Governors are accountable for the entire process of procuring goods and services in their counties and must ensure compliance with procurement laws, the High Court has ruled.
A three judge bench of Justices Jacqueline Kamau, William Musyoka, and Alice Bett were categorical that governors bear ultimate responsibility for compliance with the Public Procurement and Asset Disposal (PPAD) Act.
Since governors have supervisory powers over County Executive Committee (CEC) members in charge of finance, the court held, they are directly accountable for the procurement of goods and services in their counties.
At the same time, the court affirmed that Senators are entitled to request and access information on county operations and transactions, with county governments under a legal obligation to provide such information.
In a ruling on a petition filed in April 2024 by Busia Senator Okiya Omtatah against Governor Paul Otuoma, a three-judge bench held that information should be supplied promptly and at no cost, as provided for under the Access to Information Act.
“The answer to the question as to whether the first respondent (Governor Otuoma) was primarily responsible for ensuring that the County Executive complied with the PPAD Act was in the affirmative,” the court ruled.
“In his capacity as county governor of Busia, the first respondent was responsible for ensuring that county financial resources were managed effectively and efficiently,” the judges added.
The decision, observers say, closes the window for governors to dissociate themselves from questionable procurement deals, strengthening oversight in Kenya’s devolution system.
Right to access information
“Whether as a Senator or as a private citizen, the petitioner had a right to inquire into the dealings of the county government, and the respondents had a legal obligation to supply the information requested,” they stated.
The landmark ruling sets a new precedent in Kenya’s devolved governance, where Senators and Governors have repeatedly clashed over oversight powers.
The judges further ruled that the purpose for which information is sought should not determine whether it is released.
“The information sought ought to have been availed to him. The issue of the purpose for which he was seeking the information would be neither here nor there,” the court said.
The case arose from a dispute between Senator Omtatah and Governor Otuoma over county expenditure on the Busia Trailer Park at Mundika and the distribution of new trading kiosks. The senator sought documents on tendering, procurement processes, the demolition of old stalls, and designs for new ones, arguing that the information was critical for public accountability.
Governor Otuoma, however, maintained that he had not denied the senator access to information, arguing that the documents could be obtained through the Senate Public Accounts Committee. He further claimed some information was exempt from disclosure under the Public Procurement and Asset Disposal Act and the Access to Information Act.
But the judges dismissed this argument, holding that every Kenyan has the right to access information from a public entity, unless it falls within narrowly defined exceptions—such as matters of national security, judicial independence, safety of individuals, or sensitive commercial interests.
“The information, as sought by the petitioner, was for the benefit and protection of the public,” the court ruled.
The bench went further to declare that governors are, by law, the ‘Access to Information Officers’ of their respective county governments.
“By virtue of being chief executive officers under Article 179(4) of the Constitution, governors have additional functions under the Access to Information Act, which they may delegate to another officer in the county,” the court said.
