'Introduction
1. The Petition dated 5th March 2024 is supported by the Petitioner’s affidavit in support sworn of even date.
2. The Petition challenges the Respondents revision of charges, fees and levies for various government services pursuant to Gazette Notices No 15493, 15494, 15495 and 15496 dated 14th November 2023 of 1st March 2024. The Petitioner contends that the review and increase thereof is anchored on repealed statutory instruments hence null and void ab initio. Further, the Respondents action violates Articles 1, 3, 10, 27, 43, 53, 73, 75, 94, 132(3)(c), 153(2), 201(b)(1), 209(4) and 232 of the Constitution.
3. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
a) A declaration that the purported review/increase of charges/fees/levies of various services as depicted in Gazette Notices No Vol. CXXV No. 241 15493-15496 Dated 14th November 2023 No.15239-15242 and/or letter dated on/about 29th February 2024 written by Mr.Samuel Lukanu and/or any other person and/or any document written on any other date(whether preceding or after this date) purporting to give authority increase/review aforementioned charges/fees violates constitutional provisions and relevant statutes is unconstitutional, null and void ab initio.
b) A declaration that any actions done/omitted by Respondents or any other person without valid statutory instrument has no force of law and hence null and void
c) A declaration that at all times the Respondents or any other person must conduct meaningful (as opposed to cosmetic) public participation for purposes of Article 10(2) of the Constitution as held in many Supreme Court decisions inter alia Petition 5 of 2017 -British American Tobacco Kenya, Plc (Formerly British AmericanTobacco Kenya Limited) Vs And Cabinet Secretary For the Ministry Of Health & 5 others [2019] eKLR.
d) A declaration that the state/Respondent’s actions of improperly exercising powers pursuant to Article 209(4) without due regard and conformity with Article 10(2) the Constitution and part 3 of the bill of rights is unconstitutional null and void.
e) A declaration that the 5th and 6th Respondents have failed the obligatory and constitutional duty of legislating and oversight and protecting Kenyans against excessive and illegal taxation/levying by the executive arm.
f) The Court is pleased to issue an order of judicial review by way of certiorari, quashing the Respondent’s Gazette Notices No Vol. CXXV No. 241 15493-15496 Dated 14th November 2023 No.15239-15242 and/or letter dated on/about 29th February 2024 written by Mr.Samuel Lukanu and/or any other person and/or any document written on any other date(whether preceding or after this date) purporting to give authority increase/review aforementioned charges/fees/levies
g) An order of judicial review by way of prohibition, prohibiting the Respondents either by themselves, their agents and/or any other person(s) whatsoever from acting and/or giving effect to Gazette Notices No Vol. CXXV No. 241 15493-15496 Dated 14th November 2023 No.15239-15242 and/or letter dated on/about 29th February 2024 written by Mr.Samuel Lukanu and/or any other person and/or any document written on any other date(whether preceding or after this date) purporting to give authority increase/review aforementioned charges/fees/levies unless lawful.
h) An order of judicial review by way of mandamus, compelling the respondents/state to improperly exercise powers pursuant to Article 209(4) while considering and in conformity with Article 10(2) the Constitution and part 3 of the bill of rights.
i) An order of judicial review by way of mandamus, compelling the Respondents to follow constitutional and statutory provisions when reviewing any fees/charges (if necessary).
j) These orders do apply mutatis mutandi to any documents and/or actions touching on this issue done/made or omitted (now and during pendency of the case in court) for purposes of defeating wheels of justice before the conclusion of this matter in Court and be presumed to be part of the records of this Court.
k) Any other order or/and modification of petitioner’s prayer(s) which this Court may deem fit so as to achieve objects of justice for majority of Kenyans as a whole.
l) Costs of this Petition to be borne by Respondents.
Petitioner’s Case
4. For context, the 1st Respondent and 3rd Respondents through a letter circulating in the social media dubbed “Revised Charges Fees and Levies on Services offered by State Department for Immigration and Citizen Services (SDICS)” addressed all section heads, regional coordinators, national registry, county coordinators and sub-county registrars, directing them to implement the new charges for various government documents such as Identity Cards, passports and visas from 1st March 2024.
5. The letter stated as follows:
‘You may recall that the effective date for implementation of these charges was 1st January 2024. However, the said charges were to be subjected to public participation before taking effect. The State department therefore conducted a comprehensive public participation from 14th November – 5th December 2023 which you were part of. The attached Kenya Gazette Vol. CXXV No. 241 dated 14th November 2023 shows the new fees, levies and charges that are supposed to be effected. The purpose of this circular is therefore to inform you that with effect from 1st March 2024, the revised fees, charges and levies takes effect and all our services will be charged accordingly. The Regional Coordinators are asked to ensure compliance of the same. Please acknowledge that you have read and understood contents of this circular and that you will implement accordingly. The copy of the Kenya Gazette is hereby enclosed”,
Samuel Lukanu, For: Secretary – CRS’.
6. The Petitioner states that the letter referenced Gazette Notices No Vol. CXXV No. 241 15493-15496 Dated 14th November 2023 issued pursuant to various statutory instruments namely: the Public Finance Management (National Government) Regulations 2015, Kenya Citizen and Immigration Act, Kenya citizens and Foreign Nationals Management Service Act Regulations and Registrations of Persons Act and Births & Deaths Act.
7. The Petitioner asserts that prior to implementation of this directive, the 3rd Respondent insinuated that public participation had been done. He nevertheless described the same as a charade since it did not abide by the requirements of the exercise set out in British American Tobacco Kenya, Plc (Formerly British American Tobacco Kenya Limited) Vs Cabinet Secretary For The Ministry Of Health & 5 others [2019] eKLR.
8. Furthermore, the Petitioner asserts that the manner in which the Respondents are utilizing their powers under Article 209(4) of the Constitution contravenes Article 10(2) of the Constitution and Part 3 of the Bill of Rights on children, persons with disabilities, children, youth, minorities, marginalized groups and older members of the society.
