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Court of AppealPartially AllowedCivil Appeal 25 of 2000· [2000] KECA 20 (KLR)

NAROK COUNTY COUNCIL v TRANS MARA COUNTY COUNCIL (Civil Appeal 25 of 2000) [2000] KECA 20 (KLR)

Court of Appeal of Kenya
7 April 2000
EOE. O. O'Kubasu
1,905 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that county councils must use the statutory asset-distribution process before suing each other in the High Court.

What this practically means

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Executive summary

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This appeal arose from a dispute between Narok County Council and Trans Mara County Council over the distribution of assets and liabilities following the creation of Trans Mara County Council by Legal Notice No. 285 of 11th August 1994, carved out of Narok County Council. Trans Mara sued Narok and the Kenya Association of Tour Operators (the collector of game reserve entry fees) claiming entitlement to an equitable apportionment of assets, including KShs.69,362,400 in entry fees collected from its area of jurisdiction. Mbaluto J of the High Court at Kisii gave judgment in favour of Trans Mara on 4th June 1998, having earlier overruled a preliminary objection on jurisdiction. Allowing the appeal, O'Kubasu JA held that Section 270 of the Local Government Act (Cap 265) prescribes the method for distribution of assets and liabilities between local authorities: apportionment on a fair and equitable basis, either by agreement or, in default, as directed by the Minister. The Minister had appointed Commissions of Distribution of Assets and Liabilities by Gazette Notice No. 2183 of 2nd May 1997, whose work was incomplete. The parties were therefore bound to exhaust that statutory procedure before resorting to court. The High Court had no jurisdiction to entertain the dispute; the preliminary objection should have been upheld. The appeal was allowed with costs to the appellant in both courts.

Key legal issues

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01

Whether the High Court had jurisdiction over the dispute between the two county councils

Holding

The High Court had no jurisdiction to entertain the dispute because Section 270 of the Local Government Act prescribes the exclusive procedure for distribution of assets and liabilities between local authorities, which had to be exhausted before resort to court

Reasoning

Section 270(b) requires apportionment of rights, liabilities, property and assets between local authorities on a fair and equitable basis, either by agreement or as directed by the Minister. The Minister had in fact appointed Commissions of Distribution of Assets and Liabilities by Gazette Notice No. 2183 of 2nd May 1997, whose work was incomplete and unpublished. Since the law provides the procedure, the parties were bound to follow it before going to court; the preliminary objection on jurisdiction should have been upheld.

p. 5

Legal principles established

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  • Where a statute provides a specific procedure for the distribution of assets and liabilities between local authorities, the parties must follow that procedure before resorting to a court of law, and the High Court has no jurisdiction to entertain such a dispute in the interim
  • Distribution of assets and liabilities between local authorities carved out of one another must be on a fair and equitable basis, either as agreed between them or, in default of agreement, as directed by the Minister

Court orders

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  1. 1.Appeal allowed
  2. 2.Costs awarded to the appellant both in the Court of Appeal and in the superior court

Authorities

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Legislation

  • Local Government Act (Cap 265 Laws of Kenya)Section 5
  • Local Government Act (Cap 265 Laws of Kenya)Section 28
  • Local Government Act (Cap 265 Laws of Kenya)Section 29
  • Local Government Act (Cap 265 Laws of Kenya)Section 39
  • Local Government Act (Cap 265 Laws of Kenya)Section 269(1)(c)-(h)
  • Local Government Act (Cap 265 Laws of Kenya)Section 270 and 270(b)
  • Constitution of KenyaSection 60(1)
  • Legal Notice No. 285 - The Local Government (County Council of Trans Mara) Order, 1994Order
  • Gazette Notice No. 2183 of 2nd May 1997 - Appointment of Commissions of Distribution of Assets and Liabilities Among Local AuthoritiesNotice
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 17 of 1996
Jurisdiction invoked
Section 60(1) of the Constitution of Kenya (unlimited original jurisdiction of the High Court) considered against the statutory dispute-resolution mechanism in Section 270 of the Local Government Act (Cap 265)

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 (Civil Appeal 25 of 2000) [2000] KECA 20 (KLR)", Case Analysis (2000). Civil Appeal 25 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/20/eng@2000-04-07

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