REPUBLIC OF KENYA NYANDARUA COUNTY ASSEMBLY OFFICIAL REPORT. (The Hansard)

Transcription

1 REPUBLIC OF KENYA NYANDARUA COUNTY ASSEMBLY 1 ST ASSEMBLY-3 RD SESSION OFFICIAL REPORT (The Hansard) Thursday 23 rd June, 2015 The Assembly met at the Assembly Chambers at 2.30 P.M The Speaker, Hon. Ndegwa Wahome, in the chair. Prayer QUORUM CALL AT THE COMMENCEMENT OF THE SITTING Speaker: Clerk, confirm that there is quorum The clerk-at-the-table confirms that there is quorum Speaker: Okay, let us proceed transacting the business for today. First order COMMUNICATION FROM THE CHAIR Speaker: Hon. Members, I have two communications to make. The first one concerns our guests today. As was earlier communicated by the office of the Director of Information and Corporate Communication Services, today we are hosting a team of students from Nyahururu Boys High School. They are students of history who will sit their K.C.S.E. examination this year. They are anxious to learn how the assembly operates. I hope you have already seen that they have arrived. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 1

2 Applause The team is led by their two teachers: Mrs. Grace W. Gacheru and Mr. Tabu Boniface. They are also in the company of the school head boy, Murigi Timothy King u. I welcome them to Nyandarua County Assembly. Applause The second communication relates to the report on the verification of assets and liabilities of the defunct local authorities of Nyandarua. Hon. Members, as you are aware, there is established the Transition Authority under section 4 of Transition to Devolved Government Act, No. 1 of The Transition Authority has, among other functions as provided under section 7 (2) (e), the following mandate: Prepare and validate an inventory of all the existing assets and liabilities of government, other public entities and local authorities. In performance of its legal obligation, sometime in August 2014, the Authority carried out a pilot preparation of assets and liabilities of the defunct local government authorities in Nyandarua, that is, Ol kalou Town Council and the County Council of Nyandarua. This has seen the Authority prepare the report on verification of the assets and liabilities of the defunct local authorities of Nyandarua dated 31 December The Authority presented the report to the Assembly through the office of the Clerk yesterday, 22 June 2015, in a ceremony held at the Assembly grounds, which was attended by Commissioner Amina Ahamed. The report enlists the assets and liabilities of the defunct local copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 2

3 authorities of Nyandarua which have already been transferred to the Nyandarua County Government. Hon. Members, the said report will be tabled in this Hon. House in accordance with the procedures of the latter. Once tabled, I will give appropriate directions thereon. That notwithstanding, I must at this early stage hasten to state that there is need for this House to be involved in the validation of the report before the final publication of it is made. Accordingly, I implore the members to accord the report due attention once tabled in this House and upon the relevant directions. Hon. Members, that is as far as the report goes. The reason why I am emphasising on your involvement is because on a casual look at the report once it was presented at the office of the Speaker, I was able to note that five or six properties which were bought by the Council through me when I was a practicing lawyer are not captured. So there are very critical things that you require to check and consider in the report. This will ensure that every property that belongs to the public has been transferred to the County Government. Next order PAPER LAID REPORT BY THE TRANSITION AUTHORITY ON VERIFICATION OF ASSETS AND LIABILITIES OF THE DEFUNCT LOCAL AUTHORITIES IN NYANDARUA COUNTY DATED 31 ST DECEMBER Speaker: Yes member for Engineer and the Leader of Majority, Hon. James Mwangi Gichuki. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 3

4 Hon. Mwangi Gichuki: Thank you Mr. Speaker. I wish to lay the report by the Transition Authority on Verification of Assets and Liabilities of the Defunct Local Authorities in Nyandarua County dated 31 st December Speaker: Okay, the report is duly laid and is now the property of the House. I hope that each of the Hon. Members has a copy of the report. A direction had earlier been made that the report be duplicated and put in the Hon. Members pigeon holes. I wish to direct that the office of the Clerk categorises the assets in the report in terms of which departments they fall. For example, markets fall under Public Works, etc. The departmental categories of the assets will then be referred to the respective committees for the latter to verify whether all the public assets have been transferred to the county government of Nyandarua to be held in trust for the people of this county. The office of the Clerk requires not more than seven days to perform that task and furnish the relevant committees with the documents that bear the respective departmental categories of the assets in order for them to execute their mandate in that regard. Next order PAPER LAID Speaker: Yes member for Engineer and the Leader of Majority, Hon. James Mwangi Gichuki. Hon. Mwangi Gichuki: Thank you Mr. Speaker. I wish to lay the Nyandarua County Bursary Fund Act (Amendment) Bill, Speaker: Vey well; the Nyandarua County Bursary Fund Act (Amendment) Bill, 2015 is duly laid in the House. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 4

