CASE STUDY –MAKUENI COUNTY

Step 1: The petition

The people of Makueni County petitioned the president to dissolve Makueni county government
in November 2014. They cited exceptional circumstances which is one of the grounds for
suspension of a county government by the president.1

Background to the petition

The petition cited conflicts between the county executive and the county assembly of Makueni
leading to inability to discharge the mandate of the county government. The two bodies were
reported to have been unable to work together in service of the people of Makueni. The county
assembly leader was the speaker Stephen Ngelu and was carrying out the activities of the county
separate from the county executive led by Governor Hon.Kivutha Kibwana.

The stalemate prevented the county government from effectively performing its functions as
mandated by the Constitution. The county executive was said to be unable to implement
legislations as required in article 183 (1) (a) of the Constitution because the county assembly
came up with legislations that were unconstitutional and touching on matters beyond its
legislative powers. For instance, the county assembly was accused of having passed a law
allocating itself a bigger chunk of the Makueni budget monies, contrary to the allocation
provided for by national legislation.2 The county executive also allegedly failed to manage the
various departments according to article 183(1) (c) under it hence projects in the county were not
implemented on time.

The county assembly came up with an illegal Makueni County Wards Development Fund that
was contrary to the provisions of Public Finance Management Act. According to the Act the
development fund was to be determined by the leader of majority. However, determining
allotment was the role of the executive and not the national assembly.

1
Article 192 (1) (b), 2 Constitution of Kenya 2010; Sec 122, 123 County Government Act.
2
'Petition for Suspension of the Government of Makueni County | Kenya Law' (Kenyalaw.org, 2018)
http://kenyalaw.org/kenyalawblog/suspension-of-the-government-of-makueni/ accessed 16th April 2018
The objects of devolution as provided in article 174 of the constitution could not be met in such a
situation where two entities meant to work together work separately and declare each other
enemies instead of serving the people. As a result of this conflict, there was an alleged attempt to
assassinate the county governor.

The difference between the two entities further contributed to stalling of developments because
much time was taken in negotiating 2013/2014 and 2015/2016 budgets. The Makueni county
assembly had delayed passing of bills and left some important and urgently needed bills pending.
For example, the Sand Conservation and Utilization Bill which touches on a vital economic
resource of the people of Makueni had been left pending for months.

Motions suspected not to be in good faith were instituted in the Makueni county assembly to
dismiss some executive members. The process of dismissal violated the provisions of the County
Government Act by not granting the member of the executive their right to be heard during the
process.

There was also delay in service delivery to the people of Makueni because County assembly took
long to approve names of members to boards and committees e.g. county public service board.3

Legal foundation of the petition

Constitution of Kenya- The preamble, articles: 1(1), 2(1), 2(4), 3, 10, 19(2), 20(1), 37, 29, 43(1)
d, 73(1), 73(2), 174(g), 192(1) b.

County Government Act4-Sections: 123(1) (2).

Leadership and Integrity Act 5- Sections: 8, 52(1).

The Public Finance Management Act-Sections: 104, 105.

Signing of petition
3
Supra, n 2.
4
No.17 of 2012, laws of Kenya.
5
Chapter 182, laws of Kenya.
The petition was signed by 50,826 people of Makueni County.6

Commission of Inquiry

A commission of inquiry chaired by Mohammed Nyaoga7 was set up on 6th March 2015 to look
into the petition presented by the people of Makueni County.8 A case was presented in court by
the member of parliament for Mbooni in a bid to stop the commission from proceeding with the
investigation.9 The applicant based his case on the allegation that the residents of Makueni,
especially the representatives of the people like himself had not been given ample opportunity to
air their views before the petition was signed. He further argued that the petition was not
publicized enough to allow residents to understand its contents. The court however dismissed the
application noting that it was time-barred and against public interest. The court considered that
the state had already utilized numerous resources to set up the commission. Fault was noted on
the side of the applicant for failing to file the case before the commission was set up. The
commission was therefore let to proceed with the investigation.

Submission of Report to the President

After conducting hearings, the commission presented a report to the president recommending
suspension of Makueni County government. Though the president noted the 14 trips made by the
county assembly, fight in the county assembly and delay in the negotiation of 2013/2014 budget
the president declined to suspend the county government because the circumstances did not meet
the constitutional threshold of being exceptional and extra-ordinary.10He pointed out that the
power to suspend a county government should be used sparingly because dissolution of a county
is bound to attract dire consequences to the county and the state at large. The president suggested

6
(n)2.
7
'Uhuru Receives Report Recommending Makueni County Suspension' (The Star, Kenya, 2018) <https://www.the-
star.co.ke/news/2015/09/03/uhuru-receives-report-recommending-makueni-county-suspension_c1198661> accessed
16 April 2018.
8
Ibid.
9
Michael Manthi Kisoi v Commission of Inquiry into the Petition to Suspend Makueni County Government & 8
others [2015] eKLR.
10
Mary Lole, 'President Uhuru Declines To Suspend Makueni County - Kenya Monitor' (Kenya Monitor, 2018)
<http://www.monitor.co.ke/2015/09/07/president-uhuru-declines-suspend-makueni-county/> accessed 16 April
2018.
that alternatives to dissolution should be considered in dealing with the administrative issues that
were ailing Makueni county.11

The process of suspension could not proceed and the county government of Makueni had to go
on serving the people of the county.

11
Ibid.