Patrick Mukono Kisilu t/a Mutomo Kandae General Agencies v County Government of Kitui [2021] eKLR

Key Facts

Transaction Type

Issues

• Whether the trial court had jurisdiction to determine the suit involving constitutional questions about debt liability between National and County Governments.
• Whether the provisions of Section 13A of the Government Proceedings Act apply to County Governments and if the Attorney General represents them for legal proceedings.

Holdings

• The court found the trial court had jurisdiction to determine the debt dispute, as it did not require constitutional interpretation under Article 165(3).
• The court held that Section 13A of the Government Proceedings Act does not apply to County Governments as they are represented by private lawyers and County Attorneys, not the national Attorney General.

Remedies

• The appeal is allowed, reversing the trial court's decision.
• The suit is referred to the Chief Magistrate's court for further orders and directions.
• The preliminary objection is dismissed, as it was not valid under the circumstances.
• The trial court's dismissal order is set aside, allowing the case to proceed.

Contract Value

Legal Principles

• The court applied a purposive approach to interpret the Government Proceedings Act, concluding that Section 13A does not apply to County Governments. This was based on the constitutional distinction between National and County Governments and the need to align statutory interpretation with the Constitution's intent to ensure access to justice.
• The decision reinforced the principle that subordinate courts have jurisdiction to apply the Constitution and other laws within their civil jurisdiction, provided the matter does not exclusively fall under the High Court's reserved constitutional interpretation powers under Article 165(3).
• The court held that Section 13A of the Government Proceedings Act is unconstitutional as a mandatory requirement because it hinders access to justice under Article 48 of the Constitution. This was based on the rationale that mandatory notice provisions disproportionately burden claimants against the government.

Precedent Name

• Executive Committee Kisii County & 2 Others versus Masosa Construction Ltd & Anor.
• James Orengo versus A.G. & Anor.
• Council of Governors & 5 Others versus The Senate & Anor.
• Lawrence Ogaro Onyiengo versus Samuel Munika & Anor.
• Bod Thomson Dickens Ngobi versus Kenya Ports Authority & Other

Cited Statute

• Constitution
• Officer of A.G. Act
• Government Proceedings Act
• County Government Act

Judge Name

Passage Text

• The provisions of Section 13A of the Government Proceedings Act do not apply to County Governments... The County Governments are represented by private lawyers and the County Attorneys. This means that as a matter of law the provisions of Section 13A of Government Proceeding Act do not apply to County Government and the trial Magistrate misdirected himself when it held that the Appellant should have issued notice pursuant to Section 13 (A) before suing the Respondent herein.
• The trial court was seized with the requisite jurisdiction to determine whether the debt was owed and by whom. To determine the same, nothing hindered the trial court to apply the applicable law.

Damages / Relief Type