A blow by blow account of  how
 Clerk was  tried and convicted

“ Hon. Speaker, the County Assembly
Service Board of Machakos (CASB)
is established pursuant
to Section 12 (3)(d) of the
County Governments Act, No. 17 of 2012 and Part III of the County Assembly
Services Act, No. 24 of 2017.

 The functions of the Board 
are to direct and supervise
the Assembly Service
and to ensure exemplary
delivery of service to the public in strict observance of the values and
principles of public service set out
under Article 232 (1) of the Constitution and the values and principles of governance set out under Article 10 of the
Constitution.

 Pursuant to a resolution of the Board in a meeting held on 14th November,
2023 and in line with the provisions
of Section 22 of the County Assembly Services Act, No. 24 of 2017 as read
together with Section 23 of the Act
and the other applicable laws, the Board suspended Mr. Joseph Mutisya Laban for 14 days, from discharging the duties of the office of the Clerk of the County Assembly of Machakos, as part of
a disciplinary process on grounds of:

a.       Gross misconduct or misbehavior;
b.      Incompetence;
c.       Violation of the provisions of the Constitution,
including Chapter Six of the Constitution;
d.      Violation of the provisions of the County Assembly Services Act, No. 24 of 2017.

 

The Board invited Mr. Joseph Laban Mutisya to reply to the suspension
letter that contained a schedule of
charges within 14 days and appear before the board on 28^th November,
2023 at 10:00am. However, Mr. Mutisya
did not reply to the charges nor appear before the Board as advised.

Pursuant to Section 23(2) of the County Assembly Services Act, if the
Clerk does not furnish the Board with
a reply to the charges within the period specified or if in the opinion of the
Board the Clerk fails to exculpate
himself or herself, the Board shall submit a notice of a motion to the Speaker seeking that the County Assembly
revokes the appointment of the Clerk.

Pursuant to Section 12(7) of the County Governments Act, 2012 as read together with Section 23 of the County Assembly Services Act No. 24
of 2017, a notice of motion seeking that the County Assembly revokes the appointment of the Clerk dated 28^th
November, 2023 was tabled before the House
by the Vice Chairperson, County Assembly Service Board (Annex 1) and approved on the same date recommending to the House
the Constitution of a Select
Committee of the Assembly consisting of eleven (11) members to investigate the proposed removal
from office of Mr. Joseph Mutisya
Laban from the Office of Clerk, County Assembly of
Machakos.

Pursuant to Section 23 (4) of the County Assembly Services Act, No. 24 of
2017 and upon moving and adoption
by the House of the Notice of Motion provided for under Section 23(3) of the
same Act, the Speaker referred
the matter to a Select Committee of the Assembly
consisting of eleven

(11) members and established in accordance with the Standing
Orders of the Assembly to investigate on the matter
and report back to the House within ten (10) days of receipt of the  Motion.

 The Select Committee is grateful to the Offices of the Speaker and the
Acting Clerk of the County Assembly
for the support accorded to it during the accomplishment of this duty. I wish
to express my appreciation to the Honorable Members
of the Committee and the Secretariat for their dedication and participation in this exercise.

On behalf of the Select Committee and pursuant Section 23 of the County
Assembly Services Act, 2017; it is
now my duty and privilege to present to the House, the report of the select
committee investigating the proposed
removal from office of Mr. Joseph Mutisya Laban from the position of clerk of
county assembly

 

SIGNED BY 

 

HON. NICHOLAS NZIOKA

CHAIRPERSON – SELECT COMMITTEE
INVESTIGATING THE PROPOSED
REMOVAL FROM OFFICE OF MR. JOSEPH MUTISYA
LABAN FROM THE POSITION OF CLERK OF COUNTY
ASSEMBLY

1.0  PREFACE

1.1  Establishment and Mandate of the Committee

In accordance with Section 23(4) of the County Assemblies Services Act as
read together with Standing Order
163A, a Select Committee comprising of the following members appointed on the basis of
relative majorities of the seats held
by each of the Assembly
parties was constituted:

