[2023] KEHC 27135 (KLR)

Sakawa Taxi Owners Self Help Group v Kisii County Govenment & another (Constitutional Petition E006 of 2023) [2023] KEHC 27135 (KLR) (15 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27135 (KLR)

Republic of Kenya

In the High Court at Kisii

Constitutional Petition E006 of 2023

TA Odera, J

December 15, 2023

IN THE MATTER OF THE ALLEGED VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOM OF PERSONS ENGAGED IN THE BUSINESS OF TAXI SERVICES

Between

Sakawa Taxi Owners Self Help Group

Petitioner

and

Kisii County Govenment

1st Respondent

Kisii County Assembly

2nd Respondent

Ruling

1. By a Notice of Motion filed under a Certificate of Urgency and dated 18. 4.2023 and filed through the firm of Ochoki & Co. Advocates and brought under Articles 20, 21, 22, 23 (3) and 40 of the Constitution and Sections 1A, 1B, 3A and 63 (c) of the Civil Procedure Act, Orders 40 and 51 of the Civil Procedure Rules, 2010, the Petitioner/Applicant sought the following orders: -1. Spent.2. That pending the hearing and determination of this Application, there be an order of temporary injunction prohibiting and/or restraining the 1st Respondent either by herself, her agents, servants and/or employees, workers and/or anybody from demanding parking fees in respect of the business permits from the Kisii County taxi Operators from the impugned enacted Finance Act, 2022 whatsoever pending the hearing of the instant petition.3. Conservatory orders do issue staying the implementation of the enacted Finance Act, 2022 particularly in levying the new parking fees against taxi operators within Kisii County.4. In the alternative, without prejudice to prayers 2 and 3, the Honourable Court be pleased to grant orders maintaining status quo prior to the enactment and implementation of the Finance Act, 2022. 5.That pending the hearing and determination of the instant petition, the Honourable Court be pleased to grant an interim order of mandatory injunction directing the respondents either by themselves, agents, servants and/or employees, workers, assigns from implementing the Kisii County Finance Act, 2022 with a view to demanding parking charges from the residents of Kisii County more particularly the Taxi Operators.6. That pending the hearing and determination of the application inter partes, the County Secretary of the 1st Respondent be compelled by this court to produce, file and serve the petitioners with the information, if any, on how they advertised the public participation and when it was done by which criteria and the minutes pertaining the impugned Finance Bill, 2022 and the total amount of money budgeted for facilitation.7. That costs be borne by the Respondents.

2. The grounds of the application are that the Respondents were seeking to implement the Kisii Finance Act, 2022 which Act has never been subjected to public participation contrary to Section 87 of the County Government Act, No. 17 of 2012. The 1st Respondent’s agents then issued invoices to the residents of Kisii County, particularly the Taxi Traders with inflated prices, specifically, parking charges. The taxi Operators used to pay KShs.5,000/= annually per slot under the previous Finance Act. The Kisii County Finance Act, 2022 increased the said charges to KShs.15,000/= annually per slot which charges, the Petitioner termed as unfair practice. The Petitioner stated that the approval of the Kisii County Finance Act, 2022 was full of irregularities and malpractices in contravention of the Constitution and theCounty Government Act, No, 17 of 2012. The implementation of the Kisii County Finance Act, 2022 as enacted would prejudice the Petitioners.

3. The Application was supported by an Affidavit sworn on 18. 4.2023 by James Nyakagwa, the Chairman of the Petitioner. He deponed that the Petitioner constituted members operating taxi business and situate within Kisii County. He deponed that the Petitioner’s members had all along been paying KShs.5,000/= annually per parking slot for the financial year 2021-2022. This year, the 1st Respondent started levying KShs.15,000/= annually per parking slot and cited the Kisii Finance Act 2021. He deponed that the Kisii County Finance Act, 2022 was never subjected to public participation as required under Section 87 of the County Government Act, No. 17 of 2012. He decried the levy of KShs.15,000/= was inflated, prejudicial, unethical, unfair, illegal and an affront to the Constitution. He deponed that the approval of the Kisii County Finance Act, 2022 was fraught with irregularities and malpractices. He deponed that the Petitioner’s members could not raise the new inflated prices. He deponed that the Petitioner’s members were not given any reason why the parking fees were increased and he claimed that other sectors of the County’s economy had not received any increment in their respective rates. He deponed that the Petitioner’s members did not offer any unique service warranting the discriminative, punitive and exorbitant increase in their parking rates and in contravention of Article 201(b)(i) of the Constitution which calls for the fair sharing of the tax burden. He deponed that the Respondents’ actions prejudiced the Petitioner’s members financially and would likely lead to closure of business and loss of economic well-being.