5 Next order PAPER LAID Speaker: Yes member for Engineer and the Leader of Majority, Hon. James Mwangi Gichuki. Hon. Mwangi Gichuki: Thank you Mr. Speaker. I wish to lay the Nyandarua County Trade Fund Act (Amendment) Bill, Speaker: Hon. Members, the Nyandarua County Trade Fund Act (Amendment) Bill, 2015 is duly laid in the House. Next NOTICE OF MOTION Speaker: Yes the Deputy Leader of Majority and member for Kipipiri, Hon. Michael Njoroge Kirumba Hon. Michael Kirumba: Thank you Mr. Speaker. Mr. Speaker Sir, I beg to give notice of the following Motion: Aware that the right to a clean and healthy environment is a fundamental constitutional right provided for under Article 42 of the Constitution; Further aware that the Environmental Management and Coordination Act (EMCA) and Environmental Management (Wastage Management) Regulations, 2006 prohibit discharge or disposal of waste in a manner that pollutes the environment or may cause ill health to a person; Noting that plastic bags have many negative effects including polluting the environment, killing animals and littering the landscape and further that they are non-biodegradable; copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 5

6 Concerned that continued use and disposal of plastic bags in Nyandarua County has become both a pollutant and environmental menace; Further concerned that there is no policy or legal framework in the County on solid waste management including the use and disposal of plastic bags; Further concerned of the dire and exceptional need to establish a policy and legal framework on the use and disposal of polythene bags in the County; Now therefore, I do urge that this House does resolve that the County Executive Committee Member for ICT and e-government, and the County Attorney do come up with a legal framework to regulate the use and disposal of solid waste with emphasis on the plastic bags (polythene bags). Thank you Mr. Speaker Sir. Speaker: Very well, the notice of motion is duly given. The House Business Committee shall allocate time when the motion will be moved. Next order. PROCEDURAL MOTION Speaker: Yes the Majority Chief Whip and member for Shamata, Hon. John Kinyanjui Gachari. Hon. Kinyanjui Gachari: Thank you Mr. Speaker. I beg to move the motion that; with the leave of the Assembly, Article 44 (1) of the Standing Orders requiring that there be designated statements hour every Thursday, commencing not later than 3.00 pm, be suspended to allow for the request for a statement that concerns the mandate of the Committee on Agriculture, copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 6

7 Livestock and Fisheries and further the interest of the people of Shamata and Wanjohi in particular, and collectively the county of Nyandarua. I call Hon. Michael Kirumba to second. Thank you Mr. Speaker sir. Speaker: Yes the Deputy Leader of Majority and member for Kipipiri, Hon. Michael Njoroge Kirumba. Hon. Michael Kirumba: Thank you Mr. Speaker. I rise to second that procedural motion especially with reference to the issues that the statement will address. Mr. Speaker, I request that you give directions on the suspension of the quoted standing order to allow the request of the said statement. Thank you Mr. Speaker. Question on the adoption of the motion proposed. Speaker: Yes, the chairman of the Committee on Agriculture, Livestock and Fisheries. Hon. Kimani Njiraini: Thank you Mr. Speaker sir. I appreciate your successful tour of Botswana. I also commend the visit by the students of Nyahururu Boys High School. The Deputy Speaker and I are part of the alumni of that school. The statement hour is very important. It helps members to seek statements on pertinent issues of our county. I do support that procedural motion on the request for the statement. Thank you Mr. Speaker. Speaker: Since the motion has been contributed to, I call the motion mover to respond. Hon. Kinyanjui Gachari: Thank you Mr. Speaker. I beg to request for a statement from the Chairperson of the Committee on Agriculture Speaker: No Hon. Kinyanjui Gachari. You should just thank the Chairman of the Committee on Agriculture, Livestock and Fisheries for supporting your procedural motion and agreeing with copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 7

8 you on your statement request. Remember the question has not yet been put meaning that your leave to request for the statement has not been granted by the House. Hon. Kinyanjui Gachari: Thank you very much Mr. Speaker. I thank the Chairman of the Committee on Agriculture, Livestock and Fisheries for supporting my procedural motion concerning the request for a statement on the interests of the people of my area, Shamata and Wanjohi in particular. Speaker: So you beg to move? Hon. Kinyanjui Gachari: Yes Mr. Speaker. Question on the adoption of the motion put and agreed to. Speaker: Next order. STATEMENT SOUGHT Speaker: Yes the Majority Chief Whip and member for Shamata, Hon. John Kinyanjui Gachari. Hon. Kinyanjui Gachari: Thank you Mr. Speaker. I was very anxious to request for this statement because of an acute problem in my area. I beg to request for a statement from the Chairperson of the Committee on Agriculture, Livestock and Fisheries as follows: Aware that sometimes in August 2014, some farmers in Shamata and Wanjohi Wards, collectively known as Ol-bolosat Farmers Group were approached by a company known as known Quest Agriculture Limited with a view to establish a farming partnership agreement for farming a type of onion known as Texas Grano. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 8

