REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E189 OF 2021
RURAL PRIVATE HOSPITALS
ASSOCIATION OF KENYA (RUPHA)…............................... PETITIONER
-VERSUS-
MOMBASA COUNTY .......................................................1 ST RESPONDENT
KWALE COUNTY........................................................... 2 ND RESPONDENT
KILIFI COUNTY ............................................................ 3 RD RESPONDENT
TANA RIVER COUNTY ................................................ 4 TH RESPONDENT
LAMU COUNTY ............................................................. 5 TH RESPONDENT
TAITA-TAVETA COUNTY .......................................... 6 TH RESPONDENT
GARISSA COUNTY .........................................................7 TH RESPONDENT
WAJIR COUNTY ............................................................ 8 TH RESPONDENT
MANDERA COUNTY .................................................... 9 TH RESPONDENT
MARSABIT COUNTY ..................................................10 TH RESPONDENT
ISIOLO COUNTY ...........................................................11 TH RESPONDENT
MERU COUNTY ............................................................ 12 TH RESPONDENT
THARAKA NITHI COUNTY ....................................... 13 TH RESPONDENT
EMBU COUNTY ............................................................ 14 TH RESPONDENT
KITUI COUNTY ............................................................ 15 TH RESPONDENT
MACHAKOS COUNTY ................................................ 16 TH RESPONDENT
MAKUENI COUNTY .................................................... 17 TH RESPONDENT
NYANDARUA COUNTY .............................................. 18 TH RESPONDENT
NYERI COUNTY ........................................................... 19 TH RESPONDENT
KIRINYAGA COUNTY ................................................ 20 TH RESPONDENT
MURANG'A COUNTY ....................................................21 st RESPONDENT
KIAMBU COUNTY ....................................................... 22 ND RESPONDENT
TURKANA COUNTY .................................................... 23 RD RESPONDENT
WEST POKOT COUNTY ............................................. 24 TH RESPONDENT
SAMBURU COUNTY .................................................... 25 TH RESPONDENT
TRANS-NZOIA COUNTY ............................................ 26 TH RESPONDENT
UASIN GISHU COUNTY .............................................. 27 TH RESPONDENT
ELGEYO MARAKWET COUNTY ............................. 28 TH RESPONDENT
NANDI COUNTY .......................................................... 29 TH RESPONDENT
BARINGO COUNTY ..................................................... 30 TH RESPONDENT
LAIKIPIA COUNTY ...................................................... 31 ST RESPONDENT
NAKURU COUNTY ....................................................... 32 ND RESPONDENT
NAROK COUNTY ......................................................... 33 RD RESPONDENT
KAJIADO COUNTY ...................................................... 34 TH RESPONDENT
KERICHO COUNTY ..................................................... 35 TH RESPONDENT
BOMET COUNTY ......................................................... 36 TH RESPONDENT
KAKAMEGA COUNTY ................................................ 37 TH RESPONDENT
VIHIGA COUNTY ......................................................... 38 TH RESPONDENT
BUNGOMA COUNTY ................................................... 39 TH RESPONDENT
BUSIA COUNTY ........................................................... 40 TH RESPONDENT
SIAYA COUNTY ............................................................ 41 ST RESPONDENT
KISUMU COUNTY ........................................................ 42 ND RESPONDENT
HOMABAY COUNTY .................................................. 43 RD RESPONDENT
MIGORI COUNTY ....................................................... 44 TH RESPONDENT
KISII COUNTY .............................................................. 45 TH RESPONDENT
NYAMIRA COUNTY .................................................... 46 TH RESPONDENT
NAIROBI CITY COUNTY ........................................... 47 TH RESPONDENT
JUDGMENT
Introduction
1. The Petitioner , Rural Private Hospitals Association of Kenya (RUPHA), describes itself as an association registered under Section 10 of the Societies Act (Cap. 108 ), and that it represents various privately owned medical centres, outpatient clinics, nursing homes and hospitals operating across the 47 counties of Kenya.
2. The Respondents are the 47 County Governments of the Republic of Kenya, established under Article 176 (1) of the Constitution and the County Governments Act , responsible for local governance, county legislation and revenue collection within their respective territorial boundaries.
3. The Petitioner filed this Petition dated 29 th April, 2021, challenging the constitutionality of single business permit fees levied on its members operating within the 47 Counties by the respective 47 County Governments.
4. The Petitioner asserts that its members are healthcare professionals governed under specific national legislation namely- the Medical Practitioners and Dentists Act, the Clinical Officers (Training, Registration and Licensing) Act, the Nurses Act andthat they are regulated by their respective national councils being (the Kenya Medical Practitioners and Dentists Council, the Clinical Officers Council, and the Nursing Council of Kenya). That these national regulatory bodies inspect, register and issue annual practicing licenses to the Petitioner's members upon payment of prescribed fees. RUPHA contends that through their respective Finance Acts, the County Governments impermissibly attempt to regulate medical professionals by forcing them to acquire single business permits.
The Petitioner's Case
5. In its Petition dated 29 th April 2021 and is supported by the sworn affidavit of Brian Lishenga on the even date, the Petitioner seeks the following reliefs:
(1 A DECLARATION that the Respondents’ purported acts of imposing single business permit fees or any other fee or levy against members of the Petitioner are illegal, discriminatory, unconstitutional and invalid.
(2 A DECLARATION that the professional practice of member of the Petitioner is exclusively regulated under the Medical Practitioners and Dentists Act (Cap. 253), the Clinical Officers (Training, Registration and Licensing) Act No. 20 of 2017 and The Nurses Act.
(3 A DECLARATION that the Respondents’ acts purporting to levy single business licence fees against members of the Petitioner constitutes a violation of their fundamental rights and freedoms.
(4 An ORDER of prohibition does hereby issue to permanently prohibit the Respondents from imposing single business licence fees or any other levies against members of the Petitioner.
(5 The Respondents do bear the costs of the Petition.
6. The Deponent asserts that the Petitioner’s members are statutory medical entities regulated under The Medical Practitioners and Dentists Act Cap. 253, The Clinical Officers (Training, Registration and Licensing) Act and The Nurses Act and that the licensing and oversight are executed by national bodies, including the Kenya Medical Practitioners and Dentists Council (KMPDC), which issue annual trading and operational licenses.
