Judge asks CJ to appoint bench to hear Busia trailer park case

A petition challenging Governor Paul Otuoma's decision not to make public procurement documents for the construction of the multi-million Mundika Trailer Park has been referred to Chief Justice Martha Koome for empanelment of the bench to hear the case.

Justice William Musyoka said the case lodged by Busia Senator Okiya Omtatah against Governor Otuoma raises serious questions of law and it is a matter of great public interest since the court decision may affect the 47 counties and all senators.

"I concede that these are issues raised that a single judge can quite comfortably deal with. However, I do note that they are matters or issues that go beyond Busia county, for whatever decision the court makes on the matter could impact on all the 47 counties and the Senate of Kenya. That would, therefore, make it a matter of substantial general public importance, and which substantially affects the rights of the parties, to warrant being heard by a bench or panel of more than one judge," the Judge said.

"I am persuaded, therefore, that the matter herein could be referred to the Chief Justice, for assignment of a bench of an uneven number of judges, being not less than three, to hear and determine the matter," he added.

He noted that the question whether a senator is entitled to access information from the county government that he represents in the Senate, as part of oversight, without having to pass through the Senate is critical.

"The question of law that would be addressed by multi-judge bench is whether the mandate of the Senate to oversight county governments, under Article 96, as read with Article 1(1), of the Constitution is, as argued by the respondents, limited to the corporate mandate of the chamber, the House relies on annual audit reports of the Auditor-General, carries out annual post-mortems on the operations and activities of the county government; or, as argued by the petitioner, whether it extends to the work done by an individual senator, exercising his individual oversight mandate, in his electoral unit, using Senate oversight funds, to monitor and evaluate ongoing projects being implemented by the county government," Justice Musyoka said.

Another question to be determined by the bench is whether a senator would be entitled to that information as an ordinary citizen, affected by the activities of the county government. 

"The issue is as to whom the county government should allow access to information, relating to projects that it plans to implement or is implementing within the county, and any other information relevant to any of its activities within the county," the Judge said.

Further, Justice Musyoka said that the bench to be appointed is expected to determine whether, as the chief executive of a county, pursuant to Article 179(4) of the Constitution, a governor is the officer responsible for releasing information to the public as the information access officer of the county executive, under section 7(1) of the Access to Information Act, 2016 and if he or she is primarily responsible for ensuring that the county executive complies with the Public Procurement and Asset Disposal Act, pursuant to section 44(1) of the Act.

The matter was referred to the Chief Justice to empanel a bench after Omtatah moved to court seeking orders to suspend the construction of the Trailer Park at Mundika area, and the allocation of new kiosks in Busia Town until Governor Otuoma and his administration discloses how the procurement of the construction was done.

"Contemptuously contravening express provisions of the Constitution and various statutes on public procurement, Governor Otuoma directly procured the two projects secretly and if not stopped at this stage, there is risk that both the application and the petition will be rendered nugatory or academic where successful because the information sought will be availed to the applicant or petitioner in circumstances where the two projects will have been implemented and it will be too late to act on the same," argued Omtatah.

According to the senator, Dr Otuoma has ignored at least 12 letters written to him through the County Executive Committee Members asking him to submit the said documents for audit.

"Governor Otuoma has through Athi Limited commenced the construction of the Busia Trailer Park at Mundika area without him disclosing how procurement of the same was undertaken under the law despite my request, vide the letter SEN/BSA/FP/2023/009, dated August 31, 2023 and a subsequent reminder in reference letter SEN/BSA/FBC/2023/14, dated September 19, 2023, requesting full disclosure of the documents on the procurement," Omtatah states in his court papers.

The vocal legislator sued the governor arguing that the construction of Busia Trailer Park in Mundika is irregular, unlawful and unconstitutional.

He has accused Otuoma of irregular and unlawful procurement and allocation of new kiosks in Busia town.

Omatatah has also accused Otuoma of allegedly abusing his office by denying him access to information and documents to monitor and evaluate the use of public funds and resources in the county over the construction of the park.

"Because fraud thrives on concealment, l reasonably suspects that Otuoma has unconstitutionally and unlawfully, deliberately withheld the requested information to conceal and promote improper motives and corrupt practices in the County Executive of Busia," the senator says in the petition.

Among the documents Omtatah is seeking include tender advertisement, tender opening minutes, tender evaluation report, professional opinion, regret letters, Local Service Orders (LSO) and Local Purchase Orders (LPOs), site handing over minutes, award notification, tender Bill of Quantities and the signed contract of the Trailer Park.

He argued that he could not carry out his oversight role without the records and data.