Laws not in ‘Kenya Gazette’ are at risk of being trashed

A session of the Nairobi County Assembly.

All 1,400 by-laws enacted in the 47 counties in the past four years have no basis in law as they have never been published in the Kenya Gazette, as stipulated.

Consequently, county authorities have been given two weeks to have the by-laws published in the Kenya Gazette or risk having them declared null and void.

In a circular to all the 47 devolved units, Controller of Budget COB) Agnes Odhiambo said the counties had been publishing the laws only in county gazettes and that this contravenes the law.

The law requires that all county laws be published in the Kenya Gazette before they are effected. Counties now have until May 23 to publish their respective by-laws.

“The Controller of Budget will, therefore, not rely on legislation which has not been published in the Kenya Gazette to allow the withdrawal of funds after the grace period allowed by the court lapses,” read a circular dated March 16.

The Nairobi County Assembly has published 33 bills since 2013. Ms Odhiambo, in the letter, said her office was aware that for most of the legislation, what preceded the title of the legislation is the name of the county government and not the words ‘Kenya Gazette’.

The COB gave the directive based on a ruling delivered by the High Court on February 23 following a petition by a Kiambu resident.

The petitioner had argued that the County Government Act, which the devolved units had been relying on in publishing the laws in the county gazettes, is not consistent with the Constitution.He said that this had created a loophole which had attracted a lot of public interest.

Section 25 (2) of the Act states: “...County assembly legislation shall come into force on the fourteenth day after its publication in the Kenya Gazette and county gazette, whichever comes earlier unless the legislation stipulates a different date or time at which it shall come into effect.”

The judge ruled that the section is inconsistent with the Article 199 (1) of the Constitution, which stipulates that any legislation passed by the assemblies comes into effect only after publication in the Kenya Gazette.

In accordance with the Constitution, the Controller of Budget can only release funds if satisfied that this complies with the law.