1. By a Petition dated 16th September 2024, the Petitioners herein against the Respondents seeking the following orders:
1) A Declaration that the outcome of this representative and/or class action suit shall apply to all ratable owners within Nakuru County.
2) A declaration that the purported inspection of Nakuru County Draft County Valuation Roll- 2017 as notified to the public by the 2nd Respondent herein which process is to run from 12th August, 2024 to I8th September, 2024 is illegal, unconstitutional, null and void ab initio.
3) A declaration that the 1 st Respondent's directive and public notice attempting to introduce a Draft County Valuation Roll for the year 2025-2035 without public participation is illegal and unconstitutional null and void ab initio.
4) A declaration that the proposed new rate struck and rates payable by the 1 st Respondent for Nakuru County as captured in the Draft County Valuation Roll for the year 2025-2035 without any publication, public participation and County Assembly's approval is illegal and unconstitutional null and void ab initio.
5) A declaration that the 2nd Respondent’s acts of preparing a new Valuation Roll while there is no substantive appointment of County Valuer is illegal null and void ab initio.
6) An Order of Judicial Review in the nature of an order of Certiorari to call for and quash the decision and public notice of the 1 st Respondent herein attempting to introduce a Draft County Valuation Roll for the year 2025-2035.
7) An Order of Judicial Review in the nature of an order of Certiorari to call for and quash the decision and the Nakuru County Valuation Roll- 2017 as notified to the public by the 2nd Respondent herein which draft valuation roll was being inspected from 12th August, 2024 to 18th September, 2024.
8) An Order of Judicial Review in the nature of an order of Certiorari to call for and quash the decision and the proposed new rate struck and rates payable by the 1St Respondent for Nakuru County as captured in the Draft County Valuation Roll for the year 2025-2035.
9) An order of perpetual injunction prohibiting and restraining the Respondents herein from, in any way whatsoever proceeding with the process of validation of the Nakuru County Valuation Roll, 2017 and the Respondents be compelled to prepare a valuation roll in strict adherence to the Nakuru County Valuation and Rating Act, 2023.
10) Compensation by way of general damages for violating and/or threatening to violate the guaranteed rights of the Petitioners.
11) Costs of this Petition.
12) Any other reliefs and/or orders as this Honourable Court may deem fit in the interest of justice.
2. By a Petition dated 18th September 2024, the Petitioner Dileep Manibhai Patel filed a Petition against the Respondents seeking the following orders:
a) A declaration that rights granted to the holders of freehold land entitle them to unlimited use and disposal of land in perpetuity and only subject to the regulatory powers of the national government, County government and other relevant state organs as set out at Articles 64 and 66 of the Constitution.
b) A declaration that the imposition of land rates by the Respondent to owners of freehold land is not one of the regulatory powers set out under Article 66 of the Constitution.
c) A declaration that to the extent that Section 6 and Section 11 of the Nakuru County Valuation and Rating Act makes the owner of freehold land liable to pay land rates , same is inconsistent with and in contravention of the provisions of Articles 64 (a) and 66 of the Constitution and should be declared null and void.
d) A declaration that the Nakuru County Draft Sub County Valuation Roll – 2017 is invalid, null and void to the extent that it forms the basis for the taxation of freehold land.
e) An order of certiorari to quash Nakuru County Draft Sub County Valuation Roll -2017 to the extent that it purport to charge land rates to owners of freehold land.
f) Costs of the Petition.
3. The Interested Parties filed an application for joinder to the Petition dated 30th October 2024, which was allowed by consent on 21st November 2024. The Interested Parties indicated to the court that they would support the Petition.
4. Petition No. E010 and E012 of 2024 were consolidated on 21st November 2024 with Petition No. E010 as the lead file where parties agreed to file responses and submissions to the main Petition. The court granted interim conservatory orders pending the hearing and determination of the Petition.
PETITIONERS’ CASE
BRIEF BACKGROUND TO THE PETITION
5. The Petition was supported by the Affidavit of Dr. Julius Wainaina, who had the authority to swear the affidavit on behalf of the other Petitioners. He deponed that the Petition arises from the Respondents’ attempt to introduce a new Draft Valuation Roll and impose revised property rates without complying with the legal and constitutional framework governing such processes.
6. The Petitioner stated that in or around 2017, the County government of Nakuru initiated the preparation of a Draft Valuation Roll for purposes of rating properties within the County. However, this exercise was carried out in clear contravention of the Valuation for Rating Act. Cap 236, which required prior approval from the Cabinet Secretary, a step that was never undertaken, and there were no regulations promulgated under Section 31 of the said Act to guide the valuation process.
7. It was the Petitioner’s case that the 1st Respondent, possibly noting that it had not complied with the law and acknowledging the procedural irregularities in the 2017 process, the County shifted focus towards enacting legislation aligned with the 2010 Constitution. This culminated in the enactment of the Nakuru County Valuation and Rating Act, 2023, which was assented to on 14th December 2023.
8. Despite the Act having been assented to in December 2023, it was not published in the Kenya Gazette within seven days as provided by law. Instead, it was belatedly published in the Kenya Gazette after seven months on 8th July 2024, which date also became its official commencement date.
9. The Petitioner further deponed that before the Act's commencement, and in contravention of the law, the County Executive Committee adopted the 2017 Draft Valuation Roll at its meeting held 10th June 2024. A public notice was later issued stating that the roll was prepared under both the Valuation for Rating Act and the Nakuru County Valuation and Rating Act, 2023.
10. The Petitioners contend that the said Draft Valuation Roll, having been prepared prior to the commencement of the Nakuru County Act, cannot be deemed valid or lawful under the new legislation, which does not apply retrospectively. Moreover, the transitional clause under Section 49 of the Nakuru County Act only saves existing valuation Rolls and not drafts.
11. The Petitioners further aver that the appointment of a County Valuer is a mandatory precondition to the preparation of any valuation Roll under the Nakuru County Act. That no such appointment has been made, gazetted, or approved by the County Assembly as required under Section 7 of the Act.
12. In addition to the failure to appoint a County Valuer, the Petitioner argued that the Respondent did not comply with the requirement to gazette the form of rating or the time of valuation, or to issue a declaration on the nature of valuation all mandatory procedural steps under Section 7(2) of the Act.
13. The Petitioner contends that the process also fell afoul of constitutional and statutory requirements for public participation, which the Act explicitly provides that before any valuation is undertaken, the County Government must engage the public and create awareness regarding the rationale and impact of property rating, which was never done. The ongoing public participation efforts at the time of filing this Petition were thus post facto and could not cure the original illegality.
14. The Petitioners also challenge the proposed new rates struck and rates payable, which were never subjected to public notice, consultation, or County Assembly approval as required under Section 36 of the Nakuru County Act. The Respondent introduced a blanket rate without disclosing the economic rationale or providing statutory notices in newspapers, as required by law.
