JUDGMENT
A. INTRODUCTION
1. This Petition dated 25th April 2024 challenges the constitutionality of the Kisii County Finance Act, 2023/2024 and the Kisii County Supplementary Appropriation Act enacted on 5th December 2023.
2. The Petitioner contends that the impugned legislation violates the Constitution, particularly Articles 209 and 210, by imposing taxes, levies, fees and charges outside the constitutional revenue-raising framework governing county governments.
3. The Petitioner further alleges that the enactment of the impugned legislation did not comply with the constitutional requirement of public participation as provided under Articles 10, 174(c), 196 and 201 of the Constitution.
4. The Petition also questions the legality of the supplementary budgeting process, contending that the adjustments to the county budget were undertaken in a manner inconsistent with the Public Finance Management Act, 2012 and the constitutional principles governing public finance.
5. The 1st and 2nd Respondents, namely the County Assembly of Kisii and the Speaker of the County Assembly, did not file responses to the Petition.
6. The 3rd Respondent, the County Government of Kisii, opposed the Petition through a replying affidavit sworn by Robert Ombasa and written submissions.
7. The Court is therefore called upon to determine whether the impugned legislation complies with the Constitution and whether the remedies sought by the Petitioner should be granted.
B. BACKGROUND OF THE PETITION
8. The Petitioner challenges the Kisii County Finance Act 2023/2024, which introduced and revised a range of county revenue measures including:
• parking fees
• market levies
• outdoor advertisement charges
• cess on agricultural produce
• quarry storage charges
• mineral transportation permits
• licensing fees for various business activities
9. The Petitioner argues that several of these charges amount to taxes disguised as regulatory fees and therefore exceed the constitutional taxing powers of county governments.
10. The Petition further alleges that the impugned Act introduced or varied revenue streams without corresponding enabling legislation, thereby contravening Articles 209 and 210 of the Constitution.
11. The Petitioner also contends that the process leading to the enactment of the Act lacked meaningful public participation, rendering the legislation unconstitutional.
C. RESPONSE BY THE 3RD RESPONDENT
12. The 3rd Respondent opposes the Petition on several grounds.
13. First, it argues that the Petition is moot because the Finance Act related to a financial year that has already lapsed.
14. Second, it contends that the County Government complied with the constitutional framework governing public finance and revenue-raising powers.
15. The Respondent maintains that public participation was conducted, including public hearings across sub-counties between 12th and 14th September 2023.
16. The Respondent also argues that the Petitioner did not demonstrate how the impugned charges violate the Constitution.
17. Further, the Respondent submits that granting the orders sought would disrupt essential county services and undermine public administration.
D. ISSUES FOR DETERMINATION
18. Having considered the pleadings, submissions and applicable law and the cited case authourities , the following issues arise for determination:
a. Whether the Petition is moot.
b. Whether the Kisii County Finance Act, 2023/2024 contravenes Articles 209 and 210 of the Constitution.
c. Whether the Act unlawfully introduced or varied revenue measures without enabling legislation.
d. Whether the constitutional threshold for public participation was met.
e. Whether the Kisii County Supplementary Appropriation Act violated constitutional public finance principles.
f. Whether the Court has jurisdiction to issue the reliefs sought .
g. Who bears the cost of the petition?
E. WHETHER THE PETITION IS MOOT
20. The Respondents argued that the Petition has been overtaken by events since the impugned Finance Act related to a financial year that has already lapsed.
21. Article 165(3)(d) of the Constitution grants the High Court jurisdiction to interpret the Constitution and determine the constitutionality of legislation. Constitutional questions concerning the legality of legislation cannot be rendered academic merely because time has passed. In Advisory Opinion Reference No. 2 of 2013 – Speaker of the Senate & Another v Attorney General & Others, the Supreme Court affirmed that courts must address constitutional questions of public importance even where circumstances have evolved.
22.Fiscal legislation is cyclical in nature. If constitutional violations were allowed to escape judicial scrutiny merely because a financial year has ended, unconstitutional practices would evade review. The issues raised in this Petition concern the structural legality of county revenue legislation, which is likely to recur annually. I find that the Petition raises live constitutional questions and is thus not moot.
F. CONSTITUTIONAL FRAMEWORK GOVERNING COUNTY TAXATION
26. The taxation powers of county governments are governed by Article 209 of the Constitution. Article 209(3) provides that a county may impose:
• property rates
• entertainment taxes
• any other tax authorized by an Act of Parliament.
