Articles

Challenging Unfair Fines Imposed by County Governments in Kenya

In Kenya, county governments have the authority to impose levies, fines, and penalties on businesses and individuals under the County Governments Act, 2012, which operationalizes Chapter Eleven of the Constitution of Kenya, 2010 on devolved government. These fines often relate to business permits, property rates, parking fees, market levies, or environmental regulations. However, there are instances where these fines may be deemed unfair, unlawful, or excessively punitive due to issues such as lack of transparency, inadequate legal frameworks, or procedural irregularities. This article outlines the process for contesting unfair fines imposed by Kenyan county governments, referencing the County Governments Act, 2012, and provides examples from recent business disputes to illustrate practical applications.

The County Governments Act, 2012 empowers county governments to enact legislation and impose levies to fund their operations and deliver services. Section 132 of the Act allows counties to impose taxes, fees, and charges, provided they align with the Constitution and national laws. However, the enforcement of these levies must adhere to principles of fairness, transparency, and public participation as outlined in Article 10 of the Constitution, which emphasizes good governance, integrity, and accountability.

Challenges to county fines often arise due to:

  • Inadequate legal frameworks: Some counties lack clear regulations for imposing and enforcing fines, leading to arbitrary penalties.

  • Corruption: County enforcement officers ("askaris") may impose fines to extort businesses.

  • Lack of public participation: Fines or levies introduced without public consultation may violate constitutional requirements.

  • Procedural flaws: Fines imposed without proper notice or opportunity to respond can be contested as unfair.

Steps to Challenge Unfair Fines

Contesting an unfair fine involves a structured process that leverages administrative, judicial, and alternative dispute resolution mechanisms. Below is a step-by-step guide:

1. Review the Fine and Relevant County Legislation

  • Action: Obtain a copy of the notice of the fine or penalty, which should detail the amount, the reason for the fine, and the legal basis (e.g., specific county by-law or regulation).

  • Key Considerations:

    • Verify whether the fine aligns with the county’s finance act or relevant by-law.

    • Check if the county followed due process, such as issuing a prior notice or conducting public participation as required under Section 87 of the County Governments Act, 2012.

    • Ensure the fine is proportionate and not excessively punitive, as disproportionate penalties may violate constitutional principles.

  • Example: In 2023, a Nairobi-based business challenged a parking fine imposed by the Nairobi County Government, arguing that the county’s Nairobi City County Finance Act did not explicitly authorize the specific penalty. The business reviewed the act and found discrepancies in the legal basis for the fine.

2. Engage with the County Government Administratively

  • Action: Lodge a formal complaint or appeal with the relevant county department, such as the County Revenue Office or the County Executive Committee (CEC) member responsible for finance or enforcement.

  • Process:

    • Write a formal letter addressed to the County Secretary or the CEC member, outlining the reasons why the fine is unfair (e.g., lack of notice, procedural errors, or excessive amount).

    • Attach supporting documents, such as the fine notice, business permits, or evidence of compliance.

    • Request a review or waiver of the fine under Section 159 of the County Governments Act, which mandates counties to establish mechanisms for resolving disputes.

  • Timeline: Counties are required to respond to administrative complaints within a reasonable period, typically 14–30 days, depending on county regulations.

  • Example: In a 2022 dispute in Mombasa, a group of traders challenged market levies imposed without public participation. They submitted a petition to the Mombasa County Revenue Board, citing Article 209(5) of the Constitution, which requires transparency in taxation. The county reviewed the levies and reduced the fines after negotiations.

3. Escalate to the County Assembly or Public Participation Forums

  • Action: If the administrative appeal fails, escalate the matter to the County Assembly, which has oversight over county executive actions under Section 8 of the County Governments Act.

  • Process:

    • Submit a petition to the County Assembly as per the Petition to County Assemblies (Procedure) Act, 2020. The petition should detail the grievance, the impact on the business, and the legal grounds for contesting the fine.

    • Request a public hearing or participation forum to discuss the issue, as counties are mandated to facilitate public participation under Section 87 of the County Governments Act.