1)                 
Hon. Nicholas Nzioka         Chairpeson

2)                 
Hon. Judas Ndawa                Vice/Chairperson

3)                 
Hon. Francis Kitaka              Member

4)                 
Hon. Mercy Njagi                 “

5)                 
Hon. Loyd Mutua                 “

6)                 
Hon. Francis Kavyu              “

7)                 
Hon. Annastacia Mutevu

8)                 
Hon. Rose Benjamin

9)                 
Hon. Justus Mutuku

10)             
Hon. Rosina Kanini

11)             
Hon. Winfred Mutua

 

The Select committee draws its mandate from Section 23 (4) of the County
Assemblies Services Act, to
investigate a notice of motion moved by the Vice-Chairperson County Assembly
Service Board, seeking that the County
Assembly revokes the appointment of the Clerk Mr. Joseph Mutisya
Laban from the Office of Clerk, County Assembly of Machakos; and report back to
the Assembly.

1.2  Committee Secretariat

The Committee was facilitated by the following secretariat members:

 

(1)              
Mr. Mathew Muange            – Head of Secretariat

(2)              
Ms. Louisa Kamau                – Senior Hansard Editor

(3)              
Mr. Brian Muthusi                – Legal Counsel I

(4)              
Ms. Susan Kiluva                  – Clerk Assistant II

(5)              
Ms. Mercy Ndambuki           – Clerk Assistant II

(6)              
Mr. Miriam Nthoki               – Commissionaire

2.0  INTRODUCTION

2.1  Background and Legal Framework

Pursuant to Section 12(7) of the County Governments Act, 2012 as read together with Section 23 of the County Assembly Services Act No. 24
of 2017, and in accordance with Standing Order
163(A) (with necessary
modifications), a notice of motion dated 28^th November, 2023 was
tabled before the House by the Vice
Chairperson, County Assembly Service Board (Annex 1) and approved on the same date recommending to the House the
Constitution of a Select Committee of the
Assembly consisting of eleven (11) members to investigate on the proposed
removal from office of Mr. Joseph
Mutisya Laban from the Office of Clerk, County Assembly
of Machakos.

Section 22 of the County Assembly
Services Act No. 24 of 2017 provides
that, the Clerk of County
Assembly may be suspended
or removed from office—

(a)         
Inability to perform the functions of the Office,
whether arising from infirmity of  body or mind;

(b)         
Gross misconduct or misbehavior;

(c)          
Incompetence

(d)         
Bankruptcy

(e)          
Violation of the provisions of the Constitution including Chapter six of the Constitution
; or

(f)           
Violation of the provisions of this Act

Section 23 of the County Assembly
Services Act No. 24 of 2017 provides
for the procedure of removal of the Clerk. It
states;

(1)  Where the Board considers it necessary to remove the Clerk
under Section 22, the Board shall-

 

a)     
Frame a charge or charges
against a Clerk;

b)      Forward the statement of the said charge or charges to the Clerk together with a brief
statement of the allegations in support of the Charges:

c)      Invite the Clerk to respond to the allegations in writing setting
out the grounds
on which the Clerk
relies to exculpate himself or herself; and

d)     
Invite the Clerk to appear before the Board, either personally or with an advocate as he or she may opt,
on a day to be specified, to exculpate himself or herself.

(2)  
If the Clerk does not furnish a reply to the charge or charges
within the period specified, or if in the opinion of the Board the Clerk fails to exculpate himself
or herself, the Board shall
submit a

notice of a motion to the Speaker seeking that the County Assembly
revokes the appointment of the Clerk

(3) 
A motion under
subsection (1) shall specify-

 

a)     
The grounds set out in section 22 in which the Clerk
is in breach; and

b)     
The facts constituting that ground

(4)  
Upon notice of the motion under subsection (2), the
Speaker shall refer the matter to a select committee
of the assembly consisting of eleven members and established in accordance with
the Standing Orders of the Assembly to investigate the matter within
ten days of receipt of the motion.

(5)   
The select committee shall, within ten days, report to
the Assembly whether it finds the allegations against the Clerk to be substantiated.

(6)  
The Clerk shall have the right to appear and be
represented before the select committee during
its investigations.

