CHAPTER FOUR

THE SYSTEM OF DEVOLVED GOVERNMENT UNDER THE

CONSTITUTION OF KENYA 2010

4.1 Introduction
The Constitution of Kenya 2010 establishes the devolved governance system. Chapter 11,
titled ‘Devolved Government’, remains insightful on Constitutional objectives, principles,
and purposes upon which the devolved governance system is anchored, operationalised,
and sustained; however, as the concept of political leadership and democracy, devolved
governance is a constant core theme that runs in the entire Constitution’s architecture.
The Preamble and Article 1 have direct and indirect references to the devolved system of
government. In essence, the detailed structures and institutions of devolved governance
at the county and national level hold, present, and represent a higher Constitutional
significance in the system of Constitutional governance and its purpose. Nonetheless,
Chapter 11 details the various institutions of devolved governments, their relationships
with county and national-based institutions, and their functions and powers, including
operations and working. Importantly, it demonstrates clear and binding guidance on
how devolution should be implemented to fulfill the aspirations of Kenyans, who sought
inclusion, equitable access to service and development, and political accountability.

4.2 The constitutional significance of devolution in Kenya

Article 1 of the Constitution, which recognizes that all sovereign power belongs to the
people, provides that the power is vested in, among other state organs and institutions,
legislative assemblies in the county governments134# and the executive structures in the
county governments.135# The Constitution further recognizes under the first article that
sovereign power of the people is exercised at the national level and the county level.136#

Article 6 of the Constitution, which is titled “Devolution and access to services,” also
provides fundamental guidance on the place of devolution in the Constitution of Kenya
2010; it recognizes boundaries of the 47 county governments as the internal state unit
boundaries of the Kenyan territory.137#Article 6(2) of the Constitution lays down a critical
operational principle for the devolved system of government at both national and county
levels. It states that “the governments at national and county level are distinct and inter-
dependent and shall conduct their mutual relations based on consultation and cooperation.”
This provision elevates the constitutional status and place of the county governments and

134
Article 1(3)(a) Constitution of Kenya, 2010.#
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135
Article 1 (3) (b) Constitution of Kenya, 2010.#
136
Article 1 (4) Constitution of Kenya, 2010.#
137
Article 6(1) of the Constitution of Kenya, 2010.#

25
 their structures, and the national government is required to negotiate and consult with
county government structures instead of controlling and directing county governments.#

The Constitution further states that a national state organ shall ensure reasonable access to
its service in all parts of the Republic, so far as it is appropriate to do so having regard to
the nature of the service.138#Access to services is, thus, not limited to county government
institutions and services offered by county governments; there is a constitutional
requirement that all institutions, national or county, ensure access to services is extended to
all parts of the country. This point is reinforced under the devolution objectives in Article
174 of the Constitution of Kenya 2010.139

Article 10 of the Constitution, titled “National Values and Principles of Governance,”

lists binding values and principles to all state organs, state o%cers, public o%cers, and all
persons who apply or interpret the Constitution, who enact or interpret or apply any law,
or who makes/ implements public policy decisions.140#Among the principles and values
under Article 10 is “sharing and devolution of power.”141#

A review of the other national values and principles of governance under Article 10 of
the Constitution reveals a close relationship between the values and the objectives of
the devolved government under Article 174. Indeed, values such as national unity,
democracy and participation of the people,142# equity, inclusiveness, equality, non-
discrimination and protection of the marginalized,143#good governance, and transparency
and accountability,144#are values that easily relate to what devolution aims to achieve under
Article 174(1) of the Constitution of Kenya 2010. The structures of devolved government
are especially entrenched and protected in the Constitution; the Constitution provides
that any amendment that relates to “the objects, principles, and structure of devolved
government” shall have to be approved by a national referendum.145

The Supreme Court of Kenya in# In the Matter of the Speaker of the Senate &
another146#succinctly captures the overall constitutional significance of devolution under
Kenya’s post-2010 constitutional dispensation. The Senate had approached the Supreme
Court for an advisory opinion on whether it should (as the representative of county
governments) play a role in enacting the Division of Revenue Bill, which divides resources
between the national and county governments. The Court stated that:#

#
138
Article 6 (3) Constitution of Kenya, 2010
139
Article 174 (h) Constitution of Kenya, 2010.
140
Article 10 (1) Constitution of Kenya, 2010.#
141
Article 10 (2) (a) Constitution of Kenya, 2010.
142
Article 10 (2) (a) Constitution of Kenya, 2010.
143
Article 10 (2) (b) Constitution of Kenya, 2010.
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144
Article 10 (2) (c) Constitution of Kenya, 2010.
145
Article 255 (1) (i) Constitution of Kenya, 2010.
146
[2013] eKLR.#

26
 … vast segments of the Kenyan population felt that they were victims
of the state, either in terms of political repression, or in terms of
developmental exclusion. Thus, the Constitution of Kenya, 2010 was
attractive to a large number of Kenyans for many reasons. In particular,
devolution was instrumental in mobilizing support for the Constitution in
the referendum, because many people perceived its dispersal of economic
and political power as an act of liberation. There is a large section of our
society for whom the new Constitution is coterminous with devolution. It
denotes self-empowerment, freedom, opportunity, self-respect, dignity and
recognition. This perception is captured succinctly in the principles and
objects of devolution …147
The structures, functions, and processes of devolution established under the Constitution
serve a fundamental purpose, and the implementation process is required to take cognizance
of this constitutional purpose and give effect to it in concrete implementation processes.

4.3 County structures and institutions

The Constitution has vested the mandate to legislate and carry out executive functions
into the County Assemblies and County Executive, respectively. The powers given through
these two institutions are constitutional and are accompanied by structures that facilitate
the execution of county affairs.148

The County Assembly

The County Assembly consists of four-member categories. First are those directly elected
from the wards.149# Secondly, those who occupy nominated slots that curtail against
either gender to exceed two-thirds as required by the Constitution. Third, the group
that represents special interests and marginalised, including people with disabilities and
youth:150, and fourth, the o%ce of the county speaker and their deputy. The former is ex-
o%cio151#elected from outside the assembly,152#while the deputy is elected from among the
assembly members. However, the County Assembly standing rules and procedures153#for
removing the county speaker apply to both.##
In the 2013 general election, female candidates won 83 of the 1450 wards.154#This necessitated
the nomination of an additional 708 women Members of County Assemblies (MCAs) to
ensure compliance with gender composition requirements in the Constitution.155#In 2017,

147
The concurring judgment of Chief Justice Willy Mutunga, at para. 123 of the judgment.
148
Article 1 (3) (a) and (b), Constitution of Kenya, 2010.
149
Article 177 (1) (a) Constitution of Kenya, 2010.
150
Article 177 (1) (b) and (c) Constitution of Kenya 2010.
151
Article 177 (1) (a) Constitution of Kenya, 2010.
152
Article 178 (1) Constitution of Kenya, 2010.
153
Neither the Constitution nor legislation explicitly provides for the position of deputy speaker.
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154
Baringo, Embu, Garissa, Kajiado, Kwale, Lamu, Mandera, Marsabit, Nandi, Narok, Nyandarua, Nyeri, Samburu, Siaya,
Taita Taveta, Tana River, Tharaka Nithi, and Turkana.##
155
https://educationnewshub.co.ke/iebc-final-list-of-all-nominees-for-all-parties-2022-2027/#

