Senate & 2 others v Council of County Governors & 7 others (Civil Appeal 200 of 2015) [2019] KECA 705 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed Parliament cannot change how county governments are structured without a referendum, striking down the County Development Boards law.
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 High Court Judges erred in declaring the County Government (Amendment) Act 2014 unconstitutional, null and void
- 2.Whether the Judges erred in not citing the particular Articles of the Constitution violated by the Amendment Act
- 3.Whether the Judges erred in not applying the correct methodology for determining constitutionality of a statute
- 4.Whether the Judges erred in finding the Amendment Act alters the structure of devolution by involving persons and officers from the other level of government
- 5.Whether the Judges erred in construing Article 2 (2) of the Constitution to mean that if a power is granted to a specific organ, no other entity can lawfully exercise that power
- 6.Whether the Judges erred in finding Sections 91A and 91B contravene the oversight role of the Senate and the functional integrity of county governments
- 7.Whether courts have jurisdiction to question Parliament's exercise of legislative power
- 8.Whether the Judges erred in holding Section 13A of the Government Proceedings Act inconsistent with Article 48 of the Constitution
- 9.Whether a constitutional petition is a civil proceeding subject to Section 12 (1) of the Government Proceedings Act
Key legal issues
#Whether the County Government (Amendment) Act 2014 alters the structure of devolved government contrary to Article 255 (1) (i)
Sections 91A and 91B alter the structure of devolved government; absent a referendum, the Act is unconstitutional, null and void.
The court enumerated the constitutional Articles embodying the structure of devolution (Articles 1, 6 (2), 176 (1), 179, 185 (1), 189 (1) and 255 (1) (i)) and appraised the composition and functions of the CDB against them. Making the Senator chairperson, the governor vice-chairperson, and requiring county plans and budgets to pass through the Board before the county assembly impermissibly alters the devolved hierarchy and structure. Article 255 (1) (i) requires a referendum for such alteration, and none was held.
Whether the composition of the CDB violates Articles 176 (1), 179 (4) and 179 (6)
Section 91A (1) (a), (b), (c) and (l) violate the structure of devolved government and the doctrine of separation of powers.
Senators, Members of the National Assembly, the woman member and the County Commissioner are not part of the structure of county government under Article 176 (1). Making the governor vice-chairperson under a Senator alters the hierarchical structure established by Article 179 (4). It is unconstitutional for persons outside the county government to be members of a decision-making body in county government or to preside over county matters.
Whether the functions of the CDB violate the functional integrity of county governments
Sections 91A (2) and 91B are unconstitutional for imposing fetters on the county executive committee and county assembly.
Requiring county development plans and annual budgets to be tabled before the CDB before consideration by the county assembly restricts the functional independence of the county assembly under Article 185 (1) and the executive authority of the county under Article 179. Section 91C's penal sanction transforms the Board into a decision-making organ, compounding the violation. The court found the High Court Judges did not err in this respect.
Whether a constitutional petition is subject to Sections 12 (1) and 13A of the Government Proceedings Act
A constitutional petition is not civil proceedings mandatorily subject to the GPA; it is sui generis, and the 30-day notice requirement is an impediment to access to justice under Article 48.
Under Article 22 (3) and (4) constitutional petitions have their own procedure and framework distinct from ordinary civil procedure. Endorsing the High Court decisions, the court held that Section 13A's notice requirement imposes hurdles on access to justice, and that non-citation or misjoinder of the Attorney General cannot defeat a petition, Rule 5 (b) of the Mutunga Rules notwithstanding.
Whether Article 2 (2) forbids any other entity from exercising a power granted to a specific organ
The proposition is a general rule subject to exceptions such as delegation; the Constitution adopts checks and balances, not puritan separation of powers.
Relying on comparative Indian jurisprudence and on this Court's earlier decision that it is not unconstitutional for the national government to perform functions inside county administrative structures, the court held that separation of powers is not absolute. However, the Constitution does not contemplate assumption by one organ of functions essentially belonging to another, and on the facts the CDB's coercive mandate crossed that line.
Legal principles established
#- Parliament cannot alter the structure of devolved government through an ordinary Act of Parliament; such alteration requires a referendum under Article 255 (1) (i).
- It is unconstitutional for a person who is not a member of the county government to preside over county matters; the governor cannot be made subordinate to a Senator.
- A constitutional petition is not civil proceedings mandatorily subject to the Government Proceedings Act; it is a sui generis procedure immune from procedural fetters to access to justice.
- Kenya is a devolved unitary, not a federal, state; county governments are semi-autonomous parts of a unitary State.
- The rule in Article 2 (2) that a power granted to a specific organ cannot be exercised by another is a general rule subject to exceptions such as delegation; the Constitution embraces checks and balances rather than puritan separation of powers.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear its own costs in this appeal and the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. 381 of 2014
- Jurisdiction invoked
- First appeal from the High Court exercising jurisdiction under Article 165 of the Constitution (constitutional petition challenging the constitutionality of an Act of Parliament)
- Consolidated with
- Constitutional Petition No. 430 of 2014 (consolidated with the High Court suit appealed from)
Relief refused
#Declaration that the County Government (Amendment) Act 2014 is constitutional
The Amendment Act alters the structure of devolved government and violates Articles 179, 185, 189 (1) and 255 (1) (i) without a referendum
Costs
Each party is to bear its own costs in this appeal and the court below.
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.
Parliament cannot lawfully alter the structure of devolved government through an Act of Parliament without a referendum. Accordingly, the Amendment Act is unconstitutional, null and void as the procedure for altering the structure of devolved county government as stated in Article 255 (1) (i) was not followed.
The upshot of our consideration of the grounds of appeal, submissions by counsel, authorities cited and applicable law is that this appeal has no merit and is hereby dismissed. Each party is to bear its own costs in this appeal and the court below.
To the extent that Sections 91A (2) and 91B enact and impose functional restrictions on the county executive and county assembly, the said sections are unconstitutional, null and void.
In the absence of express constitutional provision or authorization by the county government, it is unconstitutional for a person who is not a member of the county government to preside over county matters.
It is a procedure sui generis and we would be slow to admit to any procedural fetters and hurdles to access to justice in matters constitutional.
we restate and affirm the decision of this Court in National Assembly of Kenya & another -v- Institute of Social Accountability & 6 others [2017] eKLR
Issues in the judgment
#The coram lists S. Gatembu Kairu with the designation 'FCIArb' appended to his name in the signature block; recorded as surname Kairu per instructions.
The judgment cites Article '225 (1) (i)' of the Constitution when the context (referendum for altering devolution structure) indicates Article 255 (1) (i).
The judgment refers to 'Article 85 (3)' and 'Article 179 (4)' in the list of provisions allegedly violated at the pleading stage, with Article 85 (3) apparently a misstatement, and refers to 'The Constitute does not contemplate such subservience of Governors to Senators'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Senate & 2 others v Council of County Governors & 7 others (Civil Appeal 200 of 2015) [2019] KECA 705 (KLR)", Case Analysis (2019). Civil Appeal No. 200 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/705/eng@2019-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.