9. He claims that the statutory instruments relied upon by the Respondents in revising the charges and fees had expired having been revoked on 25th January 2024 by virtue of Section 21 of the Statutory Instruments Act. He avers that Legal Notice No. 11 of 2011 and L.N 31 of 2011 which created the said charges are among the revoked Statutory Instruments.
10. According to the Petitioner, the Respondent did not issue a Gazette Notice to notify the effective date of the new charges. He contended that they thus transformed the Gazette Notice of intent to charge to that of actual charging for these services through by means of that letter instead of the Gazette Notice.
11. Further, that the Respondents had increased the charges arbitrarily by over 20 times the original charge. Likewise, he states that the Respondents had also started charging for ‘Not Previous Registered services’. In his view, the new charges were done without adhering to any formula or meaningful public participation.
12. The Petitioner further argues that although Regulation 60 of the Public Finance Management (National Government) Regulations 2015 and Section 205 of the Public Finance Management Act, 2012 grants a Cabinet Secretary power to make Regulations, the same does not grant him carte blanche to arbitrary increase or review fees without following the general constitutional provisions in this case, Article 10 (2) of the Constitution. Terming the increased charges illegal, the Petitioner contended that Article 201(d) of the Constitution mandates that public money be used in a prudent and responsible way.
13. In view of the foregoing, the Petitioner asserts that the Respondents did not adhere to the cited constitutional principles in light of the impugned fees. Equally, he contends that the fees will indirectly deny Kenyans citizenship contrary to Article 12, 13, 14 and 15 of the Constitution. The 5th and 6th Respondents are also accused of failing to protect the public against the rogue decisions of the Executive. Likewise, he contends that the Respondents actions are in breach of the public’s legitimate expectation as they are expected to always act lawfully which they failed to do.
1st Respondent’s Case
14. The 1st Respondent through the Principal Secretary, Amb. (Prof.) Julius K. Bitok filed a Replying Affidavit sworn on 4th April 2024.
15. He commences by stating that the Petition is incompetent, bad in law and an abuse of the Court process. He states that the issue of compliance with the provisions of the Statutory Instruments Act ought to have been raised in a different forum.
16. He depones that the impugned charges and fees are comply with Section 22 of the Statutory Instruments Act as they were published in Gazette Notices No. 15493, 15494, 15495 and 15496 of 2023 dated 14th November, 2023 in the Special Issue of the Kenya Gazette Vol. CXXV No. 241. For this reason, he states that there is no provision in law requiring for a superfluous Gazette Notice stating that the revised charges and fee were effective.
17. He avers that as to whether the cited Gazette Notices constitute statutory instruments made under the respective enactments, is a question that ought to be decided and certified by the 4th Respondent. He asserts that where the Constitution and law grants another body power to deal with disputes, the Court’s jurisdiction is residuary and not primary. As such, he stresses that one must exhaust those mechanisms before invoking the Court’s jurisdiction.
18. He states that Article 209(4) of the Constitution empowers the government to prescribe fees, levies and charges for the various services offered by the Government. He informs that the 1st Respondent set out to revise charges, fees and levies for various services in the Public Finance Management Act (National Government) Regulations 2015, Kenya Citizenship And Immigration Act (No. 12 of 2011), Kenya Citizens And Foreign Nationals Management Service Act (No. 31 of 2011), Regulations of Births And Deaths Registration Act (Cap. 149) and Regulations of Registration of Persons Act (Cap. 107). These were initially published in Gazette Notices No. 15239, 15240 and 15242 of 2023 dated 7th November 2023.
19. He depones that the 1st Respondent with the 2nd Respondent’s authority issued communication to the public concerning the revisions vide these Gazette Notices. He notes that following this, the 1st Respondent received a number of concerns and proposals from the public. He states that despite these Notices having been issued lawfully, the 1st Respondent following these concerns revoked the Gazette Notices so as to allow for public participation. This call was made on 14th November 2023 by the 2nd Respondent and also shared in Daily newspapers.
20. Furthermore, the 1st Respondent vide Gazette Notices No.15493, 15494, 15495 and 15496 of 2023 dated 14th November 2023, notified the general public that the State Department for Immigration and Citizen Services intended to revise charges and fees on its various services issued under the Kenya Citizenship and Immigration Act, the Kenya Citizens and Foreign Nationals Management Service Act, the Registration of Persons Act and the Births and Deaths Registration Act. He points out that the Gazette Notices indicated the effective date of the revised charges and fees as being 1st January 2024.
21. He depones that through a Public Notice dated 20th November, 2023, the State Department for Immigration and Citizen Services also invited proposals and memoranda on the proposed revised charges and fees from the public to be submitted by 8th December 2023.
22. He avers that once the comments and memoranda were received the same were considered by the 1st Respondent. He however avers that the 1st Respondent was not persuaded to vary the revised charges and fees and thus the revised charges and fees came into effect on 1st January 2024. In light of this, he argues that the 1st Respondent did indeed conduct a meaningful public participation contrary to the Petitioner’s allegations.
23. He depones that divergent to the Petitioner’s allegation, the Statutory Instruments under which the impugned Gazette Notices were issued had not been revoked or expired by the time they were issued being 14th November 2023 or when took effect being 1st January 2024.
24. He informs that the Statutory Instruments Act which commenced on 25th January 2013 was to be revoked by operation of the law on 25th January 2023 however was granted an extension of 1 year vide Legal Notice No.217 of 2022. As such, the law was set to lapse on 25th January 2024. Considering this, he avers that the impugned notices were still valid when gazetted on 14th November 2023 and when they came in effect on 1st January 2024.
