The Apex Court on Friday dismissed an advisory opinion filed by Nairobi County in 2021, seeking advice on the now-abolished Nairobi Metropolitan Services.
In their ruling, the Supreme Court judges agreed with the Attorney General that the county should have sought his advice first before moving to the Supreme Court.
Justices Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and William Ouko ruled that the Nairobi County lawyer did not give a sufficient reason why they did not seek the AG’s advice before moving the Apex Court.
“We take judicial notice that regrettably, the reasons for non-compliance with these directions have not been provided,” the court ruled.
The court also noted that curiously, neither a representative of the County nor its counsel appeared at the hearing of the reference leading to this judgement.
The court also wondered how it could issue an advisory on the transfer of debts without any evidence of how they were arrived at.
Further ruling that the issues raised in the advisory opinion revolved around the day-to-day operations of the two levels of government and their departments.
“As a result of the foregoing, we agree with the AG that first, the county ought to have initially sought the Attorney General’s advice and second, the instant proceedings lack the applicant’s authority,” the court ruled.
Among the issues the county wanted advice on included whether the deed of transfer should have incorporated the transfer of liabilities and they had argued that functions transferred to NMS had the biggest budgetary allocations as compared to the functions allocated to the county government.
On February 25, 2020, the Nairobi County through a deed of Transfer of functions unequivocally transferred some services to the National Government through the NMS but did not transfer corresponding liabilities.
These functions included the County Health Services, County Transport Services, County Planning and development Services
The County also wanted to seek clarification of an alleged ambiguity in the legal statutes and framework, affecting the settlement debts owed by the County after transition and liabilities shared between the two levels of government after execution of the deed of transfer to NMS.
In 2020, former Nairobi governor Mike Sonko signed off the four key functions of Health, Transport, Public Works and Auxiliary services to NMS at Statehouse.
However, last year after Governor Johnson Sakaja took over office NMS director General Mohammed Badi handed over the transferred functions back to the county.