Taxpayers will continue to pay billions of shillings to external lawyers procured by county governments to defend them in various legal matters after senators declined to bar governors from seeking the services of external law firms.

It now means the devolved units, and taxpayers, will continue to spend billions on legal fees. Auditor General Nancy Gathungu report has queried the exorbitant legal fees being paid to external law firms. 

Counties spend millions of shillings on cases that can be handled by the legal department. In all her audit reports, Gathungu has exposed massive wastage of public funds on legal fees. The counties, however, have defended their actions, insisting they outsource the services since most of the cases they face are complex.

In a report by a joint committee of the Senate Justice and Legal Affairs and Devolution and Intergovernmental Relations, tabled in the House last week, the lawmakers advised the devolved units to outsource legal services only for ‘complex or specialised’ cases, which the internal legal department cannot handle.

“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. The county governments are advised to seek representation from external legal firms occasionally when handling complex or specialised legal services, the report reads in part.

Curbing wastage.

The report follows a petition by a Nakuru resident, Laban Omusundi, who prayed to the Senate to restrain the devolved units from hiring law firms to represent them in civil cases. The petitioner said the move would safeguard the huge chunk of public funds directed at paying law firms, which could be used to enhance services to contemporary citizens.’

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 reads.

The Senate report comes at a time when the governments are on the spot over the alleged misuse of billions of taxpayers’ money on the hiring of law firms. This is despite the existence of a fully-fledged legal departments headed by county attorneys in the counties. In her 2023-24 audit report, Auditor General Nancy Gathungu exposed how the counties are losing billions in legal fees.

For instance, Nairobi City County government is set to pay Sh1.3billion to city-based lawyer Donald Kipkorir as payment for his legal services in two court cases involving military land ownership and the legitimacy of the city fire brigade by-laws. The legal fees have been pending for years until Kipkorir took the matter to court for the City County Government to honour its obligations. 

In Marsabit County, the audit report flagged the Mohamud Ali-led administration for procuring the services of a law firm at Sh10.3million to defend a civil case where the plaintif had sued for Sh1million in damages.

In Kisumu, the audit flagged Sh46million in unsupported legal expenses, while in Mombasa, the county is grappling with unexplained payments of Sh67million in legal fees.

Legal largesse

In Kilifi, the auditor flagged Sh71 million legal fees, while in Uasin Gishu County, despite having an Office of the County Attorney, it spent Sh22.2million on external legal representation.

In the 2022-23 financial year, the auditor queried Sh1.45billion expenditure on pending legal bills payments by the counties. In 2021-22, the auditor queried Sh23.84billion, while in 2022-21 the amount flagged stood at Sh2.17 billion.

“The OAG’s reports pointed out the counties continued to engage private law firms to offer legal services despite establishing the offices of the county attorney,” the report states.

The devolved units, the report states, do not adhere to the requirements of section 16 of the Office of the County Attorney 2020, which 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. By Rawlings Otieno, People Daily