Law enforcement in Nairobi County was dealt a blow for the third day on Tuesday as the city prosecutor's office and the judiciary locked horns over the transfer of cases from the city courts to the Milimani courts.
At the heart of the dispute is the revenue sharing formula between the two entities.
The move has left the municipal prosecution team jobless after the city magistrate, Leah Gichera, made changes that required all cases to be transferred to Milimani courts.
According to a notice issued on September 28, the magistrate said that as of October 2, all pleas will be registered at the Milimani Law Courts County Registry.
"County pleas will now be taken by the County Magistrate Pleas Court No.23 Milimani Law Courts. Cash bail and fines will be paid at the Milimani Law Courts upon issuance of an invoice at the Milimani Law Courts County Registry counter," the magistrate said in a notice posted on the notice board.
However, the move was protested by the public prosecutor's office, which accused the magistrate of implementing the changes without consulting them.
The prosecutors said they had been working smoothly in the city court without any problems and that the magistrate, who was appointed three months ago, was acting on his own.
They were shocked by the move, saying that it is the Nairobi County Assembly that makes the laws that govern day-to-day operations, and that transferring cases to Milimani would jeopardise the functioning of the devolved unit.
"As prosecutors, we are confused as to whether we should go to Milimani or not because we're not employees of the judiciary and this has been our place of work for years," said one of the prosecutors, who spoke on condition of anonymity.
According to the prosecution team, about 250 cases are brought before the municipal court every day, most of them minor, which are always dismissed immediately and the offenders are fined before being released.
Ms Christine Ireri, the acting district attorney, said offenders arrested on Friday had to be released because there was no magistrate.
She complained that there was no clarity on how minor cases would be transferred to Milimani courts and how fines would be collected.
"We got a notice from the court registry, a notice that was posted on Friday. There was no formal notification of the court where the perpetrators would be charged. There was not enough information," Ms Ireri said.
The County Attorney also expressed optimism that Governor Johnson Sakaja and Chief Justice Martha Koome would quickly resolve the impasse so that the smooth running of the county could continue.
"Nairobians appreciate that we have a court. The City Court was established to create law and order in the city and given the unique status of the county, this court has played a big role in maintaining law and order."
Tensions between the two date back to 2016, when the counties and the judiciary agreed on a formula for sharing revenue collected by the City Court, but this has not been implemented for years.
The counties now accuse the judiciary of trying to implement the agreement, which was not clear, and have faced several challenges since 2016.
According to the judiciary, the City Court deals with civil (non-criminal) cases, as opposed to criminal cases, which are handled by the national courts.
It is also supposed to deal with cases arising from violations of bylaws, in this case such as hawking in restricted areas, parking in restricted areas, vandalising county property, running illegal businesses, among others.
"They are petty offenders and we deal with compliance, if you haven't painted a building, we give you time to paint and once you have painted, we take that case to court. If a hawker is arrested for selling in the wrong place, he is arraigned and charged only Sh1,000, tell me, is that a case that needs a threshold?" the prosecutors argued.
The City Court prosecutors also argue that the move will mean that most cases or offenders arraigned in Milimani courts will take a long time to conclude, a trend they say will lead to increased non-compliance and insecurity.
"Will you start investigating a hawker? Some police cases take up to five years in court. They're putting us out of work now, they don't want us to do our job".
The County Attorney said that although City Hall and the judiciary had agreed on how to share revenues, a clear plan was still needed, which was why implementation was taking so long.
The Chief Registrar of the Judiciary, Anne Amadi, dismissed claims that the move would render the City Court inactive, saying that the courts are under the Judiciary, which decides how some courts operate.
"All courts are under the judiciary. There is no takeover by the national government...we are only dealing with cases that come before our courts and we will continue to do so," Ms Amadi said.
She also dismissed claims that transferring cases to Milimani courts would lead to lawlessness in the town, adding that law and order is the responsibility of other authorities.
Jared Akama, the chairman of the County Assembly Justice and Legal Affairs Committee (JLAC), said the move to transfer cases to Milimani courts was against devolution.
"This is a clear fight against decentralisation. The Assembly itself is a house of laws. We make the laws that govern our county. How are they going to deal with petty issues," Mr Akama said on the phone.
The move was also criticised by Makadara MP George Aladwa, a former mayor of Nairobi.
"The City Court is very important to Nairobi County and has been very convenient in resolving the petty cases of hawkers, matatu operators and others who flout the by-laws," he said.
