Vihiga County free to use Sh5.8b budget after petition dismissed
By Robert Amalemba
| November 18th 2021
A court in Kakamega has dismissed a case two activists had filed blocking Vihiga County government from implementing its Sh5.8 billion budget for the current financial year.
The decision now paves the way for the devolved unit to settle pending bills and complete development projects.
Francis Ominde and Joseph Simekha moved to court five months ago and successfully blocked Governor Wilbur Ottichilo's administration from utilising the money over claims the budget-making process lacked public participation and that the budget estimates were not approved by the cabinet.
However, on Wednesday, the High Court ruled that the duo's petition lacked merit.
“The burden of proof was on the petitioners to establish the budget estimates had not been presented to the cabinet and, therefore, they did not get cabinet approval before they were forwarded to the county assembly. I am not persuaded they have discharged that burden on a balance of probability,” Justice William Musyoka said.
The judge argued the petitioners also failed to prove how the budget-making process was not subjected to public participation.
“The finance executive has attached copies of a newspaper about views being received before February 22, 2021. It was addressed to the general public, civic society, community-based organisations and it invited them to give their views on the draft Vihiga County fiscal strategy paper 2021,” said Justice Musyoka.
Ominde and Simekha sued Governor Wilbur Ottichilo, finance executive, the speaker, and the clerk of the county assembly, accusing them of bypassing the cabinet in making the budget for the 2021/2022 fiscal year.
They listed the deputy governor Patrick Saisi as an interested party and as a cabinet member who was overlooked in the process. Saisi even filed an affidavit to support the argument which the court found wanting.
The activists said in their petition filed in June that failure to involve the executive went against the law - the Public Finance Management Act.
The court had issued temporary orders stopping the implementation of the budget until the case is determined, a decision that has adversely affected service delivery.
In its defense, the county government argued that the petition was against public good labeling the petitioners “overzealous litigants” that should be ignored.
“The first petitioner is claiming the petition was of public interest when it is quite clear that he had a personal interest in the matter,” said the county.
The government cited section 15 of the County Governments Act arguing that questions on budget were to be resolved in the assembly or through other alternative dispute resolution avenues rather than the court.
They also had an issue with how Ominde gathered his evidence: “The evidence he relied on is correspondence exchanged between the deputy governor and other individuals. He was relying on social media posts and such evidence is inadmissible."
The county claimed the social media downloads that Ominde attached to his affidavit were extracted contrary to the Evidence Act on the production of electronic evidence.
It also wanted the second petitioner, Simekha, to be removed from the suit labeling him a stranger in the case.
In May, Simekha led a group dubbed 'Citizens of Vihiga Caucus' to champion the dissolution of the county.
He accused Ottichilo’s administration of persistent gross violation of the constitution and disobedience to numerous court orders at the expense of residents.
The caucus claimed that the governor unconstitutionally, illegally, and irregularly employed unqualified persons.
Sh5.8 billion - Vihiga county's budget estimates for 2021/2022 financial year
Court gives governor Ottichilo's administration the green light to implement the budget
Petitioners argued that budget bypassed cabinet and that it was not subjected to public participation
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