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Court of AppealDismissedCivil Appeal No. 362 of 2014· [2020] KECA 627 (KLR)

Okiya Omtatah Okoiti & another v Attorney General & 6 others [2020] KECA 627 (KLR)

Court of Appeal
22 May 2020
Martha Karambu KoomeM. K. KoomeHOHannah OkwenguSKS. ole Kantai
13,086 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~52 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed counties legitimately took over Level 2-5 hospitals: the Constitution transfers functions, not ownership of land or assets.

What this practically means

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Executive summary

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This was a first appeal from the High Court (Lenaola, J.) dismissing a constitutional petition by Okiya Omtatah Okoiti and Wycliffe Gisebe Nyakina challenging Legal Notices Nos. 137-182 of 9th August 2013, by which the Transition Authority transferred health functions, including Level 2 to 5 health facilities, from the national government to the 47 county governments. The appellants contended that 'national referral health facilities' under Section 23, Part 1 of the Fourth Schedule embraces all public hospitals from Level 2 to Level 6, that county health facilities mean only those formerly run by local authorities, and that the notices were unconstitutional and effected an unlawful transfer of national assets including land. The Court of Appeal framed two main issues: the interpretation of 'national referral health facilities' and 'county health facilities and pharmacies', and whether the Legal Notices violated the Fourth Schedule. It affirmed the High Court's jurisdiction under Article 165(3)(d) to interpret the Fourth Schedule, but held that the Schedule distributes functions and powers rather than assets; that 'national referral health facilities' is a function and power, not an asset; and that ownership of public land is a separate constitutional concept that could not be transferred by the notices. It agreed that classification of hospitals into levels is a policy matter not found in the Constitution, later addressed by the Health Act, 2017, and found the transfer process was preceded by meaningful consultation and public participation. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Meaning of 'national referral health facilities' and 'county health facilities and pharmacies' in the Fourth Schedule

Holding

The Schedule distributes functions and powers, not assets; no constitutional definition of national referral health facilities exists and the appellants' broad interpretation does not flow from the Schedule

Reasoning

The Court analysed Articles 185(2), 186(1) and 187 and distinguished 'functions' (activities delivering public services) from 'powers' (authority exercised through legislation or directions). It held the Fourth Schedule assigns functions and powers, not assets, and that the Constitution never classified hospitals into levels, that being a policy matter subsequently addressed by the Health Act, 2017.

p. 13
02

Whether the Legal Notices transferred ownership of land occupied by hospitals

Holding

No. Ownership is a separate concept from functions and powers; land occupied by health facilities is public land dealt with under Chapter Five of the Constitution

Reasoning

Relying on Black's Law Dictionary and Articles 61, 62 and 187, the Court held that ownership of land is a distinct concept from the transfer of functions and powers. The impugned Legal Notices transferred only functions and powers; ownership of public land cannot arise in such a transfer, as the constitutional procedure for dealing with public land is entirely different.

p. 13
03

Whether classification of hospitals is a justiciable issue or a matter of policy

Holding

Classification is a policy function tied to the national referral health facilities function, to be undertaken by the National Government in consultation and with public participation

Reasoning

The Court agreed with the High Court that neither the Constitution nor the Fourth Schedule classifies hospitals into levels. It took judicial notice of the Health Act, 2017, enacted during the pendency of the appeal, which classifies levels 1 to 6 of health care delivery, confirming that classification is legislative and policy driven rather than a matter of constitutional interpretation.

p. 14
04

Whether the transfer of functions was carried out with adequate consultation and public participation

Holding

Yes; the affidavits of the Transition Authority demonstrated extensive consultation before the Legal Notices were issued

Reasoning

The Court applied the public participation principle drawn from In the Matter of the National Land Commission and held that the Transition Authority consulted county governments, health professionals, relevant bodies and the public. Broad constitutional assignment of functions was intentional, paving the way for consultation and compromise during transfer, consistent with Articles 6(1), 174 and 189(1).

p. 14

Legal principles established

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  • The High Court has jurisdiction under Article 165(3)(d) to interpret the Fourth Schedule to the Constitution, including questions relating to the constitutional relationship between levels of government
  • Under the Fourth Schedule, 'national referral health facilities' is a function and power of the National Government, not an asset; the transfer of functions and powers between levels of government does not transfer ownership of public land on which facilities stand
  • The classification of hospitals into levels is not provided for in the Constitution or the Fourth Schedule and is a policy matter reserved to the National Government; it has since been addressed by the Health Act, 2017
  • Transfer of functions must be accompanied by meaningful consultation and public participation between the two levels of government, and such participation suffices even where some parties are dissatisfied with the outcome

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party shall bear their own costs in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(4), 6, 10(2), 20(4), 61, 62, 165(3)(d), 174, 175, 185(2), 186, 187, 189, 190(3), 217(1), 255, 256, 257, 258(1), 259(1)
  • Constitution of Kenya, 2010Fourth Schedule, Part 1 Sections 23, 28; Part 2 Section 2
  • Constitution of Kenya, 2010Sixth Schedule, Sections 15, 16
  • National Government Coordination ActSection 21
  • Inter-governmental Relations ActSections 24 to 28, 30-35
  • Transition to Devolved Government Act, 2012Sections 23, 24, 35(2)
  • County Governments ActSections 5(2)(e), 21
  • Local Government Act(repealed)
  • Health Act, No. 21 of 2017First Schedule

Cases cited (4)

  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2000] 2 EA 212
  • In Re: The Matter of the Interim Independent Electoral Commission
    [2011] eKLR
  • S. V Acheson
    1991 (2) S.A. 205
  • In the Matter of the National Land Commission
    [2015] eKLR
On appeal from
High Court of Kenya at Nairobi
Constitution Petition No. 593 of 2013
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction; the High Court's jurisdiction arose under Article 165(3)(d) of the Constitution

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, "Okiya Omtatah Okoiti & another v Attorney General & 6 others [2020] KECA 627 (KLR)", Case Analysis (2020). Civil Appeal No. 362 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/627/eng@2020-05-22

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