Point in Time
Act No: No. 17 of 2012
Act Title: COUNTY GOVERNMENTS
[ Date of commencement: See Section 1. ]
[ Date of assent: 24th July, 2012. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title and commencement

This Act may be cited as the County Governments Act, 2012 and shall come into operation upon the final announcement of the results of the first elections under the Constitution.

3.
Object and purpose of the Act

The object and purpose of this Act is to—

(a)

provide for matters necessary or convenient to give effect to Chapter Eleven of the Constitution pursuant to Article 200 of the Constitution;

(b)

give effect to the objects and principles of devolution as set out in Articles 174 and 175 of the Constitution;

(c)

give effect to Article 176(2) of the Constitution in respect of further decentralization;

(d)

provide for the removal from office of the speaker of the county assembly in accordance with Article 178 of the Constitution;

(e)

provide for the powers, privileges and immunities of county assemblies, their committees and members under Article 196 of the Constitution;

(f)

provide for public participation in the conduct of the activities of the county assembly as required under Article 196 of the Constitution;

(g)

seek to ensure that the community and cultural diversity of a county is reflected in its county assembly and county executive committee as contemplated in Article 197 of the Constitution;

(h)

prescribe mechanisms to protect minorities within counties pursuant to Article 197 of the Constitution;

(i)

prescribe additional requirements in respect of the publication of county legislation as contemplated in Article 199 of the Constitution;

(j)

provide, pursuant to Article 200 of the Constitution, for—

(i) the manner of nomination or appointment of persons to, and their removal from, offices in county governments, including the qualifications of voters and candidates;
(ii) the procedure of assemblies and executive committees including the chairing and frequency of meetings, quorums and voting; and
(iii) the suspension of assemblies and executive committees;
(k)

prescribe, pursuant to Article 235 of the Constitution, uniform norms and standards, for—

(i) establishing and abolishing offices in the county public service;
(ii) appointing persons to hold or act in those offices, and confirming appointments; and
(iii) exercising disciplinary control over and removing persons holding or acting in those offices; and
(l)

provide for the promotion, evaluation and reporting on the compliance by county public officers with the values and principles in Articles 10 and 232 of the Constitution.

PART II – COUNTY GOVERNMENTS
6.
Powers of county governments
(1)

As an entity exercising constitutional authority, a county government shall be a body corporate with perpetual succession and shall have all the powers necessary for the discharge of its functions.

(2)

Without prejudice to the generality of subsection (1), a county government may—

(a)

enter into a contract;

(b)

acquire, purchase or lease any land; or

(c)

delegate any of its functions to its officers, decentralised units or other entities within the county.

(3)

A county government may enter into partnerships with any public or private organization in accordance with the provisions of any law relating to public or private partnerships for any work, service or function for which it is responsible within its area of jurisdiction.

(4)

All contracts lawfully entered into under this section shall be valid and binding on the county government, its successors and assigns.

(5)

To ensure efficiency in the delivery of service or carrying out of a function for which the county government is responsible, the county government may—

(a)

establish a company, firm or other body for the delivery of a particular service or carrying on of a particular function; or

(b)

contract any person, company, firm or other body for the delivery of a particular service or carrying on a particular function.

(6)

In exercising its powers or performing any of its functions a county government shall ensure efficiency, effectiveness, inclusivity and participation of the people.

PART III – COUNTY ASSEMBLY
8.
Role of the county assembly
(1)

The county assembly shall—

(a)

vet and approve nominees for appointment to county public offices as may be provided for in this Act or any other law;

(b)

perform the roles set out under Article 185 of the Constitution;

(c)

approve the budget and expenditure of the county government in accordance with Article 207 of the Constitution, and the legislation contemplated in Article 220(2) of the Constitution, guided by Articles 201 and 203 of the Constitution;

(d)

approve the borrowing by the county government in accordance with Article 212 of the Constitution;

(e)

approve county development planning; and

(f)

perform any other role as may be set out under the Constitution or legislation.

(2)

If a county assembly fails to enact any particular legislation required to give further effect to any provision of this Act, a corresponding national legislation, if any, shall with necessary modifications apply to the matter in question until the county assembly enacts the required legislation.

9.
Role of members of the county assembly
(1)

A member of a county assembly shall—

(a)

maintain close contact with the electorate and consult them on issues before or under discussion in the county assembly;

(b)

present views, opinions and proposals of the electorate to the county assembly;

(c)

attend sessions of the county assembly and its committees;

(d)

provide a linkage between the county assembly and the electorate on public service delivery; and

(e)

extend professional knowledge, experience or specialised knowledge to any issue for discussion in the county assembly.

(2)

A member of the county assembly shall not be directly or indirectly involved in the—

(a)

executive functions of the county government and its administration; or

(b)

delivery of services as if the member were an officer or employee of the county government.

(3)

Members of a county assembly shall be sworn in by the county assembly clerk within fourteen days, after the announcement of the final results of an election, in the manner set out in the Schedule to this Act.

(4)

At any time in the absence of the speaker of the county assembly or in matters that directly affect the speaker, the county assembly shall elect a member to act as speaker as contemplated under Article 178(2)(b) of the Constitution.

(5)

Unless otherwise removed, the first member elected under subsection (4), shall, in the absence of the Speaker, preside over the sittings of the assembly for the term of the county assembly.

10.
County assembly party leaders
(1)

There shall be in each county assembly a leader of the majority party and a leader of the minority party.

(2)

The leader of the majority party shall be the person who is the leader of the largest party or coalition of parties in the county assembly.

(3)

The leader of the minority party shall be the person who is the leader of the second largest party or coalition of parties in the county assembly.