9 Aware that following intense sensitization by the Company and the Co-operative Bank Limited (herein the Bank) farmers agreed to take up the farming of the onion on the following understanding: 1. That the farmers would be financed by the Bank, only if they farmed the onion variety to be the purchased by Quest Agriculture Limited (hereinafter referred to as the Company); 2. That the Company would supply the farmers with the seeds and fertilizers for farming the onion variety and the Bank would deduct the cost thereof from the loan advanced to an individual farmer; 3. That upon maturity the Company would buy the produce from the farmers at a price of Kenya Shillings Seventy (Kshs. 70) for first grade; and 4. That the farmers would also meet the cost of soil analysis at Kenya Shillings One Thousand (Kshs. 1000) also to be deducted from the loan advanced by the Bank. Further aware that about one hundred and eighty farmers (180) took up a loan from the Bank for the purpose of farming the onion variety; Concerned that after the farmers took up the farming of the onion variety and upon maturity; the Company did not, until after publicized outcry from the farmers, buy the produce; Further concerned that the Company only bought eighteen (18) tonnes of the produce and has not paid the farmers up to date; And further concerned that the Bank is seeking to realize the loan it advanced to the farmers for the farming of the onion variety; copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 9

10 I now wish that the Chairperson of the Committee does issue a statement to this House addressing the following issues; 1. The role of the Co-operative Bank Limited in the agreement; 2. The status of Quest Agriculture Limited and its directorship; and 3. The possible interventions that the County Government can make to relief the farmers from the burden of the loans taken for purposes of farming of onion variety under the said agreement. Thank you Mr. Speaker. Speaker: The statement has been requested for. The chairperson of the Committee on Agriculture, Livestock and Fisheries should give a report addressing the issues indicated in the statement request. I do not know whether there is any other issue concerning the farming of the onion variety in Shamata and Kirima areas that Members would wish to be included in the report to be tabled by the Committee on Agriculture, Livestock and Fisheries. Yes member for Wanjohi, Hon. Joseph Mumba Gichini Hon. Mumba Gichini: Thank you Mr. Speaker sir. I support the statement requested for because there is an outcry by the said group called the Ol-bolosat Farmers Group that the company, Quest Agriculture Limited, has not come to buy their produce as agreed. The farmers group continues to farm the onions. Once again, I support. Thank you Mr. Speaker. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 10

11 Speaker: I hope the Chairman of the Committee on Agriculture, Livestock and Fisheries will include all the necessary information in the report. Chairman of the Committee on Agriculture, Livestock and Fisheries, what time will you require to compile the report considering the urgency with which it should be tabled in the House? Hon. Kimani Njiraini: Thank you Mr. Speaker. Considering that the statement sought is a major concern, three weeks will be enough to prepare the report. Thank you Mr. Speaker. Speaker: With three weeks, it then follows that you should table the report on 21 July 2015, which will be on a Tuesday, in the afternoon. Next order BILLS NYANDARUA COUNTY BURSARY FUND ACT (AMENDMENT) BILL, 2015 FIRST READING Speaker: Hon. Members, I invoke the provisions of standing order 121 and without putting any question, I will refer the bill to the relevant Committee, which is the Committee on Education. Chairman, we would like to have your input on this because this is a matter that we are required to deal with and have the Governor sign, so that it is published and the money be released by 30 th this month. Otherwise, this will have to wait for the supplementary budget to come. Can you be able to bring the report by tomorrow in the afternoon? copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 11

12 Hon. Josphat Kamau: Mr. Speaker, bearing in mind the urgency of this matter, my Committee and I will work to see to it that the report is tabled tomorrow in the afternoon. Applause Speaker: Very well, chairman Committee on Education and member for Leshau Pondo Hon. Josphat Kamau. We expect that report tomorrow. The clerk will ensure that we have the relevant procedural motions so that we can exhaust the business tomorrow. Next order i. NYANDARUA COUNTY TRADE FUND ACT (AMENDMENT) BILL, 2015 FIRST READING Speaker: Very well, I again invoke the provisions of standing order number 121 and refer the matter to the Committee on Industrialisation, which also deals with trade. These funds are available to our small traders. We have to deal with this law before the end of this month so that the people are able to benefit from this fund. Chair, the vice chair or a member of the Committee, yes member for central Hon. Peter Mwangi Maina Hon. Peter Maina: Thank you Mr. Speaker sir, looking at the urgency of the matter, Thursday will be appropriate to table the report. Speaker: Can you be able to bring it tomorrow in the afternoon? Hon. Peter Maina: Tomorrow will be ok Mr. Speaker. Speaker: We are going to deal with the issue on that amendment bill tomorrow in the afternoon. The Clerk should organise the requisite Procedural Motions in consultation with the Leader of Majority and the Leader of Minority. MOTION copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 12

