NAROK COUNTY COUNCIL v TRANS MARA COUNTY COUNCIL & ANOTHER [2000] KECA 10 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that disputes over splitting assets between county councils belong to the councils and the Minister, not the High Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge of the High Court had jurisdiction to hear and determine the suit apportioning assets between the two county councils
- 2.Whether section 270 of the Local Government Act, read with section 269, ousts the jurisdiction of the High Court to apportion rights, property and assets between local authorities
- 3.Whether the unlimited original jurisdiction of the High Court under section 60(1) of the Constitution can be limited by other written law
Key legal issues
#Whether section 60(1) of the Constitution confers absolutely unlimited original civil jurisdiction on the High Court
No - jurisdiction may be conferred or limited by the Constitution or any other law, expressly or by necessary implication.
The learned Judge relied only on the opening limb of section 60(1) and ignored the concluding words conferring 'such other jurisdiction and powers as may be conferred on it by this Constitution or any other law'. The Rent Restriction Act example shows that statutory schemes can limit High Court jurisdiction by necessary implication without express ouster.
Whether section 270 of the Local Government Act ousts High Court jurisdiction over apportionment of assets between councils
Yes - apportionment is for the local authorities by agreement, and failing that, for the Minister; the High Court cannot usurp that function.
Section 270(b) read with section 269 requires apportionment on a fair and equitable basis as agreed between the local authorities or, in default, as directed by the Minister. The Minister had in fact taken over the dispute and appointed a Commission of Distribution of Assets and Liabilities, which the learned Judge ignored.
Effect of the High Court judgment delivered without jurisdiction
The judgment is a nullity and was set aside.
Having embarked on the apportionment of Maasai Mara entry fees between the two councils, a task outside its jurisdiction, the judgment of 4th June 1998 could not stand and was declared a nullity.
Legal principles established
#- The unlimited original jurisdiction of the High Court in civil matters can be limited or ousted by other written law, expressly or by necessary implication, not only by the Constitution.
- Where the Local Government Act reserves apportionment of assets between local authorities to the authorities themselves and, failing agreement, to the Minister, the High Court's jurisdiction to undertake that apportionment is ousted; its role is limited to judicial review of the statutory process.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the High Court declared a nullity and set aside
- 3.Costs of the appeal and of the High Court suit awarded to the Narok County Council
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment of the court holding that the High Court lacked jurisdiction to apportion assets between the two county councils, that function being reserved by sections 269 and 270 of the Local Government Act to the local authorities and, in default of agreement, to the Minister.
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C. No. 17 of 1996
- Jurisdiction invoked
- Appeal to the Court of Appeal under the Constitution/Local Government Act dispute; the judgment itself does not state the appellate provision
Relief refused
#Trans Mara County Council's claim for apportionment/refund of Maasai Mara entry fees
The High Court had no jurisdiction; apportionment is for the local authorities and, failing agreement, the Minister under section 270 of the Local Government Act
Costs
Costs to the Narok County Council in this Court and in the High Court
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.
I would, for the reasons set out herein above, allow the appeal, declare the judgment of the learned Judge to be a nullity, and set it aside.
Phere will be costs for the Narok County Council in this Court and in the High Court.
Similarly, where the Local Government Act restricts the apportionment of assets to the local authorities concerned and failing which, to the Minister for Local Government , the jurisdiction of the High Court itself, to undertake such action is ousted.
All that the High Court could do in this respect, is to enforce by way of judicial review proceedings, the implementation of the provisions of the section 270 of the Local Government Act; certainly not, in this case, to usurp the powers of the Minister for Local Government.
Clearly the root problem between the parties herein is that of apportionment of the assets of the former Narok County Council but that task is outside the scope of this suit.
Issues in the judgment
#The judgment quotes a dictum attributed to Miller v Miller by the High Court which this Court states does not exist in the actual Miller v Miller judgment
Typographical error in the costs order ('Phere will be costs')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NAROK COUNTY COUNCIL v TRANS MARA COUNTY COUNCIL & ANOTHER [2000] KECA 10 (KLR)", Case Analysis (2000). Civil Appeal 25 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/10/eng@2000-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.