UNLAWFUL GAZETTE NOTICE

Win for Sonko in Sh15 billion NMS war as solicitor general wants bill gazettement revoked

In Summary

• The Solicitor General stated that the publication is, therefore, a nullity and ought to be rectified appropriately.

• “It is therefore inconceivable how the Bill was published in the Kenya Gazette when it was still pending before the County Assembly,” Ogeto stated.

Kennedy Ogeto takes the oath of office as Solicitor General during his swearing-in at State House in Nairobi, March 20, 2018. /PSCU
Kennedy Ogeto takes the oath of office as Solicitor General during his swearing-in at State House in Nairobi, March 20, 2018. /PSCU

The State Law Office has termed the Gazette notice for the Nairobi County Supplementary Appropriation Act, 2020 unlawful and wants it revoked.

In an advisory issued on May 6, Solicitor General Kennedy Ogeto directed the Government Printer to institute the process of the revocation of the Gazette notice.

The Supplementary Bill was to allocate the Nairobi Metropolitan Service Sh15 billion following the transfer of four county functions.

However, in his legal advisory contained in a letter addressed to Nairobi Governor Mike Sonko, Ogeto red-flagged the Gazette notice, saying its publication fell short of laid down legal requirements.

The Solicitor General stated that the publication is, therefore, a nullity and ought to be rectified appropriately.

“It is therefore inconceivable how the Bill was published in the Kenya Gazette when it was still pending before the County Assembly,” Ogeto stated.

Consequently, the Government Printer has been advised to take note of the contents of the Solicitor General’s legal opinion and take the necessary remedy the action to revoke the purported publication of the Act.

The letter was copied to the Attorney General, Government Printer and Controller of Budget.

On April 30, 2020, Governor Sonko had written to The Solicitor General, to direct the Government Printer to nullify the purported Act through a corrigendum .

Sonko argued that the Bill was published in contravention of the law and therefore does not have a force of law.

“The said Bill was sneaked to the Government Printer by unknown people notwithstanding the fact that the Office of the Governor had alerted the Government Printer that the Bill had not completed the necessary legislative process,” Sonko said

As witnessed, there has been a push and pull between Sonko and County Assembly over the bill, since it was passed by the MCAs on April 2, 2020.

Sonko had refused to assent to the bill, sending it back to the assembly with his memorandum.

However, Speaker of the County Assembly Beatrice Elachi advised on the memorandum, stating that the bill had also allocated emergency funds for the Covid -19 pandemic, declaring it a matter of urgency.

Elachi maintained that her ruling 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 the court.

She returned the original bill back to the governor, excluding his memorandum.

According to the Solicitor General, County Assembly Standing Orders cannot be used to sidestep mandatory requirements of an Act of Parliament.

Ogeto argued and cited a 2019 ruling in a case pitting Machakos County Assembly and Governor Alfred Mutua where the court affirmed that provisions of an Act take precedence over Standing Orders in case of a conflict between the two.

Referring to Section 24(5) of the County Governments Act, Ogeto stated that the County Assembly must muster a two-thirds majority to pass a Bill a second time without incorporating the County Governor’s reservations which never occurred on April 17, 2020.

“Consequently, in our reading of the law and in light of the facts as provided, the Bill cannot be deemed to have been assented to following the expiry of the period stipulated for assent as it was not passed by the Assembly with a two-thirds majority as required by the Act,” he said.