15. The Petitioners maintain that the imposition of these new rates without proper legislative backing, public participation, or County Assembly approval is unlawful, arbitrary, and a violation of Articles 10, 35, 40.47, 209, 210, and 232 of the Constitution.
16. Consequently, the Petitioners seek declaratory and judicial review reliefs nullifying the draft Valuation Roll, 2017, the proposed new rate struck, and all subsequent administrative steps taken by the Respondents, on account of grave procedural and substantive irregularities that render the entire process unconstitutional and void ab initio.
17. The Second Petitioner, Dileep Manibhai Patel, swore an affidavit on 18th September 2024, in support of the Petition which has been captured above. He urged the court to allow the Petition as prayed.
18. The Interested Parties filed a supporting Affidavit sworn on 17th June 2025, by Andrew Mukite Musangi on behalf of the 2nd Interested Party. His disposition was in support of the Petition as elaborately enumerated by the 1st Petitioner Dr. Julius Wainaina. He urged the court to allow the Petition as prayed.
19. The 3rd Interested Party, Dr. Mohammed Malik Shabbir, also swore an affidavit in support of the Petition on 17th June 2025, and reiterated the averments as captured in the Petitioner’s affidavit and urged the court to allow the Petition as prayed.
RESPONDENTS’CASE
20. The Respondent filed a Replying affidavit sworn by Justin Mayaka Nyaroo, on 1st October 2024, and deponed that the Valuation Roll was initiated in 2017 pursuant to the provisions of Article 209 (3) (a) and Schedule IV of the Constitution, which mandates the County government to impose property rates within its jurisdiction.
21. The Respondent further deponed that the functions previously performed by the Minister under Cap 266 (LOK) have been subsumed by the County Executive Members for Lands and Finance, respectively, under the Nakuru County Valuation and Rating Act.
22. According to the Respondent, the County Executive Committee, pursuant to Section 49 of the Nakuru County Valuation and Rating Act 2023, adopted the Valuation Roll 2017. Further, pursuant to the provisions of Section 8(2) of the Nakuru County Valuation and Rating Act, 2023, the County Executive Committee Member is at liberty to engage the services of a private Valuer, who may be designated as a County Valuer for purposes of undertaking the preparation of the Valuation Roll or a Supplementary Valuation Roll. Subject to section 8 (3) of the Act.
23. The Respondent further stated that the Draft Nakuru Valuation Roll is not unconstitutional and that the Petitioners are putting the cart before the horse, as public participation is a continuous process that includes inspections and objections that are ongoing.
24. It was the Respondent’s disposition that the Nakuru County government has not changed the rates struck as alleged, as the rating process is yet to start as provided for in part VI of the Act 2023. The Respondent stated that the Petition is premature as there is a dispute Resolution Mechanism as set out under Section 28 of the Nakuru County Valuation and Rating Act 2023, and urged the court to dismiss the Petition with costs.
PETITIONERS’SUBMISSIONS
25. Counsel for the Petitioners filed submissions dated 22nd July 2025, and identified the following issues for determination:
a) Whether the Nakuru County Valuation and Rating Act, 2023, was lawfully published.
b) Whether the adoption of the 2017 Draft Valuation Roll contravenes the law by attempting to apply it retrospectively under the Nakuru County Valuation and Rating Act 2023.
c) Whether the process of introducing and approving the new rate struck (2%) and rates payable complies with Section 36 of the Nakuru County Valuation and Rating Act, 2023.
d) Whether the Petitioners' constitutional rights under Articles 10, 35, 40, 47, 60, 209(3)(a), 210(1), and 232 3a 40, 60, were violated by the Respondents' actions and,
e) Whether the Respondents' actions warrant the issuance of declaratory and judicial review orders as prayed in the Petition.
26. On the first issue as to whether the Nakuru County Valuation and Rating Act, 2023, was lawfully published, counsel relied on Article 199 of the Constitution of Kenya, which provides that County legislation does not take effect unless published in the Gazette. Further, clause (2) thereof permits both national and county legislation to prescribe additional but not lesser requirements governing such publication.
27. Mr. Karanja submitted that the County Governments Act, 2012, operationalizes the above constitutional publication requirement by stipulating timelines of publication. Section 25 of the Act imposes a strict statutory obligation which stipulates that a legislation passed by the County Assembly and assented to by the governor shall be published in the County Gazette and Kenya Gazette within seven days after assent. This makes the publication a mandatory constitutional and statutory threshold. A county legislation that falls afoul of this requirement is, a legal nullity incapable of acquiring the force of law.
28. Counsel relied on the case of Gacheru Kariuki & 3 Others V Attorney General &11 others [2017] eKLR, where the court underscores the provisions of Article 199, that County legislation does not take effect unless published in the Gazette.
29. Mr. Karanja argued that the Nakuru County Assembly passed the said Act in or around 2023, and the Governor assented to it on 14th December, 2023. However, despite the plain requirement under Section 25 of the County Governments Act, the Act was not published in the Kenya Gazette within the prescribed seven days, and was belatedly published in the Kenya Gazette on 8th July. 2024, a staggering delay of over seven months. Further, it is this date that is irregularly cited as the commencement date of the said legislation, in complete disregard of the peremptory statutory timeline.
30. Counsel therefore submitted that the belated gazettement of the Nakuru County Act, seven months after its assent, is not a harmless irregularity but a fundamental breach of express constitutional and statutory dictates as per Section 25 of the County Government’s Act and Article 199 of the Constitution.
31. On the second issue, as to whether the adoption of the 2017 Draft Valuation Roll contravenes the law by attempting to apply it retrospectively under the Nakuru County Valuation and Rating Act 2023, counsel relied on Black’s Law Dictionary (4th Edition) on the definition of retrospective, as a law which looks backward or contemplates the past, one which is made to affect acts or facts occurring or rights accruing before it came into force.
32. Counsel further relied on the Supreme Court case of Macharla & Another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR), where the court reaffirmed that statutes are presumed to operate prospectively unless the Legislature has explicitly or by necessary implication expressed an intention to the contrary. Counsel also cited the case of Republic V Joe Mucheru, Cabinet Secretary, Ministry of Information, Communication and Technology & 2 Others ; Katiba Institue & another (Ex Parte ) Immaculate Kasit, Data Commissioner, ( Interested Party ) Judicial Review Application E1138 of 2020) [2021] KEHC 122(KLR)
33. Mr. Karanja submitted that the 2nd Respondent is seeking to operationalize the Draft Valuation Roll prepared in the year 2017, under the guise of implementing the Nakuru County Valuation and Rating Act. 2023, which is a blatant and impermissible attempt to apply the 2023 legislation retrospectively. Similarly, counsel argued that from the public notice issued by the 2nd Respondent to the Petitioners, the Respondents are purporting to use the 2017 draft valuation roll as though it were prepared in accordance with the Nakuru County Valuation and Rating Act, 2023, yet the Act only commenced in July 2024.
