Council of Governors v Attorney General & 7 others
The bottom line
#The Council of Governors cannot sue in the Supreme Court because it is not a State organ under the Constitution.
What this practically means
#The Council of Governors asked the Supreme Court for an advisory opinion on its funding and powers. The Court said no. Under Kenya's Constitution, only 'State organs' can bring such requests. A State organ must be created directly by the Constitution itself, not just by an Act of Parliament. The Council was created by the Intergovernmental Relations Act, not the Constitution. So the Court had no power to hear the case. The Council must use other dispute resolution methods instead.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant, Council of Governors, is a State Organ within the provisions of Article 260 of the Constitution so as to be clothed with the locus standi to seek an advisory opinion before this Court.
Key legal issues
#Whether the Council of Governors is a 'State organ' under Article 260 of the Constitution, capable of seeking an advisory opinion under Article 163(6).
The Council of Governors is not a State organ. It is a statutory body created by Section 19(1) of the Intergovernmental Relations Act, not by the Constitution itself. Its establishment is not traceable to any specific constitutional provision, and Article 189 of the Constitution does not provide for its creation.
The Court applied the plain meaning of Article 260, which defines a State organ as 'a commission, office, agency or other body established under this Constitution.' The word 'under' means 'as provided for by the rules of, in accordance with.' The Court held that only bodies whose establishment is expressly traceable to a constitutional provision qualify. The Council of Governors is established by an Act of Parliament, not by the Constitution. Article 189(4) only mandates legislation to provide procedures for settling inter-governmental disputes; it does not establish the Council. The Court distinguished the Ethics and Anti-Corruption Commission, which has a constitutional founding basis in Article 79. The Court also rejected the argument that the Council is an 'agency' of the county governments, holding that 'agency' in Article 260 refers to a government institution, not a principal-agent relationship.
Whether the Supreme Court should exercise its discretion to render an advisory opinion even if the Applicant lacked locus standi, given the public importance of the issues.
The Court cannot assume jurisdiction where none exists. The issue of locus standi is a threshold jurisdictional question that must be determined before any substantive consideration. The Court cannot use its discretion to clothe a party with standing it does not have.
The Court relied on its earlier decision in Samuel Kamau Macharia v Kenya Commercial Bank, holding that jurisdiction is a substantive issue, not a procedural technicality. The Court stated that 'no amount of stretching and judicial crafting' can clothe a party with status it does not have. The Court also rejected the 'deem principle' as having no place in law. Even if the Court had found jurisdiction, it indicated it would have declined to exercise its discretion and referred the matter to ADR under Article 159(2)(c) and Section 31 of the IRA.
Whether the Council of Governors can be deemed a State organ for the purposes of this Reference because of its functions under Section 20 of the Intergovernmental Relations Act.
The 'deem principle' has no place in law. A body cannot be deemed to be what it is not. The functions of a body do not determine its constitutional status.
The Court cited its decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission, stating that something is either legal or not, and cannot be deemed to be what it is not. The Court held that the Council's functions under Section 20 of the IRA, even if they further the objectives of Article 189 of the Constitution, do not transform it into a State organ.
Legal principles established
#- A 'State organ' under Article 260 must be established directly by the Constitution, not just by an Act of Parliament.
- Courts cannot expand the definition of 'State organ' through interpretation when the constitutional text is clear.
- The 'deem principle' has no place in law: a court cannot pretend a body is something it is not just to hear a case.
- The Supreme Court's advisory opinion power is discretionary and can be declined even when jurisdiction exists.
- Jurisdiction is a threshold issue that must be decided before any substantive legal questions are considered.
- Alternative dispute resolution under Articles 159 and 189 must be exhausted before seeking court intervention.
Court orders
#- 1.The 2nd Interested Party’s Notice of Preliminary Objection dated 13th June, 2017 is hereby allowed.
- 2.The 1st, 4th, 5th and 6th Interested Parties’ Notice of Preliminary Objection dated 1st August 2017 is hereby allowed.
- 3.It is hereby declared that the Applicant, Council of Governors, is not a State Organ, hence has no capacity (locus Standi) to seek an advisory opinion before this Court.
- 4.The Applicant’s Reference dated 19th April, 2017 is hereby disallowed for want of jurisdiction.
- 5.Each Party shall bear its costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 163(6) of the Constitution
Relief refused
#Advisory opinion on the four questions posed in the Reference
The Applicant lacked locus standi to seek an advisory opinion under Article 163(6) of the Constitution, as it is not a State Organ.
Costs
Each Party shall bear its costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
State organs are those commissions, offices agencies or bodies established under the Constitution. That is, those institutions that are established in the Constitution.
