Point in Time
Act No: No. 18 of 2012
Act Title: PUBLIC FINANCE MANAGEMENT
[ Date of commencement: 27th August, 2012. ]
[ Date of assent: 24th July, 2012. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title and commencement
(1)

This Act shall be cited as the Public Finance Management Act, 2012.

(2)

Subject to Article 116(3) of the Constitution, all provisions relating to county governments under this Act shall come into operation upon the final announcement of the results of the first elections under the Constitution.

2.
Interpretation
(1)

In this Act, unless the context otherwise requires—

“accounting officer” means—

(a)

an accounting officer of a national government entity referred to in section 67;

(b)

an accounting officer of a county government entity referred to in section 148;

(c)

in the case of the Judiciary, the Chief Registrar of the Judiciary; or

(d)

in the case of the Parliamentary Service Commission —

(i)

the Clerk of the Senate in respect of the Senate;

(ii)

the Clerk of the National Assembly in respect of the National Assembly; and

(iii)

such other officer in the parliamentary service in respect of any other office in the parliamentary service as the Cabinet Secretary shall, upon resolution by the Commission, designate, within fourteen days of the resolution;

“Accounting Standards Board” means the Public Sector Accounting Standards Board established under section 192;

“appropriation” means—

(a)

authority granted by Parliament to pay money out of the Consolidated Fund or out of any other public fund; or

(b)

authority granted by a county assembly to pay money out of the relevant County Revenue Fund or out of any other county public fund;

“appropriation Act” means an Act of Parliament or of a county assembly that provides for the provision of money to pay for the supply of services;

“authorised officer”

(a)

in relation to the National Treasury, means any of its members or officers authorised by the National Treasury in accordance with section 13; or

(b)

in relation to a County Treasury, means any of its officers authorised by the County Treasury in accordance with section 105;

“borrower” means a person to whom a loan has been or is to be made;

“Budget Policy Statement”, in relation to a financial year, means the Budget Policy Statement referred to in section 25;

“Cabinet Secretary” means the Cabinet Secretary responsible for matters relating to finance;

“chart of account” means a structured list of accounts used to classify and record budget revenue and expenditure transactions as well as government assets and liabilities on a standard budget classifications system;

“Chief Officer” means the person appointed by the County Governor to administer the County department responsible for financial affairs;

“collector of revenue”

(a)

in relation to the national government, means a person authorised under section 76 to be a collector of revenue for the national government;

(b)

in relation to a county government, means a person authorised under section 158 to be a collector of revenue for that county government;

“commitment” means entering into a contract or other binding arrangement under which expenses or liabilities may be incurred;

“Contingencies Fund” means the Contingencies Fund established by Article 208(1) of the Constitution;

“county corporation” means a public corporation within a county established by an Act of Parliament or county legislation;

“County Emergency Fund” means a Fund established under section 110;

“County Exchequer Account” means a County Exchequer Account referred to in section 109;

“County Executive Committee member for finance” means the member of a County Executive Committee responsible for the financial affairs of the County and for the County Treasury;

“County Fiscal Strategy Paper”, in relation to a county government, means the County Fiscal Strategy Paper referred to in section 117;

“county government entity” means any department or agency of a county government, and any authority, body or other entity declared to be a county government entity under section 5(1);

“county government revenue” means all money derived by or on behalf of a county government from levies, rates, fees, charges or any other source authorised by the Constitution or an Act of Parliament;

“county government security” means a security issued by the county government under section 144 and includes a treasury bill, treasury bond, treasury note, government stock and any other debt instrument issued by the county government;

“County Public Debt” means all financial obligations attendant to loans raised and securities issued by the county government;

“County Treasury” means a County Treasury established under section 103;

“development expenditure” means the expenditure for the creation or renewal of assets;

“development partner” means a foreign government, an international organisation of states or any other organisation prescribed by regulations for the purpose of this Act;

“external government security” means a national government security which is issued outside Kenya;

“external loan” means any loan governed by the laws of a jurisdiction other than Kenya;

“financial objectives” means the financial objectives set out in a Budget Policy Statement of the national government or in the County Fiscal Strategy Paper of the county governments;

“financial statements”, in relation to a financial year or other accounting period of the national government, county government, or a national government or county government entity, means—

(a)

the financial statements referred to in Part III and Part IV of this Act; and

(b)

the financial statements prescribed by the Accounting Standards Board;

“fiscal responsibility principles” means the principles of public finance specified in Article 201 of the Constitution, together with—

(a)

the principles of fiscal responsibility referred to in section 15, in relation to national government; and

(b)

the principles of fiscal responsibility referred to in section 107, in relation to a county government;

“Government to government loan” means any loan that is negotiated with or covered by any government or national government entity including any government Export Credit Agency (ECA) or investment insurance agency or financial institution that acts as an intermediary between the Government and exporters to facilitate export financing, whether by means of buyer or supplier credit, credit insurance, financial intermediary loans, guarantees, Organization for Economic Cooperation and Development (OECD) tied-aid credit or officially supported export credit depending on the mandate granted to such export credit agency by the relevant government for the purpose of facilitating trade and investment between the two countries;

“Intergovernmental Budget and Economic Council” means the Council established under section 187;

“internal auditing” means an independent, objective assurance and consulting activity designed to add value and improve an organisation’s operations, which helps an organisation accomplish its objectives by bringing a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, control, and governance processes;

“Islamic finance return” has the same meaning assigned to it under section 2 of the Income Tax Act;

“loan” means any borrowing with or without interest from any source or any issuance of a national government security;

"medium enterprise" means a firm, trade, service, industry or business activity-

(a)

whose annual turnover is between five million shillings and one hundred million shillings;

(b)

which employs between fifty one and two hundred and fifty employees;

(c)

whose total assets and financial investment shall be as determined by the Cabinet Secretary from time to time and includes—

(i)

the manufacturing sector, where the investment in plant and machinery or the registered capital of the enterprise does not exceed two hundred and fifty million shillings; and

(ii)

the service sector and farming enterprises, where the investment in equipment or registered capital of the enterprise does not exceed one hundred and twenty-five million shillings;

“medium term” means a period of not less than three years but not more than five years;

"micro enterprise" has the meaning assigned to it in section 2 of the Micro and Small Enterprises Act, No. 55 of 2012;

“National Exchequer Account” means the National Exchequer Account referred to in section 17;

“national government entity” includes any department or agency of the national government and any authority, body or other entity declared to be a national government entity under section 4(1);

“national government revenue” means all taxes imposed by the national government under Articles 206(1)(a) and (b) and 209 of the Constitution, excluding county government revenue;

“national government security” means a security issued by the national government under section 53 or section 53A and a treasury bill, treasury bond, Sukuk, treasury note, government stock and any other debt instrument issued by the national government;

“National Treasury” means the National Treasury established by section 11;

“Principal Secretary”, in relation to the National Treasury, means the person responsible for the administration of the National Treasury;

“public money” includes—

(a)

all money that comes into possession of, or is distributed by, a national government entity and money raised by a private body where it is doing so under statutory authority; and

(b)

money held by national government entities in trust for third parties and any money that can generate liability for the Government;

“publicise”, in relation to a document, means to make known to the public, through the national or local media—

(a)

the general nature of the document; and

(b)

how and where it may be accessed and read by members of the public;

“publish”, in relation to a document, includes—

(a)

publishing the document in a newspaper, Government Gazette or other publication of general circulation in Kenya; or

(b)

publication of an abridged or summary versions of the documents without loosing the core content of the document; or

(c)

making the document available for reference at public libraries or offices of national government entities or in archives of those institutions; or

(d)

posting the document on the internet on a Government website; or

(e)

if the document relates only to a county government or any of its entities—

(i)

publishing the document in a newspaper or other publication of general circulation in the County;

(ii)

making the document available for reference at public libraries or offices of the county government or those entities; or

(iii)

posting the document on the Internet on a county government website;

“receiver of revenue”

(a)

in relation to the National government, means a person designated to be a receiver of revenue under section 75;

(b)

in relation to the county government, means a person designated to be a receiver of revenue under section 157;

“recurrent expenditure”

(a)

in relation to the national government, means the expenditure that is incurred in operating the services provided by the national government; and

(b)

in relation to a county government, means the expenditure that is incurred in operating the services provided by that county government,

but does not include expenditure incurred in creating or renewing assets belonging to or managed by that government;

“regulations” means regulations made under this Act;

“short term borrowing” means borrowing by a government by way of Treasury Bills, bank-overdraft or other instrument to cover temporary cash shortfalls and is repayable within twelve months;

"small enterprise" has the meaning assigned to in section 2 of the Micro and Small Enterprises Act, No. 55 of 2012.

“ Sukuk ” means certificates of equal value, representing undivided shares in ownership of tangible or intangible assets, usufruct of assets; services or an investment activity, structured in conformity with Islamic law;

“Treasury Single Account”

(a)

in relation to the national government, means a centralised bank account system where all deposits and payment transactions are processed for State Departments, Commissions and Independent Offices, and any national government entity which draws directly from the Consolidated Fund;

(b)

in relation to the county government, means a centralised bank account system established in each county where all deposits and payment transactions are processed for county departments and any other county entity which draws directly from the County Revenue Fund;

“Urban Board” means a city or municipal board within the meaning of the Urban Areas and Cities Act (No. 13 of 2011);

“vote” means money authorised by an appropriation Act for withdrawal from the Consolidated Fund or a County Revenue Fund; and

“wasteful expenditure” means any expenditure that was incurred which could have been avoided had due care and diligence been exercised.

(2)

Terms used in this Act which are also used in the Constitution have the same meaning as they have in the Constitution.

(3)

For the purposes of this Act, the reference to the term 'interest' in relation to a national government security shall also apply to reference to Islamic finance return on Sukuk.

[Act No. 6 of 2014, s. 2, Act No. 16 of 2014, s. 39, Act No. 15 of 2017, s. 47, Act No. 12 of 2019, Sch., Act No. 16 of 2020, s.2]

3.
Object of this Act

The object of this Act is to ensure that—

(a)

public finances are managed at both the national and the county levels of government in accordance with the principles set out in the Constitution; and

(b)

public officers who are given responsibility for managing the finances are accountable to the public for the management of those finances through Parliament and County Assemblies.

4.
Declaration of entities as national government entities
(1)

The Cabinet Secretary may, with the approval of the Cabinet and Parliament, by order in the Gazette, declare a state corporation, an authority or any other body whose functions fall under the national government to be a national government entity for the purposes of this Act.

(2)

A declaration made under subsection (1) shall be based on criteria prescribed by regulations.

(3)

The Cabinet Secretary shall, from time to time, and not less than once each year, publish in the Gazette a list of national entities declared under subsection (1).

(4)

The Cabinet Secretary may, from time to time with the approval of the Cabinet and Parliament, by order in the Gazette, declare that a national government entity declared under subsection (1) shall, with effect from the date of the order, cease to be a national government entity for the purposes of this Act.

5.
Declaration of entities as county government entities
(1)

A County Executive Committee member for finance may, with the approval of the county executive committee and county assembly, by order in the Gazette, declare a county corporation, an authority or any other body whose functions fall under that county government to be a county government entity for the purposes of this Act.

(2)

A declaration made under subsection (1) shall be based on criteria prescribed by regulations.

(3)

A County Executive Committee member for finance shall, from time to time, and not less than once each year, publish in the Gazette a list of the county entities declared under subsection (1).

(4)

A County Executive Committee member for finance may, from time to time with the approval of the county assembly, and by notice in the Gazette declare that a county government entity declared under subsection (1) shall with effect from the date of the order cease to be a county government entity for the purposes of this Act.

6.
Act to prevail in certain matters

This Act shall prevail in the case of any inconsistency between this Act and any other legislation, on the following matters—

(a)

preparation and submission of budget estimates, including the time for doing so;

(b)

preparation and submission of accounts for audit, including the time for doing so;

(c)

borrowing, lending and loan guarantees;

(d)

raising of revenue and making of expenditures;

(e)

banking arrangements, including opening of bank accounts and investment of moneys;

(f)

establishment and management of public funds; and

(g)

establishment and dissolution of state corporations.