4. Despite service., the 1st Respondent has not participated in these proceedings so far.

5. The 2nd Respondent filed a Notice of Preliminary Objection dated 10. 5.2023. The grounds are as follows: -1. That the court has no jurisdiction to impede with the internal operations of the County Assembly in accordance with the Kisii County Finance Act 2022. 2.That the Application and petition infracts the provisions of Section 10. 1 (j) of the Kisii County Finance Act, 2022. 3.That the Application is premature before this Honourable Court as it offends the Section 10. 1 (j) of the Kisii County Finance Act 2022 as the Petitioner has not fully exhausted all the laid down mechanisms of dispute resolution.

6. The Preliminary Objection was disposed off by submissions.

Submissions 7. The 2nd Respondent filed its Submissions dated 27. 10. 2023. They submitted that Section 10. 1 (j) of the Kisii County Finance Act, 2022 provided Any dispute or complaint arising out of this Act shall be referred to the Budget and Appropriation Committee of the County Assembly for hearing or redress before being referred to Court of Law for determination.

8. They submitted that the body charged with handling disputes or complaints relating to the Act was the Budget and Appropriation Committee. The Petitioner had not presented any complaint or dispute to the said Committee thus offending the doctrine of exhaustion. They cited the case of Speaker of National Assembly v Karume [1992] KLR 21 where the Court of Appeal held that any special procedure for airing grievances as set out in the Constitution or Legislation should be strictly adhered to. They also cited the case of Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, where again the Court of Appeal held that any alternative dispute resolution mechanisms that existed outside courts must be exhausted before invoking the Court’s jurisdiction. They deponed that the dispute herein could have been resolved by the Budget and Appropriation Committee.

9. They further submitted that the Budget and Appropriation Committee put up an advertisement on the Standard Newspaper on 9. 11. 2022 for public hearings and memoranda. The exercise was then conducted in all sub-counties between 16. 11. 2022-18. 11. 2022.

10. They submitted that Sections 87, 91 and 115 of the County Governments Act called for public participation in county affairs. They cited Robert N. Gakaru v Governor Kiambu County where the Court held that County Assemblies were required to do all that was necessary to ensure that as many of their constituents were aware when the county assemblies were desirous of passing legislation.

11. They cited the South African case of Minister of Health v New Clicks South Africa (Pty) Ltd. where the Court held it was not feasible to afford every single person likely to be affected with a legislation, a personal hearing. They cited the case of Diani Business Welfare Association and Others v The County Government of Kwale [2015] eKLR. The Court held that what was paramount was that the public was accorded a reasonable level of participation.

12. On jurisdiction, they cited the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. [1989] KLR where Justice Nyarangi of the Court of Appeal held that a question of jurisdiction ought to be raised at the earliest time and where a court has no jurisdiction, it had to down its tools.

13. The 2nd Respondent also cited the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors Ltd. [1969] EA 696 where Law JA defined what a preliminary objection was.

14. The Petitioner filed their Submissions dated 2. 11. 2023. The Petitioner reiterated the definition of a preliminary objection as per the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors Ltd. (1969) E.A. 696.

15. They submitted that there was no public participation prior to the enactment of the Kisii Finance Act, 2022 and hence the 2nd Respondent was in error in applying Section 10. 1 (j) of the Kisii County Finance Act.

16. They submitted that the Respondents did not comply with Article 10 (2) of the Constitution which provided that public participation is among the national values and principles of governance.

17. They submitted that the internal operations mechanisms did not oust the application of the law. They cited the case of Robert Khamala Situma & 8 Others v Acting Clerk of the Nairobi City County Assembly (2022) where the Court relied on the case of Chief Justice and President of the Supreme Court of Kenya and Anor. V Bryan Mandia Khaemba (2021) eKLR where the Court of Appeal held that courts will retain residual jurisdiction to intervene in exceptional circumstances where the action complained of is tainted with illegality and irregularities.

