NMS Director-General Mohamed Badi (left) and Nairobi Governor Mike Sonko. FILE PHOTOS | NMG
The High Court has stopped the Treasury from releasing funds to the Nairobi Metropolitan Services (NMS) over the legality of functions transferred to the entity and the manner in which the budget was passed.
Justice Anthony Mrima on Monday barred the Treasury and the Controller of Budget from facilitating the transfer of Sh27.1 billion to NMS, whose projects have been derailed by the budget spat.
The MCAs left the county government with a budget of Sh8.4 billion for its remaining 10 functions after the transfer of key responsibilities to NMS.
The judge directed Attorney-General Paul Kihara or his representative to convene a meeting including NMS, MCAs, the county government and Treasury officials within seven days to break the impasse.
The Maj-Gen Mohammed Badi-led NMS complained that it has been operating on minimal funding to run the four key functions ceded to it by City Hall.
It was given Sh3.8 billion on April 17 by the Treasury to kick-start its operations, with Sh2.2 billion to be spent on salaries and operations and the rest for the roll-out of new projects.
The county moved to court after MCAs rejected governor Mike Sonko’s opposition to the Sh37.5 billion budget and overturned his proposal to revise expenditure plans.
Supporting the petition, Mr Sonko challenged the legality of the Nairobi City County Appropriation Act 2020, citing a lack of public participation and failure to address a deficit of Sh5 billion.
Mr Sonko, who was impeached by MCAs on Thursday, also questioned the Deed of Transfer signed between him and the national government in February, transferring some functions to NMS.
“For clarity, the 11th [Treasury Cabinet Secretary] and 14th [Controller of Budget] respondents are restrained from disbursing any funds on the basis of the Nairobi City County Appropriation Act, 2020,” Justice Mrima said.
The judge said although the deployment of county employees to NMS had been addressed by another court, there were questions to do with the transfer of functions, which the court has powers to determine.
He directed all the matters dealing with the legality of NMS and the Deed of Transfer be consolidated to be heard together.
Mr Sonko had questioned the legality of NMS arguing that it was a parallel entity that was unlawfully entrenching itself to run all functions of the county government and sabotaging him from executing his mandate.
The functions transferred to NMS include health services, transport, county public works, utilities and ancillary services and planning and development.
“The NMS is consequently an illegal entity, and is not an extension of the Nairobi City County government, by reason of which it is disentitled to any expenditure of the Nairobi City County Funds on it or any of its affairs, necessitating the conservatory orders,” the governor said.
Mr Sonko had also questioned the appointment and deployment of Kenya Defence Forces to NMS. He also said efforts to resolve the dispute between his government and NMS has been futile, due to what he termed Maj-Gen Badi’s ‘overbearing and condescending attitude’.
He complained that the county was unable to meet its obligations, and and that the NMS director-general had completely overshadowed the count government as well as the 17 sub-counties’ representatives.
He also said there was no legal framework that allows county funds to be transferred to the national government.
While passing the budget, 88 MCAs, more than the required two-thirds majority, voted to reject Mr Sonko’s memorandum.
“By its unlawful usurpation of the affairs of the Nairobi City County, the 1st Respondent [NMS] has been intent on rendering the Petitioner redundant, justifying its intrusion and overspread into Nairobi City County on a deliberate misinterpretation of the reference to ancillary services in the Deed of Transfer of Functions” to include all un-transferred functions,” the county stated in court documents.
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