34. Counsel referred the court to Section 49 of the Nakuru Valuation and Rating Act 2023, which contains the savings and transitional provisions as follows:
“49(1) Any existing Valuation Rolls prepared before the commencement of this Act shall be deemed to have been prepared under this Act.
(2) Where existing Valuation Rolls do not conform with the provisions of this Act, the County Government shall within twenty-four (24) months of the commencement of this Act bring them into conformity”
35. Mr. Karanja submitted that the transitional clause is confined to valuation rolls that had been duly completed and formalized prior to the commencement of the new law; therefore, it does not extend to draft valuation rolls that had not yet attained the status of a completed roll under the previous legal framework.
36. It was counsel’s submission that the Respondent’s current reliance on a draft prepared in 2017 is unlawful, as upon the commencement of the Nakuru Valuation and Rating Act 2023, in July, 2024, the 2017 draft roll ceased to have any legal standing as it had not matured into a completed valuation roll before the new statute came into force.
37. Additionally, the 2017 Draft Valuation Roll lacked legal validity from the outset, having been prepared in contravention of Section 3 of the Valuation for Rating Act Cap 266. without the requisite approval from the Cabinet Secretary, and in the absence of enabling regulations under Section 31.
38. Further, there was no operative legal framework to support its preparation at the time (2017), and consequently, the transitional clause under the Nakuru Valuation and Rating Act, 2023, cannot be invoked to legitimize a legally defective process. Therefore, even the exception permitting retrospective application of the law is inapplicable in the present circumstances.
39. On the issue as to whether the proposed new rate struck and rates payable by the 1st Respondent as captured in the Draft County Valuation Roll for 2025- 2035, are illegal, null and void ab initio for want of procedure, counsel submitted that the Petitioners discovered that the applicable rating within Nakuru County had been unilaterally altered, specifically, the rate struck had been arbitrarily increased, and new rates payable had been introduced,
40. According to counsel, this occurred without warning, consultation, or legal foundation, despite the fact that such increases imposed a heavy financial burden upon already distressed property owners amid harsh economic realities. Further, Section 36 of the Nakuru Valuation and Rating Act, 2023, prescribes a rigid and mandatory statutory framework for the determination and implementation of rates struck and rates payable by rateable property owners. This section vests the Respondent, the County Executive Committee Member responsible for finance, with clearly delineated legal obligations when setting the rate struck and rates payable.
41. Mr. Karanja listed the uncontroverted breaches by the Respondent as follows;
a) No Gazette Notice had been issued by the 3rd Respondent as mandated under Section 36(1), rendering the purported rate struck procedurally null and void;
b) No evidence whatsoever had been adduced to demonstrate that the Respondent considered the values, use, or prevailing economic conditions of rateable property as expressly required under Section 36(1) (a
c) No grounds or circumstances had been offered to justify the arbitrary imposition of a 2% rate struck in blatant violation of Section 36(1)(b);
d) No thirty-day notice was ever published in two newspapers of national circulation, thereby denying ratepayers the fundamental statutory right to submit objections or comments in accordance with Section 36 (2);
e) The proposed rate struck had not been tabled before the County Executive Committee for adoption, contrary to the clear provisions of Section 36(3); and
f) Most egregiously , the purported rate struck had never been submitted to, debated, or approved by the County Assembly, as is unequivocally required by Section 36(4).
42. Counsel therefore submitted that the Respondents have neither offered any justification for these unlawful actions nor explained the grave procedural flaws. Additionally, counsel submitted that the imposition of the 2% rate struck is irregular and should be struck down. Counsel relied on the cases of Republic vs. Returning Officer Of Kamukunii Constituency & The Electoral Commission of Kenya HCMCA No, 13 of 2008, and Republic V Transition Authority & Another Ex Parte Kenya Medical Practitioners, Pharmacists & Dentists Union (KMPDU) & 2 others [2013]eKLR, and urged the court to find that the proposed rates stuck and rates payable are unlawful, and unconstitutional.
43. On the issue as to whether the Petitioners' constitutional rights under Articles 10, 35, 40, 47, 60, 209(3)(a), 210(1), and 232 3a 40, 60, were violated by the Respondents' actions, counsel relied on the cases of National Assembly & another v Okoiti & 55 others [2024] KECA 876 (KLR), British American Tobacco Kenya PLC formerly British American Tobacco Kenya Limited V Cabinet Secretary for Ministry of Health &2 Others; Tobacco Control Alliance & another (Interested Parties ); Mastermind Tobacco Kenya Limited ( Affected Party) ( petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment), Joseph Enock Aura V Cabinet Secretary , Ministry of Health & 11 Others & 2 Interested Parties [2024]KEHC 473 (KLR0; Social Health Insurance Fund Judgment, where the court set out the guidelines of public participation as per Article 10 (2) of the Constitution, that public participation applies to all aspects of governance.
44. It was counsel’s submission that the Respondents, being public officers and State organs, are bound by Article 10 and the constitutional principles of transparency, accountability, and good governance; they bear a positive obligation to actively facilitate public participation in the formulation and implementation of policies and laws, particularly those with fiscal implications, such as property.
45. Additionally, counsel submitted that the conduct of the Respondents, as elaborated in the Petition, is evidence of disregard of Article 10 and the provisions of Sections 4. 5, 7, B, and 36 of the Nakuru Valuation and Rating Act 2023, as follows:
a) Purported to introduce a draft valuation roll without first undertaking effective public participation or public sensitization;
b) Anchored the 2017 draft valuation roll under a law Nakuru Valuation and Rating Act.2023, that only came into force in July 2024;
c) Failed to hold any consultative or stakeholder engagement forums with Nakuru County residents prior to the preparation and publication of the valuation or the proposed.
46. Mr. Karanja submitted that the Petitioners have demonstrated that the impugned process was wholly deficient in public participation and violated the spirit of Article 10 of the Constitution.
47. Counsel submitted that the right to access information under Article 35 of the Constitution is foundational to the exercise of all other rights, as it enables members of the public to make informed decisions, to participate meaningfully in governance, and to hold public officials accountable.
48. According to counsel, the Respondent deliberately failed to gazette the Nakuru County Valuation and Rating Act, 2023, for over seven (7) months after it received assent, which was not a mere omission or administrative lapse, but a conscious effort to withhold critical legislative information from the people to whom it applied.
49. Additionally, Section 36 of the said Act requires the publication of rates struck by the County Government, which was not done. Further, there was neither public notice, Assembly approval, no County Valuer nor gazettement of the rates, hence the process was opaque.
