Kenya: Sonko Appeals Ruling on Legality of Nairobi Metropolitan Services

20 September 2020

Nairobi Governor Mike Sonko has moved to the Court of Appeal to challenge a Labour court's declaration that Nairobi Metropolitan Service (NMS) is a legal entity.

In a notice filed through Kurauka & Company Advocates, the governor says he is dissatisfied with the entire ruling delivered by Justice Hellen Wasilwa of the Employment and Labour Relations Court on September 1.

Sonko has already furnished the Attorney-General with a copy of the notification of the intended appeal, an indication that his fight against President Uhuru Kenyatta's decision to create NMS is not yet over despite public announcements.

He is opposed to the Labour court's decision to lift its earlier declaration that NMS, which is led by Major-General Mohammed Badi, is an illegal entity.

He is also aggrieved by Justice Wasilwa's finding that the secondment of the 6,052 staff from the Nairobi County Public Service Board to NMS was procedural.

The ruling

The judge declined Governor Sonko's protest that he was not consulted in the secondment of the staff.

"It has been demonstrated that the secondment was done with the approval of the Nairobi County Public Service Board as indicated in my judgement. The letters for secondment were not attached to this application but if not written should be actioned," said Justice Wasilwa.

The judge ruled on an application by the Public Service Commission (PSC) and the Attorney-General to lift the earlier judgment and for a declaration that the transfer of employees from the county government to NMS was done within the correct framework of the law.

"I acknowledged that the County Public Service Board was consulted before the staff in question were either deployed or seconded," judge Wasilwa said while reversing her earlier ruling dated June 18.

She earlier ruled that the transfer of functions by the Nairobi County government to NMS was illegal and unconstitutional.

She had made a finding that in as far as the Deed of Transfer of Functions of Nairobi County government was done without involvement of the county assembly, the Constitution was breached.

Hence, Justice Wasilwa said the transfer was done without involvement of the entire county government as envisaged by the Constitution.

Consultations

But in the latest ruling, the judge said the transfer was valid because evidence produced by NMS, PSC and the Attorney-General indicated there was involvement of the county assembly.

She considered a letter from the Attorney-General's office notifying the Nairobi assembly of the decision to transfer the county functions to the national government.

The judge also considered evidence that there were consultative forums in different wards and public participation in all 17 sub-counties, where the public submitted their views on Transfer of Functions.

Another piece of evidence was the Hansard report and motions related to the matter, an indication that the county assembly was actually consulted and involved in the process leading to the establishment of NMS.

"I have looked at the said documents as annexed and I note that on February 27, the Speaker of the county assembly notified the House of the decision by the county government to transfer four functions to the national government and also established an ad hoc committee to study and report on the Deed of Transfer of functions," said the judge.

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