• Last week, the Solicitor General said the publication of the Act fell short of laid down legal requirements and was unlawful.
• Speaker Elachi wants the State Law Office to offer guidance on the main budget—how the money will be allocated to transferred functions.
Image: FILE
The Government Printer on Monday revoked the publication of the Nairobi County Supplementary Appropriations Act, 2020 as MCAs threatened to go to court.
The decision was in line with an advisory from Solicitor General Kennedy Ogeto, who had said that the Act was unlawful.
“It is notified for the general information of the public that the Government Printer has revoked the Kenya Gazette Supplement No 2 (Nairobi City County Act No 1) dated April 27, which published the purported Nairobi City County Supplementary Appropriations Act, 2020,” CEO Mwenda Njoka said.
This means that allocation of Sh15 billion to the Nairobi Metropolitan Services has been suspended. However, the county treasury can prepare another supplementary appropriation bill for the assembly's consideration and approval before June 30, when the financial year ends.
The Solicitor General had on May 6 directed the Government Printer to institute the process of revoking the Gazette notice.
Ogeto red-flagged the Gazette notice, saying its publication fell short of laid down legal requirements.
He said Speaker Beatrice Elachi had published the Act before committing it to the committee of the whole House vote as required by Section 24 (5) of the County Governments Act.
Elachi maintained that her decision was informed by Standing Orders 146(4) that gives her the latitude to rule on the memorandum without subjecting it to the relevant committee of the House for voting as it raised constitutional matters that can only be determined by a court.
The Solicitor General based his legal opinion on the County Governments Act, which supersedes the assembly's standing orders.
“As the subjected bill was not assented to in either way contemplated by the law, it is our considered guidance that the purported Appropriations Act, 2020 was not lawful and proper, as the said Act did not exist in the first place. The said publication is, therefore, a nullity and ought to be rectified appropriately,” he said.
Last Friday, the speaker acknowledged the advisory and the assembly accepted it.
"The transfer of functions is a new thing and as an assembly, we didn’t know how to deal with it. The assembly had also said the governor can go to court and seek legal advice and since the Solicitor General is the adviser of the government and that’s what he has advised, so be it," Elachi said.
She, however, wants the Solicitor General to shed light on the transferred county functions as the advisory had complicated matters if the governor’s memorandum was in order.
In his memorandum, Governor Mike Sonko said he refused to assent to the Supplementary Appropriation Bill because some of the proposed allocations were for functions never transferred.
To avoid a further clash over county funds, Elachi requested Ogeto to give guidance on the main budget—how the money will be allocated to transferred functions.
She said the advisory was vital as the assembly had started the financial year 2020-2021 budget process.
Meanwhile, the county assembly has threatened to sue the Government Printer, Attorney General Paul Kihara and the Solicitor General for de-gazetting the Act.
The MCAs said in a press statement that they will go to court if the Government Printer acts as advised by the Solicitor General.
“We wish to caution that should any of the offices or persons addressed or copied in your letter act on your advice, they shall be held responsible for their actions since the same has not been sanctioned by a court of law as required. Indeed, we shall not hesitate to take appropriate legal action against such offices or persons," they said.
The statement was addressed to the Solicitor General and copied to Sonko, the Attorney General, NMS director general Mohammed Badi and speakers of the National Assembly, Senate and the county assembly.
Minority leader David Mberia said the Solicitor General can only advise but not give direction.
“No one, including the governor and the Solicitor General himself, has challenged the Act in court,” he said.
Citing Section 9 of the Office of the Attorney General Act, 2012 Minority Chief Whip Peter Imwatok said: “There is no expression, as contained in the functions of the Solicitor General that states he can annul legislation passed by Parliament or the county assembly.”
- mwaniki fm