(4)

A county assembly shall observe the following order of precedence—

(a)

the speaker of the county assembly;

(b)

the leader of the majority party; and

(c)

the leader of the minority party.

11.
Removal of speaker from office
(1)

A speaker of a county assembly may be removed from office by the county assembly through a resolution supported by not less than seventy five percent of all the members of the county assembly.

(2)

A notice of the intention to move a motion for a resolution to remove the speaker shall be given in writing to the clerk of the county assembly, signed by at least one third of all the members of the county assembly stating the grounds for removal.

(3)

A motion for a resolution to remove the speaker shall be presided over by a member of the county assembly elected under section 9(4).

(4)

Before the debate and voting on a motion under subsection (3), the speaker shall be accorded an opportunity to respond to the allegations on the floor of the county assembly.

14.
Procedure and committees of the county assembly
(1)

A county assembly—

(a)

may make standing orders consistent with the Constitution and this Act regulating the procedure of the county assembly including, in particular, orders for the proper conduct of proceedings; and

(b)

subject to standing orders made under paragraph (a), may establish committees in such manner and for such general or special purposes as it considers fit, and regulate the procedure of any committee so established.

(2)

The county assembly proceedings are valid despite—

(a)

there being a vacancy in its membership at the particular time; or

(b)

the presence or participation at the particular time of a person not entitled to be present at, or to participate in, the proceedings of the county assembly.

(3)

In considering any appointment for which approval of the county assembly is required under the Constitution, an Act of Parliament or county legislation—

(a)

the appointment shall be considered first by a committee of the county assembly;

(b)

the committee’s recommendation shall be tabled before the county assembly for approval; and

(c)

the proceedings of the committee and the county assembly shall be open to the public.

(4)

The county assembly shall in establishing committees under this section ensure that each member of the county assembly is appointed to at least one committee.

(5)

A county assembly may jointly with another county assembly, establish committees consisting of members of both county assemblies.

(6)

If a county assembly establishes a joint committee with another county assembly, the election of members and regulation of the conduct of the business of the joint committee shall be as agreed between the two county assemblies.

(7)

Until a county assembly makes its standing orders under subsection (1), the standing orders of the National Assembly shall, with the necessary modifications, apply to that county assembly.

(8)

Without limiting the generality of subsection (1), the Standing Orders made under this section shall provide for the matters specified in the Second Schedule.

15.
Right to petition county assembly
(1)

A person has a right to petition a county assembly to consider any matter within its authority, including enacting, amending or repealing any of its legislation.

(2)

Each county assembly shall prescribe a procedure for exercising the right under subsection (1).

16.

Deleted by No. 6 of 2017, s. 39.

17.

Deleted by No. 6 of 2017, s. 39.

18.
Official languages of a county assembly
(1)

The official languages of a county assembly shall be Kiswahili, English and Kenyan sign language and the business of the county assembly may be conducted in English, Kiswahili and Kenyan sign language.

(2)

No business of the county assembly or any of its committees or other organs may be conducted or transacted in a language other than the official languages.

(3)

In case of a conflict between different language versions of a county legislation, the version in which the legislation was originally enacted prevails.

(4)

The verbatim report of the proceedings of a county assembly shall be recorded in the official language in which it was presented.

19.
Quorum

The quorum of a county assembly is one third of all the members of the county assembly.

20.
Voting in a county assembly
(1)

Except as otherwise provided in the Constitution, in this Act or in other legislation, any question proposed for decision by the county assembly shall be determined by a majority of the members of the county assembly present and voting.

(2)

On a question proposed for decision by a county assembly—

(a)

the speaker of the county assembly has no vote; and

(b)

in the case of a tie, the question is lost.

(3)

A member of a county assembly shall—

(a)

at all times observe the principles of integrity including those set out in Chapter Six of the Constitution; and

(b)

promptly declare to the speaker any interest that the member has in any matter being discussed in the county assembly.

(4)

A member of a county assembly shall not vote on any question in which the member has a pecuniary interest.

21.
Procedure for the exercise of legislative powers
(1)

A county assembly shall exercise its legislative power through Bills passed by the county assembly and assented to by the governor.

(2)

A Bill may be introduced by any member or committee of the county assembly, but a money Bill may be introduced only in accordance with subsection (4).

(3)

In the case of a money Bill, the county assembly may proceed only in accordance with the recommendation of the relevant committee of the county assembly after taking into account the views of the county executive committee member responsible for finance.

(4)

For the purposes of this Act, “money Bill” means a Bill that contains provisions dealing with—

(a)

taxes;

(b)

the imposition of charges on a public fund or the variation or repeal of any of those charges;

(c)

the appropriation, receipt, custody, investment or issue of public money;

(d)

the raising or guaranteeing of any loan or its repayment; or

(e)

matters incidental to any of those matters.

22.
Bill to have a title

A Bill introduced in the county assembly shall be identified by a title placed at the beginning of the Bill and the title shall include the subject matter of the statute to be enacted.

23.
Publication of a Bill

A Bill shall be published by including the Bill as a supplement in the county Gazette and the Kenya Gazette.

24.
Assenting to a Bill
(1)

The Speaker shall, within fourteen days, forward a Bill passed by the county assembly to the governor.

(2)

The governor shall within fourteen days after receipt of a Bill—

(a)

assent to the Bill; or

(b)

refer the bill back to the county assembly with a memorandum outlining reasons for the referral.

(3)

If the governor refers a Bill back to the county assembly, the county assembly may, following the appropriate procedures under this section—

(a)

amend the Bill taking into account the issues raised by the governor; or

(b)

pass the Bill without amendment.

(4)

If a county assembly amends the Bill taking into consideration the issues raised by the governor, the speaker shall within fourteen days submit the Bill to the governor for assent.

