Court petitioned to give Nyoro executive powers

A Kiambu resident has gone to court seeking to have Deputy Governor James Nyoro given executive powers to run the county in the absence of his boss Ferdinand Waititu.

James Gacheru has filed a petition at the Constitutional and Human Rights Division of the High Court, in which he argues that Dr Nyoro needs authority to fully execute his mandate as acting governor.

Mr Gacheru argues that a powerless deputy governor who is acting for the governor cannot be expected to be accountable for the management of county resources, or enforce decisions touching on human resource management.

The petition names Attorney General Kihara Kariuki as the respondent, while Waititu is listed as an interested party.

Nyoro, who has been the acting governor for the last two months since his boss was barred from office due to an ongoing corruption case, has been facing legal hurdles in his bid to discharge his mandate.

Gacheru is seeking to have Section 32(4) of the County Government Act No 17 of 2012 declared inconsistent with the provisos of Article 179(5) of the Constitution of Kenya 2010. Section 32(4) states: “When acting as contemplated in Article 179(5) of the Constitution, the deputy governor shall not exercise any powers of the governor, to nominate, appoint or dismiss, that are assigned to the governor under the Constitution.”

Gacheru wants the court to issue a mandatory injunction compelling the Attorney General to advise relevant Government agencies to repeal Section 32(4).

He argues that the County Government Act is inconsistent with the Constitution, which is superior.

In his supporting affidavit, Gacheru says the Constitution provides that any law, including customary law, that is inconsistent with the supreme law, is void.

Power hungry

He is seeking to have the court consider the bail conditions imposed by a trial court in criminal proceedings forbidding the governor from performing his official duties.

There will be a hearing between all parties on October 4. The petition comes after another Kiambu voter moved to court recently to stop Nyoro from assuming executive powers in the absence of the suspended Waititu.

Bernard Mburu, in his application filed at the High Court, accused Nyoro of being “power-hungry and capitalising on Waititu’s misfortune to exercise executive powers he does not have.”

Mr Mburu argued that Nyoro’s actions could plunge the county into chaos and paralyse operations in several institutions.

The voter said there would be trouble if Nyoro appointed members to the cabinet, who would be sacked by Waititu when he resumed office.

“There is no law that allows him to be the acting governor and start issuing directives through executive powers he does not have. His decisions are a recipe for chaos since they do not have the blessings of the elected governor.”

Last month, Nyoro’s attempt to transfer Finance executive Kigo Njenga to the Trade docket flopped after the latter refused to move.

In a letter dated August 19, Njenga said the deputy governor did not have powers to transfer him, hence his decision to snub the move.

The CEC told Nyoro that as a member of the Institute of Certified Public Accountants of Kenya, he needed to seek clarification on the matter to avoid disciplinary action that could jeopardise his career.

“Further, the directive interferes with urgent county business... in that several commitments have been done, especially the statutory audit, pending bills, staff remuneration due in the next 12 days, audit queries before the assembly and Senate, the Finance Bill and presentation of budget policy statement,” said Njenga.

On August 20, County Attorney Waithaka Wanjohi waded into the matter and agreed with Njenga’s stand.

Mr Wanjohi said although Waititu had been barred from office, the court had not removed him as governor.

“It is instructive to note that you were appointed by the governor and he alone is mandated by Sections 31 and 40 of the County Governments Act to dismiss a CEC. That power has not been delegated to the deputy governor,” read Wanjohi’s opinion.