Pursuant to leave granted on 8th December 2023, the Ex parte Applicants filed the Notice of Motion dated 14th December 2023 brought pursuant to the provisions of Order 53 Rule 3 of the Civil Procedure Rules 2010 and sections 1A and 3A of the Civil Procedure Act Cap 21 Laws of Kenya.
The application seeks for:
- An order of certiorari to remove into this honourable court for the purpose of quashing the Gazzette Notice No. 15453 published on the 10th November 2023 in the Kenya Gazettee Vol. CXXV No. 240 and the Notices of the 2017 Kisumu County Draft Valuation Roll Section 9(4) of the valuation for Rating Act Cap 266 of the Laws of Kenya issued in 2023 against the affected properties of Hassanali Kasam, Mitch Menezes, Feisal Amirally, Isaac E.N Okero, I.E Omolo Okero, Dr Omondi Odhiambo, Vipul Tulshidas Kakkad, Surji Singh Pandhal, Kicomi (1993) Ltd, Gurmej Tanna, Juvtiben Maganlal Devji Tanna, National Printing Press Ltd, Hiten Kumar Maganlal,. Hemal Kishar Kotecha, Combine Housing Ltd, Jenabhai A, Kanji, Nyanza Enterprises Ltd, Surendra Maganbhai Patel, Jetendra Maganbhai Patel, Foam Mattresses Ltd, Narendra Pragji Tanna, Byron Menezes Administrator Estate of L.G Menezes, Sanjay J. Patel, Divyesh Prabhudas Chotai, Vipul Prabhundas Chotai, Lexis Investments Ltd, Jitihada Ltd, Administrators of the Estate of Satwant Singh Dhanjal, Vyatu Limited, Lalji P. Shah, Jaswinder Singh G. Aura and Jude Thadeus Ragot as listed in the schedule of affected Properties field herein.
- An order of prohibition to prohibit the County Government of Kisumu from commencing, instituting, undertaking, continuing or proceeding all and any proceedings and processes arising from the Gazette Notice No. 15453 published on the 10th November 2023 in the Kenya Gazette Vol. CXXV No. 240 and from the Notices of the 2017 Kisumu County Draft Valuation Roll Section 9(4) of the Valuation For Rating Act Cap 266 of the Laws of Kenya issued in 2023 against the affected properties listed in the schedule of affected properties.
- The applicants’ costs for this cause be paid by the Respondent.
The application was supported by the contents of the statement of facts dated 7th December 2023 and the Verifying Affidavit of John Micheal Obure Obure sworn on 6th December 2023, the affidavits of the witnesses and the annextures thereto.
The application was opposed vide the averments in the Replying Affidavit sworn by Hesbon Hongo on 12th August 2024,
The Ex Parte Applicants’ case
The case of the ex parte applicants as can be gathered from the application, the Statement of Facts and Affidavits is that the Gazette Notice No.15453 published on 10th November 2023 in the Kenya Gazette Vol. CXXV No. 240 is a culmination of a process tainted with illegality due to failure by the Respondent to adhere to mandatory provisions of the law requiring that public participation be an integral part of the process of preparation of the Draft Valuation Roll 2017, and to comply fully with the order of Mandamus given against the Respondent in relation to the Draft Valuation Roll 2017 in Kisumu E & LC Misc Cause No. E3 of 2021 (herein also known as the Obure Obure case).
That the Respondent proposes increase of property rates of up to 7,275 per cent on freehold land and upto 5343 per cent on lease hold land which is so exorbitant as to be unreasonable and oppressive. That the proposed increase in property rates have been undertaken by a process that violates the law on public participation and particularly the Constitution, the Public Finance Management Act, the County Governments Act and the Kisumu County Public Participation Act.
That the proposed increase in property rates are certain to distort property prices, levels of rent and the price of commodities and services within the County of Kisumu at a time when the public is grappling with the depressed state of the economy within the County of Kisumu and the Republic of Kenya given the effects of Covid-19 pandemic and the economic recession that followed.
