Kenya: Attorney General Githu Muigai has supported Lands Cabinet Secretary Charity Ngilu in a case filed at the Supreme Court by the National Lands Commission (NLC).
NLC is seeking an advisory opinion following turf wars with Ngilu's office. Through lawyers Paul Muite and Kioko Kilukumi, Prof Githu Muigai asked the court to dismiss the advisory opinion sought by the commission on grounds that it lacks original jurisdiction to handle constitutional issues.
The AG submitted that NLC should have sought issues to do with funding allocation by Parliament instead of seeking the court's decision to legitimise their own views on constitutional interpretation.
"Only cardinal issues of law deserve the supreme courts' input, and the issues of interpretation of the constitution are vested in the high court judicial review court, the commissions' mandate is to formulate policy and make recommendations to ministry," said Muite.
Supreme Court Judges led by Chief Justice Willy Mutunga heard that NLC sought the State law opinion and disregarded it. Muite said the Supreme Court should guard the primary jurisdiction of lower courts, before entertaining the advisory opinion based on constitutional interpretation.
"This is a final court and it is not the right forum for NLC to begin ventilating issues of interpretation of the law. There are no issues among the 27 that relates to county governments," said Kilukumi.
Lawyer Tom Ojienda in opposing the preliminary objection, said the turf wars between the Ministry of Lands and the Muhammad Swazuri-led NLC ought to be brought to an end by the highest court of the land.
Prof Ojienda said the fact the AG had taken sides with the ministry, was an obvious reason for the Supreme Court to intervene and state the constitutional and statutory mandates of the two government institutions.
"The NLC conducted interviews for country government management boards and they are yet to assume office due to human resource issues. The ministry claims the staff as well as the NLC, hence we are here to solve HR issues," said Ojienda.
He said county governments hold both public and community land on behalf of her citizens and managed by the NLC which accounts on tax, rent, lease renewals income to the former.
In a similar submission with Katiba Institute, Ojienda said the presidential executive order 3, had taken powers of NLC chairman and given them to the CS.
"NLC is not part of government ministry, it is an independent commission and a state agency hence its independence needs to be guarded for public good," said Waikwa Wanyoike, lawyer for Katiba Institute.
Commission for Implementation of the Constitution did not support or oppose the AG's objection.
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