The office of the Attorney General has dismissed as fake an alert doing rounds on social media, and also reported by a section of the media, that the Nairobi Metropolitan Services (NMS) has been declared unconstitutional by the High Court.
While reacting to the fake reports, Solicitor General Kennedy Ogeto said the allegations that the Major General Mohamed Badi-led entity was illegal, are untrue and unfounded.
"The attention of this office has been drawn to reports circulating on various social media and mainstream media platforms alleging that NMS has been declared unconstitutional by the courts," reads a statement by Mr Ogeto.
"We wish to state, for the record, that the said allegations are untrue and unfounded. We also call upon the media to exercise utmost responsibility and diligence by verifying the accuracy of information before disseminating the same to the public so as to avoid making misleading reports," added the statement.
He clarified that the legality of NMS was challenged by activist Okiya Omtatah last year where a judgment on the same was delivered in September, 2020.
Consequently, the matter was settled when the Employment and Labour Relations Court found that NMS was properly and lawfully established vide Executive Order No 3 of 2020 and the Nairobi County Assembly was in the process leading to the establishment of NMS in accordance with the law.
In this regard, he said, NMS remains a lawfully established entity of the national government charged with carrying out functions transferred by the Nairobi County government to the national government through the Deed of Transfer signed on February 25, 2020.
"In paragraph 84 of the judgment, the Court stated that the declaration of the illegality of the Nairobi Metropolitan Services as created is now lifted," said the solicitor general.
"As the office mandated by the Constitution to represent the national government in court, we wish to confirm that we are not aware of any decision declaring NMS unlawful, for whatever reason," he added.
The judgment followed a June 2020 order by the High Court giving parties involved in the transfer of functions process 90 days to regularise the takeover, setting September 18, 2020 as the deadline for the regularisation of the Deed of Transfer of functions.
NMS came into existence on March 18, 2020 as a consequence of the Deed of Transfer of functions to take over four county functions of health, transport, planning and management, and public works and ancillary services transferred to the National Government.
However, Mr Omtatah quickly moved to court challenging the legality of NMS arguing that the county assembly was not involved in the process.
In the case filed at the Labour and Employment Court, he questioned the creation of the entity, the transfer of functions to the body and the manner in which officers were transferred to serve in it.
Mr Omtatah argued that the transfer of 6,052 employees to NMS was unlawful, as it could not have been done without the assent of the Nairobi County government through the County Public Service Board, and it did not comply with section 73(4) and 73(5) of the County Governments Act.
In May the same year, the Law Society of Kenya (LSK) President Nelson Havi said NMS is not a legal entity as it does not meet the criteria of a public office.
Mr Havi was responding to a request by NMS deputy director-general Enosh Onyango for LSK to nominate an advocate of the High Court to be a member of a soon-to-be-formed NMS Physical and Land Use Planning liaison committee.
Legitimate legal foundation
In the May 15, 2020 letter, Mr Havi declined the request arguing that since the establishment of NMS lacked any legitimate legal foundation, they cannot nominate any of its members to serve in the liaison committee.
This, he said, is because there is no statutory instrument establishing NMS and therefore it is not a body established or recognised by law.
The LSK boss further pointed out that there is no publication of any statutory instrument prescribing and establishing NMS as an institutional framework pursuant to Article 7.1 of the Deed and made in accordance with provisions of the Statutory Instruments Act, 2013.
Article 7.1 of the Deed stipulates that the National Government shall prescribe and establish an institutional framework for the execution of the transferred functions.
But in a judgement delivered in September last year, Justice Hellen Wasilwa ruled that NMS was properly created.
President Uhuru Kenyatta moved with speed by amending Executive Order No.1 of 2020 putting NMS as one of the offices under the Executive Office of the President, legally recognising the new outfit as a public office and therefore a legal entity.
Since its creation by President Uhuru Kenyatta, NMS has been a thorny issue in the politics of the capital, and ended up playing a critical role in the impeachment of former governor Mike Sonko.
Sonko had complained that NMS and some State officers were committing illegalities in the implementation of the Deed of Transfer, which he had signed.
On various occasions, he had threatened to terminate the deal after he declined to approve the transfer of funds to the entity.
He once declared a dispute in the implementation of the Deed, but was removed from office before the matter was heard.