25. He in addition opposes that Petitioner’s assertion that the 1st Respondent notified the public about the revised changes vide the Internal Memo dated 29th February 2024.Equally, he asserts that there is no discrimination of any group of persons as a result of the revised charges, fees and levies as published in the cited Gazzette Notices. This is since the fees apply to all persons seeking the specific government services. He also points out that the Petitioner did not demonstrate the alleged discrimination neither assertion that Kenyans will be denied citizenship.
26. He depones as well that the revised charges are justified in that they are geared towards the need to ensure Kenya’s self-reliance in financing its National budget and to wean it from unsustainable debts. What is more, these charges are utilized to cover the costs associated with the applications and other administrative services. On this premise, he urges the Court to recognize that the Petitioner wants it to usurp the 1st Respondent’s mandate to prescribe these fees.
2nd, 3rd and 4th Respondents’ Case
27. These Respondents in reply to the Petition filed Grounds of Opposition dated 8th April 2024 on the premise that:
i. The Petition does not demonstrate or establish a cause of action against the 2nd, 3rd and 4th Respondents.
ii. The Government through the 1st Respondent is clothed with the power to prescribe the impugned fees, levies and charges under Article 209 (4) of the Constitution and pursuant to the Kenya Citizenship and Immigration Act, the Kenya Citizens and Foreign Nationals Management Service Act, the Registration of Persons Act and the Births and Deaths Registration Act, and the Regulations made thereunder.
iii. The revised charges and fees have complied with Section 22 of the Statutory Instruments Act, 2013 having been duly published in Gazette Notices No. 15493, 15494, 15495 and 15496 of 2023 dated 14th November, 2023 published in the Special Issue of the Kenya Gazette Vol. CXXV No. 241 pursuant to the Kenya Citizenship and Immigration Act, the Kenya Citizens and Foreign Nationals Management Service Act, the Registration of Persons Act and the Births and Deaths Registration Act and the effective date of the revised charges and fees on the said services stated to be 1st January, 2024.
iv. As demonstrated by the 1st Respondent in its Replying Affidavit sworn on 4th April, 2024, the conduct of public participation on the impugned fees, levies and charges met the threshold as defined by the Supreme Court in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR.
v. The Statutory Instruments which anchored the fees, levies and charges prior to the impugned revision were still valid as at 14th November, 2023 when the proposed charges and fees were gazetted and 1st January, 2024 when they came into effect.
vi. The Petitioner has not demonstrated how the impugned fees, levies and charges infuse discrimination against a class of people as suggested in the Petition.
vii. The impugned fees, levies and charges are guided by and reflects the policy of the government at any one given point in time, and the applicable rate, timing and merit are matters of public policy and do not fall within the jurisdictional remit of the High Court under Article 165 (4) of the Constitution.
viii. The Petition is premised on issues dealing with the formulation of policy which, under the doctrine of separation of powers, is under the exclusive jurisdiction of the executive arm of Government. In the Petition, the Petitioner seeks to question government policy without providing a scientific basis to support the questioning.
ix. The Petitioner has not demonstrated how the impugned fees, levies and charges amount to double taxation contrary to the principles of evidence and the doctrine of specificity as enunciated by the Court of Appeal in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.
5th Respondent’s Submissions
28. The 5th Respondent in response filed Grounds of Opposition dated 9th April 2024 on the basis that:
i. The Application fails to meet the test set out for the grant of conservatory orders by the Supreme Court in Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others (2014) eKLR.
ii. By dint of the test in Gatirau Munya case, the orders sought are against public interest.
iii. The Applicants will not suffer any prejudice as the Petition will not be rendered nugatory if the application for conservatory orders is declined and the Court proceeds to hear the substantive Petition on its merits.
iv. Section 22 of the Statutory Instruments Act, 2013 provides for the Publication of Statutory Instruments. It further provides that any questions as to whether statutory instruments under any provisions of an enactment are statutory instruments, the Attorney General may by certificate in writing, decide the matter. The Petition herein is incompetent as the Petitioner has not exhausted the avenues provided hereinabove.
v. Public interest lies in upholding the presumption of constitutionality and regularity of government actions and this Court ought to decline to suspend giving effect to decisions of government flowing from a statutory power at an interlocutory stage.
vi. This Court ought to exercise judicial restraint and decline to grant the orders sought in the present Application as the same violates the doctrines of presumption of constitutionality of statutes, constitutional avoidance and separation of powers.
vii. The Court in Law Society of Kenya vs the Hon. Attorney General & Others; Petition No. 334 of 2018 held as follows on the role of Parliament in taxation:
“It is the policy makers and the Parliamentarians who are better placed to do the balancing act of determining whether taxes should be imposed on certain goods and services in order to fund the basic rights like food, medicine, shelter and education”.
viii. The Court will be overstepping its boundaries were it to direct Parliament on what goods or services to tax or not to tax. Most goods and services facilitate the enjoyment of fundamental rights and freedoms and it is upon the people’s representatives to determine what is good for the electorate.
ix. One cannot say that the Constitution has been violated simply because a particular item or service has been taxed at a particular rate. Furthermore, since taxation is a policy decision solely within the exclusive mandate of the Executive and the National Assembly, this Court lacks the necessary tools and jurisdiction to delve into policy decisions.
x. The suit herein does not meet the test laid down by the Court of Appeal in Anarita Karimi Njeru v Republic [1979] eKLR as it has not been pleaded a violation of the Constitution with reasonable degree of precision. The Petitioners have not demonstrated with succinct pression and exactitude how the 5th Respondent has either violated the provisions of the Constitution or their rights and fundamental freedoms enshrined therein.
xi. Article 94 (5) and (6) of the Constitution provide that-
(5) No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.