27
 there was a slight improvement to 96 ward seats for women. In the 2022 election, a total
of 115 women were elected by voters as ward representatives.156
Two laws, (the Elections Act157#and the Independent Electoral and Boundaries Commission
(IEBC Act), provide for the nomination of 6 and 4 special representatives, respectively.
There is an apparent contradiction in the two laws regarding the number of nominated
representatives from special categories (marginalized, youth, persons with disability, etc.),
and the IEBC has implemented the IEBC Act that provides for four. In the 2013 general
election, a total of 97 males and 98 females were nominated from the party lists to represent
various categories of “marginalized groups” and “marginalized communities.”158 Courts
have held that the election of a speaker of the county assembly should not be held until all
members of the county assembly (elected and nominated) are gazetted.159 Courts have also
held that all members of the county assembly (nominated and directly elected) hold the
same rights and specifically held that nominated members can be appointed as chairpersons
and vice-chairpersons of county assembly committees.160
The nomination of candidates to the county assembly is done by the various political
parties contesting ward elections, having shared their nomination lists with IEBC before
the general elections.161#The number of nominations allocated is pegged on the seats won
by each party.162 In allocating such nominations, IEBC is guided by the preferences of
the nominating party. Thus, a party with majority seats will have the highest number
of nominated county assembly members across the various categories. This method of
choosing nominated representatives has been criticized for perpetuating the dominance of
the majority parties, especially in counties where minorities and marginalized communities
are in smaller or non-dominant parties that may not win any seat and will therefore miss a
nominated or special seat in the county assembly.163
The County Government Act provides for the O%ce of the Clerk to the county assembly,
appointed by the county assembly service board with the approval of the county
assembly.164#The clerk is the accounting o%cer of the county legislature and is in charge
of the administration of the county assembly and county assembly staff. The legislation
also provides for the County Assembly Service Board (CASB), established as a corporate
body. The board consists of the speaker as the chairperson, the leaders of the minority
and majority parties, and a county resident.165#The CASB is charged with establishing and
abolishing o%ces and administrative structures in the assembly.#

156
https://educationnewshub.co.ke/iebc-final-list-of-all-nominees-for-all-parties-2022-2027/
157
Section 36 (8) Elections Act (2011).
158
https://www.iebc.or.ke/docs/4TH%20MARCH%202013%20GENERAL%20ELECTION%20DATA.pdf#
159
Republic v Transition Authority and Another; ex parte Crispus Fwamba and 4 others#[2013] eKLR.
160
National Gender and Equality Commission v Majority Leader, County Assembly of Nakuru and 4 others; Jubilee Party and
another (Interested Parties)#[2019] eKLR.#
161
Article 177(2) Constitution of Kenya, 2010.
162
Article 177(3) Constitution of Kenya, 2010.
163
Oloo A’ Elections, representations and the new Constitution’ Society for International Development (SID) Constitution
DEVOLUTION JOURNEY

Working Paper No. 7 (2011) 2.

164
Section 13, County Governments Act.
165
Section 12 County Governments Act.

28
The County Governments Act provides that English and Kiswahili are the only languages
used to transact o%cial business of the county assembly, thus excluding local languages from
county assembly proceedings.166#While the two o%cial languages (English and Swahili) are
widely spoken in the country, the express barring of the use of local languages may, in some
cases, limit members of the county assembly who may not be &uent in the two languages,
or members of the public who may wish to follow proceedings in the county assembly but
are not conversant with English or Swahili.167 Where the two languages are a challenge for
a member of the assembly or the public, they may be limited in expression or following
debates in the assembly unless different arrangements (such as translation services) are
employed. However, this is rare in the county assemblies.

The County Executive

The county executive is headed by the county governor, who (alongside the deputy governor
as running mate) is elected directly by voters (no vote margin is required)168#and can only
be re-elected (as governor or as deputy governor) once only.169#The Constitution lays down
the grounds for removal of a county governor from o%ce170#but leaves the procedure to be
determined by national legislation.171#The grounds provided in the Constitution are:#gross
violation of the Constitution or any other law, where there are serious reasons for believing
that the county governor has committed a crime under national or international law, abuse
of o%ce or gross misconduct, or physical or mental incapacity to perform the functions of
the o%ce of county governor.172#
The County Governments Act provides that County assemblies can institute173#proceedings
for the removal of the governor,174 but the actual impeachment happens in the Senate,
where the final decision is made on the &oor by a vote of a simple majority.175#
Since 2013, several impeachment proceedings have been brought against governors and
their deputies, most of which failed while some were successful. Some of those successfully
impeached were reinstated into o%ce through court orders after the governors challenged
the decisions of the Senate and the county assemblies. Between 2013 and 2022 (the first
two terms of the county government), there were a total of 11 impeachment proceedings
that were commenced against 9 governors (and two deputy governors).176#Of these, only
three Senate impeachment proceedings resulted in the removal of governors from o%ce

166
Section 18 (1) and (2) County Governments Act.
167
https://businesstoday.co.ke/illiteracy-crisis-hits-kisumu-county-assembly/#
168
Ghai YP & Cottrell JG#Kenya’s Constitution: An Instrument for Change#(2011) 127.#
169
Article 180 (7) (a) Constitution of Kenya 2010.##
170
Article 180 (1) (b), (c), and (d) Constitution of Kenya 2010.
171
Article 181 (2) Constitution of Kenya 2010.##
172
Article 182 Constitution of Kenya 2010.
173
Section 33 CGA Constitution of Kenya 2010
DEVOLUTION JOURNEY

174
Article 181 (1) Constitution of Kenya 2010.#
175
Section 33 (2) to (10) County Governments Act.
176
The governor of Embu County (twice), Kericho County, and the deputy governor of Machakos County.#

29
 (Embu,177#Kiambu,178#and Nairobi179#governors). However, in the case of Embu, the county
governor stayed in o%ce after the courts set aside the impeachment, and the governor
continued to serve his two full terms.180
In December 2022, five months after the election into o%ce, the County Assembly of
Meru voted to impeach the governor. The governor’s impeachment was the first in the
third term of county governments to be considered by the Senate. However, the Senate
Committee set up to canvass the grounds of impeachment decided that the impeachment
did not reach the threshold required for impeachments as per the provisions of the law,
relevant jurisprudence from the courts, and the previous decisions of the Senate on
impeachment.181# The Siaya County Assembly also voted to have the Deputy Governor
impeached in July 2023, however, majority of the Senators rejected the recommendation
of the Select Senate Committee to have the Deputy Governor impeached and voted to
have the Deputy Governor stay in o%ce.182
Apart from the governor and the deputy, the county executive also consists of members
of the county executive. In practice, candidates for the o%ce of county executive are
nominated by the governor after a competitive process of selection and have to be vetted
by the respective county assembly before being confirmed.183#
The governor is also required to ensure that a county’s community and cultural diversity is
re&ected in the composition of the County Executive Committee Member CECM. This is
a requirement of both the Constitution and the laws. The nominations and appointment
of CECMs have, in the past, been challenged in court on the basis that the governor
should have given the diversity of the county consideration in the nomination or by the
county assembly during the approval of names. The court pronouncements on the cases
are varied, depending on the evidence submitted to the court and the issues laid before
the court for determination. The principle emerging clearly from the court, though, is
that implementation and operationalization of the principle of diversity is different from
county to county and depends on what rational criteria were applied and how they were
applied.184#On this basis, several appointments have been annulled and others upheld by
the courts.185
All CEC members must be holders of a university degree and have at least five years of
relevant experience.186#The Constitution caps the CEC membership at ten or less.187#While

177
Martin Nyaga Wambora v County Assembly of Embu & 37 others [2015] eKLR.
178
Hon. Ferdinand Ndung’u Waititu v County Assembly of Kiambu & 4 others [2019] eKLR
179
Mike Sonko Mbuvi Gideon Kioko & another v Clerk, Nairobi City County Assembly & 9 others [2021] eKLR
180
Martin Nyaga Wambora v County Assembly of Embu & 37 others [2015] eKLR.
181
https://nation.africa/kenya/news/politics/meru-governor-kawira-mwangaza-survives-impeachment--4070842#
182
http://www.parliament.go.ke/node/20097#:~:text=The%20Senate%20has%20voted%20to,voting%20to%20
support%20the%20charges.
183
Article 179 (2) Constitution of Kenya 2010.#
184
CM Bosire, ‘County governance and pluralism in Kenya’ Katiba Institute (Research Series), 2017.#
DEVOLUTION JOURNEY

185
Ibid.
186
Section 35 (3) CGA.#
187
Article 179 (3) (b).

30
the Constitution vests executive authority collectively in the CEC,188#it specifies that CEC
members are accountable to the county governor.189##

