County to lose billions as court halts solid waste levy on ships

A Chinese container ship docks at the Port of Mombasa in Mombasa, Kenya, on July 8, 2026. [AFP]

Mombasa County will no longer be collecting billions of shillings from ships docking at the Port of Mombasa.

This is after the High Court judge, Justice Jairus Ngaah, nullified the Mombasa County Solid Waste Management (Amendment) Act, 2023, noting it was inconsistent and enacted without public participation.

According to the Act, ships face charges based on tonnage, with a weekly minimum of over $200 (Sh26,00) and a maximum of $1,500 (Sh195,000).

The judge said the county government lacked proof of any service provided, yet the provision imposes a charge upon vessels calling at the port without stipulating, or delivering, any waste-reception service in return.

He noted that the charges levied are irrespective of whether a given vessel discharges any waste or requires any such service.

“The County operates no certified port waste reception facility. There is, on this record, no service; and without a service there can be no quid pro quo. The charge is, therefore, not valid “for services” under Article 209(4),” said Justice Ngaah.

Kenyan Businesswoman Hussein Ruwaida sued Kenya Ports Authority (KPA), Mombasa County, the County Assembly of Mombasa, Mining Cabinet Secretary Hassan Joho and the Attorney General over the Act.

She also cited Kenya Maritime Authority (KMA) and National Environment Management Authority (NEMA) as interested parties.

Ruwaida said section 42A imposes a charge upon all vessels calling at the Mombasa Port without stipulating any service in return, and irrespective of whether a given vessel discharges or requires waste-disposal services.

She said the county operates no certified port waste reception facility, so vessels are charged yet receive neither a service nor a valid certificate, and that the levy disregards the investment made by vessel owners in complying with their own garbage-management obligations under Annex V to the Convention.

“The charge is, therefore, levied for nothing; it is unreasonable, arbitrary and an excess of authority; and, being a levy without a corresponding service, it conflicts with Article 209(3) and the Fourth Schedule to the Constitution and cannot be sustained under the county’s revenue-raising powers, the more so as it burdens national economic policy and economic activity across county boundaries,” said Ruwaida.

She said the charge is calculated by reference to a ship’s gross registered tonnage and is payable simply because the ship docks. It is exigible whether or not the ship lands any waste, and whether or not it makes use of any facility.

She said the provision fails to identify any service, facility or amenity that the county undertakes to provide in return for the charge.

In his judgment, Justice Ngaah held that the levy is neither a property rate nor an entertainment tax, and that no Act of Parliament authorises the County to levy such an impost on marine vessels.

He said that a county levy that lies outside Article 209(3) and does not qualify as a charge for services under Article 209(4) has no constitutional foothold, and offends Article 210(1), which permits the imposition of a tax only as provided by legislation of the competent authority.

The judge said a charge imposed upon all vessels calling at the port, a national facility, serving the trade of the whole republic and of neighbouring states, bears directly upon economic activity across county boundaries and upon the national mobility of goods.

“Indeed, the Fourth Schedule itself, in assigning county transport functions, expressly excludes “the regulation of international and national shipping and matters related thereto” from the county sphere,” said Justice Ngaah.

The judge said that a county levy on marine vessels at the national port falls within a domain the Constitution reserves to the national government and sits uneasily with both Article 209(5) and the functional allocation in the Fourth Schedule.

Justice Ngaah noted that the County Assembly did not produce before the court any notice inviting public views, advertisement, record of any public hearing, memorandum of the views received, or evidence that the Bill was published for comment.

He said the Act was invalid for failure to comply with Articles 10, 174, 196 and 201 of the Constitution and the County Governments Act, 2012.

He proceeded to quash the undated customer notice issued by Mombasa County imposing and collecting, upon marine vessels, the charge created by section 42A.

The judge said the Act was inconsistent with Articles 209 and 210 of the Constitution and therefore void by virtue of Article 2(4) of the Constitution.

“Section 42A of the Mombasa County Solid Waste Management Act, 2021 (as inserted by the Amendment Act) is, in the manner of the charge it imposes, inconsistent with Articles 209 and 210 of the Constitution. By Article 2(4), it is void to the extent of that inconsistency. This conclusion is independent of, and additional to, the finding on public participation,” said Justice Ngaah.

The judge said that the exaction of money without lawful basis is a deprivation of property under articles 209 and 210 of the Constitution.

Justice Ngaah said there was no lawful instrument of authority or agreement produced to show how KPA reached a consensus to collect solid waste levy on behalf of the County.

The judge said that undated notice of uncertain provenance and legal basis, purporting to levy a financial charge upon vessels, also offends the elementary requirements of legality and certainty and the right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015.

He said a person made subject to a charge is entitled to know its legal basis and its temporal application.

“The undated customer notice of the 1st respondent (Mombasa County) exists for one purpose only: to give effect to the charge created by section 42A. Once that provision falls, the notice is left without a lawful foundation, and an instrument that rests upon an unconstitutional provision cannot survive it,” said Justice Ngaah.

He, however, declined to declare that Mombasa County, the County Assembly and Kenya Ports Authority (KPA) were in violation of Kenya’s international obligations under MARPOL, for the same was not ventilated before him with evidence.

“The relief founded upon the alleged violation of Articles 27, 28, 29, 31, 32, 43, 45 and 53 of the Constitution is declined,” said Justice Ngaah.

In its defence, the County Assembly said the levy is a fee “for services rendered” within section 120 of the County Governments Act, 2012.