However, the lawmakers
have advised the devolved units to outsource legal services only for ‘complex
or specialised’ cases, which the internal legal department cannot handle.
The revelations are
contained in a report by the joint Senate, Justice and Legal Affairs and
Devolution and Intergovernmental Relations Committee tabled in the House last
week.
“The county
governments are advised to seek representation from external legal firms
occasionally when handling complex or specialised legal services,” the report
states.
“In this case, the
county governments should procure external legal services through the office of
the county attorney, and the costs should be in line with the relevant laws and
guidelines,” it adds.
The report follows a
petition by Laban Omusundi, a Nakuru resident, who asked the Senate to restrain
the devolved units from hiring law firms to represent them in civil court
cases.
The petitioner said
the move would safeguard the huge chunk of public funds directed at paying law
firms, which could have been used to enhance services to ‘Wanjiku’.
“That the Senate puts
in place measures to deter deliberate erroneous administrative decisions that
will ensure that everybody is held responsible personally for the administrative
decisions they make that may end up in courts,” the petition reads.
The Senate report
comes at a time when county governments are under scrutiny over alleged misuse
of billions of taxpayers’ money on the hiring of law firms.
This is despite the existence
of fully-fledged legal departments headed by attorneys in the counties.
“The OAG’s reports
pointed out that the counties continued to engage private law firms to offer
legal services despite establishing the offices of county attorney,” the report
states.
The devolved units do
not adhere to the requirements of Section 16 of the Office of the County
Attorney Act, 2020.
The provision requires
a county department or public entity established within a county executive to
seek written approval from the executive committee when engaging the services
of a consultant to render any legal services to the county.
In their submission,
the Council of Governors stated that the legal matters affecting the county
governments were complex, diverse and continuously evolving and often required
technical expertise beyond the general purview of the county attorneys.
“To enhance the
equality of legal representation, counties engaged external lawyers to be able
to access specialised knowledge and skills that are essential for effectively
addressing specific legal challenges,” the report says.
In the report, the
committee asked the counties to prioritise capacity building programmes for
legal counsel and ensure competitive remuneration and timely payment of
allowances.
The lawmakers also
want the counties to allocate sufficient budgetary resources and recruit
adequate staff to enhance the performance and effectiveness of the office of
the county attorney.
“The county
governments should strictly adhere to the legal framework governing the
outsourcing of legal services and implement strong oversight and accountability
measures,” the report says.
In her 2023-24 audit
report, Auditor General Nancy Gathungu exposed how the devolved units are
losing billions in legal fees.
For instance, Marsabit
county procured the services of a law firm at Sh10.3 million to defend a civil
case where the plaintiff had sued for Sh1 million in damages.
In Kisumu, the audit
flagged Sh46 million in unsupported legal expenses, while in Mombasa, the
county is grappling with unexplained payments of Sh67 million in legal fees.
In Kilifi, the auditor
flagged Sh71 million legal fees, while in Uasin Gishu - despite having an
Office of the County Attorney - Sh22.2 million was spent on external
legal representation.
In the 2022-23
financial year, the auditor queried Sh1.45 billion expenditure on pending
bills.
In 2021-22, the
auditor queried Sh23.84 billion, while in 2022-21 the amount flagged stood at
Sh2.17 billion.
