A court has declared the Nairobi County takeover deal between Governor Mike Sonko and President Uhuru Kenyatta illegal.
In a decision that now places the Nairobi Metropolitan Service (NMS) - a product of the deal - in a legal dilemma, Justice Hellen Wasilwa declared that failure to seek Nairobi County Assembly’s approval rendered the deed of transfer document and subsequent appointments unconstitutional.
The case was filed at the Employment and Labour Relations Court by activist Okiya Omtatah and supported by Sonko, who has since vowed to fight to have the agreement terminated, citing frustrations by people close to the president.
Justice Wasilwa, in her judgement yesterday, also found that the document signed by Sonko, and which the governor later claimed not to have read before signing, did not provide for NMS as a partner to the county.
She said the deed of transfer was vague on how the takeover would happen and who was to do what in the arrangement.
The judge gave the government 90 days to regularise the takeover.
Although the judge found there were errors in the pact, she declined to halt NMS' operations during the 90 days.
Instead, the judge said should the 90 days lapse before NMS operations were regularised, then Omtatah, Sonko or any other party could go back to court to seek a halt of NMS' operations.
“Already functions have been transferred and funds have been allocated to NMS. A lot has taken place and it would not be fair to the public to issue the orders prayed by the petitioner. If the State does not regularise the process, lawyers should come back for the issue of orders,” she ruled.
The NMS has been allocated Sh26 billion in the current budget.
The judge also found that the transfer of more than 6,000 county employees to NMS was illegal, saying the document did not recognise NMS as a partner and that the county’s public service board was not consulted.
The governor and Devolution CS Eugine Wamalwa signed the agreement at State House in a ceremony witnessed by Uhuru and Senate Speaker Ken Lusaka.
The NMS, led by Maj-Gen Mohamed Abdi took over key services from Sonko’s administration and is directly answerable to the presidency.
The President's men
The president’s men took over health, transport, public works, utilities, planning and development dockets.
In court, Sonko in person and through the County’s Public Service Board, urged the court to kick out Uhuru’s men from the city and declare the takeover deal unconstitutional.
Through lawyer Henry Kurauka, Sonko argued that the transfer of functions was subject to the approval of both the county and National Assembly. He lamented that county employees were seconded to NMS without his approval.
Nairobi County legal officer Lydiah Kwamboka filed a reply in support of Omtatah’s case stating that the transfer of functions was not intended to undermine devolution, something which her boss has been accusing Uhuru’s men of doing.
In the case, Omtatah wanted the gazette notice legalising the transfer quashed, arguing that the move was unconstitutional and against the spirit of devolution.
Omtatah further argued that Nairobi residents were not consulted.