PART II – PARLIAMENTARY OVERSIGHT OF NATIONAL FINANCES
Responsibilities of Committees of Parliament
7.
Responsibilities of the National Assembly budget committee in public finance matters

The committee of the National Assembly established to deal with budgetary matters has responsibility for the following matters, in addition to the functions set out in the Standing Orders—

(a)

discuss and review the Budget Policy Statement and budget estimates and make recommendations to the National Assembly;

(b)

provide general direction on budgetary matters;

(c)

monitor all budgetary matters falling within the competence of the National Assembly under this Act and report on those matters to the National Assembly;

(d)

monitor adherence by Parliament, the Judiciary and the national government and its entities to the principles of public finance and others set out in the Constitution, and to the fiscal responsibility principles of this Act;

(e)

review the Division of Revenue Bill presented to Parliament and ensure that it reflects the principles under Articles 187(2)(a), 201 and 203 of the Constitution;

(f)

examine financial statements and other documents submitted to the National Assembly under Part III of this Act and make recommendations to the National Assembly for improving the management of Kenya’s public finances;

(g)

in accordance with Articles 114, 218 and 221 of the Constitution—

(i) make recommendations to the National Assembly on “money Bills”, after taking into account the views of the Cabinet Secretary; and
(ii) table in the National Assembly a report containing the views of the Cabinet Secretary in subparagraph (i); and
(h)

introduce the Appropriations Bill in the National Assembly.

8.
Responsibilities of the Senate budget committee in public finance matters
(1)

The Committee of the Senate established to deal with budgetary and financial matters has responsibilities for the following matters, in addition to the functions set out in the Standing Orders—

(a)

present to the Senate, subject to the exceptions in the Constitution, the proposal for the basis of allocating revenue among the Counties and consider any bill dealing with county financial matters;

(b)

review the County Allocation of Revenue Bill and the Division of Revenue Bill in accordance with Article 218(1)(b) of the Constitution at least two months before the end of the financial year;

(c)

examine financial statements and other documents submitted to the Senate under Part IV of this Act, and make recommendations to the Senate for improving the management of government’s public finances; and

(d)

monitor adherence by the Senate to the principles of public finance set out in the Constitution, and to the fiscal responsibility principles of this Act.

(2)

In carrying out its functions under subsection (1)(a) and (b), the Committee shall consider recommendations from the Commission on Revenue Allocation, County Executive Committee member responsible for finance, the Intergovernmental Budget and Economic Council, the public and any other interested persons or groups.

9.
Parliamentary Budget Office continued
(1)

The office known as the Parliamentary Budget Office shall continue to exist as an office of the Parliamentary Service.

(2)

In addition to any other criteria established by the Parliamentary Service Commission, the Budget Office shall consist of persons appointed on merit by virtue of their experience in finance, economics and public policy matters.

10.
Responsibilities of the Parliamentary Budget Office
(1)

The Parliamentary Budget Office shall—

(a)

provide professional services in respect of budget, finance, and economic information to the committees of Parliament;

(b)

prepare reports on budgetary projections and economic forecasts and make proposals to Committees of Parliament responsible for budgetary matters;

(c)

prepare analyses of specific issues, including financial risks posed by Government policies and activities to guide Parliament;

(d)

consider budget proposals and economic trends and make recommendations to the relevant committee of Parliament with respect to those proposals and trends;

(e)

establish and foster relationships with the National Treasury, county treasuries and other national and international organisations, with an interest in budgetary and socio-economic matters as it considers appropriate for the efficient and effective performance of its functions;

(f)

subject to Article 35 of the Constitution, ensure that all reports and other documents produced by the Parliamentary Budget Office are prepared, published and publicised not later than fourteen days after production; and

(g)

report to the relevant committees of Parliament on any Bill that is submitted to Parliament that has an economic and financial impact, making reference to the fiscal responsibility principles and to the financial objectives set out in the relevant Budget Policy Statement; and

(h)

propose, where necessary, alternative fiscal framework in respect of any financial year.

(2)

In carrying out its functions under subsection (1), the Parliamentary Budget Office shall observe the principle of public participation in budgetary matters.

PART III – NATIONAL GOVERNMENT RESPONSIBILITIES WITH RESPECT TO THE MANAGEMENT AND CONTROL OF PUBLIC FINANCE
Establishment of the National Treasury
11.
Establishment of the National Treasury
(1)

There is established, pursuant to Article 225 of the Constitution, an entity of the national government to be known as the National Treasury.

(2)

The National Treasury shall comprise of—

(a)

the Cabinet Secretary;

(b)

the Principal Secretary; and

(c)

the department or departments, office or offices of the National Treasury responsible for economic and financial matters.

(3)

The Cabinet Secretary shall be the head of the National Treasury.

12.
General responsibilities of the National Treasury
(1)

Subject to the Constitution and this Act, the National Treasury shall—

(a)

formulate, implement and monitor macro-economic policies involving expenditure and revenue;

(b)

manage the level and composition of national public debt, national guarantees and other financial obligations of national government within the framework of this Act and develop a framework for sustainable debt control;

(c)

formulate, evaluate and promote economic and financial policies that facilitate social and economic development in conjunction with other national government entities;

(d)

mobilise domestic and external resources for financing national and county government budgetary requirements;

(e)

design and prescribe an efficient financial management system for the national and county governments to ensure transparent financial management and standard financial reporting as contemplated by Article 226 of the Constitution:

Provided that the National Treasury shall prescribe regulations that ensure that operations of a system under this paragraph respect andpromote the distinctiveness of the national and county levels of government;

(f)

in consultation with the Accounting Standards Board, ensure that uniform accounting standards are applied by the national government and its entities;

(g)

develop policy for the establishment, management, operation and winding up of public funds;

(h)

within the framework of this Act and taking into consideration the recommendations of the Commission on Revenue Allocation and the Intergovernmental Budget and Economic Council, prepare the legislative proposals on annual Division of Revenue and County Allocation of Revenue;

(i)

strengthen financial and fiscal relations between the national government and county governments and encourage support for county governments in terms of Article 190(1) of the Constitution in performing their functions; and

(j)

assist county governments to develop their capacity for efficient, effective and transparent financial management in consultation with the Cabinet Secretary responsible for matters relating to intergovernmental relations.

(2)

The National Treasury shall have the following functions, in addition to those in subsection (1)—

(a)

promote transparency, effective management and accountability with regard to public finances in the national government;

(b)

ensure proper management and control of, and accounting for the finances of the national government and its entities in order to promote the efficient and effective use of budgetary resources at the national level;

(c)

co-ordinate the preparation of annual appropriation accounts and other statutory financial reports by the national government and its entities;

(d)

prepare annual estimates of revenue of the national government, and co-ordinate the preparation of the budget of the national government;

(e)

consolidate reports of annual appropriation accounts and other financial statements of the national government and county governments and their entities;

(f)

report every four months to the National Assembly on the implementation of the annual national budget on areas not reported on by the Controller of Budget;

(g)

be the custodian of an inventory of national government assets except as may be provided by other legislation or the Constitution;

(h)

monitor the management of the finances of public enterprises and investments by the national government and its entities;

(i)

monitor the financial aspects of risk management strategies and governance structures for the national government and national government entities;

(j)

monitor the financial performance of state corporations; and

(k)

issue guidelines to national government entities with respect to financial matters and monitoring their implementation and compliance.

(3)

The National Treasury shall take such other action, not inconsistent with the Constitution, as will further the implementation of this Act.

[Act No. 6 of 2014, s. 3.]

13.
Powers of the National Treasury
(1)

The Cabinet Secretary may generally give to the National Treasury such powers as are necessary to facilitate the Cabinet Secretary and national government to exercise their powers in the Constitution, and in particular, the National Treasury may do all or any of the following—

(a)

with prior notification to the entity, access any system of public financial management and control of national government entity;

(b)

where reasonably necessary in the execution, of its functions, access the premises of any national State Organ or other public entity and inspect the entity’s records and other documents relating to financial matters after giving notice;

(c)

require national government entities to comply with any specified applicable norms or standards regarding accounting practices and budget classification systems;

(d)

require any public officer in the national government to provide information and if necessary, explanations with respect to matters concerning public finance:

Provided that a person providing information shall not be liable if at the time of providing the information that person, in writing, objected to providing such information on grounds that the information may incriminate him or her;

(e)

provide any County Treasury with any information as it may require to carry out its responsibilities under the Constitution and this Act; and

(f)

perform any other act as the Cabinet Secretary may consider necessary including power to intervene where a state entity or state organ fails to operate a financial system that complies with requirements provided for under this Act or is in serious material breach under this Act or in accordance with Articles 190 and 225 of the Constitution.

(2)

The National Treasury may authorise any of its officers in writing to carry out a responsibility or exercise a power specified in the authorisation on behalf of the National Treasury.

(3)

When acting in terms of subsection (2), an authorised officer, if requested by the person in relation to whom the responsibility or power is being carried out or exercised, shall produce the authorisation for inspection and failure to comply with that request invalidates any subsequent action purporting to be taken in terms of the authorisation.

(4)

An authorisation given under subsection (2) remains in force for a period specified in it or, if no period is specified, until it is revoked by the National Treasury.

(5)

The National Treasury may, in writing, revoke or vary an authorisation given under subsection (2).

14.
Secondment of public officers by National Treasury to County Treasury
(1)

Subject to Articles 189 and 190 of the Constitution, the National Treasury may, upon request by the County Treasury, and for a period that shall be agreed, second to a County Treasury for purposes of capacity building, such number of officers as may be necessary for the County Treasury to better carry out its functions under this Act.

(2)

A public officer seconded to a County Treasury under subsection (1), shall be deemed to be an officer of the County Treasury and shall be subject only to the direction and control of the County Treasury.

15.
The National Treasury to enforce fiscal responsibility principles
(1)

The National Treasury shall manage the national government’s public finances in accordance with the Constitution, and the principles of fiscal responsibility set out in subsection (2).

(2)

In managing the national government’s public finances, the National Treasury shall enforce the following fiscal responsibility principles—

(a)

over the medium term a minimum of thirty percent of the national and county governments budget shall be allocated to the development expenditure.

(b)

the national government’s expenditure on wages and benefits for its public officers shall not exceed a percentage of the national government revenue as prescribed by regulations;

(c)

over the medium term, the national government’s borrowings shall be used only for the purpose of financing development expenditure and not for recurrent expenditure;

(d)

public debt and obligations shall be maintained at a sustainable level as approved by Parliament for the national government and the county assembly for county government;

(e)

fiscal risks shall be managed prudently; and

(f)

a reasonable degree of predictability with respect to the level of tax rates and tax bases shall be maintained, taking into account any tax reforms that may be made in the future.

(3)

For the purposes of subsection (2)(c), short term borrowing shall be restricted to management of cash flows and in case of a bank overdraft facility it shall not exceed five per cent of the most recent audited national government revenue.

(4)

The National Treasury shall ensure that the level of National Debt does not exceed the level specified annually in the medium term national government debt management strategy submitted to Parliament.

(5)

Regulations made under this Act may add to the list of fiscal principles set out in subsection (2).

16.
National government deviation from financial objectives
(1)

The national government may, with the approval of Parliament, deviate from the financial objectives in a Budget Policy Statement on a temporary basiswhere such deviation is necessitated by a major natural disaster or other significant unforeseen event.

(2)

If there is a change of national government, the new government may, with the approval of Parliament, deviate from the financial objectives in a Budget Policy Statement but shall not deviate from the fiscal responsibility principles.

(3)

The National Treasury shall provide a report to Parliament regarding the deviation, and shall include in the report—

(a)

the reasons for and the implications of the deviation;

(b)

proposals to address the deviation;

(c)

the period the deviation is estimated to last; and

(d)

the status of development projects initiated by the national government and if any project has been stopped, the reasons for doing so.

(4)

The National Treasury shall publish and publicise the report made under subsection (3) within fifteen days after its submission to Parliament.

17.
The National Treasury to administer the Consolidated Fund
(1)

The National Treasury shall administer the Consolidated Fund in accordance with Article 206 of the Constitution.

(2)

The National Treasury shall maintain the Consolidated Fund in an account to be known as the National Exchequer Account, kept at the Central Bank of Kenya and shall, subject to Article 206(1) of the Constitution—

(a)

facilitate payment into that account all money raised or received by or on behalf of the national government; and

(b)

pay from that National Exchequer Account without undue delay all amounts that are payable for public services.