7. The Petitioner claims that despite national regulation, the Respondent County Governments have routinely enacted County Finance Acts to demand Single Business Permit (SBP) fees and associated levies from private medical facilities. The Petitioner asserts that County Governments have resorted to harassing, intimidating, arresting and criminally prosecuting its members for instance, the cases in Embu, Kajiado, Garissa, Kakamega and have resorted to impounding medical equipment for failure to pay SBP fees.
8. It is averred that under the Fourth Schedule, Part II, Paragraph 7(b): of the Constitution , there is an explicit limitation to county authority over trade development and licensing by imposing the exception: “excluding regulation of professions.” It is asserted that levying Single Business Permits (SBP) on medical facilities constitutes an illegal attempt to regulate a national profession.
9. The deponent avers that Article 191(2) of the Constitution provides for national legislation governing medical practice in a uniform manner across Kenya and that it prevails over conflicting County Finance Acts. That under Article 209(2) & (5 ), county revenue-raising powers must not be exercised in a manner that prejudices national mobility of health services, economic policies, or constitutional rights.
10. The Petitioner avers that t he Respondents’ actions infringe upon constitutional guarantees, including equality before the law under Article 27(1), protection of property under Article 40 and the realization of human dignity and social justice under Articles 19(2), 21(1) .
11. The deponent refers to the cases of Republic v. County Assembly of Nakuru & 2 Others Ex-Parte Dr. John Njenga Ngethe & 117 Others (JR No. 14 of 2014) stating that Certiorari and Prohibition orders were issued quashing the levying of SBPs on medical professionals; and Medina Hospitals Ltd & 5 Others v. County Government of Garissa (2015 eKLR) , where the court is said to have held that counties lack jurisdiction to levy SBPs on medical practice facilities.
Responses
12. In response to the Petition, the Respondents filed several documents being a Notice of Preliminary Objection, Grounds of Opposition and Replying Affidavits.
13. Mombasa County, the 1 st Respondent herein filed Grounds of Opposition dated 12 th November 2024 , opposing the main Petition and the accompanying Application. The 1 st Respondent urged the Court to strike out or dismiss the entire Petition with costs on the grounds that the issues raised are res judicata having already been conclusively ruled upon in Nakuru JR No. 14 of 2014 Republic v County Assembly of Nakuru and 2 Others ex parte John Njenga and 117 others .
14. The County of Mombasa asserts that the Petition lacks specificity, relies on pre-emptive presumptions and fails to cite the specific County Finance Act provisions alleged to be unconstitutional or in conflict with national medical statutes. It is also asserted that the Petitioner has not disclosed a valid cause of action or presented evidence linking Mombasa County to the alleged violations. The 1 st Respondent argues that the Petitioner approached the Court with unclean hands through misrepresented facts, making the Petition incompetent, defective and an abuse of the court process.
15. Kilifi County, the 3 rd Respondent also filed Grounds of Opposition dated 1 st October 2024 seeking the outright dismissal of the Petition, asserting its legal right to levy single business permits and trade licenses on private healthcare facilities under Part I Schedule Two of the County Government of Kilifi Finance Act, 2021.
16. It is contended that constitutionally, Paragraph 7(b), Part 2 of the Fourth Schedule to the Constitution explicitly empowers county governments to handle trade development and regulation including trade licensing while excluding only the regulation of professions. It is further asserted that trade licensing is a service function rendered by the county, entitling it under Articles 185(2) and 209(4) of the Constitution to impose and recover business permit fees from commercial premises, including private medical institutions.
17. In its Grounds of Opposition, the 3 rd Respondent contends that the Trade Licensing Act Cap 497 whose 2 nd Schedule previously exempted medical professionals from payment of Single Business Permits, was officially repealed by the Licensing Law (Repeals Amendment) Act No. 17 of 2006 at Section 112 and further emphasizes that all statutes carry a legal presumption of constitutionality, which the Petitioner is said to have failed to displace; and that granting the requested orders would upset the balance of convenience.
18. The 3 rd Respondent asserts that the Petition fails to disclose a valid cause of action or to present evidence linking Kilifi County to the alleged constitutional violations. Further, that the petitioner relies on pre-emptive presumptions and presents generalized allegations against all 47 counties without providing particulars of the specific county finance laws being challenged or the precise loss and damage suffered by the Petitioner’s members.
19. The 3 rd Respondent states that it was not a party to the previous judicial review cases cited in the Petition and was never notified of them. Referencing Nairobi Constitutional Petition No. 97 of 2016 (Kenya Pharmaceutical Association v. Nairobi City County & Others) , the 3 rd Respondent maintains that the petition is speculative, hypothetical and res judicata , as the core issues regarding trade permit demands have already been conclusively determined by the court. That further, the petition lacks specificity regarding the 47 individual county finance acts and presents no evidence of actual loss or violation by the 3 rd Respondent.
20. Finally, the 3 rd Respondent states that the Petitioner will not suffer irreparable loss if the Petition is dismissed, as any alleged financial prejudice can be adequately compensated through damages. That the Petition misrepresents facts and provisions of the law, making it misguided, fatally defective, frivolous and an abuse of the court process. Consequently, the 3 RD Respondent urges the Court to dismiss the Petition with costs.
21. Meru County , the 12 th Respondent filed Grounds of Opposition dated 14 th March 2025 seeking a dismissal of the Petition with costs on grounds that the petition fails to disclose a prima facie case and does not meet the necessary constitutional threshold, rendering it incompetent, misconceived and an abuse of court process.
22. The 12 th Respondent highlights that the petition improperly attempts to deter county governments from executing their legitimate mandates bestowed upon them by the Constitution and the County Governments Act to collect revenues. It contends that the Petition improperly seeks to deter the county from executing its legitimate constitutional and statutory mandate. The 12 th Respondent emphasizes that the Petitioner’s pleadings suffer from a critical lack of clarity and specificity. In particular, that the Petitioner fails to cite any express provision within the Medical Practitioners and Dentists Act, the Clinical Officers (Training, Registration and Licensing) Act, or the Nurses Act that allegedly conflicts with the local revenue and finance legislation enacted by the counties.