County public service and administration

Constitutionally a separate public service system is provided to serve national and county
governments autonomously.190 The County governments shall be responsible for their
public service. Still, within the national legislative framework.191#The County Government
Act, in operationalising Article 235 (1) of the Constitution, provides for an independent
public service192#mandated to establish and abolish o%ces for each county service.193#The
governor appoints the board members between three to five county public service board
members, with the approval of the county assembly,194#for a non-renewable term of six
years.
The Constitution, however, provides that the National Public Service Commission shall
“hear and determine appeals in respect of county governments’ public service.”195# The
appeals to the National Public Service Commission can cover recruitment, selection,
appointment, and qualification attached to any o%ce.196# Appeals can also be made
in respect of remuneration and terms and conditions of service, national values and
principles of governance, retirement or other removal from service, pensions, and gratuity,
and other matters the National Commission considers as falling within its constitutional
competence.197#
There is little linkage between the County Public Service Boards and the Public Service
Commission at the national level. While the CPSBs implement national laws concerning
public service, there are few or non-existent linkages between the national and county
boards in charge of the respective services at the two levels of government, especially on the
matters specified by the law, such as appeals. This can be partly linked to the uncertainties
of the transition to county governance, where many processes and issues needed to follow
the laws and policies that were laid down to guide and facilitate the transition process.
Furthermore, activating such links would require intergovernmental dialogue to develop
interaction modalities as the law envisages.#
Appointments that require approval of county assemblies include appointments to
the County Public Service Board (CPSB),198# the county secretary,199# county chief

188
Article 179 (1).
189
Article 179 (6).
190
Article 235 (1); Article 234 (3) (b).
191
Article 235 (1).
192
Section 56 (1) CGA.
193
Section 58 CGA.
194
Section 58 CGA.
195
Article 234 (2) (i).#
196
Section 77 (2) (a) CGA.
DEVOLUTION JOURNEY

197
Section 77 (2) CGA.
198
Section 58 (1) (b) County Governments Act.
199
Section 44 (2) (b) County Governments Act.

31
 o%cers,200#the clerk to the CA,201#and any other appointments as may be provided by other
legislation.202# The county secretary is in charge of overall administration at the county
and supervises county public service. The county executive committee may allocate the
county secretary further functions.203#National legislation provides that the governor may
dismiss the county secretary subject to the terms and conditions of appointment. The
law also provides that the county secretary may resign by giving a 30-day notice to the
governor. The only categories of persons within the county that are state o%cers are: the
governor, deputy governor, county executive members, the speaker, and members of the
county assembly.204#
County institutions can also extend administrative structures to levels below counties (sub-
county, ward, and village levels).205#In the case of urban areas, cities, and municipalities have
separate administration from that of the county. Boards manage cities and municipalities.
Some members of city and municipal boards are partly appointed by the CEC through
a recruitment process, while some are nominated to the boards (with the approval of the
county assemblies) through stakeholders that include: the private sector, neighbourhood
associations, informal sector, and an association of urban areas and cities.206#Other urban
areas, such as towns and market centres, are managed directly by county government
departments.207#

4.4 County powers, functions and responsibilities

Constitutionally, county powers are divided into the legislative and executive powers, and
are vested in the county assembly and executive, respectively. The traditional concepts of
separation of powers and oversight and accountability are also provided for in the two arms
of county government. The county assemblies exercise oversight over the county executive
within a framework of separation of powers.208#County assemblies are also constitutionally
empowered to enact county laws necessary or incidental to the exercise of county powers
and performance of allocated functions
The county executive, on the other hand, is required to implement county legislation
and national legislation within the county and, where necessary, manage and coordinate
affairs of the county administration, and prepare proposed legislation for the county
assemblies.209#The county governor assents to county legislation.210

200
Section 45 (1) (b) County Governments Act.
201
Section 13 County Governments Act.
202
Section 8 (1) (a) County Governments Act.
203
Section 44 (3) County Governments Act.
204
Article 260, Constitution of Kenya 2010.
205
Section 48 County Governments Act.
206
Section 13 and 14 Urban Areas and Cities Act.
207
As provided for under the Urban Areas and Cities Act 2011
DEVOLUTION JOURNEY

208
Article 185 (3) Constitution of Kenya 2010.
209
Article 183 (1) Constitution of Kenya.
210
Section 30 (1) CGA.#

32
The Fourth Schedule to the Constitution of Kenya 2010 provides for the specific functional
areas of the county governments as well as the national government.211#The Fourth Schedule
contains two parts: Part 1, which provides for national government functions, while Part 2
provides for county government functions.212
The county functions include agriculture, health, transport and communication,
infrastructure and development, planning, and trade. In agriculture, counties have powers
over crop and animal husbandry, livestock yards, county abattoirs, plant and animal disease
control, and fisheries.213#In the health sector, functional areas that fall under the county
domain include:
• “County health services” are disaggregated as county health facilities and
pharmacies.
• Ambulance services.
• Promotion of primary health care.
• Licensing and control of undertakings selling food to the public.
Other county health services include veterinary services, cemeteries, funeral parlours, and
crematoria, refuse removal, refuse dumps, and solid waste disposal.214#County functional
areas also include control of air and noise pollution and other public nuisances and outdoor
advertising.215
The Fourth Schedule allocates “county transport” to counties, which includes county
roads, street lighting, tra%c and parking, public road transport, and ferries and harbours.
Regulation of international and national shipping is, however, reserved for the national
government.216#In trade development and regulation, counties have powers over markets,
trade licenses, fair trading practices, local tourism, and cooperative societies.217#Concerning
planning and development, counties have powers over “county planning and development,”
which includes statistics, land survey and mapping, boundaries and fencing, housing, and
electricity and gas reticulation and energy regulation.218#In addition, counties have powers
over “county public works and services” which include stormwater management systems
in built-up areas, and water and sanitation services.219
In the education sector, counties have a mandate over pre-primary education, village
polytechnics, home craft centres, and childcare facilities.220#Counties also have powers over
“cultural activities, public entertainment, and public amenities.” These include betting,

211
Article 186 (1) Constitution of Kenya 2010.
212
Ibid.
213
Item 1 Part 2, Fourth Schedule.
214
Item 2 Part 2, Fourth Schedule.
215
Item 3 Part 2, Fourth Schedule.
216
Item 5 Part 2, Fourth Schedule.
217
Item 7 Part 2, Fourth Schedule.
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218
Item 8 Part 2, Fourth Schedule.
219
Item 11 Part 2, Fourth Schedule.
220
Item 9 Part 2, Fourth Schedule.

33
 casinos and other forms of gambling, racing, liquor licensing, cinemas, video shows and
hiring, libraries, museums, sports, and cultural activities and facilities, and county parks,
beaches, and recreation facilities.221#Counties have powers, too, to ensure the coordination
and participation of communities and locations in governance at the local level. Specifically,
they have powers to assist communities and locations to develop the administrative capacity
for the effective exercise of the functions and powers as well as for participation in local
governance.222
Other areas listed as county functions in the Fourth Schedule are “animal control and
welfare,” which include licensing of dogs and facilities for the accommodation, care,
and burial of animals.223# Counties have powers over fire-fighting services, and disaster
management,224#as well as powers over the control of drugs and pornography.225
While the Constitution creates two lists of functions for the national and county
governments, it provides that a function or power that is conferred on more than one
level of government is function or power within the concurrent jurisdiction of the
national and county government.226#The Constitution also provides that a function not
assigned by the Constitution or any national law is a function or power of the national
government.227# Therefore, the power or function that exclusively belongs to a county
government can only be determined, through interpretation and clarification of the
national and county functions from the two lists.
The constitutional significance of the powers and functions allocated to a county government
has been emphasized in several court matters. In one case, the Court noted that:
“local authorities cannot be equated to county governments as the
structure and design of the Constitution has given county governments
an elevated position as one of the organs to which sovereignty of the
people of Kenya is delegated under Article 1 of the Constitution.”228
In another case, the Court struck down a law that sought to establish County Development
Boards (chaired by senators and governors made secretaries) whose primary role was
scrutinising county plans and budgets. The Court held that this law was unconstitutional
as it attempted to fetter the constitutional power of counties to pass budgets and develop
plans.229 The Supreme Court of Kenya has also declared the Constituency Development
Fund (CDF) unconstitutional on the basis that it breaches the doctrine of separation of