(6) An Act of Parliament, or legislation of a county, that confers on any State organ, State officer or person the authority to make provision having the force of law in Kenya, as contemplated in clause (5), shall expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.
xii. Therefore, a Cabinet Secretary or a body or a commission, or an authority or a board with power to make a delegated legislation, must ensure that they act within the power delegated under the Constitution. Further, Acts done under subsidiary legislation deemed done under Act which authorizes it being: the Public Finance Management Act (National Government) Regulations 2015, Kenya Citizenship And Immigration Act (No. 12 of 2011), Kenya Citizens And Foreign Nationals Management Service Act (No. 31 of 2011), Regulations of Births And Deaths Registration Act (Cap. 149) and Regulations of Registration of Persons Act (Cap. 107).
xiii. The Acts authorizing the impugned Statutory instruments are constitutional, as such the actions taken pursuant to the parent Acts are still legal under the said Acts.
xiv. There will be no prejudice suffered nor harm occasioned if this Court declines to grant the orders sought by the Petitioner herein.
6th Respondent and Interested Parties’ Case
29. The 6th Respondent and the Interested Parties responses and submissions are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
30. On 4th July 2024, the Petitioner filed his submissions and listed the issues for determination as: what are the settled guiding principles used by courts in interpreting and construing the Constitution especially when constitutional violations are alleged, whether the introduction of the charges followed constitutional and statutory procedures, whether effecting the charges using expired/revoked statutory instrument was legal and constitutional, whether the Respondents were properly exercising powers pursuant to Article 209(4) of the Constitution while at the same time conforming with Article 10(2) the Constitution and Part 3 of the Bill of Rights and whether the actions of Respondent was contrary to the legitimate expectation of Kenyans.
31. On the first issue, the Petitioner relying in Institute of Social Accountability & Another v National Assembly & 4 Others High Court, (2015) eKLR outlined the principles for constitutional interpretation as follows:
“This Court is enjoined under Article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this Court is obliged under Article 159(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution. In determining whether a statute is constitutional, the court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself (see Murang’a Bar Operators and Another v Minister of State for Provincial Administration and Internal Security and Others Nairobi Petition No. 3 of 2011 [2011]eKLR, Samuel G. Momanyi v Attorney General and Another (supra)). Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also its effect… [59] Fourth, the Constitution should be given a purposive, liberal interpretation...Lastly and fundamentally, it is the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other (see Tinyefuza v Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC 3)). We are duly guided by the principles we have outlined and we accept that while interpreting the impugned legislation alongside the Constitution, we must bear in mind our peculiar circumstances. Ours must be a liberal approach that promotes the rule of law and has jurisprudential value that must take into account the spirit of the Constitution.”
32. Comparable reliance was placed in Salaries and Remuneration Commission & another v Parliamentary Service Commission & 15 others; Parliament & 4 others (Interested Parties) [2020] eKLR.
33. The Petitioner in the second issue submitted that the Respondents prior to revising the cited charges and fees failed to undertake a meaningful public participation exercise. Instead, the Petitioner the Respondents converted the impugned gazette notices of intent to charge to actually charging the cited fees and charges. He noted that this was contrary to the guidelines issued in British American Tobacco Kenya PLC (supra). The Petitioner underscored that the Respondents did not rebut this allegation as required under Section 109 of the Evidence Act.
34. Additionally, the Petitioner asserted that the Respondents’ in their actions violated various constitutional provisions being Article 1, 3, 10, 27, 43, 53, 73, 75, 94, 132(3)(c), 153(2), 201(b)(1), 209(4) and 232 of the Constitution. According to the Petitioner the Respondents actions of arbitrarily increasing and reviewing the fees without carrying out meaningful participation was illegal, irregular and irrational. For this reason, he argued that introduction of the charges did follow constitutional and statutory procedures.
35. Turning to the third issue, the Petitioner submitted that the new charges were introduced pursuant to statutory instruments which at the time had been revoked as at 25th January 2024 by operation of Section 21 of Statutory Instruments Act. On this premise, he argued that the charges and fees have no force of law and further the Respondents had no authority to purport to levy the said charges. Accordingly, these charges are argued to be illegal and unconstitutional.
36. The Petitioner further asserted in the next issue that Respondents actions did not conform to Article 10(2) of the Constitution and Part 3 of the Bill of Rights which provides for the vulnerable members of the society. According to the Petitioner, introduction and review of the charges, negatively affected these people especially youths with regard to their right to procure identification and travel documents. Reliance was placed in Article 3, 4 and 5 of the African Charter on Human and Peoples'' Rights which provides that:
Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the charter without distinction of any kind...."It also provides for equality before the law, equal protection of the law(article 3), guarantees respect for life and the integrity of the person(article 4) and the right to the respect of the dignity inherent in a human being and prohibits all forms of degradation, torture, cruel, inhuman or degrading punishment and treatment.
37. Additional reliance was placed in MWK & another v Attorney General & 4 others; Independent Medical Lega Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) [2017] KEHC 1496 (KLR).
38. In light of this, the Petitioner argued that although the Respondents mandate flows from Article 209(4) of the Constitution, the same is not a leeway to violate Article 10 of the Constitution.
39. On the fifth issue, the Petitioner argued that he and other Kenyans have a legitimate expectation that all state officers and state organs will follow the law and the Constitution when implementing policy decisions. In this matter, the Petitioner asserted that this expectation was violated as they did not expect the haphazard introduction and review of the said charges without adherence to the dictates in Article 10, 73, 75 and 232 of the Constitution.
40. To buttress this point reliance was placed in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others, Petition No. 14 of 2014 where the principles of legitimate expectation were set out as:
“(a) there must be an express, clear and unambiguous promise given by a public authority;
(b) the expectation itself must be reasonable;
(c) the representation must be one which was competent and lawful for the decision-maker to make; and
(d) there cannot be a legitimate expectation against clear provisions of the law or the Constitution.”
