Thursday, 30 November 2017 13:04

STATE AUTHORITIES JUDGEMENT ANALYSIS OF PETITION NO 280 OF 2017

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The Council of Governors acknowledges the ruling by the High Court of Kenya in Petition No. 280 of 2017: Council of Governors Vs Lake Basin Development Authority & 6 others. In this matter the Council sought a declaration that Sections 3& 8 of the Lake Basin Development Authority, Sections 3 & 10 of the Kerio Valley Development Authority, Sections 3 & 8of the Tana & Athi Rivers Development Authority, Sections 3 & 8 of the Ewaso Ng'iro South Basin Development Authority, Sections 3 & 8 of the Coast Development Authority and Sections 3 & 8 of the Ewaso Ng'iro North Basin Development are all unconstitutional to the extent that they are inconsistent with Articles 6(2), 189 (1)(a) and (b),189 (2) and 259(11) of the Constitution. Despite the transfer of the functions by the Transition Authority through Legal Notice number 137 to 182 of 2013, these Authorities continue to carry out functions that are a preserve of the County Governments contrary to the provisions of the Fourth Schedule of the constitution. The functions presented in this matter include; integrated planning coordination and implementation of projects and programmes.

The Respondents raised a preliminary objection stating that the court had no jurisdiction to entertain the matter and that the petition was premature because the Petitioner had not exhausted the dispute resolution mechanisms provided for under the Constitution and the Intergovernmental Relations Act No.2 of 2012. That in the same spirit, County and National governments are supposed to take all reasonable measures to resolve disputes amicably and exhaust the mechanisms for alternative dispute resolution provided for under the Intergovernmental Relations Act before resorting to judicial proceedings as contemplated under article 189(3) and (4) of the Constitution.

The preliminary objection was however dismissed by the Court on the 27th day of November 2017. In its ruling, the court cited that the disputes contemplated by the intergovernmental Relations Act must be one between the two levels of government or between County governments.
In its findings the court noted that the dispute resolution mechanism established under the Intergovernmental Relations Act is not competent to resolve a question relating to the interpretation of the Constitution.
The court further noted that the Intergovernmental Relations Technical Committee does not have the mandate to resolve disputes relating to the constitutionality of a statute.

Read 304 times Last modified on Monday, 04 December 2017 09:31

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