Nairobi handover: Omtatah wants 3-judge bench to hear case

Activist Okiyah Omtatah wants Chief Justice David Maraga to appoint a three-judge bench to hear a constitutional petition that is challenging national government’s decision to take over some functions of Nairobi County.

Mr Omtatah, in an application for empanelment of the bench, says the petition raises weighty and substantial legal issues that have never been raised since the promulgation of the Constitution in 2010.

He insisted that the legality of Nairobi Governor Mike Sonko’s decision to transfer some functions of the county to the State needs to be heard by a bench and not by a single judge.

“It is the first time the national government has taken over some functions of a county government. The questions that are emerging from that move are weighty and are leading to constitutional interpretation. A bench is more jurisprudential than a single judge,” Mr Omtatah explained Wednesday.

According to the activist, a bench is well placed to determine the validity of the move and the deal signed by Governor Sonko and Devolution Cabinet Secretary Eugene Wamalwa last month.

When the petition came up Wednesday for mention Justice John Mativo declined to hear it because the Attorney-General and Devolution CS had not filed their responses.

The judge directed consolidation of Mr Omtatah’s petition with two others filed by Oringe Waswa Eddie and Katiba Institute as they are also challenging the same subject.

The petitioners are seeking a declaration that the transfer of the functions of the Nairobi County government is unlawful and unconstitutional.

“Removal of some key functions of the Nairobi County government is a threat to devolution and leaves the Nairobi devolved unit as an empty shell. The move is tantamount to dissolving the county government without reference or adherence to Article 192 of the Constitution,” said Mr Omtatah.

Though Article 187 of the Constitution allows the transfer of functions and powers between levels of government, the activist observes that the public, the Cabinet, County Executive Committee, County Assembly and the Senate were not involved in the decision.

“Doing the transfer of powers ad functions was outside law and therefore it is unacceptable. It is not even clear the revenue now being collected by the Kenya Revenue Authority (KRA) will be going to which portfolio,” said Mr Omtatah.

While insisting that the petition seeks to ensure the devolution system of governance is not undermined, the activist added that President Uhuru Kenyatta blocked institutions from exercising their duties in the Nairobi government takeover.

The petitions will be heard on March 26.