Verbatim:How MCAs tried,
convicted County clerk
Committee observations
The Committee observed that the Hansard report dated 23rd May, 2023 presenting the tabling and approval of the Machakos County Supplementary Appropriation Bill (No 2), 2023 shows that amendments done and approved by this Honorable House in schedule R004 of the Machakos County Supplementary Appropriation bill, 2023 were altered in the final published Machakos County Supplementary Appropriation Act, 2023 where the amendments that had been proposed in the House were not captured.
The amendments approved in the House as shown in the Hansard report were as follows:
Schedule R004
Where a figure of Kshs 25,521,905 relating to recurrent expenses of Finance and Economic Planning was to be substituted thereof with a figure of Kshs 40,521,905
Where a figure of Kshs 552, 936,479 relating to recurrent expenditure of finance and Economic Planning was to be substituted thereof with a figure of Kshs 567, 936,479
Where a figure of Kshs 22,051,545 relating to recurrent expenditure in revenue management was to be subsisted thereof with a figure of Kshs 37,051,545
Where a figure of Kshs 268,835,562 relating to recurrent expenditure in revenue management was to be substituted thereof with a figure of Kshs 283,835,562
Upon approval of the amendments by the Assembly, it was upon the Office of the Clerk to publish the Act as approved by the House. However, these amendments were not captured in the Machakos County Supplementary Appropriation Act, 2023.
After scrutinizing allegations on alteration of the Machakos County Appropriation Bill No. 1 of 2023, the committee observed that there was no evidence to show that the delay in passing of the Bill had been occasioned by the Clerk.
Committee findings
The Committee finds the Charge relating to alteration of the Machakos County Supplementary Appropriation Act (No 2), 2023 to have been substantiated as the Act was altered under Clerk’s watch. This is in contravention Chapter 6 of the constitution on leadership and integrity and Section 131(3) of the Public Finance Management Act, No. 18 of 2012 which provides that an
amendment to the budget estimates may be made by the county assembly only if it is in accordance with the resolutions adopted regarding the County Fiscal Strategy Paper and if— (a) any increase in expenditure in a proposed appropriation, is balanced by a reduction in expenditure in another proposed appropriation; and (b) any proposed reduction in expenditure is used to reduce the deficit
On the matter of occasioning delay in passing the Machakos County Appropriation Bill No 1, 2023, the committee found the charge not to have been substantiated.
Abuse of office
Hon Speaker,
The particulars of the Charge were;
That the Clerk single handedly borrowed money from the Bank without the consent of the Board and the approval of the County Assembly.
That the Clerk failed to issue an employee with the correct contract twenty two (22) months after appointment by the Board despite the employee’s repeated efforts to have the same resolved.
Evidence
In support of the allegations of single handedly borrowing money from the Bank, the following evidence were availed;
Letter from the Clerk dated February 13th 2023 requesting SBM Bank a facility of Kshs182, 720,000 to facilitate the disbursement of Loans/Motor Vehicle Reimbursement Benefit to the Members of County Assembly. (Annex 11)
Letter from SBM bank dated 16th March, 2023 approving a loan of Kshs 157,000,000 to the County Assembly. (Annex 12)
Letter from SBM dated 14th June, 2023 giving the details and the status of repayment of loan advanced to Machakos County Assembly (Annex 13)
In support of the allegations of failing to issue an employee with the correct contract letter, the following documents were availed:
Letter of appointment for Shadrach Mbithi dated 3rd January, 2022 (Annex 26)
Letter of appointments for Shadrach Mbithi dated 11th February, 2022 (Annex 27)
County Assembly job advertisement containing the job description and terms of service for Fiscal Analyst 1, Job Grade CASB 6 (Annex 28)
SRC Phase IV salary review for County Government employees at the Assembly effective date 1st July, 2020 (Annex 29)
Witnesses testimonies
Mr. Shadrach Mbithi- Fiscal Analyst 1
Mr. Shadrack Mbithi indicated that he was invited for an interview for Fiscal Analyst 1 on contract basis but was given an appointment letter for Fiscal Analyst 2. During the induction, he raised the issue verbally with the Head of Human Resource and was advised that the issue would be tackled. Six months later, the HOD- Human Resource, called him to his office and informed him that his letter had an issue that needed to be corrected. His original appointment letter was recalled by the HOD, Human Resource and replaced with another which still had errors. After raising the issue again with the HOD, Human Resources, he was informed that the matter would be pursued with the clerk. To-date, nothing has been done on the matter.
