Narok County Council v 1. Trans Mara County Council 2. Kenya Association of Tour Operators

The judge below relied on a dictum attributed to Miller v Miller that the unlimited original jurisdiction of the High Court can be ousted only by an express constitutional provision, but this Court records that no such dictum exists in its judgment in that appeal. Section 60(1) itself defines the High Court's jurisdiction to include such other jurisdiction and powers as may be conferred by the Constitution or any other law. The Rent Restriction Act illustrates limitation by necessary implication: tribunal jurisdiction, appeals only in specified cases and a bar on parallel court proceedings restrict the High Court's jurisdiction without express ouster.

Section 270(b) read with section 269 requires that, where part of a local government area becomes the area of another authority, matters such as fees be apportioned between the local authorities concerned on a fair and equitable basis, as agreed between them or, in default of agreement, as directed by the Minister. Although neither the authorities nor the Minister exercises judicial power, they are the organs mandatorily required to act. A High Court judge who undertakes the apportionment himself usurps the Minister's powers; the proper course for the court is judicial review of the implementation of the statutory scheme.

Gazette Notice No. 2183 of 2nd May 1997, made under section 270, appointed a Commission of Distribution of Assets and Liabilities between the two councils, and the Minister's letter of 11th March 1996 stated that, in default of amicable agreement, he had taken over the dispute and that directions would issue in due course. Both documents were drawn to the judge's attention but ignored. The Court holds that the suit had been overtaken by events and that the judge's assumption of the apportionment task was what he was not entitled to do.

Because the judge, in his judgment of 4th June 1998, apportioned the revenue from Maasai Mara Game Reserve entry fees between the two councils in the ratio 68:32 and awarded Trans Mara Kshs 108,769,557/10 with costs and interest, he did what he had no jurisdiction to embark upon. A judgment rendered without jurisdiction is a nullity: the appeal was allowed, the judgment was declared a nullity and set aside, with costs to the appellant in this Court and in the High Court.