23. Further contention is that rather than presenting precise legal conflicts, the Petitioner engages in a broad, generalized condemnation of the Finance Acts passed across all 47 counties without articulating any specific, individual claim or violation attributable directly to the 12 th Respondent.
24. Finally, the 12 th Respondent states that there is a clear legal distinction between professional oversight and local taxation, affirming that the collection of trade license fees from commercial business premises does not constitute or amount to the regulation of a profession. For these reasons, the 12 th Respondent prays that the Court dismisses the Petition in its entirety with costs.
25. The County Government of Nyandarua the 18 th Respondent filed their Grounds of Opposition dated 29 th June 2023 and primarily challenging the Petitioner’s locus standi to institute court proceedings on behalf of its members without demonstrating express written authority or permission from them.
26. Nyandarua County asserts that the Petition discloses no cause of action, as the Petitioner failed to produce any evidence, finance bill clauses, or specific proof showing that Nyandarua County has imposed illegal business permit fees or infringed upon constitutional rights.
27. It is their contention that the Trade Licensing Act (Cap 497) relied upon by the Petitioner was repealed, leaving no statutory exemption against local trade licenses. Citing revenue-raising powers under Article 209(3), Part 2 of the 4 th Schedule of the Constitution and the decision in Nairobi Constitutional Petition No. 97 of 2016 Kenya Pharmaceutical Association v Nairobi City County and Others, the 18 th Respondent contends the matter is res judicata and should be dismissed with costs to them.
28. The 19 th Respondent Nyeri County filed its r eplying Affidavit sworn by County Secretary Benjamin Wachira Gachichio on dated 16 th May 2024 . The deponent states that the Petition is fatally incompetent for failing to adhere to the constitutional pleading precision standards established in Anarita Karimi Njeru v. Republi,c specifically, because the Petitioner advances generalized allegations against all the 47 counties and alludes to the unconstitutionality of the county Finance Acts without identifying specific sections of Nyeri’s Finance Act or national medical laws that conflict.
29. The 19 th Respondent’s deponent states that the Petitioner challenges the county governments’ mandate to raise revenue through the Single Business Permits but that while professional practice fees regulate professional bodies, private medical facilities also engage in commercial trade by selling and distributing pharmaceutical products, which legally subjects their premises to county single business permits.
30. Citing the case of Kenya Pharmaceutical Association v. Nairobi City County & 46 Others (2017) eKLR , the 19 th Respondent highlights that selling pharmaceuticals is classified as a trade and that exempting private hospitals would violate the constitution and public policy and equal taxation principles under Article 201 of the Constitution . They assert that the entire Petition has been brought in bad faith to aid the Petitioner to evade trade licenses by shielding one entity from paying legally imposed county taxes and jeopardizing the Respondents’ mandate to collect revenue for its citizens’ benefit.
31. The County Government of Kiambu, the 22 nd Respondent filed its Grounds of Opposition dated 19 th January 2026 contending that the Petition fails to satisfy the constitutional threshold set out in Anarita Karimi Njeru v. Republic (1976-1980) KLR 1272, due to a complete lack of precision regarding alleged rights violations. The 22 nd Respondent states that the dispute is administrative and statutory rather than constitutional and that the Petitioner failed to exhaust available statutory dispute resolution mechanisms before approaching the Court.
32. Further contention is that the Petition improperly constitutionalizes disputes that are otherwise governed by statute and invites the court to breach the doctrine of separation of powers and judicial restraint by interfering with lawful legislative and executive authority without displacing the legal presumption of statutory constitutionality. That the petition also fails to demonstrate any clear inconsistency with the Constitution.
33. It was asserted that the allegations concerning a lack of public participation are generalized and unsupported by evidence required to prove that the constitutional standard for public participation was breached.
34. It is contended that the reliefs sought are imprecise, legally untenable and incapable of enforcement and it is deposed further that granting the requested reliefs would disrupt public administration, prejudice service delivery and cause administrative paralysis. They urged the dismissal of the Petition with costs for want of merit.
35. The 23 rd Respondent herein, Turkana County filed its Replying Affidavit sworn by Ruth Emanikor on 20 th September 2023 . She deposes that the Petitioner is registered as a society under the Societies Act and lacks the legal capacity or locus standi to sue in its own name or to represent members without explicit authorization. It is further deposed that the Petition fails to plead with constitutional precision, relying instead on vague blanket allegations without specifying any conflicting sections between the national healthcare acts and Turkana’s Finance Act.
36. The deponent explains that county revenue powers under Article 209(3) and Part II of the 4 th Schedule of the Constitution , allow business permits to be charged on the commercial premises or shops such as pharmacies and chemists selling drugs, which is separate from individual professional licensing. Additionally, the County points out that the Trade Licensing Act (Cap 497) granting historical exemptions was repealed, meaning, no statutory exemption exists for the Petitioner to omit paying the Business Permits and trade licences by law. They urge the court to dismiss the suit as an abuse of process with costs.
37. The 34 th Respondent, the County Government of Kajiado filed its Replying Affidavit sworn by CEC Trade, Investments & Enterprise Development Leah N. Marias on 13 th February 2024. The deponent states that the single business permit is not an illegal tax on individual medical professionals, but a lawful charge under Article 209(4) of the Constitution imposed on business premises and shops which include pharmacies and chemists that sell pharmaceutical products, a fact that the Petitioner failed to disclose to the Court. She highlights that the petition was not brought by medical professionals themselves but by medical facilities and institutions operating commercial enterprises who are not individual professionals. It is further contended that the fee paid by the Petitioner’s members to their respective professional regulatory bodies is a professional levy paid to those regulators and has no correlation with the trading component of the shops selling the pharmaceutical products.
38. The deponent further states that professional fees paid to national regulatory bodies do not cover local trade operations or remove commercial establishments from county revenue jurisdiction. She reiterates that the Finance Act for the County does not attempt to regulate the medical profession. That exempting private hospital shops from trade permits while charging all other traders in the county would be unfairly discriminatory and contrary to public interest. They further state that granting the reliefs would challenge the constitutionality of Section 7 (b) of Part 2 of the 4th Schedule of the Constitution .
