Telkom Kenya Limited v Municipal Council of Mombasa (Environment and Land Case 248 of 2008) [2025] KEELC 8357 (KLR)
The bottom line
#A Kenyan court threw out Mombasa County's Kshs. 40 million rates demand against Telkom Kenya because the council had no records to back it up.
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 suit property (Mombasa/Block/XXI/430) was vested in the Plaintiff and whether the Defendant issued and acknowledged the 1999 reconciliation and payment of Kshs. 2,282,280 for arrears across the Plaintiff's properties
- 2.Whether the suit property had arrears after the 1999 reconciliation and whether the Plaintiff continued paying annual rates as demanded for the period up to 2008
- 3.Whether the Defendant's demand of Kshs. 40,050,891.01 (and later Kshs. 44,533,575) was lawfully founded in fact and law and supported by rating records, notices and statutory procedure
- 4.Whether the Defendant complied with the Rating Act, Cap 267, in levying and enforcing rates; and whether any claim is time-barred or barred by estoppel arising from the 1999 reconciliation, subsequent acknowledgments, and annual demands paid
- 5.Whether the Plaintiff has met the threshold for declaratory relief and a permanent injunction
- 6.Who should bear the costs of the suit
Key legal issues
#Vesting of the suit property and the 1999 reconciliation
The suit property vested in Telkom Kenya Limited by Legal Notice No. 59 of 1999, and the Defendant's acknowledgment of the 1999 payment of Kshs. 2,282,280 conclusively settled arrears for 1996–1999; the suit property itself carried a credit of Kshs. 81,970
KPTC previously owned the property; upon its dissolution, Legal Notice No. 59 of 5th November, 1999 vested the property in Telkom. The Defendant issued a schedule of arrears for 1996–1999 totalling Kshs. 2,282,280, which the Plaintiff paid. The Town Treasurer's letter of 2nd December, 1999 and receipt No. 019034 acknowledged settlement, and the schedule showed a credit on the suit property. The Defendant did not controvert these facts, which are therefore binding.
Lawfulness of the Kshs. 40,050,891.01 demand and compliance with the Rating Act
The Defendant's demand was not lawfully founded, being unsupported by any valuation roll, demand notices, statutory certificates or accounting records, and was irregular, unlawful, null and void ab initio; enforcement by newspaper advertisement without statutory notices was unlawful
Under Sections 21 and 24 of the Rating Act, a registered owner is entitled to a written statement of rates and valuation rolls and certificates are prima facie evidence of liability. The Defendant produced none of these records and called no witness. Its defence was a general denial devoid of particulars. The threatened auction and publication of the Plaintiff as a defaulter were not preceded by statutory notices and were therefore irregular and prejudicial.
Estoppel and limitation
The Defendant is estopped in law and equity from asserting arrears for the reconciled period; any pre-1999 arrears would in any event be time-barred by the twelve-year lookback in Section 21 of the Rating Act and the Limitation of Actions Act, Cap 22
Having formally reconciled arrears in 1999, acknowledged payment, and issued annual demands thereafter which were paid, the Defendant created a legitimate expectation that liabilities were regularised. Relying on Serah Njeri Mwobi v John Kimani Njoroge, a party cannot approbate and reprobate to another's detriment. Dormant claims resurrected without records or notices nearly a decade later are unenforceable and barred by limitation and laches.
Entitlement to declaratory relief and permanent injunction
The Plaintiff proved its case on a balance of probabilities and met the threshold for both a declaration and a permanent injunction protecting its proprietary rights
Applying Section 107(1) of the Evidence Act and the Giella v Cassman Brown principles (instructive even at the final stage), the Plaintiff proved ownership and unlawful threatened interference. Damages would not adequately restore proprietary rights lost through unlawful sale, and the balance of convenience favoured restraining the Defendant while leaving it free to levy future lawful rates.
Costs
Costs follow the event; the Plaintiff, having proved its claim, is awarded costs against the Defendant
Section 27(1) of the Civil Procedure Act provides that costs follow the event, and the authorities cited (Harun Mutwiri, Kenya Union of Commercial Food and Allied Workers, Hussein Muhumed Sirat, Party of Independent Candidate of Kenya v Mutula Kilonzo quoting Levben Products) confirm the successful party is entitled to costs absent compelling reasons. The Plaintiff proved its claim and so is entitled to costs.
