By Daniel Otieno, Kakamega
The High Court has barred the county of Kakamega from issuing Single Business Permits to health facilities run by medical practitioners, terming such a move as unconstitutional and abuse of human rights.
The court has further stayed the implementation of the Kakamega Finance Act 2023, which was being used to collect revenues through issuance of business permits to businesses run and managed by medical practitioners.
“That pending the hearing and determination of this petition, a conservatory order is hereby issued staying the implementation of the Kakamega County Finance Act 2023, enabling the county government to levy single business permit fees to the petitioner and members of the medical fraternity,” ~ Justice Bett
The conservatory order emanated from a petition filed by Daniel Kassaman Wangulu, the proprietor of Mumias West Health against the county government of Kakamega. He was being represented by Wanyundi, Neondo Mukolwe Advocates LLP.
According to the court documents, the petitioner who is a clinician paid the requisite fee to the Kenya Medical Practitioners and Dentists Council (KMPDC) as well as to the public health charges to the county government for the year 2024.
“Having complied with all the legal requirements, the petitioner carried on with his duties until October 17, 2024 when the respondent (county government) through its officers stormed the premises and demanded to see a single business permit,” the court papers reads in part
It further reads : “The petitioners did not have the said permit, resulting to the respondent ransacking the premises, and confiscating several equipment, including a three seater metal chair, digital weighing machine and a biometric scanner and a complete set of computer which are still in the possession of the respondent,”.
The petitioner told the court that his efforts to recover the equipment that was confiscated through the Rural and Urban Private Hospitals Association of Kenya (RUPHA) were futile despite his advocates serving the County Secretary a demand letter which he never replied.
The letter was dated November 12, 2024.
“Under the Fourth Schedule of the Constitution of Kenya, trade licensing is a devolved function. However, the constitution clearly excludes regulation of professionals, pointing to the fact that no devolved unit has the power to regulate any member of a profession operating between its boundaries,” reads the court papers in part
It further reads : “Since health services are provided by professionals, the regulation for the same does not fall under the county governments, including the provision of trading licenses,”
Some of the reliefs the petitioner sought include, a declaration by the county government through its revenue officers to impose single business permit fees to the petitioner and confiscation of his equipment was illegal, discriminatory and irrational.
He also sought an order prohibiting the county government from implementing its decision of levying single business permit to the petitioner and members of medical profession in Kakamega County as well as exemplary damages.
Justice Alice Chepngetich Bett Soi of the Kakamega High Court – the Constitutional and Human Rights Division while giving the conservatory orders said “I am persuaded the above petition (E017 of 2024) dated December 18, 2024 is merited”.
“That pending the hearing and determination of this petition, a conservatory order is hereby issued staying the implementation of the Kakamega County Finance Act 2023, enabling the county government to levy single business permit fees to the petitioner and members of the medical fraternity,” ordered Justice Bett
Judge Bett also ordered the county government (respondent) to release all the equipment confiscated with immediate effect.
Meanwhile, Justice Bette has forwarded the case to Chief Justice Martha Koome to empanel a three judge bench to hear the matter and make a determination on the matter.
This is because there are contradicting judgements on the matter in Mombasa, Garrisa and other devolved units on the matter.
Mention of the case if on February 13, this year.
