[2021] KEHC 2339 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

(Coram: A. C. Mrima, J.)

CONSTITUTIONAL PETITION NO.E437OF 2021

BETWEEN

COUNCIL OF COUNTY GOVERNORS......................................................PETITIONER

VERSUS

SENATE OF THE REPUBLIC OF KENYA...............................................RESPONDENT

RULING NO. 1

1. This matter is yet another dispute between the Council of Governors and the Senate. Both parties were borne out of the new governance framework in Kenya courtesy of the 2010 Constitution. Being recent creations with diverse functions, misunderstandings are due to occur time after time. However, given the number of matters which have so far been and are still being litigated before the superior Courts, it is certain that very soon most of the contentious areas will stand settled.

2. The dispute in this matter, once again, relates to the functions of the Senate under Article 96(3) of the Constitution. The provision states as follows: -

The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.

3. The gravamen in this Petition is the Petitioner’s contention that the Respondent cannot in any manner whatsoever exercise any oversight role over conditional and unconditional grants received by County Governments under Article 202(2) of the Constitution. The Petitioner contended that such grants do not form part of the national revenue allocated to the counties under Article 217 of the Constitution.

4. Affirming its position, the Petition filed a Petition dated 21st October, 2021 seeking a total of 15 orders. The Petition was, however, amended with the leave of this Court. It also filed a Notice of Motion of even date seeking some conservatory reliefs. An interim relief was granted on 22nd October, 2021 by Hon. Ong’udi, J.

5. The Notice of Motion was also amended vide the leave of the Court granted on 28th October, 2021. The amended Notice of Motion is dated 2nd November, 2021 (hereinafter referred to as ‘the application’).

6. The application seeks the following orders: -

1. Pending the hearing and determination of this Petition Conservatory orders be issued to restrain the Senate through its Committee on Roads & Transportation from summoning Governors and County Government officials to appear before it to answer queries in the Auditor General on Roads Maintenance Levy Fund in the Financial Years 2018/2019 2019/2020 and the World Bank –Kenya Urban Support Program for the financial years 2018/2019 and 2019/2020- specifically on queries regarding financial receipts and expenditure.

2. Pending the hearing and determination of this Petition Conservatory orders be issued to restrain the Senate through its Committee on Roads & Transportation from considering the report of the Auditor General on Roads Maintenance Levy Fund in the Financial Years 2018/2019 2019/2020 and the World Bank –Kenya Urban Support Program for the financial years 2018/2019 and 2019/2020 in competition with the Senate’s County Public Accounts & Investments Committee.

3. Pending the hearing and determination of this Petition conservatory orders be issued to restrain the Senate through its Committee of Roads & Transportation from issuing fines or warrants of arrest to county governors or county executive officials on matters arising from the report of the Auditor General on for Roads Maintenance Levy Fund in the Financial Years 2018/2019 2019/2020 and the World Bank – Kenya Urban Support Program for the financial years 2018/2019 and 2019/2020the Senate.

4. Pending the hearing and determination of this Petition conservatory orders be issued to restrain the Senate or any of its Committee from oversighting conditional and unconditional grants received by County Governments under Article 202 (2) of the Constitution-when the Auditor General’s report has been submitted to the County Assemblies under Article 229 (7) of the Constitution.

5. Pending the hearing and determination of this Petition conservatory orders be issued to restrain the Senate or any of its Committee from oversighting conditional and unconditional grants received by County Governments under Article 202 (2) of the Constitution in any manner whatsoever. 6. Costs of this application be provided for.

7. The application was supported by two affidavits sworn by Mary Mwiti, the Acting Chief Executive Officer of the Council of Governors. The Petitioner also filed written submissions and a List of Authorities.

8. The Respondent is diametrically opposed to the Amended Petition and the application. It filed a Replying Affidavit sworn by Jeremiah Nyegenye, the Clerk of the Senate in opposition to the application. The Respondent also filed written submissions.

9. From a careful perusal of the pleadings, the application, the affidavits in support of the application, the Replying Affidavit and the parties’ submissions, some uncontroverted issues come to the fore. One key issue is the fact that there have been previous Petitions in the superior Courts on inter alia Article 96(3) of the Constitution.