39. It is urged that the Petition is unsubstantiated and should be dismissed with costs to the 34 th Respondent.
40. The 37 th Respondent, the County Government of Kakamega filed its Notice of Preliminary Objection dated 29 th March 2022 and a Replying Affidavit sworn by the County Secretary Dr. Lawrence Omuhaka on 19 th August 2024 .
41. In the Notice of Preliminary Objection , the Applicant/37 th Respondent seeks the striking out of the entire Petition on the following grounds: -
(1) THAT, the Petitioner herein has no capacity to sue on its own name.
(2) THAT, the petitioner lacks the locus standi to institute this Petition and therefore depriving this Honourable Court the jurisdiction to hear and determine this Petition.
(3) THAT, no provision under the Society Act allows a Society to sue or be sued in its own name.
(4) THAT, Section 41(1) of the Societies Act stipulates that a Society can only appear in a suit through an appointed representative acting on its behalf.
(5) THAT, lack of capacity to sue or be sued is a weighty matter that goes to the root of the validity of the proceeding before a court and such a suit is incompetent and proceedings flowing from it are a nullity in law.
(6) THAT, the Court in African Orthodox Church of Kenya v Charles Omuroka & another (2014) stated that:
"I have considered the rival arguments by both counsel on this matter. I have also perused the pleadings and documents filed by the parties herein. The Plaintiff was registered on 5/7/1965 under the Societies Act and issued with Certificate Number 3801. On the other hand, the 2nd Defendant was registered on 5/1/2006 under the same Act (Cap. 108) and issued with Certificate Number 25689. There is no doubt therefore, that both the Plaintiff and the 2 nd Defendant as Societies or Associations registered under the Societies Act are not legal entities capable of suing and being sued in their own names. They have no legal capacity to institute proceedings in any court in their own names and cannot maintain such proceedings. They can only sue through Trustees, if they have one, or in the names of their officials in a representative capacity."
(7) THAT, the instant Petition is therefore an abuse of court process, vexatious and frivolous and should be stuck out.
42. In its Replying Affidavit , the 37 th Respondent urges the dismissal of the Petition, on grounds that Kakamega County’s revenue-raising authority is constitutionally anchored under Article 209(3) and Part 2 of the Fourth Schedule of the Constitution .
43. The County Secretary deposes that the Petitioner failed to cite any specific section of the Kakamega County Finance Act or demonstrate how it conflicts with national medical statutes, creating no actionable cause against the 37 th Respondent.
44. While acknowledging that medicine as a profession is exempt from county trade regulation under paragraph 7(b) of the Fourth Schedule , the 37 th Respondent asserts that selling medical items and pharmaceuticals constitutes commercial trade and consequently, shielding medical facilities from trade licensing would violate Article 201(b)(i) of the Constitution regarding the fair sharing of the tax burden, making the Petition an attempt to facilitate tax evasion.
45. It is urged that the Petition is in bad faith, is misconceived, misplaced and an abuse of the court process by seeking to have the Court aid the Petitioners to evade paying lawful trade license fees for activities that do not fall within the realm of the profession.
46. The 47 th Respondent, the Nairobi City County filed its Grounds of Opposition dated 14 th March 2025 urging the Court to dismiss the Petition with costs, stating that the Petition fails to disclose a prima facie case or meet the requisite threshold for constitutional petitions making it incompetent, misconceived and an abuse of the court process. The Nairobi City County contends that the petition improperly attempts to block the County from executing its constitutional and statutory mandates under the Constitution and the County Government Act.
47. The 47 th Respondent emphasizes that the pleadings are vague and unspecific, offering only a blanket condemnation of all 47 county finance acts without citing specific conflicting provisions of The Medical Practitioners and Dentists Act Cap. 253, The Clinical Officers (Training, Registration and Licensing) Act and The Nurses Act against the Finance Acts passed by the 47 th Respondent or detailing any direct claim against Nairobi City County. The 47 th Respondent reinforces that collecting trade licenses from commercial premises does not constitute regulating a profession.
48. The Notice of Preliminary Objection and the main Petition were canvassed by way of written submissions.
The Petitioner’s Submissions
49. The Petitioner’s submissions are dated 29 th November 2024 in which Counsel for the Petitioner sets out the following issues for determination:
i. whether imposing single business permit licence fees upon the Petitioner by the Respondents is unconstitutional;
ii. whether the imposing of single business permit licence fees upon the Petitioner by the Respondents amounts to double taxation;
iii. Whether the Petitioner warrants grant of the prayers sought; and Who is to bear the costs of the Petition ?
50. On the first issue, Counsel for the Petitioner submits that under Article 209(3) of the Constitution , county governments may only impose taxes authorized by an Act of Parliament and that Article 209(5) prohibits revenue-raising powers from being exercised in a manner that prejudices national economic policies or economic activities across county boundaries. The Petitioner relies on Article 191(2) & (3) to show that national statutes prevail over county legislation when uniform national regulation is required. Counsel for the Petitioner highlights that Part 2, Paragraph 7(b) of the Fourth Schedule to the Constitution , explicitly excludes the regulation of professionals from the trade licensing powers allocated to county governments.
51. Counsel relies on Republic vs. Nakuru County Assembly & Others, Nakuru HCCC JR No. 14 of 2014, in addressing the second issue, where the High Court is said to have established that county governments have no power to pass laws directed at regulating medical practitioners by levying single business permits because Clause 7(b) of Part Two of the Fourth Schedule specifically excludes professional regulation and Medina Hospital Limited & 5 others vs. County Government of Garissa [2015] eKLR in which the High Court sitting at Garissa is said to have held that levying additional county licensing fees on medical practitioners already licensed by national bodies like the Medical Practitioners and Dentists Board amounts to double taxation, violating the Constitution irrespective of county revenue-raising mandates.
