Standard Team 
Nairobi Governor Mike Sonko
(pictured) has
taken on President Uhuru Kenyatta through a case at
the High Court that
aims to reverse the takeover of the county by the national government.
By supporting a lawsuit filed by activist Okiya Omtatah seeking a
declaration that the transfer of four key functions to the central
government is illegal, Mr Sonko has effectively taken the war to the
president, who oversaw the signing of the agreement.
The governor and Devolution Cabinet Secretary Eugene Wamalwa inked the
deal at State House in a ceremony witnessed by President Kenyatta and
Senate Speaker Ken Lusaka on February 25.
SEE ALSO: Governor Sonko: I’m still in control
Uhuru
said the takeover was necessary to improve service delivery in the
capital city, which had been hampered by a power struggle at City Hall.
The president entrusted a team headed by Major General Mohamed Badi to
run the city under the Nairobi Metropolitan Services (NMS).
Undermine devolution
The new team took over running of the Health, Transport, Public Works,
and Planning and Development departments to the chagrin of Sonko, who
refused to assent to a Bill allocating Sh15 billion for the transferred
functions.
The disgruntled county boss went on the offensive, claiming that some of
the president’s men were taking advantage of the agreement to frustrate
him.
SEE ALSO: Sh500,000 up for grabs as Nairobi Cup begins
On
April 21, Sonko launched a public tirade castigating unnamed government
officials after sanitisation booths he had installed in the city were
vandalised.
It later emerged that he had met with Deputy President William Ruto to voice his frustrations.
“When we started this process, the president had good intentions, but
some of his officers, especially the ones who hate me, have hijacked the
process to embarrass and frustrate me with impunity. This is the time
to terminate the transfer of functions deed,” Sonko said.
The governor claimed he had been duped into signing the deed of transfer of functions.
“To date, I have not been furnished with a copy of the deed. I was not
given sufficient time to even read the draft. I was told it is a good
thing on service delivery to the great people of Nairobi as I deal with
my court cases. Since I love you, the people of Nairobi, and have your
interests at heart, I had to accept without even going through the
document properly. I didn’t know it will turn against us.”
SEE ALSO: IEBC: We knew Igathe quit Nairobi County job on Jan 22
In
his lawsuit, Sonko, through the County Public Service Board (CPSB),
wants Uhuru’s appointees kicked out and the deal declared
unconstitutional.
Nairobi County Legal Officer Lydiah Kwamboka said the transfer of
functions was not intended to undermine the devolution process, which is
what Sonko has accused Uhuru’s men of doing.
Ms Kwamboka alleges that Uhuru’s appointees to the NMS were handpicked,
hence locking out other competent people from the jobs. Apart from Maj
Gen Badi, the county is challenging the appointment of Fred Olunga,
Peter Mwaniki, Hermorike Okuta, Lilian Kieni, John Muya, Marion Rono,
Samuel Muita and Maureen Njeru.
“It is the belief of the fourth respondent herein that even though the
transfer of functions to the national government was well-intended, the
national government subverted its course and goodwill,” said Kwamboka.
According to the legal officer, the transfer of functions can only be
successful if there are consultations and the Constitution is followed.
SEE ALSO: Why Uhuru-Sonko deal was destined to be controversial
Kwamboka
also faults the NMS’ decision to take over county employees, arguing
that the Public Service Commission (PSC) never consulted the CPSB as had
been agreed in the transfer document.
Sonko had directed 6,052 employees who were to be seconded to work under NMS to ignore the directive.
“The present petition is well-intended and is necessary action to
correct maladministration and abuse of authority thus orders sought and
prayers made in both the application and the petition should be granted”
said Kwamboka.
“The transfer of functions was not intended to undermine the devolution
process. We have therefore been advised by our advocates on record that
on account of the unconstitutionality of the said appointment of the
first to 10 interested parties, the same should be revoked.”
Mr Omtatah wants the gazette notice legalising the transfer quashed. He
argues that the move is unconstitutional and goes against the intention
of devolution. According to the activist, Nairobi residents were not
consulted before Sonko appended his signature to the document.
Empty shell
“The removal of the key functions leaves Nairobi City County Government
as an empty shell, and that is tantamount to dissolving the county
government without reference/adherence to Article 192 of the
Constitution.”
Outside court, Sonko maintained his resolve to have the deal terminated.
The governor, through his spokesperson Ben Mulwa, accused the PSC and
the Kenya Revenue Authority of “overstepping their mandate and
committing illegalities contrary to the deed of transfer”.
Mr Mulwa accused KRA of committing its first illegality when it
published two bank accounts for purposes of revenue collection in
disregard of the Public Finance Management Act and the County Government
Act.
“The law is extremely clear that only the CEC of a county can provide
direction in terms of opening or closing of county financial accounts,”
Mulwa said during a press briefing at the governor’s private office in
Upper Hill, Nairobi.
“When the Auditor General ultimately flags the county government’s
accounts, the NMS or other State organs will not feature anywhere
because the responsibility will be on the governor and the finance
office.”
Mulwa said KRA had published a notice indicating that the taxman would
be processing the payroll of the Nairobi County Government “yet in the
agreement the taxman is a revenue collection agent just like any other
hired by the county government”.
He also protested a letter by Head of Public Service Joseph Kinyua
appointing chief officers for the county government, arguing that the
law stipulates that the procedure for appointing chief officers is a
preserve of the county government through the CPSB and the governor.
The spokesman further took issue with Speaker Beatrice Elachi for
publishing the Nairobi County Supplementary Appropriations Bill, 2020,
saying it was flawed.
Mulwa said Sonko had returned the initial Supplementary Bill passed on
April 2 to the county assembly with a memorandum detailing his
reservations.
“For the first time in the history of Commonwealth countries, we have a
case where a speaker of an assembly has gone ahead to gazette a law.
This is a matter already in court because we feel that it is important
that the deed of transfer must be implemented procedurally and in
accordance with the law,” he said.
[Kamau Muthoni, Anyango Otieno and Josphat Thiong’o]
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