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Court bars Senate from summoning governors over fuel levy reports

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Council of Governors (COG) Chairperson H.E Martin Wambora addressing journalists at Delta Towers, Nairobi on June 23, 2021. PHOTO | LUCY WANJIRU | NMG

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Summary

  • COG through lawyer Peter Wanyama said several governors have been summoned by the Senate to consider the reports for the funds, despite concerns regarding the legality of the senate’s powers over the matter.
  • The lawyer said there has been no conclusive determination on the scope of the Senate’s oversight powers in the cases.
  • The governors maintained that the Senate’s oversight role of nationally collected revenue to the counties is certainly not identical to the county assembly’s oversight.

The High Court has barred Senate from summoning governors to discuss Auditor General’s reports on the Roads Maintenance Levy Fund and World Bank-funded Kenya Urban Support programme, pending the determination of a case filed by the Council of Governors.

Justice Hedwig Ong’udi certified the case by COG as urgent and blocked the Senate from considering Auditor General’s reports on the two funds for the 2018/2019 and 2019/2020 financial years.

"A conservatory order is issued restraining the Senate from considering the report of Auditor General on Road Maintenance Levy Fund for the financial years 2018/2019 and 2019/2020 and the World Bank Kenya Urban Support Programme for the Financial year 2018/2019 and 2019/2020 pending hearing and determination of the petition,” the Judge said.

COG through lawyer Peter Wanyama said several governors have been summoned by the Senate to consider the reports for the funds, despite concerns regarding the legality of the senate’s powers over the matter.

He said the senate has summoned governors threatening them with fines and arrests and three of them, Mandera’s Ali Roba, Hillary Barchok (Bomet) and Paul Chepkwony (Kericho) are set to appear before the senators.

According to Mr Wanyama, once a report of the Auditor General has been submitted to the county assembly, the Senate cannot concurrently handle the same matter.

He said the senate’s constitutional powers in Article 96(3) of the constitution have been subjected to three High Court decisions and once in the Court of Appeal.

The lawyer said there has been no conclusive determination on the scope of the Senate’s oversight powers in the cases, but a case that will settle the issue is pending judgment before the Supreme Court.

Mr Wanyama said the High Court he said has held that the Senate has no constitutional powers to oversight grants, loans and locally generated revenue because it is an exclusive function of the county assemblies.

“In the premises, the conduct of the respondent in issuing the summons to governors is unreasonable, malicious and meant to undermine the administration of justice and subverting the constitutional order on oversight,” he said.

He said the Senate is bound by provisions of Articles 692) and 189 of the constitution, which provides that governments at each level shall perform their functions and exercise their powers, in a manner that respects the functional and institutional integrity of the other level of government.

The governors maintained that the Senate’s oversight role of nationally collected revenue to the counties is certainly not identical to the county assembly’s oversight. This means that the Senate cannot scrutinise county expenditures in the same way the committees and general assemblies of the county legislatures can.

He said if the county assembly is considering the reports, the Senate should not be handling the same as it undermines or competes with the county assembly.

“The petitioner is therefore appreciably apprehensive that if the Senate is not restrained promptly, it will take precipitate action against county governors by imposing criminal sanctions and fines to governors who will not honour summons,” he submitted.

The court directed COG to serve the Senate ahead of the hearing on October 28.