13 REPORT BY THE COMMITTEE ON WATER, ENVIRONMENT AND NATURAL RESOURCES ON THE TAHAL ENGAGEMENT IN NYANDARUA Speaker: Yes chairman Committee on Water, Environment and Natural Resources and member for Charagita, Hon. Paul Kiruka Mburu Hon. Kiruka Mburu: Thank you Mr. Speaker sir for giving me this chance to move the following motion concerning the Tahal. Laughter Hon. Githinji Ngumba rises on a point of order Speaker: What is it member for Magumu and the leader of minority, Hon. Githinji Ngumba. Hon. Githinji Ngumba: Mr. Speaker, one of the recommendations of the Committee says that the Committee needed to conduct full investigations on this. It seems like the Committee has not finished investigations. Laughter Speaker: Order members! I think that this matter has been pending for a very long time. This is the time to give it concrete direction and way forward and we can only do that after interrogating the matter fully. Member for Charagita, proceed with your motion and then the other matters can be raised later. Hon. Kiruka Mburu: Thank you Mr. Speaker sir for your wise ruling. I beg to move the following motion copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 13

14 That this House does adopt the Report by the Committee on Water, Environment and Natural Resources on the Tahal Engagement in Nyandarua as a Report of this House and the Recommendations therein as Resolutions of this House. This is the Report of the Water, Environment and Natural Resources Committee and a response to a statement requested by Hon. Peter Githinji Ngumba (Magumu ward MCA) concerning the purported engagement of the Israel Government or Company and the Nyandarua County Government on the Development of Water and Sanitation Facilities in Nyandarua County. Mr. Speaker, I would like to refer you to page 4 where we have the summary of the key findings. Mr. Speaker sir, the Committee established that, a contract was signed by the Governor and the Tahal Consulting Engineers Ltd instead of the Accounting officer Finance as required by the Public Procurement and Disposal Act and the Public Private Partnership Act A legal opinion was sought concerning the contract and letters provided to show the procurement process which was directly sourced. The Public Private Partnership Act as well as the Public Procurement Act clearly states that the signatory to Government contracts is the Accounting officer and this triggers the question whether the contract signed is legally binding. The contract scope as clearly stipulated in the contract document indicates that the first phase of the project will cost the US$ approximately (50 MILLION), but the other documents presented to the Committee shows a figure of 270 million, which seems out of place. In addition to this, the TARDA budget 2015/2016 stated the cost as 200 million and this elicited a lot of questions on the correct figures of the contract noting copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 14

15 that; the contract has clearly stipulated that the second phase of the contract was to be determined after the completion of the first stage and approval of the Inception Report for the Nyandarua County Water Master Plan. However, it is worth noting that the contract scope includes the second stage whose Cost price is undefined. Tahal had no obligation to fund the project since the cost was incumbent to Nyandarua County Government but Tahal would assist the county to solicit for customized loans to fund the project. Mr. Speaker, as we speak, the first stage of the project is concluded and here with me are copies of the Inception Report for the Nyandarua County Water Master Plan and the Design Review of the Ol kalou sewerage design report which were submitted to His Excellency the Governor during his visit to Israel on, 9 th November I had tabled all these documents on the floor of the house sometimes back. Mr. Speaker, I wish to thank you for the support given to my Committee during the whole process of fact-finding and facilitating the Committee during the report writing exercise. Preparation of this report would not have been successful without the support of: the office of the Clerk, the CEC member for Water, Environment and Natural Resources and the members of the Committee who were committed to see that this report was completed in time though they were at times frustrated by the delay in submission of the documents from the Executive Arm of our Government. I thank the Committee members for their useful insights and contributions for the up-todate deliberations. I cannot forget the wonderful secretariat that made sure that all Committee members were furnished with all relevant documents submitted to the copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 15

16 Committee once availed and their technical assistance while coming up with this report. The following members contributed significantly in preparation of this report: 1. Hon. Paul K. Mburu - Chairman 2. Hon. Moses Mwichigi - V/Chair 3. Hon. Mwangi Gichuki - Member 4. Hon. Paul Maina Nderitu - Member 5. Hon. Kimani Njiraini - Member 6. Hon. Monicah W. Kariuki - Member 7. Hon. Teresiah Njoki - Member Secretariat 1. Grace Ng ang a Committee Clerk 2. Samuel Gicheha Committee Clerk 3. Meshack Waweru Research Officer Mr. Speaker, this Report is in response to questions raised by the Member for Magumu Hon. Peter Githinji Ngumba on 17/7/2014 regarding the Tahal Engagement with Nyandarua County Government, which by then was not confirmed. To provide valid and reliable information, the Committee had an opportunity to probe on issues of the Cost of the project, the obligation of the County Government and the Israel Government with respect to this project, the extent and the scope of engagement, compliance with the Public Procurement and Disposal Act, whether the County had undertaken a similar venture and the issue of requisition of goods and services for the project. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 16

17 The major challenge faced by the Committee was to access relevant documents from the Executive Arm of Government as they were provided in bits thus delaying the conclusion of the matter. The CEC member in charge of the Water, Environment and Natural Resources, who has appeared before the Committee on several occasions justified the choice of the project, which she said, is a flagship project in the C.I.D.P and the needs to cater for the whole County s Water needs in a sustainable manner. A few discrepancies noted in terms of the contract such as signing a contract with some undefined elements as found in the Stage two of the contract, should however be avoided in the future to safeguard the interests of Nyandarua County and its resources. Mr. Speaker, let us go to the introduction. Nyandarua County Government through the department of Water, Environment and Natural Resources identified the need and embarked on the development of a County Water Master Plan and a Design Review of the Ol kalou Town Sewerage System Design report. The consultancy services for the review of the Ol kalou Town Sewerage Design were to improve on the one done by the National Government funded by JICA Hon. Kamau Ngotho rises on a point of order Speaker: What is it member for Karau, Hon. Kamau Ngotho? copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 17

