https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12301

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. 492 OF 2019** **IN THE MATTER OF ALLEGED INFRINGEMENT OF THE PROVISIONS OF ARTICLES 6 (2), 10, 47 (2), 73, 129, 189, 201, 202, 219, 225, 228 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012** **-BETWEEN -** **COUNCIL OF GOVERNORS** ................................................. **PETITIONER** **-VERSUS-** **THE NATIONAL TREASURY** ........................................ **1ST RESPONDENT** **THE CONTROLLER OF BUDGET** ...............................**2ND RESPONDENT** **THE ATTORNEY GENERAL** ........................................ **3RD RESPONDENT** **RULING** **Introduction** 1. The Petitioner, Council of Governors, is a statutory body established under Section 19 of the Intergovernmental Relations Act No. 2 of 2012. It comprises the 47 County Governors of the 47 County Governments whose functions as set out under Section 20 of the Act to, *inter alia*, provide a forum for, among others, consultation amongst county governments and consider matters of common interest to the County Governors. It also serves as a link between County Governments, the National Government and international partners. 2. The Petitioner filed a Petition **dated 10th December 2019** seeking declaratory orders to enforce specific operational timelines and mechanisms for transferring the equitable share of revenue to County Governments under ***Article 219 of the Constitution*** and ***Section 17(6) of the Public Finance Management (PFM) Act***. 3. The Petitioner seeks the following reliefs: 1. ***A DECLARATION that within the intendment of Article 219 of the Constitution, as read together with Section 17 (6) of the Public Finance Management Act, the 1st and 2nd Respondents are bound to release the equitable share in a timely manner and in any event not later than 15th of every month.*** 2. ***A DECLARATION that in accordance with the provisions of Article 219 of the Constitution, as read together with Section 17 (6) of the PFM Act, the 1st and 2nd Respondents should immediately disburse the equitable share of revenue due to all the county governments.*** 3. ***A DECLARATION that in the event of serious or persistent material breach, the 1st Respondent may not stop the transfer of more than fifty percent of the funds due to a county government in line with Article 225 (4) of the Constitution.*** 4. ***Such further and other reliefs be granted to the petitioner as this Court deems fit.*** 5. **Costs of this Petition.** 4. The Petition is supported by the affidavit sworn by **Jacqueline Mogeni,** on theeven date of the Petition and further supported by the Supplementary Affidavit of **Mary Mwiti,** the Chief Executive Officer of the Petitioner, sworn on **10th June 2022.** 5. The background of this Petition is that the dispute arose because the National Treasury, which is the 1st Respondent herein stopped and delayed disbursements of the equitable share of revenue due to County Governments, allegedly disregarding ***Articles 219 and 225 of the Constitution as well as sections 17(6) and 97(5) of the Public Finance Management Act***. 6. The Petitioner contends that withholding these funds stifles operations at the county level, leaving local governments without adequate financial resources to perform their constitutional functions and deliver essential services. That this delay hurts efficient local governance and negatively impacts the public’s overall well-being and interests. It is asserted that these financial disruptions and their consequences form the backdrop and primary basis for bringing this Petition before the Court. 7. In the supplementary affidavit, it is averred that under ***Article 219 of the Constitution*** and ***Section 17(6) of the Public Finance Management (PFM) Act***, the National Treasury is legally mandated to transfer county revenue allocations without delay by the 15th day of every month. That despite this Court’s interim order issued on 13th December 2019 by Hon. Justice W. Korir compelling the National Treasury and the Controller of Budget to immediately release funds, the National Treasury repeatedly failed to adhere to the schedule. That by early June 2022, near the end of the 2021/2022 financial year, only 25 counties had received their April disbursements and only a single county had received its May allocation, leaving significant outstanding arrears. 8. The deponent further highlights that the National Treasury unlawfully created conditions for these disbursements by issuing several circulars that tied the release of equitable revenue to the settlement of outstanding county pending bills, such as debts owed to Kenya Power and unremitted retirement scheme contributions. 