(7)  
The Assembly shall consider the report of the select
committee and resolve whether to approve the
motion.

(8)  
If the Assembly approves a motion filed under this
section, the Clerk against whom the motion was
filed shall be deemed to have been removed from Office from the date the motion
was approved.

Pursuant to Section 23 (2) of the County Assemblies Services Act as read
together with Standing Order 151, a motion was tabled
in the House Business Committee
on 28^th November,
2023 at

10.45 am and balloted
to be tabled in the House on the same
day.

The notice of motion was given on 28^th November, 2023 in the
morning sitting and the motion placed in the Order Paper for discussion on the same day 28^th November, 2023 during the afternoon sitting.

 

3.0  PREPARATIONS FOR THE INVESTIGATIONS

3.1  Election of the Chairperson and Vice Chairperson of the Select Committee

The Select Committee held its first meeting on Wednesday, 29^th
November, 2023. At the meeting, the committee
elected Hon. Nicholas
Nzioka and Hon. Judas Ndawa as the Chairperson and Vice

Chairperson respectively, after being proposed by Hon. Rosina Kanini and
seconded by Hon. Francis Kavyu.

3.2  Committee work plan

1.            
Following the election of the Chairperson and Vice
Chairperson, the Committee considered an indicative programme of events for the Committee guided by Article
196 of the Constitution and Section
23 of the County Assembly Services Act No. 24 of 2017.

2.            
Section 23 (4) and (5) of the County Assemblies
Services Act, provides that the select committee
has ten (10) days to report to the Assembly whether the allegations against the Clerk are substantiated .

3.            
The following order of
activities was adopted by the Committee;

i.           
Scrutiny and analysis
of charges

ii.           
Clarification of charges
by the mover of the motion, the Vice-Chairperson CASB,

Hon. Felix Ngui

iii.           
Hearing of Mr. Joseph Mutisya Laban

iv.           
Hearing of the Board (CASB)

v.           
Hearings of witnesses

vi.           
Report writing

vii.           
Tabling of the report
before the House

 

3.3  Invitation to appear before
the Select Committee

Section 23(6) of the same Act provides that the Clerk shall have the
right to appear and be represented before
the select committee during its investigations.

Section
18(1) of the County Assemblies Powers and Privileges Act, 2017, provides that a county assembly
or its committees may invite or summon any person to appear before it for the
purpose of giving evidence or
providing any information, paper, book, record or document in the possession or under the control of that person
and, in this respect, a County Assembly and its committees shall have the same
powers as the High Court as
specified under Article 195 of the Constitution.

Standing Order 171 of the County Assembly of Machakos Standing
Orders provides that, Committees shall enjoy and exercise all the
powers and privileges bestowed on Assembly by the Constitution and statute,
including the power to summon witnesses, receive
evidence and to request for and receive papers and documents from the
Government and the public.

Pursuant to Section 23 (6) of the County Assemblies Services Act and
Section 18 of the County Assemblies Powers
and Privileges Act, 2017 as read together
with Standing Order 171 of the

Standing Orders, Mr. Joseph Mutisya Laban was invited to appear before
the Committee on 1^st December,
2023 via a letter Ref. No. MKSCA/ADM/SELCOM/Vol.1/01 dated 29^th
November, 2023 (Annex 2). Further, the invitation letter was served to him in
person, through his last known email
address (Annex 3) and a process
server was instructed to serve the letter and do a return of service
through an affidavit of service. (Annex 4)

The Committee also invited the CASB to appear on 30^th
November, 2023 vide letter Ref. No. MKSCA/ADM/SELCOM/Vol.1/02 dated 29^th November,
2023 (Annex 5) to clarify on the charges and provide evidence on the notice
of motion tabled for the proposed removal from office of the Clerk, Mr. Joseph Mutisya Laban. The Committee invited
the CASB again via a letter Ref. MKSCA/ADM/SELCOM/Vol.1/03
dated 30^th November, 2023 (Annex
6) to appear before the committee for further
interrogation on the Charges presented.

