IN THE MATTER OF ARTICLES 1,2,3,10,174,201,209,210 AND 216 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTION 120 OF THE COUNTY GOVERNMENTS ACT, 2012
AND
IN THE MATTER OF SECTIONS 102,104,105,107,125,131,132 AND 161 OF THE PUBLIC FINANCE MANAGEMENT ACT NO. 18 OF 2012
AND
IN THE MATTER OF THE FINANCE ACT OF NAIROBI CITY COUNTY GOVERNMENT, 2023/2024/2025
INTRODUCTION
This Petition invites the Court to interrogate the constitutionality and legality of the Nairobi City County Finance Act, 2023 (the impugned Finance Act), primarily on grounds of procedural impropriety and substantive illegality. The Petitioner, invoking Articles 22 and 258 of the Constitution, seeks to challenge the enactment and implementation of the said legislation for failure to comply with essential constitutional and statutory requirements, including public participation and the development of a tariffs and pricing policy.
The challenge lies at the intersection of legislative authority and constitutional accountability. The impugned Finance Act, 2023, which will affect Nairobi residents financially for the 2024-2025 fiscal year, is alleged to have been enacted without the procedural and participatory measures outlined in the Constitution.
The gravamen of the challenge is that the Nairobi City County Government enacted and implemented revenue-raising measures introducing, revising, and increasing numerous fees, levies, and charges under the impugned Finance Act without first developing, adopting, and implementing a county tariffs and pricing policy as required under section 120 of the County Governments Act, 2012 (“CGA”). In consequence, the public lacked the requisite information to engage meaningfully in the public participation exercise, rendering it illusory, ineffective, and constitutionally defective. Further, the Petitioner contends that the process violated Articles 10, 35, 174, 185, 196, 201, 209, 210, 232, and 258 of the Constitution, as well as statutory provisions in the Public Finance Management Act, 2012 (“PFMA”) and other legislation governing county finance and legislative processes. Thus, the Petitioner seeks the following orders:
A declaration that the impugned Finance Act of County Government of Nairobi City County for 2023 is unconstitutional for failure by the Respondents to develop a tariff and pricing policy to guide the determination of the charges, fees, levies and taxes.
An order to suspend the implementation of the impugned Finance Act, 2023 pending review by the County Assembly to align it with constitutional principles on public finance.
An order of certiorari be issued to quash the impugned Finance Act, 2023 that is being implemented without proper tariff and pricing policy that guides the determination of taxes, fees and charges.
A permanent injunction be hereby issued against the Respondents from raising revenue without developing a tariff and pricing policy as required under section 120 of the County Governments Act, 2012.
An order of mandamus be and is hereby issued to compel the Respondents to develop a tariff and pricing policy to determine and guide setting of charges by the Respondents that are proportional to the attendant services.
Costs of the petition.
The Petition raises fundamental issues concerning fiscal governance, legality of subordinate financial legislation, and the extent to which County Governments must comply with the procedural rigours prescribed in the Public Finance Management Act and the County Governments Act.
The main issue pertains to the absence of a tariff and pricing policy as mandated by Section 120 of the County Governments Act. The Petitioner argues that without this policy, the enforcement of taxes, levies, and charges under the contested impugned Finance Act is arbitrary, unclear, and contravenes Articles 10, 201, and 210 of the Constitution.
The matter, therefore, calls for judicial scrutiny of not just the substantive contents of the Finance Act, but the process that gave birth to it, and whether the citizenry was afforded a fair, informed, and effective opportunity to participate in its making.
Notably, none of the Respondents filed any replying affidavit or submissions to controvert the Petitioner’s detailed pleadings. As such, the Petition remains unopposed, and the Court is left to determine its merits based on the unrebutted factual and legal claims presented by the Petitioner.
The jurisprudential burden of this Court, therefore, is to examine whether the enactment and application of the Finance Act, 2023 meets the test of legality, rationality, and procedural propriety as required by law.
The Constitution, being the supreme law of the land under Article 2(1), demands that all acts, omissions, and legislative frameworks conform strictly to its spirit, letter, and values. Any deviation from this standard must be confronted firmly to preserve the integrity of the constitutional framework.
With that in mind, this Court now turns to review the factual and legal foundation of the Petition before proceeding to distil the legal issues for determination.
PETITIONER'S CASE
The Petitioner's case is founded on the dual limbs of illegality and procedural impropriety. The Petitioner avers that the impugned Finance Act, 2023 violates multiple constitutional provisions, including Articles 1, 2, 10, 201, and 210, as well as statutory obligations under Section 120 of the County Governments Act and Sections 125, 129, 132, and 161 of the Public Finance Management Act.
Central to the Petitioner's grievance is the absence of a tariffs and pricing policy, which the law mandates to be developed prior to any imposition of fees, levies, or charges by a county government. Without such a policy, the basis for determining revenue measures is alleged to be non-existent, irrational, and opaque.
The Petitioner argues that the requirement for a tariffs and pricing policy is not aspirational but mandatory. The language of Section 120 employs the term "shall," denoting an obligatory legislative duty which must precede any fiscal enactment by a county government.
The Petitioner further alleges that the lack of a pricing policy severely undermined the public participation process. In the absence of data or a structure showing how fees were calculated, the public was deprived of the essential information needed to express informed opinions, rendering the process meaningless and ineffective.
The Petitioner contends that this contradicts Articles 10, 174, and 196 of the Constitution, which require that all public administration and financial policies are guided by principles of openness, transparency, accountability, and inclusive public engagement.
