The High Court has dismissed a petition seeking to compel the government to refund motorists the road maintenance levy on fuel, ruling that the State adhered to constitutional standards of public participation before implementing the increase in July 2024.
The court deemed the process reasonable and rejected the public interest litigation, which had sought to halt the levy hike and reverse collections—a move that would have created a multibillion-shilling financial shortfall in the national roads maintenance budget.
In its judgment, the court dismissed a case filed by Haki Yetu Organisation against the Cabinet Secretary for Roads and Transport, the Kenya Roads Board, the Energy and Petroleum Regulatory Authority, and the Attorney-General.
The petitioner had sought to invalidate the Road Maintenance Levy Fund (Imposition of Levy) Order, 2024, suspend its enforcement, and mandate refunds to motorists through a Sh7 per litre reduction in fuel prices for the duration the levy was applied.
The contested order, published as Legal Notice No.109 on July 10, 2024, increased the levy from Sh18 to Sh25 per litre of petrol and diesel.
The petitioner argued that the hike was implemented without “adequate, effective, meaningful, proper, and tangible public participation,” describing the consultation process as “a mirage, cosmetic, and a mere formality.”
It contended that the notice period was insufficient, venues were limited and poorly distributed. The petitioner also took issue with a late-night social media post displaying a public notice marked “cancelled” and said this caused confusion and deterred participation.
Additionally, the group claimed Kenyans were not adequately informed about the rate, rationale, and impact of the increase, citing limited internet access and alleging that dissenting views were disregarded.
The petitioner also referenced a July 8 statement by the Cabinet Secretary acknowledging cost-of-living concerns, arguing that the government performed “a complete about-turn” by approving the levy hike two days later.
In response, the Kenya Roads Board defended the levy as a legally established road maintenance fund last reviewed in 2016.
The board cited a July 2024 study indicating that collections had become inadequate due to inflation, rising construction costs, shilling depreciation, fuel import prices, road network expansion, climate-related damages, and maintenance backlogs.
It revealed an estimated annual funding requirement of Sh157 billion against a Sh63 billion deficit, justifying the phased increase starting at Sh25 per litre.
The court heard that the Board’s study projected a need for Sh34 per litre to fully bridge the funding gap, but the government opted for a gradual rise beginning at Sh25 in 2024.
The respondents argued that they followed due process by publishing a draft order, soliciting written memoranda, conducting forums in 10 regions, performing a regulatory impact assessment, and submitting documents to the National Assembly.
However, the court framed the core issue as whether public consultation met constitutional standards under Article 10.
It affirmed that public participation is “integral to the legitimacy of any democratic state” and “plays a central role in legislative and policy formulation,” but emphasised that courts evaluate reasonableness contextually.
The judge clarified that while participation must be substantive rather than illusory, it need not involve oral hearings exclusively, noting that “written submissions can also be made.”
Regarding timing and notice, the court ruled the process of increasing the levy was sufficient, as the public notice clearly outlined the proposed Sh7 increase and invited both in-person and written feedback.
The judge held that since the matter was a straightforward Sh7 levy hike, this was not overly complex. It ruled that a 10-day window for memoranda and 12 days before forums was reasonable.
"The public participation programme rolled out by the Respondents was reasonable in the circumstances. There was compliance with the requisite legal and procedural requirements for public participation," said the court.
Further, the court dismissed claims of inaccessible venues or social media confusion, noting the petitioner failed to provide affidavits from individuals—including persons with disabilities—who were unable to participate.
"The Petitioner was obligated to demonstrate by evidence who fell into deception and who failed to participate as alleged. In any event, the fact that someone was not heard is not enough to annul the process," the court ruled.
It also rejected allegations that opposing views were ignored, describing them as “too generalised and lacking substantiation.”
Citing the Evidence Act, the court reiterated that in constitutional litigation, “he who alleges must prove.”
The judge held that the material placed by the petitioner before the court was not sufficient to lead to the finding that the promulgation of the Levy Order was flawed as alleged.
“I find and hold that the Petitioner has failed to discharge the burden of proof,” the judge concluded.