The following
witnesses were also invited before the committee;

 

1)     
Ms. Nancy Wangai,
HOD, Supply Chain via a letter dated
1^st December, 2023,
Ref. No MKSCS/ADM/SELCOM 1/4 (Annex 7)

2)     
Mr. Justus Musuma,
HOD, Human Resources
and Administration via a letter
dated 1^st December, 2023 Ref. No MKSCS/ADM/SELCOM 1/5(Annex 8)

3)     
Mr. Shadrach Mbithi, Fiscal Analyst
via a letter dated 1^st December, 2023 Ref. No. MKSCS/ADM/SELCOM 1/6 (Annex 9)

4)      Mr. Benson Mulinge, HOD, Finance via a letter dated 1^st December, 2023 Ref. No. MKSCS/ADM/SELCOM/1/7 (Annex
10)

4.0  COMMITTEE INVESTIGATIONS.

Hon. Speaker,

Pursuant to Section 23 (6) of County Assemblies Services Act which
provides that the Clerk shall have
the right to appear and be
represented before the Select Committee during its investigations as read together with Article 50 of the
Constitution on fair hearing, the committee accorded the clerk an opportunity to appear before it on 1^st
December, 2023 at 9am to exculpate himself. However, the clerk
did not show up as expected.

The committee took note of a letter dated 30^th November, 2023 (Annex 25) presented at 12.05p.m making reference to a court order in which
the County Assembly of Machakos is not a party. The committee considered the contents of the letter and resolved
that the court order had not been directed to the Assembly and hence had no implication to the business of the Committee.

4.1  SCRUTINY AND ANALYSIS
OF CHARGES

VIOLATION OF THE PROVISIONS OF THE CONSTITUTION, THE COUNTY ASSEMBLY SERVICES ACT, NO. 24 OF 2017
AND OTHER LAWS

1. Acting without
the authority of the Board and
in breach of the Law

Hon. Speaker,

 

The first charge stated that the Clerk breached the Constitution of Kenya
and the principles of public finance,
as outlined in Section 12 of the Public Finance Management Act (PFM Act by failing to observe transparency or
responsibility and obtained an unauthorized loan facility at the State Bank of Mauritius (SBM) on 13^th
February, 2023, amounting to one hundred and fifty seven million shillings (Kshs.
157,000,000) without authority from either the Assembly Service Board and approval of County Assembly
which exposed the Assembly to a huge liability.

Evidence

In support
of the allegations, the Mover of the motion made reference to the following
documents which were provided
before the committee;

 

i.            
Letter from the Clerk dated February
13^th 2023 requesting SBM Bank a facility
of one hundred and eighty two million, seven hundred and twenty
thousand shillings (Kshs.182, 720,000)
to facilitate the disbursement of Loans/Motor Vehicle Reimbursement Benefit to
the Members of County Assembly. (Annex
11)

ii.           
Letter from SBM bank dated
16^th March, 2023 approving a loan of one hundred and fifty seven zmillion shillings (Kshs. 157,000,000) to the
County Assembly. (Annex
12)

iii.            
Letter from SBM bank dated 14^th June, 2023
giving the details and the status of repayment of loan advanced to Machakos
County Assembly(Annex 13)

Committee observations

1.      The
committee observed that the Clerk had indeed written a letter dated 13^th
Feb, 2023 requesting SBM bank for a loan and the bank responded
approving a loan of Kshs 157,000,000

2.      The bank in a letter dated 14^th June, 2023,
wrote to the clerk with concern that they were yet to
receive payment instalments and that the facility was in arrears of fifty six million, seven hundred and fifteen thousand shillings (Kshs
56,715,000)

Committee findings

Section 17 (1) (e) of the County Assemblies Services Act, 2017 provides
that the Clerk as the Secretary of the Board is responsible for-

i.            
The execution of the decision
of the Board; and

ii.           
Assignment of duties
and supervision of the
staff of the Board;

 

Article 212 of Constitution as read together
with Section 140 to 142 of the Public Finance
Management Act No. 18 of 2012 and Part XIV of PFMA regulations provide
for the obligations and restrictions with respect to County Government borrowing and borrowing
by County Government entities respectively.