41. Like dependence was placed in Oindi Zaippeline & 39 others v Karatina University & another [2015] eKLR.
1st Respondent’s Submissions
42. The 1st Respondent through Ngeri, Omiti and Bush Advocates LLP filed
[...truncated]
1. The Petition dated 5th March 2024 is supported by the Petitioner’s affidavit in support sworn of even date.
2. The Petition challenges the Respondents revision of charges, fees and levies for various government services pursuant to Gazette Notices No 15493, 15494, 15495 and 15496 dated 14th November 2023 of 1st March 2024. The Petitioner contends that the review and increase thereof is anchored on repealed statutory instruments hence null and void ab initio. Further, the Respondents action violates Articles 1, 3, 10, 27, 43, 53, 73, 75, 94, 132(3)(c), 153(2), 201(b)(1), 209(4) and 232 of the Constitution.
3. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
a) A declaration that the purported review/increase of charges/fees/levies of various services as depicted in Gazette Notices No Vol. CXXV No. 241 15493-15496 Dated 14th November 2023 No.15239-15242 and/or letter dated on/about 29th February 2024 written by Mr.Samuel Lukanu and/or any other person and/or any document written on any other date(whether preceding or after this date) purporting to give authority increase/review aforementioned charges/fees violates constitutional provisions and relevant statutes is unconstitutional, null and void ab initio.
b) A declaration that any actions done/omitted by Respondents or any other person without valid statutory instrument has no force of law and hence null and void
c) A declaration that at all times the Respondents or any other person must conduct meaningful (as opposed to cosmetic) public participation for purposes of Article 10(2) of the Constitution as held in many Supreme Court decisions inter alia Petition 5 of 2017 -British American Tobacco Kenya, Plc (Formerly British AmericanTobacco Kenya Limited) Vs And Cabinet Secretary For the Ministry Of Health & 5 others [2019] eKLR.
d) A declaration that the state/Respondent’s actions of improperly exercising powers pursuant to Article 209(4) without due regard and conformity with Article 10(2) the Constitution and part 3 of the bill of rights is unconstitutional null and void.
e) A declaration that the 5th and 6th Respondents have failed the obligatory and constitutional duty of legislating and oversight and protecting Kenyans against excessive and illegal taxation/levying by the executive arm.
f) The Court is pleased to issue an order of judicial review by way of certiorari, quashing the Respondent’s Gazette Notices No Vol. CXXV No. 241 15493-15496 Dated 14th November 2023 No.15239-15242 and/or letter dated on/about 29th February 2024 written by Mr.Samuel Lukanu and/or any other person and/or any document written on any other date(whether preceding or after this date) purporting to give authority increase/review aforementioned charges/fees/levies
g) An order of judicial review by way of prohibition, prohibiting the Respondents either by themselves, their agents and/or any other person(s) whatsoever from acting and/or giving effect to Gazette Notices No Vol. CXXV No. 241 15493-15496 Dated 14th November 2023 No.15239-15242 and/or letter dated on/about 29th February 2024 written by Mr.Samuel Lukanu and/or any other person and/or any document written on any other date(whether preceding or after this date) purporting to give authority increase/review aforementioned charges/fees/levies unless lawful.
h) An order of judicial review by way of mandamus, compelling the respondents/state to improperly exercise powers pursuant to Article 209(4) while considering and in conformity with Article 10(2) the Constitution and part 3 of the bill of rights.
i) An order of judicial review by way of mandamus, compelling the Respondents to follow constitutional and statutory provisions when reviewing any fees/charges (if necessary).
j) These orders do apply mutatis mutandi to any documents and/or actions touching on this issue done/made or omitted (now and during pendency of the case in court) for purposes of defeating wheels of justice before the conclusion of this matter in Court and be presumed to be part of the records of this Court.
k) Any other order or/and modification of petitioner’s prayer(s) which this Court may deem fit so as to achieve objects of justice for majority of Kenyans as a whole.
l) Costs of this Petition to be borne by Respondents.
Petitioner’s Case
4. For context, the 1st Respondent and 3rd Respondents through a letter circulating in the social media dubbed “Revised Charges Fees and Levies on Services offered by State Department for Immigration and Citizen Services (SDICS)” addressed all section heads, regional coordinators, national registry, county coordinators and sub-county registrars, directing them to implement the new charges for various government documents such as Identity Cards, passports and visas from 1st March 2024.
5. The letter stated as follows:
‘You may recall that the effective date for implementation of these charges was 1st January 2024. However, the said charges were to be subjected to public participation before taking effect. The State department therefore conducted a comprehensive public participation from 14th November – 5th December 2023 which you were part of. The attached Kenya Gazette Vol. CXXV No. 241 dated 14th November 2023 shows the new fees, levies and charges that are supposed to be effected. The purpose of this circular is therefore to inform you that with effect from 1st March 2024, the revised fees, charges and levies takes effect and all our services will be charged accordingly. The Regional Coordinators are asked to ensure compliance of the same. Please acknowledge that you have read and understood contents of this circular and that you will implement accordingly. The copy of the Kenya Gazette is hereby enclosed”,
Samuel Lukanu, For: Secretary – CRS’.
6. The Petitioner states that the letter referenced Gazette Notices No Vol. CXXV No. 241 15493-15496 Dated 14th November 2023 issued pursuant to various statutory instruments namely: the Public Finance Management (National Government) Regulations 2015, Kenya Citizen and Immigration Act, Kenya citizens and Foreign Nationals Management Service Act Regulations and Registrations of Persons Act and Births & Deaths Act.
7. The Petitioner asserts that prior to implementation of this directive, the 3rd Respondent insinuated that public participation had been done. He nevertheless described the same as a charade since it did not abide by the requirements of the exercise set out in British American Tobacco Kenya, Plc (Formerly British American Tobacco Kenya Limited) Vs Cabinet Secretary For The Ministry Of Health & 5 others [2019] eKLR.
8. Furthermore, the Petitioner asserts that the manner in which the Respondents are utilizing their powers under Article 209(4) of the Constitution contravenes Article 10(2) of the Constitution and Part 3 of the Bill of Rights on children, persons with disabilities, children, youth, minorities, marginalized groups and older members of the society.
