A notice transferring responsibility for health services may look like evidence that the land beneath the facilities changed hands. In the Omtatah devolution appeal, the Court of Appeal rejected that equivalence. The challenged notices transferred functions and powers, not ownership of public land. That distinction matters when a document about running a public service is offered as an answer to a different question: who owns its site?
The ownership argument was not the finding
On 22 May 2020, the Court of Appeal at Nairobi decided Civil Appeal No. 362 of 2014, brought by Okiya Omtatah Okoiti and another against the Attorney General and other parties. It arose from the dismissal of a constitutional petition concerning health-service devolution. This was not litigation between competing claimants to an identified parcel (judgment, p. 1 and paragraph 47).
The appellants challenged Legal Notices Nos. 137–182 of 2013. They argued that the constitutional allocation of national referral health facilities included ownership and responsibility, and that transferring facilities to counties unlawfully transferred the public land beneath them. Those were the appellants’ arguments—not findings that a land transfer had occurred (paragraphs 3–5 and 69).
The wider appeal also concerned the meaning of national referral and county health facilities. For land-information readers, the useful point is narrower than the health-classification debate: a change in service responsibility must not be silently rewritten as a change in ownership.
What the court separated
The court explained a “function” as an activity delivering a public service and a “power” as governmental authority exercised through legislation, regulation or administrative directions. It read the Fourth Schedule as distributing functions and powers between the two levels of government (paragraphs 56–58).
Ownership was a different concept. The court addressed public land under Articles 61 and 62, separately from the framework for transferring functions. It also explained that resources accompanying a transferred function did not necessarily include ownership of land. Its conclusion about these legal notices was explicit: they transferred functions and powers without affecting ownership of the public land (paragraphs 70–73 and 77).
This was not a declaration identifying the present owner of every hospital site. The judgment supplied no parcel inventory or present-day title chain. Its value lies in refusing to treat two legally different questions as interchangeable—not in answering an unexamined ownership question for a particular property.
The outcome and its limits
The court also accepted that the transfer process involved consultation and public participation. It dismissed the appeal, ordering each party to bear its own costs because the matter raised issues of public interest (paragraphs 79–80 and 84, dated closing at p. 52).
This account concerns that historical decision. Later appeals, implementation steps and subsequent disputes have not been checked. Nothing here establishes who currently owns or controls a particular facility’s land.
Questions the distinction helps you ask
When someone relies on a devolution notice to explain a public site, ask:
- Does the cited passage allocate a service or power, or actually address ownership?
- Is the ownership statement a litigant’s argument or the court’s conclusion?
- What separate, site-specific evidence would be needed to answer the ownership question?
These are reading questions drawn from this case, not a complete due-diligence checklist. A Kenyan advocate should assess the applicable instruments and evidence for the particular issue. Naming a county or a class of facilities does not make this judgment a title decision about each site.
ArdhiScore organises available parcel-related court, gazette and field intelligence for screening and monitoring alongside professional due diligence. A service-allocation notice should remain that kind of evidence, not become an ownership certificate. See how ArdhiScore works and review its scope. Coverage is limited; screening and monitoring do not guarantee title, find every relevant record or replace official checks and qualified professional advice.