Kenya’s Mineral sands operator Base Titanium has received a protracted authorized battle with the County of Mombasa over the imposition of a controversial Ksh3,000 ($28.03) cess on its vehicles.

This comes after the Supreme Court docket of the land overturned choices by the Superior courts — Excessive Court docket and Court docket of Enchantment — by declaring that the levy charged by the County on Titanium vehicles transporting items throughout its boundaries is ‘unconstitutional’

The seven-year-long dispute has seen Base Titanium, the Kenyan subsidiary of the Base Sources Group, an Australia-based, Africa-focused, mineral sands producer and developer, pressured by the county to pay cess totalling Ksh1,542,000 ($14,411.21) as of December 31, 2014.

The Supreme Court docket via its ruling delivered on July 16, 2021 declared the actions by the County Authorities of Mombasa ‘unconstitutional, null and void and ordered the administration to refund Ksh1,542,000 ($14,411.21) already paid by the mineral sands operator.

“… ..a declaration is hereby issued declaring that the actions of the First Respondent (Mombasa County) to cost the Appellant (Base Titanium) a cess within the sum of Ksh3,000 ($28.03) per truck, or any sum in any respect, a situation for the Appellant (Titanium) to maneuver its items throughout the boundaries of the first Respondent’s County is unconstitutional, null and void,” in line with the ruling.

Interpretation

“The First Respondent (Mombasa County) is hereby directed to refund to the Appellant (Titanium) the sum of Ksh1,542,000 ($14,411.21) paid by the Appellant (Base Titanium) to the First Respondent as of December 31 2014.”

In its ruling the Supreme Court docket decided whether or not the levy charged by the County of Mombasa upon every titanium truckload was a cost on providers as contemplated underneath Article 209(4) & (5) of the Structure of Kenya, and in that case what cures the Court docket ought to supply.

“We, due to this fact, fault the superior Courts’ interpretation and software of Article 209(4) of the Structure of their discovering that the cess levied by the First Respondent (Mombasa County) was in line Structure. Consequently, we put aside the Judgements of the Excessive Court docket and of the Court docket of Enchantment,” in line with the ruling.

The levy dispute between Base Titanium and Mombasa County began in June 17, 2014 when the County authorities began imposing Ksh3,000 ($28.03) cess on Titanium vehicles working inside its jurisdiction.

Further sums

Aggrieved by Mombasa County’s motion, Base Titanium filed a petition in 2015 searching for orders to the County’s actions to cost the agency a cess of Ksh3,000 ($28.03) per truck, unconstitutional, null and void, declaration that the County has no mandate underneath the Structure to cross any laws that restricts the agency’s proper of motion by imposing a tax or income to be paid by Titanium as a situation for transferring its items throughout the County’s boundaries.

The agency additionally demanded a compulsory injunction compelling the County to refund the Ksh1,542,000 ($14,411.21) it had already paid underneath duress as at December 31, 2014, and/or some other further sums that the agency had paid to the County from January 1, 2015, as cess on vehicles transporting items throughout the County boundaries to the date of compliance with the obligatory injunction.

In February 2017, the Excessive Court docket dismissed the agency’s petition, arguing that County governments have, underneath Article 209 (3) and (4) of the Structure, the facility to levy taxes and fees for providers that they supply together with highway transport providers.

The Excessive Court docket concluded that the cess cost imposed by the Mombasa County Finance Act, 2014 for “all items carrying autos getting into Mombasa County and offloading in Mombasa County” shouldn’t be a tax or cost on the mineral product of titanium mined and transported by the agency, and the cost is, accordingly, not barred by reference to Article 62 of the Structure, which vests minerals as a part of public land underneath the authority of the Nationwide Authorities.

The Court docket additionally dominated that Titanium did not exhibit how the imposition of the cess on the autos carrying its product into Mombasa prejudices the nationwide pursuits as per Article 209(5) of the Structure.

Nevertheless, the agency was dissatisfied with the ruling and filed an enchantment faulting the Excessive Court docket judgment for locating that the cess was a cost for providers referred to ‘highway transport service’ offered by the County of Mombasa, and making a willpower on points not pleaded thus infringing on the agency’s proper to a good listening to.

The Structure