Mr. Justus Musuma-HOD, Human and Resource
The Head of Human Resource and Administration informed the committee that he received a complaint from Mr. Shadrach Mbithi and verbally discussed the matter with the Clerk to act in resolving the matter. The Clerk advised him that he would discuss the matter with the affected officer and advice on the way forward. The matter remains unresolved to-date.
Committee Observations
On the issue of the Clerk single handedly borrowing money from the Bank, the committee observed that, there was no resolution of the Board or approval by the Assembly regarding the borrowing of one hundred and eighty two million, seven hundred and twenty thousand shillings (Kshs.182, 720,000) from SBM bank for Loans/Motor Vehicle Reimbursement Benefit to the Members of County Assembly.
On failing to issue an employee with the correct contract letter, the Committee observed that, in the first letter of appointment for Shadrach Mbithi dated 3rd January, 2022, he was appointed to the position of Fiscal analyst II Scale 7 effective 1st February 2022 on permanent and pensionable basis.
In the second letter of appointment for Shadrach Mbithi dated 11th February, 2022, he was appointed to the position of Fiscal Analyst I but still in Scale 7, effective 1st February, 2022.The terms of service was a 3 year contract from 1st February, 2022 to 31st January, 2025. Despite the
change in designation from fiscal analyst II to Fiscal Analyst I, the officer continued to receive the same remuneration.
Committee findings
Hon Speaker,
On borrowing a loan without a CASB resolution and approval of the County Assembly;
The Committee finds that the Charge amounts to abuse of office and power by the clerk since he single handedly, without a resolution of the CASB and the approval of the Assembly, borrowed Kshs 157,000,000 which was disbursed into the fund.
On failure to issue an employee with the correct contract letter,
The Committee found that, despite numerous attempts, the office of the clerk has not resolved the matter to date. The officer has lost earnings for being appointed to a designation lower than what he had applied for, against his legitimate expectation.
On both issues, the committee finds the charge of abuse of office, contrary to Section 46 of the Anti-corruption and Economic Crimes Act, No. 3 of 2003 which amounts to an offence under Section 48 of the same Act, to have been substantiated.
Breach of the Constitution and statutory duty
Hon. Speaker,
The Clerk is charged with breaching his obligations as a Clerk by borrowing money without the knowledge and approval of the Board and the County Assembly leading to exposure of the institution to great financial embarrassment which could have grounded the operations of the Assembly.
Committee observations
There was no resolution of the Board regarding the borrowing of the Loan of Kshs 182,720,000 from SBM bank for motor vehicle reimbursement for Hon Members.
The letter from SBM bank dated 14th June, 2023; Ref No. Public Sector/MCG/14062023 stated that the Account was in arrears of Kshs. 56,715,000. The agreement according to the letter was that the facility was to be cleared by 31st August, 2023
Committee findings
The Clerk contravened Article 212 of Constitution as read together with Section 140 to 142 of the Public Finance Management Act No. 18 of 2012 and Part XIV of PFMA regulations and therefore the committee finds this charge to have been substantiated.
INCOMPETENCE AND INACTION
Mismanagement of development projects and incompetence.
Hon. Speaker,
On this Charge;
The Clerk is charged with failing to manage development projects causing the County Assembly loss in terms of money and time. Among the projects cited are construction of Mutituni-Ngelani and Kangundo North ward offices where the contractors have continued working beyond the contract period with no requests for extension or proposals for termination being presented to the Board for consideration. According to the contract documents for the above two ward offices, the contract period began on 8th October, 2021 to end on 10th December, 2021 for Mutituni ward and 27th March 2023 to 30th June, 2023 for Kangundo North ward office. In other ward offices, specifically Kivaa and Ndalani wards, the contractors completed the projects and presented completion certificates from the Department of Public Works to the Clerk’s office but no payment has been made to date or a report with reasons for non-payment presented before the Board for consideration.