10. The said Petitions are Judicial Service Commission vs Speaker of the National Assembly & others [2013] eKLR, Nairobi Constitutional Petition No. 561 of 2015: Wycliffe Ambetsa Oparanya & Council of County Governors -versus- The Senate & Director of Public Prosecutions, International Legal Consultancy Group vs. Senate & Clerk of The Senate [2014] eKLR, The Council of Governors & 6 others v Senate [2015] eKLR and The Council of Governors & 5 others v The Senate & another [2019] eKLR.

11. The Petition in The Council of Governors & 6 others v Senate [2015] eKLR was filed in the High Court and it squarely dealt with the role of the Senate under Article 96(3) of the Constitution among other pertinent issues. The Petition was decided by a three-Judge Bench of the High Court.

12. On the question of whether the Senate can exercise oversight in respect of locally generated revenue, the High Court held at paragraph 140 as follows: -

We have already held that under Article 96(3) of the Constitution, the Senate has an oversight role over national revenue allocated to the County Governments including the expenditure of the said revenue. A County Assembly also has an oversight role over all County resources including the national revenue allocated to the Counties, grants, loans and revenue locally generated by the Counties.

13. The decision of the High Court was appealed against to the Court of Appeal. That was Nairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another [2019] eKLR.

14. The Court of Appeal in a five-Judge Bench in deciding the appeal partly differed with the High Court in finding that the County Assemblies do not have power to exercise oversight role over national revenue allocated to counties. The Court of Appeal, however, affirmed the High Court’s finding that the Senate has no power to oversight grants, loans and locally generated revenue. The Court held in part thus: -

No doubt, the drafters of the Constitution intended that there would be two levels of oversight of county resources, where revenue from the national government would be supervised by the Senate at the national level, and revenues collected from within the county would be supervised by the county assemblies at the county level. Both roles were intended to be separate and distinct, and as prescribed by Article 6 (2) of the Constitution, devised in a manner as to be complementary to each other.

15. There was a further appeal to the Supreme Court. This Court was informed that the matter is pending judgment before the apex Court.

16. In a synopsis, the dispute that resulted to the institution of these proceedings were the summons issued by the Senate’s Committee on Roads & Transportation in respect of the Report of the Auditor General on Roads Maintenance Levy Fund in the Financial Years 2018/2019 2019/2020 and the World Bank-Kenya Urban Support Program for the financial years 2018/2019 and 2019/2020.

17. The Petitioners posited that despite the pendency of the dispute on oversight at the Supreme Court, a practice has emerged and developed since 2016 through consensus of both the Senate and Governors as follows:

a)In accordance with the findings of the High Court, the Senate should oversight national revenue allocated to counties in Article 96(3) of the Constitution as well as its expenditure where the Auditor General has submitted a report to it. But where the Auditor General has submitted the same report to the County Assembly, the Senate should not be simultaneously seized of the matter and should await determination by the County Assembly in the first instance and should wait to do superintending oversight that is not largely pegged on the report of the Auditor General because of the timelines for consideration of the report of the Auditor General in Article 229 of the Constitution. In this regard, the Senate should develop a framework with the County Assembly on legislative intergovernmental relations as per Article 6(2) and 189 of the Constitution for seamless operations.

b)In accordance with the findings of the High Court and the Court of Appeal the Senate should not oversight grants received by counties, loans, and locally generated revenue. Because this is not covered in Article 96(3) of the Constitution. Instead, the oversight should be done by the County Assemblies. Nonetheless, nothing prohibits Counties from sharing information with the Senate regarding loans, grants, and locally generated revenue to enable the Senate to undertake its primary function of protecting the interests of counties at a national level.

c)The Senate should not exercise its superintending oversight powers in bad faith-especially for improper political motives, capriciously and in a manner that micro-manages and cripples county governments.

18. The Petitioners further posited that based on the practice and consensus (as guided by Courts) Governors have been appearing in the Senates’ County Public Accounts and Investment Committee (hereinafter referred to as ‘the SCPAIC’) to answer queries in the Auditor General’s reports over the years.

19. It was contended that, however, the SCPAIC has carried out oversight on national revenue allocated to counties and has unprocedurally and illegally also exercised oversight on grants, loans, and locally generated revenue as well, in a manner that renders County Assemblies functionless and irrelevant in the constitutional scheme of oversight.