(3)

The National Treasury shall ensure that the National Exchequer Account is not overdrawn at any time.

(4)

Where a withdrawal from the Consolidated Fund is authorised under the Constitution or an Act of Parliament for the appropriation of money, the National Treasury shall make a requisition for the withdrawal and submit it to the Controller of Budget for approval.

(5)

The approval of a withdrawal from the Consolidated Fund by the Controller of Budget, together with written instructions from the National Treasury requesting for the withdrawal, shall be sufficient authority for the Central Bank of Kenya to pay amounts from the National Exchequer Account in accordance with the approval and instructions provided.

(6)

The National Treasury shall, at the beginning of every month, and in any event not later than the fifteenth day from the commencement of the month, disburse monies to county governments for the expenditure of the following month.

(7)

The disbursement referred to in subsection (6) shall be done in accordance with a schedule prepared by the National Treasury in consultation with the Intergovernmental Budget and Economic Council, with the approval of the Senate, and published in the Gazette, as approved, not later than the 30th May in every year.

[Act No. 34 of 2013, s. 14.]

18.
The National Treasury to administer the Equalisation Fund
(1)

The National Treasury shall administer the Equalisation Fund in accordance with Article 204 of the Constitution.

(2)

The National Treasury shall keep the Equalisation Fund in a separate account maintained at the Central Bank of Kenya and shall—

(a)

transfer into that Equalisation Fund all revenues payable into the Fund under Article 204(1) of the Constitution; and

(b)

transfer from that Equalisation Fund, without undue delay, all money for purposes specified in Article 204(2) of the Constitution.

(3)

The National Treasury shall ensure that the Equalisation Fund Account is not overdrawn at any time.

(4)

Where a withdrawal from the Equalisation Fund is authorised under an Act of Parliament that approves the appropriation of money, the National Treasury shall make a requisition for the withdrawal and submit it to the Controller of Budget for approval.

(5)

The approval by the Controller of Budget of a withdrawal from the Equalisation Fund, together with written instructions from the National Treasury requesting for the withdrawal, shall be sufficient authority for the Central Bank of Kenya to pay amounts from the Equalisation Fund Account in accordance with the approval and instructions given.

(6)

Any unutilised balances in the Equalisation Fund shall not lapse at the end of the Financial year, but shall be retained for use for the purposes for which the Equalisation Fund was established.

19.
Source of the Contingencies Fund

The Contingencies Fund shall consist of monies appropriated from the Consolidated Fund by an appropriation Act in any financial year.

20.
Cabinet Secretary to administer the Contingencies Fund
(1)

The Cabinet Secretary shall administer the Contingencies Fund.

(2)

The permanent capital of the Contingencies Fund shall not exceed ten billion shillings or such other amount as may be prescribed by the Cabinet Secretary with the approval of Parliament.

(3)

The Cabinet Secretary shall keep the Contingencies Fund in a separate account, maintained at the Central Bank of Kenya and shall pay—

(a)

into that account all monies appropriated to the Contingencies Fund by an appropriation Act; and

(b)

from the Contingencies Fund, without undue delay, all advances made under section 21.

21.
Advances from the Contingencies Fund
(1)

Subject to section 22, the Cabinet Secretary may make advances from the Contingencies Fund if, on the basis of the set criteria and the process and operational guidelines of Article 208(1) as prescribed in regulations approved by Parliament and the laws relating to disaster management, the Cabinet Secretary is satisfied that an urgent and unforeseen need for expenditure has arisen for which there is no specific legislative authority.

(2)

For the purposes of subsection (1), there is an urgent need for expenditure if the Cabinet Secretary, guided by regulations and relevant laws, establishes that—

(a)

the payment which was not budgeted for because it was unforeseen and cannot be delayed until a later financial year without harming the general public interest; and

(b)

the event was unforeseen.

(3)

In addition to regulations and relevant laws, and for the purposes of this section, an unforeseen event is one which—

(a)

threatens serious damage to human life or welfare;

(b)

threatens serious damage to the environment; and

(c)

is meant to alleviate the damage, loss, hardship or suffering caused directly by the event.

(4)

An event threatens damage to human life or welfare under subsection (3)(a) only if it involves, causes or may cause—

(a)

loss of life, human illness or injury;

(b)

homelessness or damage to property;

(c)

disruption of food, water or shelter; or

(d)

disruption to services, including health services.

(5)

Subject to subsection (2), the Cabinet Secretary shall, by regulations and with Parliament approval, prescribe the criteria for making advance under subsection (1).

22.
Cabinet Secretary to seek Parliamentary approval for payments made from Contingencies Fund
(1)

Not later than two months after a payment from the Contingencies Fund in terms of section 21, the Cabinet Secretary shall submit to Parliament a detailed report in respect of the payment setting out the information specified in section 23(2) and seek Parliament to approve the payment.

(2)

If Parliament does not sit during the period referred to in subsection (1), or is not sitting at the end of that period and the Cabinet Secretary has not sought the approval of Parliament before the end of that period, the Cabinet Secretary shall seek the approval for the payment not later than fourteen days after Parliament next sits.

(3)

As soon as practicable after the Parliament has approved the payment, the Cabinet Secretary shall cause an appropriation Bill to be introduced in Parliament for the appropriation of the money paid and for the replenishment of the Contingencies Fund to the extent of the amount of the payment.

23.
Financial statements in respect of the Contingencies Fund
(1)

Not later than three months after the end of each financial year, the National Treasury shall prepare and submit to the Auditor-General financial statements for that year in respect of the Contingencies Fund.

(2)

The National Treasury shall include the following information in the financial statements submitted under subsection (1)—

(a)

the date and amount of each payment made from that Contingencies Fund;

(b)

the person to whom the payment was made;

(c)

the purpose for which the payment was made;

(d)

if the person to whom the payment was made has spent the money for that purpose, a statement to that effect;

(e)

if the person to whom the payment was made has not yet spent the money for that purpose, a statement specifying the reasons for not having done so; and

(f)

a statement indicating how the payment conforms to section 21.

24.
Establishment of Parliamentary Fund and other national government public funds
(1)

There is established a fund to be known as the Parliamentary Fund.

(2)

The Secretary to the Parliamentary Service Commission shall, on the directions of the Commission, open and operate such bank accounts as may be necessary for the purposes of the Parliamentary Fund.

(2A)

Notwithstanding the provisions of subsection (1), the Parliamentary Service Commission may, with the approval of the National Assembly, establish the following public funds—

(a)

Parliamentary Mortgage (Members) Scheme Fund;

(b)

Parliamentary Mortgage (Staff) Scheme Fund;

(c)

Parliamentary Car Loan (Members) Scheme Fund;

(d)

Parliamentary Car Loan (Staff) Scheme Fund; and

(e)

Parliamentary Catering Fund.

for purposes of Parliament or a House of Parliament.

(3)

Notwithstanding any other provisions of this Act, where a Fund is established under this Act or any other law for the purposes of Parliament or a House of Parliament, the Parliamentary Service Commission shall—

(a)

establish procedures and systems for proper and effective management of the monies and property of the Fund;

(b)

establish accounting procedures and systems for the Commission to properly account for the monies and property;

(c)

superintend the expenditure of the monies of the Fund to ensure that the monies are properly accounted for;

(d)

prepare and submit accounts for each financial year in accordance with the written law for the time being relating to audit for audit by the Auditor-General; and

(e)

ensure that accounts prepared under paragraph (d) comply with the provisions of this Act.

(4)

The Cabinet Secretary may establish a national government public fund with the approval of the National Assembly.

(5)

The Cabinet Secretary shall designate a person to administer every national public fund established under subsection (4).

(6)

The administrator of a national public fund shall ensure that the earnings of, or accruals to a national public fund are retained in the fund unless the Cabinet Secretary directs otherwise.

(7)

The administrator of a national public fund shall ensure that money held in the fund, including any earnings or accruals referred to in subsection (6), is spent only for the purposes for which the fund is established.

(8)

The Cabinet Secretary may wind up a national public fund with the approval of the National Assembly.

(9)

On the winding up of a national public fund—

(a)

the administrator of the national public fund shall pay any amount remaining in the fund into the National Exchequer Account for the credit of the national government; or

(b)

the Cabinet Secretary shall pay any deficit in the fund from funds of the national government in the National Exchequer Account with the approval of the National Assembly; and

(c)

the Cabinet Secretary shall submit a final statement of accounts to Parliament.

(10)

The administrator of a national public fund—

(a)

shall prepare financial statements for the fund for each financial year in a form specified by the Accounting Standards Board; and

(b)

not later than three months after the end of each financial year, submit those statements to the Auditor-General and deliver a copy of the statements to the National Treasury, Commission on Revenue Allocation and the Controller of Budget.

(11)

The regulations shall provide for the establishment, management, operation or winding-up of national public funds.

(12)

This section applies to all other rational public funds including funds earmarked for specific purposes established by an Act of Parliament but does not apply to a public fund established by the Constitution.

(13)

In this section—

“administrator”, in relation to a national public fund, means a person designated by the Cabinet Secretary under subsection (5) to administer the fund; and

“national public fund” means a public fund established under subsection (4).

[Act No. 18 of 2018, Sch., Act No. 13 of 2020, Sch.]

25.
National Treasury to prepare annual Budget Policy Statement
(1)

The National Treasury shall prepare and submit to Cabinet the Budget Policy Statement for approval.

(2)

The National Treasury shall submit the Budget Policy Statement approved in terms of subsection (1) to Parliament, by the 15th February in each year.

(3)

In preparing the Budget Policy Statement, the National Treasury shall set out the broad strategic priorities and policy goals that will guide the national government and county governments in preparing their budgets both for the following financial year and over the medium term.

(4)

The National Treasury shall include in the Budget Policy Statement—

(a)

an assessment of the current state of the economy and the financial outlook over the medium term, including macro-economic forecasts;

(b)

the financial outlook with respect to Government revenues, expenditures and borrowing for the next financial year and over the medium term;

(c)

the proposed expenditure limits for the national government, including those of Parliament and the Judiciary and indicative transfers to county governments; and

(d)

the fiscal responsibility principles and financial objectives over the medium term including limits on total annual debt.

(5)

In preparing the Budget Policy Statement, the National Treasury shall seek and take into account the views of—

(a)

the Commission on Revenue Allocation;

(b)

county governments;

(c)

Controller of Budget;

(d)

the Parliamentary Service Commission;

(e)

the Judicial Service Commission;

(f)

the public; and

(g)

any other interested persons or groups.

(6)

Regulations made under this Act shall prescribe circumstances and the manner in which persons or groups may make written or oral representations about the contents of the statement.

(7)

Parliament shall, not later than fourteen days after the Budget Policy Statement is submitted to Parliament, table and discuss a report containing its recommendations and pass a resolution to adopt it with or without amendments.

(8)

The Cabinet Secretary shall take into account resolutions passed by Parliament in finalising the budget for the relevant financial year.

(9)

The National Treasury shall publish and publicise the Budget Policy Statement not later than fifteen days after submission of the Statement to Parliament.

26.
National Treasury to prepare Budget Review and Outlook Paper
(1)

The National Treasury shall prepare and submit to Cabinet for approval, by the 30th September in each financial year, a Budget Review and Outlook Paper which shall include—

(a)

actual fiscal performance in the previous financial year compared to the budget appropriation for that year;

(b)

updated macro-economic and financial forecasts with sufficient information to show changes from the forecasts in the most recent Budget Policy Statement;

(c)

information on how actual financial performance for the previous financial year may have affected compliance with the fiscal responsibility principles or the financial objectives in the latest Budget Policy Statement; and

(d)

the reasons for any deviation from the financial objectives together with proposals to address the deviation and the time estimated to do so.

(2)

Cabinet shall consider the Budget Review and Outlook Paper with a view to approving it, with or without amendments, not later than fourteen days after its submission.

(3)

Not later than seven days after the Budget Review and Outlook Paper has been approved by Cabinet, the National Treasury shall—

(a)

submit the Paper to the Budget Committee of the National Assembly to be laid before each House of Parliament; and

(b)

publish and publicise the Paper not later than fifteen days after laying the Paper before Parliament.

27.
Publication of pre- and post-election economic and fiscal reports by National Treasury
(1)

The National Treasury shall arrange to be published—

(a)

a pre-election economic and fiscal update not earlier than four months before the polling day for any general election; and

(b)

a post-election economic and fiscal update not later than four months after the polling day of any general election.

