- Justice Eric Ogola, sitting at the High Court in Mombasa ruled that the petition lacked merit.
- He noted that the petitioners wanted the court to believe that the devolved unit denied them the right to pay for licences for the current financial year by requiring them to settle charges that were due for the last financial year.
Bar and restaurant owners in Mombasa suffered a setback after a court dismissed their petition challenging a decision by the county government to effect or impose taxes, levies or penalties for last year as a pre-condition for paying the current fees for licence for this year.
Justice Eric Ogola, sitting at the High Court in Mombasa ruled that the petition by Mombasa County Bars, Hotels, Restaurants & Guest House Association which was also challenging the County Finance Act, lacked merit.
“I find and hold that the petitioners have failed to discharge the burden of proof placed upon them by Section 107 (2) of the evidence Act,” ruled Justice Ogola.
He noted that the petitioners wanted the court to believe that the devolved unit denied them the right to pay for licences for the current financial year by requiring them to settle charges that were due for the last financial year they alleged were unable to trade since they remained closed.
“The burden of proving the allegations lay squarely upon the petitioners,” ruled Justice Ogola who further said the petitioners should seek to participate in the next County Finance Act to have their views considered rather than seeking to suspend or prohibit the implementation of the current Finance Act which is about to be outdated.
“For avoidance of doubt, this court finds and holds that there was adequate public participation in the promulgation of the Finance Act,” said Justice Ogola.
In its suit documents, the association claimed that the county government was coercing them to pay charges, levies, taxes and penalties for last year before being issued with operating licenses for 2021.
The association argued that the county government had ignored the fact that the National Government had ordered closure of their businesses last year due to Covid-19 and they have not fully re-opened to date.
The association which filed its petition together with Coast Legal Aid and Resource Foundation (Clarf), sued the County Government of Mombasa, Clerk of the Mombasa County Assembly and County Executive Committee Finance &Economic Planning.
According to the petitioners, there was no public participation in the enactment of Mombasa County Finance Act.
“The respondents denied residents of Mombasa a chance to participate in the process of enacting the Mombasa County Finance Act 2021,” argued the petitioners.
They were seeking a declaration that the respondents’ actions violated their rights and the constitution to an extent that there was no public participation in the process of making and enacting the Act.
According to the petitioners, they also wanted a declaration that the respondents action to impose payments and taxes for last year before receiving payments and issuing licenses was illegal.
On its part, the county government opposed the petition saying that it had an obligation to impose property rates, entertainment taxes and any other tax that is authorised to be imposed by an Act of Parliament.
It argued that due process was followed in the enactment of the Act from its inception to conclusion including public participation being conducted to collect views from the public and relevant stakeholders.
The devolved unit also argued that the petitioners failed to prove that there was a precondition set by the respondents for payments of this year’s licences.