9. He claims that the statutory instruments relied upon by the Respondents in revising the charges and fees had expired having been revoked on 25th January 2024 by virtue of Section 21 of the Statutory Instruments Act. He avers that Legal Notice No. 11 of 2011 and L.N 31 of 2011 which created the said charges are among the revoked Statutory Instruments.
10. According to the Petitioner, the Respondent did not issue a Gazette Notice to notify the effective date of the new charges. He contended that they thus transformed the Gazette Notice of intent to charge to that of actual charging for these services through by means of that letter instead of the Gazette Notice.
11. Further, that the Respondents had increased the charges arbitrarily by over 20 times the original charge. Likewise, he states that the Respondents had also started charging for ‘Not Previous Registered services’. In his view, the new charges were done without adhering to any formula or meaningful public participation.
12. The Petitioner further argues that although Regulation 60 of the Public Finance Management (National Government) Regulations 2015 and Section 205 of the Public Finance Management Act, 2012 grants a Cabinet Secretary power to make Regulations, the same does not grant him carte blanche to arbitrary increase or review fees without following the general constitutional provisions in this case, Article 10 (2) of the Constitution. Terming the increased charges illegal, the Petitioner contended that Article 201(d) of the Constitution mandates that public money be used in a prudent and responsible way.
13. In view of the foregoing, the Petitioner asserts that the Respondents did not adhere to the cited constitutional principles in light of the impugned fees. Equally, he contends that the fees will indirectly deny Kenyans citizenship contrary to Article 12, 13, 14 and 15 of the Constitution. The 5th and 6th Respondents are also accused of failing to protect the public against the rogue decisions of the Executive. Likewise, he contends that the Respondents actions are in breach of the public’s legitimate expectation as they are expected to always act lawfully which they failed to do.
1st Respondent’s Case
14. The 1st Respondent through the Principal Secretary, Amb. (Prof.) Julius K. Bitok filed a Replying Affidavit sworn on 4th April 2024.
15. He commences by stating that the Petition is incompetent, bad in law and an abuse of the Court process. He states that the issue of compliance with the provisions of the Statutory Instruments Act ought to have been raised in a different forum.
16. He depones that the impugned charges and fees are comply with Section 22 of the Statutory Instruments Act as they were published in Gazette Notices No. 15493, 15494, 15495 and 15496 of 2023 dated 14th November, 2023 in the Special Issue of the Kenya Gazette Vol. CXXV No. 241. For this reason, he states that there is no provision in law requiring for a superfluous Gazette Notice stating that the revised charges and fee were effective.
17. He avers that as to whether the cited Gazette Notices constitute statutory instruments made under the respective enactments, is a question that ought to be decided and certified by the 4th Respondent. He asserts that where the Constitution and law grants another body power to deal with disputes, the Court’s jurisdiction is residuary and not primary. As such, he stresses that one must exhaust those mechanisms before invoking the Court’s jurisdiction.
18. He states that Article 209(4) of the Constitution empowers the government to prescribe fees, levies and charges for the various services offered by the Government. He informs that the 1st Respondent set out to revise charges, fees and levies for various services in the Public Finance Management Act (National Government) Regulations 2015, Kenya Citizenship And Immigration Act (No. 12 of 2011), Kenya Citizens And Foreign Nationals Management Service Act (No. 31 of 2011), Regulations of Births And Deaths Registration Act (Cap. 149) and Regulations of Registration of Persons Act (Cap. 107). These were initially published in Gazette Notices No. 15239, 15240 and 15242 of 2023 dated 7th November 2023.
19. He depones that the 1st Respondent with the 2nd Respondent’s authority issued communication to the public concerning the revisions vide these Gazette Notices. He notes that following this, the 1st Respondent received a number of concerns and proposals from the public. He states that despite these Notices having been issued lawfully, the 1st Respondent following these concerns revoked the Gazette Notices so as to allow for public participation. This call was made on 14th November 2023 by the 2nd Respondent and also shared in Daily newspapers.
20. Furthermore, the 1st Respondent vide Gazette Notices No.15493, 15494, 15495 and 15496 of 2023 dated 14th November 2023, notified the general public that the State Department for Immigration and Citizen Services intended to revise charges and fees on its various services issued under the Kenya Citizenship and Immigration Act, the Kenya Citizens and Foreign Nationals Management Service Act, the Registration of Persons Act and the Births and Deaths Registration Act. He points out that the Gazette Notices indicated the effective date of the revised charges and fees as being 1st January 2024.
21. He depones that through a Public Notice dated 20th November, 2023, the State Department for Immigration and Citizen Services also invited proposals and memoranda on the proposed revised charges and fees from the public to be submitted by 8th December 2023.
22. He avers that once the comments and memoranda were received the same were considered by the 1st Respondent. He however avers that the 1st Respondent was not persuaded to vary the revised charges and fees and thus the revised charges and fees came into effect on 1st January 2024. In light of this, he argues that the 1st Respondent did indeed conduct a meaningful public participation contrary to the Petitioner’s allegations.
23. He depones that divergent to the Petitioner’s allegation, the Statutory Instruments under which the impugned Gazette Notices were issued had not been revoked or expired by the time they were issued being 14th November 2023 or when took effect being 1st January 2024.
24. He informs that the Statutory Instruments Act which commenced on 25th January 2013 was to be revoked by operation of the law on 25th January 2023 however was granted an extension of 1 year vide Legal Notice No.217 of 2022. As such, the law was set to lapse on 25th January 2024. Considering this, he avers that the impugned notices were still valid when gazetted on 14th November 2023 and when they came in effect on 1st January 2024.
