H. Young & Company (E.A) Limited v County Government of Nakuru & another [2022] KEHC 16974 (KLR) | County Revenue Powers | Esheria

H. Young & Company (E.A) Limited v County Government of Nakuru & another [2022] KEHC 16974 (KLR)

Full Case Text

H. Young & Company (E.A) Limited v County Government of Nakuru & another (Petition E004 of 2021) [2022] KEHC 16974 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16974 (KLR)

Republic of Kenya

In the High Court at Naivasha

Petition E004 of 2021

GWN Macharia, J

December 15, 2022

In The Matter Of Articles 1, 10, 47, 62, 94, 174, 175, 185, 209, 210 & 258 Of The Constitution Of Kenya And. In The Matter Of The Constitution Of Kenya (protection Of Rights And Fundamental Freedoms) Practice And Procedure Rules, 2013 And All Other Enabling Powers And Provisions Of The Law And In The Matter Of The 1St Schedule Part Iv Of The Nakuru County Finance Act, 2019

Between

H. Young & Company (E.A) Limited

Petitioner

and

The County Government of Nakuru

1st Respondent

Nakuru County Assembly

2nd Respondent

Judgment

The Petition 1. The Petition is brought as a matter of public interest under Articles 22(2) and 258 (2) (c) with reliefs sought under Articles 22 and 23 of the Constitution of Kenya.

2. The Petitioner is described as a Limited Liability Company engaged in engineering construction and infrastructure in the Republic of Kenya and has been operating within the jurisdiction for a period of over six decades.

3. The Petitioner brings the suit as a matter of public interest seeking reliefs for deliberate, callous and bullish tactics of the 1st Respondent who, contrary to the Constitution and its own Finance Act, 2019 has illegally, unlawfully and arbitrarily made an unfounded demand for cess fees for alleged extraction of ballast.

4. It is the Petitioner’s averment that the due to the foregoing actions by the 1st Respondent, the Petitioner is apprehensive it may fall behind schedule in completing a project which is of immense benefits to the members of the public.

5. The said project is carried out within the 1st Respondent’s boundaries and the 2nd Respondent is responsible for the legislative process in the 1st Respondent’s jurisdiction.

6. The Petition finds its foundations on the following provisions of the Constitution as framed by the Petitioner:i.The Preamble of the Constitution which recognises the aspirations of all Kenyans for a government based essential values of human rights, equality, freedom, democracy, social justice, and the rule of law and the exercise by the People of Kenya of our sovereign and inalienable right to determine the form of governance of our county and having participated fully in the making of the constitution.ii.Article 1 (1) provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the constitution.iii.Article 1(2) provides that the people may exercise power either directly or indirectly or through their democratically elected representative.iv.Article 10 which sets out the national values and principles of governance that bind all state officers, state organs, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law, make or implement public policy decisions. The national values and principles of governance include the rule of law, equity, inclusiveness, equality, human rights, non-discrimination, good governance, transparency, accountability, democracy and participation of the people.v.Article 22(1), read together with Article 258 (1) gives every person the right to institute court proceedings claiming the right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.vi.Article 22 (2) and Article 258(2) provides that in addition to a person acting in their own interest, court proceedings under clause (i) may be instituted by;-a.A person acting on the behalf of another person who cannot act in their own namesb.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; ord.Association acting in the interest of one or more of its members.vii.Article 23 which vests in this Honourable Court to uphold and enforce the Bill of Rights and highlights some of the remedies that this Honourable Court can grant to uphold and enforce the Bill of Rights.viii.Article 27 provides that every person is equal before the law and has a right to equal protection and equal benefit of the law. It especially holds that equality includes the full and equal enjoyment of all rights and fundamental freedoms and that the state shall not discriminate directly or indirectly against any person on any ground.ix.Article 47 provides for fair administrative action in the exercise of administrative powers by state organs and statutory bodies in the execution of constitutional duties guided by constitutional principles.x.Article 94 outlines the role of Parliament. It advises that no other body other than parliament of Kenya has power to make provision having the force of law in Kenya under authority conferred by the Constitution or by legislation.xi.Article 163 (3) (b) establishes the jurisdiction of the High Court as to determine the question whether a right or fundamental freedom in the bill of rights has been denied, violated, infringed or threatened.xii.Article 174 contains the objects of devolution which include; promoting social and economic development and provision of proximate, easily accessible services throughout Kenya and ensuring equitable sharing of national and local resources throughout Kenya.xiii.Article 175 contains the principles of devolved government.xiv.Article 185 counsels county ssemblies should exercise their authority while respecting the principle of separation of powers. It also advises that the Assembly may make laws that are necessary for the performance of the functions and powers under the fourth schedule of the constitution.xv.Article 186 (1) as read with the Fourth Schedule sets out the functions and powers of the National Government and County governments.xvi.Article 201 provides for openness and accountability including public participation in financial matters.xvii.Article 209 provides for the power to impose taxes and charges by the national government and explains on which instances the county governments may impose taxes and charges.xviii.Article 210 provides for imposition of tax. Specifically, at Sub Article (1), the same provides that no tax or licensing fee may be imposed, waived or varied except by way of legislation.xix.Article 259 provides that the interpretation of the Constitution must be in a manner that promotes its purposes, values, and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights, permits the development of the law and contributes to good governance.

