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ELCDismissedSuit dated 24th August 2016 (case number not stated in the ruling)· [2019] KEELC 503 (KLR)

County Government of Uasin Gishu v Attorney General & 20 others [2019] KEELC 503 (KLR)

Environment and Land Court
12 November 2019
2,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land suit, ruling the Inter-Governmental Relations Act only applies to disputes between governments, not private parties.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determines a Notice of Preliminary Objection dated 8th December 2017 by the 1st and 3rd defendants seeking striking out of the suit filed on 24th August 2016, or alternatively a stay to enable the parties pursue amicable resolution under the Inter-Governmental Relations Act, 2012 (IGRA). Counsel for the applicants, relying on the Mukisa Biscuit definition of a preliminary objection and the Motor Vessel Lilian 'S' jurisdiction dictum, argued that Articles 6(2) and 189(3) and (4) of the Constitution and sections 30, 31, 33, 34 and 35 of IGRA oust the court's jurisdiction as a court of first instance in intergovernmental disputes, and that the plaintiffs had not exhausted the statutory mechanisms or formally declared a dispute. The court framed the issue as whether the suit purely and exclusively involves intergovernmental relations. Guided by the Isiolo County Assembly Service Board decision, the court held that although laid-down dispute resolution procedures must be exhausted, the present suit involves parties who are neither county nor national government, with orders sought against individuals and an interested party whose rights must be determined - persons who cannot access the IGRA mechanisms. The court accordingly found the case does not fall under the Intergovernmental Relations Act, dismissed the preliminary objection, and directed the parties to comply with Order 11 and fix the matter for hearing. The ruling was delivered on 12th November 2019 in the absence of counsel for the plaintiffs.

Key legal issues

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01

Whether the Intergovernmental Relations Act, 2012 ousts the court's jurisdiction over the suit

Holding

The preliminary objection fails because the suit does not fall under the Intergovernmental Relations Act; it is not an intergovernmental dispute since it involves private parties and an interested party whose rights cannot be determined under the Act's mechanisms

Reasoning

Article 189(3) requires governments to make every reasonable effort to settle disputes, including through national legislation, and the IGRA was enacted under Article 189(4). However, the court, guided by the Isiolo County Assembly Service Board definition, found the dispute here involves individuals against whom orders are sought and an interested party, none of whom have standing or opportunity in the IGRA mechanisms. The suit therefore does not fall within Part IV of the Act.

p. 5
02

What amounts to an intergovernmental dispute

Holding

An intergovernmental dispute must be between the two levels of government, not between a government and an individual, and a suit involving private parties falls outside the Act

Reasoning

Relying on Onguto J in the Isiolo County Assembly Service Board case, the court adopted the position that the dispute must be between the two levels of government and not between a government and an individual or person. The court applied this test to the present suit and found that the orders sought are against individuals and that an interested party's rights must also be determined, taking the matter outside the Act.

p. 5

Legal principles established

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  • Where a suit involves parties who are neither the national nor a county government, such that those parties cannot participate in the dispute resolution mechanisms under the Intergovernmental Relations Act, the dispute is not an intergovernmental dispute and the court's jurisdiction is not ousted
  • Where there are laid down procedures for dispute resolution, they must be adhered to and exhausted before moving to the next level

Court orders

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  1. 1.The preliminary objection dated 8th December 2017 is dismissed (the court found the case does not fall under the Intergovernmental Relations Act and the preliminary objection must fail)
  2. 2.Parties to comply with Order 11 and fix the matter for hearing

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165; Articles 6(2), 159(2), 189(3) and (4)
  • Inter-Governmental Relations Act, 2012Long title; sections 3, 30(1) and (2), 31, 32, 33, 34, 35
  • Environment and Land Court Actjurisdiction provisions (referred to generally)
  • Sugar Act, 2011section 31
  • Sugar (Arbitration Tribunal) Rules, 2008section 32 (as cited in Eliud Wafula Maelo)
  • Civil Procedure RulesOrder 11
  • Halsbury's Laws of England, Volume 10paragraphs 319 and 723

Cases cited (6)

  • Mukisa Biscuit Manufacturing Company Ltd -versus- West End Distributors Ltd
    (1969) E.A 696
  • The Owners of the Motor Vessel Lilian 'S' -versus- Caltex Kenya Ltd
    (1989) KLR 1
  • Narok County Council -versus- Trans-Mara County Council
    (2000) 1 EA 161
  • Eliud Wafula Maelo -versus- Ministry of Agriculture & 3 others
    [2016] eKLR
  • Isiolo County Assembly Service Board & another vs Principal Secretary (Devolution) Ministry of Devolution and Planning & another
  • International Legal Consultancy & another -versus- Ministry of Health & 9 others
    (Nrb Constitutional Petition No. 99 of 2015) 2016 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; preliminary objection grounded on Articles 6(2), 189(3) and (4) of the Constitution and sections 30, 31, 33, 34 and 35 of the Inter-Governmental Relations Act, 2012

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, "County Government of Uasin Gishu v Attorney General & 20 others [2019] KEELC 503 (KLR)", Case Analysis (2019). Suit dated 24th August 2016 (case number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/503/eng@2019-11-12

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