Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPetition dated 29th May, 2016

Council of County Governors v Cabinet Secretary Land, Housing & Urban Development & another [2017] KEELC 432 (KLR)

Environment and Land Court
8 December 2017
4,039 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The petitioner, a body representing county governments, filed a petition dated 29th May 2016 alleging that the 1st respondent, a National Government official, violated the Constitution by dissolving and reconstituting all Land Control Boards in April and May 2016 without consulting the county governments. The petitioner contended that the Land Control Act, Cap 302, is a carryover from the old Constitution, incompatible with devolution, and that regulation of transactions in agricultural land is a devolved function under the Fourth Schedule. It sought declarations that regulation of agricultural land transactions is an exclusive county function and that sections 5 and 6 of the Land Control Act, or the Act in its entirety, are inconsistent with the Constitution. The respondents filed a preliminary objection contending that the petition contravened Articles 189(3) and (4) of the Constitution and sections 31 and 35 of the Intergovernmental Relations Act, 2012, because the petitioner failed to exhaust the intergovernmental dispute resolution mechanisms before resorting to court. The court agreed, holding that the dispute fell within section 30(1) of the Act and that the petitioner should have formally declared a dispute under section 33(2) after its informal overtures were ignored. The court declined to dismiss the petition as frivolous but found it premature. The preliminary objection succeeded: the petition was stayed for one year to allow the petitioner to invoke the statutory dispute resolution machinery, failing which it would stand dismissed, with each party bearing its own costs of the preliminary objection.

Questions the Court framed

#

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

  1. 1.Whether the dispute between the petitioner and the 1st respondent is an intergovernmental dispute within section 30(1) of the Intergovernmental Relations Act, 2012
  2. 2.Whether the petitioner was required, under Article 189(3) and (4) of the Constitution and sections 31-35 of the Intergovernmental Relations Act, to exhaust the intergovernmental dispute resolution mechanisms before instituting judicial proceedings
  3. 3.Whether the petition, having been filed without exhausting those mechanisms, is premature and whether it should be dismissed as an abuse of court process or stayed

Key legal issues

#
01

Whether the dispute over the reconstitution of Land Control Boards is an intergovernmental dispute under the Intergovernmental Relations Act

Holding

Yes - the dispute is between the County Governments and the National Government and falls within section 30(1) of the Act

Reasoning

The court found the dispute arose from the alleged failure by the National Government to consult County Governments while reconstituting Land Control Boards, and the core issue was whether the boards' functions are devolved. Applying Wakiaga J's definition of an intergovernmental dispute (borrowed from the South African Intergovernmental Relations Framework Act 2005), the court concluded the dispute satisfied the criteria of a legal, justiciable disagreement between organs of state at different levels arising from assigned statutory functions.

p. 6
02

Whether the petitioner was obliged to exhaust the dispute resolution mechanism before coming to court

Holding

Yes - Article 189(3) and (4) of the Constitution and sections 31-35 of the Intergovernmental Relations Act make judicial proceedings a last resort, and the petitioner had not formally declared a dispute under section 33(2)

Reasoning

The court reproduced Articles 189(3) and (4) and sections 31-35 of the Act, and relied on Court of Appeal and High Court authority holding that the constitutional and legislative intent was that intergovernmental disputes be resolved amicably through negotiation, mediation or arbitration before litigation. The petitioner's letter to the 1st respondent was insufficient; it should have formally declared a dispute and referred it to the Summit or Council.

p. 7
03

Whether the petition is frivolous and an abuse of court process

Holding

No - the petition is not frivolous; the appropriate order is a stay rather than dismissal

Reasoning

While the respondents urged dismissal as an abuse of process, the court held the petition raises arguable issues and the petitioner retains recourse to the court should the alternative dispute resolution mechanism fail. A stay for one year, rather than outright dismissal, preserves the petitioner's access to the court while enforcing the statutory exhaustion requirement.

p. 7

Legal principles established

#
  • Disputes between the National and County Governments must first be subjected to the alternative dispute resolution mechanisms under the Intergovernmental Relations Act before judicial proceedings are instituted; judicial proceedings are a last resort
  • Mere informal overtures to the other level of government do not satisfy the statutory mechanism; a party must formally declare a dispute under section 33(2) of the Act before claiming the other party is uncooperative

Court orders

#
  1. 1.The respondents' preliminary objection succeeds
  2. 2.The petition is stayed for a period of one (1) year from the date of the ruling, within which the petitioner shall set in motion the dispute resolution mechanism under the Intergovernmental Relations Act if it still wishes to pursue the dispute
  3. 3.In the event no steps are taken under the Act within one year, or the dispute is resolved to the satisfaction of the parties, the petition shall stand dismissed
  4. 4.Each party shall bear its own costs of the preliminary objection

The bench

#

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution (cited by the petitioner) - the petition was decided on a preliminary objection rather than on the merits

Relief refused

#

Petitioner's request to have the petition heard and determined on the merits (declarations on the constitutionality of the Land Control Act and the devolution of agricultural land regulation)

The petition was filed prematurely without first exhausting the intergovernmental dispute resolution mechanism under the Intergovernmental Relations Act; proceedings stayed for one year to allow that mechanism to be used

p. 7

Costs

Each party shall bear its own costs of the preliminary objection; in the event the petition stands dismissed, it is to be dismissed with each party bearing its own 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.

In conclusion, the respondents' preliminary objection succeeds. This petition is stayed for a period of one (1) year from the date hereof within which the petitioner shall set in motion the dispute resolution mechanism set out under the Act in case it still wishes to pursue the dispute.
p. 8Final orders - stay of petition
In the event that no steps are taken under the Act to resolve the dispute with one (1) year from the date hereof or the dispute is resolved to the satisfaction of the parties, this petition shall stand dismissed with each party bearing its own costs. Each party shall bear its own costs of the preliminary objection.
p. 8Final orders - deemed dismissal and costs
I am in agreement with the respondents that the dispute that led to the filing of this petition falls within section 30(1) of the Act and as such should have been subjected to the dispute resolution mechanism provided in the Act.
p. 6Characterisation of the dispute as intergovernmental
If the petitioner had approached the 1st respondent with a view to resolve the dispute and the 1st respondent showed no interest, the petitioner was supposed to invoke the dispute resolution mechanism in the Act by declaring a dispute and having it resolved through the machinery provided in the said Act.
p. 7Exhaustion requirement

Issues in the judgment

#
minor

The respondents' written submissions are stated to be dated 12th April, 2016, which predates their notice of preliminary objection dated 9th December, 2016 - an apparent internal date inconsistency

minor

The document is a ruling on a preliminary objection rather than a final judgment on the petition, though the case is presented as a judgment

minor

The full names of the parties are not set out in the reproduced text; only 'the petitioner' and 'the respondents' are used, limiting precise party identification

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Council of County Governors v Cabinet Secretary Land, Housing & Urban Development & another [2017] KEELC 432 (KLR)", Case Analysis (2017). Petition dated 29th May, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/432/eng@2017-12-08

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