Mombasa County says that public participation was carried out before the enactment of Mombasa County Finance Act 2021, which is being challenged in court.
It says that residents were notified of the process of enacting the Finance Act and apart from publication of a notice in a local daily, public address speakers were mounted on its vehicles, informing the public on the need to share their views on the draft finance bill.
According to the County, although public gatherings were banned (due to Covid-19 pandemic), it still availed an avenue for residents to share their views on the bill that was later enacted into the Act.
The County says the avenue availed was for the public to participate by writing their memoranda and taking them to the County Secretary.
“Apart from dropping (to the County Secretary) the written memoranda’s, the public could also share their views through email,” part of the submissions state.
Currently, the County has been temporarily stopped from effecting or imposing taxes, levies or penalties for last year as a pre-condition for paying the current fees for license for this year.
The orders were issued pending hearing and determination of an application by Mombasa County Bars, Hotels, Restaurants & Guest House Association who have challenged the 2021 county Finance Act.
The association says in its suit documents that the county is coercing them to pay charges, levies, taxes and penalties for last year before being issued with operating licenses for 2021.
Mombasa County argues that public participation was carried out and that the applicants ignored to participate and are now regretting.
“Issuing conservatory orders or a declaration that the respondents action to impose payment or fees charges, levies, taxes and penalties for the year 2020 before receiving payment and issuing licenses to the petitioners is illegal, shall defeat the public good,” argues the county government.
It says that majority of the residents-up to 80 per cent-have paid relevant fees, charges, levies, taxes and penalties for each year inclusive 2020.
“The burden of defaulters enjoying free services at the expense of those who have paid should not be entertained by this court,” it argues.
The County further urged the court to take judicial notice that the association comprises of traders dealing in alcoholic drinks and the case was filed to delay it from collecting revenue.
“The other intention was to beat the deadline of March 30 when the respondent’s officers ensure compliance of whether business owners have paid the requisite levies to the county government,” it argues.
On its part, the association argues that the county government has 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 has filed its case together with Coast Legal Aid and Resource Foundation (Clarf), have 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,” argues the petitioners.
They are seeking a declaration that the respondents’ actions have 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 want a declaration that the respondents action to impose payments and taxes for last year before receiving payments and issuing licenses is illegal.
The petitioners accuse the county government of deliberately increasing levies or taxes affecting its members and the public without following due process of the law.
The association and Clarf also argue that the Act illegally introduced bed levy in hotels payable to the county government despite payments of two per cent on Tourist Fund being made, thus amounting to double taxation.
They further argue that consultations on creation and enactment of the Act should be conducted at ward levels to ensure equality and equity for all residents.
The petitioners further accuse the county government of failing to provide vital data, documents and relevant information to the public regarding items which were bound to have their taxes increased.
“In enacting the Finance Act 2021, the respondents relied on information from third parties or people who are not affected by the enactment,” argues the petitioners.
The petitioners claim that the County Finance Bill 2021 was published in the Kenya Gazette, before it was presented in the County Assembly for deliberation and approva,l and that it was not published in the County Gazette.
They also argue that increase of tax by 100 per cent as a result of the enactment of the Act will interfere with the economy of the county as the cost of doing business will rise.
The petitioners are also seeking for an order of permanent injunction to be issued to suspend the implementation of the Act.