52. Counsel submits that these county levies infringe upon Article 27(1) on the right to equality and freedom from discrimination by subjecting medical providers in rural
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E189 OF 2021
RURAL PRIVATE HOSPITALS
ASSOCIATION OF KENYA (RUPHA)…............................... PETITIONER
-VERSUS-
MOMBASA COUNTY .......................................................1 ST RESPONDENT
KWALE COUNTY........................................................... 2 ND RESPONDENT
KILIFI COUNTY ............................................................ 3 RD RESPONDENT
TANA RIVER COUNTY ................................................ 4 TH RESPONDENT
LAMU COUNTY ............................................................. 5 TH RESPONDENT
TAITA-TAVETA COUNTY .......................................... 6 TH RESPONDENT
GARISSA COUNTY .........................................................7 TH RESPONDENT
WAJIR COUNTY ............................................................ 8 TH RESPONDENT
MANDERA COUNTY .................................................... 9 TH RESPONDENT
MARSABIT COUNTY ..................................................10 TH RESPONDENT
ISIOLO COUNTY ...........................................................11 TH RESPONDENT
MERU COUNTY ............................................................ 12 TH RESPONDENT
THARAKA NITHI COUNTY ....................................... 13 TH RESPONDENT
EMBU COUNTY ............................................................ 14 TH RESPONDENT
KITUI COUNTY ............................................................ 15 TH RESPONDENT
MACHAKOS COUNTY ................................................ 16 TH RESPONDENT
MAKUENI COUNTY .................................................... 17 TH RESPONDENT
NYANDARUA COUNTY .............................................. 18 TH RESPONDENT
NYERI COUNTY ........................................................... 19 TH RESPONDENT
KIRINYAGA COUNTY ................................................ 20 TH RESPONDENT
MURANG'A COUNTY ....................................................21 st RESPONDENT
KIAMBU COUNTY ....................................................... 22 ND RESPONDENT
TURKANA COUNTY .................................................... 23 RD RESPONDENT
WEST POKOT COUNTY ............................................. 24 TH RESPONDENT
SAMBURU COUNTY .................................................... 25 TH RESPONDENT
TRANS-NZOIA COUNTY ............................................ 26 TH RESPONDENT
UASIN GISHU COUNTY .............................................. 27 TH RESPONDENT
ELGEYO MARAKWET COUNTY ............................. 28 TH RESPONDENT
NANDI COUNTY .......................................................... 29 TH RESPONDENT
BARINGO COUNTY ..................................................... 30 TH RESPONDENT
LAIKIPIA COUNTY ...................................................... 31 ST RESPONDENT
NAKURU COUNTY ....................................................... 32 ND RESPONDENT
NAROK COUNTY ......................................................... 33 RD RESPONDENT
KAJIADO COUNTY ...................................................... 34 TH RESPONDENT
KERICHO COUNTY ..................................................... 35 TH RESPONDENT
BOMET COUNTY ......................................................... 36 TH RESPONDENT
KAKAMEGA COUNTY ................................................ 37 TH RESPONDENT
VIHIGA COUNTY ......................................................... 38 TH RESPONDENT
BUNGOMA COUNTY ................................................... 39 TH RESPONDENT
BUSIA COUNTY ........................................................... 40 TH RESPONDENT
SIAYA COUNTY ............................................................ 41 ST RESPONDENT
KISUMU COUNTY ........................................................ 42 ND RESPONDENT
HOMABAY COUNTY .................................................. 43 RD RESPONDENT
MIGORI COUNTY ....................................................... 44 TH RESPONDENT
KISII COUNTY .............................................................. 45 TH RESPONDENT
NYAMIRA COUNTY .................................................... 46 TH RESPONDENT
NAIROBI CITY COUNTY ........................................... 47 TH RESPONDENT
JUDGMENT
Introduction
1. The Petitioner , Rural Private Hospitals Association of Kenya (RUPHA), describes itself as an association registered under Section 10 of the Societies Act (Cap. 108 ), and that it represents various privately owned medical centres, outpatient clinics, nursing homes and hospitals operating across the 47 counties of Kenya.
2. The Respondents are the 47 County Governments of the Republic of Kenya, established under Article 176 (1) of the Constitution and the County Governments Act , responsible for local governance, county legislation and revenue collection within their respective territorial boundaries.
3. The Petitioner filed this Petition dated 29 th April, 2021, challenging the constitutionality of single business permit fees levied on its members operating within the 47 Counties by the respective 47 County Governments.
4. The Petitioner asserts that its members are healthcare professionals governed under specific national legislation namely- the Medical Practitioners and Dentists Act, the Clinical Officers (Training, Registration and Licensing) Act, the Nurses Act andthat they are regulated by their respective national councils being (the Kenya Medical Practitioners and Dentists Council, the Clinical Officers Council, and the Nursing Council of Kenya). That these national regulatory bodies inspect, register and issue annual practicing licenses to the Petitioner's members upon payment of prescribed fees. RUPHA contends that through their respective Finance Acts, the County Governments impermissibly attempt to regulate medical professionals by forcing them to acquire single business permits.
The Petitioner's Case
5. In its Petition dated 29 th April 2021 and is supported by the sworn affidavit of Brian Lishenga on the even date, the Petitioner seeks the following reliefs:
(1 A DECLARATION that the Respondents’ purported acts of imposing single business permit fees or any other fee or levy against members of the Petitioner are illegal, discriminatory, unconstitutional and invalid.
(2 A DECLARATION that the professional practice of member of the Petitioner is exclusively regulated under the Medical Practitioners and Dentists Act (Cap. 253), the Clinical Officers (Training, Registration and Licensing) Act No. 20 of 2017 and The Nurses Act.
(3 A DECLARATION that the Respondents’ acts purporting to levy single business licence fees against members of the Petitioner constitutes a violation of their fundamental rights and freedoms.
(4 An ORDER of prohibition does hereby issue to permanently prohibit the Respondents from imposing single business licence fees or any other levies against members of the Petitioner.
(5 The Respondents do bear the costs of the Petition.
6. The Deponent asserts that the Petitioner’s members are statutory medical entities regulated under The Medical Practitioners and Dentists Act Cap. 253, The Clinical Officers (Training, Registration and Licensing) Act and The Nurses Act and that the licensing and oversight are executed by national bodies, including the Kenya Medical Practitioners and Dentists Council (KMPDC), which issue annual trading and operational licenses.