18. They also cited the case of Fleur Investments Ltd. v Commission of Domestic Taxes and Anor. (2018) eKLR where the Court of Appeal held that “…whereas courts of Law are enjoined to defer to specialized Tribunals and other Alternative Dispute Resolution, statutory bodies created by parliament to resolve certain specific duties, the court, cannot being a bastion of justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.” They urged the Court to dismiss the preliminary objection.

Determination 19. I have considered the Notice of Preliminary Objection and the Parties’ Submissions thereto.

20. A preliminary objection was defined by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd. [1969] EA 696 where Sir Charles Newbold P. stated:“…A preliminary objection is in the nature of what used to be a demurrer. It raises a 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 is what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop.”

21. The present Preliminary Objection is on jurisdiction. I am aware that jurisdiction is everything. In Republic v Karisa Chengo & 2 Others [2017] eKLR, the Supreme Court of Kenya held:[35]In the above regard, we note that in almost all the legal systems of the world, the term “jurisdiction” has emerged as a critical concept in litigation. Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 thus defines “jurisdiction” as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decisions.” John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol. 3, at page 113 reiterates the latter definition of the term “jurisdiction” as follows:“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limits is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics… Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”[110]None of these foreign cases, attractive their reasoning is related to the issue of the jurisdiction of the Courts that determined the cases under review. As we know, jurisdiction goes to the root of any litigation. This position was forcefully reiterated in the locus classicus decision of Nyarangi, JA in The Owners of Motor Vessel Lilian “S” v Caltex Oil Kenya Ltd. ]1989] KLR 1 that “jurisdiction is everything”. Without it a Court cannot make a move. When an act is void, it is a nullity ab initio. It cannot found any legal proceedings and Lord Denning’s decision in the Privy Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK) [1962] AC 152 succinctly makes this point. He states thus:“Court has discretion in matters that are voidable not to proceedings that are a nullity for those are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the Court…”And;“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad… And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

22. The 2nd Respondent contends that this Court does not have jurisdiction in light of Section 10. 1 (j) of the Kisii County Finance Act, 2022. They contend that the Petitioner ought to have presented their complaints to the Budget and Appropriation Committee. Having failed to do so, they were in breach of the exhaustion principle.

23. The exhaustion principle has been addressed by Courts over the years. In the case of NGOs Co-ordination Board v Eric Gitari & 5 Others, SC Petition No. 16 of 2019, the Supreme Court held as follows :-[39]According to Gelpe, Marcia R., “Exhaustion of Administrative Remedies: The Lesson from Environmental Cases” (1985). Faculty Scholarship. Paper 81, exhaustion of administrative remedies aids in protecting administrative autonomy, preserving the separation of powers, gaining judicial economy, avoiding administrative inefficiency, and permitting courts to benefit from an administrative body’s determination of facts and exercise of discretion.[40]The doctrine of exhaustion of administrative remedies was settled by this court in the case of Albert Chaurembo Mumba & 7 Others (sued on their own behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Schem) v Maurice Munyai & 148 Others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme SC. Petition No. 3 of 2016; [2019] eKLR. This Court stated as follows at paragraph 118:“... Even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.”[41]In the persuasive case of R vs National Environmental Management Authority, CA No. 84 of 2010; [2011] eKLR the Court of Appeal observed as follows:“The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it….” [Emphasis added][42]We are also persuaded by the High Court’s reasoning in Anthony Miano & Others v Attorney General & Others, HC Petition No. E343 of 2020; [2021] eKLR where the court made reference to the doctrine of exhaustion (by citing a 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR which had elaborately dealt with the doctrine of exhaustion). The Court stated at paragraph 35:“... What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, the regulatory scheme involved, the nature of the interests involved- including the level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies…” [Emphasis added]

24. In William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR, a 5-Judge Bench sitting in Mombasa had occasion to extensively handle the exhaustion doctrine.52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated in R vs Independent Electoral and Boundaries Commission (I.E.B.C.) Ex Parte National Super Alliance (NASA) Kenya and 6 Others [2017] eKLR, where the Court opined thus:42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others [2015] eKLR, where the Court of Appeal stated that:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

25. However, there are exceptions to this doctrine. The Petitioner submitted that their case falls under these exceptions. What, then, are these exceptions?

