Nyandarua Governor Kiarie Badilisha is under fire for allegedly breaching the law after implementing presidential roadside declarations that transferred county functions to the national government without proper legal procedure.
During a visit to the county, President Ruto pledged to construct the JM Memorial County Referral Hospital, which led to the abrupt termination of the contract between the county and Blue Valley Enterprises LTD.
When Kiarie appeared before the Senate County Public Accounts Committee (CPAC) on Thursday, the Office of the Auditor General (OAG) revealed that Nyandarua County had proposed the construction of a medical complex at JM Memorial County Referral Hospital, where the contractor was awarded a contract for Sh1.597 billion for a period of 156 weeks, commencing on July 7, 2021.
The OAG report noted that the estimated completion date was July 7, 2024, but was revised to July 1, 2026, while the contract price was varied to Sh1.597 billion, an increase of 8.72 percent in the contract sub.
Governor Badilisha told the senators that the stalling of the JM Memorial County Referral Hospital is a result of terminating the contract with the contractor (Blue Valley Enterprise LTD) and transferring the services to the Department of Defense (DOD).
"The county decided to construct a five-storey, 500-bed capacity building and we had a budget of 1.5B. When the president came visiting Nyandarua, we asked him because we had taken almost 10 years with our small budget, we requested that he assist us," Kiarie said.
"He is the one who gave us the executive order that the DOD come in to help."
Kiarie affirmed that the county terminated the contract, "DOD came and requested that we terminate the contract."
Article 187 of the Constitution allows for the transfer of functions or powers between the national and county governments by agreement. The transfer must make the function or power more effective to perform and cannot be prohibited by legislation.
Nairobi Senator Edwin Sifuna advised Governor Kiarie to follow Article 187, stating he should have followed the law when terminating the contract to allow a new procurement process to begin.
"We are saying if you transfer the county function, you will have to have an agreement with the government; the law requires that there is a formal agreement. Some of us don't put much value on those roadside declarations," Sen Sifuna said.
Taita Taveta Senator Johnes Mwaruma on his side, wanted to know how the materials are acquired to enable the construction process.
Senator Moses Kajwang' gently advised the county executive to adhere to the law.
"There is nothing wrong, the DOD is a national government entity, and in the presence of the president making those pronouncements, it has to be reduced to legal forms in the account of this matter. Adhere to Article 187," he said.
Nandi Senator Samson Cherargei demanded that Kiarie table the percentage of the work done so far but Kiarie declined to table it, citing a shortage of reports and promising to table it in the subsequent meetings.
"If 608 million has been paid governor, and the national government through DOD is coming with 988 million, what's the percentage remaining?" Cherargei asked.
Kajwang' insisted on following the legal framework, advising the governor that he should have accessed a conditional grant.
"The condition has not changed, the contractor hasn't changed, the client hasn't changed, but the only thing that has changed is the DOD coming into the picture. In the absence of the intergovernmental agreement, the needed thing was for the government to give you a grant. “Why didn’t you ask for a conditional grant?” Kajwang asked.
"You're safer having an agreement with the government of Kenya. It's a legal and a constitutional requirement," Sifuna told the county chief.
Senators observed that counties are in a financial quagmire, struggling with rising pending bills that prevent them from discharging their mandates decisively.