(2)

The pre-election and post-election economic and fiscal update shall—

(a)

detail all election related spending including—

(i) direct election expenses such as those for the Independent Electoral and Boundaries Commission for costs of elections and election materials;
(ii) indirect election expenses such as allocations to police and security forces for the election year; and
(iii) any other expenses related to the election specified in regulations or instructions; and
(b)

be accompanied by a statement signed by the Principal Secretary stating that the economic and fiscal updates include—

(i) all policy decisions with material economic or fiscal implications that the national government made before the day on which the contents of the economic and fiscal updates were finalised;
(ii) all other circumstances with material economic or fiscal implications of which the National Treasury was aware before those days; and
(iii) a confirmation that the economic and fiscal updates were prepared using the best professional judgment and information available before the economic and fiscal updates were finalised.
(3)

If the day of dissolution of Parliament is less than two months before the day appointed as polling day for the general election, the Cabinet Secretary shall arrange for the pre-election economic and fiscal update required under this section to be published not later than fourteen days after the day of the dissolution of Parliament.

28.
Banking arrangements for national government entities
(1)

The National Treasury shall authorise the opening, operating and closing of bank accounts and sub accounts for all national government entities in accordance with regulations made under this Act.

(2)

The National Treasury shall establish a Treasury Single Account into which all revenues received by national government entities shall be deposited and from which all payments of money to or on behalf of national government entities shall be made.

(3)

The Treasury Single Account shall not be operated in any manner that prejudices any entity to which funds have been disbursed.

(4)

An accounting officer for a national government entity shall not cause a bank account of the entity to be overdrawn beyond the limit authorised by the National Treasury or a board of a national government entity, if any.

(5)

Subject to subsection (3), an accounting officer who authorises the bank account of a national government entity to be overdrawn is liable for the full cost of the overdrawn amount, in addition to any other disciplinary measures that—

(a)

the Cabinet Secretary may impose by regulations; or

(b)

any other relevant authority may impose under the provisions of any other legislation.

(6)

The National Treasury shall keep complete and current records of all bank accounts for which it is responsible under the Constitution, this Act or any other legislation.

(7)

The National Treasury shall give monthly statements on actual revenue collected in the accounts relating to Article 206 of the Constitution to the Commission on Revenue Allocation.

29.
Management of cash at the national government level
(1)

The National Treasury shall establish a framework within which the national government shall manage its cash transactions.

(2)

Every national government entity, other than a state corporation, shall submit an annual cash plan and forecast to—

(a)

the National Treasury in a form and manner and relating to such periods directed by that Treasury; and

(b)

the Controller of Budget.

(3)

Subject to the Constitution, the Cabinet Secretary may, notwithstanding any previous authority given, limit or suspend national government expenditure, if in the Cabinet Secretary’s opinion, the exigencies of the financial situation render such a limitation or suspension necessary.

(4)

The approval of the National Assembly for any limitation or suspension under subsection (3) shall be sought within two months of the decision being made.

(5)

The National Treasury may invest, subject to any regulations that may be prescribed, any money kept in a bank account of the national government.

(6)

Except as otherwise provided by legislation—

(a)

interest received from investments made under subsection (5); and

(b)

money received from the redemption or maturity of those investments, and from the sale or conversion of securities relating to them, is payable into the National Exchequer Account.

(7)

The National Treasury may incur costs, charges and expenses in connection with negotiating, placing, managing, servicing, or converting any investment entered into under subsection (5).

(8)

Costs, charges or expenses referred to under subsection (7) shall be paid from the Consolidated Fund in accordance with Article 228 of the Constitution.

30.
Procurement of goods and services

For the purposes of this Act, all procurement of goods and services required for the purposes of the national government or a national government entity is to be carried out in accordance with Article 227 of the Constitution and the relevant legislation on procurement and disposal of assets.

31.
Cabinet Secretary to report on all loans
(1)

The Cabinet Secretary shall submit to Parliament, every four months, a report of all loans made to the national government, national government entities and county governments, in accordance with Article 211(2) of the Constitution.

(2)

Where either House of Parliament is canvassing a matter relating to the national debt, the Cabinet Secretary shall submit to Parliament, a report of all loans made to the national government, national government entities, and county governments, not later than seven days after receiving a request to do so from either House of Parliament.

(3)

At the end of every four months, the Cabinet Secretary shall submit a report to Parliament stating the loan balances brought forward, carried down, drawings and amortizations on new loans obtained from outside Kenya or denominated in foreign currency, and such other information as may be prescribed by regulations, specifying—

(a)

the names of the parties to the loan;

(b)

the amount of the loan and the currency in which it is expressed and in which it is repayable;

(c)

the terms and conditions of the loan, including interest and other charges payable and the terms of repayment;

(d)

the amount of the loan advanced at the time the report is submitted;

(e)

the purpose for which the loan was used and the perceived benefits of the loan; and such other information as the Cabinet Secretary may consider appropriate.

32.
Cabinet Secretary to report on national government guarantees
(1)

The Cabinet Secretary shall submit to Parliament, a record of all guarantees given by the national government, not later than seven days after receiving a request to do so from either House of Parliament.

(2)

The Cabinet Secretary shall, with respect to every such guarantee, specify the following information in the record—

(a)

names of the parties to the loan that is guaranteed;

(b)

principal amount of that loan;

(c)

terms and conditions applicable to that loan, including—

(i) interest and other charges that are payable in respect of that loan; and
(ii) terms of its repayment.
(3)

Not later than two months after the end of each financial year, the Cabinet Secretary shall publish and publicise a report giving details of the guarantees given by the national government during that year.

(3A)

Notwithstanding the provisions of subsection (2), the Cabinet Secretary shall, with respect to credit guarantees extended to private borrowers who are micro, small or medium enterprises, provide the information specified in section 59A (2) when either House of Parliament makes a request under subsection (1).

[Act No. 16 of 2020, s.3]

33.
Cabinet Secretary to submit national government debt management strategy to Parliament annually
(1)

On or before the 15th February in each year, the Cabinet Secretary shall submit to Parliament a statement setting out the debt management strategy of the national government over the medium term with respect to its actual liability and potential liability in respect of loans and guarantees and its plans for dealing with those liabilities.

(2)

The Cabinet Secretary shall ensure that the medium-term debt management strategy is aligned to the broad strategic priorities and policy goals set out in the Budget Policy Statement.

(3)

The Cabinet Secretary shall include in the statement the following information—

(a)

the total stock of debt as at the date of the statement;

(b)

the sources of loans made to the national government and the nature of guarantees given by the national government;

(c)

the principal risks associated with those loans and guarantees;

(d)

the assumptions underlying the debt management strategy; and

(e)

an analysis of the sustainability of the amount of debt, both actual and potential.

(4)

Within fourteen days after the debt strategy paper is submitted to Parliament under this section, the Cabinet Secretary shall submit the statement to the Commission on Revenue Allocation and the Intergovernmental Budget and Economic Council and publish and publicise the statement.

34.
The National Treasury to provide Parliament with additional reports when required

Either House of Parliament may request the Cabinet Secretary or the National Treasury to prepare and submit to that House a report on any matter relating to the Cabinet Secretary or National Treasury’s responsibilities as the House of Parliament may specify.

35.
Stages in the budget process
(1)

The budget process for the national government in any financial year shall comprise the following stages—

(a)

integrated development planning process which shall include both long term and medium term planning;

(b)

planning and determining financial and economic policies and priorities at the national level over the medium term;

(c)

preparing overall estimates in the form of the Budget Policy Statement of national government revenues and expenditures;

(d)

adoption of Budget Policy Statement by Parliament as a basis for future deliberations;

(e)

preparing budget estimates for the national government;

(f)

submitting those estimates to the National Assembly for approval;

(g)

enacting the appropriation Bill and any other Bills required to implement the National government’s budgetary proposals;

(h)

implementing the approved budget;

(i)

evaluating and accounting for, the national government’s budgeted revenues and expenditures; and

(j)

reviewing and reporting on those budgeted revenues and expenditures every three months.

(2)

The Cabinet Secretary shall ensure public participation in the budget process provided for under subsection (1).

36.
Cabinet Secretary to manage budget process at national level
(1)

The Cabinet Secretary shall manage the budget process at the national level.

(2)

Not later than the 30th August in each year, the Cabinet Secretary shall issue to all national government entities a circular setting out guidelines on the budget process to be followed by them.

(3)

The circular shall include—

(a)

a schedule for preparation of the budget indicating key dates by which various exercises are to be completed;

(b)

the procedures for the review and projection of revenues and expenditures;

(c)

key policy areas and issues that are to be taken into consideration when preparing the budget;

(d)

procedures setting out the manner in which members of the public shall participate in the budget process;

(e)

the format in which budget information and documents shall be submitted; and

(f)

any other information that, in the opinion of the Cabinet Secretary, may assist the budget process.

(4)

Every national government entity shall comply with the guidelines, and in particular, such dates as are specified in the schedule referred to in subsection (3)(a).

(5)

The Cabinet Secretary shall by regulations, prescribe procedures specifying how, when and where members of the public shall participate in the budget process at the national level.

(6)

The Cabinet Secretary shall notify the members of the Intergovernmental Budget and Economic Council of the commencement of the budget process.

37.
Submission of budget estimates and related documents for approval
(1)

The Cabinet Secretary shall, within a period allowing time to meet the deadlines specified in this section, submit to the Cabinet for its approval—

(a)

the budget estimates and other documents supporting the budget; and

(b)

the draft Bills required to implement the national budget.

(2)

The Cabinet Secretary shall submit to the National Assembly, by the 30th April in that year, the following documents—

(a)

the budget estimates excluding those for Parliament and the Judiciary;

(b)

documents supporting the submitted estimates; and

(c)

any other Bills required to implement the national government budget.

(3)

The accounting officers for the Parliamentary Services Commission shall, not later than the 30th April in each financial year—

(a)

submit to the National Assembly the budget estimates for Parliament, including proposed appropriations; and

(b)

provide the National Treasury with a copy of those documents.

(4)

The Chief Registrar of the Judiciary shall, not later than the 30th April in each financial year—

(a)

submit to the National Assembly the budget estimates for the Judiciary, including proposed appropriations; and

(b)

provide the National Treasury with a copy of those documents.

(5)

In preparing the documents referred to in subsections (3) and (4), the accounting officers for the Parliamentary Service Commission and the Chief Registrar of the Judiciary—

(a)

shall ensure that members of the public are given an opportunity to participate in the preparation process; and

(b)

may make and publish rules to be complied with by those who may wish to participate in the process.

(6)

The Cabinet Secretary shall submit to the National Assembly not later than the 15th May any comments of the National Treasury on the budgets proposed by the Parliamentary Service Commission and the Chief Registrar for the Judiciary.

(7)

The Cabinet Secretary shall ensure that the budget process is conducted in a manner and within a time frame sufficient to permit the various participants in the process to comply with the requirements of the Constitution and this Act.

(8)

As soon as practicable after the budget estimates and other documents have been submitted to the National Assembly under this section, the Cabinet Secretary shall publicise those documents.

(9)

Upon approval of the budget estimates by the National Assembly, the Cabinet Secretary shall prepare and submit an Appropriation Bill of the approved estimates to the National Assembly.

[Act No. 38 of 2016, s. 57.]