26. In William Odhiambo Ramogi Case, the Court held thus:-However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R vs. Independent Electoral and Boundaries Commission (I.E.B.C. ) & Others Ex Parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya’s decision law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved- including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikira Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas where an important constitutional value is at stake. See also Moffat Kamauand 9 Others vs Aelous (K) Ltd and 9 Others.60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issue raised.61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J inNight Rose Cosmetics (1972) Ltd. v Nairobi Government & 2 Others [2018] eKLR.

27. From the foregoing, the exceptions to the exhaustion doctrine are: -a)Where the exhaustion requirement would not serve the values enshrined in the Constitution or law.b)Where the parties lack adequate audience before a forum created by a statute, or may not have the quality of audience before the forum that is proportionate to the interests the party wishes to advance in a suit.

28. In the present Application and Petition, the Petitioner alleged that the Kisii County Finance Act, 2022 was passed without engaging the public- there was no public participation prior to its enactment while the 2nd Respondent contended that there was indeed public participation prior to the enactment of the Kisii County Finance Act, 2022.

29. The issue I have to address therefore is whether the Petitioner ought to have raised the issue with the Budget and Appropriation Committee or whether the question is rightly before this Court.

30. The Constitution of Kenya, 2010 and the County Governments Act, Act No. 17 of 2012 both provide for public participation in the following manner: -

31. Article 10. National values and principles of governance(1)The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them-(a)applies or interprets this Constitution; Enacts, applies or interprets any laws; or(c)makes or implements public policy decisions.2. The national values and principles of governance include-(a)patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people.(b)....(c)....(d)....

32. Article 196 of the Constitution: Public participation and county assembly powers, privileges and immunities:(1)A county assembly shall-(a)conduct its business in an open manner, and hold its sittings and those of its committees, in public and(b)facilitate public participation and involvement in the legislative and other business of the assembly and its committees.(2)A county assembly may not exclude the public, or any media, from any sitting unless in exceptional circumstances the speaker has determined that there are justifiable reasons for doing so.(3)Parliament shall enact legislation providing for the powers, privileges and immunities of county assemblies, their committees and members.

33. Article 201. Principles of public financeThe following principles shall guide all aspects of public finance in the Republic-(a)there shall be openness and accountability, including public participation in financial matters;(b).......

34. The County Governments Act, Act No. 17 of 2012 was enacted to provide for County Government’s powers, functions and responsibilities to deliver services and for connected purposes.

35. Section 3 of the County Governments Act: Object and purpose of the Act:The object and purpose of this Act is to:-(f)provide for public participation in the conduct of the activities of the county assembly as required under Article 196 of the Constitution.

36. Section 104. Obligation to plan by the county(1).....(2).....(3).....(4)To promote public participation, non-state actors shall be incorporated in the planning processes by all authorities.(5).....

37. Section 115 of the County Governments Act- Public participation in county planning(1)Public participation in the county planning processes shall be mandatory and be facilitated through-(a)mechanisms provided for in Part VIII of this Act; and(b)provision to the public of clear and unambiguous information on any matter under consideration in the planning process, including-(i)clear strategic environmental assessments;(ii)clear environmental impact assessment reports;(iii)expected development outcomes;(iv)development options and their cost implications.(2)Each county assembly shall develop laws and regulations giving effect to the requirement for effective citizen participation in development planning and performance management within the county and such laws and guidelines shall adhere to minimum national requirements.

38. The above excerpts clearly show that public participation is a very vital component in the policy-making processes both at the County level and the National Government level.

39. In Hambardda Wakhana vs. Union of India Air [1960] AIR 554, 1960 SCR (2) 671 the Supreme Court of India stated thus: -“Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment.” (Emphasis mine)

40. One of the ways that the Legislature can understand and appreciate the needs of the people is by conducting public participation before passing any legislation.

41. In The William Odhiambo Ramogi Case, the Court extensively handled the matter of public participation. The court defined public participation as the processes of engaging the public or a representative sector while developing laws and formulating policies that affect them.