18 Hon. Kamau Ngotho: Mr. Speaker, on the day when the report was tabled, we wanted to raise issues on preliminary objection. It was however stated that when the motion mover comes to move the report, those issues should be raised before the mover moves the report. The Speaker of the Senate allows preliminary objections when the members feel that some things are not in order especially when the tabled papers are not properly tabled. Mr. Speaker, I ask for your direction on whether we can do the same because I do not think that some of the things in this document should be in this house. Speaker: I think that preliminary issues are allowed in any Parliamentary process but I do not know whether the issues to be raised are so fundamental such that they go to the sustainability of this report; that is, if they are raised and they succeed, the report will be expunged. When Hon. Ekwe Ethuro allowed that, there was no report but only a motion and the issue was whether that motion should proceed when there was a matter pending in court. In this case, a report has been tabled in the house, a motion on this report has been approved and a notice of the same has been given. What would be the result of any preliminary issue raised on this motion on the report? We should ask that question. Are they issues that we can be able to discuss in the report in totality and this house makes resolutions that it deems fit so that we can sort out this matter once and for all? I know that members have so many issues because they have come to see me after going through the report but I have indicated that this matter has been pending for almost one year before it has been dealt with by this house. Justice is not only done but must be seen to be done. So many people are waiting to see how this report will be dealt with. I think that the best thing is that all the issues that need to be dealt with in this report be interrogated and then the house can copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 18

19 make requisite resolutions on whether to adopt it the way it is, to adopt it with amendments or even to throw it out because those are the three options. Hon. Kamau Ngotho: Mr. Speaker, I agree with your direction. I was feeling that discussing a report that has some annexures that are not signed would be breaking the law but we can continue as you directed. Speaker: Member for Charagita, proceed. Hon. Kiruka Mburu: Thank you Mr. Speaker for that direction. Let me continue. The consultancy services for the review of the Ol kalou town Sewerage Design was to improve on the one done by the National Government funded by JICA in 2009, which catered for a small town and not a capital city of the Nyandarua County. The need for a county Water Master Plan was informed by the need to have a comprehensive plan that will inform on the right investments that will suit each area noting that different zones in the County need different inputs to serve the residents with adequate water. It is in this regard that the Nyandarua County through his Excellency the Governor signed a contract with TAHAL to offer consultancy services on these two key areas on 30/4/2014. This contract was indefinite to members of the County Assembly until the question was raised in this House. Mr. Speaker, to this effect the Committee had several meetings with the CEC member for Water, Environment and Natural Resources and also looked at several documents copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 19

20 requested from the Executive Arm of government relating to the matter and came up with the deliberations given herein under together with recommendations and findings. BACKGROUND Mr. Speaker, on 17 th of July 2014, the member for Magumu Ward Hon. Peter Githinji Ngumba requested for a statement on the purported engagement of the Israel Government or company and the Nyandarua County Government on the Development of Water and Sanitation Facilities in Nyandarua County. The statement was sought under the standing order number 44, whereby Hon. Githinji wanted a clarification on the following:- i. The extent and scope of engagement between the County Government and the Israel Government or Company, ii. The total cost and expenditure to be incurred in the project and the amount of money paid to that end if any, iii. The obligations of the County Government and the Israel government concerning the cost, iv. The requisition of any good or service to the cost of the project, v. Compliance of the same with the applicable procurement laws, and vi. Whether the County Government has undertaken other similar venture. The Hon. Speaker in his Ruling made on the 23 rd July 2014 concerning the matter, directed the Committee on Water, Environment and Natural Resources do issue a statement on the issue. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 20

21 Mr. Speaker, the Committee severally invited the CEC member in charge of Water, Energy, Environment and Natural resources, Ms. Grace Gitonga, and the CEC member for Agriculture to Committee meetings to clarify on the issues raised by the Hon members in the House. The CEC members provided some information concerning the said project. This information was both oral and documentary. Some documents were not presented in time causing the delay in completing this report, which my Committee wanted to be factual, and be supported by the right documents. The Committee was furnished with copies of the following documents by the County Executive Committee Member for Water, Energy, Environment and Natural Resources: i) The contract of the Engagement, ii) iii) iv) The invoice for the down payment as per the contract, The consultants Bank guarantee, Report of the C.E.C.M concerning the project. v) Minutes of the Tender committee authorizing the single sourcing on 10/4/2014. vi) Terms of reference for feasibility studies, final design and environmental impact assessment, vii) viii) ix) Terms of reference for development of County water master plan Ol kalou Sewers layout plan, A written legal opinion of the contract, x) Projects previously undertaken by Tahal in Kenya, Africa and other countries. xi) xii) An extract of the private partnership Act 2013 and Format for Advance payment (blank form). copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 21

