Sheria Mtaani Na Shadrack Wambui & 6 others v Kajiado County Assembly & 3 others (Environment and Land Petition 2 of 2024) [2025] KEELC 6954 (KLR)
The bottom line
#Kajiado's land rates on freehold residential plots were declared unconstitutional because the county failed to conduct genuine public participation before passing the Finance Act.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Amended Petition meets the threshold of a constitutional petition
- 2.Whether there was sufficient public participation before the enactment of the Kajiado Finance Act 2023
- 3.Whether the imposition of land rates on freehold, residential lands violates the provisions of Article 24, 40, 57, 60, 64 of the Constitution as read with Section 5 of the Land Act
- 4.Whether the provisions of Section 14(8) as read together with Part 2 of the Eighth Schedule of the Kajiado County Finance Act 2023 are discriminative and should be declared unconstitutional
- 5.What orders should be granted
- 6.Who should bear costs of the Petition
Key legal issues
#Whether the Petition meets the constitutional petition threshold
It does; the Petitioners identified the legislation enacted without public participation and the rights likely to be infringed
Relying on Anarita Karimi Njeru as approved in Mumo Matemu and the burden-of-proof principle from Communications Commission of Kenya v Royal Media Services, the court found the Petitioners had identified with precision the constitutional provisions infringed and the manifestation of infringement, namely enactment of rates without public participation. The burden lay on the Petitioners and they discharged it by pointing to the manner their rights would be infringed.
Whether there was sufficient public participation before enactment of the Finance Act
No; the Respondents failed to demonstrate sufficient public participation
The court applied principles from Doctors for Life International, Robert N Gakuru, Nairobi Metropolitan PSV Saccos and the Okoiti decision: participation must be real, not illusory, with reasonable opportunity and transparency. The public participation report of 6th June 2023 was unsigned, attendees could not be identified, a WhatsApp invitation was unverifiable, and a recorded statement by the 4th Respondent that the offensive provision was sneaked into the Bill was unrebutted. The participation was accordingly insufficient and the impugned provisions were unprocedurally enacted.
Whether imposition of land rates on freehold residential lands violates Articles 24, 40, 57, 60 and 64 read with the Land Act
Yes, to the extent the Petitioners were not involved in the process of arriving at the figures; the rates fail the reasonable and justifiable test
Applying the Supreme Court's 'reasonable and justifiable' test in Kandie v Alassane BA, which must be conducted on a case-by-case basis and not mechanically, the court found the Petitioners' rights were limited by the impugned law. Because the rates were arrived at without public participation and without conformity to the Valuation for Rating Act and Rating Act procedures, the imposition of the land rates violated the Constitution.
Whether the rates discriminate against small-scale landowners and the elderly
No discrimination established; age is not a basis for tax exemption
Relying on RM v Attorney General on legitimate distinctions and the Kenya Bankers Association case on fair treatment of taxpayers, the court held the rates varied by area, size and use of land and did not unlawfully discriminate. No tax regime exempts persons on account of age and Article 57 does not exempt older members of society from paying rates.
Legal principles established
#- A legislative body must demonstrate that sufficient, real public participation was conducted before enacting legislation; failure renders the legislation unconstitutional
- County Governments must follow the elaborate procedure for levying rates set out in national legislation, including valuation rolls and notices to rateable owners
Court orders
#- 1.A declaration that the Respondents' breached the Provisions of Article 10, 196(1)(b) and 201(b) of the Constitution for failing to afford the public adequate opportunity to participate in the legislative process leading to the enactment of Section 14(8) as read with Part 2 of the Eighth Schedule of Kajiado County Finance Act 2023, hence unconstitutional, null and void
- 2.A declaration that the imposition of land rates on freehold residential lands violates the provisions of Article 24, 40, 57, 60 and 64 of the Constitution as read with Section 2 and 5 of the Land Act, hence unconstitutional, null and void
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 3, 10, 19, 22, 23, 27, 40, 57 and 258 of the Constitution (constitutional petition on enforcement of Bill of Rights)
Relief refused
#Declaration that Section 14(8) as read with Part 2 of the Eighth Schedule of the Kajiado County Finance Act 2023 is unconstitutional for being discriminatory against small-scale landowners and the elderly (Articles 10, 27, 40, 57)
The court found the provision did not discriminate; everyone is liable to pay tax irrespective of age, and rates varied by area, size and use of land
Costs
As the issues raised were issues of great public interest, I make no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That a declaration is hereby issued that the Respondents’ breached the Provisions of Article 10,196 (1) (b) and 201 (b) of the Constitution for failing to afiord the public adequate opportunity to participate in the legislative process leading to the enactment of Section 14(8) as read with Part 2 of the Eighth Schedule of Kajiado County Finance Act 2023, hence unconstitutional, null and void.
That a declaration is hereby issued that the imposition of land rates on freehold residential lands violates the provisions of Article 24, 40,57,60 and 64 of the Constitution as read with Section 2 and 5 of the Land Act, hence unconstitutional, null and void.
As the issues raised were issues of great public interest, I make no orders as to costs.
In my view, public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates.
I also agree with the Petitioners’ submission that the said rates as proposed did not conform to the Valuation for Rating Act, (Cap 266 Laws of Kenya) and the Rating Act Cap (Cap 267 Laws of Kenya) (both repealed) which set out an elaborate mechanism to inform any proposed rates.
Guided by the authorities, I do not agree that the said provision discriminate against the 6th, 7th, petitioners as everyone is liable to pay tax, irrespective of age.
Issues in the judgment
#Discrepancy in the County Assembly Standing Orders cited: the Replying Affidavit refers to Standing Order No. 121(3) while the court's discussion refers to Standing Order No. 12(3)
Inconsistency on whether the Rating Act and Valuation for Rating Act are repealed: the court states both are repealed while the 2nd Respondent treated them as governing law in force
Inconsistent description of the land size threshold: the Petition describes land 'equal to or exceeding 0.05 ha' being rated while the relief sought refers to properties 'less than or equal to 0.05 Hectares'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheria Mtaani Na Shadrack Wambui & 6 others v Kajiado County Assembly & 3 others (Environment and Land Petition 2 of 2024) [2025] KEELC 6954 (KLR)", Case Analysis (2025). Petition dated 9th September 2024, as Amended on 4th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6954/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.