The Petitioner also asserts that the impugned Finance Act introduces a plethora of new and revised charges which, in the absence of any justification or link to actual services, breach the principles of fair taxation under Article 210(1) of the Constitution. Additionally, that some of the charges include doubled landing fees for animals, increased cremation fees, new environmental charges, and unexplained market stall levies, none of which, it is argued, are tethered to any commensurate service improvements or costings.
The Petitioner also challenges supplementary budgets and Appropriation Acts based on the impugned Finance Act, arguing that amendments introduced without explanation breach PFMA requirements for description of additional expenditure, fiscal responsibility, and transparency. The Petitioner avers that the supplementary budgets were presented hastily, without clear justification for block adjustments, contravening PFMA Regulations requiring alignment with fiscal responsibility principles.
The Petitioner relies on the Commission on Revenue Allocation advisory of April 2023 urging counties to enact revenue-raising legislation in compliance with constitutional requirements, which Nairobi City County allegedly disregarded. The Petitioner emphasizes that this advisory underscore mandatory nature of tariffs and pricing policy in preparing revenue legislation.
Accordingly, the Petitioner seeks a declaration that the impugned Finance Act is unconstitutional and invalid, an order of certiorari quashing it, a mandamus compelling the development of a tariffs and pricing policy, and an injunction against further implementation of the Act pending compliance with the law.
PETITIONER'S SUBMISSIONS
The Petitioner, through his written submissions dated 2 nd April, 2025 filed by his counsel, argues that the enactment of the impugned Finance Act, 2023 contravened express constitutional and statutory obligations, particularly with respect to the development of a Tariffs and Pricing Policy as required under Section 120 of the County Governments Act, 2012.
It is the Petitioner’s submission that the statutory mandate under Section 120 is couched in mandatory terms. The provision uses the word "shall," signifying that the formulation and adoption of a Tariffs and Pricing Policy is a legal precondition to any imposition of fiscal charges by a county government.
In support of this argument, the Petitioner relies on the decision in Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR , where the Court emphasized that failure to comply with mandatory statutory procedures vitiates the resultant legislation.
The Petitioner further submits that the absence of a Tariffs and Pricing Policy undermines transparency, fairness, and proportionality in revenue collection. Charges imposed under the impugned Act are arbitrary, as they are not anchored on any disclosed costing or service correlation. This, he argues, offends Articles 10 and 201 of the Constitution, which enshrine the principles of openness, accountability, and transparency in public finance.
Counsel for the Petitioner invoked the principle of the "noumenal exercise of power," arguing that all state power must be exercised with justification. He refers to Thomas M. Besch's formulation of the principle, which holds that power is legitimate only when exercised in a reasoned, accountable, and transparent manner, consistent with the Constitution. Any imposition of obligations on citizens without reasons or justification negates the essence of constitutional governance.
On the issue of public participation, the it was argued that no meaningful engagement was possible in the absence of the Tariffs and Pricing Policy. Citizens were denied access to information essential for interrogating the rationale behind the proposed charges. As such, the process violated Articles 10, 174, and 196 of the Constitution. He submits that public participation requires an informed citizenry, and that meaningful engagement cannot occur in an informational vacuum.
In support of the above argument, reliance was placed in the South African Constitutional Court decision in Doctors for Life International v Speaker of the National Assembly & Others (CCT 12/05) [2006] ZACC 11 , where it was underscored that public participation must be real and capable of influencing the legislative outcome.
The Petitioner further placed reliance in the Supreme Court decision 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 (Affected Party) [2019] eKLR , where the Court laid down guiding principles for public participation, including the requirement that such participation be genuine, not cosmetic, and informed by adequate notice and disclosure. The Court cautioned against tokenistic or proceduralist engagement.
It was further submitted that public participation is both a procedural and substantive requirement. It is not enough to merely invite comments from the public; government agencies must ensure that the public is empowered to critique, comment, and influence the policy-making process. In the absence of the Tariffs and Pricing Policy, public engagement was neither substantive nor lawful.
The Petitioner relied on the decision from the Court of Appeal in Legal Advice Centre & 2 others v County Government of Mombasa & 4 others [2018] eKLR, which reaffirmed that meaningful public participation entails proper notice, accessible information, and an opportunity to be heard. He submits that the Nairobi City County failed on all these fronts, thus invalidating the legislative process.
Additionally, the Petitioner contends that the impugned Finance Act contains fiscal measures such as cess, market stall fees, and inspection levies, which have no corresponding revenue legislation authorizing their imposition. This, he argues, violates Article 210(1) of the Constitution, which prohibits the imposition of any tax or licensing fee without a legal foundation.
Accordingly, the Petitioner contends that the Finance Act, 2023 is unconstitutional for having been enacted in violation of mandatory preconditions under the law. He therefore prays for the declarations and reliefs as set out in the Petition, asserting that public interest and constitutional integrity demand no less. He maintains that unless the Act is quashed, it would set a dangerous precedent for law-making in disregard of transparency, accountability, and citizen inclusion.
ANALYSIS AND DETERMINATION
It is trite that a suit that is not opposed need not automatically succeed. The petitioner has a duty to prove his case and the court will determine the same on merit. ( See Sitelu Konchellah vs Julius Lekakeny Ole Sunkuli & Sunkuli & 2 others (2018) eKLR . )
Having carefully considered the Application, the Supporting Affidavit, the Petition, and the Petitioner’s submissions, it is my view that the primary issues for determination are:
Whether this Court is the forum to deal with the Petitioners’ claim on account of the doctrine of separation of powers.
