County governments will continue to spend billions on legal fees after the senators declined to bar them from seeking the services of external law firms.
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.
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