former judgment or order which was final;*** ***b) The judgment or order was on merit;*** ***c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and*** ***d) There must be between the first and the second action identical parties, subject matter and cause of action.*** ***(See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR)*** 1. The 1st Respondent herein Mombasa County in its Grounds of Opposition and Submissions urged the Court to strike out or dismiss the entire Petition with costs on the grounds that the issues raised are *res judicata*, having already been conclusively determined in **Nakuru JR No. 14 of 2014: Republic v County Assembly of Nakuru and 2 Others ex parte John Njenga and 117 others**. 2. The 3rd Respondent Kilifi County maintained that the petition is speculative, hypothetical and *res judicata*, as the core issues regarding trade permit demands have already been conclusively determined by the court in **Nairobi Constitutional Petition No. 97 of 2016 Kenya Pharmaceutical Association v. Nairobi City County & Others**. 3. The 18th Respondent Nyandarua County Government cited revenue-raising powers under **Article 209(3), Part 2 of the 4th Schedule of the Constitution** and the binding precedent in ***Nairobi Constitutional Petition No. 97 of 2016, Kenya Pharmaceutical Association v Nairobi City County and Others*** and contended that the petition herein is *res judicata* warranting its dismissal with costs. 4. The Petitioner on its part did not address the issue of *res judicata* in its submissions. Onto the facts of this petition and the principles outlined by the Supreme Court in the above-cited cases, it is not in contention that the Petitioner, Rural Private Hospitals Association of Kenya (RUPHA) is challenging the levying of single business permits to its already regulated members. It claims that regulatory oversight, quality control, operational licensing and annual renewals are executed exclusively by national statutory regulatory bodies, such as the **Kenya Medical Practitioners and Dentists Council (KMPDC)**, the **Clinical Officers Council (COC)**, and the **Nursing Council of Kenya (NCK).** 5. The crux of their case is that, despite this national regulatory matrix, the Respondent County Governments have routinely enacted annual County Finance Acts imposing Single Business Permit (SBP) fees and related trade levies on private medical facilities. 6. The Petitioner complains that in enforcing these County Finance Acts, several Respondent Counties including Embu, Kajiado, Garissa and Kakamega have engaged in arbitrary harassment, intimidation, arrest, criminal prosecution of facility administrators and impounding of critical medical diagnostic equipment. 7. I have reviewed the cases cited by the Respondents. In particular, the determination by Mativo J (*as he the was*) in **Kenya Pharmaceutical Association & another v Nairobi City County and 46 other County Governments & another [2017] eKLR (Constitutional Petition 97 of 2016** where he dismissed the Petition on 21st September 2017 on several grounds. 8. I note that in that case, the Petitioners challenged County Finance Acts across all 47 counties, seeking declarations that, requiring pharmacists to obtain trade licenses/single business permits is unconstitutional, discriminatory, causes double taxation and conflicts with the **Pharmacy and Poisons Act, Cap 244** under **Article 191 (2) and 209 (2).** The Petitioners relied on a previous ruling before the promulgation of our 2010 Constitution in ***J.R. Application No. 135 of 2007***, which had prohibited local authorities from levying business permit fees on pharmacists. 9. The Respondent County Governments argued that ***Part 2 Paragraph 7 of the Fourth Schedule to the Constitution*** mandates counties to handle trade development and regulation including trade licenses, excluding regulation of professions and ***Article 209*** empowers them to raise revenue. 10. The Court (Mativo J.) citing ***State of Orissa v Sudhansu Sekhar Misra, Quinn v Leathem [1901] AC 495, and Allen v Flood,*** held that ***J.R. No. 135 of 2007*** was inapplicable because it was decided under the repealed Local Government Act and the old Constitution, affirming that all prior laws must be construed to conform with the 2010 Constitution under *Section 7 of the Sixth Schedule*; That Pharmacists operate as both healthcare professionals and commercial trade proprietors when selling pharmaceutical products and charging single business permits on the trading premises or establishments does not constitute regulating the profession itself. The Court also relied on T***huku Kiroro & 4 Others v County Government of Murang’a*** and ***Black’s Law Dictionary***, in holding that paying regulatory fees to a professional