Article 212 provides that a County Government may borrow only-

a)      If the National Government guarantees the loan;
and

b)     
With the approval of the County
Government Assembly

 

Section140 of the Public Finance Management Act No. 18 of 2012 on
authority for borrowing by county governments provides;

(1)  
A County Executive Committee member for finance may,
on behalf of the county government, raise
a loan for that Government’s purposes, only if the loan and the terms and
conditions for the loan are set
out in writing and are in accordance with—

(a)  Article 212 of the Constitution;

 

(b)  sections 58 and 142 of this Act;

 

(c) 
the fiscal responsibility principles and the financial
objectives of the county government set out
in its most recent County Fiscal Strategy Paper; and

(d)  the debt management strategy of the county government over the
medium term.

 

(2)  A loan may be raised
either within Kenya or outside Kenya.

 

Section141 on obligations and restrictions with
respect to county government
borrowing provides;

 

(1)  
In borrowing money, a county government shall ensure
that its financing needs and payment obligations
are met at the lowest possible cost in the market that is consistent with a
prudent degree of risk, while ensuring that the overall level of public debt is sustainable.

(2)   
A county government may borrow money only in
accordance with this Act or any other legislation and shall not exceed the limit set by the county assembly.

(3)  A county
government may borrow money in accordance with section 58, and only for
purposes that are prescribed
by regulations made under this subsection.

(4)   
A public debt incurred by a county government is a
charge on the County Revenue Fund, unless
the County Executive Committee member for finance determines that all or part
of the public debt that would
otherwise be a charge on that Fund shall be a charge on another public fund established by that county government or any of its entities.

(5)  The County
Executive Committee member for finance shall pay the proceeds of any loan
raised under this Act into the
County Revenue Fund or into any other public fund established by the county government
or as the County Executive Committee member for finance
may determine.

(6)  
A County Executive Committee member for finance may
establish such sinking fund or funds for
the redemption of loans raised under this Act for the purposes of the county
government or any of its entities as the County Executive
Committee member for finance considers necessary.

(7)    
A County Executive
Committee member for finance may in accordance with national legislation on public procurement
and disposal of assets—

(a)  appoint advisers, agents and underwriters
for the purposes of raising loans;
and

 

(b)    
enter into agreements
with those advisers,
agents and underwriters as to the role to be undertaken by them and the remuneration to be paid to them.

(8)   
Any expenses incurred
in connection with borrowing by a county
government shall be a charge—

(a)  on the County Revenue Fund; or

(b)  
on such other county public fund established by the
county government or any of its entities as the County Executive Committee
member for finance
may determine in accordance with regulations approved by the county assembly.

(9)  
The costs, interests and principal payments made by
the national government on behalf of the county
concerning loans to the county government shall, together with the principal
amount, be reimbursed to the
national government by the county government.

Section142 on borrowing by county government
entities provides;

 

(1)  
The County Assembly may authorise
short term borrowing
by county government entities for cash
management purposes only.

(2)  
Any borrowing under
subsection (1) may not exceed five percent
of the most recent audited
revenues of the entity.

(3)  
A county government
entity that has any such borrowing shall ensure that the money borrowed is repaid
within a year from the date on
which it was borrowed.

Hon Speaker, based on the availed evidence,
the committee noted there were no documents showing
that the County Assembly had approved any borrowing as provided in law.

There was no
resolution of the County Assembly Service Board on such borrowing.

The Committee therefore
finds this Charge to have been substantiated that the Clerk single handedly, without a resolution of CASB
and the approval of the Assembly, borrowed one
hundred and eighty two million,
seven hundred and twenty thousand shillings (Kshs182,720,000) but the bank approved one hundred and fifty
seven million shillings (Kshs 157,000,000) which was disbursed into the fund.

2.  Breach of procurement law and processes

Hon Speaker,

The second charge stated that the Clerk single-handedly sourced a Third-Party
insurance cover for the Assembly
motor vehicles without due procurement procedures contravening Section 149
(2d), the Accounting Officer is obligated to ensure that all contracts
entered into are lawful and should be complied with. This responsibility is
further outlined in Section 44 of the Public Procurement and Asset Disposal Act, 2015 (Rev. 2022). Further, Section 103
of the Public Procurement and Asset Disposal
Act, 2015 (Rev.
2022) outlines conditions where a public
entity may engage
in

direct procurement of goods and services. Section 104 of the same Act outlines
the procedure with respect to direct procurement.