7. On the other legal foundations of the Petition, the Petitioner grounded the same as below:a.Section 36 of the Nakuru County Finance Act provides that fees payable by way of mining fees and charges in respect of extraction of natural resources is deemed to be accruing in the County. The term “mining fees” is defined as a consideration received or receivable for extraction in respect to a certain natural resource for the purposes of this Act. In respect of extraction activities of certain categories owners liable to tax for assessment year 2018/2019, the rates of charges have been specified in part IV of the First Schedule to the Act.b.Part IV of the Fist Schedule to the Act provides for fees or charge on services on Environment, Water, Energy and Natural Resources for mining within the County. Item 1-2504 of the said Part IV of the First Schedule provides for fees or charge on service for ballast.c.The Act does not describe the service provided by the 1st Respondent in exchange for collection of the ballast cess.

8. The facts set out in the Petition are as follows:

9. The Petitioner avers to have been engaged by the Kenyan Government to undertake the construction of the OLkaria 1 Unit AU6 Geothermal Project and also construction of the access roads within Hells Gate National Park. The said project is vital to both the national and county governments.

10. The Petitioner is using ballast excavated from its quarry sites within the 1st Respondent boundaries and transports the same.

11. The 1st Respondent’s Finance Act, 2019 does not describe the service it provides in exchange for the fee or charge demanded for cess for ballast. The 1st Respondent issued an invoice to the Petitioner titled “Sundry Debtors Invoice” dated the 2nd day of July, 2021 demanding Kshs. 531,900. 00 for the month of June, 2021 being cess payment for transporting ballast along Moi South Lake Road, which is classified as a class D road under the National Government

12. The Petitioner through its letter of the 28th July, 2021 addressed to the 1st Respondent protested to the said demand. As a consequent, on the 6th day of August, 2021, officials from the 1st Respondent County blocked the gate to the Petitioner’s quarry and prevented its workers from carrying out their business unless the demanded amount was settled.

13. The foregoing actions inhibited the Petitioner’s construction exercises on projects vital to the citizens of the 1st Respondent and the country at large.

14. The Petitioner in order to mitigate losses, made payments as demanded by the 1st Respondent under protest. It is the Petitioners case that the aforementioned projects are of national importance with far reaching benefits to members of the public including but not limited to job creation, enhancement of security, improvement of water networks and spurring economic growth.

15. The Petitioner further avers that the continued interference by the 1st Respondent shall attract adverse financial impact on the Government of Kenya.

