The Intergovernmental Relations (Alternative Dispute Resolution) Regulations. Legal Notice no. 4 of 2021

1. T hese Regul ations may be cited as the I ntergovernmental C i tat i o n . Rel ati ons (A lternati ve D ispute Resolution) Regulati ons, 2 0 2 1 .

2 . I n these Regulations, unless the context otherwi se requires— Interpretati on. “ A ct” means the I ntergovernmental Relations A ct , 20 12; N o . 2 of 20 12 . “ al ternative di spute resolution mechanisms” means any m et h o d of resolvi ng disputes i nstead of litigation that i s used by the parties to resol ve an i ssue i n controversy or any dispute and may i nclude negotiation, conciliation, mediation, traditional dispute r e s o l u t i o n o r ar b i tr ati o n ; “ alternativ e di spute resolution practitioner” means a n i n d i v i d u a l appointed to assist, guide or determine an intergovernmental di spute; “ award” means the f inal decision of an arbitrator , in an intergovernmental dispute; “ Cabi net Secretary ” means the Cabi net Secretary responsible f or matters relating to i ntergovernmental rel ati ons; “ Council ” means the Council of County Governors establ ished u nder secti on 19 o f the A ct ; “ dispute” means an intergovernmental dispute as defi ned u n d e r sect i o n 30 o f the A c t ; “ i ntergovernmental f orum” means any intergovernmental f or u m and includes such forum as may be established pursuant t o se c t i o n 13 (2) or 38 (2) (e) of the A ct; “ li ne mi nistry ” means the mi nistry for the time being responsible for a sector wi thin which an issue in controversy or dispute has emerged; “ recogni sed i nsti tution” means a regi stered institution that tr ai ns, accredits or val idates alternative di spute resolution practitioners upon attaini ng the requi si te standards; “ Summi t” means the N ational and County Government Co ordinating Summit establ ished under section 7 of the A ct ; “ T echnical Commi ttee” means the I ntergovernmental Relations T e c h n i c a l C o m m i t t e e e st ab l i s h e d u n d er se c t i o n 1 1 o f the A ct ; Kenya Subsidiary Legislation , 2022 1 “ tradi tional body” means an institution recogni sed by the parties or registered within the Republic of Kenya as an authority wi th respect to traditional knowledge and cultural practices relating to any ethni c community ; and “ traditi onal dispute resol uti on mechani sm” means an intergovernmental dispute resolution process carried out by a traditi onal body .

3. T he obj ects and purposes of these Regul ations are t o — Obj ects and purpose of th e (a) enable parties to a dispute exhaust the alternati ve di spute Regulations, resoluti on mechani sms provi ded under these Regulati ons before resorting to j udicial proceedings; (b) promote and ensure ef fecti ve, ef fici ent and ami cabl e resolution of intergovernmental disputes as contemplated under A rticle 189(3) and (4) of the Constitution; (c ) facilitate and promote intergovernmental consultation an d cooperation as contempl ated under A rticle 6(2) of the Constitution; and (d) foster mutual trust and good faith between the national government and a county government or amongst county gov er nm ent s.

4. These Regulations shall be guided by the following Guiding pri nciples— pri nciples. (a) prompt and amicable resolution of disputes before resorti ng to j udi ci al proceedi ngs; (b) prudent use of public funds in the resol ution of intergovernmental di sputes; (c) upholding the Constitutional principles of consultation a n d co-operation; and (d) compli ance wi th the procedures, deci sions and outcomes made through the dispute resolution processes under t h e s e Regulati ons.

5. ( 1) T hese Regul ations shall apply to the resolution of disputes Application of an si n g — Regulations. (a) betw een the national government and a county government ; (b) amongst county governments; or (c) out of an agreement between the national government an d a county government or amongst county governments where- (i) no dispute resol ution mechani sm i s provided i n t h e agr eem ent ; or (i i) the agreement provides for a di spute resoluti on mechani sm that does not accord wi th the prov isions o f section 32(2) of the A ct . 8 K enya Subsidiary Legislation, 2022 (2) These Regulations shall apply to State organs and publi c offices in both levels of government, particularly- (a) mi ni stri es, departments and agencies within the n at i o n a l government ; and (b) county governments, county departments and agencies within a county government . PA R T I I - PR O C E D U R E B E F O R E F O R M A L D E C L A R A T I O N O F A D I SPU T E

