This ruling is in respect of two matters firstly; the Notice of Motion application dated13th February 2024 and expressed to be brought pursuant to the provisions of articles 22, 23(3), 159(2) (a), (b) and (d) and 1b2 (2) (b) of the Constitution of Kenya, sections 1,1A, 3 & 3A of the Civil Procedure Act Cap 21 Rules 21, 22 and 23 of the Environment and Land Court (Procedure) Rules and Order 51 Rule 1 of the Civil Procedure Rules and secondly; the Preliminary Objection dated 1st March 2024.
The application seeks for orders that
- A temporary conservatory order do issue barring the Respondent its agents and servants and those drawing authority under it, jointly and severally from implementing the Draft Valuation Roll, 2017 and Gazette Notice No.15453 published by the Respondent on the 10th November 2023 in the Kenya Gazette Vol. CXXV No. 240 together with all consequential decisions and notices pending the hearing and determination of the substantive petition.
- The cost of this application be borne by the Respondent.
- Other and further orders do issue as the honorable court deems just, fit and expedient under the circumstances.
The grounds upon whether application was brought are that the Respondent in Gazette Notice No. 15453 published on 10th November 2023 in Kenya Gazette Vol. CXXV 240 notified the public that Draft Valuation Roll, 2017 had been laid before the County Assembly and invited aggrieved persons to lodge objection if at all on payment of non-refundable fee of Kshs.500/-. That the said public notice was issued in spite of the judgement in Republic vs County Government of Kisumu Ex parte John Michael Obure Obure [2022]eKLR wherein the court, inter alia, prohibited the Respondent from commencing, instituting, understanding, continuing or proceeding with all and any proceedings and process. That the court impugned the process of preparation of the Draft Valuation Roll, 2017 for failing to adhere to the principles in articles 10, 174, 209 and 232 of the Constitution. That in utter contempt of court and disregard for the Constitution and other laws the Respondent has sneaked back the very draft. That in that Draft Valuation Roll the Respondent has demonstrated whim and caprice in the amounts demanded as new rates from various property owners with a few property owners getting as much as 26 per cent decrease in the rate demanded compared to previous years and a majority being slapped with unconscionable increase of rates payable to as much as over 300. That no explanation about the huge increase and inconsistency in rate demanded has been offered to the public. That due to lack meaningful, quantitative and qualitative public participation the Respondent has failed to demonstrate compliance and consistency with the approved fiscal framework and County Allocation of Revenue Act, in violation of section 132 (3) of the Public Finance Management Act 2012. That as a result of the unconstitutional and unlawful actions and omissions of the Respondent the public including the Petitioner herein have been slapped with demand notices for rates under the Draft Valuation Roll 2017 and are therefore prejudiced presently and fear that the prejudice will be worse in the future if the Respondent is allowed to continue in entrenching the culture of impunity and lack of accountability. That the court in ELCLPJR/E002/2023 John Obure Obure vs County Government of Kisumu issued an order suspending Gazette Notice No. 15453 published on 10th November 2023 in Kenya Gazette Vol. CXXV No 240 and that for equality and fairness in the application of the law it is just and fit that the suspension applies to all the property owners and rate payers in Kisumu County.
The application was opposed by the Respondent vide the grounds contained in the notice of preliminary objection dated 1st March 2024. The objection is that the petitioner being a society within the meaning of section 2 of the Societies’ Act Cap 108 Laws of Kenya is not a body corporate capable of suing or being sued in its name hence cannot in law maintain this petition which is incompetent and therefore fit for striking out. That the matters framed as constitutional issues are not the only cause that can give the applicants the relief sort hence not yet ripe for determination by way of a Constitutional Petition by tint of the doctrines of ripeness and constitutional avoidance as there exists avenues such as judicial review or ordinary suit. The main issue being rates and valuation by which resolution of the same can be effectively achieved hence the petition is an abuse of the court process in the circumstances of this case.
When the matter first came to court for inter partes hearing on 4th March 2024 parties sought for and the court granted time for amicable settlement. Later parties indicated to court that they were unable to reach amicable settlement and the court gave directions, inter alia, that both the application and the preliminary objection be canvassed together by way of written submissions. The petitioner/applicant filed no written submissions.
On behalf of the Respondent written submissions dated 23rd September 2024 were filed by the Office of the County Attorney, Kisumu County.
The Respondent framed the following as issues for determination
- Whether or not the petition herein is competent for having been originated by a society registered under the Societies’ Act Cap 108 Laws of Kenya in its own name.
- Whether the petitioner’s case meet the constitutional threshold for grant of the interlocutory orders sort.
- What orders ought to be granted at this interlocutory stage.
Counsel relied on the definition of preliminary objection in the case of Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 and the case of Aviation & Allied Workers’ Union of Kenya vs Kenya Airways Limited & 3 others [2015]eKLR Counsel submitted that it is not in dispute that the petitioner is a society registered under the provisions of the Societies’ Act Cap 108 Laws of Kenya. That although the applicant invoked the provisions of articles 3 as read with article 22 and 258 of the Constitutions as the basis for the legal standing to institute the petition, a society registered under the Societies’ Act is an unincorporated body that lacks capacity to sue or be sued in its own name or otherwise originate judicial proceedings.
Counsel relied on the cases of Trustees Kenya Redeemed Church & and another -vs- Samuel M’obiya & 5 others (2021) eKLR, Free Pentecostal Fellowship in Kenya -vs- Kenya Commercial Bank Nairobi HCC No 4116 of 1992 and African Orthodox church of Kenya vs Reverend Charles Omuroka and another (2014) )eKLR to support the submission. Counsel further relied on Kisumu Bar Owners Association vs Cabinet Secretary Ministry of Interior & Coordination of National Government & 2 others. (Constitutional pet E002 of 2024) (2024) KEHC 6003(KLR) 27 May 2024 where the court concluded that the petitioner being a society did not have capacity to originate litigation in its own name and can only do so in the names of its officials and entire membership.
I have considered the application, the notice of preliminary and the submissions made. In the light of the decided and existing litigation in respect of the subject matter of the petition namely the Draft Valuation Roll 2017, there is no doubt that the petition and the application raise weighty matters concerning the raising of revenue by the Respondent vis a vis the right of the members of the petitioner to fair taxation, public participation and related constitutional rights. While it is correct that a society registered under a societies’ Act Cap 108 Laws of Kenya has a right to originate litigation courts have held that the manner of originating such litigation or approaching the court is important; namely that such society can only originate litigation in the name of its officials or the entire membership as such society is an unincorporated body and hence not a legal person.
In the present case, the petition and the application are commenced in the name of Lake Region Traders’ Association whose membership is not disclosed. This in view of the decided cases on the issue makes the petition incompetent and incurably defective.
In the premises, I find that the preliminary objection has merit and hereby uphold it. The result is that both the application dated 13th February 2024 and the petition of even date are hereby struck out. No orders as to costs.
Orders accordingly.
Ruling read and signed at Kisumu and delivered this 6th February, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen: Court Assistant.
Joshua Nyamori for the Petitioner/Applicant.
Awuor for the Respondent.