GAZETTE NOTICE NO. 1609
THE CONSTITUTION OF KENYA
THE INTERGOVERNMENTAL RELATIONS ACT
(No. 2 of 2012)
TRANSFER OF FUNCTIONS
IT IS notified for the general information of the public that pursuant to Article 187 of the Constitution as read with section 26 of the Intergovernmental Relations Act, 2012, Nairobi City County Government has transferred certain functions to the National Government vide the Agreement set out in the Schedule.
THE NATIONAL GOVERNMENT
THE MINISTRY OF DEVOLUTION AND THE ASALs
THE NAIROBI CITY COUNTY GOVERNMENT
DEED OF TRANSFER OF FUNCTIONS FROM THE NAIROBI
CITY COUNTY GOVERNMENT TO THE NATIONAL
THIS Deed of Transfer is made on this 25th day of February two thousand and twenty.
BY AND BETWEEN
(a) The National Government of the Republic of Kenya, through the Ministry of Devolution and the ASALs (“the National Government”) on the first part; and,
(b) The Nairobi City County Government, (“the County Government”) whose registered office is at City Hall, off City Hall Way, Nairobi on the other part.
(Each a “Party” and together the “Parties”)
RECITALS AND DECLARATION OF COMMON INTENT
WHEREAS, the Constitution of Kenya, 2010 established a devolved structure of Governance with a service-centric approach, in which the sovereign power of the people of Kenya is exercised at two levels, being the National Level and the County Level (collectively the “Government of the Republic of Kenya”);
WHEREAS, the Principles of Executive Authority set out under Article 129 of the Constitution require that Executive Authority at both levels of Government be exercised in a manner that serves the best interest, well-being and aspirations of the People of Kenya;
WHEREAS, the Principal Object of Devolution is set-out under Article 174 of the Constitution as being: “to promote democratic and accountable exercise of power, to foster national unity by recognizing diversity and to give powers of self-governance to the people and enhance the participation of the people in exercise of the powers of the state and in making decisions affecting them”;
WHEREAS, Article 189 of the Constitution, sets out the structure for co-operation between the National and County Governments; with Government at either level being required to perform its functions and exercise its powers in a manner that respects the functional and institutional integrity of the Government at the other level, and respects the constitutional status and institutions of Government at the other level;
WHEREAS, it is the shared aspiration of all Kenyans for their Government to operate in an effective, transparent and accountable manner with respect to the delivery of public goods and services;
WHEREAS, it is the solemn duty of the Government to guarantee reasonable access to all public goods and services in all counties and in every part of the Republic;
WHEREAS, Article 186 of the Constitution, as read with the Fourth Schedule of the Constitution, sets out functions of County Governments to include: County Health Services, Control of Air Pollution, Control of Noise Population, Prevention of Public Nuisance, Regulation of Public Entertainment, County Transport, Trade Development, County Planning and Development, Pre-primary Education, Village Polytechnics, Firefighting Services, and Disaster Management and Control of Drugs;
WHEREAS, Nairobi City is the seat of the Government of Kenya and the Nation’s Capital City;
WHEREAS, Nairobi City is also the largest commercial hub in East and Central Africa, and home to over 4 million persons;
WHEREAS, the Nairobi City County Government seeks to foster its effectiveness in the delivery of the public good; and is considering mechanisms of embedding operational enhancements that would make the County Government better able to deliver on its constitutional mandate;
WHEREAS, the Nairobi City County Government is conscious of its internal constraints as to the effective discharge of its functions;
WHEREAS, the Nairobi City County Government recognizes that in light of the scope of the devolved functions, some of the functions currently vested in the Nairobi City County Government would be more effectively performed and exercised by the National Government;
WHEREAS, and to enhance delivery of the public good, the Nairobi City County Government is desirous of transferring to the National Government the functions set out in Article 3 of this Deed of Transfer of Functions;
WHEREAS, the National Government is desirous of accepting the transfer to the National Government of the functions set out in Article 3 of this Deed of Transfer of Functions from the Nairobi City County Government; and it has the requisite capacity and competence to perform the transferred functions:-
NOW THEREFORE, having considered the above, the Parties enter into this Deed of Transfer of Functions and solemnly agree as follows:
ARTICLE 1: DEFINITIONS
1.1 The following expressions (save where the context requires otherwise) bear the following meanings:-
1.1.1 References to an Article are (unless the context otherwise requires) to an Article respectively of this Deed of Transfer of Functions;
1.1.2. Words importing the singular meaning where the context so admits include the plural meaning and vice versa;
1.1.3. The Article and paragraph headings are for reference purposes only and shall not affect the interpretation of this Deed of Transfer of Functions.
ARTICLE 2: PRINCIPAL OBJECTS
The principal objects this Deed of Transfer of Functions are:
2.1 To give full effect of the benefits of the devolved and decentralized governance to the residents of Nairobi City County; and,
2.2 To anchor the framework of the transfer of certain functions from the Nairobi City County Government to the National Government.
