NMS does not meet the criteria of a public office – LSK
Operations of the newly-established Nairobi Metropolitan Services (NMS) could face legal hurdles as the new entity does not meet the criteria of a public office.
This emerged in a letter by the Law Society of Kenya (LSK) President Nelson Havi in response to a request by NMS deputy director general Enosh Onyango to LSK to nominate an Advocate of the high Court to be a member of the soon to be formed NMS Physical and Land Use Planning liaison committee.
In the letter, Havi declined the request arguing that since the establishment of NMS lacked any legitimate legal foundation, they could not 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.
“After careful consideration of the above, and in the absence of a statutory instrument establishing NMS, we have made the conclusion that NMS is not a body established or recognised in law,” said Havi in the letter dated May 15.
The LSK boss said there is not 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.
Consequently, Havi pointed out that NMS failed to meet the criteria of a public office as outlined under article 260 of the Constitution.
“The same article further outlines state offices and state organs established under the Constitution. NMS does not make the list. It is therefore imperceptible from your letter under which written law NMS is established,” he said.
He further stated that the May 4, 2020 letter by Onyango emanated from the office of the President and not from the Ministry of Devolution, which is the authorised representative of the national government under the Deed.
“The letter seems to suggest that NMS, on whose behalf you write, is the institution within which the framework of the transferred functions are to be executed. There is, however, no indication in your letter as to the process by which NMS was prescribed and established as the institutional framework in line with article 7.1 of the Deed,” said Havi.
He said that although County Planning and Development services is one of the transferred functions, but given that the establishment of NMS lacks any legitimate legal foundation, hence LSK cannot be expected to nominate any of its members to serve in the liaison committee.
“We hope that in light of the deficiencies we have identified in the manner in which NMS came into existence, you will abandon the current invalid efforts to constitute the committee,” he added.
NMS director general Mohammed Badi had on Wednesday disbanded two county committees charged with approving development plans ahead of a reconstitution.