That unless the orders sought are granted; the collection of rates from property owners within Kisumu County on the basis of the Draft Valuation Roll 2017 and the Gazette Notice shall be permanently tainted by the illegality of the process, the Respondent will be permitted to have abdicated its statutory obligation to submit the planning process for the preparation of the Draft Valuation Roll 2017 to public participation and its obligation under the law to comply with the order of mandamus in Kisumu E & LC Misc Cause No. E3 of 2021, the public will have been deprived of its constitutional right in engaging in public participation in the development of the Draft Valuation Roll 2017, the Respondent will be permitted contrary to public policy to benefit from its fragrant abdication of its constitutional obligation to adhere to national values of good governance, integrity, transparency and accountability, the constitutional principles of public finance to be open, accountable and to include public participation in financial matters and the constitutional principles of public service to involve the people in the process of policy making, to be accountable for administrative acts and to be transparent and provide the public with timely and accurate information. That granting of the orders sought is in the wider interests of justice and in public interest.
The Respondent’s case
The case of the Respondent as contained in the Replying Affidavit is that the sole purpose of a Valuation and Rating Regime is to raise revenue for the County governments. That it is one of the two specific taxes that County Government are expressly permitted to impose rates and levy and under article 209(3) of the Constitution. That for the Respondent, the importance of having reliable sources of revenue for the effective governance and delivery of services by County Governments as highlighted in article 175(b) cannot be over emphasized. That the Respondent has a public duty to facilitate the social and economic development of its area of jurisdiction hence the need for reliable source of revenue.
That the Respondent having been faulted in Republic – vs – County government of Kisumu Ex parte John Micheal Obure Obure (2022) eKLR for failure to adhere to public participation principles when preparing the Draft Valuation Roll 2017, undertook to prepare the valuation Roll in line with the Court orders as issued. That the Respondent caused a Notice to the public inviting written memoranda from members of the public and made invitations to the members of the public to attend the exercise in diverse sub – counties within Kisumu County on 23rd October 2023 to 1st November 2023. That preparation of a Valuation Roll under section 3 of the Valuation For Rating Act is an internal process and that it is only under section 9 of the Act that the public shall have scrutiny of the final document. That no evidence has been shown of how the Draft Valuation Roll 2017 is punitive and unreasonable. That land has significantly appreciated in value and it is only right that the rates proposed reflect the appreciation in value.
That during the time of public participation no rate had been arrived at under section 15 of the Rating Act.
That the witness statement annexed to the application are founded on hearsay hence raising credibility questions.
That the Respondent has shown that the Roll was laid before the County Assembly of Kisumu on 8th November 2023, and was to be placed for public inspection across various stations in the County.
Submissions
Pursuant directions given on 20th June 2024 the Notice of Motion was disposed of by way of written submissions.
Submissions for the Ex Parte Applicants.
Written submissions dated 20th September 2024 were filed by the firm of Behan & Okero Advocates for the Ex –Parte Applicants. It was submitted that it is evident that the Respondent is making the same mistakes condemned by the Court in Kisumu E&LC Misc Cause No. E 3 of 2021 decision.
That the public has a right to be involved in the decision-making process of a decision that affects them. That the public right must extend to their participation in processes for the decision that informed creation of the Draft Valuation Roll and in particular, the increase of valuation of the property by upto 7275 percent for freehold land and 5345 percent for leasehold land. That the public are entitled to receive by way of information necessary for their effective public participation as required by the Respondent’s principle (f) of public participation. That there must be a purpose for the increase articulated in a manner that affords the pubic clear understanding of the need for a very substantial increase. That there was no substantive public participation of the decision-making process for the preparation of the 2017 Draft valuation Roll as commanded by court.
That there is no evidence that the Respondent had respected the court’s pronouncement in the said decision. That the Respondent presented afresh the Draft Valuation Roll 2017 to the County Assembly after staging an illusory public participation exercise in which the public were warned that preparation of the evaluation Roll was an internal affair, that there would be no discussion of or disclosure of the advertised Kisumu County Enhancement of Land/Property Rates Revenue Programme and that the fora would merely educate them on how a Valuation Roll is developed and on the legislation relating to the valuation for rates and to rates.