28. Article 210(1) provides that:
“No tax or licensing fee may be imposed, waived or varied except as provided by legislation.”
29. These provisions establish clear constitutional limits on county taxation powers.
30. The Supreme Court emphasized the constitutional boundaries of county revenue powers in Council of Governors v Attorney General & 4 Others [2019] eKLR, where it held that county governments must operate strictly within the revenue framework established by the Constitution.
31. Similarly, the Court of Appeal in Base Titanium Limited v County Government of Mombasa & Another [2018] eKLR held that counties cannot introduce new taxes or levies outside the categories permitted by Article 209.
32. Taxation is an exercise of sovereign power and must therefore be strictly grounded in law. It is trite law that fiscal statutes must be strictly construed as was held
33. In Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 1 KB 64, it was famously stated:
“In a taxing Act one has to look merely at what is clearly said. There is no room for intendment.”
35. The same principle has been applied in Kenyan jurisprudence, including Keroche Industries Ltd v Kenya Revenue Authority [2007] KLR 240, where the Court emphasized that taxation must be anchored in clear legislative authority.
G. WHETHER THE FINANCE ACT INTRODUCED UNAUTHORIZED TAXES
36. The impugned Finance Act introduced a wide matrix of revenue streams including environmental levies, cess charges, quarry fees, advertising fees and transportation permits. Counties are permitted to impose charges for services rendered under Article 209 of the Constitution. However, a service charge must satisfy certain criteria:
• it must correspond to a specific service rendered
• it must be proportionate
• it must not constitute disguised taxation.
39. In Republic v County Government of Kiambu ex parte Robert Gakuru [2016] eKLR, the High Court held that counties cannot impose arbitrary levies disguised as service charges.
40. Upon examining the impugned schedules, the Court finds that some charges such as:
• market fees
• parking fees
• slaughterhouse fees
fall within legitimate service charges.
41. However, other charges including certain Cess levies and environmental charges appear to operate as general revenue-raising measures without clear linkage to services provided.
42. No evidence was placed before Court demonstrating that such levies are authorized by national legislation as required under Article 209(3).
43. To that extent, the impugned provisions exceed the constitutional limits of county taxation powers.
H. FAILURE TO AMEND PARENT STATUTES
44. The Petitioner further argued that the Finance Act introduced or varied charges without corresponding amendments to relevant sectoral legislation.
45. Enactment of Finance Act by the counties is primarily an annual exercise . It cannot be used to introduce substantive regulatory regimes without amending the underlying legislation governing those sectors.
46. In Law Society of Kenya v Attorney General [2019] eKLR, the Court held that legislation must comply with constitutional principles of clarity, legality and legislative hierarchy.
47. Where a Finance Act modifies charges without corresponding amendment of the relevant statutory framework, it undermines legal certainty.
48. In the present case, the Respondents did not demonstrate that the existing county by laws governing transport, outdoor advertising or environmental regulation was amended prior to altering fee schedules.
49. Such legislative technique is constitutionally improper.
I. WHETHER THERE WAS ADEQUATE PUBLIC PARTICIPATION
51. Public participation is a core constitutional value under Articles 10, 174(c), 196 and 201.
52. Section 87 of the County Government Act, 2012 provides that -Citizen participation in county governments shall be based upon the following principles—a.Timely access to information, data, documents, and other information relevant or related to policy formulation and implementation;b.Reasonable access to the process of formulating and implementing policies, laws, and regulations, including the approval of development proposals, projects and budgets, the granting of permits and the establishment of specific performance standards;c.protection and promotion of the interest and rights of minorities, marginalized groups and communities and their access to relevant information;d.legal standing to interested or affected persons, organizations, and where pertinent, communities, to appeal from or, review decisions, or redress grievances, with particular emphasis on persons and traditionally marginalized communities, including women, the youth, and disadvantaged communities;e.reasonable balance in the roles and obligations of county governments and non-state actors in decision-making processes to promote shared responsibility and partnership, and to provide complementary authority and oversight;f.promotion of public-private partnerships, such as joint committees, technical teams, and citizen commissions, to encourage direct dialogue and concerted action on sustainable development; and g.recognition and promotion of the reciprocal roles of non-state actors’ participation and governmental facilitation and oversight
53. Section 115 of the same Act provides:-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; and(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.