Whether the Nairobi City County Government violated Section 120 of the County Governments Act, 2012 and other applicable laws by enacting the Nairobi City County Finance Act, 2023 without first developing and adopting a Tariffs and Pricing Policy.
Whether the enactment of the Nairobi City County Finance Act, 2023 violated the constitutional principles of public participation under Articles 10, 174, 196, and 201 of the Constitution due to the absence of a Tariffs and Pricing Policy.
Whether the Nairobi City County Finance Act, 2023 is unconstitutional and invalid for want of legal justification, transparency, and compliance with statutory and constitutional preconditions relating to the imposition of taxes, fees, and charges.
Whether the Petitioner is entitled to the relief sought
Whether this Court is the forum to deal with the Petitioners’ claim on account of the doctrine of separation of powers.
The first is whether this Court is the forum to deal with the Petitioners’ claim on account of the doctrine of separation of powers. My view on this issue is that it is indeed the correct position that Courts should not ordinarily interfere with the exercise of the legislative authority or executive functions of a constitutional body in line with the doctrine of separation of powers, and ought to exercise judicial restraint in matters which deal with legislative authority of County Governments.
However, I must also state that under Article 2(4) of the Constitution, any law that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. In addition, under Article 165(3)(d)(i) and (ii) the High Court is clothed with the jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether any law is inconsistent with or in contravention of the Constitution, and the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution.
Therefore, whereas the legislative authority vests in Parliament and the County legislative assemblies, and executive authority in the Presidency and Governors of Counties, where a question arises as to whether an enactment or act is inconsistent with the Constitution or is passed in contravention of the Constitution, as is the case in the instant Petition, the High Court is the institution constitutionally empowered to determine such an issue, subject to appellate jurisdiction given to the Court of Appeal and the Supreme Court. This Court therefore not only has jurisdiction to hear and determine this Petition, but is also in the circumstances exercising its constitutional function within the doctrine of separation of powers.
Whether the Nairobi City County Government violated Section 120 of the County Governments Act, 2012 and other applicable laws by enacting the Nairobi City County Finance Act, 2023 without first developing and adopting a Tariffs and Pricing Policy
Section 120(1) of the County Governments Act, 2012 expressly requires county governments or any agency delivering services in the county to adopt and implement a tariffs and pricing policy. The statutory language is mandatory and prescriptive. It admits of no discretion. Section 120(1) of that Act provides:
“A county government or any agency delivering services in the county shall adopt and implement a tariffs and pricing policy for the provision of public services.”
The impugned Finance Act, 2023 introduced various charges, levies, and fees across multiple sectors of the Nairobi City County without any accompanying or prior published tariffs and pricing policy. This is not denied by the Respondents, who failed to file any replying affidavit to challenge the Petitioner's allegations.
The absence of a tariffs and pricing policy renders the imposition of such charges arbitrary and unlawful. The policy serves as a benchmark for rationalizing county charges, ensuring that fees are commensurate to services rendered and are not exploitative.
In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] KEHC 7516 (KLR), the Court underscored that:
“ It is therefore clear that the County Assembly may only impose property rates and entertainment taxes unless otherwise authorised by an Act of Parliament and this position is emphasised by the provisions of Article 210(1) of the Constitution which expressly provides that no tax or licensing fee may be imposed, waived or varied except as provided by legislation. County Governments are however empowered to impose charges on services they provide. Such service would include parking and market fees. However to levy charges on the stones quarried unless authorised by an Act of Parliament or any services rendered by the County Governments towards that end would be clearly illegal. Further the levying of such taxes ought not to be such as to prejudices national economic policies, economic activities across county boundaries or the national mobility of goods, services, capital or labour. Tariffs and pricing of services must however comply with the provisions of section 120 of the County Government Act . The Court however is not entitled to interfere with the Tariffs and pricing of services simply on the ground that the Court would have decided otherwise since the Court ought not to substitute its opinion for that the County Government. As long as the provisions of the Constitution and the relevant legal provisions are complied with and the applicable principles are taken into the Court ought not to interfere.”
The principle of legality, a constitutional doctrine, dictates that all acts of public bodies must find justification in law. In the present case, the lack of a foundational policy document vitiates the process and outcome of the impugned Finance Act, 2023.
Moreover, the adoption of such a policy is central to the realisation of Articles 10 and 201 of the Constitution. These Articles impose a duty upon all state organs to uphold transparency, accountability, and public participation in public finance. Articles 201(a) and (d) require public finance to be managed openly, accountably, and with public participation. Article 10 obliges transparency and accountability in exercise of power. Article 209(3)–(5) grants counties power to raise revenue but within constitutional constraints not to jeopardize national policies or mobility of goods, and Article 210(1) prohibits imposition of taxes or licensing fees except as provided by legislation. A tariffs and pricing policy forms part of the legislative framework required to satisfy Article 210(1), by providing justification and legislative backing for fees.