6. (I ) Pursuant to section 33(1) of the Act, parties shal l und er tak e Pr ocedure bef ore f o rm al d e c l ar a t i o n all necessary measures to ami cably resolve issues i n co ntro v er sy of a dispute. through consultation, conciliation or negotiation, bef ore a di spute i s formally declared . (2) The measures envisaged under paragraph (1) may i n c l u d e — (a) direct negotiations betw een parties; (b) consul tations with either — (i) a constitutional commission or an independent offi ce; (ii) a line ministry or county department; (i i i) the Council ; (iv) an i ntergovernmental forum ; (v) a j oint committee constituted pursuant to section 2 3 o f t he A ct ; (vi) a traditional body ; or (vii ) any other person or instituti on as the parties m ay ag r e e to c on su lt ; or (c) conci li ati on through an intermedi ary agreed upon by the parties. (3) W ith respect to any nature of di spute i ncluding b o u n d ar i e s and natural resource di sputes, the parties shal l consult t he r el ev ant statutory or constituti onal body i n accordance with the exi sting l aws. (4) T he parties shal l determine the procedure f or conducting negotiations, concil i ations or consultations prov ided under paragraph (2) . (5) W here parties resolve the issues in controversy pur su ant t o paragraphs ( 1) and (2) , the parties shall , wi thi n seven day s, enter into a wri tten agreement stati ng- (a) the names of the parties; (b) the nature and particulars of the dispute, and i n parti cul ar w hether the dispute rel ates to - (i) the assignment or implementati on of f unctions; K enya Subsidiary Legislation, 2022 9 (i i ) a fi nanci al matter ; (i i i) a wri tten agreement between the parties; (iv) a boundary ; (v) natural resource management ; or (vi) any other form of intergovernmental dispute; and (c) the resol ution or outcome of the process under this regul ation . (6) T he parties shall , withi n seven day s of enteri ng i n t o a n agreement as contemplated under paragraph (4) , submit a copy of the agreement to the Cabinet Secretary , the T echnical Committee a n d t h e C o u n c i l f o r t h e i r i n f o r m at i o n . (7) W here parties f ail to resol ve the i ssues in controversy u n d e r this regulation , a party may , w ithin sev en days, i ssue an d s er v e a n o t i c e of i ntenti on to decl are a di spute i n the form set out i n t h e S c h e d u l e . PA R T i n - F O R M A L D E C L A R A T I O N O F A D I SP U T E

7 . ( 1) W ithin seven days of the expiry of the noti ce i s su e d u n d er F o rm al d e c l ar at i o n o f a regul ation 6(6) , a party may f ormally decl are a di spute i n t h e f o r m se t dispute. out i n the Schedule and accompanied by a summary of the dispute, to — (a) the Summi t through the T echnical Committee; (b) the Counci l where the dispute is amongst county gov ern m ents; or (c) an i ntergovernmental structure established under t h e A c t o r any other written l aw . (2) The declaration made under paragraph ( 1) shall b e se r v e d on — (a) the parties to the intergovernmental di spute; (b) the l ine mini stry ; and (c) the Cabi net Secretary . (3) Where a party fails to formally declare the dispute w i t h i n seven day s after the expiry of the time specif i ed under regul ation 6(6) , the notice shal l be deemed to have l apsed . (4) W here the notice under paragraph (3) lapses, the p arty seeking to resolve the dispute shall issue a fresh n o t i c e u n d e r t h e se Regulations.

8. ( 1) Pursuant to section 34 ( 1) of the A ct , the Summit , or the i nitial meeting. Council , or any other intergovernmental structure, to w hi ch the decl aration w as made shall , withi n twenty -one day s of recei pt of the notice of formal decl aration of a dispute, convene an i nitial meeti ng between the parties or their designated representati ves. (2) T he parties at the initi al meeting convened under paragraph ( 1) shal l - 10 Kenya Subsidiary Legislation, 2022 ( a) determi ne any materi al issues that are not in dispute; (b) determine the preci se issues i n di spute; (c) determi ne the nature of di spute includi ng whether the dispute r e l at e s t o — (i) the assignment or implementati on of functions; (i i ) a fi nanci al matter; (i i i) a w ri tten agreement between the parties; (iv) a boundary ; (v) natural resource management; or (vi) any other f orm of intergovernmental dispute; and (d) identif y and agree on the appropri ate alternative dispute resolution mechanism to be appl ied by the parties in settli ng the di spute, which may i nclude— (i) medi ation; (i i ) traditi onal dispute resolution mechanisms; or (i ii ) any other alternati ve dispute resolution mechani sms under other l egi sl ation . (4) T he parties shal l , at the conclusion of the initial meeting , enter into a written and signed agreement detai l ing — (a) the names of the par ties; (b) the designated representati ves of the parties; (c) the nature of the dispute; (d) any materi al i ssues that are not in di spute; (e) the precise issues i n di spute; (f) the di spute resolution mechani sm agreed to; (g) the date of commencement of the dispute resolution p r o c e ss ; (h) the venue and logistics with respect to conduct of the di spute resol ution process; and (i) their commi tment to the obl igations of the parties u n d er these Regulations. (5) W here parties fai l to agree on an alternative dispute r e so l u t i o n mechani sm , the Summit through the T echnical Committee, t h e C o u n c i l or the i ntergovernmental structure to which the decl arati on w a s m ad e shall , within seven days and in writing, identify an appropri ate mechanism specified under Part IV of these Regulations.

