High Court Rules Counties Have no Power to Audit Past Pending Bills

A photo of the Court of Appeal Bench.
A photo of the Court Bench
The Judiciary of Kenya

Kitale High Court in Trans Nzoia County has ruled that devolved units and governors have no role in auditing pending bill accrued by past regimes.

In a ruling on Wednesday, Justice  A. C. Mirima stated that the role of auditing past debts squarely rests with the Office of the Auditor General.

The petition was filed by a concerned citizen who challenged the decision of Trans Nzoia County to audit pending bills.

Justice Mirima ruled that Trans Nzoia County was in contravention of the Public Finance Management Act and Public Finance Management (County Governments) Regulations 2015 by auditing pending bills without the input of the Office of the Auditor General.

"A declaration hereby issues that the establishment of the Taskforce on Pending Bills and Human Resource Audit by the Governor of the Trans Nzoia County... usurping the powers of the Auditor General and those of the Internal Audit Office and the Audit Committee of the County Government of Trans Nzoia County. The Taskforce and its resultant report are, therefore, unconstitutional, null and void," the judgment read in part.

Trans Nzoia governor George Natembeya in his office on August 31, 2022.
Trans Nzoia governor George Natembeya in his office on August 31, 2022.
Courtesy George Natembeya

Justice Mirima agreed with the petitioner who challenged the establishment of the Taskforce and its audit report on the basis that the Auditor-General did not participate in this matter.

Consequently, Mirima ordered the Auditor-General to consider the report and decide on whether it meets the requirements of the Constitution and the law.

"Further, the Auditor-General shall have the option of rejecting the report. The decision will be made and communicated to the 1st Respondent, Trans Nzoia County, within 60 days of service as directed," the judge ruled. 

The Judge stated that once a decision to adopt the report is made and communicated by the Auditor-General to Trans Nzoia County, then the report will be adopted in accordance with the law.

Mirima further noted that in the event the Auditor-General rejects the audit report by the taskforce in its entirety, or if the Trans Nzoia fails to effect service of the report and judgment as directed, the declaration of unconstitutionality of the task force and its report shall forthwith take effect.

"Once the declaration of unconstitutionality of the Taskforce and its report sets in as provided for in (c) above, the proceedings of the Taskforce and the resultant findings and recommendations together with any actions taken by the 1st, 2nd, 3rd and/or 4th Respondents in the implementation of the Audit Report shall have no force of law or at all," the judge ruled.

"The same shall accordingly stand quashed by an order of Certiorari and the state of affairs shall revert to as it were before the establishment of the Taskforce."

The judgment is likely to affect other counties currently auditing past pending bills. 

Ruto and CoG
President William Ruo (Centre) and a group of members of Council of Governors (CoG) during the 9th National and County Coordinating Summit at Enashipai Hotel, Naivasha, Nakuru County on Saturday, February 11, 2023.
Council of Governors