The government now wants the gazetting of a contentious Bill passed by Nairobi MCAs allocating Nairobi Metropolitan Service (NMS) Sh15 billion for transferred functions revoked.
In what is seen as a win for Governor Mike Sonko in his battle with Speaker Beatrice Elachi, Solicitor General Ken Ogeto said the publication of the Nairobi City County Supplementary Appropriation Bill, 2020 in the Kenya Gazette on April 27, 2020 was irregular and unlawful.
In his legal advisory to the Government Printer, Ogeto pointed out that it was inconceivable for the Bill to have been published in the Kenya Gazette when it was still pending before the County Assembly.
He now wants the Government Printer to revoke the bill’s publication into an Act arguing that the it was not assented to in either of the ways stipulated in the law rendering the Act unlawful.
“The said publication is therefore a nullity and ought to be rectified appropriately. The Government Printer is accordingly advised to take note of the contents of this legal opinion and to remedy the situation by taking necessary action to revoke the purported publication…,” said the Solicitor General in a letter dated May 6, 2020.
The letter is addressed to Sonko and copied to the Attorney General, Government Printer and Controller of Budget.
The City Hall chief had written to Ogeto seeking nullification of the purported Act through a corrigendum arguing that the publication of the Bill violated the law hence 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,” said Sonko in his letter dated April 30, 2020.
The Bill was passed by Assembly on April 2 but the governor declined to assent to it accusing the MCAs of allocating funds to functions that were not transferred to the NMS.
Sonko returned the Bill with reservations back to the Assembly on April 15 but Speaker Elachi, in a special sitting on April 17, set aside his Memorandum and sent back the original Bill for his assent.
The Bill was later published on April 27 after the expiry of the seven days allowed for the governor to append his signature as provided for by the law.
However, Sonko contested how Elachi set aside his Memorandum arguing it was not debated by the Assembly and voted upon by the required two-thirds majority.
Nonetheless, 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 relevant committee of the House for voting as it raised Constitutional matters that can only be determined by the court.
However, the solicitor general argues that a County Assembly Standing Order cannot be used to sidestep mandatory requirements of an Act of Parliament.
Ogeto cited a 2019 ruling in a case pitting Machakos County Assembly and Governor Alfred Mutua where the court affirmed that provisions of an Act takes precedence over Standing Orders in case of a conflict between the two.
In lieu of this, Ogeto said that according to Section 24(5) of the County Governments Act, the County Assembly must muster a two-thirds majority to pass a Bill a second time without incorporating the County Governor’s reservations.
He explained that the Assembly on April 17 did not vote on the subject Bill as required by the above Act.
“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.
