1.The appellant, (the then petitioner) filed a petition dated May 29, 2016. The filing of the petition was provoked by the fact that on April 27, 2016, the then Lands Cabinet Secretary, Jacob Kaimenyi through a Gazette Notice Vol CX VIII – No 46 dissolved all Land Control Boards (herein after referred as the Boards) with a view to reconstituting them. It was the appellant’s contention that “…regulation of transactions in agricultural land is an exclusive function of the County Government”. In the alternative, the appellant contended that the functions of establishing and constituting the Boards has to be done in consultation and approval of the County Governments.
2.Contemporaneously with the filing of the petition, the appellant filed a notice of motion dated May 29, 2016. It sought the following orders:-1.Spent2.Spent3.Pending the hearing of this petition, a conservatory order does issue restraining the 1st Respondent from reconstituting the disbanded land control boards.4.Spent5.Spent.
3.The motion and the petition were supported by the affidavit of Jacqueline Mogeni, the Chief Executive Officer (CEO) of the appellant of the same date (May 29, 2016), the gist of which was that certain statutes and/or certain constitutional provisions had been infringed. There was a further supplementary affidavit of July 20, 2016 by the same deponent deponing that:-
4.That through Gazette Notice No 5180 published in the Kenya Gazette Vol CXVIII-No 74 dated July 8, 2016 the Cabinet Secretary for Lands, Housing and Urban Development has unilaterally appointed members to Land Control Boards in 16 Counties.”
5.The respondents did not file a replying affidavit by way of rejoinder but instead filed a preliminary objection (the PO) dated December 9, 2016. They contended that:1.That the petitioner by instituting this petition is in violation of article 189 (3) and (4) of the Constitution.2.That the petitioner by instituting this petition is in violation of section 31 of the Intergovernmental Relations Act.2.That the petitioner by instituting this petition is in violation of section 35 of the Intergovernmental Relations Act.2.That the petition is incompetent, frivolous and abuse of court process and the same should be dismissed with costs.”
6.It is the said motion that fell for determination by Okongo, J who in a ruling dated December 8, 2017 found in favour of the respondents. The learned judge’s finding was that if there is a dispute between the National Government and the County Government, then this has to be resolved under mechanisms set up in the Inter-Governmental Relations Act (the Act). He further directed that:
7.The appellant was aggrieved by the said outcome. In a memorandum of appeal dated June 8, 2018, the appellant raised 6 grounds of appeal which we shall revert to in the course of our determination of this appeal.
8.On November 29, 2022, the appeal came up for hearing before us via the virtual platform. Mr Simiyu, learned counsel holding brief for Mr Wanyama for the appellant opted to wholly rely on the appellant’s submissions dated November 5, 2018.
9.In their written submissions, the appellant condensed the grounds of appeal into three main areas. Firstly, on the issue of whether the High Court had jurisdiction to determine the petition in light of its mandate as set out in article 165(3) which defines its jurisdiction. It was contended that its mandate includes the determination of the constitutionality of an Act of Parliament and the question of whether a legislation is inconsistent with the Constitution can only be determined by the High Court and not mechanisms set up in the Act.
10.Secondly, on the question whether the matter before the Environment & Land Court was a dispute between the County Government and the National Government, it was submitted that there was no dispute as the issue that arose was for the interpretation of the provisions of a statute vis-à-vis the constitutional provisions.
11.Finally, on whether alternative dispute resolution was an option, it was contended that the issue at hand was not arising from “actual governance disputes and procurement” as envisaged in S 31 of the Act and as stated above, constitutional issues cannot be addressed by a mechanism set up by the Act. The appellant maintained that there was no dispute here but a blatant violation of the Constitution by the respondents in the non-inclusion of the appellant in the Constitution of the Boards.