38.
Submission of other budget documents to the National Assembly
(1)

The Cabinet Secretary shall submit to the National Assembly the following other budget documents for each financial year—

(a)

a budget summary that includes—

(i) a summary of budget policies including policies on revenue, expenditure, debt and deficit financing;
(ii) an explanation of how the budget relates to the fiscal responsibility principles and to the financial objectives; and
(iii) a memorandum by the Cabinet Secretary explaining how the resolutions adopted by the National Assembly on the Budget Policy Statement under section 25(7) have been taken into account.
(b)

the format of the budget estimates shall include—

(i) a list of all entities that are to receive funds appropriated from the budget of the national government;
(ii) estimates of revenue allocated to, and expenditures projected from, the Equalisation Fund over the medium term, with an explanation of the reasons for those revenue allocations and expenditures and how these estimates comply with the policy developed by the Commission on Revenue Allocation under Article 216(4) of the Constitution;
(iii) all revenue allocations to county governments from the national government’s share in terms of Article 202(2) of the Constitution, including conditional and unconditional grants;
(iv) all estimated revenue by broad economic classification;
(v) all estimated expenditure, by vote and by programme, clearly identifying both recurrent and development expenditures; and
(vi) an estimate of any budget deficit or surplus for the financial year and medium term and the proposed sources of financing;
(c)

information regarding loans made by the national government, including an estimate of principal, interest and other charges to be received by the national government in the financial year in respect of those loans;

(d)

information regarding loans and guarantees made to and by the national government, including an estimate of principal, interest and other charges to be paid by the national government in the financial year in respect of those loans;

(e)

information regarding any payments to be made and liabilities to be incurred by the national government for which an appropriation Act is not required which shall include the constitutional or national legislative authority for any such payments or liabilities; and

(f)

a statement by the National Treasury specifying the measures taken by the national government to implement any recommendations made by the National Assembly with respect to the budget for the previous financial year or years.

(2)

The nature of information that is to be presented in the budget estimates and the form of its presentation shall be prescribed in regulations and the regulations shall be tabled in Parliament for approval.

(3)

The Cabinet Secretary shall ensure that the expenditure appropriations and the budget estimates in an appropriation Bill are presented in a way that—

(a)

is accurate, precise, informative and pertinent to budget issues; and

(b)

clearly identifies the appropriations by vote and programme.

39.
National Assembly to consider budget estimates
(1)

The National Assembly shall consider the budget estimates of the national government, including those of Parliament and the Judiciary, with a view to approving them, with or without amendments, in time for the Appropriation Bill and any other relevant Bills, required to implement the budget to be assented to by the 30th June each year.

(2)

Before the National Assembly considers the estimates of revenue and expenditure, the relevant committee of the National Assembly shall discuss and review the estimates and make recommendations to the National Assembly, taking into account the views of the Cabinet Secretary and the public on the proposed recommendations.

(3)

The National Assembly may amend the budget estimates of the national government only in accordance with the Division of Revenue Act and the resolutions adopted with regard to the Budget Policy Statement ensuring that—

(a)

an increase in expenditure in a proposed appropriation is balanced by a reduction in expenditure in another proposed appropriation; or

(b)

a proposed reduction in expenditure is used to reduce the deficit.

(4)

Where a Bill originating from a member of the National Assembly proposes amendments after passing the budget estimates and the appropriations Bill by Parliament, the National Assembly may only proceed in accordance with—

(a)

the Division of Revenue Act;

(b)

Article 114 of the Constitution; and

(c)

any increase in expenditure in a proposed appropriation is balanced by a reduction in expenditure in another proposed appropriation or any proposed reduction in expenditure is used to reduce the deficit.

(5)

Not later than twenty-one days after the National Assembly has approved the budget estimates, the National Treasury shall consolidate, publish and publicise the budget estimates.

(6)

The National Treasury shall take all reasonably practicable steps to ensure that the approved budget estimates are prepared and publicised in a form that is clear and easily understood by, and readily accessible to, members of the public.

(7)

Following approval of the budget estimates under this section, and before the Appropriation Act is assented to, the National Assembly may authorise withdrawals in accordance with Article 222 of the Constitution, and such authority shall be communicated to the Cabinet Secretary responsible for finance by the Speaker of the National Assembly within seven days of that authority being granted by the National Assembly.

(8)

The Controller of Budget shall ensure that members of the public are given information on budget implementation both at the national and county government level in accordance with Article 228 of the Constitution.

[Act No. 12 of 2019, Sch.]

39A.
Submission, consideration and passing of Finance Bill
(1)

The Cabinet Secretary shall submit to the National Assembly, on or before 30th April, the Finance Bill setting out the revenue raising measures for the National Government.

(2)

Following submission of the Finance Bill by the Cabinet Secretary, the relevant committee of the National Assembly shall introduce the Bill in the National Assembly.

(3)

The National Assembly shall consider and pass the Finance Bill, with or without amendments, in time for it to be presented for assent by 30th June each year.

(4)

Any recommendations made by the relevant committee of the National Assembly or resolution passed by the National Assembly on revenue matters shall—

(a)

ensure that the total amount of revenue raised is consistent with the approved fiscal framework;

(b)

take into account the principles of equity, certainty and ease of collection;

(c)

consider the impact of the proposed changes on the composition of the tax revenue with reference to direct and indirect taxes;

(d)

consider domestic, regional and international tax trends;

(e)

consider the impact on development, investment, employment and economic growth;

(f)

take into account the recommendations of the Cabinet Secretary as provided under Article 114 of the Constitution; and

(g)

take into account the taxation and other tariff arrangements and obligations that Kenya has ratified, including taxation and tariff arrangements under the East African Community Treaty.

[Act No. 12 of 2019, Sch., Act No. 1 of 2020, s. 27.]

40.
Submission and consideration of budget policy highlights and the Finance Bill in the National Assembly
(1)

Each financial year, the Cabinet Secretary shall, with the approval of Cabinet, make a public pronouncement of the budget policy highlights and revenue raising measures for the national government.

(2)

In making the pronouncement under subsection (1), the Cabinet Secretary shall take into account any regional or international agreements that Kenya has ratified, including the East African Community Treaty and where such agreements prescribe the date when the budget policy highlights and revenue raising measures are to be pronounced, the Cabinet Secretary shall ensure that the measures are pronounced on the appointed date.

(3)

On the same date that the budget policy highlights and revenue raising measures are pronounced, the Cabinet Secretary shall submit to Parliament a legislative proposal, setting out the revenue raising measures for the national government, together with a policy statement expounding on those measures.

(4)

Following the submission of the legislative proposal of the Cabinet Secretary, the relevant committee of the National Assembly shall introduce a Finance bill in the National Assembly.

(5)

Any of the recommendations made by the relevant committee of the National Assembly or adopted by the National Assembly on revenue matters shall—

(a)

ensure that the total amount of revenue raised is consistent with the approved fiscal framework and the Division of Revenue Act;

(b)

take into account the principles of equity, certainty and ease of collection;

(c)

consider the impact of the proposed changes on the composition of the tax revenue with reference to the direct and indirect taxes;

(d)

consider domestic, regional and international tax trends;

(e)

consider the impact on development, investment, employment and economic growth;

(f)

take into account the recommendations of the Cabinet Secretary as provided under Article 114 of the Constitution; and

(g)

take into account the taxation and other tariff agreements and obligations that Kenya has ratified, including taxation and tariff agreements under the East African Community Treaty.

(6)

The recommendations of the Cabinet Secretary in subsection (5)(f) shall be included in the report and tabled in the National Assembly.

[Act No. 6 of 2014, s. 4.]

41.
Deleted

Deleted by Act No. 12 of 2019, Sch.

42.
Consideration by Parliament of Division of Revenue and County Allocation of Revenue Bills

Parliament shall consider the Division of Revenue and County Allocation of Revenue Bills not later than thirty days after the Bills have been introduced with a view to approving them, with or without amendments.

43.
Limited powers of accounting officer of national government entity to reallocate appropriate funds
(1)

An accounting officer may reallocate funds from the authorised use but may not reallocate funds where—

(a)

the funds are appropriated for transfer to another government entity or person;

(b)

the funds are appropriated for capital expenditure except to defray other capital expenditure;

(c)

the reallocation of funds is from wages to non-wages expenditure; or

(d)

the transfer of funds may result in contravention of fiscal responsibility principles.

(2)

An accounting officer for a national government entity, other than a state corporation, may reallocate funds between programs, or between Sub-Votes, in the budget for a financial year if—

(a)

there are provisions in the budget of a program or Sub-Vote which are unlikely to be utilised;

(b)

a request for the reallocation has been made to the National Treasury explaining the reasons for the reallocation and the National Treasury has approved the request; and

(c)

the total sum of all reallocations made to or from a program or Sub-Vote does not exceed ten percent of the total expenditure approved for that program or Sub-Vote for that financial year.

(3)

Regulations made under this Act may provide for the reallocation of funds within Sub-votes or programs.

44.
National government to submit supplementary budget to Parliament
(1)

The national government shall submit to Parliament for approval, a supplementary budget in support of money spent under Article 223 of the Constitution.

(2)

After Parliament has approved spending under subsection (1), an Appropriation Bill shall be introduced for the appropriation of the money spent.

(3)

The supplementary budget shall include a statement showing how the additional expenditure relates to the fiscal responsibility principles and financial objectives.

45.
Appropriations to lapse if unspent at the end of the financial year
(1)

An appropriation that has not been spent at the end of the financial year for which it was appropriated shall lapse immediately at the end of that financial year.

(2)

Subject to any other legislation, where, at the end of a financial year, a national government entity is holding appropriated money that was withdrawn from the National Exchequer Account but has not been spent, it shall repay the unspent money into the National Exchequer Account and shall prepare and submit a statement of the same to the Controller of Budget.

46.
Overall responsibility of Cabinet Secretary
(1)

The Cabinet Secretary shall, in addition to his or her other functions under the Constitution, this Act and any other legislation—

(a)

oversee the formulation of macro-economic and financial policies of the Government;

(b)

by agreement, assist national government entities and county governments in building capacity for efficient, effective and transparent financial management;

(c)

where applicable, support the efforts of national government entities and county governments to avert or resolve their financial problems.

(2)

Within twenty-one days after the end of each month, the Cabinet Secretary shall publish in the Gazette a statement of actual revenues collected by category and net exchequer issues by the National Treasury.

(3)

In the performance of the duties and functions under this Act the Cabinet Secretary shall—

(a)

seek views from county governments on the proposed macro-economic and financial policies using the Intergovernmental Budget and Economic Council established under this Act;

(b)

share with national government entities and county governments any findings that may assist national government entities and county governments in improving their financial management; and

(c)

upon detecting any emerging or impending financial problems in a national government entity or county government, immediately alert the national government entity or county government of the problem.

47.
Conditions for receiving grants and donations by national government or its entities or third parties
(1)

In this section and section 48—

(a)

“donation” means a gift or a contribution;

(b)

“grant” means financial or other assistance by a development partner which is not repayable and—

(i) under which public money is paid to or used by a grant recipient;
(ii) which is intended to finance or facilitate the development of projects or delivery of services or otherwise assist the grant recipient to achieve goals that are consistent with the policy objectives of the national government; and
(iii) under which the grant recipient is required to act in accordance with any terms or conditions specified in a grant agreement.
(c)

“grant recipient” means the national government or a national government entity authorised to control or spend money under this Act or an incorporated or unincorporated body not otherwise authorised to control or spend money under this Act;

(d)

“intended beneficiaries” means the people of Kenya whom the projects or public services financed by a grant are intended to benefit;

(e)

“third party” means any other person other than a public officer.

(2)

Subsections (3) to (10) apply to the national government and a national government entity.

(3)

The national government or a national government entity may receive a grant or donation from a development partner with the approval of the Cabinet Secretary and only as provided by this section.

(4)

Funds received in the form of grants or donations shall only be spent in accordance with Articles 221 and 223 of the Constitution and this section.

(5)

As soon as possible after receiving the grant or donation, the recipient shall notify the Cabinet Secretary of the receipt.

(6)

If a project that is being financed by a grant or donation requires national government funding, the project may only be started when—

(a)

the required funding has been appropriated in accordance with this Act or is authorised by other legislation; or

(b)

the Cabinet Secretary has given a written authorisation for the project to start.

(7)

The Cabinet Secretary shall inform Parliament of the authorisation given under subsection (6)(b) in accordance with Article 223 of the Constitution.

(8)

The recipient of a grant or donation from a development partner shall record the amount or value of the grant or donation in its books of accounts.

(9)

Subject to audit in terms of Article 229(4) of the Constitution, the recipient of a grant or donation shall administer and account for the grant or donation by using—

(a)

government financial accounting and auditing laws and, administrative procedures; or

(b)

any financial accounting rules and procedures for money specified in the agreement between the recipient and the development partner.

(10)

The Cabinet Secretary may in addition to the audit under subsection (9), permit a donor of a grant to audit such funds on the basis of its own financial accounting rules.