221
Item 4 Part 2, Fourth Schedule.
222
Item 14 Part 2, Fourth Schedule.
223
Item 6 Part 2, Fourth Schedule.
224
Item 12 Part 2, Fourth Schedule.
225
Item 26 Part 2, Fourth Schedule.
226
Article 186 (2) Constitution of Kenya, 2010.#
227
Article 186 (2) Constitution of Kenya, 2010.
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228
Nairobi Metropolitan PSV SACCOs Union Ltd and 25 others v County Government of Nairobi and 3 others#(2014) eKLR,
para 64.#
229
Council of Governors and another v Senate and 6 others (eKLR 2014).#

34
powers, and it has a potential of infringing on county powers and functions.230#The courts
have also a%rmed the powers and functional autonomy of counties in several areas, including
the power to raise revenue through outdoor advertising on major highways;231#offer health
services; raise the parking fees for cars in Nairobi’s central business district;232#and charge
agricultural tax.233 #

4.5 Devolved governance at the national level

Devolved governance, as mentioned at the beginning of this chapter, is not just about
county government structures and institutions or the county level only. Several national-
level institutions perform functions and are vested with responsibilities critical to the
functioning and effectiveness of the devolved system of government.
This is why devolution objectives and principles bind not just the county governments
but all institutions with a role in the devolved system of government. As discussed below,
the specific roles and mandates of various national institutions reveal their crucial and
indispensable role in ensuring county governance runs smoothly and per constitutional
objectives.

The role of the national Parliament

Parliament, composed of the Senate and the National Assembly, are charged with the role
of enacting national laws.234#Parliament also plays an important oversight role, especially
at the national level, which ensures that national institutions play their role in a manner
that adheres to the Constitution, including the constitutional objects and purpose of
devolution.#
More significantly, the Senate, which is the second chamber of Parliament, is charged with
the constitutional mandate of representing and protecting county interests at the national
level.235#In this regard, the Senate’s legislative role is limited to participating in the making
of laws that concern county governments only.236 The Senate is also vested with a special
role of exercising oversight over national revenue allocated to the county governments.237
The current Constitution was passed in August 2010, when there was no Senate or
county governments. The Constitution provided for a transition phase, from the time of
promulgation of the Constitution until the first county governments were elected to

230
Yvonne Rocaboy, Francois Vaillancourt and Rejane Hugounenq, ‘Public finances of Local Government in Kenya’ in Benard
Dafflon and Thierry Madies T (eds)#The Political Economy of Decentralisation in Sub-Saharan Africa: A
New Implementation Model in Burkina Faso, Ghana, Kenya, and Senegal#(World Bank 2012) 161–206#
231
Real Deals Ltd v Kenya National Highways Authority and 2 others#(2014) eKLR.
232
Nairobi Metropolitan PSV SACCOs Union Ltd and 25 others v County Government of Nairobi and 3 others#(eKLR 2014)
Petition 486 of 2013.#
233
Cereal Growers Association and another v County Government of Narok and 10 others#(2013) eKLR.
234
Article 93, Constitution of Kenya, 2010.
DEVOLUTION JOURNEY

235
Article 96, Constitution of Kenya, 2010.
236
Article 110-114, Constitution of Kenya, 2010.#
237
Article 96(3), Constitution of Kenya, 2010.

35
 o%ce in March 2013. During this period, the then unicameral chamber of Parliament
played the critical role of passing laws required to facilitate county governments’ entry.
Such laws included: the County Governments Act, Intergovernmental Relations Act, the
Public Finance Management Act, and the Transition to Devolved Government Act, among
other laws that were critical for the entry of county governments.
After March 2013, the Senate played a critical role in revising the pre-2013 legislation
and the revision of laws that required amendment to address legal gaps identified in the
implementation of the devolved system of government. These included amendments such as
those concerning the assumption of o%ce of a governor and deputy governor, replacement
of a governor by a deputy governor, and impeachment of speaker and governors, among
other laws (and proposed laws) deemed necessary for the effective implementation of
devolution.#
The Senate and National Assembly debate and pass the Division of Revenue Act (DORA)
and the County Allocation of Revenue (CARA); both Bills facilitate the distribution
and release of funds to county governments.238#Other national laws lay the national legal
framework and provide a basis for the performance of county government functions.
Furthermore, the Senate plays an oversight role over national revenue allocated to county
governments.239
Parliament collectively has a general parliamentary oversight role, which ensures that
institutions, especially those relevant to county governments, play their role effectively.
On many occasions, institutions such as the Controller of Budget, the Commission
on Revenue Allocation, the National Treasury, and others are routinely summoned by
Parliamentary committees to answer issues such as delays in the disbursement of funds
to county governments. This also extends to oversight of county government funds, and
county o%cials, including governors, are routinely summoned whenever concerns are
raised over county government finances.

The role of the national executive

The national executive (composed of the President, the Deputy President, and the cabinet
secretaries) exercises executive authority on behalf of the people.240#The national executive
formulates national laws and policies that are then considered and approved by Parliament.
Furthermore, the national and county executives share many county government functions
in the sectors. The national executive is expected to develop its policies by the Constitution.
After due consultation with the county governments.241# Such consultation is critical in
areas where there is no clarity on the respective roles of the two levels of government.#

238
Article 218 Constitution of Kenya 2010, see also#In the Matter of the Speaker of the Senate & another [2013] eKLR.
239
Article 96 (3) Constitution of Kenya 2010.#
DEVOLUTION JOURNEY

240
Article 129 (1) Constitution of Kenya 2010.
241
Articles 6(2) and 189, Constitution of Kenya 2010.

36
Furthermore, the national government has policy-making roles in many sectoral functions,
while the county government has to ensure service delivery. Such a division of roles requires
both levels of government to work together in developing policies and implementing
functions. The national and county executives have formed sectoral committees to ensure
coherence in formulating and implementing national and county policies.#
An appropriate example of the national government’s role is in conditional grants. These
are non-discretionary funds (as the name suggests) provided to county governments for
specific functions that the national government identifies as critical to fulfilling national
objectives or priorities. In some cases, the national executive (through its sectoral ministries)
can utilize conditional funds for the provision of certain services (some of which fall in the
space of county governments).242#A County Governments Grants Bill is under consideration
by Parliament to guide how conditional funds are managed.#

The role of the Judiciary

The Judiciary and the courts have a constitutional mandate to safeguard constitutionalism
and ensure respect to and adherence to the rule of law.243#Whenever disputes arise regarding
devolution, the courts have to resolve those disputes and give directions following the
Constitution. In the past, such disputes have revolved around issues such as the nature
and extent of county government powers and responsibilities, the role of the national
government in devolved functions, disputes between employees and county governments,
public participation in county governance processes, county finances, matters pertaining
relations between the national and county governments, among other numerous issues.
The first case that the Supreme Court heard regarding devolution in 2013 was a request
for an advisory presented by the Senate.244#The Senate was aggrieved by the decision of the
National Assembly speaker to bypass the Senate and submit the DORA for presidential
assent. The Senate argued that it was imperative for it as a chamber that represents county
governments, to be part of the enactment of DORA, whose purpose is to divide revenue
vertically between the national and county governments.245 The Supreme Court agreed
with the Senate and ruled that ignoring the Senate in the passing of such an important piece
of law not only diminished the role of the Senate to protect county government interests
but also had the potential to undermine the objectives of devolution.246#Many other court
decisions have been passed to a%rm the place, role, and significance of devolution to
Kenya’s system of constitutional governance.
The Judiciary also deploys judicial o%cers to county courts, which enforce laws that
county governments pass. While county governments do not exercise judicial power, the
Constitution vests the county governments with the power to exercise any other power

242
Article 202 (2) Constitution of Kenya 2010.
243
Article 159 and 165, Constitution of Kenya 2010.
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244
In the Matter of the Speaker of the Senate & another#[2013] eKLR.#
245
IIbid.
246
Ibid.