‘’
54. In the case of British American Tobacco Kenya Ltd v Cabinet Secretary for Health [2019] eKLR, and set the threshold for public participation to wit:
‘’(i)a constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance.
(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.
(v)Public participation is not an abstract notion; it must be purposive and meaningful.
(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.
(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.(ix)Components of meaningful public participation include the following:
a.clarity of the subject matter for the public to understand;
b.structures and processes (medium of engagement) of participation that are clear and simple;
c.opportunity for balanced influence from the public in general;
d.commitment to the process;
e.inclusive and effective representation;
f.integrity and transparency of the process;
g.capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.
54. The Respondents asserted that public participation forums were held across the county. I however note that the Respondents failed to place before the Court:
• Gazette notices inviting public views
• minutes of public hearings
• memoranda submitted by stakeholders
• reports demonstrating how public views were incorporated.
56. In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, the High Court held that public participation must be real, meaningful and not merely symbolic.In constitutional litigation, mere assertions are insufficient. Public participation must be demonstrated through verifiable evidence.
57. I therefore find that the Respondents failed to demonstrate that they conducted meaningful public participation.
J. ARTICLE 201 – PRINCIPLES OF PUBLIC FINANCE
59. Article 201 of the Constitution establishes the principles of public finance including:
• openness and accountability
• public participation in financial matters
• responsible financial management.
60. Fiscal legislation enacted without transparency or public engagement undermines these constitutional principles.
61. I find that the impugned legislation also falls short of the requirements of Article 201 of the Constitution.
K. SUPPLEMENTARY APPROPRIATION ACT
62. The Petitioner also challenged the Supplementary Appropriation Act of 5th December 2023.
63. Supplementary budgets are governed by Sections 135 and 154 of the Public Finance Management Act.
64. These provisions require that supplementary expenditures be justified and approved through transparent legislative processes.
65. However, the Petitioner did not place before the Court sufficient comparative financial schedules demonstrating constitutional violations in the supplementary budget.
66. In the absence of such evidence, the Court is cannot invalidate the Supplementary Appropriation Act .
L. EFFECT OF NON-RESPONSE BY 1ST AND 2ND RESPONDENTS
67. The County Assembly and the Speaker did not file responses to the Petition. This court has however independently interrogated the constitutionality of legislation without the responses of the 1st and 2nd respondents and found that it did not meet the constitutional threshold .
M. APPROPRIATE RELIEFS
JURISDICTION AND SEPARATION OF POWERS
69. The Respondents argued that this Court ought not interfere with the legislative competence of a County Assembly.This submission cannot stand in light of Article 23 of the Constitution, which confers upon this Court jurisdiction to enforce the Bill of Rights and interpret the Constitution. Judicial restraint is appropriate in fiscal matters, however, where constitutional boundaries are crossed, intervention is not only permissible but it is obligatory as court is the custodian of the Constitution . This court thus has the Jurisdiction to issue the orders sought as the Constitution has been breached by the respondents.
70. The courts have employed structural interdicts where there is need to progressively comply with constitutional provisions and to avoid stalling of public administration. This would also apply to fiscal legistlation as was held in the case of National Treasury v Okiya Omtatah [2019] eKLR.
N. DISPOSITION
71. Accordingly, the Court makes the following orders:
1. A declaration is issued that the Kisii County Finance Act, 2023/2024 is unconstitutional to the extent that it imposed or varied taxes, levies, fees or charges without proper enabling legislation consistent with Articles 209(3) and 210(1) of the Constitution.
2. A declaration is issued that the enactment process of the Act did not meet the constitutional threshold for public participation under Articles 10, 174(c), 196 and 201.
3. The Respondents shall enact a constitutionally compliant revenue-raising framework consistent with Articles 209 and 210 before the enactment of future Finance Acts W.E.F from 30.6.26. .
4. Each party shall bear its own costs, the matter raising issues of public interest.
It is so ordered.
T.A ODERA
JUDGE
27.2.26
DATED & DELIVERED VIRTUALLY AT KISII VIA TEAMS PLATFORM THIS 27TH DAY OF FEBRUARY 2026 IN THE PRESENCE OF MR ATEKA FOR THE PETITIONER , MR OCHIENG ODINGA FOR THE 3RD RESPONDENT & COURT ASSISTANT MR KIPCHIRCHIR .