Counsel submitted that there was no compliance with the law or the order of mandamus issued against the Respondent in the Obure Obure case compelling the Respondent to undertake the process of preparation of the Draft Valuation Roll 2017 and any Supplementary Rolls prepared thereunder including policy decisions made on the process for the valuation of properties pursuant thereto in strict compliance with article 201(a) of the Constitution of Kenya, section 125(2) and 207 of the Public Finance Management Act (No. 13 of 2012), sections 36 and 39 of the Urban Areas and Cities Act, Part VIII and section 115 of the County Governments Act (Nos 17 of 2012), section 4 and 8 sub section (1) and (b) and of paragraph 6,7 and 13 of the First Schedule to the Kisumu County Public participation Act 2015 and in fill adherence to the requirements of sections 132, 161 , 162 and 207 of the Public Finance Management Act (No. 18 of 2012)
Counsel urged the court to allow the application and grant the judicial Review orders of certiorari and prohibition prayed for with costs to the ex parte applicants.
Submissions for the Respondent.
Written submissions dated 22nd October 2024 were filed on behalf of the Respondent by the firm of Obura Mbeche & Company Advocates. The first issue raised in the submissions is that the application was not paid for hence there is no substantive Motion before court for determination. The next issue is whether orders of certiorari should issue as sought in prayer 1 of the Notice of Motion.
Counsel submitted that the certiorari order should not issue. Counsel relied on the provisions of section 9(3) of the Valuation For Rating Act and submitted that the Valuation Roll for Kisumu County that preceded the current Roll was prepared in the year 2006. That the current Roll 2017 was conducted in step with the mandatory provisions of section 3 of the Valuation For Rating Act which is in mandatory terms that the Respondent and not anyone else is to prepare the Draft Valuation Roll after which the same is availed for inspection by members of the public under section 9(2) of the Act. That section 9(3) of the Act requires the Town Clerk to publish a Notice in respect of every Draft Valuation Roll and Supplementary Valuation Roll and may be inspected and that such Notice shall state the manner in which and the latest date by which objections to the same may be made. That the County Government went further and conducted an extensive public participation exercise across the relevant rated areas of the County and compiled a report.
That the action herein is premature in view of the provisions of section 10 of the Act which provides for the manner of raising objections to Draft Valuation Rolls should there be any grievances. In support of its submissions, the Respondent relied on the decisions in Re- An Application by Bukoba Gymkhana Club(1963) EA where it was held that;
“the question whether the defects in the board’s procedure or form of the order are such as to enable a court to proceed by certiorari on those grounds does not affect the courts power and duty to grant certiorari in proper cases where there has been a failure to exercise a discretion judicially or failure of natural justice. That where the proceedings are regular upon their face and the inferior court had jurisdiction the superior court will not grant the orders of certiorari on the ground that the inferior tribunal had misconceived a point of law.”
Counsel submitted that the applicants have not demonstrated any breach of the law on the part of the Respondent. That the applicants did not call viva voce evidence to help define the alleged violations. That the Draft Valuation Roll has enhanced the value of the applicants’ properties to their individual benefits.
That under section 3 of the Act, the Respondent has a mandatory obligation to levy rates to collect the necessary funds to enable it meet its liabilities for the benefit of and in the interest of its citizens.
Counsel submitted that in view of the provisions of section 18 of the Act, whether or not the order of certiorari is granted the Draft Valuation which had already been placed before the County Assembly is the Draft Valuation Roll for the Respondent County of Kisumu. That court orders are not made in vain.
