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Article 191. Conflict of Laws

(1) This Article applies to conflicts between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government.

(2) National legislation prevails over county legislation if–

  • (a) the national legislation applies uniformly throughout Kenya and any of the conditions specified in clause (3) is satisfied; or
  • (b) the national legislation is aimed at preventing unreasonable action by a county that–
    • (i) is prejudicial to the economic, health or security interests of Kenya or another county; or
    • (ii) impedes the implementation of national economic policy.

(3) The following are the conditions referred to in clause (2) (a)–

  • (a) the national legislation provides for a matter that cannot be regulated effectively by legislation enacted by the individual counties;
  • (b) the national legislation provides for a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing–
    • (i) norms and standards; or
    • (ii) national policies; or
  • (c) the national legislation is necessary for–
    • (i) the maintenance of national security;
    • (ii) the maintenance of economic unity;
    • (iii) the protection of the common market in respect of the mobility of goods, services, capital and labour;
    • (iv) the promotion of economic activities across county boundaries;
    • (v) the promotion of equal opportunity or equal access to government services; or
    • (vi) the protection of the environment.

(4) County legislation prevails over national legislation if neither of the circumstances contemplated in clause (2) apply.

(5) In considering an apparent conflict between legislation of different levels of government, a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict.

(6) A decision by a court that a provision of legislation of one level of government prevails over a provision of legislation of another level of government does not invalidate the other provision, but the other provision is inoperative to the extent of the inconsistency.