The High Court in Kajiado has ordered for fresh negotiation of land rates payable to Kajiado County government by Tata Chemicals.
In a full judgement of a case filed by Tata Chemicals Magadi Ltd seeking the quashing of more than Sh17 billion it owes the county government in chargeable land rates, Justice Reuben Nyakundi, ordered the county to desist from demanding the money.
Instead, Justice Nyakundi quashed the amount owed by Tata Chemicals and ordered a fresh review of land rates chargeable on land that does not contain minerals.
“An order for the writ of certiorari hereby removes from this court to quash the decisions and demands of the first respondent and the demands made by its agent, Regional Business Connection Limited, directing Tata Chemicals to remit Sh17,448,485,646/- to the county on account of the alleged arrears of land rates and royalties,” ruled Nyakundi.
In that, Nyakundi meant that he had quashed the demand for the more than Sh17 billion being fronted by the county and her agents on the alleged arrears on land rates.
Nyakundi, who released his full judgment in the case on Monday evening, said that in the present petition filed by Tata, there is clear evidence in terms of the fourth schedule of the constitution and the mining Act which fortifies the petitioner’s (Tata Chemicals Magadi) contention.
“In the result, having contemplated all the issues as raised by the petitioner and reached the conclusions I have in the leading discourse, the court orders that Kajiado County Finance Act, 2014 was validly enacted,” said Nyakundi.
In the orders, Nyakundi said in line with the objectives of Article 159(2) (c) on Alternative Dispute Resolution, the petitioner and the 1st respondent shall submit themselves to a comprehensive consultative process under the supervision of the court and in conjunction with the national government in reviewing chargeable rates on land the company occupies.
“I am therefore ordering that the lead Ministry and convenor in this anticipated process will be that of Petroleum and Mining,” said Nyakundi in his ruling.
He ordered that the CS for Mining with lead the teams from both sides of the divide with a view of negotiating the amount of land rates payable by the petitioner in the period since the commencement of the Kajiado County Finance Act, 2014 and distinguishing the exact acreage of land leased by the petitioner upon which the 1st respondent may levy the agreed rates as a devolved function.
Justice Nyakundi said the process shall be concluded within 6 months from the date of the judgement on May 6.
“Pending the outcome of the process contemplated, an order of prohibition does hereby remove from this court to prohibit the County government and the Attorney General by themselves or their servants, agents, and or assignees from trespassing, entering, remaining on, closing, locking, blocking or in any other manner whatsoever and howsoever interfering with the petitioners premises, factories, gates and properties situated in Kajiado and Magadi in the County of Kajiado,” he ruled.
He added that for the avoidance of doubt the 145-kilometre railway line stretch is under the jurisdiction of Kenya Railways and not the county government.
The judge said pending the outcome of the process contemplated the provisions of the Kajiado County Finance Act, 2014 relating to the imposing of land rates are suspended in as far as they relate to the petitioner on mines and mineral extractives and until a proper alienation is undertaken making sense of facial and applied challenges of the statute.
He further ruled that, as none of the parties was fully successful, each party shall bear its own costs.
“In the current case, the petitioner (Tata) prayed for Sh72, 664,002 in general and punitive damages. While the amount has been couched as general damages, it is ultimately still special damage and as shown above, special damages should not only be specifically pleaded but also strictly proved. Nothing by way of evidence in support of this submission has been offered by the petitioner. This prayer therefore fails,” ruled Justice Nyakundi.
He concluded that it is a well-developed principle in constitutional litigation that a party that wishes the court to grant a relief for violation of the constitution or for violation of a right or fundamental freedom, must plead in a precise manner the constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it.
Tata Chemicals filed a petition on January 22, 2019, and an affidavit sworn by Titus Naikuni on the same day.
The petitioner filed a certificate of urgency, Notice of Motion and supporting affidavit of Naikuni seeking conservatory orders pending the hearing and determination of the application as well as the petition.