The Clerk has failed to act on correspondences meant for the Board’s information and action on the Modern Chamber which are procedurally sent through the clerk’s office. Some of the correspondences have not been presented to the Board for guidance.
The Clerk has failed to ensure performance contracts are signed on time in the financial year 2022-2023 and in ensuring that the Assembly has a third strategic plan on time.
The Clerk has failed to plan on time hence delaying procurement processes like procurement of air tickets which has caused the Assembly loss of funds for buying expensive air tickets.
The Clerk has been inept in handling the Assembly’s mandate to the public. Case in point, the Assembly put up an advertisement on 2nd November, 2023 for public participation in the consideration of the Annual Development Plan (ADP) 2024/2025. The advertisement advised members of the public to download the ADP in the assembly website. However, the ADP was not uploaded on the website until four days later, which inconvenienced members of the public, who were relying on the document to give their views during the public participation.
Evidence
On mismanaging of development projects the following evidence was provided
Contract for construction of Kangundo North Ward Office (Annex 30)
Contract for construction of Mutituni ward Office (Annex 31)
Contract for construction of Kivaa Ward Office (Annex 32)
Contract for construction of Ndalani Ward Office (Annex 33)
Show cause Letter from the Clerk dated 29th August, 2023 directing Ms Nancy Wangai Director Procurement; to respond on procurement of a third party Insurance, Delay in procurement of CASA games and inaction causing delay in the completion of construction the of the ward offices. (Annex 14)
A letter by Ms. Nancy Wangai to the Clerk dated 8th September, 2023 responding to issues raised on procurement of a third party Insurance, Delay in procurement of CASA games and inaction causing delay in the completion of construction the of the ward offices. (Annex 15)
Extract of Minutes from CASB dated 7th November, 2023 in regard to response by Ms. Nancy Wangai to issues raised on procurement of a third party Insurance, Delay in procurement of CASA games and inaction causing delay in the completion of construction the of the ward offices. (Annex 34)
Complaint by Free drop Co. Ltd contractor to PPRA on non-payment of the construction of Ndalani and Kivaa Ward offices (Annex 35)
On failing to act on correspondences meant for the Board’s information, the following evidence was availed
Letter from the Clerk appointing the inspection and acceptance committee under Section 48 of PPADA (Annex 37)
Correspondence from SCOPE design Systems dated 18st August, 2023 on extension of contract regarding the Modern Chamber (Annex 38)
Correspondence from Scope design Systems dated 21st August, 2023 on extension of contract regarding the Modern Chamber (Annex 39)
Correspondence dated 11th September, 2023 from Scope design systems (Annex 40)
On failure to upload the Annual Development Plan 2024-25 in the Assembly Website the
following evidence was availed;
Advert for public hearings on the Annual Development Plan 2024-2025 (Annex 41)
A screenshot of the Machakos County Assembly Website, www.machakosassembly.go.ke, indicating the date of uploading the ADP 2024-2025 (Annex 42)
On failure to plan on time on procurement of air tickets, the following evidence was provided;
i. Letter dated 5th November, 2023 from MCAs on overpriced air ticket for a trip to the UK (Annex 36)
Committee observations
On Mismanagement of development projects the committee observed;
That According to the contract documents for Mutituni-Ngelani, the contract period began on 8th October, 2021 and was to be concluded on 10th December, 2021. Within the contract document, and Abgale General Contractor, Clause 18 on renewal of contracts, states that the contractor acknowledges and understands that the contract carries no expectation or entitlement to renewal. This contract was never completed, neither terminated nor extended
That According to the contract documents for Kangundo North Ward, the contract period began on 27th March 2023 to end on 30th June, 2023. Within the terms of contract document, the County Assembly Service Board and Mbuyuyu LTD; Clause 18 on renewal of contract; states that the contractor acknowledges and understands that the contract carries no expectation or entitlement to renewal. This contract was never completed, neither terminated nor extended.
