UNIVERSITY OF NAIROBI

SCHOOL OF LAW

GPR 312: ALTERNATIVE DISPUTE RESOLUTION

COURSE CONVENERS: MR LEONARD OBURA ALOO AND HARRIET NJOKI MBOCE

GROUP 11: ALTERNATIVE DISPUTE RESOLUTION AND INTERGOVERNMENTAL

DISPUTES

1
Critically discuss the legal and institutional framework for settling intergovernmental
disputes in Kenya using ADR.

Introduction
Intergovernmental disputes refers to a dispute “as a specific disagreement over a matter of fact,
law or policy in which one party makes a claim or assertion, while the other party refutes or
counterclaims, resulting into a specific impasse over which the parties cannot agree as opposed
to a broad and general disagreement about a problem” 1 and intergovernmental “refers to the
parties to the disputes; that is, between governments.”2 The Constitution established a devolved
system of government that comprises of forty-seven counties and one national government. 3 In
the Kenyan devolved system, intergovernmental disputes can be between the national and county
governments or amongst the county governments or their organs and entities in the course of
performing their functions and exercising their powers conferred to them by the Constitution and
legislation. In Kenya there has been a lot of conflict between the national government and county
governments making implementation of cooperative governance almost impossible. This paper
provides a critical analysis on the application of ADR mechanisms in settling intergovernmental
disputes in Kenya.

Legal Framework for ADR in Intergovernmental Dispute Resolution

1. The Constitution of Kenya 2010
The Constitution gives a firm legal basis for the promotion and use of ADR in resolving disputes
before resorting to the court system. The constitution in article 159 (2) states, “alternative forms
of dispute resolution including reconciliation, mediation, arbitration and traditional dispute
resolution mechanisms shall be promoted.”4 From a constitutional standpoint, nothing forbids
different levels of governments from resolving their disputes in a peaceful manner through
mediation, arbitration and negotiation.

Article 6(2) establishes a cooperative system of governance between national and county
governments in Kenya which can best be described as cooperative government. It provides that
“the governments at the national and county levels are distinct and interdependent and shall
conduct their mutual relations on the basis of consultation and cooperation.” 5

Article 189 of the constitution states:

1
J.M Kangu (2015) 333-34
2
Ibid
3
Article 1(4), Constitution of Kenya 2010
4
Article 159 (2) Constitution of Kenya 2010
5
Article 6(2) Constitution of Kenya 2010

2
 “(2) Government at each level, and different governments at the county level, shall co-operate in
the performance of functions and exercise of powers and, for that purpose, may set up joint
committees and joint authorities
(3)In any dispute between governments, the governments shall make every reasonable effort to
settle the dispute, including by means of procedures provided under national legislation.
(4)National legislation shall provide procedures for settling inter-governmental disputes by
alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.”6
The constitution thus expressly calls for the use of ADR technics in resolving disputes between
the various levels of governments. It also calls for cooperation between the various levels of
governments to prevent disputes in the first place.

2. The Intergovernmental Relations Act (IGRA) 2012

Intergovernmental Relations Act was enacted in 2012 pursuant to Article 189 (4) of the
Constitution that obligates parliament to provide procedures for settling intergovernmental
disputes by alternative dispute resolution mechanisms. The legal framework for ADR in
intergovernmental dispute resolution is anchored in section 31 of the Intergovernmental
Relations Act which states that, “The national and county governments shall take all reasonable
measures to—
(a) Resolve disputes amicably; and

(b) apply and exhaust the mechanisms for alternative dispute resolution provided under this Act
or any other legislation before resorting to judicial proceedings as contemplated by Article
189(3) and (4) of the Constitution.”7
The section places an obligation on national and county governments to resolve their disputes in
an amicable manner and use the court system as a last resort. In fact, section 32 further
elaborates on this by stating, “(1) any agreement between the national government and a county
government or amongst county governments shall—
(a) Include a dispute resolution mechanism that is appropriate to the nature of the agreement; and