The right to participate in the conduct of public affairs is a crucial element of democracy. Therefore, Parliament must facilitate meaningful participation in legislative processes. This affirms the need for supporting structures like a tariffs and pricing policy. As was aptly put in Merafong Demarcation Forum and Others vs. President of the Republic of South Africa and Others (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) :
“Once structured processes of consultation were put in place, with tangible consequences for the legislative process and of central importance to the community, the principle of participatory democracy required the establishment of appropriately formal lines of communication, at least to clarify, if not to justify, the negation of those consequences. In my view, then, it was constitutionally incumbent on the Legislature to communicate and explain to the community the fact of and the reasons for the complete deviation from what the community had been led to believe was to be the fruit of the earlier consultation, and to pay serious attention to the community's response. Arms-length democracy is not participatory democracy, and the consequent and predictable rupture in the relationship between the community and the Legislature tore at the heart of what participatory democracy aims to achieve….. I would hold that, after making a good start to fulfil its obligation to facilitate public involvement, the Legislature stumbled badly at the last hurdle. It ended up failing to exercise its responsibilities in a reasonable manner, with the result that it seriously violated the integrity of the process of participatory democracy. In choosing not to face the music (which, incidentally, it had itself composed) it breached the constitutional compact requiring mutuality of open and good- faith dealing between citizenry and government, and thereby rendered the legislative process invalid.”
In 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) [2019] KESC 15 (KLR) , the Court stated that:
“public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments.”
policy guidelines underscore that tariffs and pricing policy serves to map services to costs, justify fees, align revenue streams with service delivery, ensure affordability, equity, financial sustainability, environmental considerations, promotion of local economic development, and compliance with regional or international obligations. Without adoption of policy, fees imposed lack transparency, rationality, and public justification, undermining trust in governance.
The Petitioner’s uncontroverted evidence shows that Nairobi City County did not develop, adopt, publish, or implement any tariffs and pricing policy before enacting the impugned Finance Act, 2023. Public participation involved presenting schedules of proposed fees without underlying policy or cost analyses. There is no record of policy deliberations, debates, or approval by County Executive or Assembly. This omission is fatal to legality of imposing fees.
Every exercise of public power must conform to law and be rationally connected to legitimate aims. Imposition of fees without policy lacks rational connection to service costs; arbitrary increases such as doubling landing fees without cost basis violate rationality. There is need for genuine consultation and consideration of industry views when imposing regulatory burdens; by analogy, county fees must reflect genuine cost assessments and policy rationale.
The County Assembly holds legislative authority under Article 185 and must ensure that enacted laws comply with constitutional and statutory requirements. In failing to demand evidence of a tariffs and pricing policy, the Assembly abdicated oversight. The County Executive similarly failed PFMA duties under sections 125, 129, 132 to publish and publicize supporting documents, including policy frameworks. Such procedural breaches undermine separation of powers and checks and balances.
The tariffs and pricing policy acts as a public information tool. Its absence not only violates the statute but creates an opaque fiscal environment, contravening the constitutional expectation of reasoned decision-making under Article 47 of the Constitution.
The statutory requirement under section 120 of the CGA to adopt and implement a tariffs and pricing policy before imposing fees is mandatory. Constitutional and PFMA contexts reinforce the need for transparent, rational frameworks for revenue measures. Nairobi City County’s failure to develop or adopt any tariffs and pricing policy before enacting the impugned Finance Act, 2023 renders the imposition of fees unlawful, unconstitutional, and void to the extent of non-compliance. The Court finds a breach of constitutional and statutory requirements.
Accordingly, the Court finds and holds that the enactment of the Nairobi City County Finance Act, 2023 in the absence of a tariffs and pricing policy contravenes Section 120 of the County Governments Act, Articles 10, 201, and 47 of the Constitution.
Whether the enactment of the Nairobi City County Finance Act, 2023 violated the constitutional principles of public participation under Articles 10, 174, 196, and 201 of the Constitution due to the absence of a Tariffs and Pricing Policy
Public participation is not a procedural formality but a substantive constitutional imperative entrenched in Articles 10, 174(c), 196, and 201 of the Constitution. Public participation must not be cosmetic or superficial. It must be meaningful, effective, and informed. The legislative process that does not meet this threshold is unlawful.
The issue that is in dispute is whether the efforts by the Respondents at public participation met the threshold set by the Constitution. This threshold can only be set within the context of the elements of effective public participation, which depends on dedicated education, information and outreach strategies aimed at providing the knowledge, and means to access institutions of governance including legislative assemblies. The purpose of such strategies is to bring those who exist on the margins and periphery of society into the mainstream political process, creating a system of governance that is inclusive, responsive and transparent. The goal is to consolidate a form of democracy that engages with and recognises the interests of all.
The test set by the South Africa Constitutional Court in this regard in Doctors for Life International vs. Speaker of the National Assembly and Others ,(CCT12/05) [2006] ZACC 11 ; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) is whether the legislature acted reasonably in discharging the duty to facilitate public involvement. It was held that the following factors are to be taken into account in determining the said reasonableness: (i) the nature of the legislation concerned; (ii) the importance of the legislation; (iii) intensity of the impact on the public, and other relevant factors which will depend on the circumstances of each case. Furthermore, that at least two elements are encompassed by the duty to facilitate public involvement; first, to provide meaningful opportunities for public participation in the law-making process and secondly, to make sure that people have the ability to take advantage of the opportunities provided.
Sachs J, concurring with the majority judgment, emphasised the “special meaning” of public participation within a democracy, and said the effect of public participation should be that:
“All parties interested in legislation should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion. The objective is both symbolical and practical: the persons concerned must be manifestly shown the respect due to them as concerned citizens, and the legislators must have the benefit of all inputs that will enable them to produce the best possible laws”.
It is with the above requirements and threshold in mind that the County Governments Act and the Nairobi City County Public Participation Act of 2015 set out elaborate structures for public participation. Section 87 of the County Government Act provides for the principles governing citizen participation in county governments as follows in this regard.