42. The Court referred to the decision of Legal Advice Centre & 2 Others v County Government of Mombasa & 4 Others [2018] eKLR where the Court of Appeal dealt with the purpose of permitting public participation in the law-making process. Public participation ensures that the people who are affected by the said law actually own it in view of having participated in its enactment.

43. Unfortunately, none of the Parties availed to this Court a copy of the Kisii County Finance Act, 2022 at this stage. That notwithstanding, I find that the issue of legality of the Kisii County Finance Act, 2022 is a matter that can only be aptly addressed by this Court through a full hearing of the petition.

44. I say so because the Petitioner alleges violation of the Constitution. Indeed, this Court has, time without number, been called upon to determine the legality of legislation. As espoused above, the absence of public participation goes directly into the legality and constitutionality of a legislation.

45. Needless to say, a question of the constitutionality or legality of legislation is best vested with the High Court. Article 165 [3][b] of the Constitution of Kenya, 2010 provides that this Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. Indeed, in the William Odhiambo Ramogi Case, the 5-Judge Bench held as follows:“62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.65. Hence, while a party is required to exhaust its remedies under the Competition Act before bringing an action in Court claiming violations of that Act, the Consolidated Petitions involved polycentric issues and multiplicity of parties including questions related to the fundamental rights of the Petitioners to warrant an exception to the doctrine of exhaustion as developed in our jurisprudence.” [Emphasis mine]

46. In light of the foregoing, I come to the inescapable conclusion that the Preliminary Objection lacks merit and I proceed to dismiss it with costs to the Petitioner.

DATED, DELIVERED AND SIGNED AT KISII THIS 15TH DAY OF DECEMBER 2023. In the presence of:Miss Ndemo for the PetitionerMr. Oirere for the 1st RespondentMiss Nyamwaya for the 2nd RespondentCourt Assistant - OigoTERESA ODERAJUDGENdemo: May interim orders be extended and we hear the petition.Oireri: We seek that the interim orders be vacated. We proceed to the main petitioner. The petitioners have not paid any single cent for our services this year. They are having their case and eating it while enjoying services that have been paid for by other tax payers. The parking spot is stuck in the middle of the CBD. they are violating the maxim of equity that he who comes to equity must come with clean hands. By the time we will be through with the matter they will not have paid any tax. Even the mama mboga is paying taxes. that is injurious to us. they have not paid a single cent for the whole year.Nyamwaya: The orders were until the P.O was determined. I seek that the orders be vacated. the Act is valid for one year and by the time we get into the petition the orders will have expired.Ochoki: I am present with Miss Ndemo. The orders that are in place were not granted until the determination of the P.O but till determination of our application. Petitioners have been paying daily rates as demanded by the respondents. If the orders are vacated the petitioner will be prejudiced as they will continue paying taxes based on the impugned Act. We are ready to go to the main petition and file submissions within 2 weeks form today. The issues they are talking about are those of facts counsel need to file and affidavit.Nyamwaya: To save the courts time finance 2022/23 has already been enacted. Counsel can look at it and act.Oirere: The Evidence Act provides that he who asserts must prove. A new Act is in place as submitted by my colleagues. May the orders be vacated.DIRECTIONSa. Application dated 18. 4.23 is pending hearing and determination.b. I direct that due to the nature of the subject matter herein, the parties proceed with the main petition to expedite the matter.c. I have heard both parties on the issue of interim orders. I have seen the Kisii Finance Act 2023 which is in force now. The petition herein challenges finance Act 2022. For purposes of clarity the interim orders this court granted were in respect to the finance Act 2022 which was in force in April when the petition was filed and not finance Act 2023. Nothing thus stops the 1st respondent from collecting taxes as per the finance Act 2023 which is in force now.d. Respondents to file and serve their responses within 14 days from today and petitioner to respondent to the same within 14 days from the date of service if need be. The matter to proceed by way of written submissions. The petitioner to file and serve submissions within 14 days from the date of service of the reply by the respondents and respondents to also file theirs within 14 days from the date of receipt of the petitioner’s submissions.e. Mention on 18. 1. 24. T.A ODERAJUDGE15. 12. 23