The High Court has summoned the Chief Executive Officer of the Council of Governors to appear before it next week as it considers a far-reaching constitutional dispute over the legal validity of county legislation across Kenya.
Justice Patricia Nyaundi ordered the CEO to attend court on September 29 to explain the position of the Council of Governors on a petition challenging the manner in which county laws are published and brought into force.
The order was issued on September 22 at the Milimani High Court in Nairobi in a petition filed by Kevin Gitau Waithera, George and three others against the 47 county governments and a host of national institutions and constitutional offices.
The case could have significant implications for county legislation governing taxation, licensing, public finance, alcohol regulation, betting and gaming, health, education and other devolved functions if the court ultimately agrees with the petitioners’ interpretation of the Constitution.
At the heart of the case is Article 199(1) of the Constitution, which provides that county legislation does not take effect unless it is published in the Gazette.
The petitioners have asked the court to determine what constitutes a Gazette for purposes of the constitutional provision, relying on Article 260, which defines a Gazette as the Kenya Gazette published under the authority of the national government or a supplement to the Kenya Gazette.
Their contention is that publication of county legislation in a County Gazette or County Gazette Supplement does not, by itself, necessarily satisfy the constitutional requirement unless the publication qualifies as the Kenya Gazette or a supplement to it.
The petition therefore raises questions over the status of county laws that have been published through county gazette supplements but, according to the petitioners, have not been published in a volume or supplement of the Kenya Gazette in the manner contemplated by the Constitution.
The dispute is not entirely new to the courts.
In 2021, the Court of Appeal, in County Government of Kiambu v Kariuki & three others, held that a County Gazette is a creation of the County Governments Act and cannot supersede the constitutional requirement for publication in the Kenya Gazette. The appellate court said county legislation ought to be published in the Kenya Gazette for it to take effect.
The same line of jurisprudence has been reflected in subsequent litigation involving county legislation. The Kenya Law Reform Commission has also previously highlighted concerns over county legislation that was not published in the Kenya Gazette in accordance with Article 199(1).
The new petition, however, seeks fresh clarification on the precise meaning and legal effect of a Kenya Gazette Supplement and whether county legislation appearing in county gazette supplements meets the constitutional threshold.
The petitioners argue that a Kenya Gazette Supplement should be understood as an accompanying publication to the Kenya Gazette and that its legal effect must be considered in the context of the constitutional definition of a Gazette.
They have asked the High Court to determine whether county legislation published in County Gazette Supplements, without publication in the Kenya Gazette, can lawfully come into force.
The petition cites a raft of legislation from Nairobi and Mombasa counties as examples of laws whose publication and legal status are being questioned.
Among the legislation identified are county appropriation laws and laws dealing with alcohol licensing, betting and gaming, childcare, community health, cultural heritage, disaster management, dog control, education and health.
The petitioners contend that some of the laws are recognised by the National Council for Law Reporting as Acts in force despite what they describe as uncertainty over whether they were published in the Kenya Gazette in compliance with Article 199.
They want the court to determine whether such legislation can continue to be recognised and enforced by public institutions if the prescribed constitutional publication process was not followed.
The latest case draws heavily on an earlier legal battle involving Kiambu County legislation.
In County Government of Kiambu v Kariuki & three others, the Court of Appeal held that a County Gazette was neither the Kenya Gazette nor a supplement to the Kenya Gazette for purposes of Article 199 and Article 260 of the Constitution.
The court also dealt with Section 25 of the County Governments Act, which had provided that county legislation would come into force 14 days after publication in the County Gazette and Kenya Gazette, whichever came first.
The appellate court held that the words “whichever comes first” were invalid to the extent that they contemplated county legislation taking effect without publication in the Kenya Gazette.
The ruling followed earlier High Court litigation over Kiambu’s alcohol control laws and other county legislation, where the courts examined whether publication in a County Gazette alone was sufficient to give county laws legal effect.
The issue has also featured in cases involving other counties. In a 2019 case concerning Murang’a County legislation, the High Court reiterated that Article 199 requires county legislation to be published in the Kenya Gazette or a supplement to the Kenya Gazette.
The petitioners argue that the issue before the court goes beyond the individual laws cited in their pleadings and could affect county legislation across the country.
They say county laws regulate critical aspects of everyday life, including payment of taxes and fees, licensing of businesses, public finance, health services, alcohol control, education and administration of devolved functions.
The petition has therefore placed all 47 county governments in the case, alongside the National Council for Law Reporting, Kenya Law Reform Commission, Council of Governors, Judiciary, Attorney-General and Director of Public Prosecutions.
Officials and institutions from Kiambu County have also been named as interested parties, including county government officials, the Kiambu County Police Commander and the County Administration Police Commandant.
The petitioners have invoked Article 165(3)(d) of the Constitution, which gives the High Court jurisdiction to determine whether a law is inconsistent with or contravenes the Constitution.
They are also relying on Article 258, which permits a person to institute proceedings where the Constitution has been contravened or is threatened with contravention.
Another issue raised is the interpretation of Section 3 of the Interpretation and General Provisions Act, which provides a statutory definition of the Gazette.
The petitioners argue that the constitutional and statutory provisions should be interpreted consistently and that the distinction between the Kenya Gazette, its supplements and County Gazettes should not be blurred.
Given the potential national consequences of the dispute, the petitioners have asked the High Court to certify the matter as raising substantial questions of law and refer it to the Chief Justice for the constitution of a bench of three or more judges.
They want the proposed bench to determine, among other issues, the meaning of the expressions “supplement to the Kenya Gazette” and “supplement thereto” as used in the Constitution and other legislation.
The petitioners say a definitive interpretation is necessary because the question affects the validity and enforceability of county legislation throughout Kenya.
They have also asked that each party bear its own costs, arguing that the proceedings have been brought in the public interest.
For now, the High Court has not determined the substantive questions raised in the petition.
Instead, Justice Nyaundi has directed the CEO of the Council of Governors to appear in court on September 29 and advise the court on the position of the umbrella body representing the county governments.
The appearance could provide the court with the collective position of the 47 counties on a constitutional question that has resurfaced repeatedly since the introduction of devolved government.
The case could ultimately require the courts to clarify whether publication practices adopted by county governments over the years have consistently met the constitutional threshold for bringing county legislation into force.
Until the petition is determined, the issues raised by the petitioners remain matters for judicial determination, including the legal status of the specific county laws cited in the case.
