Governors to involve Auditor in verifying bills, judge rules

Governors must involve the office of the Auditor-General when verifying pending bills owed by county governments and audit of workers, the High Court has ruled.

In his landmark judgment, Justice Anthony Mrima said the county bosses cannot exclude the Auditor-General while seeking verification of the pending bills owed to contractors and inspection of the human resource.

The judge made the findings while quashing the decision of Trans Nzoia governor George Natembeya to bypass the Auditor-General when establishing a taskforce to carry out forensic audits on the pending bills and the county government’s workforce.

“A declaration hereby issues that the establishment of the Taskforce on Pending Bills and Human Resource Audit by the Governor of the Trans Nzoia County… usurping the powers of the Auditor General and those of the Internal Audit Office and the Audit Committee of the County Government of Trans Nzoia County. The Taskforce and its resultant report are, therefore, unconstitutional, null and void,” Justice Mrima ruled.

Contravention of Finance Act

According to Justice Mirima, Trans Nzoia County Governor was in contravention of the Public Finance Management Act and Public Finance Management (County Governments) Regulations 2015 by auditing pending bills without the input of the Office of the Auditor General.

While ruling in favour of the petitioner Kevine Otieno Ondago who had challenged the decision to audit pending bills, Mrima held that the role of auditing past debts squarely rests with the Office of the Auditor General.

The judge made it very clear that a governor must always abide with the law and the constitution in all his work.

“…indeed constitutionally expected of any Governor holding office. However, whereas the Governor is the Chief Executive Officer of a County, he is like a caged animal, only able to move, but within the cage. In this case, the cage is the Constitution and the law. The Governor remains at liberty to dispense with all the wide powers accorded to the office, but only in accordance with the Constitution and the law. That is the hallmark of Article 10 of the Constitution,” Justice Mrima stated.

Constitution and law

He added; “The first port of call of a Governor who wishes to carry out an audit of the County must be the Constitution and the law. If for any reason, the Governor finds the audit reports by the Auditor-General prepared under Article 229 of the Constitution to be inadequate, this Court finds that the appropriate procedure to be undertaken is for the Governor to request the Auditor-General for a periodic audit.

Further, the Governor may request the County Assembly to sanction the Auditor-General to undertake a forensic audit.”

The judge however declared the taskforce that was formed by Natembeya unconstitutional on the basis that the Auditor-General did not participate in this matter.

Various county governors have in the past year appointed teams to verify pending bills, a tedious exercise that has taken months.

In Nairobi, Governor Johnson Sakaja appointed a team to verify pending legal bills. The team led by Kamotho Waiganjo had its mandate extended for a further four months after the initial period expired in May.