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Supreme CourtDismissedPetition 25 of 2019

Senate & 2 others v Council of County Governors & 8 others

Supreme Court of Kenya
17 February 2022
Martha Karambu KoomeM. K. KoomeMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguWilliam OukoW. Ouko
12,536 words in judgment
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·~50 min to read original · ~4 min brief

The bottom line

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Supreme Court struck down County Development Boards, ruling senators cannot chair county bodies.

What this practically means

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The Supreme Court upheld that County Development Boards, which gave senators power over county governors, are unconstitutional. The Boards, meant to coordinate development, instead undermined county governments by making governors subordinate to senators. The Court also ruled that the law's criminal penalties for obstructing the Board were excessive. Kenya's devolution remains a unitary system, not a federal one, meaning counties operate within a single national framework.

Executive summary

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This appeal challenged the constitutionality of the County Governments (Amendment) Act, 2014, which established County Development Boards for each county. The Boards were composed of senators, members of the National Assembly, the governor, and other county officials, with the senator as chairperson and the governor as vice-chairperson. The Boards were tasked with considering and giving input on county development plans and annual budgets before they were tabled in the county assembly. The amendment also created a penal offence for obstructing the Board. The High Court and Court of Appeal both declared the amendment unconstitutional. The Supreme Court dismissed both the main appeal and the cross-appeal, affirming the decisions below. The Court held that while the purpose of creating a consultative forum was noble, the effect of the amendment was unconstitutional. Specifically, the composition of the Board, which made the governor subordinate to the senator, violated articles 179(4)(5) and (6) of the Constitution by altering the hierarchical structure of county government. The Board's function of considering plans and budgets 'before' they were tabled in the county assembly was found to be a precondition that subordinated county organs. The penal provision in section 91C was held to be excessive, arbitrary, and disproportionate, failing the test of proportionality. The Court also affirmed that Kenya's devolution model is based on a unitary, not federal, system of government, and declined to depart from its previous decisions on this point. The Court ordered each party to bear their own costs, given the public interest nature of the matter.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.the Constitutional validity of the County Governments (Amendment) Act
  2. 2.whether Kenya’s devolution model is unitary or federal

Key legal issues

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01

Whether the County Governments (Amendment) Act, 2014, which established County Development Boards, is constitutional.

Holding

The amendment is unconstitutional because its composition (with a senator as chairperson and governor as vice-chairperson) and functions (requiring county plans and budgets to be tabled before the Board) violate the functional and institutional integrity of county governments, and its penal provision is excessive and disproportionate.

Reasoning

The court applied a purposive interpretation, examining both the purpose and effect of the amendment. While the purpose of creating a consultative forum was noble, the effect was to subordinate county organs to the Board, alter the hierarchical structure of county government by making the governor deputize the senator, and create a coercive penal provision that could criminalize legitimate county decision-making. This violated articles 96(2)(3), 179, 185, and 189(1)(a) of the Constitution.

p. 6
02

Whether Kenya's devolution model is unitary or federal.

Holding

Kenya is a unitary state with a devolved system of government, not a federal state.

Reasoning

The court affirmed its previous decisions in the Matter of Interim Independent Electoral Commission and other cases, noting that the Constitution retains the supremacy, sovereignty, and unity of the people, and the oneness and indivisibility of the nation. The court declined to depart from these precedents, finding no weighty grounds or formal application to do so, and noted that the issue was not properly raised before the High Court.

p. 32
03

Whether the Supreme Court should depart from its previous decisions on the nature of Kenya's devolution.

Holding

The court declined to depart from its previous decisions, as the 55th respondent did not make a formal application and failed to demonstrate that the earlier decisions were made per incuriam or that exceptional circumstances existed.

Reasoning

The court reiterated the strict test for departing from its precedents, as established in Jasbir Singh Rai and Fredrick Otieno Outa. It noted that the issue was not properly raised before the High Court and was only briefly argued in the Court of Appeal without reasoned submissions or authorities. The court emphasized that it will not lightly depart from its decisions, especially those that have been consistently applied as ratio decidendi.