16. Accordingly, the Petitioner sought the following reliefs:a.A declaration that the 1st Respondent’s demand for cess fees from the Petitioner for ballast under the Nakuru County Finance Act, 2019 is unlawful, unconstitutional and null and void.b.A declaration that the administration, management, control and taxation of mining activities and the services appurtenant is the sole prerogative of the National Government.c.A declaration that the actions of the 1st Respondent in continuing to levy/charge cess fees for ballast without proper legal framework expressly violates the provisions of the Constitution of Kenya.d.A declaration that part IV of the First schedule to the Nakuru Finance Act2019, in so far as the same relate to the imposition of fees and charges on ballast is unlawful, unconstitutional, null and void ab initio.e.A prohibitory injunction directing the 1st Respondent to stop the levying/charging of the cess fees for ballast in their area of jurisdiction.f.An order directing the 1st Respondent to refund the Petitioner Kshs. 531. 900. 00 being the sums remitted subject of the Sundry Debtors Invoice dated 2nd July, 2021. g.Costs of the Petition.

Responses 1st Respondent response 17. The 1st Respondent filed its affidavit in response to the Petition sworn by the County Receiver of Revenue on the 12th day of October, 2021. It averred that it was bestowed the duty to protect natural resources and the environment conservation which is a devolved function under Schedule IV of the Constitutionof Kenya.

18. It averred that the Constitution permits it to charge fees for any event and/or action that touches on natural resources within its borders as in the case herein. That the Mining Act No. 12 of 2016 makes provisions for charging of mining fees and charges with respect to extraction of natural resources within its borders.

19. That the disputed Finance Act was prepared as a Bill pursuant to the provisions of Article 209 of the Constitution and was passed by the 2nd Respondent after being subjected to public participation.

20. The 1st Respondent further averred that the authority to enact a Finance Act is provided for by the Public Finance Management Act, 2012 so as to provide avenues for revenue generation relating to County taxes, licences, fees and charges. The said Finance Act, 2019 provides for mining fees and charges therein; mining fees has been defined as consideration received or receivable for extraction of natural resources.

21. That the ballast in question is located within the borders of the 1st Respondent and the Petitioner is charged as per the prescribed amount for mining ballast within the 1st Respondent’s borders in line with Part IV Item 1-2504 of the said Finance Act.

22. It was 1st Respondent’s case that the Petitioner had been paying the said amounts and the charges are levied out of necessity and responsibility placed upon the 1st Respondent to protect and manage natural resources as it was under obligation to cover and/or cordon off quarry sites once constructions were completed. That the levies were for services rendered and were not related to the use of transport infrastructure within its borders that were being used by the Petitioner.

2nd Respondent’s response 23. The 2nd Respondent on the other hand filed a reply sworn by the County Assembly Clerk. It averred that it discharged its legislative mandate pursuant to the provisions of Articles 176 and 185 of the Constitution in ensuring that the Finance Act was enacted.

24. That furthermore, the said Finance Act was passed after a public participation process; that there is no discrimination on levies charged to the Petitioner as the charges for quarry operators within the borders of the 1st Respondent are uniform.

25. The 2nd Respondent urged the Court to dismiss the Petition with costs.

Petitioner’s Submissions 26. The Petitioner filed its submissions on the 7th March, 2022 in support of the Petition.

27. The first issue it addressed was whether the 2nd Respondent is a necessary party to the proceedings. It submitted that the 2nd Respondent was a necessary party as it was the body that passed the Nakuru County Finance Act, 2019 and pursuant to the provisions of Article 185 of the Constitution, the 2nd Respondent is tasked with ensuring that the legislations meet the relevant constitutional thresholds. Furthermore, the 2nd Respondent being an independent arm, can challenge a piece of legislation it has enacted, as in the instant case.

