Council of County Governors v Cabinet Secretary Land, Housing & Urban Development & another [2017] KEELC 432 (KLR)
The bottom line
#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 dispute between the petitioner and the 1st respondent is an intergovernmental dispute within section 30(1) of the Intergovernmental Relations Act, 2012
- 2.Whether the petitioner was required, under Article 189(3) and (4) of the Constitution and sections 31-35 of the Intergovernmental Relations Act, to exhaust the intergovernmental dispute resolution mechanisms before instituting judicial proceedings
- 3.Whether the petition, having been filed without exhausting those mechanisms, is premature and whether it should be dismissed as an abuse of court process or stayed
Key legal issues
#Whether the dispute over the reconstitution of Land Control Boards is an intergovernmental dispute under the Intergovernmental Relations Act
Yes - the dispute is between the County Governments and the National Government and falls within section 30(1) of the Act
The court found the dispute arose from the alleged failure by the National Government to consult County Governments while reconstituting Land Control Boards, and the core issue was whether the boards' functions are devolved. Applying Wakiaga J's definition of an intergovernmental dispute (borrowed from the South African Intergovernmental Relations Framework Act 2005), the court concluded the dispute satisfied the criteria of a legal, justiciable disagreement between organs of state at different levels arising from assigned statutory functions.
Whether the petitioner was obliged to exhaust the dispute resolution mechanism before coming to court
Yes - Article 189(3) and (4) of the Constitution and sections 31-35 of the Intergovernmental Relations Act make judicial proceedings a last resort, and the petitioner had not formally declared a dispute under section 33(2)
The court reproduced Articles 189(3) and (4) and sections 31-35 of the Act, and relied on Court of Appeal and High Court authority holding that the constitutional and legislative intent was that intergovernmental disputes be resolved amicably through negotiation, mediation or arbitration before litigation. The petitioner's letter to the 1st respondent was insufficient; it should have formally declared a dispute and referred it to the Summit or Council.
Whether the petition is frivolous and an abuse of court process
No - the petition is not frivolous; the appropriate order is a stay rather than dismissal
While the respondents urged dismissal as an abuse of process, the court held the petition raises arguable issues and the petitioner retains recourse to the court should the alternative dispute resolution mechanism fail. A stay for one year, rather than outright dismissal, preserves the petitioner's access to the court while enforcing the statutory exhaustion requirement.
Legal principles established
#- Disputes between the National and County Governments must first be subjected to the alternative dispute resolution mechanisms under the Intergovernmental Relations Act before judicial proceedings are instituted; judicial proceedings are a last resort
- Mere informal overtures to the other level of government do not satisfy the statutory mechanism; a party must formally declare a dispute under section 33(2) of the Act before claiming the other party is uncooperative
Court orders
#- 1.The respondents' preliminary objection succeeds
- 2.The petition is stayed for a period of one (1) year from the date of the ruling, within which the petitioner shall set in motion the dispute resolution mechanism under the Intergovernmental Relations Act if it still wishes to pursue the dispute
- 3.In the event no steps are taken under the Act within one year, or the dispute is resolved to the satisfaction of the parties, the petition shall stand dismissed
- 4.Each party shall bear its own costs of the preliminary objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (cited by the petitioner) - the petition was decided on a preliminary objection rather than on the merits
Relief refused
#Petitioner's request to have the petition heard and determined on the merits (declarations on the constitutionality of the Land Control Act and the devolution of agricultural land regulation)
The petition was filed prematurely without first exhausting the intergovernmental dispute resolution mechanism under the Intergovernmental Relations Act; proceedings stayed for one year to allow that mechanism to be used
Costs
Each party shall bear its own costs of the preliminary objection; in the event the petition stands dismissed, it is to be dismissed with each party bearing its own costs
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.
In conclusion, the respondents' preliminary objection succeeds. This petition is stayed for a period of one (1) year from the date hereof within which the petitioner shall set in motion the dispute resolution mechanism set out under the Act in case it still wishes to pursue the dispute.
In the event that no steps are taken under the Act to resolve the dispute with one (1) year from the date hereof or the dispute is resolved to the satisfaction of the parties, this petition shall stand dismissed with each party bearing its own costs. Each party shall bear its own costs of the preliminary objection.
I am in agreement with the respondents that the dispute that led to the filing of this petition falls within section 30(1) of the Act and as such should have been subjected to the dispute resolution mechanism provided in the Act.
If the petitioner had approached the 1st respondent with a view to resolve the dispute and the 1st respondent showed no interest, the petitioner was supposed to invoke the dispute resolution mechanism in the Act by declaring a dispute and having it resolved through the machinery provided in the said Act.
Issues in the judgment
#The respondents' written submissions are stated to be dated 12th April, 2016, which predates their notice of preliminary objection dated 9th December, 2016 - an apparent internal date inconsistency
The document is a ruling on a preliminary objection rather than a final judgment on the petition, though the case is presented as a judgment
The full names of the parties are not set out in the reproduced text; only 'the petitioner' and 'the respondents' are used, limiting precise party identification
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Council of County Governors v Cabinet Secretary Land, Housing & Urban Development & another [2017] KEELC 432 (KLR)", Case Analysis (2017). Petition dated 29th May, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/432/eng@2017-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.