County Governments Have No Mandate to Establish Courts, Says Judiciary

Nairobi,

Wednesday, October 4, 2023,

KNA, by Bernadette Khaduli

The Judiciary has said that it will continue to collect fines arising from the enforcement of County legislation and remit the same to the National Treasury as mandated by law and the Memorandum of Understanding (MOU) it signed with the Council of Governors in March 2016.

Chief Registrar of the Judiciary Anne Amadi said with the establishment of the 2010 Constitution, Parliament enacted the County Governments Act, which repealed the Local Government Act that existed before the devolved system of government was established with the current constitution. 

The repealed Local Government Act had allowed local authorities to erect and maintain court houses dedicated to the enforcement of the Local Government Act and Municipal by-laws, employ staff to serve in such courts, and pay to the government the costs associated with the employment of Magistrates who preside over such courts.

It also bestowed prosecutorial powers on Town Clerks or other persons authorized by local authority to conduct prosecution in the enforcement of municipal by-laws, it also provided that half of the fines realized from the enforcement of municipal by-laws be retained by the municipal authority while the other half would be paid to the government.

She said the Judiciary reached a resolution with the Intergovernmental Budget & Economic Council (IBEC) on 31st May 2022, that the Judiciary will collect the fines until a legal framework requiring the fines to be applied differently is enacted.

Reacting to media reports regarding the Court that has been operating at City Hall, Nairobi, the Chief Registrar, clarified that the Constitution 2010 has mandated the Judiciary as the sole custodian of judicial authority.

“It is to be noted that the court system is national and that the jurisdiction of our courts covers the enforcement of all laws in Kenya, whether enacted by Parliament or County Assemblies,” she emphasized.

She further stated that following the repeal of the Local Government Act Counties no longer have the statutory mandate to establish courts to enforce their laws, nor collect and retain fines from court cases arising from the enforcement of county legislation.

“There is no statutory basis upon which fines collected by the Judiciary from the enforcement of county laws can be remitted directly to county government by the Judiciary,” stated Amadi.

She added that county staff no longer enjoy statutory prosecutorial powers as they are now bestowed to the Office of the Director of Public Prosecution.

In a press statement sent to newsrooms, Amadi said even though the administration of justice is not a devolved function, the Judiciary has received tremendous support from many county governments which have offered land, buildings, and other in-kind support to enable the Judiciary bring services closer to the people.

She said the MOU signed between the Judiciary the Council of Governors and other agencies involved in the administration of justice shared a commitment to expand access to justice within the context of devolution.

Amadi said, “Under this MOU, the Judiciary and the Council of Governors committed to overseeing the transition from local authority courts to ordinary court dealings with county matters”.

She added, “They both agreed that all revenue arising from the enforcement of county laws would be collected by the judiciary and remitted to the exchequer.”

The Chief Registrar said the Judiciary appreciates the implementation of the MOU which remains in force.

Amadi however, noted that aside from stakeholder consultations, the operation of courts by county governments and the retention of revenue realized from the enforcement of county laws by county governments has been subject to litigation in court, where she cited a court case in Mombasa.

The case in High Court Mombasa on 10th February 2022, ruled that it would be unlawful for a county government to collect revenue from a court presided over by a magistrate provided under the Constitution.

Courtesy; KNA