50. Mr Karanja submitted that the Respondents violated the Petitioners’ rights under Articles 40 and 60 of the Constitution by:
a) Seeking to impose property rates retrospectively and before commencement of the Nakuru County Valuation and Rating Act.
b) Introducing new rates struck and rates payable for Nakuru County residents without the County Assembly approval.
c) Introducing a new draft valuation roll without any prior public participation and public awareness.
d) Introducing excessive property rates and without prior consultation and participation of the public.
51. Under Article 47 of the Constitution, counsel cited the cases of Kituo Cha Sheria & 8 others v Attorney General [2013] eKLR, which referred to dicta in Minister of Health and Another v Treatment Action Campaign, where the Court held that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. Counsel further cited the case of Republic v Non-Governmental Co-ordination Board & another Ex Parte Transgender Education and Advocacy & 3 others [2014] eKLR. and submitted that the Respondents' unlawful attempt to revive the defunct draft Valuation Roll of 2017 and to impose new rate struck and rates payable falls short of the constitutional threshold of lawfulness, reasonableness, and procedural fairness as contemplated under Article 47 of the Constitution.
It was Mr. Karanja’s further submission that Articles 209 and 210 of the Constitution clearly mandate that any such imposition must be anchored in law, and must not be applied retrospectively. Further, a cardinal principle of taxation is that no tax may be imposed except as provided for by legislation, and that the retrospective application of tax laws is constitutionally impermissible.
53. Counsel listed the breaches arising from the unconstitutional process as follows:
a) The Respondents sought to impose property rates retrospectively in blatant disregard of the legal requirement that taxation must be prospective and founded on legislation already in force
b) The introduction of draft valuation roll was done without any prior public participation or public awareness, contrary to both constitutional and statutory dictate.
c) The new rates imposed are excessive and were introduced without consulting the affected public, denying residents the opportunity to interrogate and influence the process.
54. Counsel therefore submitted that the actions were contrary to Articles 232 and 201 of the Constitution of Kenya, 2010, which set the standards for public service and public finance, respectively. Article 232 (1) (d) and (e) explicitly require public participation and accountability in the provision of services and decision-making processes affecting the public.
55. On the issue of limitation of rights under Article 24 of the Constitution, counsel submitted that the Constitution allows for the limitation of certain rights, provided such limitation is lawful, reasonable, and justifiable in an open and democratic society; however, the burden lies with the State or any party seeking to justify a limitation to demonstrate that the requirements of Article 24 have been met.
56. Mr Karanja relied on the cases of Seventh Day Adventist Church (East Africa) Limited V Minister for Education & 3 Others [2014] eKLR, and S V Manamela & Another [2000] (5) BCLR 491 (CC), and submitted that the violations cannot be excused under the guise of public interest or revenue collection, as the limitation of rights in this Petition, is not only unjustified but also disproportionate and procedurally illegal.
57. On the last issue as to whether the Respondents' actions warrant the issuance of declaratory and Judicial Review orders as prayed for in the Petition, counsel submitted that the Petitioners have demonstrated, with clarity and precision, that the process leading to the publication, inspection, and intended implementation of the Nakuru County Draft Valuation Rolls of 2017 and 202 – 2035, was wholly deficient in public participation, lacked transparency, and was marred by procedural irregularities. That the actions not only offend the rule of law and principles of good governance under Article 10, but also violate the Petitioners' rights under Article 35. 40. 47, and 232, of the Constitution.
58. Counsel therefore urged the court to exercise its constitutional mandate and grant the orders sought in the Petition as prayed. Counsel relied on the case of Muthurwa Residents Welfare Association and the case of Daniel Ng’etich & 2 others v Attorney General & 3 others [2016] eKLR, where the court issued structured orders with timelines requiring the Respondents to file periodic affidavits, thereby enabling judicial oversight and ensuring compliance with its ruling.
59. Mr. Karanja submitted that, given the history of non-compliance, administrative irregularities, and constitutional breaches by the Respondents, such an order may be necessary to safeguard the efficacy of the court's Judgment to secure implementation within a reasonable timeframe and forestall a repetition of the unlawful conduct complained of.
INTERESTED PARTIES SUBMISSIONS
60. Counsel for the Interested parties filed submissions dated 21st July 2025, and submitted that the Interested parties associate themselves and join issues with the Petitioners in this Petition. Counsel reiterated the background of the Petition and the specific violation of the Respondents herein.
61. Counsel relied on the cases of Okiya Omtatah Okoiti & 2 others v Attorney General & 3 others [2014] eKLR, and Tononoka Steels Limited vs Eastern and Southern Africa Trade Development Bank Civil Appeal No. 255 of 1998, where the court held that the right of access to courts can only be taken away by a clear and unambiguous word of the Parliament of Kenya.
62. Counsel further relied on the cases of Anarita Karimi Njeru v Republic 1979 eKLR, cited in Ledidi Ole Tauta & Others v Attorney General & 2 others [2015] eKLR, where the principle that a person alleging contravention of a constitutional right must set out the right infringed, and the manner in which the right is alleged to have been infringed was settled.
63. Additionally, counsel for the Interested Parties relied on the case of Mumo vs. Trusted Society of Human Rights Alliance & 5 others Nairobi CA No. 290 of 2012, cited in Ledidi Ole Tauta & Others v Attorney General & 2 others [2015] eKLR, (supra) where the court held that a person who moves the court for judicial redress in public interest cases must be acting bona fide with a view to vindicating the cause of justice.
64. Mr. Situma submitted that the contents of the Petition and the evidence adduced in the Supporting Affidavit to the Petition go to the lengths of providing clear and overwhelming evidence to prove the case against the Respondents, who have totally failed to challenge the Petition by way of proper evidence.
65. Counsel acknowledged that the County Government of Nakuru is empowered to impose property rates within its jurisdiction, which power is derived from Article 209 (3) (a) of the Constitution of Kenya 2010; however, Article 210 (1) of the Constitution is binding on County Government which provides that no tax or license fee may be imposed, waived or varied except as provided by legislation. Further, the legislation must always precede a tax or a levy, for that matter, and cannot act retrospectively.
66. Counsel submitted that this was observed in the matter of Draft Valuation Roll 2005 of the Municipal Council of Nakuru Ex-parte Tom Wambua Reuben & 96 others [2009] eKLR, and relied on Section 3 of the Valuation for Rating Act, Cap 266 requires that, every local authority shall from time to time, but at least once in every ten years or such longer period as the Minster may approve, cause a valuation to be made of every rateable property within the area of the local authority in respect of which a rate on the value of land is, or is to be, imposed, and the values to be entered in a valuation roll.