37
 or function that#is incidental to the realization of their powers and functions#under the
Fourth Schedule.247#This constitutional provision provides the basis for the establishment
of county courts to assist in the enforcement of county laws and regulations.#
County courts commonly deal with offences such as: littering, operating without business
licenses, and breach of occupational safety rules, among others. This practice, now based
on the Constitution, has been maintained by the Nairobi County government and
other county governments that have established county courts to enforce county laws.
Discussions are in the process to allow county governments to retain money collected
by county courts to be applied for county purposes as opposed to remitting the funds
collected to the National Treasury.248

The role of commissions and independent offices

Apart from Parliament, the national executive, and the Judiciary, the Constitution also
establishes a number of commissions and independent o%ces that exercise devolution-related
mandates and functions. The objectives of these institutions and o%ces are to “protect the
sovereignty of the people,” “secure the observance by all state organs of democratic values
and principles,” and “promote constitutionalism.”#249#The commissions and the holders of
independent o%ces are subject only to the Constitution and the law and are independent
and not subject to direction or control by any person or authority.250#Commissions and
o%ces whose core roles are relevant to devolution include the Commission on Revenue
Allocation, O%ce of the Controller of Budget (CoB), O%ce of the Auditor General, and
the Salaries and Remuneration Commission among others.#
The Constitution establishes the Commission on Revenue Allocation, and its mandate is
to make recommendations on the sharing of revenue between the two levels of government
and between the 47 county governments, consider and make recommendations on any
matters concerning the financing, financial management of county governments, and define
and enhance the revenue sources of the national and county governments.251#The CRA is
also mandated to encourage fiscal responsibility for national and county governments and
is required to develop and regularly review the criteria for identifying marginalized areas in
the country for purposes of utilization of the Equalization Fund.252
The O%ce of the Controller of Budget (CoB) is in charge of overseeing the implementation
of the budgets of the national and county governments. The OCOB does so by approving
the withdrawal of public funds per the set budgets submitted to the OCOB.253# The
Controller of Budget is required to approve withdrawals of public funds following the

247
Article 185(2) Constitution of Kenya 2010.
248
Under the auspices of the Intergovernmental Budget and Economic Council.
249
Article 249 Constitution of Kenya, 2010.
250
Article 249(2) Constitution of Kenya, 2010.
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251
Article 215 and 216, Constitution of Kenya, 2010.#
252
Article 215 and 216, Constitution of Kenya, 2010.
253
Article 228 (5) Constitution of Kenya, 2010.

38
law. In other words, the expenditure approvals must meet the conditions of the law; for
example, the expenditure has to separate recurrent from capital expenditure.#
The Constitution establishes the o%ce of the Auditor General and vests the o%ce
with powers to audit the finances of all public entities, including national and county
governments. At the end of the financial year, the Auditor General is required to release a
report showing how national and county governments (and indeed all other public entities
using public money) have utilized their funds.254#
The audit aims to determine whether a national or county government or other entity
expending public money did so under the law. The O%ce of the Auditor General must
also check whether the money was used effectively. This means that the o%ce has to check
whether money utilized by the national government or county governments was used in a
manner that avoids waste.#
The Constitution provides for the establishment of the Salaries and Remuneration
Commission. The central role of the Commission is to set and review the remuneration
and benefits of all state o%cers. The CRA is, thus, responsible for setting the salaries and
allowances of governors, deputy governors, members of county assemblies, and speakers.
The SRC can also advise on the salaries of other categories of employees that are not state
o%cers.#
In the performance of its work, the Salaries and Remuneration Commission is supposed:
to ensure that the salaries that are paid to those working in the public sector/ government
are sustainable and not overly costly to# mwananchi, ensure that the public sector or
governments at both levels can attract qualified and competent people to undertake
services. The SRC is also required to recognize the productivity of people and performance
by ensuring adequate salaries are paid and to enhance transparency and fairness in the
setting of salaries.255
The Kenya National Commission on Human Rights, the Commission on Administrative
Justice, and the National Gender and Equality Commission all ensure the two levels of
government and public institutions adhere to human rights obligations.

4.6 National and county government relations

The Constitution requires that the National and County governments embrace the
principle of cooperation and consultation in performing their functions. Article 6(2) of
the Constitution states that “the governments at the national and county levels are distinct
and inter-dependent and shall conduct their mutual relations based on consultation and
cooperation.” Article 189 of the Constitution further provides that the national and county
levels shall carry out their activities in a manner that respects the other level of government.
DEVOLUTION JOURNEY

254
Article 228 (4) Constitution of Kenya, 2010.#
255
Article 230 (4) Constitution of Kenya (2010).#

39
 A further requirement is that the two levels of government assist, support and consult, and,
whenever necessary, implement the laws passed by the other level and that both shall share
information and coordinate policies and administration and in building capacity.256 About
the performance of functions, the Constitution guides that the two levels of government
shall cooperate in the performance of functions and may, where it is deemed fit, form
joint committees or authorities to facilitate the implementation. In the event of a dispute
between the national and county governments, the Constitution requires the two levels
of government to make every reasonable effort to settle the dispute, including by means
provided by the law.257 Parliament is required to make a law that will provide for how
disputes between the national and county governments can be resolved, including through
negotiation, mediation, and arbitration.258
The national and county governments are bound by common constitutional objectives,
which include those that apply to devolution. Therefore, the two levels must identify
and pursue common goals. Secondly, while roles are divided between the two levels of
government, many are related and apply to the same sectors and functions. The only way
to perform these functions is to jointly agree (through cooperation) on the respective
functions and plan for targets in the separate functional areas.
The success of devolution does not solely depend on county governments or the county
level of government. Essential processes and decisions are made at the national level,
which ultimately impacts the functioning and effectiveness of county governments, as
demonstrated in the discussion in the preceding sections of this chapter.

Laws that govern intergovernmental relations

In the period before the March 2013 general election, when county governments were elected
into o%ce, Parliament enacted several laws to implement the constitutional provisions on
the relations between the national and county government. The laws established structures
and processes meant to facilitate consultation and cooperation between the two levels of
government. The IGRA was enacted in 2012 to provide a framework for collaboration and
consultation between the National and the 47 county governments. The IGRA also aims
to facilitate consultation on matters affecting the national and county governments, the
resolution of disputes, and to provide a procedure for transferring functions between the
two levels.

The IGRA established the National and County Government Coordinating Summit (the
Summit), which consists of the President and the 47 county governors, thus, bringing
together all the heads of the executive from the national government and the 47 county
governments. The Summit is described as the apex body for intergovernmental relations.
DEVOLUTION JOURNEY

256
Article 189, Constitution of Kenya, 2010.
257
Article 189(3) Constitution of Kenya, 2010.
258
Article 189 (4) Constitution of Kenya, 2010.

40
It is headed by the President, who is the chair, and the chairperson of the Council of
Governors, who is the Summit’s deputy chairperson.

The functions of the Summit include consultation and cooperation between the two levels
of government, promotion of the national values and principles of governance, promotion
of national cohesion and unity, consideration and promotion of matters of national interest,
and review of reports from other intergovernmental forums and other bodies on issues
affecting the national interest. The Summit is also vested with the duty of evaluating the
performance of national or county governments and recommending appropriate action
and receiving progress reports, and providing advice as appropriate.259

Other roles of the Summit include, monitoring the implementation of national and county
development plans and recommending appropriate action, considering issues relating
to Intergovernmental relations referred to the Summit by a member of the public, and
recommending measures to be undertaken by the respective county government.260 The
Summit is also charged with coordinating and harmonizing the development of the county
and national government policies, facilitating and coordinating the transfer of functions,
power of competencies from and to either level of government, and performing any other
function allocated by law or deemed necessary by the Summit. The Summit is meant to
meet twice a year to conduct its business and is required to submit reports to the National
Assembly, the Senate, and county assemblies on its activities.261

One of the first major decisions of the Summit in its early days was the decision to adopt a
“big bang” transfer of functions, different from the gradual and phased approach that was
provided for in the transition laws.262 This resulted in the transfer of functions uniformly
to all the 47 counties without a case-to-case assessment of capacity and readiness as was
initially envisaged under the law.263 Over the first two terms, the Summit met a few times
where significant decisions were taken. Challenges that face the Summit include: a lack
of mechanisms to ensure follow-up of decisions made and reporting back and adequate
follow-up of resolutions.264

The Intergovernmental Relations Act established the Council of County Governors (CoG),
composed of county governors of the 47 county governments. The chairperson and vice-
chairperson of the CoG are drawn from among the county governors and serve for one
year. They are eligible for re-election once.265 The responsibilities of the CoG, as provided
for under the Act, include:

259
Section 8, Intergovernmental Relations Act.#
260
Ibid.
261
Section 9, Intergovernmental Relations Act.
262
Transition to Devolved Government Act.
DEVOLUTION JOURNEY

263
Section 23, Transition to Devolved Government Act 2012.
264
Council of Governors, Annual Statutory Report 2017/2018, 7-8.#
265
Section 19, Intergovernmental Relations Act.

