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Court of AppealPartially AllowedCivil Appeal 25 of 2000

Narok County Council v Trans Mara County Council & another [2000] KECA 30 (KLR)

Court of Appeal of Kenya
7 April 2000
1,637 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that disputes a statute assigns to a Minister must go through that process first, and courts can only intervene by judicial review.

What this practically means

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Executive summary

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The Minister for Local Government, by the Local Government (County Council of Trans Mara) Order 1994 made under Sections 5, 28 and 399 of the Local Government Act (Cap 265), created Trans Mara County Council out of Narok County Council. The two councils could not agree on the apportionment of entry fees collected from five lodges in the Masai Mara area, which the Kenya Association of Tour Operators collected on behalf of Narok. Section 270(b) of the Act required apportionment in default of agreement to be made as directed by the Minister. Trans Mara sued Narok and the Association in the High Court seeking declarations, entry fees, injunctions, refunds and damages. Mbaluto J dismissed Narok's preliminary objection that the suit was incompetent for non-compliance with Section 270, holding that the High Court's unlimited jurisdiction under Section 60 of the Constitution had not been ousted. The Court of Appeal (Kwach, Akiwumi and O'Kubasu JJ.A) allowed Narok's appeal. It held that where a statute directs that a disagreement be resolved by a ministerial direction, the High Court's jurisdiction arises only if the Minister refuses to act or acts grossly unfairly or perversely, in which case the remedy is judicial review by mandamus or certiorari, not an ordinary suit. The Minister's refusal to act conferred no right on Trans Mara to sue Narok. The Court set aside the High Court judgment, struck out the suit as a nullity, and awarded costs to Narok and the Association in the suit and to Narok on appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court had jurisdiction to entertain Trans Mara's suit for apportionment of assets where Section 270(b) of the Local Government Act directs that apportionment in default of agreement be made as directed by the Minister
  2. 2.Whether the proper remedy for a local authority aggrieved by the Minister's refusal or neglect to direct the apportionment was an application for mandamus by way of judicial review rather than an ordinary suit

Key legal issues

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01

Whether Section 270 of the Local Government Act ousts the High Court's jurisdiction

Holding

The High Court's jurisdiction was not ousted outright, but it could only be invoked where the Minister refused to give a direction or made a grossly unfair or perverse one; until then, the statutory scheme excluded an ordinary suit between the councils.

Reasoning

Section 270(b) provides that apportionment in default of agreement shall be made as directed by the Minister. Because the statute expressly channels disagreement to the Minister, the High Court's role is supervisory only, by way of judicial review. The learned judge below erred in treating Section 60's unlimited jurisdiction as conferring power to decide a matter the statute had assigned to the Minister as part of his statutory duty.

p. 2
02

The proper remedy for the Minister's failure to direct the apportionment

Holding

The only remedy available to Trans Mara was an application for an order of mandamus compelling the Minister to perform his statutory duty, in the High Court's judicial review jurisdiction.

Reasoning

The Minister was under a statutory duty to direct the apportionment in default of agreement. His refusal or neglect to act could not confer a right on Trans Mara to sue Narok; Narok's refusal to agree could only give rise to a ministerial directive. The court also noted that a commission had been appointed by a new Minister to deal with the distribution of assets, a development not addressed by the learned judge.

p. 3

Legal principles established

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  • Where a statute directs that a dispute be resolved by a ministerial direction in default of agreement, the High Court's jurisdiction is only invoked if the Minister refuses to give a direction or arrives at a grossly unfair or perverse decision, and the remedy is judicial review (mandamus or certiorari), not an ordinary suit between the local authorities.
  • A party's failure or refusal to perform a statutory step that precedes a ministerial direction cannot found a private law suit against the other party; the aggrieved party must seek an order of mandamus to compel the statutory actor.
  • Proceedings conducted by a court without jurisdiction are a nullity and the suit should be struck out as incompetent.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of Mbaluto J set aside
  3. 3.Suit filed by Trans Mara struck out
  4. 4.Costs of the suit to Narok and the Association
  5. 5.Costs of the appeal to Narok; the Association, not having appeared, not entitled to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 17 of 1996
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution; appeal against dismissal of a preliminary objection on jurisdiction

Relief refused

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Trans Mara's claim to a declaration and entry fees collected from the five lodges in the ordinary suit

The High Court lacked jurisdiction; the statutory scheme required a ministerial direction, and the remedy for the Minister's refusal was mandamus

p. 3

Costs

Costs of the suit to Narok and the Association; costs of the appeal to Narok; the Association, having not appeared, not entitled to an order for costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It seems to me to be plain beyond argument that the jurisdiction of the High Court can only be invoked if the Minister (as in the present case) refuses to give a direction or in purporting to do so, arrives at a decision which is grossly unfair or perverse.
p. 3Jurisdiction under a statutory scheme channeling disputes to a ministerial direction
Having refused or neglected to act, an application should have been made to the High Court by either party for an order of mandamus to compel the Minister to perform his statutory duty.
p. 3Mandamus as the proper remedy for a minister's failure to perform a statutory duty
I would allow this appeal, set aside the judgment and decree of Mbaluto J and substitute therefor an order striking out the suit filed by Trans Mara with costs to Narok and the Association.
p. 3Disposition - appeal allowed, suit struck out

Issues in the judgment

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minor

The plaint date for collection of fees is noted in the judgment as erroneously stated as 4.8.94 instead of 11.8.94

minor

The judgment records a hearing date (2.5.97) that precedes the stated start of hearing (28.10.97), an internal chronological inconsistency

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Narok County Council v Trans Mara County Council & another [2000] KECA 30 (KLR)", Case Analysis (2000). Civil Appeal 25 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/30/eng@2000-04-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.