The Office of the Controller of Budget

Introduction

The Office of the Controller of Budget is an independent office established under Article 228 of the Constitution of Kenya with the core mandate being to oversee implementation of the budgets of the national and county governments by authorizing withdrawal from public funds. The functions of the Office of the Controller of Budget are:

Budget Oversight

This role involves overseeing the implementation of the budgets of both national and county governments. The Controller of Budget in this role therefore monitors the use of public funds in-year and reports to Parliament on how the funds have been utilized. It therefore plays this role through the controlling role.

Budget Control Role

The role of the controller of the budget in Kenya on the oversight is through control. The controlling function involves authorizing withdrawals from public funds. Before withdrawal from public funds, the Controller of Budget must first be satisfied that the said withdrawal is authorized by law, as per Article 228 (5) of the Constitution[1]. The constitution has addressed more of this funds which are the Equalization fund[2], the Consolidated Fund[3], and the County Revenue Fund.[4] The controller of budget is allowed by law to reject any withdrawal of funds from any public fund. This is emphasized whereby the controller of budget has not been satisfied any the grounds of withdrawal of funds that are not authorized by law and as such is mandated to reject.

Budget Reporting Role

This role as provided by law entails the preparation of quarterly, annual and special reports to the legislature and executive on budget implementation matters of the national and county governments. These reports are submitted to the Parliament. Both the quarterly, annual and special reports relates to the expenditure of the budgets of the national and the county governments.

The quarterly budget implementation reports are submitted to both the Senate and the National Assembly by the controller of budget. They are referred to as quarterly reports because they are always submitted after every four months by the Controller of Budget. The annual and special reports are submitted to the parliament and the national executive by the office of controller of budget.

Budget Advisory Role

This function of the Controller of Budget in Kenya as provided by law involves giving advisory opinions that touches on financial matters to Parliament. This is done in cases where the Cabinet Secretary has stopped the transfer of funds to a specific State organ or a public entity. The suspension of funds cannot be lifted or sustained before the Controller of Budget gives a report to Parliament.

Budget Investigation Role

The Office of the Controller of Budget is expected to conduct an investigation as an independent office on the financial performance of a State organ or the public entity after which a report is prepared and presented to Parliament. It is guaranteed these powers by the Constitution.[5] The investigation may be conducted on its own initiative or it may be upon receipt of complaint from any member of the public that the investigations are initiated. This report is then used to approve or renew the transfer of funds to a State organ or public entity as provided for under Article 225 (7) of the Constitution[6].

Budget Arbitration/Mediation Role

The Controller of Budget under Article 252(1) (b) of the Constitution[7] has powers for conciliation, mediation and negotiation. The mediation role may involve resolution of conflicts between the national government and the county government, or between county governments with respect to budget implementation. This role entails the duty to resolve disputes that relate to the process of budget implementation through the mechanism of alternative dispute resolution.

Public Sensitization Role

This is a key role that the Controller of Budget in Kenya is mandated to. It involves the dissemination of information to the public on budget implementation which is undertaken by both the national and county levels as is stipulated under section 39(8) of the Public Finance Management Act, 2012[8]. This role is buttressed and undertaken pursuant to the provisions of Article 35 of the Constitution[9] which provides that the public has the right to access any information held by the state. Public participation is facilitated through publicizing the reports on budget implementation processes. In doing so, the reports are uploaded on the official website of the Office so that the public may easily access the information.

The Law on Transferring land Inter vivos in Kenya

Introduction

Inter vivos is a Latin term that refers to when one transfers a gift to another person during their lifetime. For this type of a gift to be valid, it must be between two living persons, be capable of delivery, donative intent and acceptance have to be proved.

A gift can be defined as the transfer of an existing movable or immovable property made voluntarily and without consideration, by one person (the donor) to another (the donee) and accepted by or on behalf of the donee.

Such acceptance must be made during the lifetime of the donor that is while they are still capable of giving. If the donee passes on before acceptance, the gift becomes void.

What does the law require with respect to a gift inter vivos?

In her decision, Nyamweya J. in Re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] eKLR stated that:

“In law, gifts are of two types, there are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa). Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death:

… for gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid.”

Is Stamp Duty payable on gifts inter vivos?

Clause 52 of the Stamp Duty Act Cap 480 states that any conveyance or transfer operating as a voluntary disposition inter vivos shall be chargeable stamp duty as if it were a conveyance or transfer on sale.

