Nairobi; 29 June, 2023: The High Court in Nairobi has issued orders barring the Nairobi City County Assembly from debating a report on the dilatory audit of funds and accounts of the Nairobi city county alcoholic drinks control and licensing board for the year ended 30th June 2020.
The County assembly was stopped from discussing the highly biased report which had been tabled by the chairman of the County assembly select committee on public accounts Chege Mwaura considering the auditor general’s report on the accounts of the board.
The orders were issued following an application dated 26 June 2023 filed under a certificate of urgency of even date by five applicants Dr. Jairus Musumba who served as Chief Officer for Trade, Tourism, and Cooperatives between May 2019 and April 2020, Allan Igambi the former County Executive Committee Member for Trade, Tourism,
and Cooperatives between 2018 and 2022, Mohamed Sahal, who served as Chief Officer for Trade, Tourism, and Cooperatives, Hesbon Ogwena the former director of Nairobi city county alcoholic drinks control and licensing board and Julius Matekwa who was an accountant to the Nairobi city county alcoholic drinks control and licensing board.
In the orders, the applicants impugn the Auditor General and Select Committee report for non-compliance with the constitutional timelines and thus violating Article 47’s demand for expeditious and efficient.
The applicants also contended that the select committee’s decision is a non-decision because it violates the rules of natural justice. They also impugn the decision as irrational for vicariously holding the applicants liable for omissions occurring some five to seven financial years before any of them took office. The Applicants served between 2019 and 2022 yet the Committee recommends their prosecution for failure to submit financial statements between 2014 and 2019.
The county assembly had lined up the report for debate in the order paper today before being served with the court injunction pending a full hearing of the matter on 17th July, 2023.
Sitting in Milimani High Court, Justice Jairus Ngaah ruled that the application was indeed urgent and leave is granted in terms of the prayer of the applicants.
The substantive motion will be filed and served within 7 days of the date of this ruling and the respondents are required to file and serve their response within seven days of the date of service of the applicants’ motion.
The applicants, through their lawyers Mcdonald & Company Advocates sought the prohibition restraining the Assembly from debating the report of the select committee on the consideration of the report of the select committee on the consideration of the report of the auditor general on alcoholic drinks control and licensing board for the year ended 30th June 2020.
The order also forbids any public entity from acting on the report against the applicants and quash the report of the select committee which the applicants deem biased and doctored against the applicants.
Article 47 and section 4 of the Fair Administrative Action Act, 2015 demand administrative action to be expeditious, efficient, lawful, and procedurally fair. In that regard, article 229(4) demands that, for each financial year, the Auditor-General must audit
and report, on all accounts, funds, and authorities of the national and county governments within six months after the end of each financial year. In turn, under Article 229(8) within three months after receiving an audit report, the County Assembly must debate and consider the report and take appropriate action.
In this case, the Auditor General delayed the audit for the Nairobi City County Alcoholic Drinks
Control and Licensing Board for the financial year 2019/20 beyond 9 months until 28 September 2022. Only then did the Auditor General submit the report to the County Assembly. Additionally, the Assembly did not debate the report within three months but delayed it until June 2022 violating Article
229(8) of the Constitution. The Select Committee makes adverse findings and allegations
against the Applicants and recommends their prosecution.
