The Milimani Law Courts in Nairobi.
The High Court in Nairobi has dismissed a petition challenging advertising charges imposed by 13 county governments on branded motor vehicles, citing failure to first pursue statutory dispute resolution.
The court ruled that the petitioner, Clifford Odhiambo, filed the case prematurely because he did not use the alternative dispute resolution process required by the County Outdoor Advertising Control Act.
The case involved Nairobi, Kajiado, Machakos, Narok, Kitui, Makueni, Tharaka Nithi, Garissa, Isiolo, Embu, Murang’a, Nyeri and Kiambu county governments.
Mr Odhiambo challenged charges, levies and fees imposed on advertisements displayed on moving vehicles under the counties’ Finance Acts.
He argued that the counties were imposing taxes without providing services in return and without parliamentary approval required for taxes.
The petitioner argued that the levies amounted to unconstitutional taxation, multiple taxation and interference with the movement of goods, labour and capital.
He also relied on Section 3(c)(vi) of the County Outdoor Advertising Control Act, which exempts an advertisement displayed on or in a normally moving vehicle that has a licence from another county.
He further alleged that county officials detained, clamped or denied transit to branded vehicles to compel payment, raising questions about property, movement and fair administrative rights.
The counties disputed those claims and maintained that outdoor advertising is a devolved function, while the Constitution permits county governments to impose service charges within their functions.
Nairobi City County said its laws targeted local commercial advertising vehicles operating within the county, rather than inter-county or transit vehicles merely passing through. It argued that the petitioner had produced no evidence of such vehicles being charged or detained.
The County Outdoor Advertising Control Act commenced on November 13, 2020, and allows county assemblies to enact county-specific legislation, including rate cards setting advertising fees.
The law requires parties to an advertising dispute to take reasonable measures to resolve it through alternative dispute resolution before going to court.
The Nairobi City County head office.
In the ruling, the court said that requirement was central because the petitioner had raised an exemption question that could first have been considered through the statutory process.
“The proper channel for redress would have been for the Petitioner to utilize Section 19’s Alternative Dispute Resolution (ADR) mechanism,” the court said.
The court found that failure to use the alternative route also engaged the doctrines of constitutional avoidance, ripeness and justiciability.
“By failing to adhere to Section 19, the Petitioner elevated his grievance into a constitutional dispute for determination by this court,” Judge Roseline Aburili said.
The court declined to issue declarations or permanent orders stopping all 13 counties from charging moving advertisements, saying such orders could affect county fiscal autonomy without first establishing the specific disputes and the legal basis for intervention.
The court further noted that the petitioner had not presented sufficient admissible evidence to justify the orders sought. It said the invoices and receipts showed fees had been levied on owners of moving branded vehicles.
However, it found no admissible evidence of actual detentions, double licensing or financial harm. It therefore held that the dispute was not ripe for determination.
“I find that the Petition is non-justiciable and procedurally premature,” said the judge, stating that the court lacked jurisdiction to decide the substantive questions since the petition was procedurally premature.
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