(b) Provide for an alternative dispute resolution mechanism with judicial proceedings as the last
resort.”8
Justice Mativo emphasized the importance of this Act in Council of County Governors v Lake
Basin Development Authority & 6 others9 where he stated that:
It is by now trite that the Intergovernmental Relations Act having been enacted pursuant
to Article 189 (4) of the Constitution must be understood purposively because it is
umbilically linked to the Constitution. As we do so, we must seek to promote the spirit,
purpose and objects of the Constitution. We must prefer a generous construction over a

6
Constitution of Kenya 2010
7
Section 31 of the Intergovernmental Relations Act
8
Section 32 of the Intergovernmental Relations Act
9
[2017] eKLR (Petition 280 of 2019)

3
 merely textual or legalistic one in order to afford the fullest possible constitutional
guarantees10.

Since the two levels of government undertake their activities in an environment that is
competitive, conflicts are prone to arise. The law then comes in to cultivate efficiency in
functioning of the government whilst creating an efficient mechanism to solve disputes. Onguto J
in Isiolo County Assembly Service Board and Another v The Ministry of Devolution and
Another Onguto J declined to hear the case until the parties had exhausted the available ADR
mechanisms. Such a decision discourages parties from adopting an adversarial process in a court
without applying ADR which results in an amicable dispute settlement. Therefore, law envisages
a situation whereby parties exhaust ADR before subjecting the dispute to a court.

Institutional Framework for Intergovernmental Dispute Resolution

Under Article 189(2) of the 2010 Constitution, the two levels of governments are allowed to set
up joint committees or authorities. These committees or authorities function to ensure
cooperation between the national and county governments in carrying out their functions and
exercise of their power. Pursuant to the said article, there are various institutions that are
established under IGRA, 2012, the Public Finance Management Act, 2012, and the Urban Areas
and Cities Act, 2012.

a. Institutions established under the Intergovernmental Relations Act, 2012

Several institutions have been set up under IGRA to aid in resolving intergovernmental disputes.
Section 33(2) states, “Where the negotiations under subsection (1) fail, a party to the dispute may
formally declare a dispute by referring the matter to the Summit, the Council or any other
intergovernmental structure established under this Act, as may be appropriate.” 11
These institutions are; the National and County Government Coordinating Summit, the Council
of County Governors, the Intergovernmental Relations Technical Committee, the
Intergovernmental Relations Secretariat and the Intergovernmental Relations Consultative
Forums.
The National and County Government Co-ordinating Summit (Summit) established under
section 7 of the IGRA is tasked with consultation and co-operation between the national and
county governments, promotion of national values and principles of governance, promotion of
national cohesion and unity and consideration and promotion of matters of national interest
among others.
The Council of County Governors (CoG) established under section 19 of the IGRA is tasked
with consultation amongst county governments, sharing of information on the performance of
the counties in the execution of their functions with the objective of learning and promotion of
best practice where necessary among others.

10
ibid
11
Section 33 of the Intergovernmental Relations Act

4
The Intergovernmental Relations Technical Committee (IGRTC) formed under section 11 of the
IGRA is tasked with the day to day administration of the Summit and of the Council by
facilitating the activities of the two organs and implementing their decisions. The committee also
convenes a meeting of the forty-seven County Secretaries within thirty days preceding every
Summit meeting.
The Intergovernmental Relations Secretariat (IGRS) is the Secretariat of the IGRTC which is
headed by a Secretary. The IGRTC appoints the secretary competitively with the approval of
summit. The secretary implements the decisions of the intergovernmental structures set under the
IGRA.12

The Procedure to be used

From the onset parties before a formal declaration existence of a dispute, parties ought to make
reasonable effort and in good faith undertake to resolve the matter at hand by either negotiating
by themselves or with the aid of an intermediary. However, if this approach fails, the parties are
to formally declare dispute by referring the matter to the summit, the council or any other
intergovernmental structure established under the IGRA13. After the declaration of a dispute then
the relevant intergovernmental structure established under this Act shall convene a meeting
inviting the parties or their designated representatives within 21 days after such a declaration so
as to determine various issues like; the precise matter in dispute, the nature of the dispute
involved, identify the mechanisms or procedures, other than judicial proceedings, that are
available to the parties to assist in settling the dispute, including a mechanism or procedure
provided for in this Act, other legislation or in an agreement, if any, between the parties 14.

