County AG's tenure tied to the Governor's term, judge

Security of tenure for County Attorneys is tied to the governor’s term in office, the court has ruled.

They are required to leave office the same way with advisors and County Executive Committee (CECs) members when the governor dies or his term ends, to pave way for the new county boss to bring into office his team.

Terming sections of the County Attorney Act 2020, Justice Byram Ongaya said there is a need for the law to be rectified, adding that the County Attorney Generals (AGs) can only serve for a period of six years or until the lapse of the governors’ tenure in office. The judge said that all the County AGs appointed by governors under section 31 of the County Attorney Act 2020 are expected to vacate office at the end of a six-year period or after the end of the governors’ tenure.

The judge directed that the judgment be served to all the 47 counties through the Chief Executive Officer (CEO) of the Council of Governors within seven days with an aim of bringing them to the attention of the matter. “The matter in dispute relates to and affects all the 47 counties one way or the other towards the sound implementation of the Office of the County AG act 2020. Accordingly, the court directs that the petitioner will serve the judgment upon the CEO of (CoG) with a view of bringing the judgment to the attention of all the 47 county governments,” said Justice Ongaya.

In his judgment, all the 47 County AGs appointed under section 31 of the County Attorney Act 2020 should vacate office after the end of the current governors’ term or after six years. The judge made the decision in a case filed by the Commission for Human Rights and Justice (CHRJ), challenging the appointment of Kilifi County AG Ms. Bibi Fondo.

Kilifi Governor Amason Kingi had on October 14, last year appointed Ms. Fondo to serve as the county’s AG for a period of six years with effects from July 27, 2020.

The petitioner Julius Ogogoh had sued Fondo, Kilifi Governor Amason Kingi, and the Public Service Board Kilifi County Government. In his petition, Ogogoh said that the appointment, swearing-in, and assumption of office by Fondo was unprocedural, illegal, and null and void. He said that the Public Service Board Kilifi County violated the Constitution, adding that there was no declaration of vacancy of the office of AG and no advertisement calling for applications as envisaged by section 66 of the County Government Act.

In his judgment, Justice Ongaya said the county’s chief legal advisors should serve terms commensurate to those of the current governor, or, until lapsing six years or whichever comes first. “A declaration is hereby issued that letter be amended to declare; you will continue in service as County Attorney, County of Kilifi. For a term commensurate to the term of the current governor, or, until lapsing of six years from July 27, 2020, whichever comes first,” stated the judge. However, she will be considered for appointment and approval if such a situation arises as provided in section 5(1) of the Act.

The petitioner (Ogogoh) said the provisions of section 68 of the County Government Act were not adhered to and that Fondo was never vetted. He said the only known step in the appointment was an internal memo sent by the County Secretary and Head of Public Service of Kilifi County informing them of the swearing ceremony.

However, in their response, the Governor and Fondo said the petition was brought in bad faith and ulterior motive and that the AG assumed office as per Office of the County Attorney Act No. 14 of 2020 and the constitution of Kenya 2010. Kingi said Fondo was an advocate of the High Court with an experience of 11 years of post-admission to the bar and an active member of the Law Society of Kenya and duly qualified to hold the office. The governor said the vacancy was also advertised in the print media.

Fondo said that AG of National Government Kihara Kariuki in his advisory opinion to (CoG) in a letter dated November 10, 2020, said the incumbent holder of the office discharging duties of the County AG “at the date of commencement of the office of County Attorney Act 2020 qualifies to continue holding the position for an unexpected portion of his or her current contract subject to the statutory terms without the need of the position being declared vacant and advertised.” The position stated by Kariuki only applies to persons who had been employed in their current position by the County Public Service Board.