On whether or not the order of prohibition should issue, Counsel submitted that, the Draft Valuation Roll 2017 was the Roll for the entire County of Kisumu with about 65,000 rate payers. That the applicants who are only 35 in number are inviting the court to prohibit the Respondent County Government of Kisumu from exercising its lawful mandate of collecting revenue for the benefit of its citizens including the applicants. That the Respondent complied with the decision by Hon. Justice Ombwayo in an earlier case. Counsel relied on the case of John F.K Omanga - vs The Postmaster General Postal Corporation of Kenya & 2 others (2004) eKLR where it was held that prohibition should not be granted if there is no evidence that the Respondents were about to continue to undertake or effect any disciplinary proceedings against the applicant. Counsel urged the court to disallow the application and award and award costs to the Respondent.
Issues for Determination
From the pleadings filed, the Affidavit evidence and the submissions made, the following emerge as the issues for determination;
- Whether the substantive Notice of Motion dated 14th December 2023 is incompetent for want of payment of the requisite court fees.
- whether the Judicial Review proceedings herein is premature in view of the provisions of section 10 of the Valuation For Rating Act.
- whether the Respondent complied with the court order in KSM E & LC No. E 3 of 2021 and the law on public participation in preparing the Draft Valuation Roll 2017.
- whether the Ex parte Applicant is entitled to the orders sought.
- Costs.
Analysis and determination.
The first issue is whether or not the substantive Notice of Motion application dated 14th December 2023 is incompetent for want of payment of the requisite court fees.
The Respondent vide its written submissions raised the issue that the requisite filing fees prescribed is Kshs.9,075. That with no proof of payment of this amount by the applicants, there is no application before the court and that the applicants claim should be dismissed. That the application was to be filed within 21 days from the date leave was granted which was on 8/12/2023. That the application is deemed to be filed on the day the payment is made hence the same was filed outside the mandatory timelines without leave of the court.
Perusal of the record shows that subsequent to the filing of the written submissions, the issue of non-payment of court fees for the substantive application arose before court on 20th November 2024 when Counsel for the Ex- parte applicants submitted that the account number given was not accepting payment and that they were sorting it out. The Respondent’s response was that once the payment is done, the Respondent ought to be provided with evidence of payment and that the Respondent had no objection.
The court record further shows that vide letter dated 20/11/2024 addressed to the Deputy Registrar Counsel for the ex parte applicants filed payment receipt dated 5/4/2024 for Kshs.9075/= showing that the said fee had been paid. Section 96 of the Civil Procedure Act gives the court discretion, at any stage to allow the person by whom such fee is payable to pay the whole or part, as the case may be, of the fee, and upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.
In view of the foregoing I find that the substantive application vide Notice of Motion dated 14th December 2023 is competent, filing fees in respect thereof as assessed by the court Registry having been paid and evidence of payment supplied.
The Second issue for determination is whether or not the Judicial Review proceedings is premature in view of the provisions of section 10 of the Valuation For Rating Act Cap 266 Laws of Kenya.
It was submitted on behalf of the Respondent that given the provisions of section 10 of the Act, the Judicial Review was premature. Section 10 of the Act provides for objections to Draft Valuation and Supplementary Valuation Rolls as follows-
“(i) Any person (including the Local Authority or any person generally or specially authorized in that behalf by the local authority) who is aggrieved-
- by the inclusion of any rateable property in or by the omission of any rateable property from, any Draft Valuation Roll or draft supplementary valuation roll;
or
- by any value ascribed in any Draft Valuation Roll or Draft Supplementary Valuation Roll to any rateable property or by other statement made or omitted to be made in the same with respect to any rateable property may , on the payment of a non-refundable fee of five hundred shillings and on the prescribed form, lodge an objection with the Town Clerk at any time before the expiration of twenty eight days from the date of publication of the notice referred to in section 9(3)
2) No person shall be entitled to urge an objection before a valuation court unless he had first lodged the Notice of objection; but it shall be competent for a valuation court to agree to consider an objection although notice thereof has not been given in accordance with this section.
3) The Town Clerk shall, within 21 days after the date on which notice of objection is lodged with him, send a copy thereof to the rateable owner of the rateable property to which the objection relates if that person is not the maker of the objection.