41
 • Consultation amongst county governments.
• Sharing of information on the performance of the counties in the execution of
their functions with the objective of learning and promoting best practices and,
where necessary, initiating preventive or corrective action.
• Considering matters of common interest to county governments.
• Dispute resolution between counties.
Other functions of the CoG include:
• Capacity building for governors.
• Receiving reports and monitoring the implementation of intercounty agreements
on inter-county projects.
• Consideration of matters referred to the Council by a member of the public.
• Consideration of reports from the intergovernmental forums on issues affecting
national and county interests or relating to the performance of counties.

The CoG has become a critical body and forum and is the primary consultative structure
on matters affecting county governments. The CoG is a national voice for county
governments, and a forum for consensus negotiation for all county executives. The CoG
has formed further structures below the Council (such as CEC forums, Committees of
Governors, and a Secretariat), all assisting in furthering and deepening county government
consultation.

Under the IGRA, the Intergovernmental Technical Relations Committee (IGRTC) is

vested with the responsibility of coordinating the day-to-day administration of the affairs
of the Summit and the Council of County Governors. Specifically, the IGRTC is meant to
facilitate the activities of the two bodies and to implement the decisions of the two bodies.
Specific roles of the IGRTC include:
• Taking over the residual functions of the Transition Authority.
• Preparing the agenda for the Summit.
• Submitting reports to the Summit and the CoG.

The IGRTC runs its affairs through a secretariat headed by a Chief Executive O%cer to
perform these functions. Apart from these statutory structures, the IGRA provided that
the IGRTC and sectoral ministries can form intergovernmental consultation structures.

The Intergovernmental Budget and Economic Council (IBEC) brings together the members
of the county executive in charge of finance and the national executive institutions and
national institutions in the finance sector. The IBEC is composed of the Deputy President
(who chairs it), the Cabinet Secretary in charge of finance, representatives from the judicial
service commission and the parliamentary service commission, as well as chairpersons
of the Commission on Revenue Allocation, the Council of Governors, and the Cabinet
Secretary in charge of devolution and intergovernmental relations. The IBEC is a forum
DEVOLUTION JOURNEY

for consultation and cooperation between the national and county governments.

42
Specific matters that form the business of the IBEC include national and county budget
documents (budget policy statement, the budget review outlook paper, and the medium-
term debt management strategy) and any other matters relating to budgeting and financial
management and integrated development at the national and county levels. The IBEC also
considers issues relating to government borrowing at national and county levels, proposed
laws or policies that have financial implications for counties, and recommendations on
the equitable sharing of revenue between the two levels of government and among the
counties.

To enhance intergovernmental cooperation and consultation at the county level, the

County Governments Act establishes the County Intergovernmental Forum (CIF).266 The
CIF is to be headed by the governor, the deputy governor, or a CECM designated for
that purpose by the governor. The CIF consists of all heads of department of the national
government rendering services in the county and members of the CECM nominated to
the CIF in writing. The primary responsibilities of the CIF include the harmonization of
services rendered in the county, coordination of development activities in the county, and
coordination of intergovernmental functions.

In 2013, the Senate introduced an amendment to the County Governments Act that
created County Development Boards (CBDs) that were chaired by senators and whose
role was to be a forum of consultation between elected leaders in the county. The county
governors were to be secretaries of the boards.267 Among the roles of the boards was to
scrutinize plans and budgets that were to be tabled in the assembly to receive input from
other elected leaders such as members of Parliament from the specific county.268 The
Council of Governors challenged the constitutionality of the CDBs on the basis that it
infringed on separation of powers and sort to usurp the powers of the assembly to debate
and pass budgets and plans. The courts declared the CDB unconstitutional, and now there
is an attempt to introduce another amendment that addresses the concerns that the court
raised.269

Intergovernmental relations structures established through practice

Not all current structures for intergovernmental consultation are sanctioned by statute.
Some have evolved through practice in the years of implementation of devolution. These
include the County Assembly Forum (CAF) and the Society of Clerks at the Table
(SOCATT). The CAF brings together all county assemblies (the county legislative arm) for
consultation and cooperation on legislative affairs. The CAF is the umbrella body for the
speakers and members of county assemblies. The body seeks to identify and address issues
of concern that are common among the county assemblies. The speaker of the Senate is

266
Section 54(2) County Governments Act.#
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267
County Government (Amendment) Act 2014.
268
Section 2, County Government (Amendment) Act 2014 (declared unconstitutional).#
269
Senate and 48 others v Council of Governors and 54 others

43
 the CAF’s patron, which assists in creating and facilitating legislative IGR with the Senate
at the national level.#

Society of Clerks at the Table (SOCATT) brings together the staff of county assemblies
(excluding the speakers who are members of CAF). Like the other IGR bodies, SOCATT
seeks to address issues of common concern and focus on the teams working in the county
assemblies. The patron of SOCATT is the clerk to the Senate. Other IGR forums formed
through practice include the County Attorneys Forum, a caucus of Deputy Governors,
and sectoral CECs Forums.#
#
4.7 Conclusion
There is no doubt that while the mandate and structures of the national and county
governments are distinct, inter-governmental cooperation and consultation is the bedrock
of devolved governance under the Constitution of Kenya 2010. The national and county
governments are united by common constitutional goals and objectives, which imply a
harmonious co-existence and common purpose. Even more critically, the effectiveness of
both levels of governments depends on engagement and interaction on common areas and
functions due to the shared nature of functions.
In turn, the two levels of government have to develop and implement structures and processes
that can facilitate their interaction and the Constitution provides for broad principles to
guide such structures and their operations. An assessment of the IGR structures that were
provided for in 2013 shows a number of challenges in the operation and effectiveness.
Experience has shown that it is only through genuine commitment and willingness to
embrace the spirit of consultation and cooperation by the two levels of government can the
constitutional principle of cooperation and consultation be achieved.
DEVOLUTION JOURNEY

44
CHAPTER FIVE
TRANSITION TO DEVOLVED GOVERNANCE

5.1 Introduction
This chapter discusses the legal and policy framework that guided the entire transition
period, the activities and issues that defined the transition, and a brief analysis of the status
of the transition to county governance.
With the promulgation of the Constitution of Kenya 2010, Kenya was set to move
from a highly centralized system of governance to a devolved one. The transformation
of governance structures (both at the national and sub-national levels) required time and
planning to implement the government system that was constitutionally envisaged. This
entailed the revision of pre-2010 laws and policies, establishing new institutions (including
county government institutions), and similarly abandoning or restructuring old and
existing institutions to abide by the Constitution.
The transition provisions in the Constitution of Kenya 2010 envisaged the challenges and
processes involved in fully implementing the devolved government system. Accordingly,
the Constitution provided time to allow preparations for devolution and the institutions
to oversee preparations for county governments from 2013.
Preparation for the county governments and devolved governance in general commenced
shortly after the promulgation of the Constitution in August 2010. The Constitution
and laws provided for two phases of transition: the first phase covered August 2010 until
March 2013, when the first county governments were elected into o%ce, and the second
phase commenced in March 2013 until March 2016 (three years after the entry of county
governments).