body and trade permit fees to a county does not constitute double taxation. Further, that the Petition failed for making broad, generalized claims against 47 counties without pleading specific offending sections of each local Finance Acts. 11. Although the parties to the present Petition are different from parties in the cited decision by Mativo J, (as he then was), *res judicata* does not apply only to identical parties. The parties to the suit in question must be litigating under the same title or as privies sharing an identical interest and therefore the same cause of action as the previous one. 12. In this case, both the Petitioner and the Kenya Pharmaceutical Association in the previous decision as cited, filed petitions on behalf of their healthcare professionals challenging the exact same county revenue mechanism entailing Single Business Permits on medical or pharmaceutical premises. The same issues of trade versus profession dichotomy are raised in both Petitions. The other issue is double taxation or impugning the levying of Single Business Permits in both petitions. 13. A party cannot evade *res judicata* simply by substituting one registered society or association with another, or clothing a petitioner differently, when the underlying class of litigants and the rights asserted are identical in substance. 14. Allowing different associations to file successive petitions on behalf of the same broad sector creates an endless cycle of litigation and goes contrary to the principle of finality of litigation. 15. Secondly, since these precise legal issues were fully canvassed and determined in a final judgment on the merits by Mativo J., the Petitioner is estopped from asking this Court to again re-determine the exact same issues. All that the affected parties should have done was to be enjoined as interested parties in that petition and or appeal the decision of Mativo J in the event that they were aggrieved by that decision which largely affected them. 16. The Supreme Court of Kenya in ***Kenya Commercial Bank v. Muiri Coffee Estate (supra)*** affirmed that *res judicata* is a substantive principle of public policy and the Rule of Law, anchored on the necessity for finality in judicial decisions. In that case the apex court held thus: - ***[352] The Judicial Committee of the Privy Council, in Thomas v. The Attorney-General of Trinidad and Tobago, [1991] LRC (Const.) 1001 held that “when a plaintiff seeks to litigate the same issue a second time relying on fresh propositions in law he can only do so if he can demonstrate that special circumstances exist for displacing the normal rules.” That court relied on a case decided by the Supreme Court of India, Daryao & Others v. The State of UP & Others, (1961) 1 SCR 574 to find that the existence of a constitutional remedy does not affect the application of the principle of res judicata. The Indian Court also rejected the notion that res judicata could not apply to petitions seeking redress with respect to an infringement of fundamental rights. Gajendragadkar J stated:*** ***But is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is a essential part of the rule of law, then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now the rule of res judicata…has no doubt some technical aspects…but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.”*** 1. In this case, it is not controverted that the Respondents herein, all 47 County Governments were already sued in court in 2016 and 2017 on the constitutionality of their Single Business Permit regimes against private healthcare providers. To re-open the exact same constitutional challenge years later under a different association’s name is an unnecessary and oppressive burden on the Respondents and against public interest because county public finances are being expended to defend the same issue and equally, there is wastage of precious judicial time. This also impedes the need for finality in litigation and risks litigants obtaining conflicting decisions from courts of concurrent jurisdiction. 2. Based on the forgoing, it is my finding that the Petition herein is *res judicata* **Nairobi Constitutional Petition No. 97 of 2016 Kenya Pharmaceutical Association v. Nairobi City County & Others** and accordingly, cannot be heard and determined on merit again before this Court. 3. In the end, I find the Notice of Preliminary Objection dated 29th March 2022 to be merited and is hereby upheld. The Petition is dismissed for want of *locus standi* on the Petitioner’s part and lack of jurisdiction for being *res judicata.* 4. Each party to bear their own costs of the petition. 5. This file is closed. 6. Orders accordingly. **Dated, Signed & Delivered virtually at Nakuru this 11th Day of August, 2026** **R.E. ABURILI** **JUDGE**