67. Additionally, counsel relied on the case of Rockland Kenya Limited v Cabinet Secretary, Ministry of Petroleum and Mining & another (Petition 200 of 2019) [20231 KEHC 17264 (KLR) (Constitutional and Human Rights) (12 May 2023) (Judgment), and Martin Nyaga Wambora v County Assembly of Embu & 37 others [2015] eKLR, on Article 10 of the Constitution which stipulates that one of the hallmarks of the Kenyan Constitution is involvement of the citizens in the Country's governance. Specifically, the Government is obligated under Article 118 of the Constitution to facilitate public participation in the legislative process. Hence, the lack of public participation in enacting the said Act, and the subsequent preparation of the valuation roll by the Respondent for imposition on the Interested Parties herein, is illegal, unconstitutional, null, and void ab initio.
68. Counsel further faulted the Respondents for failing to appoint a County Valuer as provided under Section 7 of the Nakuru County Valuation and Rating Act, 2023, which was crucial for the implementation of the said Nakuru County Act. To date, no County Valuer has been appointed, gazetted, and/or approved by the County Assembly of Nakuru.
69. It was counsel’s submission that Section 36 of the Nakuru County Valuation and Rating Act, 2023, provides the procedure to be followed when setting rates struck and rates payable, which procedure in the instant case was not followed by the 2nd Respondent, who has nevertheless attempted to illegally propose new rates struck and rates payable.
70. Mr. situma submitted that the 3rd Respondent is mandatorily required under Section 36(1)(b) of the said Nakuru County Act to provide grounds and circumstances informing the determination of the rate struck and rates payable for the applicable financial year, however, to date no grounds and/or circumstances informing the public the reasons for the use of 2% rate struck has been given. Further, no thirty (30) days' notice in two newspapers with nationwide circulation has been published to introduce the new rate struck and rate payable.
71. In conclusion, counsel urged the court to grant the prayers sought in the Petition dated 16th September 2024.
PETITIONER IN PETITION NO E 012 OF 2024’S SUBMISSIONS
72. Counsel filed submissions dated 4th July 2025, and identified two issues for determination: firstly, whether there is a conflict between county legislation and the national legislation, and secondly, whether county legislation has the power to impose land rates on freehold land.
73. Counsel submitted that the purpose of the legislation was to impose land rates and to value parcels of land within its jurisdiction for purposes of the imposition of land rates. That Act was passed on 4th December 2023, but it came into force on 8th July 2024. That in the intervening period, Parliament passed the National Rating Act No 15 of 2024, which Act was assented to on 4th December 2024, and its commencement date was 24th December 2024.
74. The objective of that Act was inter alia to provide a comprehensive framework for the imposition of rates on land by county governments. It proceeded from the policy and constitutional consideration that the imposition of rates is a matter which cannot be effectively regulated by individual counties and that the imposition of rates is a matter that requires uniformity across the country by providing uniform norms and a national policy.
75. Counsel relied on Section 5 of the National Rating Act, which exempts freehold agricultural land from the imposition of rates. It provides that the Act shall apply to all rateable property within the respective county government except freehold agricultural land. Further, section 8 of the Act defines a rateable owner in relation to property in land as a person who holds a leasehold where the unexpired residue of the term is not less than twenty-one years, and there is an intention to confer ownership.
76. Counsel submitted that the valuation roll included parcels of land which are held under the freehold tenure system, and that the respondent sought to impose land rates at the rate of 2% of the value of the parcels of land. The imposition of the land rates ipso facto and the charging of the rates at 2% of the value of the freehold land are the two issues that informed the filing of this Petition.
77. Mr Githui further submitted that the petition challenges the provisions of the Nakuru County Valuation and Rating Act to the extent that it purports to impose land rates on freehold land and the valuation roll to the extent that it seeks to implement the taxation policy imposed by the Nakuru County Valuation and Rating Act.
78. Counsel stated that the Respondent, in its response to the petition, confirmed that it seeks to impose land rates on owners of freehold property within the County (paragraphs 3 and 4 of the response). Paragraphs 11 and 12 of the response addressed the issue of alternative forums to challenge the inclusion of the freehold land in the valuation roll.
79. Counsel addressed the doctrine of exhaustion, which was raised by the Respondent, and submitted that the doctrine of exhaustion of local remedies proceeds from the premise that if there exists a procedure and a remedy outside the constitution, that remedy should be exhausted before a party can file a constitutional petition. The doctrine seeks to postpone but not to defeat judicial consideration of a constitutional matter as it encourages alternative dispute resolution.
80. Counsel cited the case of Anthony Miano & others v Attorney General & others [2021] eKLR, and submitted that courts have formulated principles applicable in that a party who pleads the existence of an alternative forum has to show that the alternative forum or remedy actually exists. A party cannot be faulted for failing to exhaust a remedy or forum that does not exist.
81. Additionally, counsel relied on the case of John Githui v Trustees, Nakuru Golf Club [2019] eKLR, and submitted that it is not enough for a party to plead that an alternative forum has been provided under a statute; it has to be shown by way of empirical evidence that the forum indeed exists. Further, the court will not decline jurisdiction in favour of the alternative remedy if there exist exceptional circumstances which would militate against reference of the matter to the alternative forum.
82. It was Mr. Githui’s further submission that the doctrine of exhaustion will not apply if it will not serve the values enshrined in the Constitution or the law, particularly where a party pleads issues that border on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.
83. Counsel relied on the case of Geoffrey Muthiga Kabiru & 2 others – vs Samuel Munga Henry & 1756 others [2015] eKLR (cited with approval in Anthony Miano & others v Attorney General & others [2021] eKLR). On the second exceptional circumstance, counsel submitted that it relates to the quality of audience that a party may get in the alternative forum, as the court will not decline jurisdiction in favour of alternative forum where a party may not get quality audience, and relied on the cases of Jeremiah Memba Ocharo v Evangeline Njoka & 3 others [2022] eKLR, National Gender and Equality Commission v Majority Leader & others-Petition No. 1 of 2019 and the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR.
84. It was counsel’s submission that under Article 24 (3) of the Constitution, the Respondent has the legal burden to justify the limitation of that right, and that the Respondent ought to demonstrate that the alternative mechanism indeed exists, which the Respondent has failed to do in this regard. Section 28 of the Nakuru County Valuation and Rating Act refers to alternative dispute resolution before the filing of judicial proceedings; it has not been shown that such an alternative dispute resolution mechanism has been established. The existence of a statutory framework for the resolution of disputes and the actual existence of such a forum are distinct matters. Counsel therefore submitted that without a clear indication that there is a statutory framework for the resolution of disputes and evidence that the mechanism has been established, this court’s jurisdiction cannot be ousted.
85. Additionally, counsel submitted that Section 23 of the Nakuru County Valuation and Rating Act provides for the establishment of a Valuation Tribunal as the forum for resolution of the disputes; however, that Tribunal is yet to be established. Section 25 of that Act provides that the jurisdiction of the Tribunal is the determination of the objections to the valuation roll.
86. Mr Githui argued that the Tribunal, which has not been established, lacks jurisdiction to determine the issues of conflict between the county legislation and the national legislation and the question of the interplay between the duty of the county to levy land rates and the rights of owners of freehold land under Article 66 of the Constitution.