Legal principles established
#- A rating authority's contemporaneous written acknowledgment of a reconciliation and payment is binding upon it and estops it from later asserting arrears for the same period
- A party cannot approbate and reprobate to the detriment of another who has relied upon its representation (estoppel)
- A party asserting a debt bears the burden of proving it; a general denial unsupported by particulars or evidence is fatal to that assertion
- The rights of a registered proprietor are absolute and indefeasible under Sections 24, 25 and 26(1) of the Land Registration Act, entitling the proprietor to injunctive protection
Court orders
#- 1.Judgment entered in favour of the Plaintiff, Telkom Kenya Limited, as prayed in the Plaint dated 17th September, 2008, with costs
- 2.A declaration that the Plaintiff does not owe the Defendant and/or its predecessor the sum of Kshs. 40,050,891.01 or any part thereof on account of rates, interest or penalties for the period 1996 to 2008 in respect of Title No. Mombasa/Block/XXI/430 or any other of the Plaintiff's properties within the Defendant's ratable area, and that the Defendant's demand dated 21st August, 2008 and subsequent correspondence and threatened enforcement are fraudulent, illegal, null and void ab initio
- 3.An Order of Permanent Injunction restraining the Defendant and/or its predecessor from demanding the said sum, commencing or prosecuting recovery proceedings, or attaching, advertising, selling, transferring, leasing, evicting, parting with possession of or otherwise interfering with the Plaintiff's use and occupation of Title No. Mombasa/Block/XXI/430 or any of its immovable properties within the ratable area
- 4.Nothing in the Judgment bars the Defendant and/or its predecessor from levying and collecting future lawful annual rates assessed and demanded in strict compliance with the Rating Act, Cap 267 and the Valuation for Rating Act, Cap 266
- 5.The Defendant shall bear the costs of the suit, to be taxed and paid to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment & Land Court Act, No. 19 of 2011; jurisdiction of the Honourable Court was admitted by the Defendant
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 Judgment be and is hereby entered in favour of the Plaintifi, Telkom Kenya Limited, as prayed in the Plaint dated 17th September, 2008 and filed on 19th September, 2008, with costs.
That an Order of Permanent Injunction be and is hereby issued restraining the Defendant and/or its predecessor, whether by itself, its servants, agents, advocates, auctioneers, or any of them, from demanding the said sum of Kshs. 40,050,891.01 (or any similar sum)
That for the avoidance of doubt, nothing in this Judgment shall bar the Defendant and/or its predecessor from levying and collecting future lawful annual rates assessed and demanded in strict compliance with the Rating Act, Cap 267
the Defendant’s demand dated 21st August, 2008 and subsequent correspondence and threatened enforcement proceedings are fraudulent, illegal, null and void ab initio.
The Defendant’s silence and failure to produce records is fatal to its assertion of arrears.
the Defendant, having formally acknowledged settlement and issued annual demand notices thereafter which the Plaintifi paid, is estopped in law and equity from later asserting arrears for the same period.
Issues in the judgment
#The judgment states the Defendant filed its Statement of Defence on 15th May, 2008, which predates the Plaint dated 17th September, 2008 and filed on 19th September, 2008
Internal inconsistency in the demanded amount - the Plaint and much of the judgment use Kshs. 40,050,891.01 while the witness testimony repeatedly uses Kshs. 40,050,898.01
The judgment records that the matter proceeded for hearing on 14th December, 2016, but elsewhere notes the suit initially came up for hearing on 14th December, 2010, and the defence hearing on 2nd May, 2017, creating conflicting hearing dates
The suit property is referred to variously as Mombasa/Block/XXI/430 and, in PW-1's testimony, as 'MSA/ BLOCK XXI/ 43'
The Plaintiff's written submissions, as recorded in the judgment, state the Plaintiff paid 'a sum of Kenya Shillings Three Million Two Eighty Two Thousand Two Eighty Hundred (Kshs. 3,282,280/=)' whereas the judgment and pleadings elsewhere record the settled sum as Kshs. 2,282,280
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Telkom Kenya Limited v Municipal Council of Mombasa (Environment and Land Case 248 of 2008) [2025] KEELC 8357 (KLR)", Case Analysis (2025). Not stated in judgment (Plaint dated 17th September, 2008, filed 19th September, 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8357/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.