“Citizen participation in county governments shall be based upon the following principles—
(a) timely access to information, data, documents, and other information relevant or related to policy formulation and implementation;
(b) reasonable access to the process of formul
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AND
IN THE MATTER OF SECTION 120 OF THE COUNTY GOVERNMENTS ACT, 2012
AND
IN THE MATTER OF SECTIONS 102,104,105,107,125,131,132 AND 161 OF THE PUBLIC FINANCE MANAGEMENT ACT NO. 18 OF 2012
AND
IN THE MATTER OF THE FINANCE ACT OF NAIROBI CITY COUNTY GOVERNMENT, 2023/2024/2025
INTRODUCTION
This Petition invites the Court to interrogate the constitutionality and legality of the Nairobi City County Finance Act, 2023 (the impugned Finance Act), primarily on grounds of procedural impropriety and substantive illegality. The Petitioner, invoking Articles 22 and 258 of the Constitution, seeks to challenge the enactment and implementation of the said legislation for failure to comply with essential constitutional and statutory requirements, including public participation and the development of a tariffs and pricing policy.
The challenge lies at the intersection of legislative authority and constitutional accountability. The impugned Finance Act, 2023, which will affect Nairobi residents financially for the 2024-2025 fiscal year, is alleged to have been enacted without the procedural and participatory measures outlined in the Constitution.
The gravamen of the challenge is that the Nairobi City County Government enacted and implemented revenue-raising measures introducing, revising, and increasing numerous fees, levies, and charges under the impugned Finance Act without first developing, adopting, and implementing a county tariffs and pricing policy as required under section 120 of the County Governments Act, 2012 (“CGA”). In consequence, the public lacked the requisite information to engage meaningfully in the public participation exercise, rendering it illusory, ineffective, and constitutionally defective. Further, the Petitioner contends that the process violated Articles 10, 35, 174, 185, 196, 201, 209, 210, 232, and 258 of the Constitution, as well as statutory provisions in the Public Finance Management Act, 2012 (“PFMA”) and other legislation governing county finance and legislative processes. Thus, the Petitioner seeks the following orders:
A declaration that the impugned Finance Act of County Government of Nairobi City County for 2023 is unconstitutional for failure by the Respondents to develop a tariff and pricing policy to guide the determination of the charges, fees, levies and taxes.
An order to suspend the implementation of the impugned Finance Act, 2023 pending review by the County Assembly to align it with constitutional principles on public finance.
An order of certiorari be issued to quash the impugned Finance Act, 2023 that is being implemented without proper tariff and pricing policy that guides the determination of taxes, fees and charges.
A permanent injunction be hereby issued against the Respondents from raising revenue without developing a tariff and pricing policy as required under section 120 of the County Governments Act, 2012.
An order of mandamus be and is hereby issued to compel the Respondents to develop a tariff and pricing policy to determine and guide setting of charges by the Respondents that are proportional to the attendant services.
Costs of the petition.
The Petition raises fundamental issues concerning fiscal governance, legality of subordinate financial legislation, and the extent to which County Governments must comply with the procedural rigours prescribed in the Public Finance Management Act and the County Governments Act.
The main issue pertains to the absence of a tariff and pricing policy as mandated by Section 120 of the County Governments Act. The Petitioner argues that without this policy, the enforcement of taxes, levies, and charges under the contested impugned Finance Act is arbitrary, unclear, and contravenes Articles 10, 201, and 210 of the Constitution.
The matter, therefore, calls for judicial scrutiny of not just the substantive contents of the Finance Act, but the process that gave birth to it, and whether the citizenry was afforded a fair, informed, and effective opportunity to participate in its making.
Notably, none of the Respondents filed any replying affidavit or submissions to controvert the Petitioner’s detailed pleadings. As such, the Petition remains unopposed, and the Court is left to determine its merits based on the unrebutted factual and legal claims presented by the Petitioner.
The jurisprudential burden of this Court, therefore, is to examine whether the enactment and application of the Finance Act, 2023 meets the test of legality, rationality, and procedural propriety as required by law.
The Constitution, being the supreme law of the land under Article 2(1), demands that all acts, omissions, and legislative frameworks conform strictly to its spirit, letter, and values. Any deviation from this standard must be confronted firmly to preserve the integrity of the constitutional framework.
With that in mind, this Court now turns to review the factual and legal foundation of the Petition before proceeding to distil the legal issues for determination.
PETITIONER'S CASE
The Petitioner's case is founded on the dual limbs of illegality and procedural impropriety. The Petitioner avers that the impugned Finance Act, 2023 violates multiple constitutional provisions, including Articles 1, 2, 10, 201, and 210, as well as statutory obligations under Section 120 of the County Governments Act and Sections 125, 129, 132, and 161 of the Public Finance Management Act.
Central to the Petitioner's grievance is the absence of a tariffs and pricing policy, which the law mandates to be developed prior to any imposition of fees, levies, or charges by a county government. Without such a policy, the basis for determining revenue measures is alleged to be non-existent, irrational, and opaque.
The Petitioner argues that the requirement for a tariffs and pricing policy is not aspirational but mandatory. The language of Section 120 employs the term "shall," denoting an obligatory legislative duty which must precede any fiscal enactment by a county government.
The Petitioner further alleges that the lack of a pricing policy severely undermined the public participation process. In the absence of data or a structure showing how fees were calculated, the public was deprived of the essential information needed to express informed opinions, rendering the process meaningless and ineffective.
The Petitioner contends that this contradicts Articles 10, 174, and 196 of the Constitution, which require that all public administration and financial policies are guided by principles of openness, transparency, accountability, and inclusive public engagement.