7. The Petitioner claims that despite national regulation, the Respondent County Governments have routinely enacted County Finance Acts to demand Single Business Permit (SBP) fees and associated levies from private medical facilities. The Petitioner asserts that County Governments have resorted to harassing, intimidating, arresting and criminally prosecuting its members for instance, the cases in Embu, Kajiado, Garissa, Kakamega and have resorted to impounding medical equipment for failure to pay SBP fees.
8. It is averred that under the Fourth Schedule, Part II, Paragraph 7(b): of the Constitution , there is an explicit limitation to county authority over trade development and licensing by imposing the exception: “excluding regulation of professions.” It is asserted that levying Single Business Permits (SBP) on medical facilities constitutes an illegal attempt to regulate a national profession.
9. The deponent avers that Article 191(2) of the Constitution provides for national legislation governing medical practice in a uniform manner across Kenya and that it prevails over conflicting County Finance Acts. That under Article 209(2) & (5 ), county revenue-raising powers must not be exercised in a manner that prejudices national mobility of health services, economic policies, or constitutional rights.
10. The Petitioner avers that t he Respondents’ actions infringe upon constitutional guarantees, including equality before the law under Article 27(1), protection of property under Article 40 and the realization of human dignity and social justice under Articles 19(2), 21(1) .
11. The deponent refers to the cases of Republic v. County Assembly of Nakuru & 2 Others Ex-Parte Dr. John Njenga Ngethe & 117 Others (JR No. 14 of 2014) stating that Certiorari and Prohibition orders were issued quashing the levying of SBPs on medical professionals; and Medina Hospitals Ltd & 5 Others v. County Government of Garissa (2015 eKLR) , where the court is said to have held that counties lack jurisdiction to levy SBPs on medical practice facilities.
Responses
12. In response to the Petition, the Respondents filed several documents being a Notice of Preliminary Objection, Grounds of Opposition and Replying Affidavits.
13. Mombasa County, the 1 st Respondent herein filed Grounds of Opposition dated 12 th November 2024 , opposing the main Petition and the accompanying Application. The 1 st Respondent urged the Court to strike out or dismiss the entire Petition with costs on the grounds that the issues raised are res judicata having already been conclusively ruled upon in Nakuru JR No. 14 of 2014 Republic v County Assembly of Nakuru and 2 Others ex parte John Njenga and 117 others .
14. The County of Mombasa asserts that the Petition lacks specificity, relies on pre-emptive presumptions and fails to cite the specific County Finance Act provisions alleged to be unconstitutional or in conflict with national medical statutes. It is also asserted that the Petitioner has not disclosed a valid cause of action or presented evidence linking Mombasa County to the alleged violations. The 1 st Respondent argues that the Petitioner approached the Court with unclean hands through misrepresented facts, making the Petition incompetent, defective and an abuse of the court process.
15. Kilifi County, the 3 rd Respondent also filed Grounds of Opposition dated 1 st October 2024 seeking the outright dismissal of the Petition, asserting its legal right to levy single business permits and trade licenses on private healthcare facilities under Part I Schedule Two of the County Government of Kilifi Finance Act, 2021.
16. It is contended that constitutionally, Paragraph 7(b), Part 2 of the Fourth Schedule to the Constitution explicitly empowers county governments to handle trade development and regulation including trade licensing while excluding only the regulation of professions. It is further asserted that trade licensing is a service function rendered by the county, entitling it under Articles 185(2) and 209(4) of the Constitution to impose and recover business permit fees from commercial premises, including private medical institutions.
17. In its Grounds of Opposition, the 3 rd Respondent contends that the Trade Licensing Act Cap 497 whose 2 nd Schedule previously exempted medical professionals from payment of Single Business Permits, was officially repealed by the Licensing Law (Repeals Amendment) Act No. 17 of 2006 at Section 112 and further emphasizes that all statutes carry a legal presumption of constitutionality, which the Petitioner is said to have failed to displace; and that granting the requested orders would upset the balance of convenience.
18. The 3 rd Respondent asserts that the Petition fails to disclose a valid cause of action or to present evidence linking Kilifi County to the alleged constitutional violations. Further, that the petitioner relies on pre-emptive presumptions and presents generalized allegations against all 47 counties without providing particulars of the specific county finance laws being challenged or the precise loss and damage suffered by the Petitioner’s members.
19. The 3 rd Respondent states that it was not a party to the previous judicial review cases cited in the Petition and was never notified of them. Referencing Nairobi Constitutional Petition No. 97 of 2016 (Kenya Pharmaceutical Association v. Nairobi City County & Others) , the 3 rd Respondent maintains that the petition is speculative, hypothetical and res judicata , as the core issues regarding trade permit demands have already been conclusively determined by the court. That further, the petition lacks specificity regarding the 47 individual county finance acts and presents no evidence of actual loss or violation by the 3 rd Respondent.
20. Finally, the 3 rd Respondent states that the Petitioner will not suffer irreparable loss if the Petition is dismissed, as any alleged financial prejudice can be adequately compensated through damages. That the Petition misrepresents facts and provisions of the law, making it misguided, fatally defective, frivolous and an abuse of the court process. Consequently, the 3 RD Respondent urges the Court to dismiss the Petition with costs.
21. Meru County , the 12 th Respondent filed Grounds of Opposition dated 14 th March 2025 seeking a dismissal of the Petition with costs on grounds that the petition fails to disclose a prima facie case and does not meet the necessary constitutional threshold, rendering it incompetent, misconceived and an abuse of court process.
22. The 12 th Respondent highlights that the petition improperly attempts to deter county governments from executing their legitimate mandates bestowed upon them by the Constitution and the County Governments Act to collect revenues. It contends that the Petition improperly seeks to deter the county from executing its legitimate constitutional and statutory mandate. The 12 th Respondent emphasizes that the Petitioner’s pleadings suffer from a critical lack of clarity and specificity. In particular, that the Petitioner fails to cite any express provision within the Medical Practitioners and Dentists Act, the Clinical Officers (Training, Registration and Licensing) Act, or the Nurses Act that allegedly conflicts with the local revenue and finance legislation enacted by the counties.
