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The status of publishing County Governments' legislation in the Kenya Gazette

The status of publishing County Governments' legislation in the Kenya Gazette upon assent by the Governors has not been effected thus not following the provisions as stipulated in Article 199(1) of the Constitution. This has in tandem led to some County Government legislation being declared unconstitutional by Courts due to failing to adhere to the correct procedures when legislating especially.Protocol county

Case in point is:-

The Nairobi High Court decision in James Gacheru Kariuki & 3 Others vs Attorney General & 11 Others [2017] eKLR. The Petition in summary challenged the constitutionality of several Kiambu County legislations, which the Petitioners maintained that they hadn’t been published in the Kenya Gazette as is mandated by the Constitution. Judge Isaac Lenaola pronounced himself on the status of county legislation that has not been published in the Kenya Gazette. He stated that the Constitution specifically provides for publication of legislation in the Kenya Gazette for that legislation to take effect in line with Article 199(1) of the Constitution and thereafter in the County Gazette if necessary. He further noted that the concept of a ‘County Gazette’ was introduced by the County Governments Act, 2012 the Constitution explicitly requires County legislation to be published in the Kenya Gazette for them to take effect.

He also averred that Section 25(2) of the County Government Act is unconstitutional to the extent that it states that county legislation can come into force without necessarily being published in the Kenya Gazette yet the only Gazette contemplated by the Constitution is the Kenya Gazette. This led to invalidation of legislation. Further in Republic vs Kiambu County executive Committee & 3 others exparte James Gacheru Kariuki & 9 others [2017] eKLR, Judge Joel Ngugi echoed the sentiments of his brother by asserting that any notices published in the County Gazette without first having been published in the Kenya Gazette are null..

It is against this background that KLRC convened a task force comprising relevant National Government agencies and the Council of Governors to review the protocol order to determine with finality the best approach on Publication of County Legislation. The review is important so as to analyse and carry out an impact assessement of the previous Protocol that was contained in a letter dated 16th February, 2015 from the Office of the Attorney General and copied to the Council of Governors following a series of consultative meetings held in the 2015-2016 which essentially outlined the procedure for publication of county bills in the Kenya Gazette.

The relevant terms were -

  • That the Commission would carry out technical evaluation of Bills upon their passage by County Assemblies and prior to assent by the Governor;
  • That the Commission would thereafter forward the bill to the Speaker of the County Assembly within seven days of its receipt with a certificate of clearance that the legislation meets the procedural and substantive requirements accompanied by a memorandum and other considerations where applicable; and
  • After deliberations on the Commission’s memoranda and after alignment of the bills to the Commission's recommendations, the Government printer would publish the County legislation in accordance with Section 25 of the County Governments Act within 14 days of receipt thereof.

This is in line with the Commission’s mandate under section 6(1) (h) of the KLRC Act, which provides that one of KLRC’s functions is the provision of advice, technical assistance and information to the National and County Governments with regard to the reform or amendment of a branch of the law.  KLRC may also upon request or on its own motion, advice the National or County Governments on the review and reform of their legislation.