The Petitioner also asserts that the impugned Finance Act introduces a plethora of new and revised charges which, in the absence of any justification or link to actual services, breach the principles of fair taxation under Article 210(1) of the Constitution. Additionally, that some of the charges include doubled landing fees for animals, increased cremation fees, new environmental charges, and unexplained market stall levies, none of which, it is argued, are tethered to any commensurate service improvements or costings.
The Petitioner also challenges supplementary budgets and Appropriation Acts based on the impugned Finance Act, arguing that amendments introduced without explanation breach PFMA requirements for description of additional expenditure, fiscal responsibility, and transparency. The Petitioner avers that the supplementary budgets were presented hastily, without clear justification for block adjustments, contravening PFMA Regulations requiring alignment with fiscal responsibility principles.
The Petitioner relies on the Commission on Revenue Allocation advisory of April 2023 urging counties to enact revenue-raising legislation in compliance with constitutional requirements, which Nairobi City County allegedly disregarded. The Petitioner emphasizes that this advisory underscore mandatory nature of tariffs and pricing policy in preparing revenue legislation.
Accordingly, the Petitioner seeks a declaration that the impugned Finance Act is unconstitutional and invalid, an order of certiorari quashing it, a mandamus compelling the development of a tariffs and pricing policy, and an injunction against further implementation of the Act pending compliance with the law.
PETITIONER'S SUBMISSIONS
The Petitioner, through his written submissions dated 2 nd April, 2025 filed by his counsel, argues that the enactment of the impugned Finance Act, 2023 contravened express constitutional and statutory obligations, particularly with respect to the development of a Tariffs and Pricing Policy as required under Section 120 of the County Governments Act, 2012.
It is the Petitioner’s submission that the statutory mandate under Section 120 is couched in mandatory terms. The provision uses the word "shall," signifying that the formulation and adoption of a Tariffs and Pricing Policy is a legal precondition to any imposition of fiscal charges by a county government.
In support of this argument, the Petitioner relies on the decision in Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR , where the Court emphasized that failure to comply with mandatory statutory procedures vitiates the resultant legislation.
The Petitioner further submits that the absence of a Tariffs and Pricing Policy undermines transparency, fairness, and proportionality in revenue collection. Charges imposed under the impugned Act are arbitrary, as they are not anchored on any disclosed costing or service correlation. This, he argues, offends Articles 10 and 201 of the Constitution, which enshrine the principles of openness, accountability, and transparency in public finance.
Counsel for the Petitioner invoked the principle of the "noumenal exercise of power," arguing that all state power must be exercised with justification. He refers to Thomas M. Besch's formulation of the principle, which holds that power is legitimate only when exercised in a reasoned, accountable, and transparent manner, consistent with the Constitution. Any imposition of obligations on citizens without reasons or justification negates the essence of constitutional governance.
On the issue of public participation, the it was argued that no meaningful engagement was possible in the absence of the Tariffs and Pricing Policy. Citizens were denied access to information essential for interrogating the rationale behind the proposed charges. As such, the process violated Articles 10, 174, and 196 of the Constitution. He submits that public participation requires an informed citizenry, and that meaningful engagement cannot occur in an informational vacuum.
In support of the above argument, reliance was placed in the South African Constitutional Court decision in Doctors for Life International v Speaker of the National Assembly & Others (CCT 12/05) [2006] ZACC 11 , where it was underscored that public participation must be real and capable of influencing the legislative outcome.
The Petitioner further placed reliance in the Supreme Court decision 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 (Affected Party) [2019] eKLR , where the Court laid down guiding principles for public participation, including the requirement that such participation be genuine, not cosmetic, and informed by adequate notice and disclosure. The Court cautioned against tokenistic or proceduralist engagement.
It was further submitted that public participation is both a procedural and substantive requirement. It is not enough to merely invite comments from the public; government agencies must ensure that the public is empowered to critique, comment, and influence the policy-making process. In the absence of the Tariffs and Pricing Policy, public engagement was neither substantive nor lawful.
The Petitioner relied on the decision from the Court of Appeal in Legal Advice Centre & 2 others v County Government of Mombasa & 4 others [2018] eKLR, which reaffirmed that meaningful public participation entails proper notice, accessible information, and an opportunity to be heard. He submits that the Nairobi City County failed on all these fronts, thus invalidating the legislative process.
Additionally, the Petitioner contends that the impugned Finance Act contains fiscal measures such as cess, market stall fees, and inspection levies, which have no corresponding revenue legislation authorizing their imposition. This, he argues, violates Article 210(1) of the Constitution, which prohibits the imposition of any tax or licensing fee without a legal foundation.
Accordingly, the Petitioner contends that the Finance Act, 2023 is unconstitutional for having been enacted in violation of mandatory preconditions under the law. He therefore prays for the declarations and reliefs as set out in the Petition, asserting that public interest and constitutional integrity demand no less. He maintains that unless the Act is quashed, it would set a dangerous precedent for law-making in disregard of transparency, accountability, and citizen inclusion.
ANALYSIS AND DETERMINATION
It is trite that a suit that is not opposed need not automatically succeed. The petitioner has a duty to prove his case and the court will determine the same on merit. ( See Sitelu Konchellah vs Julius Lekakeny Ole Sunkuli & Sunkuli & 2 others (2018) eKLR . )
Having carefully considered the Application, the Supporting Affidavit, the Petition, and the Petitioner’s submissions, it is my view that the primary issues for determination are:
Whether this Court is the forum to deal with the Petitioners’ claim on account of the doctrine of separation of powers.