9. It is deposed that neither the Constitution nor the PFM Act permits revenue transfers to be contingent on clearing pending bills. That despite multiple urgent written pleas made by the Council of Governors to the National Treasury warning of impending crises, the persistent delays severely crippled county operations, derailed budgeted development projects and threatened to bring essential local public services to a complete halt. 10. In response to the Petition, the 3rd Respondent, the Hon. Attorney General filed a Notice of Preliminary Objection dated 2nd October, 2023, seeking to have the Petition struck out on the following grounds: 11. ***The Honourable Court lacks jurisdiction to take cognizance, hear, and determine the Petition and Application filed.*** 12. ***The Petitioner lacks the requisite legal capacity and mandate under Section 20 of the Intergovernmental Relations Act No.2 of 2012 to institute and maintain the Application and the Petition herein.*** 13. ***The Petitioner as constituted is a forum and not a legal person capable of instituting and maintaining suits before any court of law.*** 14. ***In the alternative and without prejudice to ground 2 & 3 above, The Petition and the Application is premature and a gross abuse of the court process for want of compliance with Sections 30, 31, 32, 33, and 34 of the Intergovernmental Relations Act, No.2 of 2012.*** 15. ***The Supreme Court in an Advisory Opinion; Council of Governors & 47 others v Attorney General & 3 others (Interested Parties); Katiba Institute & 2 others (Amicus Curiae) [2020] eKLR, held the following on the subject issue in the present Petition:*** ***“(Par 226) This Advisory Opinion, as rendered by the Majority of this Bench, conclusively disposes of the four issues in the manner determined; namely, the recommendations of the Commission on Revenue Allocation are not binding on Parliament; in the event of an Impasse over the Division of Revenue Bill, the solution prescribed in paragraphs 81 to 91 of this Opinion shall apply; the Supreme Court or any other court for that matter, is not the appropriate forum for setting timelines as to when the National Treasury must transfer the equitable share of revenue to counties; and Parliament cannot enact the Appropriation Act before the enactment of the Division of Revenue Act.”*** 1. ***That the orders sought in the petition are not awardable for the reason that they had either been overtaken by events.*** 2. The preliminary objection was canvassed by way of written submissions. **Submissions** 1. **The Petitioner’s submissions** are dated **5th March 2024**. Counsel for the Petitioner isolated three issues for determination namely: 2. ***whether this Court has jurisdiction to hear and determine the matter;*** 3. ***whether the Petitioner has the legal capacity to institute the instance Petition before this Court; and*** 4. ***whether the Cabinet Secretary for the 1st Respondent has the power to stop the full transfer of funds to counties without following the laid down processes under the Public Finance Management Act and the Constitution of Kenya.*** 5. On the first issue, Counsel for the Petitioner cites the landmark case of ***Owners of the Motor Vessel “Lillian S vs Caltex Oil (Kenya) Ltd (1989) KLR*** and ***Kakuta Maimai Hamisi v. Peris Pesi Tobiko & 2 Others, Civil Appeal No. 154 of 2013*** and submits that jurisdiction is fundamental and determinative, that this Court possesses original jurisdiction under ***Article 165 of the Constitution*** to interpret constitutional issues and address violations of rights.Further, supported by the case of ***Abidha Nicholus v the AG and 7 Others, Supreme Court Petition No. E007 of 2023*** and ***KRA v. Darasa Investments Ltd, Civil Appeal No. 24 of 2018,*** Counsel for the Petitioner argues that *the mere presence of alternative remedies does not bar court access especially when constitutional interpretation is required and alternative remedies are inadequate.* That accordingly, blocking court access would infringe on the right to a fair hearing under ***Article 50***. 6. On the second issue, Counsel rejects the 3rd Respondent’s contention that the Council of Governors is a "forum" rather than a juristic person capable of suing and argued that under ***Articles 22, 258, and 260 of the 2010 Constitution***, locus standi is broadly interpreted in that, any person includes incorporated or unincorporated bodies which can institute proceedings in the public interest or to enforce constitutional rights. Counsel asserts that the Council represents all 47 Governors and coordinates matters of common interest under ***Section 20 of the Intergovernmental Relations Act***. 7. Citing ***Council of County Governors v. Lake Basin Development Authority and 6 Others, Constitutional Petition No. 280 of 2017***, where the High Court previously affirmed that the Council has legal capacity to institute public interest and constitutional petitions, he argued that the averment by the Respondents is unfounded and contravenes the Constitution. 