(5)

If a county assembly passes the Bill a second time, without amendment, or with amendments which do not accommodate the governor’s concerns by a vote supported by two-thirds of members of the county assembly, the speaker shall within seven days re-submit the Bill to the governor and the governor shall within seven days assent to the Bill.

(6)

If the governor does not assent to a Bill or refer it back within the period referred to under this section, the Bill shall be taken to have been assented to on the expiry of that period.

25.
Coming into force of a law
(1)

A legislation passed by the county assembly and assented to by the governor shall be published in the county Gazette and Kenya Gazette within seven days after assent.

(2)

Subject to subsection (3), the county assembly legislation shall come into force on the fourteenth day after its publication in the county Gazette and Kenya Gazette, whichever comes earlier, unless the legislation stipulates a different date on or time at which it shall come into force.

(3)

A county assembly legislation that confers a direct benefit whether financial or in kind on members of the county assembly shall come into force after the next general election of members of the county assembly.

(4)

Subsection (3) does not apply to an interest that members of county assembly have as members of the public.

PART IV – ELECTORAL WARDS
27.
Recall of a county assembly member
(1)

The electorate in a county ward may recall their member of the county assembly before the end of the term of the member on any of the grounds specified in subsection (2).

(2)

A member of a county assembly may be recalled where the member—

(a)

is found, after due process of the law, to have violated the provisions of Chapter Six of the Constitution;

(b)

is found, after due process of the law, to have mismanaged public resources;

(c)

is convicted of an offence under the Elections Act (No. 24 of 2011).

(3)

A recall of a member of the county assembly under subsection (1) shall only be initiated upon a judgment or finding by the High Court confirming the grounds specified in subsection (2).

(4)

A recall under subsection (1) shall only be initiated twenty-four months after the election of the member of the county assembly and not later than twelve months immediately preceding the next general election.

(5)

A recall petition shall not be filed against a member of the county assembly more than once during the term of that member in the county assembly.

(6)

A person who unsuccessfully contested an election under the Elections Act (No. 24 of 2011) shall not be eligible, directly or indirectly, to initiate a petition under this section.

28.
Petition for recall
(1)

A recall under section 27 shall be initiated by a petition which shall be filed with the Independent Electoral and Boundaries Commission and which shall be—

(a)

in writing;

(b)

signed by a petitioner who—

(i) is a voter in the Ward in respect of which the recall is sought; and
(ii) was registered to vote in the election in respect of which the recall is sought;
(c)

accompanied by an order of the High Court issued in terms of section 27(3).

(2)

The petition referred to in subsection (1) shall—

(a)

specify the grounds for the recall as specified under section 27(2);

(b)

contain a list of such number of names of voters in the Ward which shall represent at least thirty percent of the registered voters in that Ward; and

(c)

be accompanied by the fee prescribed for an election petition.

(3)

The list of names referred to in subsection (2)(b) shall contain the names, address, voter card number, national identity card or passport number and signature of the voters supporting the petition.

(4)

The voters supporting a petition under subsection (3) shall represent the diversity of the people in the Ward.

(5)

The petitioner shall collect and submit to the Commission the list of names under subsection (2)(b) within a period of thirty days after filing the petition.

(6)

The Commission shall verify the list of names within a period of thirty days of receipt of that list.

(7)

The Commission, if satisfied that the requirements of this section are met, shall within fifteen days after the verification, issue a notice of the recall to the speaker of the county assembly.

(8)

The Commission shall conduct a recall election within the Ward within ninety days of the publication of the question.

29.
Recall elections
(1)

Where a member of the county assembly is to be recalled under section 27, the Independent Electoral and Boundaries Commission shall frame the question to be determined at the recall election.

(2)

A question referred to in subsection (1) shall be framed in such a manner as to require the answer “yes” or the answer “no”.

(3)

The Commission shall assign a symbol for each answer to the recall question.

(4)

The voting at a recall election shall be by secret ballot.

(5)

A recall election shall be decided by a simple majority of the voters voting in the recall election.

(6)

Where a recall election results in the removal of a member of the county assembly, the Commission shall conduct a by-election in the affected Ward.

(7)

A member of the county assembly who has been recalled may run in the by-election conducted under subsection (6).

PART V – COUNTY EXECUTIVE
30.
Functions and responsibilities of a county governor
(1)

The governor shall take and subscribe to the oath or affirmation as set out in the Schedule to this Act before assuming office.

(2)

Subject to the Constitution, the governor shall—

(a)

diligently execute the functions and exercise the authority provided for in the Constitution and legislation;

(b)

perform such State functions within the county as the President may from time to time assign on the basis of mutual consultations;

(c)

represent the county in national and international fora and events;

(d)

appoint, with the approval of the county assembly, the county executive committee in accordance with Article 179(2)(b) of the Constitution;

(e)

constitute the county executive committee portfolio structure to respond to the functions and competencies assigned to and transferred to each county;

(f)

submit the county plans and policies to the county assembly for approval;

(g)

consider, approve and assent to bills passed by the county assembly;

(h)

chair meetings of the county executive committee;

(i)

by a decision notified in the county Gazette, assign to every member of the county executive committee, responsibility to ensure the discharge of any function within the county and the provision of related services to the people;

(j)

submit to the county assembly an annual report on the implementation status of the county policies and plans;

(k)

deliver annual state of the county address containing such matters as may be specified in county legislation; and

(l)

sign and cause to be published in the county Gazette, notice of all important formal decisions made by the governor or by the county executive committee.

