High Court Judge A.C. Mrima has declared the appointment of a task force on Pending Bills by Trans Nzoia County Governor, George Natambeya unconstitutional in a ruling dated September 19, 2023. The judge also suspended the implementation of the recommendations in the report and ordered the governor to share a copy of the report with the Auditor General for further directions.
The petition subject of this judgment raises governance issues relating to the constitutionality of the task force on pending bills and the human resource audit undertaken by the County Government. The petitioner Kevine Otieno Ondago, had moved to court, claiming that the establishment of a task force by the governor to undertake the audit of pending bills and human resources variously infringes on the Constitution.
The Taskforce members appointed by Natembeya on October 21, 2022, vide Kenya Gazette (Vol. CXXIV-No. 218) Notice No. 12643 were Edward Ouko (Chairman), Jamin Kwanusu, Alex Rugera, Chris Wasike Mung’oma, Imelda Midzukani Aruula, Kirato Wanjala Wanyonyi, and Jared Rodrick Nyaundi. Others were Patrick Chacha, Silas Musakali, Tabitha Muthui Kimonyo, Christian Gatheru Mahinda, and James Rwanda Ncebere.
According to Mr Ondago, the appointment of a task force to audit the accounts of the County Government of Trans-Nzoia, which is a constitutional mandate of the Auditor General, is illegal and unconstitutional and violates the provisions of Article 229 of the Constitution.
He further prayed for orders that the Taskforce members should refund to the public coffers the sum of Ksh. 20,000,000 or such other sums that will be ascertained through an audit by the Auditor General, which funds were used to prepare the Taskforce report. The court learned that the Taskforce submitted a report dated March 10, 2023, namely the Report of the Taskforce on Pending Bills and Human Resource Audit: Natembeya’s Road to Prosperity. The bone of contention is that the report bore similarities with the previous reports of the Auditor General for the County Executive of Trans-Nzoia.
He further questioned whether the sum of Ksh. 20,000,000 utilized by the task force was lawful, constitutional, necessary, and proper since the sum was paid out of public funds. In an affidavit, Mr Ondego accused the Taskforce of failing to conduct public participation during the preparation of the report. This action violated Article 10 of the Constitution. Furthermore, the petitioner decried that the notice period for the head count leading up to the recommendations about ghost workers was too short.
The ruling reads in part, “A declaration hereby issues that the establishment of the Taskforce on Pending Bills and Human Resource Audit by the Governor of the Trans Nzoia County vide Kenya Gazette (Vol CXXIV-No. 218) Notice No. 12643, which notice was published on October 21, 2022, contravened Articles 174(a) and (i), 226(3) and 229 of the Constitution, the Public Audit Act, the Public Finance Management Act, and Public Finance Management (County Governments) Regulations 2015 by usurping the powers of the Auditor General and those of the Internal Audit Office and the Audit Committee of the County Government of Trans Nzoia County. The Taskforce and its resultant report are, therefore, unconstitutional, null, and void”.