ARTICLE 3: THE SCOPE OF THE FUNCTIONS TRANSFERRED TO THE NATIONAL GOVERNMENT
The Nairobi City County Government unequivocally transfers the following functions to the National Government:
3.1 County Health Services;
3.2 County Transport Services;
3.3 County Planning and Development Services; and
3.4 County Public Works, Utilities and Ancillary services. ARTICLE 4: PERFORMANCE STANDARDS AND REPORTING
In furtherance of the principles of good governance that require accountable and transparent management of public affairs, the performance of the transferred functions shall be undertaken in keeping with the guidelines set out herein after:
4.1 The Parties will harmonize the relevant sector performance contracts and service delivery indicators, as adopted by the respective governments herein and relevant departments;
4.2 There shall be an annual report tabled before Parliament and the Nairobi City County Assembly on the implementation of this Agreement;
4.3 Pursuant to Article 189(2) of the Constitution, the Parties may form joint committees for the better performance of this Agreement; and
4.1 The National Government and Nairobi City County Government may enter into sector specific service-level agreements and/or Memoranda of Understanding to guide and achieve better performance of this agreement.
ARTICLE 5: FINANCING THE DELIVERY OF THE TRANSFERRED FUNCTIONS
The financing of the delivery of the transferred functions shall be undertaken as follows:
5.1 Financing for the functions herein shall be drawn from either or both the Consolidated Fund and the County Revenue Fund;
5.2 The Nairobi City County Government shall ensure that the transferred functions are fully funded from the County Revenue Fund;
5.3 The level of funding for each transferred function shall be determined by the National Government in consultation with the County Government, but in any case the budgetary allocation shall not be less than the amount last appropriated by the County Assembly in the preceding financial year;
5.4 The National Government shall have the responsibility of collecting and remitting all revenue accruing from the transferred functions herein;
5.5 For the purposes of general co-ordination of revenue collection, the Nairobi City County Government appoints Kenya Revenue Authority (KRA) as the principal agent for overall revenue collection;
5.6 The relevant human resources for the implementation of this agreement shall be seconded from the County Government to the National Government; and
5.7 The County Public Service Board shall, in consultation with the Public Service Commission, formulate the necessary instruments to facilitate the secondment and/or deployment of the necessary human resources.
ARTICLE 6: CAPACITY BUILDING FRAMEWORK
6.1 The National Government shall carry out a comprehensive capacity assessment in line with Article 190 of the Constitution, as read with section 121 of the County Governments Act, 2012; and,
6.2 In addition to the capacity building measures identified in the Capacity Assessment Review Report (CARPS), the Parties shall develop a capacity building programme based on 6. 1 above.
ARTICLE 7: EXECUTION OF THE TRANSFERRED FUNCTIONS
7.1 The National Government shall prescribe and establish an institutional framework for the execution of the transferred functions.
ARTICLE 8: REVIEW CYCLE
8.1 The Parties shall review the performance of the transferred functions annually.
ARTICLE 9: DURATION AND TERMINATION
9.1 This Deed of Transfer shall become effective 21 (twenty one) days from the date of execution and shall remain in force for an initial renewable period of 24 months from the date of execution.
9.2 This Deed of Transfer of Functions may only be terminated by the mutual written consent of both Parties expressed in a common document.
ARTICLE 10: GENERAL
10.1 This Deed of Transfer of Functions shall be notified to the Nairobi City County Assembly pursuant to Section 26(6) of the Intergovernmental Relations Act and shall in the meantime be subjected to public participation.
10.2 This Deed of Transfer of Functions, together with any amendments as may be necessitated by public participation, constitute the entire Agreement between the Parties. Both parties acknowledge that they have not entered into this Agreement in
reliance wholly or partly on any statement or representation made by the other except as contained or referred to herein.
10.1 No variation or addition to this Agreement and no waiver of any provision shall be valid unless in writing signed by a duly authorized officer of both of the parties. In the event of a variation or addition, all the terms of this Agreement shall apply to such variation or addition except as may otherwise be expressly provided therein.
10.2 No forbearance or indulgence by either Party in enforcing any term or condition of this Agreement shall prejudice or restrict that Party’s rights or powers under this Agreement and no waiver of any breach shall operate as a waiver of any subsequent or continuing breach.
10.3 Any written notice to be given under the terms of this Agreement may be delivered by hand delivered to:
10.3.1 In the case of Ministry Cabinet Secretary
Ministry of Devolution and the ASALS The National Treasury
(Marked 'URGENT'); and,
10.3.2 In case of the County County Secretary Nairobi City County City Hall
10.6 This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each Party hereto and expressed in a common document.
ARTICLE 11: GOVERNING LAW AND DISPUTE RESOLUTION
11.1 This Deed of Transfer of Functions shall be governed by and construed in accordance with the Laws of Kenya.
11.2 In the event of a dispute between the Parties herein arising from a matter provided for, governed by or arising out of this Agreement, the Parties shall at the first instance endeavour to resolve the dispute amicably through negotiations, but if the dispute is not resolved amicably within 30 days from the date one Party notifies the other of the dispute in writing, the Parties shall refer the dispute to the National and County Governments Co-ordinating Summit.
IN WITNESS whereof this Deed of Transfer has been executed by the duly authorized representatives of the parties the day and year first written above.
Signed By EUGENE WAMALWA
duly authorized: CABINET SECRETARY, MINISTRY OF DEVOLUTION AND THE ASALS
In the presence of: PAUL KIHARA KARIUKI,
SIGNED BY MIKE MBUVI SONKO
duly authorized Signatories for
NAIROBI CITY COUNTY GOVERNMENT
AG. COUNTY SECRETARY
In the presence of SIMON L. MORINTAT
Dated the 25th February, 2020.
Cabinet Secretary for Devolution and the ASALs