The government now wants the gazetting of the contentious bill allocation Sh15 billion to the Nairobi Metropolitan Service (NMS) revoked.
Solicitor-General Ken Ogeto said the April 27 publication of the Nairobi City County Supplementary Appropriation Bill, 2020 in the Kenya Gazette was irregular and unlawful.
This view in his legal advisory to the Government Printer is seen as a win for Nairobi Governor Mike Sonko in his battle with Speaker Beatrice Elachi.
Mr Ogeto said it was inconceivable for the bill to have been published in the Kenya Gazette while still pending before the Nairobi assembly, hence the irregularity and illegality.
He also says the bill was not assented to in either of the ways contemplated by the law, so it is unlawful.
“The publication is a nullity and ought to be rectified appropriately," the Solicitor-General said in a May 6 letter addressed to Governor Sonko and copied to the Attorney-General, Government Printer and Controller of Budget.
"The Government Printer is accordingly advised to take note of the contents of this legal opinion and to remedy the situation by taking necessary action to revoke the purported publication."
The City Hall chief wrote to Mr Ogeto asking him to direct the Government Printer to nullify the purported Act through a corrigendum.
Sonko's argument was that the bill was published in contravention of the law and was therefore not backed by the force of law.
“The bill was sneaked to the Government Printer by unknown people, notwithstanding the fact that the office of the governor alerted the Government Printer that it had not completed the necessary legislative process,” he told Mr Ogeto in a letter dated April 30.
The Nairobi assembly passed the bill on April 2, 2020 but Governor Sonko declined to assent to it, accusing MCAs of allocating funds to functions that were not transferred to the NMS.
He returned the Bill with reservations to the Assembly on April 15, 2020 but Speaker Elachi, during a special sitting on April 17, set aside his memorandum and returned the bill to him for assent.
The bill was published on April 27 after the expiry of the seven-day period provided for in the law.
Governor Sonko contested the manner in which his memorandum was set aside, saying the assembly did not debate it and that the required two-thirds majority did not vote on it.
Speaker Elachi maintained that her ruling was informed by Standing Order 146(4) that gives her the latitude to rule on a memorandum without subjecting it to the relevant committee of the house for voting, as it raised Constitutional matters that could only be determined by a court.
However, the Solicitor-General argues that an assembly's Standing Orders cannot be used to sidestep mandatory requirements of an Act of Parliament.
He cited a 2019 ruling in a case pitting the Machakos assembly against Governor Alfred Mutua, where the court affirmed that provisions of an Act takes precedence over Standing Orders in case of a conflict.
In lieu of this, Mr Ogeto said that according to Section 24(5) of the County Governments Act, the assembly must muster a two-thirds majority to pass a bill a second time without incorporating the governor’s reservations.
He explained that the assembly did not vote on April 17 on the bill as required by the above Act.
“Consequently, in our reading of the law and in light of the facts provided, the bill cannot be deemed to have been assented to, following the expiry of the period stipulated for assent, as it was not passed by the assembly with a two-thirds majority as required by the Act,” he said.