20. The Petitioners averred that they have painfully persevered the unconstitutional intrusion of the Senate into oversighting the grants, loans, and locally generated revenue contrary to the decision of the Court of Appeal in Nairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another case (supra) in the hope that the decision of the Supreme Court will sooner and finally settle the matter.

21. It was further averred that the practice based on consensus and guided by the Courts has prevailed until sometimes in September and October 2021 when Senator Paul Wamatangi of Kiambu County (who has publicly indicated he wants to run for Governor Kiambu in the 2022 General elections) as Chair of the Senate’s Committee on Roads and Transportation, through the office of the Clerk began inviting Governors to answer questions that the Governors have already dealt with and/or are pending at the Senate’s County Public Accounts & Investments Committee. Specifically, Senate Wamatangi’s Committee wants Governors to appear before his committee to answer questions concerning the utilization of funds disbursed from the Roads Maintenance Levy Fund in the Financial Years 2018/2019 2019/2020 and the World Bank-Kenya Urban Support Program for the financial years 2018/2019 and 2019/2020.

22. The Petitioners contended that the Senate has by now stretched its illegal hand too far. In particular, the Petitioner asserted that: -

(a) Constitutionally, the Senate has no oversight mandate over grants and loans received by Counties.

(b) In any event, even in instances where there are issues which are financially related, then it is the SCPAIC and not the Senate’s Committee on Roads and Transportation which ordinarily deals with such matters.

23. The Petitioner reiterated the position that, although the Senate is acting contrary to a Court decision, members of the Petitioner have religiously appeared before the SCPAIC and not the Senate’s Committee on Roads and Transportation where they have been examined on the matters despite the underlying legal questions regarding the mandate of the Senate over grants to county governments.

24. The Petitioner now invites this Court to affirm the position of the Court of Appeal in Nairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another case (supra) and issue the orders sought in the application.

25. The Petitioner made reference to several decisions in support of the application. It submitted that the principles for consideration in grant of conservatory orders are all in favour of the Petitioner.

26. The Respondent deponed at length through the Clerk of the Senate. The disposition was on both the application and the main Petition.

27. It was deponed that the Second Schedule to the Senate Standing Orders established the Senate Standing Committee on Roads and Transportation and in line with Article 124 of the Constitution. Standing Order 218 of the Senate Standing Orders provided for the appointment and functions of Standing Committees.

28. It was averred that the role of the Committee on Roads and Transportation is to "consider all matters relating to transport, roads, public works, construction and maintenance of roads, rails and buildings, air, seaports, housing and communication' Given that mandate, the Roads and Transportation Committee received a Report from the Cabinet Secretary, Ministry of Transport, Infrastructure, Housing and Urban Development on projects funded by conditional grants in counties through the World Bank-Kenya Urban Support Programme (KUSP-UDG) and the disbursement of the Roads Maintenance Levy Fund (RMLF).

29. That in March 2020, the Ministry of Transport, Infrastructure, Housing and Urban Development released a Report on the Kenya Urban Support Programme and the objective of the Report was to assess the achievement of eligible County Governments and respective eligible Urban Areas with respect to meeting the Minimum Conditions for Urban Institutional Grants and Urban Development Grants.

30. The Respondent deponed that vide a letter dated 20th April, 2020 it invited the management of the Kenya Roads Board through the Cabinet Secretary, Ministry of Transport, Infrastructure, Housing and Urban Development to a meeting of the Committee to clarify the following matters-

(i) The conditions set out for the disbursement of the Conditional Grant on the Roads Maintenance Levy Fund to County Governments;

(ii) The guidelines and parameters used by the Kenya Roads Board to determine the share of the Roads Maintenance Levy Fund that is disbursed to specific County Governments;

(iii) Provide information on the allocation, disbursement and utilization of the Roads Maintenance Levy Fund for Financial Year 2019/2020 of respective County Governments;

(iv) Submit work plans prepared by County Governments for access to the Roads Maintenance Levy Fund from Financial Year 2016/2017 to Financial Year 2019/2020;

(v) How Kenya Roads Board supervises and monitors the implementation of projects funded from the Roads Maintenance Levy Fund as reported by County Governments;

(vi) Provide reports of respective County Governments on the utilization of Roads Maintenance Levy Funds;

(vii) The reasons as to why some Counties do not utilize Roads Maintenance Levy Funds disbursed to them; and

(viii) Whether Roads Maintenance Levy Funds disbursed to County Governments that are not utilized in a Financial Year are available for use in subsequent Financial Years.