5.2 The constitutional, legal, and policy framework for transition to devolution
The Constitution of Kenya 2010 put in place extensive provisions to safeguard the process
of implementing devolution. These included: mechanisms and institutions to monitor
the implementation and a timeframe within which enabling legislation was to be enacted.
The Constitution established the Commission for the Implementation of the Constitution
(CIC) for five years270# to coordinate, monitor and report on the general process of
implementation of the Constitution.271#In this regard, the Constitution explicitly stated
that no enabling legislation was to be enacted by Parliament before the establishment
of the CIC.272# Both the Commission on Revenue Allocation and the CIC were to be
consulted and their recommendations considered by Parliament before enactment.273

270
Section 5 (7) Sixth Schedule.
DEVOLUTION JOURNEY

271
Section 5 Sixth Schedule.
272
Section 14 (1) Sixth Schedule.
273
Section 14 (2) Sixth Schedule, Constitution of Kenya 2010.#

45
 The Constitution further established the Parliamentary Constitutional Implementation
Oversight Committee (PCIOC) to provide oversight in the implementation process.274#The
PCIOC was specifically mandated to oversee the preparation of various laws, establishing
of new commissions, establishing the infrastructure necessary for the proper operation
for each county including locating county premises and the transfer of staff.275 The Fifth
Schedule to the Constitution provides a timeframe (ranging from one to three years)
within which various laws on devolution are to be passed276#and Parliament could, with a
two-thirds vote extend the period by one year only.277#
As a constitutional safeguard to ensure the implementation of devolution and the
Constitution generally, any person could petition the High Court if a law is not passed
within the period specified in the Constitution, and the Court could then issue a declaratory
order on any matter, directing Parliament and the AG to take steps to ensure that the
required legislation is enacted, within the period specified and report the progress to the
Chief Justice.278
In 2010, the then Ministry of Local Government formed a Taskforce on Devolved
Government to advise on the laws and policies to be put in place to facilitate the
implementation of devolution. The Taskforce carried out public consultations on
the implementation of devolution. It came up with a comprehensive report on the
implementation of devolution, as well as several Bills that were later adopted and enacted
by Parliament at the commencement of devolution.
Among the laws that the Constitution required Parliament to pass was legislation to
provide for a phased transfer of functions to county governments for not more than three
years from the first county elections279# and aid county governments in taking up their
functions.280#Parliament enacted the Transition to Devolved Government Act (TDGA) to
ensure a coordinated transition to devolved governance. The Act established the Transitional
Authority (TA) for three years to lead the change to devolved governance.281#
The functions of the TA, as listed in the TDGA, included the facilitation of the comprehensive
and effective transfer of functions to national and county governments.282#This entailed
the analysis and clarification of the Fourth Schedule to the Constitution and facilitating
a phased transfer of functions to county governments.283#The TA was also charged with
assessing and addressing the capacity needs of both the national and county levels284#as well
as reporting on the progress with the implementation of devolution.285

274
Section 4 Sixth Schedule, Constitution of Kenya 2010.
275
Section 4 Sixth Schedule, Constitution of Kenya 2010.
276
Article 261 (2) Constitution of Kenya 2010.
277
Article 261 (2) Constitution of Kenya 2010.
278
Article 261 (6) (b) Constitution of Kenya 2010.
279
Section 15(1) of Sixth Schedule.
280
Section 15 Sixth Schedule.
281
Section 5 Transition to Devolved Government Act.
282
Section 24 Transition to Devolved Government Act.
DEVOLUTION JOURNEY

283
Section 7(2)(d) Transition to Devolved Government Act.
284
Section 7(2) (j) to (l) Transition to Devolved Government Act.
285
Section 25 Transition to Devolved Government Act.

46
The specific issues that the TA was to address included: auditing national and the then local
authorities’ assets and liabilities, auditing staff of the former local authorities in preparation
for their transition, facilitating civic education on devolution, preparing county profiles
information, providing a mechanism for the transfer of assets and liabilities, and assist
county governments in setting up financial information management systems, among
other transition management processes.286#
After the March 2013 general election, the county governors and members of county
assemblies came into o%ce and found transition teams with whom they began operations.
The transition arrangements addressed some initial challenges for the incoming county
governments.

5.3 The Inaugural County governments (2013-2017)

The TA was required to publish, 30 days before the election, a list of functions that were
to be immediately transferred to county governments after elections.287#This was done in
February 2013, a month before the election288#According to the list, county governments
would, immediately assume responsibility over livestock sale yards and county abattoirs/
slaughterhouses, cemeteries, funeral parlours/ mortuary services and crematoria, refuse
removal, refuse dumps and solid waste. In the health sector, only five counties: Nairobi,
Mombasa, Kisumu, Nakuru, and Uasin Gishu, were allowed to assume county health
facilities and pharmacies, and ambulance services, and the rest was deferred. Counties were
also allowed to take control of outdoor advertising, betting services, liquor licensing, video
shows and hiring, sports and cultural activities and facilities, county parks, beaches, and
recreation facilities. In the transport sector, counties would take over access roads, street
lighting, tra%c, and parking. Other functions listed in the notice were: licensing dogs and
facilities for the accommodation, care, and burial of animals.#
Under trade development and regulation, counties would immediately assume powers
over markets, trade licensing (excluding regulation of professions), local tourism, county
planning and development, land survey and mapping, and housing. In the education
sector, counties would take pre-primary education, home craft centres, and child care
facilities. Under county public works, counties were allowed to take over the protection of
water springs, protection of walls and dams, county public works, and services specific to
water management systems in built-up areas. Counties were also allowed to take over fire-
fighting services, disaster management, and control of drugs and pornography. All other
functions under the Fourth Schedule were presumably deferred.#
The TA needed to clarify what the transferred county government functions entailed.
Therefore, and without any interpretation, the scope and extent of the functions that
counties assumed needed to be more precise. Functions such as “control of drugs
DEVOLUTION JOURNEY

286
Fourth Schedule to the Transition to Devolved Government Act.
287
Section 23 (1) Transition to Devolved Government Act.
288
via Legal Notice No. 16 of 2013.

47
 and pornography” needed further clarification on the nature and extent of the county
government’s role in controlling matters related to drugs and pornography. Furthermore,
the bulk of the functions transferred were typically those performed by the former local
authorities, while the rest were deferred.#

5.3.1 The Role of TA and first generation of county governments

On 4 March 2013, county governors and members of county assemblies were elected into
o%ce. The TA assisted in initial preparations for the incoming county governments. There
were advanced transition teams in each of the 47 county governments that were posted
there by the TA. The TA had organised o%ce space and equipment for the governors;
there were preliminary lists of assets and liabilities (from the former local authorities) and
arrangements for the swearing-in and assumption of o%ce for the governors and deputy
governors. The TA also ensured that county assemblies had basic systems and structures to
assist the house in starting its business.
With the entry of county governments, deliberations on transition management now
incorporated the county governments, who formed the Council of Governors to represent
the collective interests of the county governments during the transition.

5.3.2 The transfer of functions to county governments

The county governments rejected the phased transfer of functions, as was provided for in
the transition laws. This led to the informal adoption of a policy of “big bang” transfer
of all functions to county governments at a Summit meeting between the then President
and the then newly elected governors.289 The phased transfer of functions on a county-
by-county basis was, thus, abandoned and functions were transferred symmetrically to all
county governments.
On 9 August 2013, the TA, vide Legal Notice 137 to 183, transferred the second phase of
functions to county governments. In the second Legal Notice, most of the Fourth Schedule
items deferred in March 2013 were formally transferred to county governments. Unlike
the first Legal Notice, the TA attempted to break down the generally stated functional areas
in the Fourth Schedule. Items such as: “crop husbandry,” “animal husbandry,” “fisheries,”
“county health services,” “county transport,” “trade development and regulation,”
“cooperative societies,” “county planning and development,” “boundaries and fencing”
were disaggregated to clear and specific areas.
In the second Legal Notice, some functions were postponed by at least six months. In the
Agriculture Sector, the Legal Notice stated that “the management of agricultural training
centers and agricultural mechanization stations shall be transferred after six months.” In
the Health Sector, the TA specified that all counties should continue to “procure medical
commodities from the Kenya Medical Supplies Agency [(KEMSA), a national government
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289
No law was changed, or formal policy or direction was adopted to re&ect this important change in powers and functions.