22 xiii) Payment voucher for the down payment/advance payment. xiv) Draft public Private Partnerships (County Governments) Regulations, 2014 xv) Inception reports for the Design review of Ol Kalou Town sewerage system design xvi) Inception report of the County Water Master Plan Mr. Speaker Sir, I have already tabled the aforementioned documents. Please allow us to go to the next item in the report. This is on Committee s findings. Mr. Speaker, I will read word for word since the members have requested me do it. The report is divided into subsections, which I will highlight and then expound on the committee s findings. Mr. Speaker, 1. THE EXTENT AND SCOPE OF ENGAGEMENT BETWEEN NYANDARUA COUNTY AND THE ISRAEL GOVERNMENT OR COMPANY. The CEC member confirmed that there is a contractual agreement between Nyandarua County and an Israel owned private company called Tahal group International. The contract is to develop the County Water Master Plan and Review of Ol kalou Town Sewerage System Design. The said contract was signed on the 30th April 2014 by the Governor of the County, H.E. Daniel Waithaka Mwangi and the Tahal Consulting Engineers in the presence of the CEC member in charge of Water, Environment and Natural resources, Ms. Gitonga as a witness. Mr. Speaker, according to the CEC member for Water, Environment and Natural Resources, Israel Government through their Ambassador to Kenya facilitated the copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 22

23 connection with TAHAL as he proposed the company, which has done several successful projects in Israel and other Countries in Africa. Mr. Speaker, who or what is this TAHAL? Laughter TAHAL Group International B.V. is a global engineering design and construction firm owned by the Kardan Group and ranks among the top companies of its kind, offering its clients unique value-added integrated solutions. Based in Amsterdam, the company has two main business units: 1. TAHAL Assets B.V. - For strategic investments 2. TAHAL Group B.V. - For project execution. TAHAL was established in 1952 with the aim of meeting Israel's greatest challenge transforming its arid, ancient lands into the fertile fields of the modern state, starting with the design of the National Water Carrier project to many other national infrastructure projects. Since that time, and following hundreds of successful projects in more than 50 countries, TAHAL has become a key player in water, sanitation and agricultural development, with unparalleled expertise in mobilization of funds and investments. Tahal specializes in various fields such as water resources development and management, water and waste systems, integrated rural and agricultural development, environmental and solid waste solutions, energy and natural gas systems and also offers services in planning and engineering designs, supervision and management, turnkey and PPP projects and project financing. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 23

24 The contract between the Nyandarua County government and the Tahal Group was signed on the 30th April 2014 under the terms and conditions listed and is expected to be implemented in two stages as annexed in the report. The second point Mr. Speaker is, 2. TOTAL COST OF THE PROGRAM Mr. Speaker, according to the information provided in the contract, the Nyandarua County Water Master Plan and Design Review of the Ol kalou Sewerage System Design report s cost price for the services and products included in stage one is a total lump sum amount of US $ 625,000(six hundred and twenty five thousand US dollars. This is approximately 50,000,000 Ksh (Fifty million) shillings but subject to fluctuations in the money market and also subject to schedule of payments stipulated under the contract. The County Government has so far paid an advance deposit of 50% as per the contract, which is US $312,500, which is equivalent to 25,000,000 Ksh. This was paid against a Bank Guarantee on the 15th May 2014 to secure the County against any default by the Company as indicated in the attached invoice and TAHAL Bank Guarantee and Nyandarua County government s Payment voucher. The CEC member however clarified that once the County water master Plan is presented, the implementation of the plan is expected to cost approximately 2 billion shillings, which will be sourced from the County Revenue and other development partners. Tahal Company will only assist to source such funds from development agencies owing to its experience and connections in such projects. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 24

25 Other documents submitted to the committee and involving TARDA as a development partner were not clear and the committee wishes that the second phase be well clarified before approval. Mr. Speaker the third point is, 3. OBLIGATIONS OF THE NYANDARUA COUNTY AND ISRAELI GOVERNMENT AS TO THE COST. Mr. Speaker, the County Government is expected to foot the cost of the County Water Master Plan and the Design review of the Ol kalou sewerage design report in totality. The total cost of implementation of the projects after the master plan is also incumbent upon the County Government while the Tahal Group International is expected to link the County with international development agencies for funding of such projects. The Israel Government is not liable in any way as per the contract as the two parties who signed the agreement are the Tahal Group representative and the Governor of the County Government. The CEC member clarified that the implementation of the water master plan will be borrowing a lot from TAHAL s expertise in sourcing for funds as it has done in other countries where it has operated in. A copy of a memorandum of understanding was presented to the committee in the initial parts of the facts finding but it is not clear if it was signed at one point between the government of Israel and the county government of Nyandarua as indicated in the copy of memorandum in the annexes. 4. THE REQUISITION OF ANY GOOD OR SERVICE TO THE COST OF THE PROJECT. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 25

