Counties embroiled in border disputes referred to NLC

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Boundary disputes involving Taita Taveta, Makueni and Kwale counties will be resolved by the National Land Commission.

This is after the Environment and Land Court in Mombasa directed activist Okiya Omtatah to lodge a complaint over the disputes with the NLC.

Taita Taveta and Makueni are feuding over the location of Mtito Andei town, while Makueni and Kwale are arguing over Mackinnon Road town.

Mr Omtatah wanted the court to compel the National Assembly and the Senate to appoint an independent commission to resolve the long-standing boundary disputes.

Justice Lucas Naikuni ruled that although the court has unlimited jurisdiction to hear the case, NLC should handle the dispute and file a

report in court.

The judge also suspended the hearing of the case for six months to allow Mr Omtatah, who filed the case on behalf of residents of Taita Taveta, to lodge a complaint with NLC.

The judge explained that he referred the matter to NLC because the Constitution does provide mechanisms for resolving such disputes.

Justice Naikuni also directed that the Taita Taveta government be the only authority for now to issue business permits and levy county taxes in Mtito Andei and Mackinnon Road.

Taita Taveta was ordered to deposit all revenues it collects in an interest-earning bank account opened jointly with Kwale and Makueni.

But Makueni wants these two temporary orders set aside.
County officials argue that Mr Omtatah obtained the orders without disclosing the correct facts to the court, thus misleading it.

“The petitioner misled this court into believing that the predecessor of Taita Taveta county government was issuing business permits collecting revenues from residents of Mtito Andei town before establishment of county governments,” the application states.

The court also allowed Kwale to file a response to Mr Omtatah’s petition that led to the issuing of the orders.
Makueni argues that the defunct Mtito Andei town council issued business permits and collected revenue before county governments were established.

Mr Omtatah argues that the boundary dispute has resulted in traders who used to pay taxes to the predecessor of Taita Taveta County being forced to pay taxes twice to two different counties.

“Due to the confusion, traders don’t know which county they should demand services and accountability (from) for the taxes they pay,” he argues in court documents.

Mr Omtatah says a 2015 report from a committee appointed by the Taita Taveta County government said there are no beacons to clearly demarcate the boundaries between Taita Taveta and its two neighbouring counties.

“The two boundary disputes do not just concern the actual boundaries of Taita Taveta county, they are also based on the allegation that the current county boundaries are unfair because they are based on historical injustices,” Mr Omtatah argues.

He also says that the centre of the disputes is the issue of who collects levies in the disputed towns that are key tax collection points.

“The disputes have created tension on the ground and have very high potential of turning violent in the 2022 General Election, hence if unresolved they have the potential of undermining the objectives of devolution and national security,” Mr Omtatah says.

The petitioner says that he is aggrieved that Parliament has not set up an independent commission required to look into the boundary disputes and recommend the way forward.

“Parliament has also not enacted a law that adjudicates disputes concerning county boundaries, yet, in order to resolve them comprehensively, enabling legislation to implement Article 118 of the (Constitution) needs to be implemented,” he argues.

Mr Omtatah also wants the executive arm of government to survey and erect visible beacons to clearly demarcate the boundaries of all counties in Kenya, with preference being given to Taita Taveta, Kwale and Makueni counties.

He wants the court to declare that forcing residents of Mtito Andei and Mackinnon Road to pay double taxes is a gross violation of their rights.

Makueni’s request for the temporary orders to be set aside will be heard on April 4.