By Isaiah Lucheli

The 47 County Commissioners will stay in office after the Court of Appeal overturned the decision of a lower court.

High Court Judge Ngugi Mumbi had nullified the appointments of the commissioners by former President Kibaki on the grounds they were unconstitutional.

But appellate judges upheld the appointments ruling that the country was undergoing a transition at the time of the appointments.

Judges Martha Koome, Milton Makhandia and Kairu Katembu ruled that in view of the enactment and coming into force of the National Government Coordination Act, 2013 any outstanding issues regarding the appointment and deployment of commissioners should be resolved within the framework of that statute.

They added that under Article 6 of the new Constitution, then President Kibaki was obliged to ensure that the services offered by the Provincial Administration were devolved to the 47 counties pending the enactment of legislation to provide for restructuring of the system.

 “Contrary to the findings and decision of Justice Mumbi Sections 23 and 24 of the former Constitution were in force when President Kibaki invoked them to appoint/deploy County Commissioners and they remained in force until the first General Election was held on 4th March, 2013,” they ruled.

The judges noted that given the Minister for Internal Security and Provincial Administration was a party in the High Court Case and he was aggrieved by the decision of the High Court, he had a right of appeal under Article 50 of the Constitution and the Rules of Procedure of the Court of Appeal.

“The right of appeal vests in the person aggrieved by a court decision. The said right of Appeal could be actualised through an appeal by the Attorney General. However, in view of the apparent refusal by the AG to lodge an appeal on behalf of the aggrieved minister, the minister lawfully appointed the law firm of Kinoti & Kibe Co,” they ruled.

 Former minister of Internal Security Yusuf Haji moved to the Court of Appeal to challenge High Court decision to term Kibaki’s appointment of the commissioners as unconstitutional.