A. INTRODUCTION
1. This Petition dated 25th April 2024 challenges the constitutionality of the Kisii County Finance Act, 2023/2024 and the Kisii County Supplementary Appropriation Act enacted on 5th December 2023.
2. The Petitioner contends that the impugned legislation violates the Constitution, particularly Articles 209 and 210, by imposing taxes, levies, fees and charges outside the constitutional revenue-raising framework governing county governments.
3. The Petitioner further alleges that the enactment of the impugned legislation did not comply with the constitutional requirement of public participation as provided under Articles 10, 174(c), 196 and 201 of the Constitution.
4. The Petition also questions the legality of the supplementary budgeting process, contending that the adjustments to the county budget were undertaken in a manner inconsistent with the Public Finance Management Act, 2012 and the constitutional principles governing public finance.
5. The 1st and 2nd Respondents, namely the County Assembly of Kisii and the Speaker of the County Assembly, did not file responses to the Petition.
6. The 3rd Respondent, the County Government of Kisii, opposed the Petition through a replying affidavit sworn by Robert Ombasa and written submissions.
7. The Court is therefore called upon to determine whether the impugned legislation complies with the Constitution and whether the remedies sought by the Petitioner should be granted.
B. BACKGROUND OF THE PETITION
8. The Petitioner challenges the Kisii County Finance Act 2023/2024, which introduced and revised a range of county revenue measures including:
• parking fees
• market levies
• outdoor advertisement charges
• cess on agricultural produce
• quarry storage charges
• mineral transportation permits
• licensing fees for various business activities
9. The Petitioner argues that several of these charges amount to taxes disguised as regulatory fees and therefore exceed the constitutional taxing powers of county governments.
10. The Petition further alleges that the impugned Act introduced or varied revenue streams without corresponding enabling legislation, thereby contravening Articles 209 and 210 of the Constitution.
11. The Petitioner also contends that the process leading to the enactment of the Act lacked meaningful public participation, rendering the legislation unconstitutional.
C. RESPONSE BY THE 3RD RESPONDENT
12. The 3rd Respondent opposes the Petition on several grounds.
13. First, it argues that the Petition is moot because the Finance Act related to a financial year that has already lapsed.
14. Second, it contends that the County Government complied with the constitutional framework governing public finance and revenue-raising powers.
15. The Respondent maintains that public participation was conducted, including public hearings across sub-counties between 12th and 14th September 2023.
16. The Respondent also argues that the Petitioner did not demonstrate how the impugned charges violate the Constitution.
17. Further, the Respondent submits that granting the orders sought would disrupt essential county services and undermine public administration.
D. ISSUES FOR DETERMINATION
18. Having considered the pleadings, submissions and applicable law and the cited case authourities , the following issues arise for determination:
a. Whether the Petition is moot.
b. Whether the Kisii County Finance Act, 2023/2024 contravenes Articles 209 and 210 of the Constitution.
c. Whether the Act unlawfully introduced or varied revenue measures without enabling legislation.
d. Whether the constitutional threshold for public participation was met.
e. Whether the Kisii County Supplementary Appropriation Act violated constitutional public finance principles.
f. Whether the Court has jurisdiction to issue the reliefs sought .
g. Who bears the cost of the petition?
E. WHETHER THE PETITION IS MOOT
20. The Respondents argued that the Petition has been overtaken by events since the impugned Finance Act related to a financial year that has already lapsed.
21. Article 165(3)(d) of the Constitution grants the High Court jurisdiction to interpret the Constitution and determine the constitutionality of legislation. Constitutional questions concerning the legality of legislation cannot be rendered academic merely because time has passed. In Advisory Opinion Reference No. 2 of 2013 – Speaker of the Senate & Another v Attorney General & Others, the Supreme Court affirmed that courts must address constitutional questions of public importance even where circumstances have evolved.
22.Fiscal legislation is cyclical in nature. If constitutional violations were allowed to escape judicial scrutiny merely because a financial year has ended, unconstitutional practices would evade review. The issues raised in this Petition concern the structural legality of county revenue legislation, which is likely to recur annually. I find that the Petition raises live constitutional questions and is thus not moot.
F. CONSTITUTIONAL FRAMEWORK GOVERNING COUNTY TAXATION
26. The taxation powers of county governments are governed by Article 209 of the Constitution. Article 209(3) provides that a county may impose:
• property rates
• entertainment taxes
• any other tax authorized by an Act of Parliament.