87. On the issue of conflict between the Nakuru County Valuation and Rating Act and the National Rating Act, counsel submitted that Article 191(2) of the Constitution provides that in the event of a conflict between national legislation and county legislation, the national legislation will prevail if two disjunctive conditions are met. The first condition is where the national legislation applies uniformly across the country, and the following conditions are met:
a) The matter cannot be effectively regulated by individual counties
b) The national legislation provided for norms, standards and policies to ensure uniformity.
c) The national legislation is necessary to ensure inter alia economic unity and promotion of economic activities across counties
88. Counsel further relied on the cases of Eastern Produce Kenya Ltd & 3 others v County Government of Nandi & another [2019] eKLR, and Africa Rafiki Ltd 2 others v Nairobi City County Government 3 others 2015 KEHC 7895(KLR), where the court observed that Article 191 requires a harmonious interpretation between the national and county legislation. By creating uniformity, the National Rating Act seeks to maintain economic unity, thereby promoting economic activities within and between counties. It was counsel’s submission that the extent to which the Nakuru County Valuation and Rating Act is in conflict with the National Rating Act, the same is unconstitutional.
89. Counsel urged the court to allow the Petition as prayed.
RESPONDENTS' SUBMISSIONS
90. Counsel for the Respondent filed submissions dated 4th December 2025, relied on the Replying affidavit and identified the following issues for determination:
a) Whether the Petitioners ought to approach the court in the first instance.
b) Whether the Respondent violated the principle of public participation in preparing the Draft Valuation Roll 2017.
c) Whether the adoption of the Draft Valuation Roll was unlawful.
91. On the first issue on the doctrine of exhaustion and constitutional avoidance, counsel relied on the cases of Benard Murage V Fine Serve Africa Ltd & 3 others [2015]eKLR, Speaker of National Assembly V James Njenga Karume [1992], where the court held that not every violation of law must be raised before the High Court as a constitutional issue and where there exists an alternative remedy, the procedure should be strictly followed.
92. Mr Nyamwange submitted that section 28 of the Nakuru County Valuation and Rating Act provides for dispute resolution before resorting to judicial proceedings, That the Petitioners have failed to take the steps contemplated under Section 28 of the Act and urged the court to refer the matter to the dispute resolution mechanism contemplated in the Act.
93. On the issue whether the Respondents violated the principle of public participation, counsel relied on the cases of Mui Coal Basin Local Community & 15 others vs Permanent Secretary Ministry of Energy & 17 others [2015] eKLR, David Ndii & others vs. Attorney General & others [2021 eKLR, Doctors for Life International vs Speaker of the National Assembly & Others (CCT 12/05) [2006] ZACC 11, and submitted that public participation is procedural as it must not only be done but seen to be done.
94. Additionally, counsel submitted that contrary to the allegation by the Petitioners, the County government of Nakuru was in the process of conducting public participation, as the inspection was to run from 12th August 2024 to 18th September 2024, therefore the Petition is premature.
95. On the issue as to whether the adoption of the Draft Valuation Roll 2017 was unlawful, counsel submitted that Article 209 (3) (a) of the Constitution of Kenya, County governments are empowered to impose property taxes as a means of generating revenue within their jurisdiction, and in compliance with this constitutional mandate, the 1st Respondent initiated the Nakuru County Valuation Roll – 2017. Further, Schedule IV of the Constitution assigns valuation and rating functions to the County governments, thereby legitimizing the Respondent’s actions.
96. Mr. Nyamwange relied on section 22 of the Interpretation and General Provisions Act, which provides that where a written law repeals and substitutes provisions, the repealed written law shall remain in force until the substituted provisions come into operation. Counsel therefore submitted that prior to the enactment of the Nakuru County Valuation and Rating Act 2023, the preceding Rating Act CAP 267, was operational but was repealed in December 2024.
97. It was counsel’s further submission that there was no requirement of consent from the Cabinet Secretary but from the County Executive Member. Counsel relied on the case of Tata Chemicals Magadi Limited v County Government of Kajiado (Civil Appeal 530 of 2019) [2025] KECA 1721 (KLR) (24 October 2025) (Judgment), and submitted that the Court of Appeal held that failure to gazette a county Bill does not render the legislation null and void but put in abeyance, and the existing law remains applicable.
98. Additionally, counsel relied on the case of Mombasa Law Society & 2 others v County Government of Mombasa (Environment & Land Petition 12 of 2020) [2022] KEELC 1 (KLR) (10 February 2022) (Judgment), where the court acknowledged the power of the county government to impose taxes as long as the process is grounded in a lawful valuation process.
99. On the issue of appointment of a Valuer, counsel relied on section 8(2) of the County Valuation and Rating Act, which gives the 2nd Respondent liberty to appoint a private valuer who may act in the capacity of a county Valuer for purposes of preparing a valuation Roll, hence the Petitioners' argument that the Respondent had not appointed a County Valuer is flawed.
100. Counsel therefore urged the court to dismiss the petition as the Valuation process was initiated not to impose arbitrary rates, but to update the land register in compliance with legal obligations.
ANALYSIS AND DETERMINATION
101. These are two Petitions involving the same issues in relation to the Nakuru County Draft Valuation Roll 2017, alleging illegality, lack of public participation, non- appointment of a County Valuer, breach of constitutional rights, the doctrine of exhaustion/ constitutional avoidance, and the issue of whether land rates can be imposed on freehold land. The Interested Parties who were joined to the Petition by consent supported the Petition as their rights were also alleged to be affected by the Nakuru County Draft Valuation Roll 2017, which is the subject of this Petition.
102. The two Petitions were consolidated, and Petition No. E010 was chosen as the lead file. From the pleadings, the issues that arise for determination in the Petitions are as follows:
a) Whether the Petitioners have exhausted all other means of dispute resolution before instituting this petition in this Honourable court.
b) Whether the adoption of the 2017 Draft Valuation Roll contravenes the law by attempting to apply retrospectively under the Nakuru County Valuation and Rating Act 2023.
c) Whether the Nakuru County Valuation and Rating Act, 2023, was lawfully published.
d) Whether the Respondent violated the principle of public participation in preparing the Draft Valuation Roll 2017.
e) Whether the process of introducing and approving the new rate struck (2%) and rates payable complies with Section 36 of the Nakuru County Valuation and Rating Act, 2023.
f) Whether County legislation has power to impose land rates on freehold land.
g) Whether the Petitioners' constitutional rights under Articles 10, 35, 40, 47, 60, 209(3)(a), 210(1), and 232 3a 40, 60, were violated by the Respondents' actions.
