Narok County Council v Trans Mara County Council & another (Civil Appeal 25 of 2000) [2000] KECA 35 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that disputes over splitting assets between county councils belong to the Minister, not the High Court, voiding a Shs.108 million award.
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 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, liabilities, property and assets between local authorities
- 3.Whether the High Court's unlimited original jurisdiction under section 60(1) of the former Constitution can be limited otherwise than by an express provision
Key legal issues
#Whether the High Court's jurisdiction under section 60(1) of the former Constitution can be limited by necessary implication
Yes. Section 60(1) confers not only unlimited original jurisdiction but also 'such other jurisdiction and powers as may be conferred on it by this Constitution or any other law', so other laws may confer or limit jurisdiction by express provision or by necessary implication.
The learned Judge relied on a dictum attributed to Miller v Miller that unlimited original jurisdiction can be ousted only by an express constitutional provision, but no such dictum exists in that decision. The Rent Restriction Act demonstrates that statutory tribunals can be given exclusive competence without express ouster words; the necessary implication limits the High Court's jurisdiction. The same logic applies to sections 269 and 270 of the Local Government Act.
Whether section 270 of the Local Government Act ousts the High Court's jurisdiction over apportionment of assets between local authorities
Yes. Apportionment of rights, liabilities, property and assets on a fair and equitable basis is committed to the local authorities concerned by agreement or, in default, to the Minister's direction; the High Court cannot usurp that function.
The Minister had in fact taken over the dispute, both by letter of 11th March 1996 and by Gazette Notice No. 2183 of 2nd May 1997 appointing a Commission of Distribution of Assets and Liabilities. The Judge himself had earlier observed that apportionment was outside the scope of the suit, yet his judgment apportioned the Maasai Mara entry fees in a 68:32 ratio, an act done without jurisdiction.
Effect of a judgment rendered without jurisdiction
A judgment delivered without jurisdiction is a nullity and must be set aside.
The Judge had ignored the Minister's statutory directions and the Gazette Notice, and had apportioned assets between the County Councils although the plaint sought only refund of monies collected from Trans Mara's area. Having embarked on a task reserved by statute to the local authorities and the Minister, the judgment was a nullity and the appeal had to be allowed.
Legal principles established
#- The unlimited original jurisdiction of the High Court in civil matters may be limited or ousted not only by express statutory words but also by necessary implication, where a statute confers a function on another authority or tribunal.
- Where the Local Government Act restricts apportionment of assets between local authorities to agreement between them or, failing agreement, direction by the Minister, the High Court's jurisdiction to undertake that apportionment is ousted; the High Court may only enforce implementation of the statutory scheme by judicial review.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the High Court dated 4th June 1998 is declared a nullity and set aside
- 3.Costs of the Narok County Council in the Court of Appeal and in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the former Constitution; the appeal challenged the jurisdiction of the High Court under section 60(1) of the former Constitution read with sections 269 and 270 of the Local Government Act
Relief refused
#Trans Mara County Council's claim for apportionment/refund of Maasai Mara entry fees by way of plaint
The High Court had no jurisdiction to apportion assets between the local authorities; that function lies with the local authorities and, in default of agreement, the Minister under section 270 of the Local Government Act
Costs
There will be costs for 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.
the necessary implication or inference is quite clear, that the unlimited original jurisdiction of the High Court in civil matters can be, and has been, limited by the Act.
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.
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.
Issues in the judgment
#The judgment is delivered in the first person by a single judge and the coram shows only one signature, although the Court of Appeal normally sits as a bench of three; the full panel composition cannot be verified from the text.
The text contains OCR-type corruptions, including in the final orders (e.g. '"Phere will be costs' for 'There will be costs') and in the arithmetic of the decretal sum in the excerpts from the High Court judgment (shs.108,769,577/10 versus shs.108,769,557/10).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Narok County Council v Trans Mara County Council & another (Civil Appeal 25 of 2000) [2000] KECA 35 (KLR)", Case Analysis (2000). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/35/eng@2000-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.