(3)

In performing the functions under subsection (2), the governor shall—

(a)

provide leadership in the county’s governance and development;

(b)

provide leadership to the county executive committee and administration based on the county policies and plans;

(c)

promote democracy, good governance, unity and cohesion within the county;

(d)

promote peace and order within the county;

(e)

promote the competitiveness of the county;

(f)

be accountable for the management and use of the county resources; and

(g)

promote and facilitate citizen participation in the development of policies and plans, and delivery of services in the county.

31.
Powers of the governor

The governor—

(a)

may, despite section 40, dismiss a county executive committee member at any time, if the governor considers that it is appropriate or necessary to do so;

(b)

shall dismiss a county executive committee member, if required to do so by a resolution of the county assembly as provided under section 40;

(c)

may appoint an accounting officer for each department, entity or decentralized unit of the county government; and

(d)

shall have such powers as may be necessary for the execution of the duties of the office of governor.

33.
Removal of a governor
(1)

A member of the county assembly may by notice to the speaker, supported by at least a third of all the members, move a motion for the removal of the governor under Article 181 of the Constitution.

(2)

If a motion under subsection (1) is supported by at least two-thirds of all the members of the county assembly—

(a)

the speaker of the county assembly shall inform the Speaker of the Senate of that resolution within two days; and

(b)

the governor shall continue to perform the functions of the office pending the outcome of the proceedings required by this section.

(3)

Within seven days after receiving notice of a resolution from the speaker of the county assembly—

(a)

the Speaker of the Senate shall convene a meeting of the Senate to hear charges against the governor; and

(b)

the Senate, by resolution, may appoint a special committee comprising eleven of its members to investigate the matter.

(4)

A special committee appointed under subsection (3)(b) shall—

(a)

investigate the matter; and

(b)

report to the Senate within ten days on whether it finds the particulars of the allegations against the governor to have been substantiated.

(5)

The governor shall have the right to appear and be represented before the special committee during its investigations.

(6)

If the special committee reports that the particulars of any allegation against the governor—

(a)

have not been substantiated, further proceedings shall not be taken under this section in respect of that allegation; or

(b)

have been substantiated, the Senate shall, after according the governor an opportunity to be heard, vote on the impeachment charges.

(7)

If a majority of all the members of the Senate vote to uphold any impeachment charge, the governor shall cease to hold office.

(8)

If a vote in the Senate fails to result in the removal of the governor, the Speaker of the Senate shall notify the speaker of the concerned county assembly accordingly and the motion by the assembly for the removal of the governor on the same charges may only be re-introduced to the Senate on the expiry of three months from the date of such vote.

(9)

The procedure for the removal of the President on grounds of incapacity under Article 144 of the Constitution shall apply, with necessary modifications, to the removal of a governor.

(10)

A vacancy in the office of the governor or deputy governor arising under this section shall be filled in the manner provided for by Article 182 of the Constitution.

34.
Exercise of executive authority

The county executive committee shall exercise the executive authority—

(a)

in accordance with the Constitution and relevant national and county legislation;

(b)

for the well-being and benefit of the people;

(c)

taking into account the objects and principles of devolution of government set out under Articles 174 and 175 of the Constitution;

(d)

while enhancing self-governance for communities in the management of development programs;

(e)

while ensuring the protection and promotion of the interests and rights of minorities and marginalized communities;

(f)

while promoting gender equity;

(g)

while promoting social and economic development within the county; and

(h)

while ensuring equitable sharing of available resources throughout the county.

35.
Appointment of county executive members
(1)

The governor shall, when nominating members of the executive committee—

(a)

ensure that to the fullest extent possible, the composition of the executive committee reflects the community and cultural diversity of the county; and

(b)

take into account the principles of affirmative action as provided for in the Constitution.

(2)

The county assembly shall not approve nominations for appointment to the executive committee that do not take into account—

(a)

not more than two thirds of either gender;

(b)

representation of the minorities, marginalized groups and communities; and

(c)

community and cultural diversity within the county.

(3)

A person may be appointed as a member of the county executive committee if that person—

(a)

is a Kenyan citizen;

(b)

is a holder of at least a first degree from a university recognised in Kenya;

(c)

satisfies the requirements of Chapter Six of the Constitution; and

(d)

has knowledge, experience and a distinguished career of not less than five years in the field relevant to the portfolio of the department to which the person is being appointed.

(4)

A member of the county executive committee shall not hold any other State or public office.

36.
Functions of the executive committee
(1)

In addition to the functions provided under Article 183 of the Constitution, a county executive committee shall—

(a)

supervise the administration and delivery of services in the county and all decentralized units and agencies in the county;

(b)

perform any other functions conferred on it by the Constitution or national legislation; and

(c)

carry out any function incidental to any of the assigned functions.

(2)

In the performance of its functions, a county executive committee shall have power to determine its own programme of activities and every member of the committee shall observe integrity and disclosure of interest in any matter before the committee.

37.
Role of the executive committee in urban area or city planning

A county executive committee shall—

(a)

monitor the process of planning, formulation and adoption of the integrated development plan by a city or municipality within the county;

(b)

assist a city or municipality with the planning, formulation, adoption and review of its integrated development plan;

(c)

facilitate the coordination and alignment of integrated development plans of different cities or municipalities within the county and with the plans, strategies and programmes of national and county governments; and

(d)

take appropriate steps to resolve any disputes or differences in connection with the planning, formulation, adoption or review of an integrated development plan.

39.
Accountability of members of the executive committee
(1)

The members of the county executive committee are individually and collectively accountable to the governor in the exercise of their powers and performance of their duties and responsibilities.

(2)

A committee of the county assembly may require a member of the executive committee to—

(a)

attend or appear before the committee; and

(b)

answer any question relating to the member’s responsibilities.