25. He in addition opposes that Petitioner’s assertion that the 1st Respondent notified the public about the revised changes vide the Internal Memo dated 29th February 2024.Equally, he asserts that there is no discrimination of any group of persons as a result of the revised charges, fees and levies as published in the cited Gazzette Notices. This is since the fees apply to all persons seeking the specific government services. He also points out that the Petitioner did not demonstrate the alleged discrimination neither assertion that Kenyans will be denied citizenship.
26. He depones as well that the revised charges are justified in that they are geared towards the need to ensure Kenya’s self-reliance in financing its National budget and to wean it from unsustainable debts. What is more, these charges are utilized to cover the costs associated with the applications and other administrative services. On this premise, he urges the Court to recognize that the Petitioner wants it to usurp the 1st Respondent’s mandate to prescribe these fees.
2nd, 3rd and 4th Respondents’ Case
27. These Respondents in reply to the Petition filed Grounds of Opposition dated 8th April 2024 on the premise that:
i. The Petition does not demonstrate or establish a cause of action against the 2nd, 3rd and 4th Respondents.
ii. The Government through the 1st Respondent is clothed with the power to prescribe the impugned fees, levies and charges under Article 209 (4) of the Constitution and pursuant to the Kenya Citizenship and Immigration Act, the Kenya Citizens and Foreign Nationals Management Service Act, the Registration of Persons Act and the Births and Deaths Registration Act, and the Regulations made thereunder.
iii. The revised charges and fees have complied with Section 22 of the Statutory Instruments Act, 2013 having been duly published in Gazette Notices No. 15493, 15494, 15495 and 15496 of 2023 dated 14th November, 2023 published in the Special Issue of the Kenya Gazette Vol. CXXV No. 241 pursuant to the Kenya Citizenship and Immigration Act, the Kenya Citizens and Foreign Nationals Management Service Act, the Registration of Persons Act and the Births and Deaths Registration Act and the effective date of the revised charges and fees on the said services stated to be 1st January, 2024.
iv. As demonstrated by the 1st Respondent in its Replying Affidavit sworn on 4th April, 2024, the conduct of public participation on the impugned fees, levies and charges met the threshold as defined by the Supreme Court in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR.
v. The Statutory Instruments which anchored the fees, levies and charges prior to the impugned revision were still valid as at 14th November, 2023 when the proposed charges and fees were gazetted and 1st January, 2024 when they came into effect.
vi. The Petitioner has not demonstrated how the impugned fees, levies and charges infuse discrimination against a class of people as suggested in the Petition.
vii. The impugned fees, levies and charges are guided by and reflects the policy of the government at any one given point in time, and the applicable rate, timing and merit are matters of public policy and do not fall within the jurisdictional remit of the High Court under Article 165 (4) of the Constitution.
viii. The Petition is premised on issues dealing with the formulation of policy which, under the doctrine of separation of powers, is under the exclusive jurisdiction of the executive arm of Government. In the Petition, the Petitioner seeks to question government policy without providing a scientific basis to support the questioning.
ix. The Petitioner has not demonstrated how the impugned fees, levies and charges amount to double taxation contrary to the principles of evidence and the doctrine of specificity as enunciated by the Court of Appeal in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.
5th Respondent’s Submissions
28. The 5th Respondent in response filed Grounds of Opposition dated 9th April 2024 on the basis that:
i. The Application fails to meet the test set out for the grant of conservatory orders by the Supreme Court in Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others (2014) eKLR.
ii. By dint of the test in Gatirau Munya case, the orders sought are against public interest.
iii. The Applicants will not suffer any prejudice as the Petition will not be rendered nugatory if the application for conservatory orders is declined and the Court proceeds to hear the substantive Petition on its merits.
iv. Section 22 of the Statutory Instruments Act, 2013 provides for the Publication of Statutory Instruments. It further provides that any questions as to whether statutory instruments under any provisions of an enactment are statutory instruments, the Attorney General may by certificate in writing, decide the matter. The Petition herein is incompetent as the Petitioner has not exhausted the avenues provided hereinabove.
v. Public interest lies in upholding the presumption of constitutionality and regularity of government actions and this Court ought to decline to suspend giving effect to decisions of government flowing from a statutory power at an interlocutory stage.
vi. This Court ought to exercise judicial restraint and decline to grant the orders sought in the present Application as the same violates the doctrines of presumption of constitutionality of statutes, constitutional avoidance and separation of powers.
vii. The Court in Law Society of Kenya vs the Hon. Attorney General & Others; Petition No. 334 of 2018 held as follows on the role of Parliament in taxation:
“It is the policy makers and the Parliamentarians who are better placed to do the balancing act of determining whether taxes should be imposed on certain goods and services in order to fund the basic rights like food, medicine, shelter and education”.
viii. The Court will be overstepping its boundaries were it to direct Parliament on what goods or services to tax or not to tax. Most goods and services facilitate the enjoyment of fundamental rights and freedoms and it is upon the people’s representatives to determine what is good for the electorate.
ix. One cannot say that the Constitution has been violated simply because a particular item or service has been taxed at a particular rate. Furthermore, since taxation is a policy decision solely within the exclusive mandate of the Executive and the National Assembly, this Court lacks the necessary tools and jurisdiction to delve into policy decisions.
x. The suit herein does not meet the test laid down by the Court of Appeal in Anarita Karimi Njeru v Republic [1979] eKLR as it has not been pleaded a violation of the Constitution with reasonable degree of precision. The Petitioners have not demonstrated with succinct pression and exactitude how the 5th Respondent has either violated the provisions of the Constitution or their rights and fundamental freedoms enshrined therein.
xi. Article 94 (5) and (6) of the Constitution provide that-
(5) No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.