8. On the third issue, Counsel for the Petitioner submits that under ***Article 225(4) of the Constitution*** and ***Section 97(5) of the Public Finance Management (PFM) Act***, even in cases of material breach, the Cabinet Secretary for National Treasury cannot stop more than 50% of the funds due to a County Government. It is submitted that ***Article 219*** mandates prompt transfer of equitable revenue without undue delay or deductions and Section ***17(6) of the PFM Act*** sets an explicit deadline that funds must be disbursed on or before the 15th day of every month. 9. Counsel for the Petitioner argues that Treasury circulars attempting to condition or "peg" disbursements on the settlement of pending bills are illegal and unconstitutional. It is their submission that delays and funding halts severely impair county operations, hindering service delivery across functions delegated to counties under the Fourth Schedule. They urge the Court to dismiss the preliminary objection and allow the Petition. 10. **The Respondents’ submissions** are dated **2nd June 2026**. Counsel for the Attorney General submits on one issue being whether the Respondent’s Notice of Preliminary Objection is merited. Counsel cites the *locus classicus* ***Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969) EA 696, Oraro v. Mbaja (2005) 1 KLR 141*** and ***Omondi v. National Bank of Kenya Ltd (2001) 1 EA 177*** and emphasize that a preliminary objection must be a pure point of law argued on the assumption that all facts alleged by the Petitioner are true. The Respondents assert that even if the Petitioner’s allegations regarding revenue delays are factual, the High Court is legally barred from entertaining the petition or dispute due to a lack of subject-matter jurisdiction, lack of legal capacity and non-exhaustion of statutory remedies. 11. On the issue of lacking juridical capacity, Counsel cites ***Fort Hall Bakery Supply Co. (1959) EA 474*** and ***Housing Finance Company of Kenya Ltd v. Embakasi Development Project (2004) 2 KLR 548*** and states that a non-existent entity or body lacking legal personality cannot maintain a court action. It is submitted that the Council of Governors is established under ***Section 19 of the Intergovernmental Relations Act (IGRA) 2012,*** and is legally defined as a consultative forum. That Parliament intentionally did not grant it corporate personality, perpetual succession, a common seal, or the capacity to sue and be sued. Counsel submits that unlike procedural misnomers, the Council’s complete absence of juristic personality makes the petition a legal nullity requiring it to be struck out as was in the case in ***MacFoy v. United Africa Co. Ltd (1961) 3 All ER 1169***. 12. On the issue of non-exhaustion of remedies, it is submitted that courts will not decide a constitutional issue if a dispute can be resolved through ordinary statutory provisions as was held in ***Communications Commission of Kenya v. Royal Media Services (2014)*** ***eKLR*** and ***Bodo v. Royal Media Services, (2025) KEHC 17951 (KLR).*** It is further submitted that litigants cannot dress standard statutory grievances under the PFM Act as constitutional petitions. 13. Secondly, Counsel submits that ***Sections 30–34 of the Intergovernmental Relations Act*** establish a mandatory, multi-tiered framework for resolving financial and inter-governmental disputes between the National and County Governments. That following established jurisprudence in ***Arunda v. ODPC (2025) KEHC 12262 (KLR)*** and ***Ndung’u & Another v. Wachira & Another (2025) KEHC 7265 (KLR),*** parties must exhaust internal or specialized alternative dispute resolution (ADR) mechanisms before approaching the High Court. Further, that the High Court acts as an appellate forum of ultimate recourse, not the primary court of first instance as observed in ***Karani v Kenya Private Sector Alliance (2025) KEHC 3788 (KLR)*** and the Court of Appeal case in ***Samuel Cheratsi Munga v James Marangu M’Mukethya & 1750 Others (2015) KECA 304***. 14. Relying on Owners of the ***Motor Vessel "Lillian S" (1989)*** and ***Samuel Kamau Macharia v. KCB (2012),*** Counsel asserts that a court without jurisdiction must "down its tools" immediately and urges that the Court upholds the preliminary objection and strikes out the Petition in its entirety with costs to the Respondents. **Analysis and Determination** 1. Having considered the the pleadings and affidavits filed by all parties, the preliminary objection and submissions for and against the preliminary objection, the main issue for determination is ***whether the Preliminary Objection is merited***. To further determine this, this court will answer the following questions: 2. ***Whether the Petitioner has the requisite juridical capacity to institute the Petition.