By GPC News Desk
The High Court has allowed the implementation of a cooperation agreement between Nairobi City County and the National Government to continue, but imposed conditions to ensure it complies with the Constitution.
Justice Gregory Mutai, sitting at the Milimani High Court, issued the directions in a constitutional petition filed by Katiba Institute challenging the agreement.
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The petition, HCCHR PET/E111/2026, questions whether the agreement can lawfully be used to transfer or exercise county functions and commit public resources outside the procedures and safeguards established by the Constitution.
Katiba Institute, represented by Dr Henry Paul Gichana, had sought orders suspending the agreement pending determination of the petition.
Although the court declined to suspend the agreement, it directed that no county functions, powers, assets, staff or revenue should be transferred to or exercised by the National Government unless the requirements of Article 187 of the Constitution are followed.
Article 187 provides for the transfer of functions and powers between levels of government and requires such transfers to be based on an agreement and accompanied by the necessary resources.
The court also barred the commitment, release or expenditure of public funds on projects under the agreement unless the spending is authorised by Parliament or the Nairobi County Assembly, or the funds are provided to Nairobi County as additional allocations by the National Government in accordance with Article 202(2) of the Constitution.
Justice Mutai further directed Nairobi Governor and the Prime Cabinet Secretary to disclose the agreement currently being implemented, projects undertaken under it and their sources of funding.
They are also required to provide minutes of the two committees established under the agreement.
The Nairobi County Assembly was directed to file its ad hoc committee report, records of public participation and documentation showing its consideration and approval of the agreement.
The court found that the petition raises serious constitutional questions touching on devolution, intergovernmental relations and the lawful limits of cooperation between the two levels of government.
The issues will be determined at the full hearing of the petition scheduled for 18 February 2027.