28. Article 210(1) provides that:
“No tax or licensing fee may be imposed, waived or varied except as provided by legislation.”
29. These provisions establish clear constitutional limits on county taxation powers.
30. The Supreme Court emphasized the constitutional boundaries of county revenue powers in Council of Governors v Attorney General & 4 Others [2019] eKLR, where it held that county governments must operate strictly within the revenue framework established by the Constitution.
31. Similarly, the Court of Appeal in Base Titanium Limited v County Government of Mombasa & Another [2018] eKLR held that counties cannot introduce new taxes or levies outside the categories permitted by Article 209.
32. Taxation is an exercise of sovereign power and must therefore be strictly grounded in law. It is trite law that fiscal statutes must be strictly construed as was held
33. In Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 1 KB 64, it was famously stated:
“In a taxing Act one has to look merely at what is clearly said. There is no room for intendment.”
35. The same principle has been applied in Kenyan jurisprudence, including Keroche Industries Ltd v Kenya Revenue Authority [2007] KLR 240, where the Court emphasized that taxation must be anchored in clear legislative authority.
G. WHETHER THE FINANCE ACT INTRODUCED UNAUTHORIZED TAXES
36. The impugned Finance Act introduced a wide matrix of revenue streams including environmental levies, cess charges, quarry fees, advertising fees and transportation permits. Counties are permitted to impose charges for services rendered under Article 209 of the Constitution. However, a service charge must satisfy certain criteria:
• it must correspond to a specific service rendered
• it must be proportionate
• it must not constitute disguised taxation.
39. In Republic v County Government of Kiambu ex parte Robert Gakuru [2016] eKLR, the High Court held that counties cannot impose arbitrary levies disguised as service charges.
40. Upon examining the impugned schedules, the Court finds that some charges such as:
• market fees
• parking fees
• slaughterhouse fees
fall within legitimate service charges.
41. However, other charges including certain Cess levies and environmental charges appear to operate as general revenue-raising measures without clear linkage to services provided.
42. No evidence was placed before Court demonstrating that such levies are authorized by national legislation as required under Article 209(3).
43. To that extent, the impugned provisions exceed the constitutional limits of county taxation powers.
H. FAILURE TO AMEND PARENT STATUTES
44. The Petitioner further argued that the Finance Act introduced or varied charges without corresponding amendments to relevant sectoral legislation.
45. Enactment of Finance Act by the counties is primarily an annual exercise . It cannot be used to introduce substantive regulatory regimes without amending the underlying legislation governing those sectors.
46. In Law Society of Kenya v Attorney General [2019] eKLR, the Court held that legislation must comply with constitutional principles of clarity, legality and legislative hierarchy.
47. Where a Finance Act modifies charges without corresponding amendment of the relevant statutory framework, it undermines legal certainty.
48. In the present case, the Respondents did not demonstrate that the existing county by laws governing transport, outdoor advertising or environmental regulation was amended prior to altering fee schedules.
49. Such legislative technique is constitutionally improper.
I. WHETHER THERE WAS ADEQUATE PUBLIC PARTICIPATION
51. Public participation is a core constitutional value under Articles 10, 174(c), 196 and 201.
52. Section 87 of the County Government Act, 2012 provides that -Citizen participation in county governments shall be based upon the following principles—a.Timely access to information, data, documents, and other information relevant or related to policy formulation and implementation;b.Reasonable access to the process of formulating and implementing policies, laws, and regulations, including the approval of development proposals, projects and budgets, the granting of permits and the establishment of specific performance standards;c.protection and promotion of the interest and rights of minorities, marginalized groups and communities and their access to relevant information;d.legal standing to interested or affected persons, organizations, and where pertinent, communities, to appeal from or, review decisions, or redress grievances, with particular emphasis on persons and traditionally marginalized communities, including women, the youth, and disadvantaged communities;e.reasonable balance in the roles and obligations of county governments and non-state actors in decision-making processes to promote shared responsibility and partnership, and to provide complementary authority and oversight;f.promotion of public-private partnerships, such as joint committees, technical teams, and citizen commissions, to encourage direct dialogue and concerted action on sustainable development; and g.recognition and promotion of the reciprocal roles of non-state actors’ participation and governmental facilitation and oversight
53. Section 115 of the same Act provides:-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; and(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.