Evidence

 

In support of the allegations, the Mover of the motion made reference to and provided
the following documents;

i.            
A show cause Letter from the Clerk to Nancy Wangai
dated 29^th August, 2023 in regard to procurement of a Third-Party Insurance Cover for the Assembly
motor vehicles. (Annex 14)

ii.           
Letter from Nancy Wangai to Clerk dated 8^th
September, 2023 responding to the Clerk on purchase of Third Party Insurance. (Annex 15)

iii.            
Quotation for third party Insurance from Madison
General Insurance Kenya LTD for 10 vehicles (Annex
16)

iv.           
Payment voucher from the County Assembly of Machakos
to Madison General Insurance Kenya dated 27^th June, 2023 (Annex 17)

v.           
Third Party Insurance Certificates from Madison
General Insurance Kenya LTD. (Annex 18)

vi.            
Internal Memo from HOD-Human Resource and
Administration to the Clerk dated 27^th June, 2023 (Annex 19)

Witnesses Testimonies

Mrs. Nancy Wambui
Wangai, HOD-Supply Chain

 

Mrs. Nancy
Wangai indicated to the committee that she became aware that there was a
third-party cover that had been
purchased when she was served with a show cause letter and that she did not know who had purchased the third-party insurance cover.

Mr. Benson Mulinge
Mutua- HOD-Finance

The Head of Finance made it clear in his submissions that the procurement
process had not been followed in this
particular case due to its unique circumstances. Specifically, there was a
running contract on the same that was
set to expire on June 30th, and since the other evaluation for comprehensive insurance had not been
completed by then, he decided to rely on the instruction from the Clerk to process the payment because the insurance
covers needed to be in place in order to facilitate
the movement of the vehicles.
Although it was improper, this was essentially the main factor taken into account when processing the payment, and the primary
objectives were to allow the vehicles’
movement for a month
until the procurement of a comprehensive cover is finalized.

 Mr. Justus Musuma- HOD, Human Resource and Administration

 The Head of Human Resource and Administration, in his oral
submission, confirmed that under the directions of the Clerk, he wrote a memo requesting an amount of Kshs 44,700 for payment of a third
party cover for the vehicles. This memo was consequently approved by the Clerk.

Committee Observations

 .            
That third party insurance cover was purchased on 27^th
June, 2023 for all the 10 vehicles of the
County Assembly and Certificates of Insurance commencing on 1^st July
2023 and expiring on 31^st July, 2023 were provided
as evidence. (Annex 18)

ii.           
That the payment of the Insurance was authorized by
the Clerk as the Accounting Officer. (Annex
19)

Committee Findings

The committee
confirmed that the Third Party Insurance Cover was purchased
for the Assembly  vehicles.

Section 149(1)
of PFM Act provides that an accounting officer is accountable to the county 
assembly for ensuring that the resources of the entity for which the
officer is designated are used in  a
way that is— (a) lawful and authorized; and (b) Effective, efficient,
economical and transparent. Section 149 (2d) of PFM Act provides that the Accounting Officer is obligated
to ensure that all contracts entered into are lawful and should be complied with.

Section 44 of the Public
Procurement and Asset Disposal Act, 2015 (Rev. 2022) provides that an accounting officer of a public entity
shall be primarily responsible for ensuring that the public entity
complies with the Act

