Governors lose attempt to control eight parastatals

The judge agreed with the Attorney General that the 2017 case was premature as the dispute had been presented before the committee.

"The inevitable conclusion that this court comes to as a result is that the respondents' challenge of the court's jurisdiction through their various preliminary objections is merited, as the suit was filed prematurely. The court cannot therefore issue the orders sought by the petitioner."

In the case, governors were targeting the Energy Regulatory Commission (ERC), Rural Electrification Authority (REA), National Transport and Safety Authority (NTSA), Kenya Urban Roads Authority (Kura), Kenya Rural Roads Authority (Kerra), Kenya Ferry Services Limited, and Kenya Roads Board.

The 47 governors argued that it is unconstitutional for parastatals to perform functions within counties' roles as provided under the Fourth Schedule of the Constitution.

The parastatals, however, told the court that the CoG had no powers to sue on behalf of the counties.

At the same time, the court heard there were other four cases filed over the same stalemate between governors and the Executive.

The AG said that governors had not exhausted the alternative dispute resolution (ADR) process. According to the AG, disputes between the two levels of government ought to be subjected to the ADR before a case is filed in court.

"The dispute ought to be subjected to mediation under the Intergovernmental Technical Relations Committee. The doctrine of exhaustion of remedies prevents a litigant from seeking a remedy in a new court or jurisdiction until all claims or remedies have been exhausted in the original one," the AG argued.

The AG claimed that the governors' body was forum-shopping, seeking a favourable avenue to air grievances and resolve the dispute, which amounts to an abuse of the court process.

Meanwhile, REA, NTSA, Kura, Roads Board and Kenya Ferry Services never responded to the case.