No quick walkout from Nairobi takeover deal for Sonko: lawyers

The nascent marriage between Nairobi Governor Mike Sonko and the national government is now hanging in the balance as legal experts warn it will not be easy for the county boss to walk out of the deal.

Sonko, however, maintains that he is determined to exit the agreement he signed on February 25, which was to last two years.

The governor has told off the national government, asking officials to do whatever they want as the deal is as good as dead.

STALEMATE

His stand comes after the national government on Tuesday raised alarm that he was frustrating the completion of the takeover by holding onto crucial documents.

National Treasury internal auditor Joseph Welimo said the delay in the submission of the documents was stalling the progress of transferring functions, with finance and public service and administration officers fingered for failing to present sector reports.

“Please note that it [has been a month yet] we are not making any meaningful progress," reads an April 28 letter addressed to acting County secretary Justus Kathenge.

"It is our request once again that the information requested be made available soonest so that we can make progress in the right direction for decision-making."

But in a terse letter to Mr Welimo, Mr Sonko made it clear his administration will not be providing any more documents pertaining to the Deed of Transfer of Functions due to persistent breach of the terms.

POSSIBILITIES

Constitutional lawyer Bobby Mkangi said it is possible to pull out of the deal, since it is a contract with exit clauses and dispute resolution mechanisms, but that this might not be easy.

“It is hard to say how long the process can take. If taken to court it will be at the pleasure of the court. The case might drag on even through the expiry of the 24 months in the deal,” said Mr Mkangi.

The deed provides that the deal can only be terminated by the mutual written consent of both parties expressed in a common document.

And in the event of a dispute between the parties, the deed requires the parties to first seek an amicable solution.

Should the two fail to reach an agreement in 30 days, the parties shall escalate the matter to the National and County Governments Coordinating Summit.

Interestingly, the summit is chaired by President Uhuru Kenyatta and deputised by the Chair of the Council of Governors, who is Kakamega's Wycliffe Oparanya.

THE LAW

Dr Mutakha Kangu, a devolution expert, criticised the deed, saying the State should have invoked Article 190 of the Constitution, not the Article 187 they used to reach the deal.

Section 3 of the Article provides that if a county government is unable to perform its functions, the national government should take appropriate steps to ensure the functions are performed.

If necessary, the law says, the national government should assume responsibility of relevant functions.

“My argument is that using that provision, the national government could have been able to deal with Nairobi's problems without worrying about a by-election."