12.Mr. Motari Matunda, learned counsel for the respondents, having not filed written submissions, made brief oral submissions to the effect that there are mechanisms under S. 31-35 of the Act for dispute resolution which the appellant failed to invoke. In his oral highlights, Mr. Motari maintained that if the appellant’s contention that the appointment of Board Members was a devolved function, then it ought to have invoked the provisions of S. 31-35 of the Act and taken advantage of Article 189(3) & (4) of the Constitution that speak to harmonious resolution of disputes between the two levels of government.
13.In a brief rejoinder, Mr. Simiyu asserted that the dispute herein was a constitutional one and under Article 165 of the Constitution, Environment & Land Court was properly seized of the matter.
14.We have considered the record, the appellant’s written submissions, the oral highlights made before us, the authorities cited and the law. Our mandate as a 1st appellate court is as set out in Selle vs. Associated Motor Boat Co. of Kenya & others  EA 123 wherein it was stated:-
15.As earlier stated, the appellant’s grievance that led to the filing of the petition and the motion of 29th May, 2016 was provoked by the Gazette Notice of 27th April, 2016 wherein the then Lands Cabinet Secretary, Prof. Kaimenyi dissolved all the Land Control Boards in the country. In its letter of 9th May, 2015, the appellant reacted to the Gazette Notice as follows:
16.Further, it is instructive to note that in the petition, the appellant sought several prayers. These were:b.A declaration that within the intendment of Articles 6 (2), 174, 186(1), 189 (1) (a) and the Fourth Schedule to the Constitution, regulation of transactions in agricultural land is an exclusive function of the county governments.In the alternativec.A declaration that within the intendment of Articles 6 (2) and 189 (2) of the Constitution establishment and constitution of land control boards must be done with the consultation and approval of counties.d.A declaration that Section 6 of the Land Control Act is inconsistent with the provisions of Article 6 (2), 174, 186(1) and 189 (1) (a) of the Constitution, and to the extent of the inconsistency, is null and void.e.A declaration that Section 5 of the Land Control Act is inconsistent with the provisions of Article 6 (2) and 189 (2) of the Constitution, and to the extent of the inconsistency, is null and void.f.A declaration that the entirety of the Land Control Act is inconsistent with the provisions of Article 6 (2), 174, 186(1), 189 (1) (a) and 189(2) of the Constitution and is null and void.g.There be an order as to costs.”Prayer (b) of the petition speaks to the appellant’s absolute power in regulation of transactions in agricultural land whilst prayer (c), being an alternative prayer speaks to the sharing of that power. On the other hand, prayers (d), (e), (f) and (g) speak to the inconsistency of certain provisions of the Land Control Board vis-à-vis the Constitution.
17.It is clear from the prayers sought that the appellant and the respondents are fighting over the sharing of power to constitute Land Control Boards. The appellant insists that it is its exclusive power or in the alternative, it is a shared power. In our view, therein lies the dispute.The learned judge found, and rightly so in our view that:
18.The judge cited the decision of Okiya Omtatah Okoiti & another vs. Attorney General & 6 others NRB HC Petition No. 593 of 2013(2014) eKLR where Lenaola, J. (as he then was) in which the court stated that:-
19.It is clear that vide its letter of 9th May, 2016, the appellant complained that it had been left out by Prof. Kaimenyi in the reconstitution of the Boards. The appellant wanted either to have full control of constituting the Boards or in the alternative have a say in the constitution of the Boards. It is to this extent that the appellant sought to have certain provisions of the Land Control Act declared null and void.
20.The sections that the appellant sought to have declared null and void are those that vested the power in an entity other than itself. The sum effect of the dispute was a power tussle with the appellant wanting to have the said power exclusively to itself or at the very least, it be shared. It is for this reason that we are in agreement with the learned judge that the Act provided for a dispute resolution mechanism of a dispute such as the one that pitted the appellant with the 1st respondent. It is our considered view that the preliminary objection was rightly upheld and we find no merit in this appeal which is hereby dismissed. Given that the parties in this appeal are all government entities, we order that each party shall bear its own costs.It is so ordered.