48.
Regulations on grant administration
(1)

Regulations approved by Parliament shall provide for the administration, control and management of grants, including—

(a)

procedures to ensure that grants are spent on the basis of the integrated national development plan;

(b)

procedures for the allocation and disbursement of the grants;

(c)

requiring that grants be used only to finance programmes within the integrated development plan;

(d)

the publication of transparent criteria for the allocation of grants;

(e)

requiring specific terms and conditions in agreements to which grant recipients are subjected;

(f)

procedures for the budgeting, financial management, accounting and reporting of grants by grants recipients;

(g)

procedures under which a third party may be authorised to receive, control or pay public money as a grant; and

(h)

measures to ensure that a third party authorised to receive, control or pay public money as a grant, or responsible for any other aspect of administration of a grant, is subject to the same obligations as a public officer under this Act.

(2)

Regulations under subsection (1) shall include measures to ensure public disclosure, accountability and participation in relation to the grants, including—

(a)

timely public disclosure to intended beneficiaries of the allocation and disbursement of grants to grant recipients;

(b)

timely public disclosure by grant recipients to intended beneficiaries of expenditure and performance achieved in relation to the grant;

(c)

measures to facilitate intended beneficiaries to participate in the design and management of projects or public services financed by the grant;

(d)

measures allowing intended beneficiaries to report instances of non-compliance with the regulations or grant agreement;

(e)

sanctions to be imposed on grant recipients for non-compliance with grant conditions by any grant recipient; and

(f)

obligations of a public officer or third party authorised to receive, control or pay public money as grants.

(3)

A third party shall not receive, have custody of, or pay public money otherwise than in accordance with an authorisation given in accordance with regulations made under subsection (1).

(4)

A third party who contravenes provision under subsection (3), commits an offence and is liable on conviction to a term of imprisonment not exceeding two years or to a fine not exceeding one million shillings, or to both and shall make good the loss arising from the use of public funds contrary to law.

49.
Authority for borrowing by the national government
(1)

Subject to provisions of this Act, the Cabinet Secretary may, on behalf of the national government, raise a loan only if the loan and the terms and conditions for the loan are set out in writing and in accordance with—

(a)

the fiscal responsibility principles and the financial objectives set out in the most recent Budget Policy Statement; and

(b)

the debt management strategy of the national government over the medium term.

(2)

A loan may be raised either within Kenya or from outside Kenya.

50.
Obligations and restrictions on national government guaranteeing and borrowing
(1)

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

(2)

The national government may borrow money in accordance with this Act or any other legislation and shall not exceed a limit set by Parliament.

(3)

The national government may borrow money only for the budget as approved by Parliament and the allocations for loans approved by Parliament.

(4)

The guarantee of debt shall be done in terms of criteria agreed with the Intergovernmental Budget and Economic Council and prescribed in regulations approved by Parliament.

(5)

Parliament shall provide for thresholds for the borrowing entitlements of the national government and county governments and their entities.

(6)

A public debt incurred by the national government is a charge on the Consolidated Fund, unless the Cabinet Secretary determines, by regulations approved by Parliament, that all or part of the public debt is a charge on another public fund established by the national government or any of its entities.

(7)

The Cabinet Secretary shall ensure that the proceeds of any loan raised under this Act are—

(a)

paid into the Consolidated Fund;

(b)

paid into any other public fund established by the national government or any of its entities as the Cabinet Secretary may determine in accordance with regulations approved by Parliament;

(c)

disbursed directly to the suppliers where the loan is a government to government loan and is raised for the purpose of financing goods and services provided by a supplier outside Kenya; or

(d)

in the case of an external loan or external government security, applied, in part, to pay at closing, pre-negotiated expenses associated solely and exhaustively with the borrowing, including but not limited to, the fees, commissions and expenses of lenders, financial arrangers, managers and book runners, fiscal agents, trustees, paying agents, exchange and information agents, syndicate agents, counsel, clearing systems, listing agents, and stock exchanges, rating agencies and other expenses of a similar nature arising from the external loan or external government security.

(8)

The Cabinet Secretary may, by regulations approved by Parliament, establish such sinking fund or funds for the redemption of loans raised under this Act by the national government.

(9)

The Cabinet Secretary may, subject to Article 227 of the Constitution and in accordance with national legislation on Public Procurement and Asset Disposal—

(a)

appoint advisers, agents and underwriters for the purpose of raising loans and issuing, managing or redeeming national government securities; and

(b)

enter into agreements with the advisers, agents and underwriters appointed under paragraph (a) on the role to be undertaken by them and the remuneration to be paid to them.

(10)

Any expenses incurred in connection with borrowing by the national government or the issue of national government securities is a charge—

(a)

on the Consolidated Fund; or

(b)

on such other public fund established by the national government or any of its entities as the Cabinet Secretary may determine by regulations approved by Parliament.

(11)

The costs, interests and principal payments made by the national government concerning loans to each level of government shall be passed on by the national government to the relevant level of government.

(12)

A copy of the details of the expenses and costs referred to under subsections (10) and (11) shall be submitted to the Controller of Budget and to Parliament, at the end of each quarter.

[Act No. 6 of 2014, s. 5.]

51.
Borrowing by national government entities
(1)

A national government entity may borrow in accordance with this Act or any other Act of Parliament.

(2)

A national government entity shall obtain the approval of the Cabinet Secretary for its intended program of borrowing, refinancing and repayment of loans—

(a)

over the medium term; and

(b)

for the forthcoming financial year, prior to the beginning of that financial year.

(3)

A national government entity shall also obtain the approval of the Cabinet Secretary before making any changes to its program of borrowing, refinancing and repayment during a financial year.

(4)

The national government is not liable to contribute towards payment of any debt or liability of a national government entity, unless the national government has guaranteed the debt or liability.

52.
Persons authorized to execute loan documents at national government
(1)

The Cabinet Secretary or any person designated by the Cabinet Secretary in writing is authorised to execute loan documents for borrowing by the national government.

(2)

Despite the provisions of subsection (1), the following persons are authorised to execute loan documents for borrowing by a National government entity—

(a)

the accounting officer responsible for the entity; or

(b)

any other specified officer authorised by legislation to execute such documents on behalf of the entity.

53.
Issuance of securities by national government
(1)

The national government may issue national government securities, whether for money that it has borrowed or for any other purpose, only in circumstances expressly authorised by this Act.

(2)

The Cabinet Secretary may issue national government securities on behalf of the national government for money borrowed by the national government in accordance with criteria prescribed by regulations approved by Parliament for the purpose of this subsection.

(3)

Any national government securities issued by the Cabinet Secretary under this section shall be within the borrowing limits set out by the National Assembly under section 50(2).

(4)

The authority of the Cabinet Secretary to borrow money includes the authority to borrow money by issuing national government securities.

(5)

National government securities may be issued in one or more series and in accordance with prescribed regulations.

(6)

An agreement to obtain a loan by the national government or a national government entity may be amended from time to time and where the amendment results in further indebtedness or prejudice to the entity that borrowed, the amendment shall be approved by Parliament.

(7)

The Cabinet Secretary shall ensure that every national government security issued under this section is given in the name of the Republic of Kenya.

(8)

A national government security may be executed on behalf of the national government only by—

(a)

the Cabinet Secretary;

(b)

a delegate appointed by the Cabinet Secretary; or

(c)

a borrowing agent appointed for the purposes of this Act.

(9)

For the purposes of subsection (8), it shall be sufficient if the signature of a person who is required to execute a national government security under this section is reproduced on the security.

(10)

The Cabinet Secretary may authorise in writing the issue of a duplicate national government security to replace a national government security that is lost, damaged, or destroyed, but only if the Cabinet Secretary is satisfied that the loss, damage or destruction has occurred.

(11)

Subject to any other legislation, secondary trading of national government securities shall be carried out only in such manner as may be prescribed by regulations made for that purpose and for purposes of this subsection “secondary trading” means any activity leading to a change in the ownership of a national government security before its redemption date.

(12)

Nothing provided in this section shall prevent, government securities to be issued and exist in electronic form as a debt entry.

(13)

If the proceeds of a national government security have not been collected by, or cannot be paid to, the holder of the security because the whereabouts of the holder or, if the holder has died, the whereabouts of the holder’s personal representatives, are unknown, the Cabinet Secretary shall arrange for the National Treasury to credit the amount of money due to the holder to an interest free account for the holder’s benefit.

(14)

If, after six years from the redemption date of a national government security, the proceeds of the security have not been collected by, or paid to, the holder or the holder’s personal representatives, the Cabinet Secretary shall return the uncollected amount to the National Exchequer Account to form part of the Consolidated Fund in accordance with regulations.

(15)

The right of any person who has a legitimate claim to the proceeds of a security is not affected by the payment of the proceeds into the Consolidated Fund.

(16)

The Cabinet Secretary shall publish and publicise annually all payments made in terms of subsection (13).

[Act No. 6 of 2014, s. 6.]

53A.
Issuance of external securities by national government
(1)

Notwithstanding the provisions of section 53 of this Act, the national government may issue external government securities, for money borrowed or for any other purpose, only in circumstances expressly authorised by this Act.

(2)

The Cabinet Secretary may raise an external loan or issue external government securities, authorized by this Act, on behalf of the national government for money borrowed by the national government in such manner as the Cabinet Secretary may determine.

(3)

Any external loans or external government securities issued by the Cabinet Secretary under this section shall be within the borrowing limits set by Parliament under section 50(2) of this Act.

(4)

The authority of the Cabinet Secretary to borrow money includes the authority to borrow money by raising external loans or issuing external government securities.

(5)

The Cabinet Secretary shall ensure that every external loan or external government security issued under this section is given in the name of the Republic of Kenya.

(6)

An external loan or external government security may be executed on behalf of the national government only by—

(a)

the Cabinet Secretary;

(b)

a delegate appointed by the Cabinet Secretary, in writing; or

(c)

a borrowing agent appointed in accordance with section 50(9) of this Act.

(7)

For the purposes of subsection (6), it shall be sufficient if the signature of a person who is required to execute an external government security under this section is reproduced on the security.

(8)

External government securities shall be registered and may be recorded and traded in accordance with the terms and conditions of the external government security.

(9)

Claims against the borrower or issuer by holders of external loans or external government securities for payment shall be prescribed and become void if the claims are not made within six (6) years from the redemption date in the case of principal and five years from the due date in the case of interest or any other amount.

(10)

In the case of external government securities, a duplicate external government security may be issued in accordance with the terms and conditions applicable to the external government security to replace an external government security that is lost, damaged or destroyed.

[Act No. 6 of 2014, s. 7.]

54.
Exemption from stamp duty

Duty is not chargeable under the Stamp Duty Act (Cap. 480) for the issue of a national government security.

55.
Establishment of the office of Registrar of national government securities
(1)

There is established an office of the Registrar of the National Government Securities which shall be an office under the Public Debt Management Office.

(2)

The office of Registrar of the National Government Securities shall be headed by the Registrar who shall be competitively recruited and appointed by the Cabinet Secretary.

(3)

The Registrar shall establish and maintain a register, to be known as the Register of the National Government Securities in which shall be recorded details of all securities issued by or on behalf of the national government.

(4)

Securities issued by or on behalf of the national government shall be published and publicised.

(5)

An entry in the Register relating to a national government security is evidence of the ownership of the security, unless the contrary is proved.

(6)

The holder of a national government security recorded in the Register may, in writing, request the Registrar to amend the entry relating to the security.

(7)

If a request under subsection (6) is in accordance with guidelines given by the Cabinet Secretary for the purposes of this subsection, the Registrar shall, in accordance with the request, amend the entry in the Register relating to the security.

(8)

The Registrar shall provide the holder of a national government security with a consolidated statement in writing, showing all entries in the register relating to the security—

(a)

as soon as practicable after the security is issued;

(b)

at least once during each year the security is held; and

(c)

immediately after the security is redeemed.

(9)

On receiving a written request from the holder of a national government security, the Registrar shall provide the holder with a statement showing all entries in the Register relating to the security.

(10)

The provisions of this section shall not apply to external government securities except that notifications shall be made in the Register of the National Government Securities to reflect the outstanding amount of each issue of external debt securities.

[Act No. 6 of 2014, s. 8.]

56.
Power of national government to enter into derivative transactions
(1)

The national government may enter into derivative transactions, either directly or indirectly through an intermediary, but only within the framework and limits of the Budget Policy Statement and in a manner prescribed by regulations.

