By Andrew Kariuki
The High Court has dismissed a constitutional petition seeking to compel the government to refund motorists the road maintenance levy imposed on fuel, ruling that the State complied with constitutional requirements on public participation before implementing the increase in July 2024.
In its judgment, the court held that the process leading to the adjustment of the Road Maintenance Levy met the standards set out under the Constitution and declined to halt the levy or order refunds, warning that such relief would create a multibillion-shilling funding gap for road maintenance across the country.
The case was filed by Haki Yetu Organisation against the Cabinet Secretary for Roads and Transport, the Kenya Roads Board (KRB), the Energy and Petroleum Regulatory Authority (EPRA), and the Attorney-General.
The petitioner sought to invalidate the Road Maintenance Levy Fund (Imposition of Levy) Order, 2024, suspend its enforcement, and compel the State to refund motorists through a ksh7 per litre reduction in fuel prices for the period the levy was in force.
The contested order, published as Legal Notice No. 109 on July 10, 2024, increased the levy on petrol and diesel from Sh18 to Sh25 per litre.
Haki Yetu Organisation argued that the levy hike was implemented without adequate, effective, meaningful, and tangible public participation, describing the consultation process as cosmetic and a mere formality.
The group claimed the notice period was insufficient, consultation venues were limited and poorly distributed, and that a late-night social media post showing a public notice marked “cancelled” caused confusion and discouraged public engagement.
The petitioner further argued that members of the public were not sufficiently informed about the rate, justification, and impact of the increase, citing limited internet access and alleging that dissenting views were ignored.
It also referenced a public statement issued by the Cabinet Secretary on July 8, 2024, acknowledging cost-of-living pressures, arguing that the subsequent approval of the levy two days later amounted to a reversal of position.
In response, the Kenya Roads Board defended the levy, stating that it is a legally established fund that had last been reviewed in 2016 and that collections had become inadequate due to inflation, rising construction costs, depreciation of the shilling, increased fuel import prices, expansion of the road network, climate-related damage, and maintenance backlogs.
The Board told the court that a July 2024 study showed an annual road maintenance funding requirement of Ksh157 billion, against a deficit of Ksh63 billion, justifying the levy increase. It further disclosed that the study projected a levy of Ksh34 per litre to fully meet funding needs, but the government opted for a phased approach beginning with an increase to Ksh25 per litre.
The respondents maintained that due process was followed, including publication of a draft order, invitation of written memoranda, public forums held in 10 regions, a regulatory impact assessment, and submission of relevant documents to the National Assembly.
They argued that courts should not interfere with executive discretion on fiscal policy unless constitutional violations are clearly demonstrated.
In determining the matter, the court framed the central issue as whether the public participation process satisfied constitutional requirements under Article 10 of the Constitution.
While affirming that public participation is a cornerstone of democratic governance and must be substantive rather than illusory, the court emphasised that the standard applied is one of reasonableness, assessed within the context of each case.
The judge noted that public participation does not require oral hearings only and that written submissions are an acceptable method of engagement.
The court found that the public notice clearly communicated the proposed Ksh7 increase and provided avenues for both written and in-person participation.
Given that the matter involved a single-issue levy adjustment, the court ruled that the 10-day period allowed for memoranda and the 12-day notice before public forums were 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,” the court held.
The judge also dismissed claims that venues were inaccessible or that the process excluded persons with disabilities, noting that the petitioner failed to provide affidavits or evidence from individuals who were allegedly 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.
Allegations that opposing views were ignored were similarly rejected as generalised and unsupported.
Citing the Evidence Act, the court reiterated that the burden of proof rests with the party making allegations.
“I find and hold that the Petitioner has failed to discharge the burden of proof,” the judge concluded, dismissing the petition in its entirety.