We find that the word ‘under’ cannot be said to be ambiguous so as to call for invocation of the general doctrine of interpretation.
Something is either legal or not, either legitimate or not. It cannot be deemed to be what it is not.
No amount of stretching and judicial crafting, as we have already alluded to, can clothe a party with status it does not have.
The Applicant’s Reference dated 19th April, 2017 is hereby disallowed for want of jurisdiction.
Each Party shall bear its costs.
Key timeline
#Practical implications
#Check client's constitutional standing
Before filing any Supreme Court advisory opinion request, verify that your client is a 'State organ' under Article 260. This means the client's establishment must be traceable to a specific constitutional provision, not just an Act of Parliament. If your client is a statutory body like the Council of Governors, advise them to use intergovernmental dispute resolution mechanisms under Article 189 and the Intergovernmental Relations Act instead.
Know which bodies can sue at Supreme Court
Only State organs created directly by the Constitution can seek advisory opinions from the Supreme Court. If you are dealing with a government body that was created by an Act of Parliament (like the Council of Governors), that body cannot take constitutional disputes directly to the Supreme Court. This affects how you plan legal strategy when challenging government actions or seeking clarity on constitutional matters.
Your access to Supreme Court is limited
As an individual, you cannot directly ask the Supreme Court for an advisory opinion on constitutional questions. Only State organs can do that. If you have a constitutional dispute, you must first go through lower courts or use other dispute resolution methods. This case confirms that the Supreme Court strictly limits who can bring cases directly to it, so plan your legal route carefully.
Frequently asked questions
#Can the Council of Governors sue in the Supreme Court in Kenya?+
No. The Supreme Court ruled that the Council of Governors is not a State organ under Kenya's Constitution. Only State organs created directly by the Constitution can seek advisory opinions from the Supreme Court. The Council was created by an Act of Parliament, so it cannot bring cases there.
What is a State organ under Article 260 of the Kenya Constitution?+
A State organ is a commission, office, agency, or other body that is established directly by the Constitution itself. For example, the Ethics and Anti-Corruption Commission is a State organ because Article 79 of the Constitution creates it. Bodies created only by Acts of Parliament do not qualify.
What happens if a body that is not a State organ tries to sue in Kenya's Supreme Court?+
The Supreme Court will dismiss the case for lack of jurisdiction. The Court cannot pretend the body is a State organ just to hear the case. The body must use other dispute resolution methods, such as those under Article 189 of the Constitution or the Intergovernmental Relations Act.
Can the Supreme Court choose not to hear a case even if it has jurisdiction in Kenya?+
Yes. The Supreme Court's power to give advisory opinions is discretionary. Even if a proper State organ brings a case, the Court can decide not to hear it if alternative dispute resolution methods are available and have not been tried first.
Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbogo t/a Sahara Consultants & 5 others v Assets Recovery Agency (Civil Appeal E221 of 2020) [2026] KECA 1534 (KLR)[2026] KECA 1534 (KLR)31 Jul 2026
- Legal Advice Centre t/a Kituo Cha Sheria v Attorney General[2024] KESC 15 (KLR)12 Apr 2024followed
- Indar Singh Limited v Star Times Media Co Limited (Environment & Land Case E052 of 2020) [2024] KEELC 525 (KLR)[2024] KEELC 525 (KLR)1 Feb 2024applied
- Senate & 3 others v Speaker of the National Assembly & 10 others[2023] KESC 95 (KLR)10 Nov 2023followed
- Jomo Kenyatta University of Agriculture and Technology v Kwanza Estate Limited (Civil Appeal 64 of 2022) [2023] KECA 700 (KLR)[2023] KECA 700 (KLR)16 Jun 2023
- Kenya Tea Growers Association & 97 others v Attorney General & 10 others (Petition 38, 34, 35, 49 & 50 of 2014 (Consolidated)) [2022] KEELRC 4124 (KLR)[2022] KEELRC 4124 (KLR)19 Sept 2022applied
- Speaker of the National Assembly & another v Senate & 12 others (Civil Appeal E084 of 2021) [2021] KECA 282 (KLR)[2021] KECA 282 (KLR)19 Nov 2021followed
- Nyandarua County Assembly Service Board & another v Nyandarua County Assembly & 7 others; John Kieru Wambui & another (Interested Parties) [2021] KEELRC 485 (KLR)[2021] KEELRC 485 (KLR)17 Nov 2021
Cite this brief
#Cite this brief
Caselaw, "Council of Governors v Attorney General & 7 others", Case Analysis (2019). Reference 2 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/92/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.