23. Further contention is that rather than presenting precise legal conflicts, the Petitioner engages in a broad, generalized condemnation of the Finance Acts passed across all 47 counties without articulating any specific, individual claim or violation attributable directly to the 12 th Respondent.
24. Finally, the 12 th Respondent states that there is a clear legal distinction between professional oversight and local taxation, affirming that the collection of trade license fees from commercial business premises does not constitute or amount to the regulation of a profession. For these reasons, the 12 th Respondent prays that the Court dismisses the Petition in its entirety with costs.
25. The County Government of Nyandarua the 18 th Respondent filed their Grounds of Opposition dated 29 th June 2023 and primarily challenging the Petitioner’s locus standi to institute court proceedings on behalf of its members without demonstrating express written authority or permission from them.
26. Nyandarua County asserts that the Petition discloses no cause of action, as the Petitioner failed to produce any evidence, finance bill clauses, or specific proof showing that Nyandarua County has imposed illegal business permit fees or infringed upon constitutional rights.
27. It is their contention that the Trade Licensing Act (Cap 497) relied upon by the Petitioner was repealed, leaving no statutory exemption against local trade licenses. Citing revenue-raising powers under Article 209(3), Part 2 of the 4 th Schedule of the Constitution and the decision in Nairobi Constitutional Petition No. 97 of 2016 Kenya Pharmaceutical Association v Nairobi City County and Others, the 18 th Respondent contends the matter is res judicata and should be dismissed with costs to them.
28. The 19 th Respondent Nyeri County filed its r eplying Affidavit sworn by County Secretary Benjamin Wachira Gachichio on dated 16 th May 2024 . The deponent states that the Petition is fatally incompetent for failing to adhere to the constitutional pleading precision standards established in Anarita Karimi Njeru v. Republi,c specifically, because the Petitioner advances generalized allegations against all the 47 counties and alludes to the unconstitutionality of the county Finance Acts without identifying specific sections of Nyeri’s Finance Act or national medical laws that conflict.
29. The 19 th Respondent’s deponent states that the Petitioner challenges the county governments’ mandate to raise revenue through the Single Business Permits but that while professional practice fees regulate professional bodies, private medical facilities also engage in commercial trade by selling and distributing pharmaceutical products, which legally subjects their premises to county single business permits.
30. Citing the case of Kenya Pharmaceutical Association v. Nairobi City County & 46 Others (2017) eKLR , the 19 th Respondent highlights that selling pharmaceuticals is classified as a trade and that exempting private hospitals would violate the constitution and public policy and equal taxation principles under Article 201 of the Constitution . They assert that the entire Petition has been brought in bad faith to aid the Petitioner to evade trade licenses by shielding one entity from paying legally imposed county taxes and jeopardizing the Respondents’ mandate to collect revenue for its citizens’ benefit.
31. The County Government of Kiambu, the 22 nd Respondent filed its Grounds of Opposition dated 19 th January 2026 contending that the Petition fails to satisfy the constitutional threshold set out in Anarita Karimi Njeru v. Republic (1976-1980) KLR 1272, due to a complete lack of precision regarding alleged rights violations. The 22 nd Respondent states that the dispute is administrative and statutory rather than constitutional and that the Petitioner failed to exhaust available statutory dispute resolution mechanisms before approaching the Court.
32. Further contention is that the Petition improperly constitutionalizes disputes that are otherwise governed by statute and invites the court to breach the doctrine of separation of powers and judicial restraint by interfering with lawful legislative and executive authority without displacing the legal presumption of statutory constitutionality. That the petition also fails to demonstrate any clear inconsistency with the Constitution.
33. It was asserted that the allegations concerning a lack of public participation are generalized and unsupported by evidence required to prove that the constitutional standard for public participation was breached.
34. It is contended that the reliefs sought are imprecise, legally untenable and incapable of enforcement and it is deposed further that granting the requested reliefs would disrupt public administration, prejudice service delivery and cause administrative paralysis. They urged the dismissal of the Petition with costs for want of merit.
35. The 23 rd Respondent herein, Turkana County filed its Replying Affidavit sworn by Ruth Emanikor on 20 th September 2023 . She deposes that the Petitioner is registered as a society under the Societies Act and lacks the legal capacity or locus standi to sue in its own name or to represent members without explicit authorization. It is further deposed that the Petition fails to plead with constitutional precision, relying instead on vague blanket allegations without specifying any conflicting sections between the national healthcare acts and Turkana’s Finance Act.
36. The deponent explains that county revenue powers under Article 209(3) and Part II of the 4 th Schedule of the Constitution , allow business permits to be charged on the commercial premises or shops such as pharmacies and chemists selling drugs, which is separate from individual professional licensing. Additionally, the County points out that the Trade Licensing Act (Cap 497) granting historical exemptions was repealed, meaning, no statutory exemption exists for the Petitioner to omit paying the Business Permits and trade licences by law. They urge the court to dismiss the suit as an abuse of process with costs.
37. The 34 th Respondent, the County Government of Kajiado filed its Replying Affidavit sworn by CEC Trade, Investments & Enterprise Development Leah N. Marias on 13 th February 2024. The deponent states that the single business permit is not an illegal tax on individual medical professionals, but a lawful charge under Article 209(4) of the Constitution imposed on business premises and shops which include pharmacies and chemists that sell pharmaceutical products, a fact that the Petitioner failed to disclose to the Court. She highlights that the petition was not brought by medical professionals themselves but by medical facilities and institutions operating commercial enterprises who are not individual professionals. It is further contended that the fee paid by the Petitioner’s members to their respective professional regulatory bodies is a professional levy paid to those regulators and has no correlation with the trading component of the shops selling the pharmaceutical products.
38. The deponent further states that professional fees paid to national regulatory bodies do not cover local trade operations or remove commercial establishments from county revenue jurisdiction. She reiterates that the Finance Act for the County does not attempt to regulate the medical profession. That exempting private hospital shops from trade permits while charging all other traders in the county would be unfairly discriminatory and contrary to public interest. They further state that granting the reliefs would challenge the constitutionality of Section 7 (b) of Part 2 of the 4th Schedule of the Constitution .