31. According to the Respondent, above correspondence elicited a plethora of correspondences between several Government ministries and itself and a lot of issues emerged including the low absorption rate of the funds disbursed as conditional grants.

32. It was further deponed that as a result thereof the Roads and Transportation Committee resolved that all the 47 County Executives provide a comprehensive Report on the following: -

(i) Evidence of utilization of the Road Maintenance Levy Fund for each of the Financial Years including a list of all roads on which the funds were utilized for each of the Financial Years;

(ii) Specific information on whether the roads had been completed;

(iii) Submit a list of all roads that had been targeted for implementation for the FY 2020/21.

33. The Clerk to the Senate deponed that in line with the foregoing resolution, he sent out invitations to all the Governors inviting them to meeting to deliberate on the utilization of funds disbursed from the Roads Maintenance Levy Fund and the World Bank-Kenya Urban Support Program. The letter read as follows: -

The Senate Standing Committee on Roads and Transportation is established under standing order 218(3) of the Senate Standing Orders and is mandated to consider all matters relating to transport, roads, housing, public works, construction and maintenance of roads, rails and buildings, air and seaports.

The Committee is considering the matter of the utilization of the funds disbursed from the Roads Maintenance Levy Fund and the World Bank-Kenya Urban Support Program. The Committee resolved to invite you to a meeting to clarify various issues on the matter and to apprise the Committee on the experiences and challenges relating to the utilization of funds disbursed from the Roads Maintenance Levy Fund in Financial Years 2018/2019 and 2019/2020 and the World Bank-Kenya Urban

Support Program in Financial Years 2018/2019, 2019/2020 and 2020/2021.

The Committee further requests that you provide the following information-

l. Approved budgets indicating the allocation for the Department of Roads, Housing and Transport in Financial Years 2018/2019, 2019/2020 and 2020/2021;

2. Criteria for determination of the budgetary allocation for the Department of Roads, Housing and Infrastructure;

3. Any supplementary budgets or re-allocation of these funds to any other expenses and supporting evidence and justification for the same;

4. A summary of all funds received in each of the Financial Years under review, details of projects undertaken and funds allocated to each project, documents confirming execution, completion and payments made for the projects as well as compliance with reporting to all statutory institutions;

5. Confirmation on whether the information under paragraphs I to 4 above was communicated to the responsible Committee of the County Assembly; and

6. The challenges faced in the utilization of funds disbursed from the Roads Maintenance Levy Fund and the World Bank-Kenya Urban Support Program.

The purpose of this letter is to inform you of the resolution of the Committee and to invite you to appear before the Committee on Wednesday, 17th November, 2021 at the 1st Floor Boardroom, Red Cross Building, Parliament Buildings, Nairobi at 10. 00 a.m. You may be accompanied to the meeting by not more than five officers you deem necessary to assist you in responding to the information sought by the Committee.

34. The Respondent contended that the Senate Roads and Transportation Committee is not considering the Reports of the Auditor General, but it is solely considering matters concerning and relating to transport, roads, public works, construction and maintenance of roads, rails and buildings, air, seaports, housing and communication pursuant to its mandate in the Second Schedule to the Senate Standing Orders.

35. It was averred that the Petitioner has willfully misled this Honourable Court on the nature of the oversight investigation that the Senate Roads and Transportation was conducting.

36. The Respondent further averred that the Court should also take cognizance that the Senate was merely exercising its constitutional mandate under Article 96 of the Constitution and in accordance with the powers granted by Article 125 of the Constitution. That, in undertaking all its duties the Senate and its Committees may pass a resolution exercising its powers as of a High Court and that the High Court has no jurisdiction to question what the Senate has resolved.

37. The Respondent referred to Kerugoya High Court Constitutional Petition No. 8 of 2014; International Legal Consultancy Group vs The Senate and the Clerk of Senate, where it was determined that ‘the Senate acted within its constitutional mandate under Article 96(3) and Article 125 of the Constitution when it issued the summons dated 8th February, 2014 to the Governors and the County Executive Members of Finance of the respective counties with regard to the Report by the Controller of Budget'.

