The High Court has declared that governors hold the ultimate responsibility for procurement in their counties and must ensure full adherence to the law when acquiring goods and services.
In a ruling delivered by justices Jacqueline Kamau, William Musyoka, and Alice Bett, the court said governors cannot escape accountability since they oversee County Executive Committee members in charge of finance.
The bench held that under the Public Procurement and Asset Disposal (PPAD) Act, governors are directly responsible for ensuring county purchases are lawful.
The judges also affirmed that senators are entitled to information on county activities and transactions, stressing that counties have a legal duty to provide such details promptly and without charge, as outlined in the Access to Information Act.
“The answer to the question as to whether the first respondent (Mr Otuoma) was primarily responsible for ensuring that the county executive complied with the PPAD Act was in the affirmative,” the bench said. “In his capacity as the county governor of Busia, the first respondent was responsible for ensuring that county financial resources were managed effectively and efficiently.”
The judgment arose from a petition filed in April 2024 by Busia Senator Okiya Omtatah against Governor Paul Otuoma over the management of the Busia Trailer Park at Mundika and allocation of new market stalls.
The senator sought records on tendering, procurement, demolition of old stalls, and designs for new ones, saying the information was vital for accountability.
The court dismissed arguments by Otuoma that some documents could only be accessed through the Senate Public Accounts Committee or were exempt under procurement and information laws.
The judges ruled that all Kenyans are entitled to access information from public offices, except in specific cases such as national security, judicial independence, individual safety, or sensitive commercial concerns.
“The information, as sought by the petitioner, was for the benefit and protection of the public,” the bench stated.
The judges further underscored that the reasons for requesting information should not limit access. “The information sought ought to have been made available to him. The issue of the purpose for which he was seeking the information would be neither here nor there,” they said.
The ruling closes the door for governors to distance themselves from questionable procurement deals and strengthens oversight by affirming senators’ right to scrutinize county operations.
The court also held that governors are by law the official “access to information officers” in their counties. “By virtue of being chief executive officers under Article 179(4) of the Constitution, governors have additional functions under the Access to Information Act, which they may delegate to another officer in the county,” the bench said.