9 . ( 1) T he Summit through the T echnical Committee, t h e C o u n c i l I n t e ir m m e asu r e s and conser vatory or the i ntergovernmental structure to whi ch the decl aration w as m ade , o r d ers . may give directions on any interim measures to be undertaken by either of the parties, pending the if nal determination of the dispute. Kenya Subsidiary Legislation, 2022 I I (2) Without prejudice to the generality of paragraph (1), a party to a dispute may seek conservatory orders from the Court at any time pending the if nal determination of the dispute. PART IV - ALTERNATIVE DISPUTE RESOLUTION M E C H A N I SM S

10. (1) Where the parties agree to refer the dispute to mediati on , M ediation . the parties shall, within seven days of the initial meeting, identify and agree on an accredited mediator to be appointed by ei ther the Su m m i t through the Technical Committee, the Council or the intergovernmental structure to w hi ch the decl aration w as made. (2) Where the Parties do not agree on a mediator, the Sum m i t through the Technical Committee, the Council or the intergovernmental structure to which the declaration was made shall , within seven days of the initial meeting and in writing, request a recognized insti tut ion to appoi nt a mediator . (3) The mediator shall commence the mediation proceedings within fourteen days of appointment. (4) The mediator shall assist the parties to resolve the dispute within fourteen days from the date of commencement of t he m edi at i on proceedings. (5) The Parties may extend the mediation proceedings f or a period not exceeding seven days. (6) Except as otherwise provided in these Regulations, t h e mediator and the parties shall determine their own procedure. (7) The mediator and the parties may, in determining t h e procedure under paragraph (6), adopt the existing rules or procedure of a recognized mediati on insti tution. (8) Where the dispute is resolved under this regulation, t h e mediator shall , within seven days of determination of the dispute, su b m i t — (a) a written and signed agreement where parties reach a settlement ; or (b) a report on the outcome where the parties did not r e a c h a settlement , to the Summit through the Technical Committee, the C o u n c i l o r the intergovernmental structure to whi ch the declaration w a s m ad e . (9) Where a party fails to comply with the agreement r e a c h e d under paragraph (8), the aggrieved party may within ninety day s of the determination of the dispute, apply to the High Court th at the settlement be adopted as a j udgment or order of the C o u r t I I . (1) Where parties agree to refer the dispute to a t r ad i t i o n a l T raditional dispute resolution mechanism, the parties shall, within seven days of disputeresolution, the initial meeting and in writing, identify and agree o n a t r a d i t i o n a l body to be appointed by the Summit through the Technical C om m i tt ee , 12 Kenya Subsidiary Legislation, 2022 the Council or the i ntergovernmental structure to w hich t h e d e c l ar at i o n w as m ad e . (2) Where the parties fail to agree on a traditional body , the Summit through the T echnical Committee, the Counci l o r t h e intergovernmental structure to which the declaration was made shall , within seven days of the initial meeting and in writing, i denti fy and appoint a suitable traditional body. (3) The traditional body appointed under this regulation s h a l l commence the dispute resolution process within fourteen days of appoi ntment . (4) The traditional body shall assist the parties to r e s o l v e t h e dispute within twenty-one days from the date of commencement o f t h e proceedings. (5) The parties may extend the proceedings for a period n o t exceeding seven days. (6) Except as otherwise provided in these Regulations, t h e traditional body and the parties shall determine their own procedure. (7) The traditional body shall conduct the process i n conformi ty with the provi sions of A rticle 159 (3) of the Constitution . (8) Where the dispute is resolved under this regulation, t h e traditional body shall submit to the Summit through the T echni c al Committee, the Council or the intergovernmental structure t o w h i c h t h e declaration was made, the outcome of the dispute resolution p r o c e s s , and any other document that may be necessary. (9) Where a party fails to comply with the agreement r e ac h e d under paragraph (8), the aggrieved party may within ninety day s of the determination of the dispute, apply to the High Court t h a t t h e settlement be adopted as a j udgment or order of the C o u r t .

