Five Nairobi residents have gone to court to block the 47 governors from appearing before the Senate for interrogation over audit queries raised by the Auditor-General in annual financial reports.
The five argue that the decision by the Senate to subject the county chiefs to grilling, through the County Public Accounts and Investments Committee (CPAIC) is invalid, void and of no effect. because the task falls outside the House's constitutional mandate.
In the application filed at the High Court on Tuesday, the applicants argue that the Senate has usurped the powers of county assemblies as the task of interrogating governors over financial reports is not one of its functions as defined under article 96 of the Constitution.
"The Constitution provides that the governor is expressly answerable to the county assembly o issues of financial resource management, and by dint of Articles 6 (2) and 189 (1), the function needs to be exercised by the rightful authority," the five say in their pleadings.
Justice Pauline Nyamweya certified the case as urgent but declined to stop the governors from appearing before the committee to respond to queries raised in the Auditor-General's report.
"I have considered the application and the reasons offered in support of the urgency, and I am satisfied that the ex-parte applicants have demonstrated that this matter is urgent," the judge said.
She said, however, that the Senate and other respondents should be given time to respond before any orders are granted, noting the applicants will not suffer any prejudice if the summons are not suspended.
Justice Nyamweya directed the applicants to appear before Justice Jairus Ngaah on Wednesday for a mention and issuing of further directions.
The five petitioners are Charles Ongaro Kiage, a former officer at Auditor-General's office, Benson Orina Bosire, Richard Oseko Ogeto, William Kinanga Obaga and Jared Momanyi.
They argue that the decision by the Senate has led to imprudent use of public resources as there is duplication of roles between the Senate and county assemblies.
They further argue that the Auditor-General's financial reports on county governments are foreign to the Senate as they are prepared by the auditor's report and submitted to county assemblies in line with provisions of the article 229 and 226 of the Constitution.
"The conduct of the Senate has led Speakers of county assemblies to abdicate their role as mandated by the Constitution, which would have led to closer assessment and inquiry while serving the citizenry, development and enhancement of capacity to interrogate financial statements, budgets and audit reports, in contravention of Article 73."
While they note that the eight previous interrogations have been erroneous, they say there have been no noteworthy recommendations and that the interrogations are theatres for public embarrassment, potential extortion and muscle-flexing, hence not worthy of investment through public funds.
The petitioners want the court to issue a prohibition order stating that the Senate, whether acting as a committee or full plenary, cannot summon for questioning the 47 governors over the Auditor-General's reports.
They also want the court to declare that county assembly speakers, who have not periodically ensured their units debate the auditor's reports within the constitutional timelines, are in breach of the Constitution and therefore unfit to hold office.
In 2017, Justice George Odunga ruled that the Senate, in carrying out its mandate of exercising oversight over national revenue allocated to the county governments, has the power to summon any person who, in its view, can shed light on how the said revenue is being utilised.
The aim is to ensure financial prudence and probity in use of county funds, Justice Odunga noted, adding such persons include governors.
He noted, however, that it is not mandatory for the governor to be summoned in all instances.