40.
Removal of member of executive committee
(1)

Subject to subsection (2), the Governor may remove a member of the county executive committee from office on any of the following grounds—

(a)

incompetence;

(b)

abuse of office;

(c)

gross misconduct;

(d)

failure, without reasonable excuse, or written authority of the governor, to attend three consecutive meetings of the county executive committee;

(e)

physical or mental incapacity rendering the executive committee member incapable of performing the duties of that office; or

(f)

gross violation of the Constitution or any other law.

(2)

A member of the county assembly, supported by at least one-third of all the members of the county assembly, may propose a motion requiring the governor to dismiss a county executive committee member on any of the grounds set out in subsection (1).

(3)

If a motion under subsection (2) is supported by at least one-third of the members of the county assembly—

(a)

the county assembly shall appoint a select committee comprising five of its members to investigate the matter; and

(b)

the select committee shall report, within ten days, to the county assembly whether it finds the allegations against the county executive committee member to be substantiated.

(4)

The county executive committee member has the right to appear and be represented before the select committee during its investigations.

(5)

If the select committee reports that it finds the allegations—

(a)

unsubstantiated, no further proceedings shall be taken; or

(b)

substantiated, the county assembly shall vote whether to approve the resolution requiring the county executive committee member to be dismissed.

(6)

If a resolution under subsection (5)(b) is supported by a majority of the members of the county assembly—

(a)

the speaker of the county assembly shall promptly deliver the resolution to the governor; and

(b)

the governor shall dismiss the county executive committee member.

41.
Meetings of the county executive committee
(1)

The deliberations of all meetings of the county executive committee shall be recorded in writing.

(2)

The quorum of a meeting of a county executive committee shall be more than one half of its membership.

(3)

A resolution of the county executive committee shall be by a majority of the members present and voting.

(4)

A resolution arrived at pursuant to subsection (2) shall be accessible to the public.

42.
County executive to remain in office after elections
(1)

When a general election is held for a county government, the outgoing county executive committee shall remain in office until a new county executive committee is constituted after the election.

(2)

The constitution of a new executive committee after an election under subsection (1) shall be finalized within twenty-one days of the swearing in of the members of the county assembly.

43.
Representation of county government by Attorney-General in court

A county government may, pursuant to Article 156(4) of the Constitution request the Attorney-General to represent the county government in court or in any other legal proceedings to which the county government is a party other than in criminal proceedings.

44.
Appointment of county secretary
(1)

There is established for each county the office of the county secretary who shall be secretary to the county executive committee.

(2)

The county secretary—

(a)

shall be competitively sourced from amongst persons who are university graduates with at least ten years experience in administration and management;

(b)

shall be nominated from persons competitively sourced under paragraph (a) by the governor and, with the approval of the county assembly, appointed by the governor; and

(c)

may, subject to the conditions and terms of appointment, be dismissed by the governor.

(3)

The county secretary shall—

(a)

be the head of the county public service;

(b)

be responsible for arranging the business, and keeping the minutes, of the county executive committee subject to the directions of the executive committee;

(c)

convey the decisions of the county executive committee to the appropriate persons or authorities; and

(d)

perform any other functions as directed by the county executive committee.

(4)

The county secretary may resign from office by giving thirty days written notice to the governor.

47.
Performance management plan
(1)

The county executive committee shall design a performance management plan to evaluate performance of the county public service and the implementation of county policies.

(2)

The plan shall provide for among others—

(a)

objective, measurable and time bound performance indicators;

(b)

linkage to mandates;

(c)

annual performance reports;

(d)

citizen participation in the evaluation of the performance of county government; and

(e)

public sharing of performance progress reports.

(3)

The governor shall submit the annual performance reports of the county executive committee and public service to the county assembly for consideration.

(4)

The performance management plan and reports under this section shall be public documents.

PART VI – DECENTRALIZED UNITS
48.
Decentralized units
(1)

Subject to subsection (3), the functions and provision of services of each county government shall be decentralized to—

(a)

the urban areas and cities within the county established in accordance with the Urban Areas and Cities Act (No. 13 of 2011);

(b)

the sub-counties equivalent to the constituencies within the county established under Article 89 of the Constitution;

(c)

the Wards within the county established under Article 89 of the Constitution and section 26;

(d)

such number of village units in each county as may be determined by the county assembly of the respective county; and

(e)

such other or further units as a county government may determine.

(2)

If the constituency or part of a constituency falls under urban areas or cities, that constituency or part of the constituency, as the case may be, shall be considered as falling under subsection (1)(a).

(3)

In establishing a village unit under subsection (1)(d), a county assembly shall take into account the—

(a)

population size;

(b)

geographical features;

(c)

community of interest, historical, economic and cultural ties; and

(d)

means of communication.

(4)

A county assembly shall enact legislation to provide for the delineation and establishment of the village units in the county.

(5)

Nothing in this Part may be construed as precluding the county government, through county legislation, from adjusting the units created under subsection (1) for purposes of further decentralizing its functions and provision of its services in accordance with Article 176(2) of the Constitution.

49.
Urban areas and cities structures

The structures and functions of urban areas and cities shall be as is provided for in the Urban Areas and Cities Act (No. 13 of 2011).

50.
Office of the sub-county administrator
(1)

There shall be established at the level of each sub-county the office of the sub-county administrator.

(2)

The sub-county administrator shall have qualifications and knowledge in administration or management and shall be competitively appointed by the County Public Service Board in accordance with the provisions of this Act.