  • Example: In 2021, small-scale traders in Nakuru County successfully petitioned the Nakuru County Assembly over excessive market stall fees. The Assembly held a public forum, leading to a revision of the county’s fee structure after finding that the levies were imposed without adequate consultation.

4. Seek Judicial Review in the Environment and Land Court

  • Action: If administrative remedies are exhausted or unsatisfactory, file a case in the Environment and Land Court (ELC), which has jurisdiction over disputes involving county governments under Article 162(2) of the Constitution and the Environment and Land Court Act, 2011.

  • Process:

    • File a judicial review application under Order 53 of the Civil Procedure Rules, 2010, seeking orders such as certiorari (to quash the fine), prohibition (to stop enforcement), or mandamus (to compel the county to act lawfully).

    • Argue that the fine violates constitutional principles (e.g., fairness, proportionality, or public participation) or exceeds the county’s legal authority under the County Governments Act.

    • Provide evidence of procedural irregularities, such as lack of notice or failure to gazette the by-law imposing the fine.

  • Timeline: Judicial review applications must be filed within six months of the administrative decision, as per the Law Reform Act.

  • Example: In 2020, a business in Kisumu challenged a fine imposed for alleged environmental violations in the ELC. The court ruled that the Kisumu County Government failed to provide evidence of gazetted regulations supporting the fine, and the penalty was quashed.

5. Explore Alternative Dispute Resolution (ADR)

  • Action: Consider mediation or arbitration to resolve the dispute amicably, as encouraged under Article 159(2)(c) of the Constitution.

  • Process:

    • Engage a neutral mediator, such as a legal practitioner or a member of the Chartered Institute of Arbitrators (Kenya Branch), to facilitate negotiations with the county.

    • ADR is particularly useful for businesses seeking to maintain a good relationship with the county government while resolving the dispute.

  • Example: In 2023, a construction company in Kiambu County used mediation to resolve a dispute over a building permit fine. The mediation, facilitated by a local law firm, resulted in a 50% reduction of the fine and an agreement on compliance measures.

6. Report Corruption or Misconduct

  • Action: If the fine appears to be a result of corruption or extortion by county enforcement officers, report the matter to the Ethics and Anti-Corruption Commission (EACC).

  • Process:

    • File a complaint with the EACC via email, phone, or in person at their offices or Huduma Centres, as outlined in the Ethics and Anti-Corruption Commission Act, 2011.

    • Provide evidence, such as receipts, correspondence, or witness statements, to support claims of bribery or misconduct.

  • Example: In 2019, a business owner in Nairobi reported county askaris to the EACC for imposing arbitrary fines on street vendors. The EACC investigated, leading to disciplinary action against the officers and a refund of the fines.

Challenges in Contesting County Fines

Contesting fines in Kenya is not without challenges, as highlighted in a 2018 essay on the enforcement of county laws:

  • Inadequate Legal Frameworks: Many counties lack clear regulations or uniform codes of conduct for enforcement officers, leading to inconsistent application of fines.

  • Lack of County Courts: The absence of specialized county courts to handle disputes efficiently often forces businesses to escalate matters to the ELC, which can be time-consuming.

  • Corruption: The prevalence of corruption among county officials can complicate dispute resolution, as noted in reports of bribery in public service delivery.

Proposals for Reform

To address these challenges, stakeholders have proposed:

  • Enacting comprehensive county legislation to standardize enforcement procedures.

  • Establishing county-level tribunals to handle disputes efficiently.

  • Enhancing public awareness of county laws to reduce disputes arising from the novelty of devolution.

Conclusion

Challenging unfair fines imposed by Kenyan county governments requires a strategic approach that combines administrative appeals, engagement with county assemblies, judicial review, and ADR. By understanding the legal framework under the County Governments Act, 2012, and leveraging recent case studies, businesses and individuals can effectively contest unlawful or excessive penalties. However, systemic challenges like corruption and inadequate legal frameworks necessitate ongoing reforms to ensure fair enforcement of county laws.

For professional assistance in challenging unfair county fines, contact us at +254 716 808 104 or info@lawguide.co.ke for expert legal guidance.