County legislation ought to be published in the Kenya Gazette for it to gain legitimacy.

Brief facts

The County Government of Kiambu (appellant) lodged the instant appeal against the judgment and decree of the High Court in Petition No.52 of 2016 as consolidated with Petition No. 308 of 2015 and Petition No.7 of 2016 that declared section 25(2) of the County Governments Act inconsistent with article 199 (1) of the Constitution. The High Court had declared that section 25(2) of the County Governments Act was inconsistent with article 199 (1) of the Constitution, insofar as the wording used, whichever comes earlier.  The use of the phrase created a scenario where county legislation would come into force on being published in the County Gazette only. If such a publication would precede publication in the Kenya Gazette, it would undermine the intent of article 199 (1) of the Constitution, which provided that county legislation was to only come into effect upon being published in the Gazette (referred to as the Kenya Gazette and not the County Gazette).

The appellants contention was that it did not matter where the proposed County Legislation was published, the one published earlier took effect. The appellant further stated that the phrase whichever comes earlier denoted the urgency of enacting the legislation into law upon publication and not to contravene any law or usurp the operation of the Constitution, and as such the section was not inconsistent with article 199(1) of the Constitution.

Issues

1. Whether county legislation could come into force upon its publication in the County Gazette where the publication in the County Gazette preceded publication in the Kenya Gazette.
2. Whether the County Gazette could supersede the Kenya Gazette.
3. Whether the County Gazette was equivalent to a Kenya Gazette or a supplement of the Kenya Gazette.
4. What was the meaning and implication of the words, whichever comes first, as used in section 25 of the County Government Act?
5. Whether section 25 of the County Government Act that presupposed the possibility of county legislation coming into force upon its publication in the County Gazette only where it preceded publication in the Kenya Gazette was invalid.

Relevant provisions of the law

Constitution of Kenya, 2010

Article 199 - Publication of county legislation

(1)       County legislation does not take effect unless published in the Gazette.

(2)       National and county legislation may prescribe additional requirements in respect of the publication of county legislation.

Article 260 - Interpretation

In this Constitution, unless the context requires otherwise

Gazette means the Kenya Gazette published by authority of the national government, or a supplement to the Kenya Gazette;

County Government Act, Act No. 17 of 2012

 Section 25 - Coming into force of a law

(1)       A legislation passed by the county assembly and assented to by the governor shall be published in the county Gazette and Kenya Gazette within seven days after assent.

(2)       Subject to subsection (3) the County Assembly legislation shall come into force on the fourteenth day after its publication in the county Gazette and Kenya Gazette, whichever comes earlier, unless the legislation stipulates a different date or  time at which it shall come into force.

Held

1. The first appellate courts primary duty was to re-evaluate the evidence on the record in order to come to its own independent conclusion on the evidence and the law, as per rule 29(1)(a) of the Court of Appeal Rules.
2. Article 199(1) of the Constitution provided that county legislation did not take effect unless published in the Gazette. Article 260 defined a Gazette as the Kenya Gazette published by the authority of the National Government or a supplement to the Kenya Gazette. Section 25 (2) of the County Government Act reinforced the position that county legislation ought to be published in both the Kenya Gazette and the County Gazette and that such publication may be done concurrently. The same section further provided that the legislation shall come into force on the fourteenth day after its publication in the County Gazette and Kenya Gazette, whichever came first.
3. It was on the wording 'whichever came first' that the respondents presupposed the possibility of county legislation coming into force upon its publication in the County Gazette only where it preceded publication in the Kenya Gazette. A County Gazette was a creation of the County Government Act and not the Constitution and could not by any craft of interpretation supersede its publication in the Kenya Gazette. The Constitution explicitly required county legislation to be published in the Kenya Gazette for the same to take effect.
4. A County Gazette was neither a Kenya Gazette nor a supplement to the Kenya Gazette as it departed from the definition of a Kenya Gazette used in article 199 and defined in article 260 of the Constitution. Pursuant to article 199 of the Constitution, section 25 of the County Governments Act was enacted to provide additional requirements with regard to the publication of County Legislation. Any additional requirements contemplated under article 199 should not derogate from the mandatory duty necessitating publication of County Legislation in the Kenya Gazette or its supplement, and no legislation could waive the need for such publication.
5. The provision of section 25 of the County Government Act was that county legislation ought to be published in both the Kenya Gazette and the County Gazette and such publication could be done one after the other. Section 25 provided that the legislation was to come into force on the fourteenth day after its publication in the County Gazette and Kenya Gazette, whichever came earlier.
6. The wording 'whichever comes earlier under section 25 of the County Government Act presupposed the possibility of county legislation coming into force upon its publication in the County Gazette only where it preceded publication in the Kenya Gazette. Section 25 was a complete derogation from the prerequisite of the Constitution and was invalid to the extent of the words whichever comes first as it envisioned that county legislation could come into effect without necessarily being published in the Kenya Gazette. The correct position was that county legislation ought to be published in the Kenya Gazette for it to gain legitimacy.