‘’
54. In the case of British American Tobacco Kenya Ltd v Cabinet Secretary for Health [2019] eKLR, and set the threshold for public participation to wit:
‘’(i)a constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance.
(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.
(v)Public participation is not an abstract notion; it must be purposive and meaningful.
(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.
(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.(ix)Components of meaningful public participation include the following:
a.clarity of the subject matter for the public to understand;
b.structures and processes (medium of engagement) of participation that are clear and simple;
c.opportunity for balanced influence from the public in general;
d.commitment to the process;
e.inclusive and effective representation;
f.integrity and transparency of the process;
g.capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.
54. The Respondents asserted that public participation forums were held across the county. I however note that the Respondents failed to place before the Court:
• Gazette notices inviting public views
• minutes of public hearings
• memoranda submitted by stakeholders
• reports demonstrating how public views were incorporated.
56. In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, the High Court held that public participation must be real, meaningful and not merely symbolic.In constitutional litigation, mere assertions are insufficient. Public participation must be demonstrated through verifiable evidence.
57. I therefore find that the Respondents failed to demonstrate that they conducted meaningful public participation.
J. ARTICLE 201 – PRINCIPLES OF PUBLIC FINANCE
59. Article 201 of the Constitution establishes the principles of public finance including:
• openness and accountability
• public participation in financial matters
• responsible financial management.
60. Fiscal legislation enacted without transparency or public engagement undermines these constitutional principles.
61. I find that the impugned legislation also falls short of the requirements of Article 201 of the Constitution.
K. SUPPLEMENTARY APPROPRIATION ACT
62. The Petitioner also challenged the Supplementary Appropriation Act of 5th December 2023.
63. Supplementary budgets are governed by Sections 135 and 154 of the Public Finance Management Act.
64. These provisions require that supplementary expenditures be justified and approved through transparent legislative processes.
65. However, the Petitioner did not place before the Court sufficient comparative financial schedules demonstrating constitutional violations in the supplementary budget.
66. In the absence of such evidence, the Court is cannot invalidate the Supplementary Appropriation Act .
L. EFFECT OF NON-RESPONSE BY 1ST AND 2ND RESPONDENTS
67. The County Assembly and the Speaker did not file responses to the Petition. This court has however independently interrogated the constitutionality of legislation without the responses of the 1st and 2nd respondents and found that it did not meet the constitutional threshold .
M. APPROPRIATE RELIEFS
JURISDICTION AND SEPARATION OF POWERS
69. The Respondents argued that this Court ought not interfere with the legislative competence of a County Assembly.This submission cannot stand in light of Article 23 of the Constitution, which confers upon this Court jurisdiction to enforce the Bill of Rights and interpret the Constitution. Judicial restraint is appropriate in fiscal matters, however, where constitutional boundaries are crossed, intervention is not only permissible but it is obligatory as court is the custodian of the Constitution . This court thus has the Jurisdiction to issue the orders sought as the Constitution has been breached by the respondents.
70. The courts have employed structural interdicts where there is need to progressively comply with constitutional provisions and to avoid stalling of public administration. This would also apply to fiscal legistlation as was held in the case of National Treasury v Okiya Omtatah [2019] eKLR.
N. DISPOSITION
71. Accordingly, the Court makes the following orders:
1. A declaration is issued that the Kisii County Finance Act, 2023/2024 is unconstitutional to the extent that it imposed or varied taxes, levies, fees or charges without proper enabling legislation consistent with Articles 209(3) and 210(1) of the Constitution.
2. A declaration is issued that the enactment process of the Act did not meet the constitutional threshold for public participation under Articles 10, 174(c), 196 and 201.
3. The Respondents shall enact a constitutionally compliant revenue-raising framework consistent with Articles 209 and 210 before the enactment of future Finance Acts W.E.F from 30.6.26. .
4. Each party shall bear its own costs, the matter raising issues of public interest.
It is so ordered.
T.A ODERA
JUDGE
27.2.26
DATED & DELIVERED VIRTUALLY AT KISII VIA TEAMS PLATFORM THIS 27TH DAY OF FEBRUARY 2026 IN THE PRESENCE OF MR ATEKA FOR THE PETITIONER , MR OCHIENG ODINGA FOR THE 3RD RESPONDENT & COURT ASSISTANT MR KIPCHIRCHIR .