(3)

The sub-county administrator shall be responsible for the coordination, management and supervision of the general administrative functions in the sub-county unit, including—

(a)

the development of policies and plans;

(b)

service delivery;

(c)

developmental activities to empower the community;

(d)

the provision and maintenance of infrastructure and facilities of public services;

(e)

the county public service;

(f)

exercise any functions and powers delegated by the County Public Service Board under section 86; and

(g)

facilitation and coordination of citizen participation in the development of policies and plans and delivery of services.

(4)

In carrying out the functions and obligations in subsection (3), the sub-county administrator shall be responsible to the relevant county chief officer.

51.
Establishment of the office of Ward administrator
(1)

There is established for each Ward in a county the office of the Ward administrator.

(2)

The Ward administrator shall have professional qualifications and technical knowledge in administration and shall be competitively appointed by the County Public Service Board in accordance with the provisions of this Act.

(3)

The Ward administrator shall coordinate, manage and supervise the general administrative functions in the Ward unit, including—

(a)

the development of policies and plans;

(b)

service delivery;

(c)

developmental activities to empower the community;

(d)

the provision and maintenance of infrastructure and facilities of public services;

(e)

the county public service;

(f)

exercise any functions and powers delegated by the County Public Service Board under section 86; and

(g)

coordination and facilitation of citizen participation in the development of policies and plans and delivery of services.

(4)

In carrying out the functions and obligations in subsection (3), the Ward administrator shall be responsible to the sub-county administrator.

52.
Establishment of the office of village administrator
(1)

There is established the office of village administrator for each village unit established in a county.

(2)

A village administrator shall have professional qualifications and technical knowledge in administration and shall be appointed by the County Public Service Board in accordance with the provisions of this Act.

(3)

A village administrator shall coordinate, manage and supervise the general administrative functions in the village including—

(a)

pursuant to paragraph 14 of Part II of the Fourth Schedule to the Constitution—

(i) ensuring and coordinating the participation of the village unit in governance; and
(ii) assisting the village unit to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level; and
(b)

the exercise of any functions and powers delegated by the County Public Service Board under section 86.

(4)

In carrying out the functions and obligations in subsection (3), a village administrator shall be responsible to the relevant Ward administrator.

53.
Village council
(1)

There is established, for each village unit, a village council comprising—

(a)

the village administrator who shall be the chairperson of the village council; and

(b)

not less than three and not more than five village elders competitively appointed by the village administrator with the approval of the county assembly, taking into account gender balance.

(2)

A village council shall be responsible for—

(a)

ensuring and coordinating the participation of the village unit in governance;

(b)

assisting the village unit to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level;

(c)

monitoring the implementation of policies at the village unit;

(d)

advising the ward administrator and sub-county administrator on matters pertaining to the village; and

(e)

any other function necessary for the better administration of the village unit.

(3)

A person shall be eligible for appointment as a village elder if the person—

(a)

is a citizen of Kenya;

(b)

has been a resident of or has been the owner of property in the respective village unit for a continuous period of not less than five years prior to the appointment date;

(c)

meets the requirements of Chapter Six of the Constitution; and

(d)

is not disqualified for appointment to office by this Act or any other law.

(4)

A village elder shall be paid such allowance as shall be determined by the respective county assembly.

PART VII – COUNTY PUBLIC SERVICE
55.
Objectives

The objectives of this Part are to—

(a)

provide for evaluation and reporting on the extent to which the values and principles referred to in Articles 10 and 232 of the Constitution are complied with in the county public service;

(b)

provide for the organization, staffing and functioning of the county public service in ways that ensure efficient, quality and productive services for the people of the county;

(c)

provide for institutions, systems and mechanisms for human resource utilization and development in a manner that best enhances service delivery by county public service institutions;

(d)

provide a framework of uniform norms and standards to be applied in all counties in respect of—

(i) establishment and abolition of offices in the county public service;
(ii) appointment of persons to hold or act in those offices;
(iii) confirming appointments; or
(iv) exercising disciplinary control over and removal of persons holding or acting in those offices;
(e)

provide for the promotion of the values and principles set out in Articles 10 and 232 of the Constitution in the county public service;

(f)

provide for human resource management and career development practices;

(g)

address staff shortages and barriers to staff mobility between counties;

(h)

provide for standards to promote ethical conduct and professionalism in county public service;

(i)

provide for the establishment of County Public Service Boards; and

(j)

make further provisions relating to appeals in respect of county governments’ public service.

56.
County to have county public service
(1)

Each county shall, in accordance with Article 235 of the Constitution, have its own public service to be known as county public service.

(2)

The county public service shall be headed by a county secretary appointed under section 44.

(3)

For purposes of subsection (1), the designation county public officer shall be restricted to an officer appointed by the county government.

57.
Establishment of the County Public Service Board

There is established a County Public Service Board in each County, which shall be—

(a)

a body corporate with perpetual succession and a seal; and

(b)

capable of suing and being sued in its corporate name.

58.
Composition of the County Public Service Board
(1)

The County Public Service Board shall comprise—

(a)

a chairperson nominated and appointed by the county governor with the approval of the county assembly;

(b)

not less than three but not more than five other members nominated and appointed by the county governor, with the approval of the county assembly; and

(c)

a certified public secretary of good professional standing nominated and appointed by the governor, with the approval of the county assembly, who shall be the secretary to the board.

(2)

The appointment of the members of the Board shall be through a competitive process.

(3)

A person shall be qualified to be appointed as a member under subsection (1) if that person—

(a)

satisfies the provisions of Chapter Six of the Constitution;

(b)

is not a state or public officer;

(c)

in the case of chairperson or vice-chairperson, possesses a minimum qualification of a bachelor’s degree from a recognised university and working experience of not less than ten years; and

(d)

in the case of any other members—

(i) possesses a minimum of a bachelor’s degree from a recognised university and working experience of not less than five years; and
(ii) is a professional, demonstrates absence of breach of the relevant professional code of conduct.
(4)

A member of the Board shall—

(a)

hold office for a non-renewable term of six years; and

(b)

may serve on a part-time basis.