12. (1) Where the parties agree to refer the dispute to arbitration , A rbiu ation . the parties shall within seven days of the initial meeti ng , identif y and agree on an accredited arbitrator to be appointed by t h e S u m m i t through the T echnical Committee, the Counci l or the i ntergovernmental str uc tu re to w h i ch the dec l ar at ion w as m ade . (2) Where the Parties fail to agree on an arbitrator, t h e S u m m i t through the T echnical Committee, the Counci l or the intergovernmental structure to which the decl aration w as made shal l , w ithin seven days of the initial meeting and in writing, request a recognized i n st i t u t i o n t o appoint an arbitrator . (3) The arbitrator shall commence the arbitration proceedings within 14 day s of appoi ntment . (4) T he arbitrator shall hear and determine the di spute r e f er r e d t o arbitration within thirty days of the date of commencement o f the arbitr ation proceedings. (5) The Parties may extend the arbitration proceedings f o r a peri od not exceeding f if teen days. Kenya Subsidiary Legislation, 2022 13 (6) T he A rbitration A ct , 1995 and the arbitration rules o f t h e institution selected by the parties shall apply to the arbitration process provided under this regulation. (7) Where the dispute is resolved under this regulation, t h e arbitrator shall, within seven days, submit the arbitral a w ar d t o t h e Summit through the Technical Committee, the Council o r t h e intergovernmental structure to which the declaration w a s m ad e .

13. (1) Where parties agree to resolve the dispute through M echan i sm s mechanisms established under other legislation, the parties shall make u n d er o th er legislation. every reasonable effort to resolve the dispute through the al tern ati v e dispute resolution mechanism or procedure under that legi sl ation . (2) Where the parties agree to resolve the dispute pur suant t o paragraph (1), the Summit through the Technical Committee, the Council or the intergovernmental structure to which the dec l ar at i on w as made shall, within seven days of the initial meeting and in writing, notify the relevant body responsible for the mechanism est abl i shed under that legi sl ation. (3) The body under paragraph (2) shall— (a) hear and determine the dispute in accordance with i t s o w n procedure; and (b) within seven days of the determination and in writing, communicate the outcome to the Summit or the Council , through the Technical Committee, or the intergovernmental str uctur e to w hi ch the decl ar ati on w as subm i tted . (4) Where a party fails to comply with the determination r e ac h e d under this regulation, the aggrieved party may within ni nety day s of the determination of the dispute, apply to the High Court t h at t h e determination be adopted as a j udgment or order of the C our t .

14. (1) Where a dispute fails to be resolved in accordance w i t h R eferr al to the the mechanisms provided under these Regulations, a party may i n Sum mit . writing and within fourteen days of such failure, notify the Sum m i t through the T echnical Committee i n accordance with secti on 34(3) of the A ct . (2) The Summit shall, within fourteen days, convene a meeting between the parties in an effort to resolve the dispute and may recommend an appropri ate course of action f or the resoluti on o f t h e di spute. (3) Upon determination of the dispute under this regulation, t h e Technical Committee shall, within thirty days and pursuant t o se c t i o n 12 of the Act, prepare a report on the resolution of the Sum m i t and submit the report to the parties and the Cabinet Secretary.

15. (1) Subj ect to section 31 of the Act, a party that h a s e x h au st ed D uty to ex haust any of the mechanisms specified under Part IV of these Regul ations alternative dispute r e so l u t i o n s shall not be precluded from instituting j udicial proceedings. m ec h an i sm . 14 Kenya Subsidiary Legislation, 2022 (2) Where all efforts of resolving the dispute under t h e s e Regulations fail, a party may institute j udicial proceedings as provided under sec ti on 35 o f the A ct . PA RT V —M I SCEL L A N EOUS PROV I SION S

16. A party to an intergovernmental dispute shall- Obligation of parties. (a) comply with the procedures set out in these Regulations; (b) promptly respond to requests for information; (c) not institute parallel proceedings in respect of t he sam e subject matter pending the determination of the dispute; (d) take all necessary measures to ensure that the provi sion of services in respect of the subject matter in dispute i s n o t adversely aff ected; (e) ensure that the subject matter in dispute is preserved; a n d (f) take all necessary measures to ensure that the di spute is not escal ated .