28. The Petitioner invited the Court to consider the dictumby Limo, Jin Bustra Saving and Credit Co-operative Society Limited & another v County Government of Tharaka Nithi County[2019] eKLR where the Court had this to say:“With due respect to the views expressed by the Petitioners' counsel in this petition, I hold the view that each arm of the County government is responsible for its actions in discharging of their respective responsibilities. I agree with the respondent's position that each County Government is a miniature of a National Government structure and in line with traditions and principles that govern National structure, the doctrine of separation of powers applies in equal measure. Each arm has its roles cut out and it behoves upon each arm to ensure that the roles have been carried out strictly as per the dictates of the Constitution and Statutory obligations. When they fail to adhere to the Constitutional and legislative demands, the County Executive is not answerable. The duty to undertake the legislative process and ensure that the Constitutional threshold are met is the responsibility of the County Assembly. In my view they are the ones better placed to explain how the process of legislation was undertaken and whether the legislation passed (Impugned Act) has the component of public participation that meets the Constitutional threshold as enunciated in the case of Gakura (supra) and the other decisions.39. I have held in other matters that have been placed before me such as in Republic -vs- County Government of Tharaka Nithi Exparte Mwirigi Mutua & 3 Others [2018] eKLRto successful impugn a piece of legislation, a party must include in its suit, the legislative body so that they are accorded an opportunity of being heard. To proceed without according the legislative body a chance of being heard is akin to condemning them unheard which flies in the face of doctrine of natural justice. A party must be heard as of right under Article 50(1) of the Constitution of Kenya 2010. My view has not changed because it is inconceivable that one can sure Mr "X" in order to get a relief from Mr. "Y". The Petitioners in this petition are clearly aggrieved by the action of omission by the County Assembly of Tharaka Nithi and this can be seen from the fact that they have cited a report from that body which indicates that the public participation in respect to the enactment of the impugned Act was "characterised by a myriad of challenges." The question posed is who between the County Executive, and County Assembly is better placed to explain whether it is true that there were a myriad of challenges in facilitating public participation? It is the County Assembly who is responsibly by law to answer those questions and in their absence it is unfair to render a determination that may be adverse to their role in enactment of the impugned Act, without giving them a chance to be heard. In my view suing the County Government of Tharaka Nithi without specifics as to which body the grievance is directed to is bad for want of specificity. The petitioners ought to have specifically sued both arms of the Government in order to address the grievance wholesomely. Instead they have directed their grievance to the executive arm, which in my view are the implementers of the laws passed by County Assembly. In common parlance, I view the petitioners action as taking actions against a spanner boy instead of including the owner of the garage. In this sense, the Executive arm are the spanner boys or the implementers of the legislation passed by the County Assembly. Of course they have a stake in the legislation passed that is why at times you find that sponsors of certain bills are the executive arm but sponsoring a bill is one thing, the passage of such a bill in my view is another and it is the sole responsibility of the County Assembly to ensure that the bills are passed in accordance with the Constitution and Statutory obligations. In the exercise of such functions, the County Assembly is independent or at least they are required to be independent and cannot act at the whims of the Executive at the expense of Wanjiku. That is what in my considered view, makes this petition fatally defective. The defect of not including the necessary bod or person renders my hands tied as I am unable to determine one way or another in respect of whether or not the impugned Act is Constitutional or not.”

29. On the second issue on the nature of the demand made by the 1st Respondent, it was the Petitioner’s submission that the levy was for cess for ballast. It was the Petitioner’s case that cess is a tax and not a fee or charge. The Petitioner submitted that since the impugned legislation did not state what services with respect to mining were provided by the 1st Respondent in the Act, they ought not to administer the mining taxes.

30. It was the Petitioner’s case that the legislation lacked clarity as on one part, the charges were for the product mined, and, on the other hand, they were for transportation services. Yet ironically, the 1st Respondent denied collection of the service charge in so far as transportation is concerned. The ambiguity and confusion therefore, was against the principle of clarity in taxation process.

31. On whether the 1st Respondent can levy any form of taxes on ballast, it was submitted by the Petitioner that the 1st Respondent’s claim that it has the responsibility to rehabilitate, cover and codon off the sites as services that it offers is not true or factual as the extractions are done on private properties. To this extent, the 1st Respondent has no mandate to rehabilitate private property. Reliance was placed in the Supreme Court of Kenya decision in Base Titanium Limited v County Government of Mombasa & Another (Petition 22 of 2018) [2021] KESC33 (KLR) (16 July 2021) (Judgment) where the court posited:“27. To our minds, the insertion of the words ‘for services’ in article 209(4), are a qualification to the charge of the services. Whereas a County can levy charges, it must do so in exchange for an amenity. Put differently, a County does not have the authority to charge a cess, levy or tax where they do not offer anything in return.”