When legislation or an agreement specifically provides for a mechanism, then parties shall rely
on the terms of the mechanism to solve their disputes. An intergovernmental structure
established under the Act can also agree on an appropriate mechanism or procedure for resolving
the dispute, including mediation or arbitration, as contemplated by Articles 159 and 189 of the
Constitution. Finally where a dispute referred to any intergovernmental structure established
under this Act, fails to be resolved in accordance with section 33(2), the Summit shall convene a
meeting between the parties in an effort to resolve the dispute and may recommend an
appropriate course of action for the resolution of the dispute.
It’s important to note that, if a person fails, without justifiable course, to attend a meeting for
settling any intergovernmental dispute when required to do so, he or she commits an offence
under the Act.15 Such a person is liable upon conviction, to a fine not exceeding Kshs 200,000 or
to imprisonment not exceeding 12 months, or both.

b. Institutions under Public Finance Management Act, 2012;

The Intergovernmental Budget and Economic Council (IBEC) is established under Section 187
of the Public Finance Management Act, 2012. The IBEC provides a forum for consultation and

12
Section 15(4)
13
Section 33(1)& (2) Intergovernmental Relations Act,2012
14
section 34 (1)& (2) Intergovernmental Relations Act,2012
15
Section 36 Intergovernmental Relations Act,2012

5
cooperation between the national government and the county governments on budget and
economic matters.16

c. Institutions under the Urban Areas and Cities Act, 2012

This Act of Parliament gives effect to Article 184 of the Constitution; to provide for the,
classification, governance and management of urban areas and cities; to provide for the criteria
of establishing urban areas, to provide for the principle of governance and participation of
residents and for connected purposes. According to Section 6(5) and (6) of the Act, the two
levels of government are required to enter into an agreement regarding the performance of
functions and delivery of services by the Capital City (Nairobi City). Such an agreement, among
other things, is required to provide for ADR mechanisms for the resolution of disputes. 17

Critic of ADR in Intergovernmental Dispute Resolution

a. Definition of Intergovernmental Disputes
The IGRA has not provided a definition of what Intergovernmental disputes are. However,
according to section 3(d) of the IGRA, it only sets out the objects of the Act as providing “a
framework for inclusive consideration of any matter that affects relations between the two levels
of government and amongst county governments”18 It emphasizes one of the principles of the
IGR as the “need to minimize intergovernmental disputes while co-operating in exercising their
functions”19 The lack of a statutory definition in IGRA was observed by Justice Wakiaga (as he
then was) in the matter of The County Government of Nyeri vs. Cabinet Secretary, Ministry of
Education & Technology & another20. It is on this ground that he denied handing the matter to
ADR mechanisms. Notably, the lack of a statutory definition of the term has been relied on to
exclude cases from application of ADR. However, it can be argued that courts should adopt a
purposive approach in construing statutes so as to uphold the constitution’s spirit under article
259.21

b. Parties to Intergovernmental Disputes

(i) The Senate and Members of National Assembly

The intention of the Constitution and IGRA was that all intergovernmental disputes must be
referred to ADR. However, a question arises whether the senate is part of intergovernmental
parties. Notably, the Senate and members of National Assembly are not exclusively assigned any
role in the intergovernmental dispute resolution. However, it is in its oversight role where Senate
has generated a lot of disputes with governors leading to many court cases; it is not clear whether
these disputes can be classified as intergovernmental or not.