However, Stamp Duty is not payable if:

a) the conveyance or transfer is in favor of any body of persons incorporated by special Act and that body is by its Act precluded from dividing any profit amongst its members and the property conveyed is to be held for the purposes of an open space or for the purposes of its preservation for the benefit of the Republic of Kenya; or

b) any body of persons established for charitable purposes only or the trustees of a trust so established.

Understanding Corporations under the Sectional Property Act, 2020

The transition from a Management Company to a Corporation.

The management company undertaking the above conversion shall transfer all assets and liabilities to the corporation as soon as the conversion process is complete and in any case within one year from the date of registration of the corporation. 

These transfers will be done based on the laws governing the ownership of those assets and liabilities. The management company will then be wound up as per the Companies Act and Regulations.

A corporation is established on the registration of the sectional plan.

A management corporation is therefore a legal entity that manages common areas and units in a sectional property development. The corporation is made up of the owners of the units in the development. 

How is a management corporation formed?

• A surveyor prepares a sectional plan for the development 
• The sectional plan is registered with the Registrar of Titles 
• The Registrar forms a corporation made up of the unit owners 

What does the corporation do? 

• Maintains and insures common areas
• Enforces the terms and conditions of the development
• Manages the administrative fund
• Handles estate disputes
• Resolves disputes through an internal committee
• Evicts tenants
• Imposes charges on units for unpaid service fees

How is the corporation run? 

• A board of management runs the corporation
• Members vote in proportion to the units they own
• The board convenes annual meetings
• The corporation has a common seal and perpetual succession

How is the corporation regulated? 

• The corporation is regulated by the Sectional Properties Act and the Regulations

 

Frequently Asked Questions: In Sectional Properties, is security deposit different from the service charge ?

 Yes, under sectional properties, a "security deposit" is typically considered a separate charge from a "service charge," with the security deposit acting as a refundable upfront payment to cover potential damages, while the service charge is an ongoing fee used to maintain and operate shared common areas within the development.

Key points to remember:

Security Deposit:

• Paid upfront by the unit owner when they move in.
• Usually refundable when the unit is vacated, provided no damage is found.
• Intended to safeguard the property owner against potential damage caused by the tenant.

Service Charge:

• Regular monthly or annual fee paid by all unit owners.
• Covers costs associated with maintaining common areas like landscaping, building maintenance, security services, utilities for shared spaces, etc.
• The amount of the service charge is usually calculated based on the unit's share of the overall property value.

REVIEW: CIVIL MARRIAGES IN KENYA

Introduction

This type of marriage is officiated by the registrar of marriages in a place determined by the registrar usually at the Attorney general’s office. (One woman- one man situation)

 

Individuals that intend to marry under this kind of marriage are required to give the registrar and the in charge of the venue where they intend to officiate their marriage a written notice of not less than 21 days and get married within 90 days from the date of that notice.

 

Couples situated in Nairobi can apply online for marriage services on the e-citizen platform, Online Marriage Services is only for Nairobi County. You can register your marriage at your local District / Sub County Commissioner’s Office; You can also register your Marriage at your local Registrar of Marriages in Nakuru, Eldoret, Kisumu, Malindi, Embu, Meru, Kisii, and Machakos.

 

The requirements of a civil marriage for citizens or refuges of Kenya

Before you fill in the online application form found at https://www.e-citizen.go.ke or apply at your local registrar of marriages, ensure that you have the following documents ready for attaching:

 

• Copy of National Identity Card or valid Passport or valid Alien Card for Refugees;
• Copy of birth certificate; (ensure that the names appearing on the birth certificate and the national identity card/ passport are properly aligned- names should be the same and appear in the correct order);
• One coloured passport-size photo for each Applicant;
• Copy of Death Certificate (if widow or widower);
• Copy of Divorce Decree Absolute (If the partner had been married before and is divorced);
• A sworn affidavit to confirm marital status in the event the Divorce Decree or the Death Certificate is more than 2 years old;
• Copies of Identity Card or Valid Passport for the two (2) witnesses.

The applicant shall be required to pay a notice fee on the online platform upon approval of their application.

 

After lapse of 21 days’ Notice period, parties are required to book an appointment on the online platform to appear for interview and verification of original documents. If there are objections and registrar find it their solid grounds, he shall cancel the notice of marriage to hear and determine the objections. The hearing takes place within 7 days. If there no objections the couple shall be issued with the certificate of no impediment

 

Upon successful completion of the interview, parties will be required to pay a fee on the online platform after which they will be booked for solemnization of the marriage – 30 to 90 days (30 days for notice and processing, marriage to be solemnized within 90 days).