39. It is urged that the Petition is unsubstantiated and should be dismissed with costs to the 34 th Respondent.
40. The 37 th Respondent, the County Government of Kakamega filed its Notice of Preliminary Objection dated 29 th March 2022 and a Replying Affidavit sworn by the County Secretary Dr. Lawrence Omuhaka on 19 th August 2024 .
41. In the Notice of Preliminary Objection , the Applicant/37 th Respondent seeks the striking out of the entire Petition on the following grounds: -
(1) THAT, the Petitioner herein has no capacity to sue on its own name.
(2) THAT, the petitioner lacks the locus standi to institute this Petition and therefore depriving this Honourable Court the jurisdiction to hear and determine this Petition.
(3) THAT, no provision under the Society Act allows a Society to sue or be sued in its own name.
(4) THAT, Section 41(1) of the Societies Act stipulates that a Society can only appear in a suit through an appointed representative acting on its behalf.
(5) THAT, lack of capacity to sue or be sued is a weighty matter that goes to the root of the validity of the proceeding before a court and such a suit is incompetent and proceedings flowing from it are a nullity in law.
(6) THAT, the Court in African Orthodox Church of Kenya v Charles Omuroka & another (2014) stated that:
"I have considered the rival arguments by both counsel on this matter. I have also perused the pleadings and documents filed by the parties herein. The Plaintiff was registered on 5/7/1965 under the Societies Act and issued with Certificate Number 3801. On the other hand, the 2nd Defendant was registered on 5/1/2006 under the same Act (Cap. 108) and issued with Certificate Number 25689. There is no doubt therefore, that both the Plaintiff and the 2 nd Defendant as Societies or Associations registered under the Societies Act are not legal entities capable of suing and being sued in their own names. They have no legal capacity to institute proceedings in any court in their own names and cannot maintain such proceedings. They can only sue through Trustees, if they have one, or in the names of their officials in a representative capacity."
(7) THAT, the instant Petition is therefore an abuse of court process, vexatious and frivolous and should be stuck out.
42. In its Replying Affidavit , the 37 th Respondent urges the dismissal of the Petition, on grounds that Kakamega County’s revenue-raising authority is constitutionally anchored under Article 209(3) and Part 2 of the Fourth Schedule of the Constitution .
43. The County Secretary deposes that the Petitioner failed to cite any specific section of the Kakamega County Finance Act or demonstrate how it conflicts with national medical statutes, creating no actionable cause against the 37 th Respondent.
44. While acknowledging that medicine as a profession is exempt from county trade regulation under paragraph 7(b) of the Fourth Schedule , the 37 th Respondent asserts that selling medical items and pharmaceuticals constitutes commercial trade and consequently, shielding medical facilities from trade licensing would violate Article 201(b)(i) of the Constitution regarding the fair sharing of the tax burden, making the Petition an attempt to facilitate tax evasion.
45. It is urged that the Petition is in bad faith, is misconceived, misplaced and an abuse of the court process by seeking to have the Court aid the Petitioners to evade paying lawful trade license fees for activities that do not fall within the realm of the profession.
46. The 47 th Respondent, the Nairobi City County filed its Grounds of Opposition dated 14 th March 2025 urging the Court to dismiss the Petition with costs, stating that the Petition fails to disclose a prima facie case or meet the requisite threshold for constitutional petitions making it incompetent, misconceived and an abuse of the court process. The Nairobi City County contends that the petition improperly attempts to block the County from executing its constitutional and statutory mandates under the Constitution and the County Government Act.
47. The 47 th Respondent emphasizes that the pleadings are vague and unspecific, offering only a blanket condemnation of all 47 county finance acts without citing specific conflicting provisions of The Medical Practitioners and Dentists Act Cap. 253, The Clinical Officers (Training, Registration and Licensing) Act and The Nurses Act against the Finance Acts passed by the 47 th Respondent or detailing any direct claim against Nairobi City County. The 47 th Respondent reinforces that collecting trade licenses from commercial premises does not constitute regulating a profession.
48. The Notice of Preliminary Objection and the main Petition were canvassed by way of written submissions.
The Petitioner’s Submissions
49. The Petitioner’s submissions are dated 29 th November 2024 in which Counsel for the Petitioner sets out the following issues for determination:
i. whether imposing single business permit licence fees upon the Petitioner by the Respondents is unconstitutional;
ii. whether the imposing of single business permit licence fees upon the Petitioner by the Respondents amounts to double taxation;
iii. Whether the Petitioner warrants grant of the prayers sought; and Who is to bear the costs of the Petition ?
50. On the first issue, Counsel for the Petitioner submits that under Article 209(3) of the Constitution , county governments may only impose taxes authorized by an Act of Parliament and that Article 209(5) prohibits revenue-raising powers from being exercised in a manner that prejudices national economic policies or economic activities across county boundaries. The Petitioner relies on Article 191(2) & (3) to show that national statutes prevail over county legislation when uniform national regulation is required. Counsel for the Petitioner highlights that Part 2, Paragraph 7(b) of the Fourth Schedule to the Constitution , explicitly excludes the regulation of professionals from the trade licensing powers allocated to county governments.
51. Counsel relies on Republic vs. Nakuru County Assembly & Others, Nakuru HCCC JR No. 14 of 2014, in addressing the second issue, where the High Court is said to have established that county governments have no power to pass laws directed at regulating medical practitioners by levying single business permits because Clause 7(b) of Part Two of the Fourth Schedule specifically excludes professional regulation and Medina Hospital Limited & 5 others vs. County Government of Garissa [2015] eKLR in which the High Court sitting at Garissa is said to have held that levying additional county licensing fees on medical practitioners already licensed by national bodies like the Medical Practitioners and Dentists Board amounts to double taxation, violating the Constitution irrespective of county revenue-raising mandates.
52. Counsel submits that these county levies infringe upon Article 27(1) on the right to equality and freedom from discrimination by subjecting medical providers in rural
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