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Court of AppealPartially AllowedCivil Appeal 25 of 2000· [2000] KECA 30 (KLR)

Narok County Council v Trans Mara County Council Kenya Association of Tour Operators

Court of Appeal of Kenya
7 April 2000
1,637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~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.

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
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

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 Kenya Association of Tour Operators", 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.