(5)

The members of the Board may only be removed from office—

(a)

on grounds set out for the removal of members of a constitutional commission under Article 251(1) of the Constitution; and

(b)

by a vote of not less than seventy five percent of all the members of the county assembly.

(6)

The board shall elect a vice-chairperson from amongst its members.

(7)

The chairperson and vice-chairperson shall be of opposite gender.

60.
Criteria for establishment of public offices, etc
(1)

The County Public Service Board shall establish a public office within the county public service if it is satisfied that—

(a)

the establishment of the public office shall serve public interest in line with the core functions of the county government;

(b)

there exists no other public office in the county public service discharging or capable of discharging the duties for which the county is requested to establish another office;

(c)

upon the establishment of the office, the office shall be vacant to be filled competitively and transparently in accordance with the prescribed appointment or promotion procedures;

(d)

the establishment of the office including its level of grading, qualification and remuneration shall not disadvantage similar offices in the county public service or occasion unfair competition for staff among county public bodies;

(e)

the establishment of the office shall not confer unfair advantage to a group of or individual serving public officers;

(f)

the county government entity has prudently utilized offices previously provided in its establishment; and

(g)

funding for the office to be established is duly provided for.

(2)

In determining the provision of funding under subsection (1)(g), the County Public Service Board shall take due regard to the need to limit the component of personnel emoluments to a level that does not adversely affect other budgetary provisions in the recurrent vote.

(3)

A written request for establishment of an office complying with the conditions in this section shall be submitted to the Board by the concerned head of department.

(4)

In deciding whether or not to establish a public office, the County Public Service Board shall take into account—

(a)

the overall workload in the county public service concerned; and

(b)

the suitability of that department but not any other to be the domicile of the public office to be established.

61.
Criteria for abolition of public offices
(1)

The County Public Service Board shall abolish a public office when it is satisfied that—

(a)

the abolition of the public office shall serve the public interest in view of the core functions of the county government;

(b)

there exists another public office in the county public service discharging or capable of discharging the duties of the office which the county government is requested to abolish;

(c)

the abolition of the office in view of its level is necessary so as to—

(i) eliminate unfair competition for staff among county public service departments; and
(ii) to promote parity of treatment among officers of similar qualifications holding public offices with the same responsibilities;
(d)

the abolition of the office shall not confer unfair advantage to a group of, or individual public officer; or

(e)

the county government or office has been reorganized or abolished.

(2)

Any decision by the County Public Service Board to abolish an office in the county public service shall be subject to the due process of removing or retiring the affected public officer including adherence to the principles of natural justice, unless the affected public officer has been re-deployed to another office.

62.
Powers of the County Public Service Board to establish or abolish office
(1)

Taking into account the provisions of this Part, the County Public Service Board on its own motion, may establish or abolish any office in the county public service.

(2)

If the Board intends to establish or abolish an office it shall submit its proposal to the county assembly for approval through the county executive committee member responsible for the county public service.

(3)

The County Public Service Board shall give the county chief officer of the concerned department an opportunity to make representation in respect of any action to be taken under this section before making the decision in that regard.

(4)

If the County Public Service Board establishes an office and the concerned department fails to fill the vacancy for a period of twelve months after its establishment, the office shall stand abolished and the County Public Service Board shall not be required to make a decision to abolish that office.

63.
Powers of the County Public Service Board to make appointments
(1)

Except as provided for in the Constitution or legislation, the County Public Service Board has the power to make appointments including promotions in respect of offices in the county public service.

(2)

The power of the County Public Service Board under subsection (1) shall be exercised—

(a)

at the request of the relevant county chief officer of the department to which the appointment is to be made;

(b)

at the request of the clerk of the county assembly; or

(c)

on the County Public Service Board’s own motion on account of best interest of the county public service and parity of treatment of public officers taking into account the circumstances of each case.

64.
No unqualified person may be appointed in acting capacity
(1)

A person shall not be appointed to hold a public office in an acting capacity unless the person satisfies all the prescribed qualifications for holding that public office.

(2)

Acting appointments shall be made only by the lawful appointing authority and for a specified period.

(3)

Nothing in this section shall prevent a public officer from—

(a)

delegating a duty for which the law does not prohibit delegation; or

(b)

deploying another officer to perform duties vested in another office during a temporary absence.

(4)

Any delegation or deployment under subsection (3) shall—

(a)

be made by an officer who is qualified and competent to perform the duty; and

(b)

not undermine the expeditious appointment or deployment of a competent person to the public office concerned.

(5)

If it comes to the attention of the County Public Service Board that a public officer has purportedly made an acting appointment, delegation or deployment as the case may be, contrary to the provisions of this section, the County Public Service Board shall take the necessary corrective action.

65.
Matters to take into account during appointments, etc
(1)

In selecting candidates for appointment, the County Public Service Board shall consider—

(a)

the standards, values and principles set out in Articles 10, 27(4), 56(c) and 232(1) of the Constitution;

(b)

the prescribed qualifications for holding or acting in the office;

(c)

the experience and achievements attained by the candidate;

(d)

the conduct of the candidate in view of any relevant code of conduct, ethics and integrity;

(e)

the need to ensure that at least thirty percent of the vacant posts at entry level are filled by candidates who are not from the dominant ethnic community in the county;

(f)

the need for open and transparent recruitment of public servants; and

(g)

individual performance.