*** 3. ***Whether the Court has jurisdiction over the petition in light of the doctrines of exhaustion and constitutional avoidance.*** 4. **Whether the Petitioner has the requisite juridical capacity to institute the Petition.** 5. The gravamen of the 3rd Respondent’s Preliminary Objection is that the Court should strike out the Petition *in limine* because the petitioner has no juridical capacity to institute proceedings, the petition represents a jurisdictional overreach, is a procedural misdirection and a failure to comply with alternative mandatory statutory dispute resolution pathways. 6. The principles governing preliminary objections were aptly stated in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** where Law JA stated: - ***“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. Sir Charles Newbold P. Further stated: - ***“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit.”*** 1. The argument by the 3rd Respondent on the issue of locus is that the Petitioner lacks legal personality because *Section 19 of the Intergovernmental Relations Act, 2012* designates it as a forum rather than a body corporate with capacity to sue. The Petitioner counters this argument and submits that the Petitioner is a Council representing all 47 Governors and coordinates matters of common interest and is equally a person under the Constitution’s definition. That further, the issue of *locus standi* in constitutional petitions was eroded by ***Article 22 of the Constitution*.** 2. I have considered these rival arguments against the provisions of the Constitution. **Article 22 of the Constitution** provides as follows: ***22. Enforcement of Bill of Rights*** ***(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.*** ***(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—*** ***(a) a person acting on behalf of another person who cannot act in their own name;*** ***(b) a person acting as a member of, or in the interest of, a group or class of persons;*** ***(c) a person acting in the public interest; or*** ***(d) an association acting in the interest of one or more of its members.*** 1. **Article 258** further provides for the enforcement of the Constitution as follows: - ***258. Enforcement of this Constitution*** ***(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.*** ***(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—*** ***(a) a person acting on behalf of another person who cannot act in their own name;*** ***(b) a person acting as a member of, or in the interest of, a group or class of persons;*** ***(c) a person acting in the public interest; or*** ***(d) an association acting in the interest of one or more of its members.*** 1. **Article 260** defines a person as follows: - ***"person" includes a company, association or other body of persons whether incorporated or unincorporated;*** 1. It is not in dispute that the petition is brought in the public interest of all the 47 county governments representing the citizens in the said Counties. Neither is there any dispute that the Council of County Governors is a person by virtue of the definition under **Article 260 of the Constitution.** More so, the functions of the petitioner as set out under **Section 20 of the Intergovernmental Relations Act (2012)** are as follows: ***20. Functions of the Council*** ***(1) The Council shall provide a forum for—*** ***(a) consultation amongst county governments;*** ***(b) 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 and where necessary, initiating preventive or corrective action;*** ***(c) considering matters of common interest to county governments;*** ***(d) dispute resolution between counties within the framework provided under this Act;*** ***(e) facilitating capacity building for governors;*** ***(f) receiving reports and monitoring the implementation of inter-county agreements on inter-county projects;*** ***(g) consideration of matters referred to the Council by a member of the public;*** ***(h) consideration of reports from other intergovernmental forums on matters affecting national and county interests or relating to the performance of counties; and*** ***(i) performing any other function as may be conferred on it by this Act or any other legislation or that it may consider necessary or appropriate.*** 1. The fact that the Petitioner is empowered under the Act to carry out specific functions affecting the public and to conduct dispute resolution within the framework of the Act and to consider matters that are referred to it as well as any other functions stipulated by the Act or other laws, gives the petitioner the legal capacity to file a Petition affecting its functions, before this Court. 