32. The Petitioner urged the Court to find the Petition meritorious and allow it with costs.

1st Respondent’s Submissions 33. The 1st Respondent posed the issue on whether it had the power to levy taxes and charges. In answer thereto, submitted that pursuant to the provisions of Section 120(5) of the County Governments Act, it is mandated to make laws and regulations to give effect to the implementation and enforcement of tariff policies. It referred to the case of Kenya Pharmaceutical Association v City Council of Nairobi & 2 other [2015] eKLRin this regard, taking the position that, it was within its lawful mandate to levy taxes as long as there existed a legislation allowing it to do so.

34. On the issue of public interest, it was the 1st Respondent’s case that the Petition as presented did not meet the threshold and urged that it be dismissed.

Analysis and determination 35. I have carefully appraised myself with the Petition, the responses thereto and the respective parties’ submissions. I have deduced that the following issues arise for determination:i.Whether the 1st Respondent is acting within its mandate to levy cess charge for ballast as per the Nakuru County Finance Act, 2019. ii.Whether levy charged by the County Government of Nakuru for a cess charge for ballast as per the Nakuru County Finance Act, 2019 is constitutional and within the provisions of Article 209 of the Constitution.

Whether the 1st Respondent is acting within its mandate by levying cess charge for ballast as per the Nakuru County Finance Act, 2019. 36. The Petitioner contests that the provisions under which the cess is levied on ballast are ambiguous and lack clarity, thus, they defeat the essential principles of taxation. The 1st Respondent on the other hand points out that it is within its rights to charge the said cess on ballast as the same is provided for by a specific legislation, which is active. The 1st Respondent is of the position that the said legislation giving it mandate to levy cess on ballast was enacted by the 2nd Respondent which is the law-making body. The same having not been rendered unconstitutional and being in force as at the time of issuing the Sundry Invoice, it acted within its legislative. It relied on the case of Kenya Pharmaceutical Association v City Council of Nairobi & 2 others (Supra) where the Court held:“16. Since the powers which the Respondent purports to be exercising emanate from its Finance Act, unless and until the said legislation is successfully challenged, this Court cannot make a decision whose effect would be to nullify the provisions of the said legislation. The same position would apply to County Governments which have enacted similar provisions.”

37. I agree with the arguments by the 1st Respondent that it was acting within its mandate to impose cess on ballast as the same was provided for under the Finance Act, 2019. The 1st Respondent cannot thus, be faulted for exercising its mandate pursuant to the aforementioned legislation. Indeed, and without much emphasis, if the Petitioner is aggrieved or offended by the provisions in the legislation conferring powers for collection of the said cess, the best exit point is to challenge the specific provision(s) or the Act at large. In so far as the said Finance Act is in place, nothing fetters the 1st Respondent from implementing its provisions. My view then is that the Petitioner is complaining without basis and this court cannot, in the circumstances, come to its aid.

38. The Petitioner has urged that the 1st Respondent be ordered to refund Kshs. 531,900. 00 being sums remitted subject to the Sundry Debtors Invoice dated the 2nd day of July, 2021. It follows that, flowing from my finding above, this prayer cannot hold. As the Finance Act providing for collection of the cess is still in place, the amounts collected thereto were levied lawfully and a refund cannot be ordered. The 1st Respondent cannot be faulted for exercising its mandate pursuant to legislation that was, and is, still in place. The prayer for refund fails on the said basis.

Whether levy by the County Government of Nakuru of a cess charge for ballast as per the Nakuru Finance Act, 2019 is constitutional within the power of the County Government under Article 209 of the Constitution. 39. Article 209 of the Constitution provides as follows:“209. Power to impose taxes and charges1. Only the national government may imposea.income tax;b.value-added tax;c.customs duties and other duties on import and export goods; and excise tax.2. An Act of Parliament may authorise the national government to impose any other tax or duty, except a tax specified in clause (3)(a) or (b).3. A county may imposea.property rates;b.entertainment taxes; andc.any other tax that it is authorised to impose by an Act of Parliament.4. . The national and county governments may impose charges for the services they provide.5. The taxation and other revenue-raising powers of a county shall not be exercised in a way that prejudices national economic policies, economic activities across county boundaries or the national mobility of goods, services, capital or labour. [emphasis mine]

40. In Truckers Association of Kenya & 2 Others v County Government of Machakos [2020] eKLRwhere the Court was faced with the issue of charges being imposed on services provided, it was stated that;“128. Whereas both the national and county governments may impose charges for the services they provide, in this case the Respondent has not identified any services it is rendering in the activities in question.”

