Kitale Law Courts Library

*Supreme Court of Kenya, Petition No 22 of 2019*
*Base Titanium Ltd Versus The County Government of Mombasa and 2 Others*
*Mwilu, DCJ & VP, Ibrahim, Wanjala, Njoki & Lenaola SCJJ*
*Dated 16th July 2021*
Petition from an Appeal against the dismissal by the Court of Appeal in a *dispute relating to the Cess of Ksh. 3000 imposed on the trucks of the Appellants where never its transporting its Minerals from Kwale County to Mombasa port.*
The Court on determining the Cess Charges imposed by the Mombasa County Government upon the appeallant Trucks was a charge on services as contemplated under Article 209 ( 4) and (5) of the Constitution of Kenya.
The Court held that by the County issuing receipts marked *‘miscellaneous income’*the County government of Mombasa has created avenues for possible abuse. The Oxford Dictionary of English 3rd Edition 2015 defines miscellaneous as a word “consisting of many different kinds of things that are not connected and do not easily form a group”.
The Court further held that by using the term “miscellaneous” to account for payment leads to ambiguity which goes against the spirit of Article 201 of the Constitution. That word could refer to any number of things and it is essential that this form of opaqueness in accountability be discouraged. It is imperative that any payments to Counties must clearly state in precise, unambiguous words what the payments are for.
The Court opined that the cess imposed by the County Government of Mombasa under Item 90 of the schedule to the Mombasa County Act 2014 was improperly imposed as a charge for services rendered for services provided by the County Government and is not a charge for service as contemplated by Article 209 (4) of the Constitution of Kenya.
The Petition allowed and Court of Appeal Judgement set aside. The court declared that the action to charge the appellant a cess is unconstitutional, null and void.

LAWRENCE FRANK WANYAMA & ANO V REPUBLIC (2020)
HCCRA NO 183 & 184 OF 2019 ( NAIROBI)
Lady Justice G.W. Ngenye
2nd June 2020

Ruling on an application to take additional evidence in an appeal under Article 159(2) of the Constitution and Section 358 of the Criminal Procedure Code on the ground that the court erred in Law by taking into account the evidence of the complainant PW1 on which the record does not show if she gave sworn or unsworn statements.
The court held that the application can only be determined premised on the Law, where the law is specific on strict adherence , then a party cannot seek refuge under Article 159 (2) (d) of the Constitution, the provision only aids circumstances that are purely occasioned by technicalities and directs that parties be not bound by technicalities whilsts administering Justice.

Application was dismissed and the Appeal fixed for hearing

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