The Council of Governors filed cases as a corporate body on behalf of counties where there are
common issues and grievance. In the Council of Governors and 3 others vs. Senate and 53

16
Public Finance Management Act, 2012
17
Section 6 ,Urban Areas and Cities Act , 2011
18
Section 3, Intergovernmental Relations Act,2012
19
Ibid
20
The County Government of Nyeri vs. Cabinet Secretary, Ministry of Education & Technology & another[2014] eKLR)
21
Article 259

6
Others22 the Council of Governors representing all counties, questioned the amendment to the
County Government Act by National Assembly and formation of County Development Boards in
each of the 47 counties in Kenya. In this case the court declined application of ADR and
proceeded with the merits of the case. It held that the amendment Section 91A of the principal
Act was unconstitutional as it purported to create an oversight role for national governments in
the counties. 23

(ii) Private Citizens, Parastatals, and other entities

Disputes between National and County governments largely emanate from the construction of
article 186 and 187 respectively. Article 186 of the constitution provides for functions and
powers between national and county governments while article 187 provides for the transfer of
functions and powers between the two levels of government. Decisions from the courts suggest
that private citizens lack locus standi to lodge petition arising from potential conflicts that may
arise under articles 186 and 187. For instance, in the case of Okiya Omtatah Okoiti and another
vs. Attorney General and 6 others24, the Court held that there was no dispute between national
and county government or amongst the county governments and that the petition was brought by
private citizens. However, the issue raised in the case involved the interpretation of the terms
“referral health facilities” and “county health facilities”. The court held that it had jurisdiction
and ADR was not applicable under IGRA. Following the above case law, it is clear that IGRA
does not apply to disputes by private citizens. This position is confirmed by decisions of the
courts to deal with the issues on merit where private citizen brought cases that involved both
county and national governments. Although they inevitably dragged the two governments to
Court, there was nothing to prevent the parties from consenting to refer their disputes to ADR.

c. Access to Justice in intergovernmental disputes

Courts retain jurisdiction in all criminal and civil matters, regardless of the provisions on
Alternative Dispute Resolution. Access to court is foundational to the stability of society. It
ensures peaceful, regulated and institutionalized mechanisms of dispute resolution. Construed in
this context of the rule of law, access to court is indeed of cardinal importance. As a result, very
powerful considerations would be required for its limitation to be reasonable and justifiable. This
is the test the court should bear in mind when invited to decline jurisdiction. 25 Article 189 (3), (4)
of the constitution dictates that government disputes should be solved through ADR. Parties can
only proceed to court after exhaustion of mechanisms of alternative dispute resolution. This
raises fundamental issues on access to justice in inter-governmental disputes. The crucial issue
therefore is whether those two provisions oust the jurisdiction of the court to determine issues
involving branches or levels of the government.

d. Unequal parties to the dispute

Disputes between the national government and the county governments are divisive and difficult
to bridge. In the instances where negotiation is a route taken, the parties are unequal and the
22
The Council of Governors and 3 others vs. Senate and 53 Others (2014) eKLR
23
ibid
24
Okiya Omtatah Okoiti and another vs. Attorney General and 6 others [2013]eKLR
25
Council of County Governors v Lake Basin Development Authority & 6 others [2017] eKLR

7
weaker party (the county governments) have little to bargain with. For example, the treasury had
cut revenue transfers to the Marsabit county government in 2020. Were a dispute to occur
between the county government and the national government, the latter would be in a better
bargaining position than the former. It therefore calls into question how effective ADR is in such
situations.

e. The influence of politics in the intergovernmental dispute

To compound matters, it is difficult to separate the disputes from the context of national politics
such that it turns any dispute between the two governments into a political quagmire. Due to the
partisan nature of Kenyan politics, ADR is rendered useless in the face of political jostling. An
example of this is when the Council of Governors, an institution which itself is supposed to settle
disputes through ADR, went to the Supreme Court to have sections of the Division of Revenue
Bill deemed unconstitutional in 2019.26 If an institution supposed to settle disputes through ADR
and not rush to court did the exact thing the Act that created it tells it not to do, then who is to put
into practice the ideals espoused in the constitution and in the Intergovernmental Relations Act?