2. Further, it is observed that while statutory bodies ordinarily derive their power to sue from explicit corporate status in their establishing Acts, constitutional litigation under the Constitution operates on an expanded legal framework. **Articles 22(1) and 258(1)** cited above grant every person the right to institute court proceedings claiming that a right has been infringed or that the Constitution is violated or threatened with contravention. That renders the Petitioner an appropriate juridical person to institute proceedings before a Court of law. 3. I am ffortified on this position by the persuasive determination of Mativo J. *(as he then was)* in **Council of County Governors v Lake Basin Development Authority & 6 others, Constitutional Petition No. 280 of 2017 [2017] eKLR,** where the learned Judge affirmed the Council of Governors as a juridical person and held thus: - ***“70. The Council of Governors is without doubt established by statute. Its functions are outlined under Section 20 of the Intergovernmental Relations Act.[57] By its very name the Council is composed of governors who derive their mandate from the public. Apart from representing the interests of the individual county governments and counties they govern, they hold an even higher responsibility as a Council, that of representing their counties’/county governments’ interests. Matters devolution cannot be divorced from public interest. The counties are composed of the public. On the argument that the Council is not a body corporate/ juristic person, I stand guided by the above cited cases above. To hold otherwise would in my view amount to a restrictive interpretation of the Constitution and n affront to Article 259.*** ***71. The Intergovernmental Relations Act*** [***[58]***](https://sheriahub.com/cases/#_ftn58)***must be read in conformity with the Constitution. The provisions of Article 22 have lifted the veil on the hitherto locus standi doctrine that for a long time blocked many a people from accessing justice. Under this provision, “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened”. Further under Article 258(1), “Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.” In both cases, a person can institute proceedings in their own interest, they may institute in the interest of a group or class of persons. Article 260 seals it all by defining the term ‘Person’ to include a company, association or other body of persons whether incorporated or unincorporated.*** ***72. In this instance I find that the Council of governors fits well under Article 258(1) and all enabling Articles of the Constitution in that; they have instituted proceedings claiming contravention or threatened violation of the Constitution; they represent individual, county and national interest; the petition lodged and the issues raised therein raise constitutional matters of public interest. Consequently, I find and hold that the Petitioner has capacity and indeed the right to file this petition before this Court.*** 1. In the premise, I find that the Petitioner herein represents the collective interests of the 47 County Governments on matters affecting devolution and revenue allocation and therefore, restricting its capacity to bring constitutional disputes regarding the alleged systemic financial delays would undermine public interest and public finance principles espoused under Chapter Twelve of the Constitution. 2. See **Mumo Matemu V. Trusted Society of Human Rights Alliance, Attorney-General, Minister for Justice and Constitutional Affairs, Director of Public Prosecutions, Kenya Section of International Commission of Jurists & Kenya Human Rights Commission (2014) JELR 97292 (SC).** 3. On the whole, I am satisfied that the petitioner fits the definition of a person under Article 260 and therefore has a right and mandate to institute proceedings under Articles 22 and 258, 260 of the Constitution and Section 20 of the Act. See Mumo Matemu Accordingly, I find the preliminary objection hinged on locus standi to be devoid of merit. I dismiss it. 4. **Whether the Court has jurisdiction over the suit in light of the doctrines of exhaustion and constitutional avoidance.** 5. The doctrines of exhaustion and constitutional avoidance have been discussed by the courts in a myriad of authorities. To begin, the doctrine of exhaustion was aptly set out by the Supreme Court in **NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) (2023) KESC 17 (KLR)** where it was held that: - ***“86.…In this country, it is now firmly established law that in cases where there is an alternative dispute resolution mechanism established by legislation, the courts must exercise restraint in exercising their jurisdiction and accord deference to such dispute resolution bodies under the doctrine of exhaustion….In the case of Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others SC Petition No 3 of 2016; [2019] eKLR we underscored the need for the relevant person, bodies, tribunals and any other quasi-judicial authorities and organs to be given the first opportunity to deal with disputes as provided for in the relevant parent statute. In the case of United Millers Limited v. Kenya Bureau of Standards, Director, Directorate of Criminal Investigations & 5 others, SC petition (application) No 4 of 2021; [2021] eKLR we were emphatic that the courts must exercise restraint in exercising their jurisdiction conferred by the Constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance.