Lawyer moves court to block counties from auctioning private property without legal approval
The petition argues the National Rating Act violates property rights and due process, seeking urgent court intervention to halt county-led auctions of private land.
A lawyer has filed a petition challenging sections of the National Rating Act, 2024, that allow counties to auction private property over unpaid rates without seeking court approval. The petitioner argues that these provisions violate property rights and due process.
The petitioner, lawyer Shadrack Wambui, is seeking conservatory orders to suspend the law’s enforcement. He urged the court to treat the matter as urgent and refer it to a bench of at least three judges due to the significant constitutional questions involved.
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Wambui is specifically targeting Sections 19(3)(d) and 19(4) of the Act, which he says empower counties to sell property administratively without court oversight, procedural safeguards, or national standards. He contends that this contravenes Article 40 on the protection of property rights and undermines the integrity of due process.
“The administrative auction of private property without judicial sanction poses an imminent risk of irreparable harm to landowners. Once auctioned, such property cannot be recovered, rendering this petition nugatory,” reads part of Wambui’s supporting affidavit.
The lawyer further argues that the law was enacted without meaningful public participation or consultation with the Commission on Revenue Allocation, in breach of Article 205 of the Constitution, making it unconstitutional. He warned that enforcing the contested provisions could result in widespread property rights violations, threatening livelihoods and ancestral heritage.
Preserve status quo
He urged the court to preserve the status quo pending the case’s determination, arguing it is in the public interest to safeguard constitutional values, due process, and the integrity of devolution.
The petition comes as Nairobi City County has threatened to auction nearly 200,000 properties whose owners have defaulted on rates, aiming to recover Sh54 billion.
Governor Johnson Sakaja blamed wealthy property owners for low compliance, noting that only 50,000 to 60,000 of the city’s 250,000 land parcels currently pay rates.
“Out of 250,000 land parcels in the city, we have only 50,000 to 60,000 accounts that are paying rates. Every city in this world relies on property rates as their biggest revenue source,” Sakaja said.
He linked low compliance to the county’s low own-source revenue (OSR) amid challenges from the National Treasury in disbursing funds to counties.
Land rates
Nairobi’s OSR for the year ending June 2025 reached Sh13.5 billion, up from Sh12.8 billion the previous year. Land rates, the largest contributor, generated Sh3.25 billion but have fallen from 27% to 24% of total OSR over the past nine years.
During the same period, City Hall conducted a data clean-up, writing off Sh1.45 trillion in unpaid rates while still claiming Sh54 billion. The county has not clarified the circumstances surrounding the write-off, which could have funded operations for 43 years at the 2024/25 spending rate of Sh33.53 billion.
City Hall has warned that full compliance could raise total revenues from Sh36 billion to Sh50 billion.
“You’ll see us clamping and auctioning property because people must pay,” Sakaja said.
The National Rating Act, 2024, requires counties to levy interest and penalties on defaulting property owners and deny them services before auctioning properties. It also allows counties to decide on rate structures—whether flat, graduated, or differential based on land use.
Sakaja indicated that Nairobi might adopt a rate system based on property use.
“This is the only capital where we actually charge rates on undeveloped site value. Half an acre in Kileleshwa with one house pays the same as a neighbour with 60 houses, yet they need water and use our roads,” he said.
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