26 Mr. Speaker, according to the information given on the contract, the scope of the contract is the consultancy services for the development of a County Water Master Plan and the review of the design of Ol kalou town sewerage system for the County Government. The County government will conduct implementation of the plans and therefore contracts to be awarded during implementation will be carried out by the County Government and other implementation agents involved. TARDA has been cited as a probable implementation agent if funds are sourced from the National government or international agencies. Please see the attached Budget from TARDA. Number five Mr. Speaker, 5. COMPLIANCE OF THE CONTRACT WITH THE PROCUREMENT APPLICABLE LAWS. Mr. Speaker, the CEC member in charge of water informed the committee that the Governor initiated the procurement of services from the Tahal group and that she was appointed by the Governor to follow up the Water related issues in collaboration with a Liaison Officer at the Israel Embassy. The contract that went through the direct procurement process after seeking permission from the Tender Committee on a meeting held on the 10/4/2014 minute number Min 8/NYA/TC/08/09/2014. This complies with the Public Procurement and Disposal Act provisions and the Public Private Partnership Act and answers the question of the justifications for the single sourcing owing to the amounts involved. The CEC member said that she sought a legal opinion from the Legal department and the National Treasury s Public Private Partnerships unit and the Contract was sanctioned borrowing from the provisions of The Public Private Partnerships Act copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 26

27 The CEC member confirmed that pursuant to the Public Private Partnership Act, 2013 the contract was awarded without the competitive procurement process owing to complexity occasioned by the nature of engagement between a County Government and a Private Company from another Country and the amount involved in the whole process. She also explained that the TAHAL group is specialized in such highly skilled jobs. Mr. Speaker, it should be noted that the Public Procurement and Disposal Act provides for the procedure and pre-conditions of a direct procurement process. Sections 74 and 75 of this Act should be complied with. For direct procurement, procedure to be applied the provisions of section 29(3) of the Act come into play requiring a written approval of the tender committee and written reasons for using that procurement procedure. Section 74(2) of the Act provides as follows:- A procuring entity may use direct procurement if the following are satisfied:- a). There is only one person who can supply the goods, works or services being procured, b). There is no reasonable alternative or substitute for the goods, works or service. Six Mr. Speaker, 6. WHETHER THE COUNTY GOVERNMENT HAS UNDERTAKEN OTHER SIMILAR VENTURE. The committee found out that there was a Water and Sewerage Design Report of Ol kalou Town done by the National Government and funded by JICA in 2009 under the Rift Valley Water Services Board, which had not considered the Town as a city. It is therefore important to review the plan to incorporate the projected growth of the town into a city for sustainable development. The CEC member added that the County Water Master Plan as opposed to the National Master Plan would fill in the gaps left by copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 27

28 mapping all water resources in each ward. The master plan by the national Government only provided for one dam per sub-county, which is insufficient for the County development. Mr. Speaker, those were the committee findings. We shall proceed directly to the key findings of the report. 1. There is an actual contract, which has been signed Mr. Speaker. However, the validity of the contract is questionable since it was signed by the Governor who is not the accounting officer of the County Government. It should be noted that section 22 of the Public Private Partnerships Act 2013 provides for the execution of a project agreement. It states that, where a contracting authority intends to enter into a public private partnership, a person shall not, unless he is the accounting officer of the authority, enter into a project agreement in relation to that project on behalf of the authority Mr. Speaker Sir, the Governor is not the accounting officer of Nyandarua County Government and therefore violated section 22 of PPPA by signing this contract. 2. The committee received documentary evidence as pertaining to the advance payment of the contract and a payment voucher from the Finance officer. 3. From all along, there has been a misconception that TAHAL is the one funding the project. However, Tahal is not incurring any cost. The total cost of the project is to be borne by Nyandarua County Government. 4. Stage two price is indefinite as compared to phase one, which is clearly stated in the contract. This means that a contract exists with undefined price and hence the need to unbundle the ambiguous second phase and cost it. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 28

29 5. The first phase of the project is complete and as per the contract, the payments for the first stage as per the defined schedule should be paid to avoid further interest that may accrue from any delay by the client. 6. There was no advertisement for competitive bidding. 7. That the proposal was not submitted to a unit (Public Private Partnership Processing) as required by the law. 8. That a letter coming from the County Treasury stated that the officer was open to considering the request to single source but not approval for the same though it is in the tender committee minutes. 9. That the legal opinion was sought after the Contract had been signed. The contract was signed on 30th April 2014 while the legal opinion was received by the C.E.C.M. on 5th May This simply means that the said legal opinion was of no effect unless the contract was amended. 10. That there are conditions that should be met before engaging in privately initiated proposals. Section 61 (1) of the PPPA 2013 states that, A contracting authority may consider a privately initiated investment proposal for a project and procure the construction or development of a project or the performance of a service by negotiation without subjecting the proposal to a competitive procurement process where:- a.) There is an urgent need for continuity in the construction, development, maintenance or operation of a facility or provision of a service and engaging in the competitive procurement process would be impractical: If the circumstances giving rise to the risk of copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 29