Conclusion
Cooperative government and intergovernmental relations are meant to minimize
intergovernmental disputes as the governments are cooperating and consulting with each other.
Where avoidance fails, intergovernmental disputes are formally declared. The 2010 Constitution
and the IGRA, 2012 have largely provided for the mechanisms and procedures of resolving these
intergovernmental disputes through ADR mechanisms with judicial proceedings as the last
resort. Intergovernmental institutions which provide forums for cooperation and the resolution of
intergovernmental disputes have also been established. These institutions are mandated to
minimize intergovernmental disputes through cooperation and where avoidance fails resolve
such disputes through ADR mechanisms. However, challenges arise in the use of ADR in
resolving the disputes and they include; unequal parties, lack of clear definition of the term
intergovernmental dispute, access to justice through the courts, involvement of private parties in
disputes, and influence of politics in intergovernmental disputes. It is not lost on Kenyans that
while the constitution has elevated ADR mechanisms in dispute resolutions, jurisprudence from
courts suggests limited application of ADR in intergovernmental dispute resolution.

26
'Governors Move To Supreme Court Over Division Of Revenue Bill' (The Star, 2020) <https://www.the-star.co.ke/news/2019-
07-15-governors-move-to-supreme-court-over-division-of-revenue-bill/> accessed 8 May 2020.

8
References and Bibliography
Instruments/Statutes
1. Constitution of Kenya 2010
2. Public Finance Management Act, 2012
3. Urban Areas and Cities Act , 2011
4. Intergovernmental Relations Act, 2012

List of Cases
1. Council of County Governors v Lake Basin Development Authority & 6 others[2017]
eKLR
2. The County Government of Nyeri vs. Cabinet Secretary, Ministry of Education &
Technology & another[2014] eKLR)
3. The Council of Governors and 3 others vs. Senate and 53 Others [2014] eKLR
4. Okiya Omtatah Okoiti and another vs. Attorney General and 6 others [2013] eKLR

Books and Journals

1. Kangu J, (2015) ‘Constitutional Law of Kenya on Devolution’ Strathmore University,
2015
2. 'Governors Move To Supreme Court Over Division Of Revenue Bill' (The Star, 2020)
<https://www.the-star.co.ke/news/2019-07-15-governors-move-to-supreme-court-over-
division-of-revenue-bill/> accessed 8 May 2020.
3. Richard M. Cartier, “Mediating Local Intergovernmental Disputes, Reflections On The
Process,” San Joaquin Agricultural Law Review, Volume 13 ,2003 Number 1
4. Laurie R, “The Judicial Role In Intergovernmental Land Use Disputes: The Case Against
Balancing” Minnesota Law Review Vol 71
5. Muigua K, and Kariuki F, "Alternative Dispute Resolution, Access to Justice and
Development in Kenya." Strathmore LJ 1 (2015): 1.

9
GROUP 11 MEMBERS

NAME REG. NUMBER SIGNATURE

1 Irene Loko Mutua G34/115590/2018

2 Nakhurenya Eric G34/115286/2018

3 Masawa Jack G34/115613/2018

4 Esther Mwangi G34/116967/2018

5 Elizabeth Mwaniki G34/102365/2017

6 Theddaos Okundi G34/115015/2018

7 Habib Omar Kongo G34/113945/2018

8 Amina Mwende G34/46357/2017

9 Esther Macharia G34/102647/2017

10 Benjamin L. Onyango G34/115168/2018

11 Owino Ben Ogwang G34/114741/2018

12 Nasrudin Abdirashid G34/101615/2017

13 Maximus Katua Mutuku G34/113863/2018

14 Haryson Lekiti G34/105041/2017

15 Naomi Ngugi G34/115834/2018

10