(2)

The Cabinet Secretary may, on behalf of the national government, in exceptional circumstances enter into a derivative transaction if it appears to that Cabinet Secretary to be in the public interest to do so and the transaction does not result in commitment that is beyond what is contained in the Budget Policy Statement.

(3)

The Cabinet Secretary may enter into a derivative transaction on such terms and conditions, within the scope prescribed by the regulations approved by the National Assembly.

(4)

Money required to be paid by the national government under a derivative transaction entered into under this section shall be a charge—

(a)

on the Consolidated Fund; or

(b)

on some other public fund established for the purpose of making such payments, if the Cabinet Secretary determines so.

(5)

Any expense incurred in connection with a derivative transaction entered into by the national government or by the Cabinet Secretary on behalf of the national government shall be a charge on the Consolidated Fund and no further appropriation than this section shall be required.

(6)

Derivative transactions entered into in terms of this section shall be published and publicised.

57.
Power of national government to lend money
(1)

The national government is authorised to lend money but only in accordance with terms and conditions prescribed by the regulations approved by Parliament.

(2)

A national government entity may lend money only if authorised to do so by an Act of Parliament and in accordance with terms and conditions prescribed in regulations.

(3)

The Cabinet Secretary may, in relation to any money sent by the national government under this section—

(a)

accept money payable under the loan in any currency considered appropriate by the Cabinet Secretary in consultation with the Central Bank of Kenya; and

(b)

agree at any time to revise upwards any security given in respect of that loan.

(4)

Money loaned under this section is payable only—

(a)

from an appropriation for development expenditure; or

(b)

from some other authority approved by Parliament for the purpose for which the loan is made.

(5)

The Cabinet Secretary shall ensure that a security given in respect of a loan under this section is given in the name of the national government.

(6)

The Cabinet Secretary may, on behalf of the national government, carry out any of the responsibilities and exercise any of the powers of the national government with respect to securing a loan granted by the national government.

58.
Power of Cabinet Secretary to guarantee loans
(1)

Subject to subsection (2), the Cabinet Secretary may guarantee a loan of a county government or any other borrower on behalf of the national government and that loan shall be approved by Parliament.

(2)

The Cabinet Secretary shall not guarantee a loan under subsection (1) unless—

(a)

the loan is for a capital project;

(b)

the borrower is capable of repaying the loan, and paying any interest or other amount payable in respect of it;

(c)

in the case of a private borrower, there is sufficient security for the loan;

(d)

the financial position of the borrower over the medium term is likely to be satisfactory;

(e)

the terms of the guarantee comply with the fiscal responsibility principles and financial objectives of the national government;

(f)

where Parliament has passed a resolution setting a limit for the purposes of this section—

(i) the amount guaranteed does not exceed that limit; or
(ii) if it exceeds that limit, the draft guarantee document has been approved by resolution of both Houses of Parliament;
(g)

the Cabinet Secretary takes into account the equity between the national government’s interests and the county government’s interests so as to ensure fairness;

(h)

the borrower complies with any conditions imposed by the Cabinet Secretary in accordance with the regulations;

(i)

the Cabinet Secretary has taken into account the recommendation of the Intergovernmental Budget and Economic Council in respect of any guarantee to a county government; and

(j)

the loan is made in accordance with provisions of this Act and any regulations made thereunder.

(3)

Parliament may approve a draft loan guarantee document as provided by subsection (2)(f)(ii) only if satisfied that—

(a)

the guarantee is in the public interest;

(b)

the borrower’s financial position is strong enough to enable the borrower to repay the loan proposed to be guaranteed and to pay interest or other amounts payable in respect of the loan; and

(c)

the loan is geared towards stimulating economic growth in a county government.

(4)

To enable Parliament to decide whether or not to approve a draft loan guarantee document as provided by subsection (3), the Cabinet Secretary shall prepare and submit to each of the House of Parliament a paper that—

(a)

gives details of the loan that is proposed to be guaranteed, including the amount of the loan, the terms of repayment, and the details of the interest or any other amount payable under the loan;

(b)

specifies the national government’s total contingent liability under guarantees given under this section; and

(c)

specifies any other information that the Cabinet Secretary considers relevant.

(5)

Notwithstanding the provisions of subsection (2) (c), the Cabinet Secretary may guarantee credit which is extended to a private borrower, for enterprise development or such other purpose as the Cabinet Secretary may prescribe, where the borrower does not have sufficient security.

(6)

The Cabinet Secretary may only guarantee credit which is extended to a borrower under subsection (5), if the borrower-

(a)

is a micro, small or medium enterprise;

(b)

is registered as a business or company under the relevant laws;

(c)

is a registered taxpayer and is in compliance with the relevant tax laws;

(d)

is registered by a county government and holds a valid business permit or trade licence;

(e)

is not part of any group or related to any enterprise which would otherwise not be eligible for credit guarantee under this section; and

(f)

agrees in writing to comply with the provisions of this Act and any conditions that may be imposed by the Cabinet Secretary.

(7)

A guarantee for credit extended to a micro, small or medium enterprise under subsection (5) shall be for a portion of the credit.

(8)

A guarantee for credit extended to a micro, small or medium enterprises shall be given under a scheme established by the Cabinet Secretary for the partial mitigation of default risks for credit extended to micro, small or medium enterprises.

(9)

The Cabinet Secretary shall prescribe regulations for the operation of the scheme under subsection (8) which shall, provide for the following —

(a)

the institutions that shall be eligible to extend credit to micro, small or medium enterprises for which guarantees may be given under subsection (5);

(b)

enterprises that shall be eligible to be given a guarantee under subsection (5);

(c)

the conditions for a grant of guarantee for credit extended to a micro, small or medium enterprise under subsection (5);

(d)

the proportion of security for the credit that a micro, small or medium enterprise shall provide before being granted a guarantee under subsection (5);

(e)

the types of credit extended to micro, small or medium enterprises that shall be eligible for guarantees under subsection (5);

(f)

the periods for which guarantees for credit to micro, small and medium enterprises shall be applicable;

(g)

the circumstances under which a credit guarantee shall be liquidated or varied if a borrower defaults on credit that was guaranteed under subsection (5);

(h)

the maximum percentage of the Scheme funds which may be used to guarantee any individual borrower;

(i)

mechanisms to ease access to credit guarantees by enterprises owned by women, youth and persons with disabilities;

(j)

mechanisms for recovering the money from the borrower where the credit guarantee is liquidated;

(k)

a limit on the period of default to a maximum of six months; and

(l)

any other relevant matter.

[Act No. 16 of 2020, s.4]

59.
Cabinet Secretary to submit a statement on loan guarantee to Parliament

Not later than fourteen days after the guarantee is entered into, the Cabinet Secretary shall submit to Parliament and publish a statement—

(a)

stating that a guarantee is entered into; and

(b)

containing details of—

(i) the guarantee, including the name and other particulars of the borrower whose loan is guaranteed;
(ii) the duration and nature of the guarantee;
(iii) a risk assessment in respect of the guarantee; and
(iv) any other information prescribed by regulations for the purposes of this subsection.
59A.
Cabinet Secretary to submit a report on credit guarantees to micro, small and medium enterprises to Parliament.
(1)

The Cabinet Secretary shall prepare a statement of the credit guarantees granted under section 58 (5) and a summary thereon in such detail as the Cabinet Secretary may determine.

(2)

The Cabinet Secretary shall, at least once in every year, submit to Parliament the summary prepared under subsection (1) together with a report of—

(a)

the total value of credit guarantees given during that period;

(b)

the total value of credit guarantees liquidated during that period;

(c)

the total value of outstanding credit guarantees on the date of

the report;

(d)

the risk assessment of the credit guarantees or classes of guarantees;

(e)

information on the total value of credit guarantees, disaggregated into the number of enterprises owned by women, youth and persons with disabilities which have been guaranteed;

(f)

information on the total value of credit guarantees, disaggregated into the number of micro, small and medium enterprises guaranteed and by the respective regions; and

(g)

any other relevant information prescribed by regulations for the purposes of this section.

[Act No. 16 of 2020, s.5]

60.
Money payable in respect of a guarantee to be a charge on the Consolidated Fund
(1)

Subject to subsection (2), money payable on a guarantee is a charge on, and is payable out of, the Consolidated Fund without further appropriation than this section.

(2)

Money payable on a guarantee shall be paid only if the payment has been authorised by the Controller of Budget.

(3)

Where money is paid out of the Consolidated Fund on a guarantee, the Cabinet Secretary shall submit a report to Parliament giving details of the payment.

(4)

The Cabinet Secretary shall include in the report made under subsection (3)—

(a)

details of the guarantee;

(b)

the circumstances giving rise to the payment;

(c)

reasons why the borrower failed to pay; and

(d)

such further information as the Cabinet Secretary may consider relevant.

61.
Recovery of amounts paid on a guarantee
(1)

Money paid by the Cabinet Secretary’ on a guarantee, including any expenses incurred by the Cabinet Secretary in respect of the guarantee, shall—

(a)

be a debt due to the national government from the borrower whose loan was guaranteed; and

(b)

be recoverable from the borrower as a debt due to the national government by—

(i) proceedings brought in a court of competent jurisdiction; or
(ii) withholding a transfer of money in terms of Article 225 of the Constitution, if the borrower receives appropriations.
(2)

Where Cabinet considers that the debt is more likely to be recovered if the borrower is allowed to pay the debt over a period of time, the Cabinet Secretary may enter into an agreement with the borrower to pay the debt over that period and at such intervals, and subject to such terms and conditions, as may be specified in the agreement.

(3)

The Cabinet Secretary shall not impose terms and conditions in an agreement under subsection (2) which are inconsistent with the terms and conditions specified in the guarantee document.

(4)

Where the Cabinet Secretary enters into an agreement under subsection (2), no proceedings under subsection (1)(b) shall be taken unless the borrower defaults under the agreement.

(5)

The Cabinet Secretary shall ensure that any money received or recovered from a borrower in respect of money paid under a guarantee entered into under this section is paid into the Consolidated Fund.

62.
Establishment and objectives of the Public Debt Management Office
(1)

There is established an office to be known as the Public Debt Management Office within the National Treasury.

(2)

The Head of the Public Debt Management Office shall be recruited through a competitive process by the Public Service Commission.

(3)

The objectives of the Public Debt Management Office shall be to—

(a)

minimise the cost of public debt management and borrowing over the long-term taking account of risk;

(b)

promote the development of the market institutions for Government debt securities; and

(c)

ensure the sharing of the benefits and costs of public debt between the current and future generations.

63.
Functions of the Public Debt Management Office

The functions of the Public Debt Management Office shall include—

(a)

carrying out the government’s debt management policy of minimising its financing cost over the long-term taking account of risk;

(b)

maintaining a reliable debt data base for all loans taken by the national government, county governments and their entities including other loans guaranteed by the national government;

(c)

prepare and update the annual medium-term debt management strategy including debt sustainability analysis;

(d)

prepare and implement the national government borrowing plan including servicing of outstanding debts;

(e)

acting as the principal in the issuance of Government debt securities on behalf of the National Treasury;

(f)

monitor and evaluate all borrowing and debt-related transactions to ensure that they are within the guidelines and risk parameters of the debt management strategy;

(g)

process the issuance of loan guarantees including assessment and management of risks in national government guarantees.

(h)

transact in derivative financial instruments in accordance with best international practices benchmarked to the debt management offices of other governments that are internationally respected for their practices.

64.
Role of Cabinet Secretary in Public Debt Management Office
(1)

The Cabinet Secretary shall—

(a)

develop the policy and financial framework in accordance with Constitutional principles within which the Public Debt Management Office operates;

(b)

delegate to the Head of the Public Debt Management Office the operational decisions on borrowing and debt management and the day-to-day management of the Office;

(c)

ensure that the Public Debt Management Office has the resources and skills to manage the debt and borrowing according to international best practices for liability management; and

(d)

be accountable to Parliament for the work of the Public Debt Management Office.

(2)

The Public Debt Management Office shall prepare and submit to the Cabinet Secretary and the Commission on Revenue Allocation the following reports—

(a)

the Medium Term Debt Management Strategy consistent with the Budget Policy Statement;

(b)

the government borrowing plan for the approved Annual Budget;

(c)

the statistical and analytical reports on debt and borrowing; and

(d)

the annual performance reports of the Public Debt Management Office.

