Mombasa bar and restaurant owners have moved to court to challenge the current county Finance Act, claiming that the county is using it to collect taxes, levies, and charges for last year.
Through the Mombasa County Bars, Hotels, Restaurants and Guest House Association, they claim that the local government is coercing them to pay charges, levies, taxes and penalties for last year before they are issued with operating licences for 2021.
In a petition at the High Court in Mombasa, the association argues that the county government has ignored a fact that the National Government had ordered the closure of their businesses last year due to Covid-19 and they have not fully re-opened to date.
The association, which has filed the petition together with Coast Legal Aid and Resource Foundation (Clarf), has sued the County Government of Mombasa, Clerk of the Mombasa County Assembly and County Executive Committee Finance and 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, despite payments of two per cent on Tourist Fund being made, thus amounting to double taxation.
They further argue that consultations on the 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 approval 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 an order of permanent injunction to be issued to suspend the implementation of the Act.