Nothing in this section precludes the court from entertaining judicial review proceedings. The present case is not merely an objection as to the inclusion or omission of property or the value ascribed to rateable property, rather the case concerns compliance with court orders previously issued and the law on public participation in decision making as a constitutional requirement.
The notices that were served upon the ex parte applicants, copies of which were attached to the application for leave, indicated that the said notices were made pursuant to the Kisumu County Draft Valuation Roll 2027 section 9(4) of the Act. The Notices further indicated that the Draft Valuation Roll 2017 had been laid before the County Assembly and was available for implementation. Meaning that according to the Respondent, the process of preparation of the Valuation Roll was complete and the Valuation Roll was ready for implementation.
I find that these proceedings were not filed prematurely.
- The next issue is whether the Respondent complied with the court order in KSM E & LC No. E 3 of 2021 and the law on public participation in preparing the Draft Valuation Roll 2017.
The Ex parte applicants’ case is that the actions of the Respondent are in breach of the order of Mandamus given against the Respondent in relation to the Draft valuation Roll 2017 in KSM E & LC MISC CAUSE NO E3 OF 2021. A reading of the said decision reveals that the same Draft Valuation Roll the subject matter of the proceedings herein was the subject matter. That among the orders made by the court was an order of mandamus in the following terms:
“an order of Mandamus compelling the Respondent to undertake the process for preparation of the draft Valuation Roll 2017 and any Supplementary Rolls prepared thereunder including policy decisions made on the process for valuation of properties pursuant thereto and/or in respect thereof in strict compliance with the provisions of article 201 (a) of the Constitution of Kenya, sections 125 (2) and 107 of the public Finance Management Act No. 13 of 2012, section 36 and 39 of the Urban Areas and Cities Act No. 13 of 2011, section 6 (6) Part VIII and section 115 of the County Governments Act No. 17 of 2012 section 4 and 8 (1) and (6) and paragraphs 6, 7, and 13 of the First Schedule to the Kisumu County Public Participation Act 2015 and in full adherence to the requirements of section 132, 161, 162 and 207 of the Public Finance Management act No. 18 of 2012.”
The court order required the Respondent to do compliance with the provisions of law cited in the order. The Respondent avers that it complied with the court order and attached annexture HM3 to the Supporting Affidavit which was a public Participation Report on the Draft Valuation Roll 2017 county Government of Kisumu to demonstrate the compliance.
The Ex Parte Applicants vide the Statement annexed to the application for leave and the Affidavits by the witnesses, contended that the public participation was not adequate as the views of the members of the public were not sought. The witnesses namely; Hunter M. O. Josiah and Collins Kodhek swore Affidavits on 6/12/2023. They stated that they attended different meetings called by the Respondent for the public participation on the Kisumu County Enhancement of Land Property Rates Programme. Their testimony was that there was no discussion of the Kisumu County Enhancement of Property Rates Programme which they had been invited for. That the meeting was steered more towards legal definition of Valuation Roll, how it is prepared and made legal according to the Rating Act and the Valuation for Rating Act. That members of the public were not given opportunity to view the Draft valuation Roll 2017. Mr Kodhek stated that in the meeting he attended there was a consultant retained by the Respondent who affirmed that the meeting was only to inform the public about the Draft Valuation Roll and that the meeting was not to be linked with land rates as a separate day was going to be set for issues to do with land rates. That the consultant informed members of the public that the information contained in the Draft Valuation Roll 2017 could not be disclosed until 10th November and that no amendments could be done to the Draft Valuation Roll 2017 until the same was presented to the County Assembly and further that complaints from the public could be raised through a complaints form to be bought at Kshs.500/-.
