Council of Governors & 47 others v Attorney General & 6 others
The bottom line
#Supreme Court can advise on county revenue disputes even if similar cases are in lower courts.
What this practically means
#The Supreme Court ruled that it can give advisory opinions on matters affecting county governments, like revenue sharing, even when similar issues are already in the High Court. The Court said these issues are too important to wait for the normal court process. This decision allows county governments to seek urgent guidance from the highest court on key financial disputes with the national government.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the Reference for an advisory opinion.
- 2.Whether the Court should exercise its discretion to render an advisory opinion given the pending proceedings in the High Court.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(6) to entertain an advisory opinion reference from county governments on matters concerning county government.
The Court has jurisdiction because the applicants are county governments and the issues raised, such as the Division of Revenue Bill and release of equitable share, concern county governments.
The Court found that the 47 county governments are qualified applicants under Article 163(6). The reframed issues involve matters concerning county governments, including formulation of the Division of Revenue Bill, the reasonable period for release of equitable share, and the consequences of parliamentary impasse on revenue allocation. The Court relied on its earlier decision in Speaker of the Senate & another v Attorney-General & 4 others, where it held that a Division of Revenue Bill significantly impacts county governments.
Whether the Court should exercise its discretion to render an advisory opinion despite pending proceedings in the High Court on similar issues.
The Court exercised its discretion to render an opinion because the issues are of great public importance and require urgent resolution, despite some issues being replicated in pending High Court cases.
The Court acknowledged that four issues in the Reference are replicated in pending High Court petitions. However, it found that the Reference involves the division of revenue between the two levels of government, which is of general public importance. The Court noted that the issues cannot await the normal appeal mechanism and that the advisory opinion jurisdiction is an important avenue for settling matters of great public importance that may not be suitable for conventional justiciability.
Legal principles established
#- The Supreme Court's power to give advisory opinions is discretionary and used only for deserving matters.
- A matter concerns county government if it involves the Constitution, statute, or the Court's view of the function or relationship between national and county governments.
- The Court can issue an advisory opinion even if the same issue is in a lower court, if the matter is of great public importance and needs urgent resolution.
- County governments are qualified to ask the Supreme Court for an advisory opinion under Article 163(6) of the Constitution.
- Disputes over the Division of Revenue Bill and release of equitable share directly concern county governments.
- Issues of general public importance, like revenue division between national and county governments, cannot wait for the normal appeal process.
Court orders
#- 1.The preliminary objection dated 18th July, 2019 is hereby disallowed.
- 2.Direction on the specific issues to be addressed by parties in submissions shall be given by Deputy Registrar to the parties on 16th October 2019.
- 3.There shall be no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 163(6) of the Constitution
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.
The preliminary objection dated 18th July, 2019 is hereby disallowed.
There shall be no orders as to costs.
The exercise of this Court's jurisdiction in Article 163(6) of the Constitution is discretionary and only deserving matters will justify the exercise of such jurisdiction.
A matter qualifies to be regarded as one of county government only where: that is the case in the terms of the Constitution; it is the case in the terms of statute law; it is the case in the perception of the Court, in view of the function involved or the relation created as between the national government and its processes, on the one hand, and the county governments and their operations, on the other.
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the Issue is of great public importance is of greatpublic importance and requiring urgent resolution through an Advisory Opinion.
Key timeline
#Practical implications
#Use advisory opinions for urgent public issues
Lawyers representing county governments can now directly petition the Supreme Court for an advisory opinion on revenue allocation disputes, even if parallel High Court cases exist. To succeed, you must demonstrate the issue is of great public importance and cannot await normal appeals. This ruling provides a strategic shortcut for resolving constitutional deadlocks between national and county governments.
Revenue disputes may be resolved faster
Businesses that contract with county governments or rely on county services should note that the Supreme Court can now quickly clarify revenue-sharing rules. This reduces uncertainty around county budgets and payment timelines. If a revenue impasse arises, expect faster resolution through the advisory opinion route, which may stabilise the business environment for county-level projects and procurement.
County services could become more predictable
For ordinary Kenyans, this ruling means disputes over county funding can be resolved more quickly by the Supreme Court. When the national government delays releasing funds or Parliament fails to pass the revenue bill, county services like health and roads may suffer. The advisory opinion process offers a faster way to settle these fights, potentially leading to more reliable delivery of services in your county.
Frequently asked questions
#What is an advisory opinion in the Kenya Supreme Court?+
An advisory opinion is a formal legal opinion from the Supreme Court on a constitutional question, without a full trial. Under Article 163(6), the Court can give such opinions on matters concerning county government. It is a way to get quick guidance on important legal issues without waiting for a normal case to go through all courts.
Can county governments sue the national government in Kenya?+
Yes, county governments can sue the national government. They can also ask the Supreme Court for an advisory opinion on matters that concern county government, like revenue sharing. This ruling confirms that 47 county governments together can bring such a reference to the Supreme Court, even if similar cases are pending in the High Court.
What happens when Parliament fails to agree on the Division of Revenue Bill in Kenya?+
When the National Assembly and Senate cannot agree on the Division of Revenue Bill, it creates a deadlock that affects county funding. The Supreme Court can now give an advisory opinion on what should happen in such a situation. This ruling allows the Court to step in and provide guidance to resolve the impasse quickly.
How does the Supreme Court decide if a matter concerns county government in Kenya?+
The Supreme Court looks at whether the issue is about county government under the Constitution, a statute, or based on the function involved and the relationship between national and county governments. For example, the Division of Revenue Bill directly affects county finances, so it qualifies. The Court has broad discretion to decide what counts as a county government matter.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Senate & 3 others v Speaker of the National Assembly & 10 others[2025] KESC 11 (KLR)21 Mar 2025distinguished
- In the Matter of Speakers, County Assemblies of Nandi, Kericho & Meru Counties[2020] KESC 41 (KLR)4 Aug 2020
Cite this brief
#Cite this brief
Caselaw, "Council of Governors & 47 others v Attorney General & 6 others", Case Analysis (2019). Reference 3 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/65/eng@2019-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.