Judges clip Senate powers over county finances

Tuesday June 11 2019

Senate’s Public Accounts and Investments Committee members Moses Kajwang' (left) and Kimani Wamatangi preside over a session on May 2, 2019. Senators will henceforth limit their oversight of the county finances to only monies allocated to the devolved units from the national shareable revenue. PHOTO | FILE | NATION MEDIA GROUP


Senators will henceforth limit their oversight of the county finances to only monies allocated to the devolved units from the national shareable revenue.

For the locally generated revenues, the County Assemblies have the power in over-sighting the county executive, the Court of Appeal has held.


“It is incontrovertible that Article 96 (3) restricts the Senate’s oversight role to the supervision of national resources allocated to counties, and it is clear that the provision does not authorise the Senate to oversee county resources other than revenues from the national government.

We say this because with regard to other resources, the County Government Act and the Public Finance Management Act enables county governments to raise revenues and resources, including grants and donations from other sources, and since Article 185 (3) vests the county assemblies with an oversight role over the county executive committee and any other county executive organs, it means that county assemblies are mandated to oversee the management and expenditure of locally generated revenues through county executive organs within the county,” stated Justices Asike-Makhandia, Daniel Musinga, Anne Murgor, Otieno Odek and Sankale ole Kantai in the June 7 judgment. 

“The inference here would be that there are two levels of oversight that is — at the national level with the Senate commanding oversight over national revenues, and at the county level where the county assemblies retain oversight over revenues generated within the county,” the judges added.



But the ruling has been criticised by lawyer Peter Wanyama who was representing the governors in the appeal.

According to Mr Wanyama, the appellate court’s position will create an absurdity.

“The decision is an excellent reading but jurisprudentially problematic in some respects. In practice, it is impossible to distinguish the two categories of county income streams at expenditure level. They are all swept into one expenditure account and spent in accordance with set budgetary items, controls, and approvals. It is impossible to draw the line,” said Mr Wanyama.

In a wide ranging judgment on the powers of the Senate to summon governors, the Court of Appeal also stated that the only person mandated to account to the Senate is the governor who is constitutionally required to obey the summons by the Senate.

Though county executive committee (CEC) members and chief officers can accompany the governor, they are not accountable to the Senate and cannot therefore represent the governors.


The matter arose out of an August 14, 2014 petition in which county chiefs challenged the powers of the Senate to summon them. In the ruling on the original petition, the High Court had held that “the Senate in the exercise of its oversight role can summon the governors as well as the accounting officers to personally appear before it to answer to questions on County Government finances.”

However, the governors and the senators felt aggrieved and each filed appeals. In the judgment, the Court of Appeal held that “the inescapable conclusion is that the governor as the chief executive of the county government is accountable to the Senate for the management of that portion of county resources that comprises national revenue horizontally allocated by the Senate to the county.”

“… Where queries arise in connection with such revenue, none other than the governor can be called upon to respond to those queries. The High Court was therefore right in finding that the Senate was well within its constitutional mandate to summon the recalcitrant governors to address the audit queries, and matters related to utilisation of national revenues allocated to the county,” the judges said.


Since the start of devolution, Governors and the Senate have had a love-hate relationship especially when it comes to summoning the county executives to appear before the senate committees.

Governors say the summons are used by their senators and those eying the gubernatorial seats in future elections to unfairly attack them.

Before the High Court ruling of 2014 that required governors to obey summons by the Senate, former governors Isaac Ruto (Bomet), William Kabogo (Kiambu), Jack Ranguma (Kisumu) and Murang’a governor Mwangi wa Iria declined to honour the summons by Senate Committee on Finance, Commerce and Economic Affairs.

Their refusal to appear before the committee led the Senate to recommend to the Treasury Cabinet Secretary to stop the transfer of funds to the concerned counties. The Controller of Budgets was also urged not to approve the withdrawal of public funds by the four counties.


However, the Court of Appeal held that while the Senate was within its limits to summon governors, it overstepped its powers and ventured into the remit of the Treasury CS. 

“Any stoppage of funds to the county governments is within the powers of the Cabinet Secretary and not the other way round. Similar reasoning would be applicable to the attempt by the Senate to usurp the Controller of Budget’s powers as stipulated under Article 228 (4) of the Constitution,” the Appeal judges stated.

The Council of Governors this year advised its members to boycott the summonses by Senate Public Accounts and Investment Committee over claims that the report from the Office of the Auditor-General had several errors.

Not all members boycotted the summonses. Kirinyaga governor Anne Waiguru and her Migori counterpart Okoth Obado honoured the invitations.