For Kivaa and Ndalani ward offices, the contracts were awarded to Free Drop Interior Designers LTD and were effective from 8th October, 2021 to end on 10th December, 2021. The Committee observed that the contractor completed the projects and presented final completion certificates from the Department of Public Works to the Clerk’s office for;
Kivaa Ward amounting of Kshs 1,821,556.80 and;
Ndalani Ward amounting to Kshs 1,821,556.80
The Committee observed that these amounts totaling to Kshs 3,643,113.60 owed to Free Drop Interior Designers LTD have never been paid to date or a report with reasons for non-payment presented before the Board for consideration.
On failure to act on correspondences meant for the Board’s information
The committee observed that from the Minutes from CASB dated 29th May, 2023 (Annex 43) regarding inaction towards implementation of the Modern Chamber, that a meeting was held between the CASB and Arch. P.J Kuria, Scope Design Systems Ltd- the Consultant, Arch. Evans
Mugo – Scope Design Systems Ltd, Arch. Moses Okemwa, Amber Contractors Ltd – the contractor, and QS Joel Mumo, Amber Contractors Ltd, where the Board raised a concern regarding the construction of the Chamber.
When enquiries were made on whether Scope Design Systems ltd had presented reports to the Client as required of them in the contract, the response by Arch P.J Kuria was that, he had constantly supplied reports to the Client until November, 2022 when he wrote a proposal to extend the contract which was not responded to until the beginning of May, 2023
On failure to ensure that performance contracts are signed on time;
The committee observed that in order to adhere to performance contracting, the assembly requires to have a strategic plan in place.
Further, performance contracts have not been signed for the financial year 2023/24.
Witness testimony
Mr. Justus Musuma, HOD-Human Resource
Mr. Musuma stated that performance contracts are generated from the strategic plan, and the last strategic plan expired on 30th June 2023. He confirmed that currently, the Assembly staff have not signed performance contracts in the current financial year because there is no strategic plan for 2023-2028.
On failure to observe Assembly’s mandate to the public
The Committee observed that the advert for public participation for the ADP 2024-25, appeared in the Nation Newspaper on 2nd November, 2023. The advert stated that the ADP 2024-25 could be downloaded from the County assembly website www.machakosassembly.go.ke; The ADP was uploaded on 6th November, 2023, 4 days after the advert and 3 days to the public participation which was scheduled for 9th and 10th November, 2023
On failure to plan on time on procurement of air tickets.
In a letter dated 5th November, 2023 written and signed by Hon. Paul Wambua, Hon. Daniel Kivuva, Hon. Boniface Maeke, Hon. Francis Ngunga, Hon. Douglas Musyoka and Hon Erick Wambua, to the Speaker, the committee noted that the Assembly procured air tickets to an international trip to the UK at a cost Kshs 413, 380 for each member. This is way above the normal price as compared to Kshs 132,000 paid by Hon. Grace Bahati to the same destination during the same period. The amount paid by the County Assembly for the said tickets was way higher than that of Hon. Grace Bahati for a direct flight.
Committee findings
Hon Speaker,
On Mismanagement of development projects
Section 15 of the Public Officers Ethics Act No. 4 of 2003 states that a public officer shall take all reasonable steps to ensure that property that is entrusted to his care is adequately protected and not misused or misappropriated and that a person who contravenes Section 15 (1) of the Act shall be personally liable for losses resulting from the contravention.
The Committee found that the Clerk mismanaged the above development projects and therefore the charge was substantiated.
On failure to act on correspondences meant for the Board’s information
Section 17 (2) of the County Assembly Services Act provides that the secretary shall be responsible to the chairperson of the Board and the Board for the general working and efficient conduct of business of the service.
Section 17 (3) of the County Assembly Services Act provides that the Board may delegate to the Secretary such of its functions that are necessary to carry out the day to day management of the Service and subject to such directions as may be given by the Board. Section 19(b) of the Act states that the Clerk as the Secretary of the Board shall be responsible for the day to day management and functioning of the County Assembly.