41. The point of departure by the parties herein is whether levy by the County Government of Nakuru of a cess charge for ballast as per the Nakuru Finance Act, 2019 is constitutional within the power of the County Government under Article 209 of the Constitution. Simply put, the Petitioner’s case is that the said cess for ballast by the 1st Respondent contravenes the provisions and contemplation under Article 209(4) of the Constitution.

42. The Petitioner contends that the cess on ballast pursuant to the Nakuru County Finance Act, 2019 at Section 36 as read with Section 2 of the said Act in Part IV of the First Schedule is levied with no corresponding services being offered by the Respondent. It is the Petitioner’s position that it harvests the ballast on a private property for use on projects which are assigned by the National Government within the 1st Respondent’s borders aimed at improving the services offered to the citizenry. The Petitioner is strongly opposed to the said cess on ballast as no services are provided by the 1st Respondent.

43. The 1st Respondent’s position on the other hand is that it is mandated to protect natural resources and the environment within its borders and as such, it offers services including but not limited to, rehabilitating and covering the quarries from which the extractions and excavations are done. On the foregoing basis, it rightfully levies cess for ballast.

44. The Supreme Court in Base Titanium Limited v County Government of Mombasa & Another (Petition 22 of 2018) [2021] KESC 33 (KLR) (16 July 2021) (Judgment) as cited by the Petitioner had this to say:25. Under the provisions of article 209, a county is empowered to raise revenue and levy taxes, rates, or other charges. Additionally, under sub article (4), the 1st respondent is authorized to impose charges for services provided. So then, what is the meaning of the word ‘services’ for purposes of application within the meaning of article 209(4) of the Constitution? The word ‘service’ as provided in the Oxford Dictionary of English 3rd Edition 2015 is “a system that provides something that the public needs, organized by the government or a private company”. This may include for County transport which entails County roads; street lighting; traffic and parking; public rods transport; and ferries and harbors, excluding the regulation of international and national shipping and matters related thereto comprise some of the functions and powers of County Governments under Schedule four part 2, section 5. 26. Taking that definition into account, a plain reading of that article reveals that the intention of article 209(4) of the Constitution, is to confer County Governments the discretionary powers to impose charges for services, more specifically, that they can charge or impose a payment in exchange of a public need or amenity.27. To our minds, the insertion of the words ‘for services’ in article 209(4), are a qualification to the charge of the services. Whereas a County can levy charges, it must do so in exchange for an amenity. Put differently, a County does not have the authority to charge a cess, levy or tax where they do not offer anything in return.28. Undoubtedly, the Constitution permits County Governments to impose charges for the realization of its powers under the Fourth schedule. But that power does not go unchecked, in the spirit of harmonious interpretation of the Constitution, in enacting the law, County Governments must heed the provisions of article 209 (5) and ensure that the charges invoked will not be detrimental to national economic policies, economic activities across boundaries or the national mobility of goods, services, capital or labor.”

45. In relation to the services charged, the 1st Respondent’s position is that services including rehabilitation and covering of the quarries are done by the 1st Respondent with respect to the Petitioner’s mining, extraction and transportation activities. A cursory look at Item No. 1-2504 at page 25 of the impugned legislation, gives the chargeable fees per trip for different types of vehicles. There is no contest as to the computation by any party.

46. The Petitioner, other than being of the position that it is not provided with the services as intimated by the 1st Respondent, goes further to specify the road in use for transportation of the ballast. It is the Petitioner’s case that the roads used in transportation of the ballast to the respective sites where it is carrying out the projects assigned by the National Government is a class D road which does not fall under the construction, maintenance and rehabilitation by the 1st Respondent.

