The High Court has issued a declaration that the Mombasa County Solid Waste Management (Amendment) Act, 2023 was enacted without adequate public participation and is invalid.
According to the Act, the county was to levy a charge which would have been payable by a ship that docks at the port of Mombasa.
Justice Jairus Ngaah, sitting in Mombasa, also quashed an undated customer notice issued by Kenya Ports Authority (KPA) to the extent that it imposed or collected upon marine vessels the charge on behalf of the county government.
The court’s decision followed a petition by a Mombasa resident Ms Ruwaida Hussein who had challenged the Act and the undated customer notice issued by KPA.
Justice Ngaah ruled that he was satisfied, on the evidence before him, that the constitutional threshold of public participation was not met in the enactment of the Amendment Act.
“The finding is that the participation actually placed before the court is inadequate, it is not a finding that no participation of any kind may be shown to have occurred,” ruled the judge.
He added that where the process leading to the enactment of a law is shown to be constitutionally deficient in a material respect, however, that deficiency vitiates the enactment, and that an unconstitutional process cannot yield a constitutional law.
The court also noted that the County Assembly of Mombasa did not place before it a notice inviting public views, advertisement, record of any public hearing, memorandum of the views received and evidence that the Bill was published for comment.
It noted that the petitioner’s evidence was specific and remained substantially unanswered that the Bill was not published on the Assembly’s official website, a channel the Assembly ordinarily uses to invite public input.
The court also ruled that a county levy trained upon marine vessels at the national port strays towards a domain the constitution reserves to the national government.
“Section 42A of the Mombasa County Solid Waste Management Act, 2021 (as inserted by the Amendment Act) is, in the manner of the charge it imposes, inconsistent with Articles 209 and 210 of the Constitution,” ruled the court.
On the undated KPA notice, the court ruled that for it (KPA) to impose and collect a county charge, some lawful instrument of authority, an agreement or a delegation would be required.
“An undated notice, of uncertain provenance and legal basis, purporting to levy a financial charge upon vessels also offends the elementary requirements of legality and certainty and the right to fair administrative action,” ruled the court.
It further ruled that a person made subject to a charge is entitled to know its legal basis and temporal application.
The court also noted that the Amendment Act does not regulate a purely local or domestic matter of limited reach but introduces a charge upon marine vessels calling at the port of Mombasa thus reaches an industry of national and international character.
In her petition, Ms Hussein contended that the Amendment Act was enacted without the meaningful public participation required by the constitution and the County Governments Act.
She told the court that the County Assembly did not publish the Bill on its official website and that she visited the Assembly’s website but did not find it.
The petitioner further argued that that section 42A of the Mombasa County Solid Waste Management Act, 2021 (as inserted by the Amendment Act, 2023) imposed a charge upon all vessels calling at the port of Mombasa without stipulating any service in return and irrespective of whether a vessel discharges or requires waste-disposal services.
She argued that the charge was levied for nothing, it was unreasonable, arbitrary and an excess of authority.
The petitioner also argued that the undated notice by KPA was an illegitimate and ambiguous instrument.
On its part, the County Assembly of Mombasa opposed the petition denying that section 42A violated any constitutional right or principle.
It argued that the amendment was enacted in the exercise of the Assembly’s legislative mandate under the constitution, the County Governments Act and in furtherance of the duty to safeguard the environment for present and future generations.
The County Assembly also argued that the charge was an environmental measure that gave effect to the polluter-pays principle, requiring all who generate waste within the county, including maritime vessels, to contribute equitably to the cost of waste collection, treatment and disposal, and was a fee for services rendered.
The county government of Mombasa told the court that it bore responsibility for waste management and the authority to legislate for it.
It further said that public participation was undertaken before the Amendment Act was passed.
KPA, Cabinet Secretary for Mining, Blue Economy and Maritime Affairs, and the Attorney General who were also respondents and Kenya Maritime Authority and National Environment Management Authority who were named as interested parties, did not all file their responses to the petition.
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