38. The Respondent also made reference to High Court Constitutional Petition No. 413 of 2014; Council of Governors vs The Senate where the Council of Governors challenged the authority of the Senate to summon Governors to appear before the Senate and its committees. Again, the High Court ruled that the Senate, pursuant to Article 125 of the Constitution, has power to summon a County Governor to appear before the Senate and its Committees and that an appeal to the Court of Appeal was dismissed.

39. The Respondent contended that the Petitioner being aware of the aforestated decisions of the High Court and the Court of Appeal, is in contempt of the orders of this Honourable Court and the lawful authority of the Senate to summon Governors. It was contended that the Petition was an abuse of process and seeks to prosecute matters that have previously been settled by this Honourable Court.

40. It was posited that transparency and accountability are national values and principles of governance under Article 10 of the Constitution and that Article 73(2)(d) of the Constitution required accountability to the public for decisions and actions as well as Article 201(a) of the Constitution which called for openness and accountability, including public participation in financial matters. It was on that background that the Senate issued invitations to the members of the Petitioner.

41. The Respondent further and vehemently posited that the Senate was heavily aggrieved by the interim Orders in force as they have the effect of crippling the Senate in the performance of its functions under Articles 94, 96, 220 and Chapter 12 of the Constitution. It was submitted that in, public interest, the Senate be allowed to perform its constitutional mandate.

42. The Respondent faulted the grant of the orders as obtained through non-disclosure of material facts, material misrepresentation of facts and in violation of the Constitution and that orders ought to be set aside for failing to meet the legal and constitutional threshold for the Court to exercise its jurisdiction under Article 165 of the Constitution.

43. In its submissions, the Respondent made reference to several decisions in reiterating its position in the disposition. The Respondent urged this Court to dismiss the application with costs.

44. From the reading of the Respondent’s disposition and the submissions, it is clear that the Respondent’s Committee on Roads and Transportation is not exercising its oversight function in respect to the national revenue allocated to counties under Article 217 of the Constitution. Instead, the Committee is exercising oversight in respect to funds otherwise generated by the counties through grants. As such, the issue was settled by the Court of Appeal in Nairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another case (supra) to the effect that the Senate can only exercise oversight on the national revenue allocated to counties under Article 217 of the Constitution and not on any other revenue or matters which fall outside the purview of the national revenue allocated to counties under Article 217 of the Constitution. The Court as well reiterated the position that all other funds generated by counties, except the national revenue allocated to counties under Article 217 of the Constitution, cannot be oversighted by the Senate, but only by the County Assemblies.

45. The upshot is, therefore, that the Respondent’s Committee on Roads and Transport and by extension the Senate, does not any powers and mandate of oversight over any other funds to the counties except such funds which form part of the national revenue allocated to counties under Article 217 of the Constitution. As held by the Court of Appeal in Nairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another case (supra) ‘... nodoubt, the drafters of the Constitution intended that there would be two levels of oversight of county resources, where revenue from the national government would be supervised by the Senate at the national level, and revenues collected from within the county would be supervised by the county assemblies at the county level. Both roles were intended to be separate and distinct…. ‘

46. The foregoing position was echoed by the High Court in its finding in The Council of Governors & 6 others v Senate [2015] eKLR that ‘……We have already held that under Article 96(3) of the Constitution, the Senate has an oversight role over national revenue allocated to the County Governments including the expenditure of the said revenue….’

47. In sum, both the High Court and the Court of Appeal found that the Senate does not have any oversight role over grants, loans and revenue locally generated by the counties.

48. This Court would have gone ahead to ascertain whether the principles for consideration in conservatory orders apply to this matter. However, this Court will not do so for the primary reason that the Court is bound by the doctrine of stare decisis and must follow the finding of the Court of Appeal in Nairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another case (supra) unless such decision is distinguishable.

49. The Court has not been persuaded by any of the parties on anything to the effect that the decision in Nairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another case (supra) is distinguishable. In fact, both parties have relied on the same decision in fronting their rival positions. On a careful consideration of the said decision, this Court is persuaded that the said decision in Nairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another case (supra) is in all four corners with this matter. The decision is, hence, binding on this Court.

50. Speaking of the doctrine of stare decisis, the Supreme Court inJasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 Others [2013] eKLRstated as follows: -

Adherence to precedent should be the rule and not the exception.... the labour of judges would be increased almost to breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.