48
agency] until “alternative intergovernmental arrangements are made.” Other postponed
functions included: roads pending agreement on classification, mechanical and transport
equipment functions, and electricity and gas reticulation and energy regulation, among
others.
The TA later transferred further functions, which included: the transfer of the management
of Agricultural Training Centers (ATCs) and Agricultural Mechanization Stations (AMSs)
under the agricultural sector.290 The mechanization stations and training centers are shared
between counties. Agreements were to be reached between counties involved on how the
facilities would be used jointly.
The Transition to Devolved Government Act provided for some critical processes that
were to take place to streamline the transfer of functions to the national and county
governments. These included: the unbundling of functions to understand the nature
and scope of national and county government functions (including concurrency of
functions), the costing of national and county government functions to have clarity on
county government and national government budgeting, and the verification of assets and
liabilities and assignment of the same to the two levels of government. Other essential
processes included the rationalization of national and county public services to align them
to the assigned functions, among others.291
However, these critical processes were not complete by the time the TA was transferring
functions to county governments or at the time the TA exited the stage in March 2015.292
The lack of clarity on the nature and extent of county and national functions in the various
sectors has been a source of confusion in the implementation of devolution. The lack
of clarity is the basis of the current uncertainty over the management and approach to
functions that are concurrent to the two levels of government, the extent of functions
devolved from the national level to county governments as required in the Constitution,
and the amount of resources needed to accompany the functions that are deemed as
transferred to the county governments.293
The TA played an important role in paving the way for the entry of the first county
governments by facilitating the county governments with skeletal systems and processes
upon which county structures were built. The TA also participated in developing laws and
policies in the pre-2013 period when the county governments were not in place. This is in
addition to the various laws and policies passed to lay the ground for devolution.
However, the TA could also have delivered important and expected outcomes from the
transition process. Some of the key issues that TA missed included the comprehensive
analysis and unbundling of national and county government of functions, a comprehensive
costing of the functions in each level of government, overseeing the complete transfer

290
Via Legal Notice No. 33 of 2014.
291
Section 7 (2) (m) Transition to Devolved Government Act.
292
Transition Authority, ‘Report on the status of devolution: Achievements, challenges, and lessons learnt’ (June 2015),
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p.27-28.
293
Mitullah WV, ‘Managing the transition to the system of devolved government: goals, gains, and moving forward’ in IGRTC,
Deepening devolution and constitutionalism in Kenya (2021), 77-96, at pp. 92-94.

49
 of functions, and the apportionment of assets and liabilities between the two levels of government.
In its reports, the TA noted some of the challenges that it encountered in the delivery of its
mandate, which included: being starved of resources necessary to complete its functions,
political interference from the Executive (including a proposal to disband the TA before the
end of its mandate), and a general lack of political goodwill to ensure a complete transition.294

5.3.3 Uncertainty and disputes over national and county government functions
As a result of the incomplete transition process, the uncertainty over the boundaries of
functions and powers between the two levels of government has prompted numerous cases
and disputes pitting the two levels of government. Courts have settled some disputes and
interpreted the law on specific issues. Many other cases are pending before the courts,
instituted by third parties such as civil society organizations and individuals. Typically,
these cases have revolved around the nature and extent of county government powers vis-
à-vis national government powers, relations between the two levels of government, and the
amount of resources for devolved services, among other issues. The Court’s decisions have
a%rmed county powers in specific areas but have also dismissed cases that have challenged
the powers of the national government over some functions.
In 2013, the High Court a%rmed the power of the Nairobi County Government to revise
parking fees in the Central Business District through county legislation.295 This was after
the Taxi Association challenged the decision of the then-new county government to raise
parking fees because the action was against national legislation (The Tra%c Act).296 The
High Court, in another case, also rejected the argument that county powers in health
services were limited to those that were exercised by the defunct local authorities. The
Court held that the current constitutional dispensation provides for original constitutional
powers that are not subject to the previous constitutional order.297 The Court of Appeal
upheld the decision of the High Court regarding the power of county government over
health services.298
The courts have ruled that the Constituency Development Fund (CDF), a pre-devolution
era fund that was channeled through MPs for local service delivery, unconstitutional. The
High Court decision was challenged at the Court of Appeal and the Supreme Court.
The Supreme Court eventually upheld the decision of the lower Court declaring CDF
unconstitutional because it infringed on county government functions.299 The CDF
continues to be administered under another law that was enacted by Parliament (different
from the one that was challenged for unconstitutionality).300
294
Transition Authority, ‘Report on the status of devolution: Achievements, challenges, and lessons learnt’ (June 2015) at p.9.
295
In Nairobi Metropolitan PSV SACCOs Union Ltd and 25 others v County Government of Nairobi and 3 others [2014]
eKLR.
296
Tra%c Act, cap. 405 Laws of Kenya.
297
Okiya Omtata Okoiti and another v Attorney General and six others [2014] eKLR.
298
Okiya Omtata Okoiti and another v Attorney General and six others [2014] [2014] eKLR.
299
Institute for Social Accountability & another v National Assembly & 3 others & 5 others (Petition 1 of 2018) [2022] KESC
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39 (KLR) (8 August 2022)

300
The National Government (Constituencies Development Fund) Act of 2015; the 2015 law was subsequently challenged in
Court, but there is a court decision yet.

50
The courts have also a%rmed county powers over liquor licensing,301 power to hire teachers
for Early Childhood Education,302 powers to levy a service charge on minerals extracted
within their counties,303 among many other functions.
Many of these cases resulted from the failure to clarify the functions of the two levels of
government to guide issues such as county and national government budgeting in sectoral
areas. The country was emerging from an era of centralized governance where most of the
resources and sectoral functions were (and most are still held) by Ministries, Departments,
and Agencies at the national level. Litigation over functions was undertaken to claim the
constitutional space of county governments in the current dispensation.

The role of IGRTC and pending issues in transition to county governance

The second phase of the transition came to an end in March 2016. By this time,
transition issues such as analysis and clarification of functions, the costing of functions,
the development of the capacity of county governments, and verification of assets and
liabilities would have been completed. However, by the time the TA wound up operations,
most issues had yet to be resolved or concluded.#
The law provided that all pending transition matters were to be transferred to the
Intergovernmental Technical Relations Committee (IGRTC).304#The IGRTC is established
to manage intergovernmental relations between the two levels of government and to act
as the secretariat of the Summit and the Council of Governors305 and is also tasked with
resolving intergovernmental disputes.
The IGRTC is in the process of completing the pending transition issues that were handed
over from the Transition Authority. The IGRTC has since published gazette notices
transferring various functions to county governments, including libraries, museums;
betting, casinos, and other gambling services; cooperatives, and disaster management.306#The
IGRTC has faced many challenges in the performance of its functions, key among them
being resources and capacity to undertake core functions that were transferred from the
Transition Authority.#
In a National Government and a County Government Summit that was held in February
2023, the IGRTC was tasked to take urgent measures to wind up all the pending functions,
including the transfer of remaining functions and the identification and verification of
assets.307

301
Meru Bar, Wines & Spirits Owners Self Help Group v County Government of Meru [2014] eKLR.
302
Kenya National Union of Teachers v Attorney General & 4 others [2016] eKLR.
303
Base Titanium Limited v County Government of Mombasa & another [2018] eKLR.
304
Section 12(b) Intergovernmental Relations Act.#
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305
Section 12 (a) and (b) Intergovernmental Relations Act.
306
Legal Notices 85 of 2021, 86 of 2021, and 142 of 2019.#
307
Communique of the National and County Government Coordinating Summit (February 2023).#

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 5.4 Conclusion
The 6-year transition period in two phases (2010-2013, 2013-2016) was significant for
ensuring that devolved governance is rooted in Kenya’s constitutional governance. The
devolved system of government required a fundamental change from the governance
arrangement that existed before 2010. In many cases, this required building new institutions,
with the caution that such processes should maintain the delivery of essential services.
While the processes still need to be completed, the milestones achieved during the
transition and the setting up service delivery systems have enabled county governments to
deliver services. They are starting to impact the lives and livelihoods of the people. The next
chapter describes county governments’ successes and emerging impact.
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52