It is a first-round win for the Kisii County Government after an appellate court sitting in Kisumu granted orders maintaining the status quo as regards revenue collection at the border town of Keroka.
Since the early years of devolution, the two counties of Kisii and Nyamira have been scrambling over the control of the town, which is the second largest after Kisii town.
Justices Hannah Okwengu, Ali-Aroni and Joel Ngugi on April 9, granted a stay of execution and implementation of the judgement of Justice Mugo Kamau of the Environment and Lands Court of Nyamira.
“Upon engaging with the parties’ advocates, the application is hereby compromised as follows: that an order of status quo shall be issued pending the hearing and determination of the appeal,” the court order reads.
The three-judge bench noted that the Keroka border row is a matter of “great public interest and importance”.
They directed the parties to exchange and file written submissions as the hearing of the substantive appeal shall be given priority.
Civil Appeal Case Number E026 of 2024, Rigoma MCA Nyambega Gisesa, the National Lands Commission (NLC), the Attorney General, and the IEBC are listed as first, second, third and fourth respondents, respectively.
The County Government of Nyamira, Ministry of Lands and Physical Planning, Mr Christopher Barare Nyang’au, Francis Ndaburi, and Charles Osoro Kiboi are the fifth, sixth, seventh, eighth and ninth respondents, respectively.
Keroka sits on the border of the two counties, with maps from the National Lands Commission (NLC), the Independent Electoral and Boundaries Commission (IEBC) and a service charter.
Rigoma Ward representative Nyambega Gisesa moved to court, arguing that the bulk of Keroka Town is in Nyamira County.
Mr Gisesa had submitted that traders in Keroka were being subjected to double taxation by both counties.
In his ruling on February 15, Justice Kamau ordered the two counties to “confine themselves within their territories in respect of the collection of rents, rates, licenses and other statutory revenues".
The judge established that the territories of the two counties at the town had already been demarcated.
"You don't need rocket science to know where the boundary between Nyamira County and Kisii County is,” he said while ruling on the matter.
"A declaration is hereby issued that forcing the residents of Keroka town to pay rates, rents or any other dues to both Kisii and Nyamira counties is a gross violation of the affected traders' property rights," said Judge Mugo.
The judge asked the revenue collectors who might have collected revenue from a foreign territory to consider refunding the money.
He compelled the two counties to each table before their respective County Assemblies a report on "how they have utilized the money held in a joint account that they opened for revenue collection in Keroka since 2013".
The environment and lands court directed that anyone who might have been aggrieved with the service delivery agreement entered between the two counties in respect to Keroka town on May 21, 2014, under Section 118 of the County Governments Act should first go to mediation, arbitration or resolution under the Inter-Governments Relations Act No. 20 of 2012.
The decision was appealed by the Kisii County Government led by Counsel Ochieng Oginga, among others, on February 20, 2024, claiming that it was contradictory.
“The judgement was also contradictory. On one side, the judge says the boundaries are well known, on the other side he directs that each county continues collecting revenue as it were,” said lawyer Zelmer Bonuke in reaction to the ruling.
He explained that as per the Urban Areas and Cities Act, it is the Cabinet Secretary that is responsible for the selection of an ad-hoc committee consisting of representatives of both counties, the national government and the IEBC.
"That is the procedure laid out in law and when that is done is when we say that the test of legality has been satisfied," he stressed.
He went on: "On one hand the court has rightfully held that the joint administration of Keroka town ought to be resolved through mediation by the Intergovernmental Relations Committee but on the other hand the court is saying that it had jurisdiction to determine the boundary concerning the town".
"The parties cannot handpick persons outside the legal provisions and purport to demarcate boundaries," the counsel emphasised.
Chaos and lawlessness were witnessed in Keroka on March 3, 2024, prompting the petitioner to head back to court accusing Kisii County Governor Simba Arati and his county secretary Robert Ombasa of contempt.
Justice Mugo directed Mr Arati and his Nyamira counterpart Amos Nyaribo to meet within 21 days to discuss how to restore peace in the border town.
