No Scapegoats: Blow To Governors As Court Rules They’re Personally Liable For County Procurement

Kenyan governors will no longer be able to distance themselves from questionable procurement deals in their counties after a landmark High Court ruling declared them personally liable for compliance with procurement laws.

A three-judge bench comprising Justices Jacqueline Kamau, William Musyoka, and Alice Bett held that governors, as the chief executives of their counties, bear ultimate responsibility for ensuring adherence to the Public Procurement and Asset Disposal (PPAD) Act.

The ruling arose from a petition filed in April 2024 by Busia Senator Okiya Omtatah against Governor Paul Otuoma. Omtatah had accused the Busia County Government of failing to provide procurement documents relating to the construction of the Busia Trailer Park at Mundika and the distribution of new trading kiosks.

In their decision, the judges were emphatic that governors cannot evade accountability by blaming county executive members in charge of finance or procurement.

“The answer to the question as to whether the first respondent (Governor Otuoma) was primarily responsible for ensuring that the County Executive complied with the PPAD Act was in the affirmative,” the court ruled.

The judges added that governors, by virtue of their constitutional role, are also deemed the “Access to Information Officers” of their county governments, legally obligated to provide information requested by the public, legislators, or oversight bodies.

Senators’ oversight powers upheld

The court also reinforced the right of Senators to demand and receive information from county governments, ruling that such information must be provided promptly and at no cost under the Access to Information Act.

“Whether as a Senator or as a private citizen, the petitioner had a right to inquire into the dealings of the county government, and the respondents had a legal obligation to supply the information requested,” the bench stated.

Governor Otuoma had argued that the documents sought by Omtatah could be obtained through the Senate Public Accounts Committee and that some fell under exemptions provided by law. But the court dismissed his defense, holding that the information requested did not fall under any of the limited exemptions such as national security or sensitive commercial interests.

A precedent in devolution oversight

Observers say the ruling could fundamentally reshape Kenya’s devolution framework by closing a loophole governors have often used to shield themselves from procurement scandals. It strengthens the hand of both the Senate and the public in demanding transparency on county spending.

“The information, as sought by the petitioner, was for the benefit and protection of the public,” the judges ruled, making it clear that oversight and accountability cannot be subjected to bureaucratic hurdles.

The judgment is expected to set a new precedent in the long-running tug-of-war between governors and senators over county oversight, tightening the leash on county executives and reinforcing the constitutional principle of open governance.