Base Titanium Ltd
Edward Muriithi
High Court
Martha Koome

Base Titanium appeals court ruling allowing cess payment

Base Titanium Ltd argues that there is no reference to the cess charge on the receipts issued by the County Government of Mombasa when its vehicles are charged for transporting minerals to the port.

Through lawyer Desterio Oyatsi, the company told Court of Appeal judges Alnashir Visram, Wanjiru Karanja and Martha Koome that the receipts were indicated as miscellaneous.

High Court judge Edward Muriithi had dismissed the company’s petition, saying it had not demonstrated how the imposition of the cess on vehicles carrying its products prejudices national interests.

Justice Muriithi had further ruled that county governments have power to levy taxes and charges for services that they provide including road transport.

According to the company’s appeal, the judge erred and arrived at wrong findings that cess was a charge for services provided by the country government.

The mining company also argues that the judge misdirected himself when he made an erroneous finding that the county government provides road transport services.

“The judge made a fundamental error of law when he made a determination against the appellant on grounds which had not been pleaded by the county government and on which the appellant had not been granted an opportunity to be heard,” states the company in appeal papers.

The company further argued that the High Court erred by failing to hold or determine that imposition of the said cess was unconstitutional, null and void.

However, the county government urged the three-judge Bench to dismiss the appeal saying the charges are anchored in law. Through its lawyer, the county government said it is authorised to charge for services rendered and that it did not violate any law.

The county government also argued that the High Court was correct in its decision since it did not depart from what was pleaded before it.

Base Titanium argued that the county government violated its constitutional right by exercising taxation and imposing a cess on its trucks transporting processed mineral products from Kwale for the purpose of exportation.

In response the county government denied imposing any restrictions against the mining company saying there was no violation of the company’s rights to move its goods under the special Mining Licence. The court will deliver its judgment on July 5.

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