103. The first issue for determination is whether the Petitioners have exhausted dispute resolution mechanisms before filing this Petition. In the case of Republic vs National Environment Management Authority ex-parte Sound Equipment Limited [2011] eKLR, the court held that the doctrine of exhaustion is not absolute and that it should not be applied mechanically where alternative forums are incapable of granting effective and sufficient forms of relief.
104. The court is also cognizant of the application of the doctrine of exhaustion as was held in the case of Geoffrey Muthinja & Another Vs Samuel Muguna Henry & 1756 others (2015) eKLR, (Supra) that ;
‘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 mechanism in place for resolution outside of courts.’
105. Similarly, in the case of Anthony Miano & others v Attorney General & others [2021] eKLR, courts have formulated principles applicable, and a party who pleads the existence of an alternative forum has to show that the alternative forum or remedy actually exists. A party cannot be faulted for failing to exhaust a remedy or forum that does not exist. In this case, the Respondent just stated that there is an alternative dispute resolution mechanism as provided for under section 28 of the Nakuru County Valuation and Rating Act 2023, but did not tell the court whether such a mechanism is in place and operational. It was incumbent upon the Respondent, who alleged that there exists a dispute resolution mechanism, to table/inform the court of such existence and whether it is operational. This was lacking. The court cannot second-guess whether such an institution or mechanism exists and make a determination that the Petitioners have not flouted the doctrine of exhaustion. The court is cognizant of the provisions of the National Rating Act 2024, which establishes a Rating Tribunal that has not been operationalized
106. Additionally, the issues raised in this Petition involve the imposition of land rates on freehold land and the violation of constitutional rights, which can only be determined by the court. Further, the court will not decline jurisdiction in favour of the alternative remedy if there exist exceptional circumstances which would militate against reference of the matter to the alternative forum.
107. I therefore find that this is the right forum for the resolution of the dispute between the Petitioners and the Respondents.
108. On the issue of whether the adoption of the 2017 Draft Valuation Roll contravenes the law by attempting to apply retrospectively under the Nakuru County Valuation and Rating Act 2023, Black’s Law Dictionary (4th Edition) defines retrospective as a law which looks backward or contemplates the past, one which is made to affect acts or facts occurring or rights accruing before it came into force.
109. In the Supreme Court case of Macharla & Another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR) (supra), the court reaffirmed that statutes are presumed to operate prospectively unless the Legislature has explicitly or by necessary implication expressed an intention to the contrary. Similarly, the cases of Republic V Joe Mucheru, Cabinet Secretary, Ministry of Information, Communication and Technology & 2 Others; Katiba Institute & another (Ex Parte ) Immaculate Kasit, Data Commissioner, ( Interested Party ) Judicial Review Application E1138 of 2020) [2021] KEHC 122(KLR), emphasized the issue of non- retrospective application.
110. It is therefore not lost to the court that the 2nd Respondent is seeking to operationalize the Draft Valuation Roll prepared in the year 2017, under the pretext of implementing the Nakuru County Valuation and Rating Act. 2023, which in essence would amount to the application of the 2023 legislation retrospectively.
111. It is also evident from the public notice issued by the 2nd Respondent to the Petitioners that the Respondents wanted to use the 2017 Draft Valuation Roll, as though it were prepared in accordance with the Nakuru County Valuation and Rating Act, 2023, yet the Act commenced in July 2024. This would be absurd and irregular.
112. The court recognized the mandate of the Respondents to impose taxes within its jurisdiction, but it has to be done within the law, following the laid down procedures. The Respondent wants to flout the same laws, procedures, and regulations that they enact to guide processes.
113. The issue of whether the Nakuru County Valuation and Rating Act, 2023, was lawfully published, Article 199 of the Constitution of Kenya provides that County legislation does not take effect unless published in the Gazette. Further, clause (2) thereof permits both national and county legislation to prescribe additional but not lesser requirements governing such publication. Section 25 of the County Governments Act, 2012, imposes a strict statutory obligation that stipulates that a legislation passed by the County Assembly and assented to by the governor shall be published in the County Gazette and Kenya Gazette within seven days after assent, which is mandatory in nature, and if not adhered to, the same is a nullity. See the case of Gacheru Kariuki & 3 Others V Attorney General &11 others [2017] eKLR, where the court held that County legislation does not take effect unless published in the Gazette.
114. In the current Petition, the Nakuru County Assembly passed the said Act in 2023, and the Governor assented to it on 14th December, 2023, however, the Act was not published in the Kenya Gazette within the prescribed seven days, and was belatedly published in the Kenya Gazette on 8th July, 2024, which is a period of more than seven months. The Respondent was silent on this irregularity. This was in breach of Section 25 of the County Government’s Act and Article 199 of the Constitution.
115. On the issue of whether the Respondent violated the principle of public participation in preparing the Draft Valuation Roll 2017, Article 10 (2) a of the Constitution outlines public participation as one of the national values and principles of governance, which bind all state organs and public officers. Similarly, Article 69(1) (d) of the Constitution provides that:
…the State shall encourage public participation in the management, protection and conservation of the environment.”
116. The Supreme Court case of British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment) established the following guiding principles for public participation:
(i) As 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.
117. Similarly, in the Court of Appeal case of Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR, the court held that :
[20]“…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation,..”
118. The court also emphasized that public participation must include and be seen to include the dissemination of information, invitation to participate in the process, and consultation on the legislation. That is, people must be accorded an opportunity to participate in the legislative process, and this is a question of fact to be proved by the party that was required to comply with this constitutional requirement, that indeed there was compliance.
119. The Petitioners and the Interested Parties relied on Article 10 of the Constitution, which stipulates that one of the hallmarks of the Kenyan Constitution is the involvement of the citizens in the Country's governance. Specifically, the Government is obligated under Article 118 of the Constitution to facilitate public participation in the legislative process. Therefore, the lack of public participation in enacting the said Act, and the subsequent preparation of the valuation roll by the Respondent for imposition of the rate struck and rate payable, is illegal and unconstitutional
120. In the case of Richard Owuor & 2 others (Suing on behalf of Busia Sugarcane Importers Association versus Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries and Cooperatives & 8 others [2020] eKLR, Justice Mrima made the following observations: -
‘‘Consultations or stakeholders’ engagement tends to give more latitude to key stakeholders in a given field to take part in the process towards making laws or formulations of administrative decisions which to a large extent impacts on them. That is because such key stakeholders are mostly affected by the law, policy or decisions in a profound way. Therefore, in appropriate instances a Government agency or a Public Officer undertaking public participation may have to consider incorporating the aspect of consultation or stakeholder’s engagement…’’
121. Similarly, in the case of Kenya Human Rights Commission vs. Attorney General & Another [2018] eKLR, the court held that:
“Once a petitioner attacks the legislative process on grounds that the law making process did not meet the constitutional standard of public participation, the respondent is under a legal obligation to demonstrate that the legislative process did meet the constitutional standards of public participation...there was no attempt on the part of the respondent to show that there was any semblance of public participation in the legislative process leading to the enactment of the impugned Contempt of Court Act. That being the state of affairs, the court has no option but to agree with the petitioner that there was violation of an important constitutional step in the form of public participation and the Act fails this constitutional compliance step.”