47. The Supreme Court of Kenya had the following to say with respect to Class D roads in Base Titanium Limited v County Government of Mombasa & another (Supra) cited by the Petitioner:30. Having found that Counties can charge for services, it then falls to us to determine if the roads accessed by the Petitioners are those within the purview of the Counties. Mobility of goods in Kenya is governed by the Kenya Roads Act. Under that Act, the Kenya National Highways Authority (KeNHA), the Kenya Urban Roads Authority (KURA) and the Kenya Rural Roads Authority (KERRA), are established for among others “constructing, upgrading, rehabilitating and maintaining roads, controlling and implementing policies relating to national roads, rural roads and urban roads.”31. More specifically, section 22 of that Acts vests in these authorities’ power to: maintain, operate, improve and manage the roads under its jurisdiction; construct new roads; measure and assess the weights, dimensions and capacities of vehicles using any road and provide measures to ensure compliance with rules relating to axle load control, other provisions of the Traffic Act (cap. 403) and any regulations under this Act; and provide such amenities or facilities for persons making use of the services or facilities provided by the Authority as may appear to the Authority necessary or desirable.32. There is also established a Kenya Roads Board whose mandate under the Kenya Roads Board Act, is to oversee the road network in Kenya and coordinate maintenance, rehabilitation, and development, all funded by the Kenya Road Board Fund established under section 31 of the Kenya Roads Board Act.33. In High Court in Petition no 472 of 2014, Council of County Governors v Attorney General & 4 others [2015] eKLR the court clarified that the County governments will be in charge of Class D, E, F and G (County Roads), whilst the National government is in charge of Class A, B and C (National Trunk Roads). That court decision resulted in a subsequent Legal Notice No 2 of 2016, which clearly elucidated the road network management system in the Country. Following that notice, the Kenya Roads Board, further categorized the roads network into various classes.34. KeNHAis responsible for the development, rehabilitation, management, and maintenance of all National Trunk Roads comprising Classes S, A, and B roads. Class-S Road is defined as a highway that connects two or more cities and carries safely a large volume of traffic at the highest speed of operation; Class-A Road is defined as a highway that forms a strategic route and corridor connecting international boundaries at an identified immigration entry and exit points and international terminals such as international air or sea ports; and finally a Class-B Road, which is a highway that forms an important national route linking national trading or economic hubs, County Headquarters and other nationally important centres to each other and to the National Capital or to Class A roads.35. KURAis responsible for the management, development, rehabilitation and maintenance of all public roads in cities and municipalities except where the roads are categorized as national roads. After the January 2016 gazettement, KURA’s mandate was expanded to all counties in line with article 6(3) of the Constitution.36. On their part, KERRAis in charge of constructing, upgrading, rehabilitating and maintaining rural roads, controlling reserves for rural roads and access to roadside developments and implementing road policies in relation to rural roads. Under the classification of roads, KERRA is in charge of categories D, E, F, G, K, L, P, R, S, T, U, W.37. It is therefore clear to us that there is a distinction between national roads and county roads. National roads are maintained solely by the national government through KeNHAwhile Counties, maintain their roads in collaboration with the other authorities.

48. Flowing from the above and the Petitioner’s pleadings, it is clear that the 1st Respondent provides services in terms of road maintenance and rehabilitation with respect to Moi South Lake Road, under Class D which the Petitioner admits to be using. For this reason, the 1st Respondent has ably demonstrated that it provides services in return for the levies charged as cess as per the impugned legislation. Conversely, the Petitioner, in view of the foregoing deliberations, has failed to demonstrate the unconstitutionality of the impugned decision by the 1st Respondent to levy the subject cess. Again, the relief sought under this head is unmeritorious.

Disposition 49. In the result, I find that the Petition has no merit and I make the following orders:i.The Petition dated the 31st August, 2021 is dismissed.ii.This being a public interest litigation, I order each party to bear its own costs.

50. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DECEMBER, 2022G.W. NGENYE-MACHARIAJUDGEIn the presence of:Ms. Kimathi h/b for Mr. Onsare for the Petitioner.Mr. Mutuku Mbithi for the 1st Respondent.Ms. Lituda for the 2nd Respondent.