New rating law allows counties to auction land over unpaid rates

Kenyans face the risk of losing land and properties for failure to pay land rates after President William Ruto assented to the controversial National Rating Act of 2024. The Act permits county governments to administratively auction private land for rates arrears without prior recourse to a court of law. High Court advocate Shadrack Wambui from Sheria Mtaani said that already, several county governments have issued threats and notices of intended auctions pursuant to this new regime. In a petition filed in Milimani High Court, Wambui said the enactment of the National Rating Act, 2024, marks a radical and unconstitutional rupture from the long-established legal order governing recovery of rates. He said the administrative auction of properties without judicial oversight threatens immediate loss of landowners' rights, ancestral heritage, and livelihoods. "The new law now purports to empower county governments to summarily and administratively create charges, appoint receivers, and auction private land for unpaid rates without any mandatory judicial oversight, due process, or statutory safeguards," said Wambui. He said that under the former law, recovery of rates was strictly a judicial process and the rating authority was required to institute proceedings in a court of competent jurisdiction, obtain judgment, and execute the decree under the supervision of the court before any sale or attachment of property could occur. Wambui said that Section 19(3)(d) expressly empowers counties to auction the rateable property at the current market value, while Section 19(4) delegates the formulation of enforcement procedures to county assemblies, without prescribing any uniform basic minimum national standard or judicial check. "The impugned Act now discards that protection, replacing it with a framework that permits county governments to administratively auction private land for arrears of rates without prior recourse to a court of law," said Wambui. The advocate filed a certificate of urgency seeking ex parte conservatory orders to stop the enforcement and implementation of the act that authorizes the auction of rateable property without prior judicial authorization. Wambui said the National Rating Act, 2024, was enacted in flagrant violation of Articles 10, 40, 118, 201, 205, 216(2), and 232 of the Constitution. He said that the state has on the strength of the impugned law, threatened to auction private properties on account of non-payment of land rates. The advocate said that once auctioned, these properties will be lost irreversibly, extinguishing any meaningful remedy the petitioners might obtain at the conclusion of these proceedings. He said the same lacked mandatory consultation with the Commission on Revenue Allocation and meaningful public participation. Wambui said the Act introduced a regressive claw-back on the right to property. "In effect, it grants the executive arm of county governments a blank cheque to deprive citizens of land through unilateral administrative action which is an unprecedented departure from the established safeguards even when compared against the Land Act, the Civil Procedure Act, and the Tax Procedures Act, none of which permit the summary taking or auction of private property by government without court sanction," said Wambui He applied to have the Chief Justice empanel an uneven number of judges to hear and determine the petition. He said the radical departure from the repealed law, established constitutional norms violates Article 40, which enshrines the inviolability of private property and mandates protections. "The Act's passage was tainted by profound flaws: it was enacted without meaningful public participation, without any public sensitization, and critically, without inviting input from the CRA, an omission that is a fatal constitutional defect under Article 205," said Wambui. He said the claw back of constitutionally protected property rights through summary auction constitutes harm that cannot be compensated or undone. The advocate said that once auctioned, these properties will be lost irreversibly, extinguishing any meaningful remedy the Petitioners might obtain at the conclusion of these proceedings. He said the National Rating Act's flawed operational framework fosters arbitrariness and legal uncertainty across counties by allowing them to enforce auctions under varying administrative procedures without uniform national safeguards or judicial oversight. "Left unchecked, this will lead to a fragmented and unpredictable landscape of property rights violations that undermines the constitutional architecture of devolution, due process, and property protection. Protecting landowners from unconstitutional dispossession safeguards not only individual rights but the stability and integrity of the entire constitutional order," said Wambui. Wambui said that historically, land rating and valuation statutes such as the Valuation for Rating Act (Cap. 266) and the Rating Act (Cap. 267) acknowledged the sanctity of land rights by requiring judicial oversight prior to any dispossession of land on account of rate arrears. He said that under the repealed Acts, local authorities were obligated to recover unpaid rates through court-sanctioned processes, with courts retaining the discretion to grant relief based on justice and fairness. "Kenya's Land Act, 2012 (Section 32) similarly codifies the requirement for judicial adjudication before land can be forfeited, underscoring a coherent legal tradition of court-supervised dispossession and procedural fairness in matters touching on land tenure and property rights," said Wambui.

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