122. The Respondents did not tender any evidence that they had conducted any public participation, if any. Counsel for the Respondent alluded to the fact that they were in the process of conducting public participation, which was scheduled to run from 12th August to 18th September 2024. Even if they were to conduct the public participation, it would have been grounded on a flawed foundation where they were relying on the 2017 Draft Valuation Roll, which was to be applied retrospectively against the law.
123. Section 36 provides as follows:
(1) The County Executive Committee Member responsible for finance shall propose the Rates Struck and Rates payable by rateable owners through publication in the Kenya Gazette;
(a) In setting up the Rate Struck and Rates payable, the County Executive Committee Member shall take into consideration the values and use of rateable property and prevailing economic situation; and
(b) The County Executive Committee Member shall provide grounds and circumstances informing the determination of the Rate Struck and Rates for the applicable financial year.
(2) In addition to subsection (1), the County Executive Committee Member shall publicize the Rate Struck, Rates payable and a thirty (30) days’ notice in respect of any written submissions to the Rate Struck and Rates payable by rateable owners in two newspapers with nationwide circulation.
(3) The County Executive Committee Member shall upon the expiry of the thirty (30) days’ Notice, table the proposed Rate Struck and Rates payable for adoption by the County Executive Committee.
(4) The County Executive Committee member shall within seven (7) days submit the adopted Rate Struck and Rates payable to the County Assembly for consideration and Approval.
(5) For avoidance of doubt, any other subsequent amendment to the Rate Struck and Rates payable shall be through the Finance Act.
124. Section 36 of the Nakuru Valuation and Rating Act, 2023, prescribes clear provisions on what steps have to be taken for the proposal of Rates Struck and Rates payable through publication in the Kenya Gazette. This is where the rain started beating the Respondent by failing to adhere to the strict provisions under Section 36 of the Act. There is no evidence that a gazette Notice was issued by the 3rd Respondent as mandated under Section 36(1), rendering the purported rate struck procedurally null and void. The Respondent was obligated to consider the values, use, or prevailing economic conditions of rateable property as expressly required under Section 36(1) (a), but there was no evidence adduced on the same.
125. Similarly, grounds or circumstances had been offered to justify the arbitrary imposition of a 2% rate struck and the Respondent did not issue a thirty-day notice that was to be published in two newspapers of national circulation, thereby denying ratepayers the fundamental statutory right to submit objections or comments in accordance with Section 36 (2).
126. Additionally, the proposed rate struck had not been tabled before the County Executive Committee for adoption, contrary to the clear provisions of Section 36(3); and further, the purported rate struck had never been submitted to, debated, or approved by the County Assembly, as required by Section 36(4).
127. It follows, therefore, that without adhering to the provisions of Section 36 of the Act, the imposition of the 2% rate struck is irregular and unlawful.
128. On the issue of whether County legislation has the power to impose land rates on freehold land, Article 209 (3) of the Constitution of Kenya allows a County government to impose property rates, entertainment taxes, and any other tax that it is authorized to impose by an Act of Parliament. Article 210(1) of the Constitution provides that no tax or licensing fee may be imposed, waived or varied except as provided by legislation and the word “legislation” is defined at Article 260 thereof as either an Act of Parliament, or a law made under authority conferred by an Act of Parliament; or a law made by an Assembly of a County Government, or under authority conferred by such a law.
129. In 2024, Parliament enacted the National Rating Act, whose objective is inter alia to provide a comprehensive framework for the imposition of rates on land by county governments. The Act seeks to create a standardized framework for county governments to assess and impose rates on land and buildings, valuation of rateable property with the use of modern technology to ensure accuracy and efficiency. It also establishes mechanisms to enhance accountability in the use of revenues from the collected rates.
130. Section 5 of the Act specifically exempts freehold agricultural land from the imposition of rates. It provides that the Act shall apply to all rateable property within the respective county government except freehold agricultural land. Further, section 8 of the Act defines a rateable owner in relation to property in land as a person who holds a leasehold where the unexpired residue of the term is not less than twenty-one years, and there is an intention to confer ownership.
131. The exception on agricultural freehold land does not include urban/commercial freehold land. It should be noted that it only excludes freehold agricultural land. But the law provides that any taxation must be imposed through legislation as provided for under Article 210 of the Constitution. The County government must enact County Rating Acts, Finance Acts, and Valuation Rolls, and proper procedures must be followed to avoid collision with the parties to be affected by the imposition of the taxes.
132. The sum total is that, the Respondent had a noble initiative of adopting the Draft Valuation Roll 2017, but along the way had missteps along the way which made the process irregular hence ended up violating the e Petitioners' constitutional rights under Articles 10, 35, 40, 47, 60, 209(3)(a), 210(1), and 232 3a 40, 60, of the Constitution.
133. I have considered the Petitions, the submissions by counsel and find that the Petitioners have established that they are entitled to the orders sought and therefore make the following specific orders:
a) A Declaration is hereby made that the outcome of this representative and/or class action suit shall apply to all rataeble owners within Nakuru County.
b) A declaration is hereby made that the purported inspection of Nakuru County Draft County Valuation Roll- 2017 as notified to the public by the 2nd Respondent herein which process was to run from 12th August, 2024 to 18th September, 2024 is illegal, unconstitutional, null and void ab initio.
c) A declaration is hereby made that the 1st Respondent's directive and public notice attempting to introduce a Draft County Valuation Roll for the year 2025-2035 without public participation is illegal and unconstitutional null and void ab initio.
d) A declaration is hereby issued that the proposed new rate struck and rates payable by the 1st Respondent for Nakuru County as captured in the Draft County Valuation Roll for the year 2025-2035 without any publication, public participation and County Assembly's approval is illegal and unconstitutional null and void ab initio.
e) A declaration that the 2nd Respondent’s acts of preparing a new Valuation Roll while there is no substantive appointment of County Valuer is illegal null and void ab initio.
f) An Order of Certiorari is hereby issued to call for and quash the decision and public notice of the 1st Respondent herein attempting to introduce a Draft County Valuation Roll for the year 2025-2035.
g) An order is hereby issued prohibiting and restraining the Respondents herein from, in any way proceeding with the process of validation of the Nakuru County Valuation Roll, 2017 and be compelled to prepare a valuation roll in strict adherence to the Nakuru County Valuation and Rating Act, 2023.
h) The Respondents to adhere to Section 5 of the National Rating Act 2024, on the exemption of freehold Agricultural land within its jurisdiction from the imposition of rates.
i) This being a public interest Petition, each party to bear their own costs.