These allegations were not denied. The Respondent only stated that preparation of the Draft Valuation Roll is an internal process to be undertaken solely by the Respondent. This in my view is a wrongful assumption given the express requirements of the court order and the law on public participation. It is clear that the Draft Valuation Roll 2017 that was the subject matter of the earlier suit is the same one pursuant to which the Respondent demanded the increased property rates from the ex parte applicants. The Respondent has not demonstrated that it collected the views of the public regarding the enormous increments of the property rates or that it took the views of the public into account and factored them in preparation of the Draft Valuation Roll 2017. The Respondent has not demonstrated that it explained to the participants the rationale or basis for the increase in the property rates by over 5000 percent.
I find that the Respondent has not demonstrated that it complied with the court order.
While it is true as submitted by the Respondent that through the property rates the Respondent raises revenue to run its affairs and provide services to its citizens including the Ex Parte Applicants, the right to public participation is paramount. 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 Tabacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) it was held 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.
In Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya (JR Misc. App. No. 374 of 2012 the Court stated that
“Participation of the people necessarily requires that the information be availed to the members of the public whenever public policy decisions are intended and the public be afforded a forum in which they can adequately ventilate them.”
In Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR it was held inter alia that there is a duty for the government agency or Public officials involved to take into consideration, in good faith, all the views received as part of public participation programme. The government agency or Public Official cannot merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box.
There is no demonstration that meaningful public participation was conducted by the Respondent with a view to give the ex parte applicants sufficient information about the Draft Valuation Roll that increases the property rates by more than 5000 percent, there was no information given to the public as to how the proposed rates were arrived at; there is no demonstration that the views of the affected citizens particularly the applicants were collected or factored into the Valuation Roll.
In the circumstances the court finds that the Ex Parte applicants are entitled to the relief sought. Let the Respondent comply with the court order in the Obure Obure case, conduct meaningful public participation to enable it enhance property rates as it is obligated to do.
For the foregoing reasons, the Notice of Motion application dated 14/12/2023 succeeds and is hereby allowed as follows:
- An order of certiorari is hereby issued to remove into this honourable court for the purpose of quashing the Gazzette Notice No. 15453 published on the 10th November 2023 in the Kenya Gazettee Vol. CXXV No. 240 and the Notices of the 2017 Kisumu County Draft Valuation Roll Section 9(4) of the valuation for Rating Act Cap 266 of the Laws of Kenya issued in 2023 against the affected properties of Hassanali Kasam, Mitch Menezes, Feisal Amirally, Isaac E.N Okero, I.E Omolo Okero, Dr Omondi Odhiambo, Vipul Tulshidas Kakkad, Surji Singh Pandhal, Kicomi (1993) Ltd, Gurmej Tanna, Juvtiben Maganlal Devji Tanna, National Printing Press Ltd, Hiten Kumar Maganlal,. Hemal Kishar Kotecha, Combine Housing Ltd, Jenabhai A, Kanji, Nyanza Enterprises Ltd, Surendra Maganbhai Patel, Jetendra Maganbhai Patel, Foam Mattresses Ltd, Narendra Pragji Tanna, Byron Menezes Administrator Estate of L.G Menezes, Sanjay J. Patel, Divyesh Prabhudas Chotai, Vipul Prabhundas Chotai, Lexis Investments Ltd, Jitihada Ltd, Administrators of the Estate of Satwant Singh Dhanjal, Vyatu Limited, Lalji P. Shah, Jaswinder Singh G. Aura and Jude Thadeus Ragot as listed in the schedule of affected Properties field herein.
- An order of prohibition to prohibit the County Government of Kisumu from commencing, instituting, undertaking, continuing or proceeding all and any proceedings and processes arising from the Gazette Notice No. 15453 published on the 10th November 2023 in the Kenya Gazette Vol. CXXV No. 240 and from the Notices of the 2017 Kisumu County Draft Valuation Roll Section 9(4) of the Valuation For Rating Act Cap 266 of the Laws of Kenya issued in 2023 against the affected properties listed in the schedule of affected properties is hereby issued.
- Costs of this cause are awarded to the ex parte applicants.
Orders accordingly.
Judgement dated and signed at Kisumu and delivered this 24th day of April, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen: Court Assistant.
I. Okero for the Ex Parte Applicants.
Mbeche for the Respondent.