Supreme Court has ruled that Nairobi County Governor Johnson Sakaja should pay the Ksh60 billion debt that the defunct City Council accrued.
In the ruling rendered by a five-judge bench on Friday, July 14, Sakaja was found to be bound by law to seek an advisory opinion from Attorney General Justin Muturi before settling pending bills.
Deputy Chief Justice Philomena Mwilu and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u and William Ouko added that the county government is constrained by Intergovernmental Relations Act to settle the debt under a framework that the State Law Office will draw.
"The outstanding legal debt during the transition from the National Government to the devolved government as provided under Sections 4 and 7 of the Transition to Devolved Government Act should have been absorbed by the National Government and not the County Government," read part of the Judgement.
At the Supreme Court, the Nairobi County Government argued that the outstanding legal debt which was accrued during the onset of devolution should have been absorbed by the National Government.
Sakaja's administration also claimed that the transfer of functions from the County Government to the National Government vide the Deed of Transfer dated February 25, 2020, should have also included the transfer of liabilities, including the Ksh60 billion owed in legal debt.
Mike Sonko, former Nairobi governor, claimed that he was coerced into signing the deed, which led to the creation of the defunct Nairobi Metropolitan Services.
The Supreme Court was also asked to determine whether the county accounting officers should personally be held liable for the failure of the county governments to obey orders requiring payment of damages and legal debts.
While defending the State, Attorney General Justin Muturi argued that the legal framework had long been established and enforced.
However, DCJ Mwilu and her colleagues dismissed the prayer that sought to incriminate the accounting officers, noting that the argument presented was unsubstantial.
The judges added that the county's failure to seek the Attorney General’s advice was deliberate as they had numerously been cited for contempt.
"Issues raised in the advisory opinion revolve around the day-to-day operations of the two levels of Government and their departments. Therefore, they were matters for resolution, initially, through the advice of the Attorney General.
"As primarily, the Attorney General’s advice was not sought, the Court has applied the provisions of Rule 53 (1) (c) of the Supreme Court Rules, its previous jurisprudence and declines to exercise its discretionary jurisdiction to give an advisory opinion," the Judges ruled.