The operations of the Assembly have been adversely affected by the Clerk’s inaction on payment of bills on time leading to poor service delivery. For instance disconnection of electricity, lack basic stationery, toiletries and drinking water which amounts to incompetence on his part. These anomalies have occasionally been witnessed in the County Assembly from time to time
On failure to ensure the signing of the performance contracts
Section 149 (2)(g) of the Public Finance Management Act, 2012 provides that an accounting Officer shall prepare a strategic plan for the entity in conformity with the medium term fiscal framework and financial objectives of the county government. There is no strategic plan for the period starting from July 2023 ending July 2028 hence no performance Contracts signed.
On failure to plan on time on procurement of air tickets
Section 17 (3) of the County Assembly Service Act provides that the Board may delegate to the Secretary such of its functions that are necessary to carry out the day to day management of the Service and subject to such directions as may be given by the Board. On this charge, the committee found the clerk failed to plan early so as to ensure prudent use of public resources.
On failure to observe Assembly’s mandate to the public
Section 19 of the County Assemblies Services, 2017 provides for the functions of the Clerk as;
The administrative officer of the County Assembly; and
Responsible for the day to day management and functions of the County Assembly Section 20 of the same Act provides for the procedural functions of the Clerk to include;
The rendering of expert, non-partisan and impartial advice to the members of the County Assembly on the legislative process, and parliamentary procedure and practice; and
The carrying out of such other duties and exercising powers as may be conferred on him or her by law or by the Standing Orders and practice of the County Assembly.
In view of the above laws; the Clerk contravened sections 19 and 20 of the County Assemblies Services Act, 2017 and therefore the charge on incompetence and inaction was substantiated.
GROSS MISCONDUCT OR MISBEHAVIOR
Failure to implement the county assembly service board resolutions
Hon. Speaker,
On this charge, the Clerk has constantly failed to implement the decisions of the County Assembly Service Board, which amounts to insubordination. For instance, he intentionally delayed the procurement of CASA uniform that was meant for Hon. Members and Members of staff of the County Assembly to enable them take part in the County Assemblies Sports Association games in August 2023.
The Board in the management of the Assembly modern chamber adopted a recommendation by the then contract implementation team that the project be managed by invoking Section 150 of the Public Procurement and Asset Disposal Act (PPADA). However, the Clerk appointed an inspection and acceptance committee under Section 48 of the PPADA knowing very well that the officers he had appointed lacked the necessary technical capacity to undertake the functions prescribed in that specific section of Law. This action resulted into a frustration of the contract and delay in the completion of the project contract with a resulting financial implication to the Assembly.
Evidence
In support of the allegations Failure to implement the county assembly service board resolutions the following evidence was availed to the committee;
Screenshots of the County Assembly websites showing the date the advert for provision of security services was uploaded (Annex 44)
Screenshots of the County Assembly website showing the date the advert for supply and delivery of CASA uniforms equipment was uploaded (Annex 45)
Invitation to tender for supply and delivery of sports uniform and equipment and provision of security services (Annex 46)
Show cause Letter from the Clerk dated 29th August, 2023 directing Ms Nancy Wangai Director Procurement; to respond on procurement of a third party Insurance, Delay in procurement of CASA games and inaction causing delay in the completion of construction the of the ward offices.
A letter by Ms. Nancy Wangai to the Clerk dated 8th September, 2023 responding to issues raised on procurement of a third party Insurance, Delay in procurement of CASA games and inaction causing delay in the completion of construction the of the ward offices
On appointment of an inspection and acceptance committee under Section 48 of the PPADA contrary to the direction of the Board, the following evidence was provided
Extract of minutes of CASB dated 30th October, 2023 (Annex 47)
Letter dated 28th August, 2023 appointing inspection and acceptance committee under Section 48 of Public Procurement and Disposal of Assets Act (PPADA) (Annex 37)
Committee observations
Hon Speaker,
The Committee observed that that there was a decision by CASB to advertise for supply of the following items, both with a return of tender date 7th July, 2023.
CASA uniform for both members of County Assembly and staff,
Security services
The committee observed that the clerk advertised for security services on 26th June, 2023 and omitted the CASA Uniform. The tender for Security Services was successfully awarded.