(3)

The reports referred to in subsection (2) shall be published and publicised and a copy of each sent to each county government.

(4)

The Public Debt Management Office may appoint agents to provide technical advice or undertake administrative functions for the management of debts provided that control and accountability for these functions remain with the Cabinet Secretary.

65.
Relationship with county treasuries in debt management
(1)

At the request of a County Treasury, the Public Debt Management Office shall assist the county government in its debt management and borrowing.

(2)

At the request of the Public Debt Management Office, the County Treasury shall supply the Public Debt Management Office with any information that shall enable it to execute its mandate efficiently.

66.
Accounting officers of Judiciary, Parliament, constitutional commissions and independent offices
(1)

Subject to the Constitution, the accounting officers of the Judiciary, Parliamentary Service Commission, constitutional commissions and independent offices shall monitor, evaluate and oversee the management of public finances in their respective entities, including—

(a)

the promotion and enforcement of transparency, effective management and accountability with regard to the use of public finances;

(b)

ensuring that accounting standards are applied;

(c)

the implementation of financial policies in relation to public finances;

(d)

ensuring proper management and control of, and accounting for, their finances in order to promote the efficient and effective use of budgetary resources;

(e)

the preparation of annual estimates of expenditures;

(f)

acting as custodian of the entity’s assets, except where provided otherwise by any other legislation or the Constitution;

(g)

monitoring the management of public finances and their financial performance;

(h)

making quarterly reports to the National Assembly on the implementation of their budget; and

(i)

taking such other actions, not inconsistent with the Constitution, as shall further the implementation of this Act.

[ Act No. 38 of 2016, s. 58.]

67.
Designation of accounting officers for national government
(1)

The Cabinet Secretary, except as otherwise provided by law, shall in writing designate accounting officers to be responsible for the proper management of the finances of the different national government entities as may be specified in the different designations.

(2)

Except as otherwise stated in other legislation, the person responsible for the administration of a Constitutional Commission or institution or Independent Office shall be the accounting officer responsible for managing the finances of that Commission, institution or Independent Office.

(3)

The Cabinet Secretary shall ensure that at any time there is an accounting officer in each national government entity.

68.
Responsibilities of accounting officers for national government entities, Parliament and the Judiciary
(1)

An accounting officer for a national government entity, Parliamentary Service Commission and the Judiciary shall be accountable to the National Assembly for ensuring that the resources of the respective entity for which he or she is the accounting officer are used in a way that is—

(a)

lawful and authorised; and

(b)

effective, efficient, economical and transparent.

(2)

In the performance of a function under subsection (1), an accounting officer shall—

(a)

ensure that all expenditure made by the entity complies with subsection (1);

(b)

ensure that the entity keeps financial and accounting records that comply with this Act;

(c)

ensure that all financial and accounting records the entity keeps in any form, including in electronic form are adequately protected and backed up;

(d)

ensure that all contracts entered into by the entity are lawful and are complied with;

(e)

ensure that all applicable accounting and financial controls, systems, standards, laws and procedures are followed when procuring or disposing of goods and services and that, in the case of goods, adequate arrangements are made for their custody, safeguarding and maintenance;

(f)

bring any matter to the attention of the Cabinet Secretary responsible for the entity, or the Chief Justice or the Speaker of the National Assembly if, in the accounting officer’s opinion, a decision or policy or proposed decision or policy of the entity may result in resources being used in a way that is contrary to subsection (1);

(g)

prepare a strategic plan for the entity in conformity with the medium term fiscal framework and fiscal policy objectives of the national government;

(h)

prepare estimates of expenditure and revenues of the entity in conformity with the strategic plan referred to in paragraph (g);

(i)

submit the estimates of the public entity which is not a state corporation to the Cabinet Secretary;

(j)

submit the estimates of a public entity which is a state corporation to the Cabinet Secretary responsible for that state corporation who, after approving it, shall forward it to the Cabinet Secretary;

(k)

prepare annual financial statements for each financial year within three months after the end of the financial year, and submit them to the Controller of Budget and the Auditor-General for audit, and in the case of a national government entity, forward a copy to the National Treasury;

(l)

take appropriate measures to resolve any issues arising from audit which may remain outstanding;

(m)

provide information on any fraud, losses, or any violation of subsection (1) and explanation for the actions taken to prevent a similar problem in future;

(n)

provide the National Treasury and any other office, where relevant, with any information it may require to fulfil its functions under this Act; and

(o)

in case of a national government entity, carry out such other functions as may be specified by the Cabinet Secretary.

(3)

If the concerns referred to in subsection (2)(f) are not adequately addressed by the Cabinet Secretary or the Chief Justice or the Speaker of the National Assembly, the accounting officer shall bring those concerns to the attention of Parliament.

(4)

Not later than three months after the National Assembly has adopted a report by a relevant committee of the National Assembly in respect of a report submitted by the Controller of Budget under Article 228(6) of the Constitution, an accounting officer shall—

(a)

prepare a report on actions taken by the entity to implement any recommendations made in the committee’s report as adopted by the National Assembly; and

(b)

submit the report to the National Assembly and in case of a national government entity, copy to the National Treasury and the Controller of Budget.

(5)

A report referred to in subsection (4) shall be published and publicised.

69.
Accounting officer of a national government entity may write-off loss
(1)

An accounting officer for a national government entity may write-off any loss not exceeding a prescribed amount, and in circumstances prescribed by regulations for the purposes of this section.

(2)

An accounting officer for a national government entity, may with the approval of the Cabinet Secretary, write off a loss exceeding the amount referred to in subsection (1) but not exceeding a further amount and in circumstances prescribed by regulations.

(3)

The Cabinet Secretary may, with the approval of Cabinet, authorise an accounting officer to writeoff a loss exceeding the amount referred to in subsection (2).

(4)

An accounting officer for a national government entity shall maintain a record of any losses that are written off during a financial year and shall include the record in the entity’s financial statements for that year.

70.
Spending authority of accounting officer

If a national government entity has expenditures that are charged on the Consolidated Fund under the Constitution or an Act of Parliament, the accounting officer has the authority to spend the money in accordance with the purposes specified in legislation without an appropriation.

71.
Accounting officer for national government entity may make cash advances
(1)

An accounting officer for a national government entity may authorise payment of cash advances to public officers to enable them make payments for the entity or in the course of their duties.

(2)

A public officer to whom cash advance is made under subsection (1), shall account for the advance within a reasonable period.

(3)

A public officer to whom cash advance has been made under subsection (1), shall return the balance of the cash advanced together with signed supporting documents for the expenditure incurred in accordance with any requirement set out in any of the following—

(a)

the documents used to apply for or authorise the advance;

(b)

regulations prescribed for the purpose of this section; and

(c)

any written notice given to the officer by the accounting officer.

(4)

If a public officer to whom cash advance is made under subsection (1) fails to account for the advance, or fails to return it as required by subsection (3)—

(a)

the amount of the advance not accounted for or not returned becomes a debt owed by the officer;

(b)

the debt becomes subject to the payment of interest at a rate prescribed by regulations for the purpose of this subsection; and

(c)

the debt, including the interest on it, is recoverable by that entity by making a deduction from any salary or other amount that is payable to the officer.

72.
Accounting officer to manage assets and liabilities of national government entities
(1)

The accounting officer for a national government entity shall—

(a)

be responsible for the management of the entity’s assets and liabilities; and

(b)

manage those assets in a way which ensures that the national government entity achieves value for money in acquiring, using and disposing of those assets.

(2)

The accounting officer for a national government entity may dispose of assets only in accordance with an Act of Parliament pursuant to Article 227 of the Constitution and shall ensure that the proceeds from all asset disposals are deposited into a bank account of the entity.

(3)

A national government entity shall not loan or transfer assets to any person or organisation or permit any person or organisation to use assets for purposes other than carrying out the functions of the entity, except in accordance with an Act of Parliament enacted pursuant to Article 227 of the Constitution.

(4)

Regulations may provide for the management and disposal of Government assets and for the monitoring of the management and disposal of those assets by national government entities in accordance with an Act of Parliament enacted pursuant to Article 227 of the Constitution.

73.
National government entity to maintain internal auditing arrangements
(1)

Every national government entity shall ensure that it complies with this Act and—

(a)

has appropriate arrangements in place for conducting internal audit according to the guidelines of the Accounting Standards Board; and

(b)

where any regulations are in force under subsection (2), those regulations are complied with.

(2)

Regulations may prescribe requirements to be complied with in conducting internal audits.

(3)

The Internal Auditor-General Department of the National Treasury shall ensure that its arrangements for conducting internal auditing include—

(a)

reviewing the governance mechanisms of the entity and mechanisms for transparency and accountability with regard to the finances and assets of the entity;

(b)

conducting risk-based, value-for-money and systems audits aimed at strengthening internal control mechanisms that could have an impact on achievement of the strategic objectives of the entity;

(c)

verifying the existence of assets administered by the entity and ensuring that there are proper safeguards for their protection;

(d)

providing assurance that appropriate institutional policies and procedures and good business practices are followed by the entity; and

(e)

evaluating the adequacy and reliability of information available to management for making decisions with regard to the entity and its operations.

(4)

A national government entity shall ensure that internal audits in respect of the entity are conducted in accordance with international best practices.

(5)

Every national government public entity shall establish an audit committee whose composition and functions shall be as prescribed by the regulations.

74.
Disciplinary measures against public and accounting officers
(1)

Subject to the Constitution, the Public Officers Ethics Act (No. 4 of 2003) and the Public Service codes of ethics or any other relevant laws, if an accounting officer reasonably believes that a public officer employed by a national government entity is engaging in, or has engaged in improper conduct within the meaning of subsection (4) in relation to the resources of the entity, the accounting officer shall—

(a)

take appropriate measures to discipline the public officer in accordance with regulations; or

(b)

refer the matter to the relevant office or body in terms of the statutory and other conditions of appointment or employment applicable to that public officer.

(2)

If a Cabinet Secretary reasonably believes that an accounting officer is engaging in or has engaged in improper conduct within the meaning of subsection (4), the Cabinet Secretary shall—

(a)

take such measures as may be provided in regulations; or

(b)

refer the matter to the relevant office or body in terms of the statutory and other conditions of appointment or employment applicable to that accounting officer.

(3)

The measures referred to in subsection (2)(a) include revoking the position as accounting officer.

(4)

For the purposes of this section, a public officer or accounting officer engages in improper conduct in relation to a national government entity if the officer—

(a)

contravenes or fails to comply with this Act, including their accounting responsibilities;

(b)

undermines any financial management procedures or controls that apply to the entity;

(c)

makes or permits expenditure that is unlawful or has not been authorised by the entity; or

(d)

fails, without reasonable excuse, to pay eligible and approved bills promptly in circumstances where funds are provided for.

(5)

Disciplinary measures under this section may not be taken against a public officer or accounting officer under subsection (1)(a) or (2)(a) unless the officer has been given an opportunity to be heard in relation to the alleged improper conduct.

75.
Receivers and collectors of national government
(1)

The Cabinet Secretary shall, in writing, designate persons as receivers of national government revenue under Article 209(1), (2) and (4) of the Constitution and who shall be responsible for receiving and accounting for such national government revenue provided in any law or in regulations as the Cabinet Secretary may specify in the letter of appointment.

(2)

A receiver of national government revenue is responsible to the Cabinet Secretary for the collection of revenue for which he or she is responsible and such revenue shall be separately accounted for in accordance with Articles 206(1) and 209(1), (2) and (4) of the Constitution.

76.
Receiver may authorise a public officer to be collector of national government revenue
(1)

A receiver of the national government revenue may authorise a public officer employed by the national government or any of its entities to be a collector of revenue for the national government and remit it to the receiver.

(2)

Any public officer, other than a receiver or collector of revenue for the national government, who collects revenue for that national government shall, not later than three days after receiving it, deliver the revenue to a receiver or collector of revenue for the national government.

(3)

A receiver of revenue for the national government shall provide monthly statements to the National Treasury and the Commission on Revenue Allocation.

77.
Powers of the Cabinet Secretary to waive or vary tax, fees or charges

The Cabinet Secretary may waive a national tax, a fee or charge imposed by the National Government and its entities in accordance with criteria prescribed in regulations provided that—