*** ***87. This is further firmly rooted in Article 159 of the Constitution which requires the courts to promote alternative dispute resolution mechanisms. The moment a storm begins to brew; courts should not be the first port of call but rather the final resort. Before using the court's jurisdiction, it is essential to exhaust any available alternative dispute resolution options. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his interests within the mechanisms in place for resolution outside the courts. The exhaustion doctrine acts as a safeguard to delay judicial consideration of cases to ensure that a party is vigilant in protecting his interests within the channels available for dispute settlement methods. In this way, the doctrine serves to promote an efficient justice system and an autonomous administrative state.”*** (Emphasis added) (See also**Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR)** 1. It is trite that, parties are required to exhaust alternative dispute resolution remedies and must only approach the courts as a final result, or on appeal or where such remedies are inadequate. (See **William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR**). 2. I have considered the crux of this Petition before the Court. The Petitioner decries the failure by the National Treasury the 1st Respondent herein, to disburse or avoid delayed disbursements of the equitable share of revenue due to County Governments as the same impedes county operations, amongst other reasons. 3. Under **Sections 30-35 of the Intergovernmental Relations Act No. 2 of 2012,** a multi-tiered framework exists for resolving any disputes that arise relating to the county governments who are represented by the Petitioner herein. The said provisions states: - ***Application of this Part.*** ***30. (1) In this Part, unless the context otherwise requires, "dispute" means an intergovernmental dispute.*** ***(2) This Part shall apply to the resolution of disputes arising—*** 1. ***between the national government and a county government; or*** 2. ***amongst county governments.*** ***Measures for dispute resolution.*** ***31. The national and county governments shall take all reasonable measures to—*** 1. ***resolve disputes amicably; and*** 2. ***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.*** ***Dispute resolution mechanisms.*** ***32. (1) Any agreement between the national government and a county government or amongst county governments shall—*** 1. ***include a dispute resolution mechanism that is appropriate to the nature of the agreement; and*** 2. ***provide for an alternative dispute resolution mechanism with judicial proceedings as the last resort.*** ***(2) Where an agreement does not provide for a dispute resolution mechanism or provides for one that does not accord with subsection (1), any dispute arising shall be dealt with within the framework provided under this Part.*** ***Formal declaration of a dispute.*** ***33. (1) Before formally declaring the existence of a dispute, parties to a dispute shall, in good faith, make every reasonable effort and take all necessary steps to amicably resolve the matter by initiating direct negotiations with each other or through an intermediary.*** ***(2) 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.*** ***Procedure after formal declaration of a dispute.*** ***34. (1) Within twenty-one days of the formal declaration of a dispute, the Summit, the Council or any other intergovernmental structure established under this Act shall convene a meeting inviting the parties or their designated representatives—*** 1. ***to determine the nature of the dispute, including—*** 2. ***the precise issues in dispute; and*** 3. ***any material issues which are not in dispute; and*** 4. ***to—*** 5. ***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; or*** 6. ***subject to Article 189 of the Constitution, 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.*** ***(2) Where a mechanism or procedure is specifically provided for in legislation or in an agreement between the parties, the parties shall make every reasonable effort to resolve the dispute in terms of that mechanism or procedure.*** ***(3) Where a dispute referred to the Councillor any other 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.*** ***Judicial proceedings.*** ***35. Where all efforts of resolving a dispute under this Act fail, a party to the dispute may submit the matter for arbitration or institute judicial proceedings.