Section 103 (2) of Public Procurement and Asset Disposal Act, 2015
provides that a procuring entity may use
direct procurement if any of
the following are satisfied—

i.               
the goods, works or services are available only from a
particular supplier or contractor, or
a particular supplier or contractor has exclusive rights in respect of the
goods, works or services,
and no reasonable alternative or substitute exists;

ii.               
due to war, invasion, disorder, natural disaster or
there is an urgent need for the goods, works
or services, and engaging in tendering proceedings or any other method of procurement would therefore be impractical, provided
that the circumstances giving

rise to the urgency were neither foreseeable by the procuring entity nor
the result of dilatory conduct on its part;

iii.               
owing to a catastrophic event, there is an urgent need
for the goods, works or services, making it impractical to use other methods of procurement because
of the time involved in using
those methods;

iv.               
the procuring entity, having procured goods,
equipment, technology or services from a supplier
or contractor, determines that additional supplies shall be procured from that supplier
or contractor for reasons of standardization or because of the need for compatibility with existing goods, equipment, technology or services, taking into account the effectiveness of the
original procurement in meeting the needs of
the procuring entity, the limited
size of the proposed procurement in relation to the original
procurement, the reasonableness of the price and the unsuitability of alternatives to the
goods or services in question;

v.               
for the acquiring of goods, works or services provided
by a public entity provided that the acquisition
price is fair and reasonable and compares well with known prices of goods,
works or services in the circumstances.

Section 103 (3) of the Public Procurement and Asset Disposal Act, 2015
provides that, a public officer who
contravenes the provisions of subsection (2) commits an offence.

Section 104 (2) of Public Procurement and Asset Disposal Act, 2015
provides that an accounting officer of a procuring
entity shall adhere to the following procedures with respect to direct procurement—

(a)      
Issue a tender document which shall be the basis of tender preparation by tenderer and subsequent negotiations.

(b)       appoint an ad hoc evaluation committee pursuant to section 46 to negotiate with a person for the supply of goods, works or non-consultancy services being provided;

(c)       
ensure appropriate approvals under
this Act have been granted;

(d)      
ensure the resulting
contract is in writing and signed by both parties

 

Section 15 of the Public Officers
Ethics Act No. 4 of 2003 states that a public officer shall take all reasonable steps to ensure that property
that is entrusted to his care is adequately protected and not misused or misappropriated and that a
person who contravenes Section 15 (1) of the Act shall be personally liable for losses resulting from the contravention

In view of the above provisions, the Committee noted that the Clerk
contravened Sections 149 (1) and (2d)
of PFM Act and Section103 (2) and 104 (2) of Public Procurement and Asset
Disposal Act, 2015 as well as Section
15 of the Public Officers Ethics Act No. 4 of 2003 and therefore found the charge to have been substantiated for failing to safe
guard the property of the Assembly.

3.  Amendment of the Budget
without Approval of the County
Assembly

Hon. Speaker,

The Clerk is charged with altering an Appropriations Act and a proposed
County Budget without the authority
of the Assembly. In particular, the Machakos County Appropriation Act (No.2) of 2023 was
altered without the approval of the Assembly.

The same was passed on 20^th June 2023, but as a result of the
amendments, which were done without
following due process, the Governor was forced to bring a memorandum to the
Assembly which led to delays in implementation of the County programmes,
as the memorandum was considered
in a special sitting held on 12^th July, 2023, way past the expected
deadline of 30^th June 2023,
as prescribed in Law. This amounts to gross misconduct and violation of the
provision of the Constitution of Kenya,
including Chapter 6 on leadership and integrity.

Evidence

In support of the
allegations the following evidence
was provided;

i.            
Hansard report dated 20^th June, 2023 presenting the tabling and approval of the Machakos
County Appropriation Bill,
2023 (Annex 20)

ii.           
Hansard   report    dated   12^thJuly,2023    presenting    a    communication    on Governor’s memorandum to the
Machakos County Appropriation
Bill, 2023 (Annex 21)

iii.            
Machakos County Appropriations Act, 2023 dated 17^th July, 2023 (Annex 22)

iv.            
Hansard report dated 23^rd May, 2023
presenting the tabling and approval of the Machakos County Supplementary Appropriation Bill (No 2), 2023 (Annex 23)

v.           
Machakos County Supplementary Appropriation Act No. 2
of 2023 dated 12^th June, 2023 (Annex 24)

Witness testimony

The County Assembly
Service Board clarified
that the Machakos
County Appropriation Act (No.2)
of 2023 as captured in the schedule of charges was in error and that the charge
referred to the Machakos County Supplementary Appropriation Act No. 2 of 2023.“