51. The Court of Appeal in a five-Judge Bench in Mwai Kibaki v Daniel Toroitich arap Moi, Civil Appeal Nos. 172 & 173 of 1999; [2008] 2 KLR (EP) 351; [2000] 1 EA 115 had the following to say on the doctrine:

The High Court, while it has the right and indeed the duty tocritically examine the decisions of the Court of Appeal, must in the end follow those decisions unless they can be distinguished from the case under review on some other principle such as thatobiter dictumif applicable. It is necessary for each lower tier to accept loyally the decisions of the higher tiers. Even in the same tier, where it has taken the freedom to review its own decisions, it will do so cautiously. Precedent is regarded as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as an orderly development of legal rules.

52. Still on the importance of following the decisions of a higher Court, the Court of Appeal in National Bank of Kenya Ltd v Wilson Ndolo Ayah Civil Appeal No. 119 of 2002; [2009] KLR 762 held thus: -

It is good discipline in courts for the proper smooth and efficient administration of justice that the doctrine of precedent be adhered to. If for any reason a Judge of the High Court does not agree with any particular decision of the Court of Appeal, it has been the practice that one expresses his views but at the end of the day follows the decision which is binding on that court. The High Court has no discretion in the matter.

53. This Court now believes that the decision in Nairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another case (supra) is capable of disposing of the application.

54. As I come to the end of this ruling, I must dissuade the submission that if the application is allowed then the operations of the Senate will be brought to a halt. That certainly cannot be the case. The Senate, even if the application is successful, is still functional as it must exercise oversight over the national revenue allocated to counties under Article 217 of the Constitution. That is such a humongous responsibility on the Senate.

55. Flowing from the above discussion and findings and in keeping with the consensus reached by the parties herein over time (as they await the determination of the dispute on Article 96(3) of the Constitution by the Supreme Court), the amended Notice of Motion dated 2nd November, 2021 is hereby determined as follows: -

(a) Pending the hearing and determination of this Petition conservatory orders do hereby issue restraining the Senate through its Committee on Roads & Transportation from summoning Governors and County Government officials to appear before it to answer queries in the Auditor General on Roads Maintenance Levy Fund in the Financial Years 2018/2019 2019/2020 and the World Bank-Kenya Urban Support Program for the financial years 2018/2019 and 2019/2020 - specifically on queries regarding financial receipts and expenditure.

(b) Pending the hearing and determination of this Petition conservatory orders do hereby issue restraining the Senate through its Committee on Roads & Transportation from considering the report of the Auditor General on Roads Maintenance Levy Fund in the Financial Years 2018/2019 2019/2020 and the World Bank –Kenya Urban Support Program for the financial years 2018/2019 and 2019/2020 in competition with the Senate’s County Public Accounts & Investments Committee.

(c) Pending the hearing and determination of this Petition conservatory orders do hereby issue restraining the Senate through its Committee of Roads & Transportation from issuing fines or warrants of arrest to County Governors or County Executive officials on matters arising from the report of the Auditor General on for Roads Maintenance Levy Fund in the Financial Years 2018/2019 2019/2020 and the World Bank-Kenya Urban Support Program for the financial years 2018/2019 and 2019/2020.

(d) Pending the hearing and determination of this Petition conservatory orders do hereby issue restraining the Senate or any of its Committee from oversighting conditional and unconditional grants received by County Governments under Article 202(2) of the Constitution in instances where the Auditor General’s report has been submitted to the County Assemblies under Article 229(7) of the Constitution.

(e) There shall be a stay of any further proceedings in this Petition pending the outcome of the appeal lodged before the Supreme Court against the Court of Appeal decision inNairobi Civil Appeal No. 204 of 2015The Council of Governors & 5 others v The Senate & another.

(f) Costs of the application be borne by the Respondent.

It is so ordered.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2021

A. C. MRIMA

JUDGE

RULING VIRTUALLY DELIVERED IN THE PRESENCE OF:

MR. PETER WANYAMA, LEARNED COUNSEL FOR THE PETITIONER.

MISS. WANGECHI THANJI, LEARNED COUNSEL FOR THE RESPONDENT.

ELIZABETH WANJOHI – COURT ASSISTANT.