*** 1. The above provisions are clear, particularly Section 30 on the exhaustion of all alternative dispute resolution mechanisms before resorting to judicial fora. A litigant is precluded from bypassing these avenues or statutory framework for resolution of disputes in pursuit of redress before a constitutional court. 2. There is no evidence that the Petitioner attempted to explore any of the dispute resolution mechanisms set forth under ***Sections 30 -34 of the Act*** or to demonstrate that the statutory mechanisms were inadequate and therefore requiring of the Court’s intervention. My analysis of this fact is that there is no justification for moving the Court at this time to seek constitutional redress for matters that could have been well ventilated before a different forum established by law. 3. On the other hand, applying the doctrine of constitutional avoidance, where statutory mechanisms exist, as is in the present case, to manage public finance management compliance and intergovernmental disputes under the Public Finance Management Act and Intergovernmental Relations Act, parties must invoke those administrative and statutory remedies rather than inviting the Court to manage operational fiscal timelines. In other words, litigants must avoid fashioning their grievances as constitutional violations if those grievances are disputes that can be resolved as provided for in the law. See Article 159(2) (c) of the Constitution. 4. differently clothed disputes. 5. In the present petition, the primary relief is a declaration compelling the 1st and 2nd Respondents to disburse equitable revenue allocations by the 15th of every month. The Supreme Court has previously held that courts lack the mandate to set or judicially enforce specific operational disbursement timelines for the National Treasury. The Supreme Court in its Advisory opinion: **In the Matter of Council of Governors & 47 others (Reference 3 of 2019) [2020] KESC 65 (KLR) (15 May 2020) (Advisory Opinion) (with dissent - N Ndungu, SCJ)** statedthus: - ***“94. The uncontestable requirement of article 219 is that the transfer of equitable revenue to Counties shall be affected “without undue delay” [Emphasis added]. Constitution does not set a specific timeline within which the National Government must transfer the funds to Counties. Yet in their submissions, the Applicants contend that without a specific timeline, the National Government has largely disregarded this Constitutional edict. In our view, it all depends on what in this context, constitutes “undue delay”. In this regard, unless there are set timelines in Constitution or the law, a Court has to consider each case on its own merits to determine whether there has been undue delay in the performance of an act by the concerned entity.*** ***95.By stopping short of prescribing a specific time limit, article 219 allows for a degree of flexibility on the part of the National Treasury in effecting monetary transfers to Counties. We would be hesitant to interfere with this arrangement, given the complexity and elasticity of the subject matter. We don’t think that this court is the appropriate forum to determine with precision, when monies due to counties, should be actually transferred. However, the fact that Constitution has not prescribed a specific timeline, does not give the National Treasury the latitude to capriciously decide when to disburse funds to the counties. Just like the National Government, Counties operate within rigid budgetary cycles. Any delay in releasing funds to Counties, has to be justifiable and must be explained in good time at a forum convened for that purpose by the National Government. To release funds at a time when the same cannot be realistically utilized in the implementation of county projects as per their budgets constitutes a violation of Constitution.”*** (Emphasis added) 1. Based on the above Supreme Court’s pronouncement that courts lack the mandate to set or judicially enforce specific operational disbursement timelines for the National Treasury, I agree with the Respondents that this Court is bereft of jurisdiction to grant the primary declaratory reliefs sought in Prayers (a) and (b) of the Petition. It must therefore down its tools as guided in the case of **Owners of Motor Vessel Lilians “s” versus Caltex Oil (K) Ltd (1989) KLR** where it was held thus: - ***“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings.”*** 1. In the upshot, the second limb of the Preliminary Objection is found to be merited on the basis that this Court lacks jurisdiction for want of exhaustion of remedies and constitutional avoidance. Accordingly, the Preliminary objection dated 2nd October, 2023 is upheld and the Petition dated 10th December, 2019 and the attendant Applications are hereby struck out with no orders as to costs. 2. This file is closed. 3. Orders accordingly. **Dated, Signed & Delivered virtually at Nairobi this 3rd Day of August 2026** **R.E. ABURILI** **JUDGE**