Whether the Nairobi City County Government violated Section 120 of the County Governments Act, 2012 and other applicable laws by enacting the Nairobi City County Finance Act, 2023 without first developing and adopting a Tariffs and Pricing Policy.
Whether the enactment of the Nairobi City County Finance Act, 2023 violated the constitutional principles of public participation under Articles 10, 174, 196, and 201 of the Constitution due to the absence of a Tariffs and Pricing Policy.
Whether the Nairobi City County Finance Act, 2023 is unconstitutional and invalid for want of legal justification, transparency, and compliance with statutory and constitutional preconditions relating to the imposition of taxes, fees, and charges.
Whether the Petitioner is entitled to the relief sought
Whether this Court is the forum to deal with the Petitioners’ claim on account of the doctrine of separation of powers.
The first is whether this Court is the forum to deal with the Petitioners’ claim on account of the doctrine of separation of powers. My view on this issue is that it is indeed the correct position that Courts should not ordinarily interfere with the exercise of the legislative authority or executive functions of a constitutional body in line with the doctrine of separation of powers, and ought to exercise judicial restraint in matters which deal with legislative authority of County Governments.
However, I must also state that under Article 2(4) of the Constitution, any law that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. In addition, under Article 165(3)(d)(i) and (ii) the High Court is clothed with the jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether any law is inconsistent with or in contravention of the Constitution, and the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution.
Therefore, whereas the legislative authority vests in Parliament and the County legislative assemblies, and executive authority in the Presidency and Governors of Counties, where a question arises as to whether an enactment or act is inconsistent with the Constitution or is passed in contravention of the Constitution, as is the case in the instant Petition, the High Court is the institution constitutionally empowered to determine such an issue, subject to appellate jurisdiction given to the Court of Appeal and the Supreme Court. This Court therefore not only has jurisdiction to hear and determine this Petition, but is also in the circumstances exercising its constitutional function within the doctrine of separation of powers.
Whether the Nairobi City County Government violated Section 120 of the County Governments Act, 2012 and other applicable laws by enacting the Nairobi City County Finance Act, 2023 without first developing and adopting a Tariffs and Pricing Policy
Section 120(1) of the County Governments Act, 2012 expressly requires county governments or any agency delivering services in the county to adopt and implement a tariffs and pricing policy. The statutory language is mandatory and prescriptive. It admits of no discretion. Section 120(1) of that Act provides:
“A county government or any agency delivering services in the county shall adopt and implement a tariffs and pricing policy for the provision of public services.”
The impugned Finance Act, 2023 introduced various charges, levies, and fees across multiple sectors of the Nairobi City County without any accompanying or prior published tariffs and pricing policy. This is not denied by the Respondents, who failed to file any replying affidavit to challenge the Petitioner's allegations.
The absence of a tariffs and pricing policy renders the imposition of such charges arbitrary and unlawful. The policy serves as a benchmark for rationalizing county charges, ensuring that fees are commensurate to services rendered and are not exploitative.
In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] KEHC 7516 (KLR), the Court underscored that:
“ It is therefore clear that the County Assembly may only impose property rates and entertainment taxes unless otherwise authorised by an Act of Parliament and this position is emphasised by the provisions of Article 210(1) of the Constitution which expressly provides that no tax or licensing fee may be imposed, waived or varied except as provided by legislation. County Governments are however empowered to impose charges on services they provide. Such service would include parking and market fees. However to levy charges on the stones quarried unless authorised by an Act of Parliament or any services rendered by the County Governments towards that end would be clearly illegal. Further the levying of such taxes ought not to be such as to prejudices national economic policies, economic activities across county boundaries or the national mobility of goods, services, capital or labour. Tariffs and pricing of services must however comply with the provisions of section 120 of the County Government Act . The Court however is not entitled to interfere with the Tariffs and pricing of services simply on the ground that the Court would have decided otherwise since the Court ought not to substitute its opinion for that the County Government. As long as the provisions of the Constitution and the relevant legal provisions are complied with and the applicable principles are taken into the Court ought not to interfere.”
The principle of legality, a constitutional doctrine, dictates that all acts of public bodies must find justification in law. In the present case, the lack of a foundational policy document vitiates the process and outcome of the impugned Finance Act, 2023.
Moreover, the adoption of such a policy is central to the realisation of Articles 10 and 201 of the Constitution. These Articles impose a duty upon all state organs to uphold transparency, accountability, and public participation in public finance. Articles 201(a) and (d) require public finance to be managed openly, accountably, and with public participation. Article 10 obliges transparency and accountability in exercise of power. Article 209(3)–(5) grants counties power to raise revenue but within constitutional constraints not to jeopardize national policies or mobility of goods, and Article 210(1) prohibits imposition of taxes or licensing fees except as provided by legislation. A tariffs and pricing policy forms part of the legislative framework required to satisfy Article 210(1), by providing justification and legislative backing for fees.