17. ( 1) Where a person, other than the parties involved i n the Interested parties, dispute, has an interest in the subject matter of the dispute instituted under these Regulations, the person may apply to the al tern ati v e dispute resolution practitioner handling the matter to be enj oined . (2) Upon receipt of the application under paragraph ( 1) , alternative dispute resolution practitioner shall make a d e t er m i n a t i o n and communicate to the applicant before the next sitting.

18. (I) A party or any person involved in any dispute r eso l ut i o n Non-disclosure process under these Regulations shall not disclose, w i thout and confidentiality . authorisation in writing from the parties and the body i n charge of the dispute resolution process, any information relating to the dispute b ef or e i ts determ i nati on . (2) A party to a dispute or any person involved in a dispute resolution process shall sign a confidentiality agreement at the i ni t i al meeting .

19. (1) Unless otherwise agreed, each party to an alternative C o sts , di spute resolution mechanism shal l bear i ts costs. (2) The costs and expenses of the dispute resolution process shal l be shared equally by the parties, and may include - (a) the fees of the alternative dispute resolution practi ti oner ; (b) the costs of the venue; (c) the charges incidental to the alternative dispute r e s o l u t i o n process; and (d) any costs in respect of an expert witness. (3) For purposes of paragraph (2)(d), the alternative dispute resolution practitioner shall consult the parties before inviting an expert w i t n e ss . Kenya Subsidiary Legislation, 2022 15 (4) In assessing the costs of the alternative dispute r e so l u t i o n process adopted, the parties shall apply the prevailing fee gui deli nes of the recognized i nsti tution .

20. The Technical Committee shall compile a report o n t h e Reporti ng. disputes determined under these Regulations which report sh a l l f o r m part of the quarterly report submitted to the Summit and th e C ounci l pursuant to section 14 of the A ct .

21. The Cabinet Secretary may , in consultation with the C ounci l G uidelines. and the T echnical Committee, issue Guidelines f or the better carrying out of the provisions of these Regulations. 16 Kenya Subsidiary Legislation, 2022 SC H ED U L E (r . (7(8)) NOTICE OF INTENTION TO DECLARE AN INTERGOVERNM ENTAL D I SPU T E B ET W EEN A ND T o: . . (name) (address) T ak e n oti ce th at ..(insert name) being a party to the negotiations/ consultations of the issues arising out of (state the precise issue in controversy), and having f ai l ed to r each an am i c ab l e settlement . in ten d d e c l ar e w e to a dispute b et w een . (Party A ) an d (Party B ) Take Further Notice THAT we will formally declare a dispute within Seven Days of the receipt of this notice, unless the following steps/ m e a su r e s a r e u n d er t a k e n — (a) , (b) (c) D ated at . th i s , day of . ,2 0 , N am e D esignati on Signature SE A L E D W I T H T H E C O M M O N SE A L O F K enya Subsidiary Legislation, 2022 17 (r . (8( 1)) I N T E R G O V E R N M E N T A L D I SPU T E D E C L A R A T I O N F O R M B ET W EE N A ND To: ..(name)* (address) D E C L A R A T I O N O F A D I SPU T E Take Notice that following the lapse of the Notice of intention to declare a dispute dated th e (date of the notice) and upon failure to amicably resolve t h e issues in controversy , we (Party A) hereby formally declare a di spute betw een (Party A ) an d (Party B) i n r el ati on to (the nature of dispute) The parties have in compliance with the provisions of the I ntergovernmental Rel ati ons A ct, 2012 and the Intergovernmental (Alternative Dispute Resolution) Regulations, 2018 held the requisite consultations/negotiations/conciliations. T ak e f ur ther no ti ce th at the T echni cal C om m i ttee/ C ounc i l/ Intergovernmental Structure to which the declaration is made, shall within 21 Days of receipt of thi s N oti ce of formal declaration convene an initial meeting between the parti es i n accordance the Intergovernmental (A lternative Dispute Resolution) Regulati ons, 20 18. D at e d a t this .day of . .2 0 N am e D esignation Signature.... SE A L E D W IT H T H E C O M M O N SE A L O F * N OT E: To be served upon (a) the relevant parties; (b) the l ine mi nistry ; (c) the Cabinet Secretary M ade o n the 14 th D ecem ber , 202 1. C H A RL ES K ET E R , Cabinet Secr etary , M inistry of D evol ution , Ar id and Semi-Ar id Lands. PRI NT ED A N D PU B L I SH ED B Y T H E OO V ERN M ENT PRINT ER , N A I RO B I