Kenyan court upholds cess fees on export herbs

The High Court in Nyandarua has ruled that the county government may continue charging cess on herbs transported for export, finding that the levy functions as a fee for services rather than an unconstitutional tax. The case was brought by Royal Herbs, an enterprise operating within a Special Economic Zone that delivers fresh herbs daily to Nairobi for export markets.

Royal Herbs asked the court to nullify Section 8 of the Nyandarua County Finance Act, arguing that counties lack the authority to impose charges on export goods. The company said cess amounted to double taxation, conflicted with Articles 209 and 210 of the Constitution, and disrupted export logistics. The dispute followed an incident in April when county officials impounded one of the company’s trucks and required KSh 161,000 (US$1,242) before releasing a consignment of perishable herbs.

Justice Waweru Kiarie dismissed the petition, stating, “The Constitution of Kenya provides as follows: The national and county governments may impose charges for the services they provide. The petitioner has failed to prove how payment of the cess amounts to taxation.” The court found that the company did not demonstrate that the levy violated the free movement of goods or exceeded legal limits.

Nyandarua County defended the fee as a user charge linked to its role in agriculture and rural infrastructure. It said cess supports activities such as road maintenance and inspection of produce, and therefore falls within its constitutional authority to impose charges for services.

Justice Kiarie distinguished between a tax and a service fee based on standard legal definitions. A tax is applied broadly to raise public revenue, while a fee corresponds to a specific service or benefit provided to the payer, such as road use or produce inspection. The judgment noted that fees must remain proportionate to the service delivered and cannot be redirected into general spending.

The court found no evidence that the cess duplicated a national tax or resulted in double taxation. It ruled that the petitioner did not show that the levy functioned as anything other than a service charge.

The decision reinforces county authority to apply user fees within agricultural value chains, including horticultural products destined for export, provided the fees remain tied to identifiable services.

Source: The Kenyan Wall Street