30 disruption were not foreseeable by the contracting authority or the result of an unreasonable failure to act by the contracting authority; b.) The costs relating to the intellectual property in relation to the proposed design of the project is substantial; c.) There exists only one person or firm capable of undertaking the project, maintaining the facility or providing the 'service or such person or firm has exclusive rights over the use of the intellectual property, trade secrets or other exclusive rights necessary for the construction, operation or maintenance of the facility or provision of the service; or d.) There exists any of the circumstance as the Cabinet Secretary (in our case the C.E.C.M. may prescribe) Section 61(2) further states that, A contracting authority shall, before commencing negotiations with a private party under this section: (a) Prescribe a criteria against which the outcome of negotiations shall be evaluated; (b) Submit the proposal to the unit for consideration and recommendation; (c) Upon obtaining the recommendations of the unit, apply for, and obtain approval from the Committee to negotiate the contract; and (d) Conduct the negotiations and award the tender in accordance with the prescribed process in the regulations to this Act. Mr. Speaker, those were the key findings of the committee. With your indulgence, we can now proceed to the next section of the report that has the recommendations. Mr. Speaker, my committee recommends: copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 30

31 1. That the County government pays its obligations with the Consultant as agreed upon for the first stage but have the second stage defined before approval and commissioning. 2. That the County should comply with the law in such engagements and therefore a Public Partnership Procurement Unit be formed to streamline such engagements in the future. 3. That in future before the government entities enter into a contract, it should clarify whether the entity is the government or individual/private Company. 4. That the County Attorney should advice on the validity of the contract since it was signed by an authorized person whether it should be terminated or customized. 5. That the County Assembly should be informed of any intended engagement involving the Public Private Partnership and other Governments. 6. That the value for money be a guiding principal in initiating such partnerships in the future. Mr. Speaker, allow me to go to the conclusion. The Committee is aware of the importance of water not only in Nyandarua Country but in the whole Country at large. We appreciate the goodwill of the governor in pursuing the blueprint for provision of water and sanitation to the residents of our county. However the committee also noted some ignorance in the procurement process which we believe can be avoided in the future in order to safeguard the County from engaging in unorthodox manner in its endeavours. copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 31

32 I wish to table a copy of the two inception reports tabled before the committee and inform member that other documents not annexed to this report can be acquired from the office of the clerk. Thank you, Mr. Speaker. I also want to table a copy of the report tabled before the committee, you can see that this is a report that I urge the house to adopt because we need water in this county. Our county is a catchment area yet our water serves other counties. Let us support this report so that next year we can all have water. If you consider a single mega dam in Ndaragwa, it would cost us 50 million shillings. I call Hon. Njiraini to second the motion on adoption of the report. Speaker: Yes member for Kaimbaga, Hon. Kimani Njiraini. Hon. Kimani Njiraini: Thank you Mr. Speaker, I would like to thank the chairman for taking us through the report and putting an emphasis on the need for water in this county. If we had sufficient water in the county, we would be able to finally achieve the elusive food security. If there was an error in the report it was only due to single sourcing. I was in the delegation to Israel and in addition to the master plan, Tahal also recycles water and if we adopt this report, I can assure you that we will have a very viable project in the county. I support the report and urge all the members to follow suit. Question on the motion of adoption of the report proposed. Speaker: Yes member for Njabini Kiburu. Hon. James Gachomba: I wish to thank the chairman of the committee on water and natural resources. The document brought before us speaks for itself. The aim of the master plan was to provide water for the county. However, the process was marred with irregularities from the word copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 32

33 go. The governor, for instance, signed a document that was supposed to be signed by the CEC of finance who is the accounting officer. Additionally, they single sourced for a project that would cost about 16 billion, yet the procurement committee was supposed to conduct a competitive sourcing process. They have even gone ahead to claim that they will construct a dam in every sub county, and, I wonder, how they were going to do that. The document is highly questionable and, clearly, there are a lot of conmen involved. They indicated that Tahal has helped a lot of other counties get water but none of the countries were mentioned. They even went ahead and made a payment of 50 million shillings from the county revenue fund without the consent of this Assembly. Hon. David Ndirangu (Mirangine) rises on a point of order. Speaker: What is it member for Mirangine? Hon. David Ndirangu (Mirangine): Thank you Mr. Speaker. Is it in order for the member of Njabini Kiburu to support and fight the report at the same time? Speaker: Order member for Mirangine! The chairman of the Budget and Appropriations committee did not say he was supporting the report, all he did was thank the chairman of the committee on Water and Natural resources for bringing the report. I actually thought that you stood on the point of order that the member indicated 50 million was paid while, in fact, it was 25 million. Proceed Member for Njabini Kiburu, Member for Mirangine, you are out of order. Hon. Kiruka Mburu rises on a point of information. Speaker: What is it member for Charagita? copy of the Hansard Report can be obtained from the Hansard Editor, NCA Page 33