(2)

In determining whether an appointment, promotion or re-designation has been undertaken in a fair and transparent manner, the overriding factors shall be merit, fair competition and representation of the diversity of the county.

66.
Advertisements of positions to be widely publicised

If a public office is to be filled, the County Public Service Board shall invite applications through advertisement and other modes of communication so as to reach as wide a population of potential applicants as possible and especially persons who for any reason have been or may be disadvantaged.

67.
Appointments to be in writing

No appointment or assignment of a duty in a county public service shall be valid unless it is evidenced in writing.

68.
Board to maintain records of applicants

Subject to the relevant legislation, the County Public Service Board shall, for a specified period, maintain a record of all applications received in response to advertisements inviting applications and such record may be inspected by any person.

69.
Re-designation of officers
(1)

In selecting public officers for re-designation, the criteria for appointment as prescribed under this Part shall apply.

(2)

A public officer shall not be re-designated to hold or act in a public office if—

(a)

the office is not vacant;

(b)

the public officer does not meet all the qualifications, except for experience at a lower grade in the relevant cadre, attached to the public office;

(c)

the decision to re-designate the officer may disadvantage any public officer already serving in the relevant cadre; or

(d)

the officer subject to re-designation has not consented to the re-designation.

(3)

If a public officer is re-designated, the officer shall not in any way suffer reduction in remuneration.

70.
Provisions on appointments to apply to promotions
(1)

The provisions of this Act and regulations or procedures made under this Act that apply to appointments shall also apply to promotions.

(2)

If a public officer has been promoted, the head of department shall within sixty days after the date of the promotion release the public officer to take up the promotion and if the officer is not so released, he or she stands released upon the lapse of sixty days.

(3)

If a public officer has been promoted and has failed to take up the promotion, the promotional decision shall lapse upon the expiry of sixty days after the date of the decision and the officer shall revert back to the office held prior to the decision, subject to confirmation that the person received the official communication on the promotion and was released.

71.
Confirmation of appointment on lapse of period
(1)

If the relevant authority fails to confirm an appointment of a public officer initially appointed on probationary terms, and the term has lapsed with or without an extension, the officer shall stand confirmed in the appointment on the due date.

(2)

The period served on probationary terms shall be taken into account when computing the period of service for the purpose of payment of pension benefits, gratuity or any other terminal benefit.

(3)

A probationary period of service shall not be extended except on account of—

(a)

affording the public officer further opportunity to pass an examination the passing of which is a condition for the confirmation, the officer’s service otherwise being satisfactory;

(b)

affording the public officer an opportunity for improvement in any respect, in which the officer’s work or conduct have been adversely reported on.

72.
Power to deploy public officers
(1)

The power to deploy a county public officer within a department shall vest in the relevant county chief officer.

(2)

The power to deploy a county public officer from one department to another shall vest in the head of the county public service.

73.
Secondments
(1)

The national government shall put in place measures to protect its public officers on secondment to the counties from loss or disadvantage with respect to pension benefits, gratuity or other terminal benefits.

(2)

Unless there is an agreement to the contrary, it shall be the responsibility of the national government to pay the salaries, remuneration, allowances and other benefits due to the staff seconded to a county government during the transition period.

(3)

If for any reason it is not necessary for an officer on secondment to remain seconded and the secondment period has not lapsed, the officer shall be entitled to revert back to the public office held before secondment.

(4)

The County Public Service Board shall not allow a public officer to proceed on secondment if it is not in the interest of the public officer or the concerned county public service.

(5)

The County Public Service Board making a decision on secondment shall not allow the secondment unless it has considered the representation by the concerned authorized officer or head of department.

74.
County Public Service Board to regulate appointment of persons on contract

The County Public Service Board shall regulate the engagement of persons on contract, volunteer and casual workers, staff of joint ventures and attachment of interns in its public bodies and offices.

75.
Action on irregularity of process

If it comes to the attention of the County Public Service Board that there is reason to believe that any process or decision under this Part may have occurred in an irregular or fraudulent manner, the County Public Service Board shall investigate the matter and, if satisfied that the irregularity or fraud has occurred, the County Public Service Board may—

(a)

revoke the decision;

(b)

direct the concerned head of department or lawful authority to commence the process afresh; or

(c)

take any corrective action including disciplinary action.

76.
Prohibition of punishment contrary to the Constitution
(1)

In exercising its disciplinary powers, the County Public Service Board shall observe the principles of natural justice.

(2)

No public officer may be punished in a manner contrary to any provision of the Constitution or any Act of Parliament.

(3)

Nothing in this section shall limit the powers conferred on the county government or any other lawful authority discharging a disciplinary function from retiring an officer from the county public service on the ground of public interest.

(4)

In this section, retirement on the ground of public interest may be imposed instead of any other punishment if the decision maker considers that although the misconduct has been proven—

(a)

the officer has nevertheless raised a mitigation factor that renders imposition of a punishment too harsh in view of the circumstances of the case; or

(b)

the length of service benefits accrued and previous good record of the officer justifies the retirement; or

(c)

imposing a punishment against the officer is likely to adversely affect the reputation of the public body concerned or the county public service generally.

(5)

If criminal proceedings are instituted against a county public officer, disciplinary proceedings against the officer for dismissal or imposition of any other punishment on any grounds involved in the criminal charge shall not be taken until the conclusion of the criminal proceedings and the determination of any appeal therefrom has been made.

(6)

Nothing in subsection (5) shall be interpreted as prohibiting or restricting the power of the county government or the concerned county chief officer or other lawful authority to interdict or suspend or take any interlocutory decision against the public officer.

77.
Appeals to the Public Service Commission
(1)

Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission (in this Part referred to as the “Commission”) against the decision.

(2)