Council of Governors v Cabinet Secretary, Ministry of Lands Housing & National Planning & another (Civil Appeal 217 of 2018) [2023] KECA 760 (KLR)

The Court examined the prayers in the petition and found the real grievance was the appellant's exclusion from constituting the Boards: it sought exclusive power or, in the alternative, a shared power. That is a dispute between the two levels of government, not merely a question of statutory interpretation. Section 31 obliges both governments to exhaust ADR mechanisms before judicial proceedings, and section 35 makes judicial proceedings a last resort. The learned judge was therefore right to uphold the preliminary objection.

The Court traced the correspondence of May 9, 2016, in which the Council of Governors protested its exclusion and proposed engagement with the Ministry. Coupled with the alternative declarations sought in the petition, this showed the parties were fighting over the sharing of power. The framing of the grievance as a constitutional violation did not displace the character of the controversy as an intergovernmental dispute under the Act.

The Court restated the classic Selle principles: an appeal to that court is by way of retrial, requiring reconsideration of the evidence and independent conclusions, while making due allowance for the fact that the appellate court has neither seen nor heard the witnesses. This restatement framed its de novo evaluation of the learned judge's ruling upholding the preliminary objection.