High Court Halts Nairobi County Assembly’s Discussion of Biased Liquor Board Audit Report
Nairobi; June 29, 2023: The High Court in Nairobi has issued an injunction preventing the Nairobi City County Assembly from deliberating on a report concerning the delayed audit of funds and accounts of the Nairobi City County Alcoholic Drinks Control and Licensing Board for the fiscal year ending June 30, 2020. The court order comes after the report, submitted by the chairman of the County Assembly select committee on public accounts, Chege Mwaura, was deemed highly biased, disregarding the findings of the auditor general’s report on the board’s accounts.
The injunction was granted following an urgent application filed on June 26, 2023, by five individuals: Dr. Jairus Musumba, who served as Chief Officer for Trade, Tourism, and Cooperatives between May 2019 and April 2020; Allan Igambi, the former County Executive Committee Member for Trade, Tourism, and Cooperatives from 2018 to 2022; Mohamed Sahal, Chief Officer for Trade, Tourism, and Cooperatives; Hesbon Ogwena, the former director of the Nairobi City County Alcoholic Drinks Control and Licensing Board; and Julius Matekwa, an accountant for the board.
The applicants argue that the Auditor General and Select Committee report failed to comply with constitutional timelines, violating the demand for expeditious and efficient action as stated in Article 47. They also contend that the select committee’s decision lacks fairness, violating the principles of natural justice. Furthermore, the applicants criticize the decision as irrational since it holds them accountable for omissions that occurred several financial years before any of them assumed office. The committee recommends prosecuting the applicants for their alleged failure to submit financial statements between 2014 and 2019, despite their tenure spanning from 2019 to 2022.
The County Assembly had scheduled the report for debate on the order paper today but was served with the court injunction, suspending any discussion until the full hearing of the matter on July 17, 2023.
Justice Jairus Ngaah, presiding in the Milimani High Court, ruled that the application was indeed urgent and granted leave to the applicants in line with their request. A substantive motion will be filed and served within seven days of the ruling, with the respondents required to submit their response within seven days of receiving the motion.
The applicants, represented by McDonald & Company Advocates, sought a prohibition restraining the Assembly from discussing the report of the select committee regarding the auditor general’s findings on the Alcoholic Drinks Control and Licensing Board for the fiscal year ending June 30, 2020. The court order also prohibits any public entity from taking action against the applicants based on the report and calls for the report of the select committee, which the applicants consider biased and manipulated, to be nullified.
Article 47 and Section 4 of the Fair Administrative Action Act, 2015 stipulate that administrative action should be prompt, efficient, lawful, and procedurally fair. Additionally, Article 229(4) mandates the Auditor General to audit and report on all accounts, funds, and authorities of the national and county governments within six months after the end of each financial year. Subsequently, under Article 229(8), the County Assembly must deliberate and consider the audit report within three months of its receipt. However, in this case, the Auditor General delayed the audit for the Nairobi City County Alcoholic Drinks Control and Licensing Board for the 2019/20 fiscal year for over nine months, submitting the report on September 28, 2022. Furthermore, the Assembly failed to debate the report within three months, violating Article 229(8) of the Constitution. The Select Committee made adverse findings and allegations against the applicants, recommending their prosecution.