Legal principles established

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  • County governments must have functional and institutional integrity free from national-level interference.
  • A law that makes a county governor subordinate to a senator in a county organ violates the Constitution.
  • The Senate's oversight of counties must be exercised at the national level, not county level.
  • Criminal penalties in county laws must be proportionate and linked to a clear harm; vague or excessive penalties are unconstitutional.
  • Kenya's devolution is a unitary system, not a federal system; counties are not sovereign states.

Court orders

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  1. 1.The appeal dated 12th July, 2019 and the cross-appeal dated 21st January, 2020 are hereby dismissed.
  2. 2.Given the nature of this matter, being one of public interest, we order that each party shall bear their own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 200 of 2015
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Declaration that the County Governments (Amendment) Act is constitutional

The amendment was found to be unconstitutional for violating articles 96(2) and (3), 179 and 185 of the Constitution.

Declaration that Kenya's devolution model is federal

The court affirmed its previous decisions that Kenya is a unitary state and declined to depart from them.

p. 32

Costs

each party shall bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal dated 12th July, 2019 and the cross-appeal dated 21st January, 2020 are hereby dismissed.
p. 33 Final Orders
Given the nature of this matter, being one of public interest, we order that each party shall bear their own costs.
p. 33 Costs Order
the two levels of government must perform their functions and exercise their powers in a manner that respects the functional and institutional integrity of each other.
p. 11 Intergovernmental Relations
section 91A(1)(a) and (d) is antithetical to articles 179(4)(5) and (6) of the Constitution to the extent that it alters the hierarchical structure of the county government.
p. 26 County Government Structure
Section 91C, therefore, not only fails the test of proportionality, but is also outrightly excessive, arbitrary, unfair and is based on irrational and unknown considerations.
p. 28 Penal Provision Unconstitutionality
the Senate is not expected to relocate to the counties to exercise supervisory powers at that level. That would be intrusive into the functional and institutional integrity of the county government and unacceptable overreach.
p. 25 Senate Oversight Role
the devolved system in Kenya is based on a unitary system of Government that decentralizes key functions and services to the county unit.
p. 28 Nature of Devolution

Key timeline

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2014
County Governments (Amendment) Act, 2014 enacted, creating County Development Boards with senators as chairpersons.
2022
Supreme Court dismisses appeals, affirming that the Act is unconstitutional.

Practical implications

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For lawyers

Challenge county board structures

When reviewing or drafting county legislation, ensure any intergovernmental body respects the hierarchical structure of county government. A board that subordinates a governor to a senator or a national official will be struck down. Also, test any penal provision for proportionality using the constitutional standard applied here.

For businesses

County planning remains local

County development plans and budgets do not require approval from a national-level board. If you are engaging with county governments on projects, work directly with the governor and county assembly, not a separate board with senators. The law is clear: counties control their own planning without subordination to the Senate.

For individuals

Know your county's hierarchy

The governor is the highest elected official in your county, not a senator. No law can make a senator chair a county body over the governor. If you see a county development board claiming authority over budgets, it is likely unconstitutional. Challenge it using this Supreme Court decision.

Frequently asked questions

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Are County Development Boards legal in Kenya after this Supreme Court decision?+

No. The Supreme Court confirmed that the County Governments (Amendment) Act, 2014, which created these boards, is unconstitutional. Boards that give senators authority over county governors or create criminal penalties for obstruction are invalid.

Can the Senate oversee county governments in Kenya?+

Yes, but only from the national level. The Senate cannot set up bodies inside counties that interfere with county operations. Its oversight must respect the county's functional and institutional integrity.

Is Kenya a federal state after this devolution ruling?+

No. The Supreme Court reaffirmed that Kenya is a unitary state with a devolved system. Counties are not independent states; they operate under the national Constitution and laws.

What happens if a county law creates a crime for blocking a board in Kenya?+

Such a law is likely unconstitutional. The Supreme Court ruled that the penal provision in the County Governments (Amendment) Act was excessive and disproportionate. Any criminal penalty must be proportional and clearly linked to a specific harm.

Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Senate & 2 others v Council of County Governors & 8 others", Case Analysis (2022). Petition 25 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/7/eng@2022-02-17

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