The committee further observed that the tender for CASA uniform was advertised almost a month later on 21st July, 2023, contract signed on 28th August, 2023 and LPO issued on the same day. This was far too late since the CASA games began on 18th and ended on 27th August, 2023.
In the letter by Ms. Nancy Wangai to the Clerk dated 8th September, 2023 responding to issues raised on procurement of a third party Insurance, Delay in procurement of CASA games and inaction causing delay in the completion of construction the of the ward offices the committee observed the following issues;
That there are lapses that need to be addressed to improve the procurement processes which have negatively impacted the performance of the procurement department.
That the officers in the department are always working under extreme pressure to meet unrealistic deadlines occurring due to delayed requests; for instance subjecting an officer to preparing a bid document in hours is extremely draining hence causing burnout on the officers.
Finally, in her response, she pointed out that she hoped that the findings of the said matter would be used to improve the way the Assembly conducts its procurement business. She further made a prayer that all Officers involved in procurement and Assets disposal processes shall bear responsibility for their actions and omissions as required under Section 45(5) of Public Procurement and Disposal Act.
Committee findings
Section 17 (1) (e) of the County Assemblies Services Act, 2017 provides that the Clerk as the Secretary of the Board is responsible for-
The execution of the decision of the Board; and
Assignment of duties and supervision of the staff of the Board;
On delayed procurement of CASA uniform, this charge has been substantiated since the Clerk did not advertise the tender for supply of uniform and equipment on time as directed by the Board. The same have not been supplied to date.
On independently appointing an inspection and acceptance team despite contrary to the Boards decision, this charge has been substantiated since Clerk independently appointed an inspection and acceptance committee under Section 48 instead of a managing the project under Section 150 of Public Procurement and Asset Disposal Act (PPADA) as directed by CASB.
RECOMMENDATIONS
The Select Committee, having executed its mandate under Section 23 of the County Assembly Services Act No. 24 of 2017 finds all charges against the Clerk Mr. Joseph Mutisya Laban on grounds of violation of the provisions of the Constitution, the County Assembly Services Act, No. 24 of 2017 and other laws, Incompetence and Gross misconduct or misbehavior to have been substantiated and supports notice of motion dated 28th November, 2023 by Hon. Felix Ngui, Vice-Chairperson CASB, seeking that the County Assembly revokes the appointment of Mr. Joseph Mutisya Laban from the Office of Clerk, County Assembly of Machakos.
The committee further recommends that;
The Board invites the relevant investigative agencies to further investigate where there are possible offences that might have been committed.
The office of the clerk reviews and resolves all the pending issues relating to the appointment, remuneration and compensation for lost earnings of Mr. Shadrack Mbithi and reports back to the CASB within 14 days.
The office of the Clerk provides a report to the Board on the status of all contracts mentioned in this investigation within 30 days.
The office of the clerk becomes proactive in the day to day management of the Assembly Service by making sure that:
Any communication to or from the office of the clerk and inter departmental communication be done in writing and on the official letterhead of the assembly.
All contracts are lawfully entered into and managed as per the requirements of the law.
All procurement processes adhere to the relevant laws
Adoption schedule for the report of the select committee investigating the proposed removal from office of Mr. Joseph Mutisya Laban from the position of Clerk of County Assembly
Hon. Speaker, the report was adopted by the following members:
Date: 5th December, 2023
Member
Signature
1.Hon. Nicholas Nzioka
2.Hon. Judas Ndawa
3.Hon. Francis Kitaka
4.Hon. Francis Kavyu
5.Hon. Annastacia Mutevu
6.Hon. Rose Benjamin
7.Hon. Justus Mutuku
8.Hon. Rosina Kanini
9.Hon. Loyd Mutua
10.Hon. Mercy Njagi
11.Hon. Winnie Mutua
Signed by: HON. NICHOLAS NZIOKA
CHAIRPERSON - SELECT COMMITTEE INVESTIGATING THE PROPOSED REMOVAL FROM OFFICE OF MR. JOSEPH MUTISYA LABAN FROM THE POSITION OF CLERK OF COUNTY ASSEMBLY