(6) An Act of Parliament, or legislation of a county, that confers on any State organ, State officer or person the authority to make provision having the force of law in Kenya, as contemplated in clause (5), shall expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.
xii. Therefore, a Cabinet Secretary or a body or a commission, or an authority or a board with power to make a delegated legislation, must ensure that they act within the power delegated under the Constitution. Further, Acts done under subsidiary legislation deemed done under Act which authorizes it being: the Public Finance Management Act (National Government) Regulations 2015, Kenya Citizenship And Immigration Act (No. 12 of 2011), Kenya Citizens And Foreign Nationals Management Service Act (No. 31 of 2011), Regulations of Births And Deaths Registration Act (Cap. 149) and Regulations of Registration of Persons Act (Cap. 107).
xiii. The Acts authorizing the impugned Statutory instruments are constitutional, as such the actions taken pursuant to the parent Acts are still legal under the said Acts.
xiv. There will be no prejudice suffered nor harm occasioned if this Court declines to grant the orders sought by the Petitioner herein.
6th Respondent and Interested Parties’ Case
29. The 6th Respondent and the Interested Parties responses and submissions are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
30. On 4th July 2024, the Petitioner filed his submissions and listed the issues for determination as: what are the settled guiding principles used by courts in interpreting and construing the Constitution especially when constitutional violations are alleged, whether the introduction of the charges followed constitutional and statutory procedures, whether effecting the charges using expired/revoked statutory instrument was legal and constitutional, whether the Respondents were properly exercising powers pursuant to Article 209(4) of the Constitution while at the same time conforming with Article 10(2) the Constitution and Part 3 of the Bill of Rights and whether the actions of Respondent was contrary to the legitimate expectation of Kenyans.
31. On the first issue, the Petitioner relying in Institute of Social Accountability & Another v National Assembly & 4 Others High Court, (2015) eKLR outlined the principles for constitutional interpretation as follows:
“This Court is enjoined under Article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this Court is obliged under Article 159(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution. In determining whether a statute is constitutional, the court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself (see Murang’a Bar Operators and Another v Minister of State for Provincial Administration and Internal Security and Others Nairobi Petition No. 3 of 2011 [2011]eKLR, Samuel G. Momanyi v Attorney General and Another (supra)). Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also its effect… [59] Fourth, the Constitution should be given a purposive, liberal interpretation...Lastly and fundamentally, it is the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other (see Tinyefuza v Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC 3)). We are duly guided by the principles we have outlined and we accept that while interpreting the impugned legislation alongside the Constitution, we must bear in mind our peculiar circumstances. Ours must be a liberal approach that promotes the rule of law and has jurisprudential value that must take into account the spirit of the Constitution.”
32. Comparable reliance was placed in Salaries and Remuneration Commission & another v Parliamentary Service Commission & 15 others; Parliament & 4 others (Interested Parties) [2020] eKLR.
33. The Petitioner in the second issue submitted that the Respondents prior to revising the cited charges and fees failed to undertake a meaningful public participation exercise. Instead, the Petitioner the Respondents converted the impugned gazette notices of intent to charge to actually charging the cited fees and charges. He noted that this was contrary to the guidelines issued in British American Tobacco Kenya PLC (supra). The Petitioner underscored that the Respondents did not rebut this allegation as required under Section 109 of the Evidence Act.
34. Additionally, the Petitioner asserted that the Respondents’ in their actions violated various constitutional provisions being Article 1, 3, 10, 27, 43, 53, 73, 75, 94, 132(3)(c), 153(2), 201(b)(1), 209(4) and 232 of the Constitution. According to the Petitioner the Respondents actions of arbitrarily increasing and reviewing the fees without carrying out meaningful participation was illegal, irregular and irrational. For this reason, he argued that introduction of the charges did follow constitutional and statutory procedures.
35. Turning to the third issue, the Petitioner submitted that the new charges were introduced pursuant to statutory instruments which at the time had been revoked as at 25th January 2024 by operation of Section 21 of Statutory Instruments Act. On this premise, he argued that the charges and fees have no force of law and further the Respondents had no authority to purport to levy the said charges. Accordingly, these charges are argued to be illegal and unconstitutional.
36. The Petitioner further asserted in the next issue that Respondents actions did not conform to Article 10(2) of the Constitution and Part 3 of the Bill of Rights which provides for the vulnerable members of the society. According to the Petitioner, introduction and review of the charges, negatively affected these people especially youths with regard to their right to procure identification and travel documents. Reliance was placed in Article 3, 4 and 5 of the African Charter on Human and Peoples'' Rights which provides that:
Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the charter without distinction of any kind...."It also provides for equality before the law, equal protection of the law(article 3), guarantees respect for life and the integrity of the person(article 4) and the right to the respect of the dignity inherent in a human being and prohibits all forms of degradation, torture, cruel, inhuman or degrading punishment and treatment.
37. Additional reliance was placed in MWK & another v Attorney General & 4 others; Independent Medical Lega Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) [2017] KEHC 1496 (KLR).
38. In light of this, the Petitioner argued that although the Respondents mandate flows from Article 209(4) of the Constitution, the same is not a leeway to violate Article 10 of the Constitution.
39. On the fifth issue, the Petitioner argued that he and other Kenyans have a legitimate expectation that all state officers and state organs will follow the law and the Constitution when implementing policy decisions. In this matter, the Petitioner asserted that this expectation was violated as they did not expect the haphazard introduction and review of the said charges without adherence to the dictates in Article 10, 73, 75 and 232 of the Constitution.
40. To buttress this point reliance was placed in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others, Petition No. 14 of 2014 where the principles of legitimate expectation were set out as:
“(a) there must be an express, clear and unambiguous promise given by a public authority;
(b) the expectation itself must be reasonable;
(c) the representation must be one which was competent and lawful for the decision-maker to make; and
(d) there cannot be a legitimate expectation against clear provisions of the law or the Constitution.”
41. Like dependence was placed in Oindi Zaippeline & 39 others v Karatina University & another [2015] eKLR.
1st Respondent’s Submissions
42. The 1st Respondent through Ngeri, Omiti and Bush Advocates LLP filed
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