The right to participate in the conduct of public affairs is a crucial element of democracy. Therefore, Parliament must facilitate meaningful participation in legislative processes. This affirms the need for supporting structures like a tariffs and pricing policy. As was aptly put in Merafong Demarcation Forum and Others vs. President of the Republic of South Africa and Others (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) :
“Once structured processes of consultation were put in place, with tangible consequences for the legislative process and of central importance to the community, the principle of participatory democracy required the establishment of appropriately formal lines of communication, at least to clarify, if not to justify, the negation of those consequences. In my view, then, it was constitutionally incumbent on the Legislature to communicate and explain to the community the fact of and the reasons for the complete deviation from what the community had been led to believe was to be the fruit of the earlier consultation, and to pay serious attention to the community's response. Arms-length democracy is not participatory democracy, and the consequent and predictable rupture in the relationship between the community and the Legislature tore at the heart of what participatory democracy aims to achieve….. I would hold that, after making a good start to fulfil its obligation to facilitate public involvement, the Legislature stumbled badly at the last hurdle. It ended up failing to exercise its responsibilities in a reasonable manner, with the result that it seriously violated the integrity of the process of participatory democracy. In choosing not to face the music (which, incidentally, it had itself composed) it breached the constitutional compact requiring mutuality of open and good- faith dealing between citizenry and government, and thereby rendered the legislative process invalid.”
In 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) [2019] KESC 15 (KLR) , the Court stated that:
“public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments.”
policy guidelines underscore that tariffs and pricing policy serves to map services to costs, justify fees, align revenue streams with service delivery, ensure affordability, equity, financial sustainability, environmental considerations, promotion of local economic development, and compliance with regional or international obligations. Without adoption of policy, fees imposed lack transparency, rationality, and public justification, undermining trust in governance.
The Petitioner’s uncontroverted evidence shows that Nairobi City County did not develop, adopt, publish, or implement any tariffs and pricing policy before enacting the impugned Finance Act, 2023. Public participation involved presenting schedules of proposed fees without underlying policy or cost analyses. There is no record of policy deliberations, debates, or approval by County Executive or Assembly. This omission is fatal to legality of imposing fees.
Every exercise of public power must conform to law and be rationally connected to legitimate aims. Imposition of fees without policy lacks rational connection to service costs; arbitrary increases such as doubling landing fees without cost basis violate rationality. There is need for genuine consultation and consideration of industry views when imposing regulatory burdens; by analogy, county fees must reflect genuine cost assessments and policy rationale.
The County Assembly holds legislative authority under Article 185 and must ensure that enacted laws comply with constitutional and statutory requirements. In failing to demand evidence of a tariffs and pricing policy, the Assembly abdicated oversight. The County Executive similarly failed PFMA duties under sections 125, 129, 132 to publish and publicize supporting documents, including policy frameworks. Such procedural breaches undermine separation of powers and checks and balances.
The tariffs and pricing policy acts as a public information tool. Its absence not only violates the statute but creates an opaque fiscal environment, contravening the constitutional expectation of reasoned decision-making under Article 47 of the Constitution.
The statutory requirement under section 120 of the CGA to adopt and implement a tariffs and pricing policy before imposing fees is mandatory. Constitutional and PFMA contexts reinforce the need for transparent, rational frameworks for revenue measures. Nairobi City County’s failure to develop or adopt any tariffs and pricing policy before enacting the impugned Finance Act, 2023 renders the imposition of fees unlawful, unconstitutional, and void to the extent of non-compliance. The Court finds a breach of constitutional and statutory requirements.
Accordingly, the Court finds and holds that the enactment of the Nairobi City County Finance Act, 2023 in the absence of a tariffs and pricing policy contravenes Section 120 of the County Governments Act, Articles 10, 201, and 47 of the Constitution.
Whether the enactment of the Nairobi City County Finance Act, 2023 violated the constitutional principles of public participation under Articles 10, 174, 196, and 201 of the Constitution due to the absence of a Tariffs and Pricing Policy
Public participation is not a procedural formality but a substantive constitutional imperative entrenched in Articles 10, 174(c), 196, and 201 of the Constitution. Public participation must not be cosmetic or superficial. It must be meaningful, effective, and informed. The legislative process that does not meet this threshold is unlawful.
The issue that is in dispute is whether the efforts by the Respondents at public participation met the threshold set by the Constitution. This threshold can only be set within the context of the elements of effective public participation, which depends on dedicated education, information and outreach strategies aimed at providing the knowledge, and means to access institutions of governance including legislative assemblies. The purpose of such strategies is to bring those who exist on the margins and periphery of society into the mainstream political process, creating a system of governance that is inclusive, responsive and transparent. The goal is to consolidate a form of democracy that engages with and recognises the interests of all.
The test set by the South Africa Constitutional Court in this regard in Doctors for Life International vs. Speaker of the National Assembly and Others ,(CCT12/05) [2006] ZACC 11 ; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) is whether the legislature acted reasonably in discharging the duty to facilitate public involvement. It was held that the following factors are to be taken into account in determining the said reasonableness: (i) the nature of the legislation concerned; (ii) the importance of the legislation; (iii) intensity of the impact on the public, and other relevant factors which will depend on the circumstances of each case. Furthermore, that at least two elements are encompassed by the duty to facilitate public involvement; first, to provide meaningful opportunities for public participation in the law-making process and secondly, to make sure that people have the ability to take advantage of the opportunities provided.
Sachs J, concurring with the majority judgment, emphasised the “special meaning” of public participation within a democracy, and said the effect of public participation should be that:
“All parties interested in legislation should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion. The objective is both symbolical and practical: the persons concerned must be manifestly shown the respect due to them as concerned citizens, and the legislators must have the benefit of all inputs that will enable them to produce the best possible laws”.
It is with the above requirements and threshold in mind that the County Governments Act and the Nairobi City County Public Participation Act of 2015 set out elaborate structures for public participation. Section 87 of the County Government Act provides for the principles governing citizen participation in county governments as follows in this regard.
“Citizen participation in county governments shall be based upon the following principles—
(a) timely access to information, data, documents, and other information relevant or related to policy formulation and implementation;
(b) reasonable access to the process of formul
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