- Judge Eric Ogola, who was on the Mombasa High Court, ruled that the petition was unfounded.
- He indicated that the petitioners wanted the court to believe that the transferred entity was denying them the right to pay licenses for the current fiscal year by asking them to pay fees due for the last fiscal year.
Bar and restaurant owners in Mombasa suffered a setback after a court dismissed their lawsuit against a county government’s decision to collect or collect taxes, levies or penalties for the previous year as a requirement for paying current royalties for that year.
Mombasa High Court Judge Eric Ogola ruled that the Mombasa County Bars, Hotels, Restaurants and B & Bs petition, which also challenged the County Finance Act, was unfounded.
“I note that the petitioners have failed to meet the burden of proof placed on them by Section 107 (2) of the Evidence Act,” judged Judge Ogola.
He indicated that the petitioners wanted the court to believe that the transferred entity was denying them the right to pay licenses for the current fiscal year by asking them to pay the last fiscal year fees they claimed were due that they were unable to do business because of their whereabouts.
“The burden of proof for the allegations rests directly on the petitioners,” judged Judge Ogola, who went on to say that petitioners should try to enter the next County Finance Act to take their views into account rather than trying to implement the current one Suspend or ban finance law that will soon be obsolete.
“For the avoidance of doubt, this court notes that there was adequate public participation in the promulgation of the finance bill,” said Judge Ogola.
In its lawsuit documents, the association alleged that the county government would force them to pay fees, levies, taxes and fines for the final year before receiving operating permits for 2021.
The association argued that the district government ignored the fact that the national government ordered their stores to close due to Covid-19 last year and they have not fully reopened to this day.
The association, which co-filed its petition with the Coast Legal Aid and Resource Foundation (Clarf), sued the Mombasa county government, the Mombasa county council secretary and the county finance and economic planning officer.
According to the petitioners, there was no public participation in the passage of the Mombasa County Finance Act.
“Respondents denied Mombasa residents the opportunity to participate in the process of passing the Mombasa County Finance Act 2021,” the petitioners argued.
They sought to establish that the respondents’ actions violated their rights and the Constitution to such an extent that there was no public participation in the process of drafting and enacting the law.
According to the petitioners, they also wanted a statement that the respondents’ measures to collect payments and taxes for the last year before receiving payments and issuing licenses are illegal.
The county government, for its part, denied the petition, saying it was required to collect property taxes, entertainment taxes and any other taxes that may be collected by a law of parliament.
It argued that when the law was passed, due process was followed from its entry into force to completion, including public participation to seek opinions from the public and relevant stakeholders.
The decentralized unit also argued that the petitioners had failed to demonstrate that the defendants had placed a requirement for the payment of this year’s licenses.