By Habil Onyango
It has now emerged that a number of private law firms have been minting millions of Shillings from the county governments for various legal services.
This happens despite the Counties having in place properly constituted County Attorney’s Offices which have the capability of handling some of the cases.
Some of the court cases which have led to legal battles between the County Executive and various entities include unprocedural termination of employment contracts, disputes of unpaid claims of goods, works or services completed by contractors, irregular procurement processes and poor contract management among others.
According to the Auditor General’s 2023/24 Financial Year report, a number of counties spend millions of Shillings in contracting external advocates to represent them in the court of law in some cases.
According to Nancy Gathungu Counties could not account for millions of Shillings used in the legal battles which some might have been avoided by honouring court rulings.
Some were caused by irregular legal service payments, unsupported provision of legal services unsupported legal fees, irregular engagement of consultants for legal services unsupported payments of legal expenses among others.
For instance in the year under review, analysis of legal fees for Nairobi County reveals that four advocates, out of the pending legal cases are owed a total of Sh.6,269,546,657.00 which is 29 per cent of the total pending legal fees of Sh.21,371,004,293.00 (11 per cent of the County executives’ pending bills).
In Nandi County, the Management allocated Sh.36,820,030.00 for the outsourcing of legal services.
“It was not clear why the service which could have been discharged by the Office of the County Attorney was outsourced,” reads the AG’s report.
Homa Bay paid Sh.11,001,075.00 as legal fees to various firms for representing the County Executive in various legal disputes or court cases during the year under review.
However, records obtained from the Homa Bay Law offices indicate that there were 350 Court cases against the County Executive where some were still ongoing and others still pending before the courts dating back to the year 2020.
Details of the court cases such as the subject matter, case files, periods taken to complete the cases, fee notes and financial complications that such cases may have on the Executive were not provided for audit.
Furthermore, all the 350 Court cases were being handled by external law firms even though the County executive has a County legal unit with relevant human resources.
“No satisfactory explanation was given for outsourcing of legal sources,” reads the report.
In Siaya County out of the Sh.34,662,766.00 allocation for legal fees, Sh. 26 million was paid to a firm of advocates for an out of court settlements.
However, the details of the case and how the amount was arrived at was not provided for an audit.
Further an amount of Sh. 4,060,000.00 was paid to an advocate in a civil case between the County Public Service Board and former employees.
In addition, the County Executive had pending bills relating to decretal fees totalling to Sh.33,177,621.
“In circumstances, the completeness, occurrences and accuracy of legal fees amounting to Sh.34,662,766.00 could not be confirmed,” concluded the AG.
Kisumu County Executive paid Sh.46,078,251.00 to legal firms representing the executives in various legal cases and providing legal consultancy under the year of review.
However, a number of Anomalies which included expenditure amounting to Sh.22,496,355.00 not supported with documents such as a list of pending legal cases, outstanding legal fees and fees paid up to date per cases, contract agreement, procurement records, stage of proceedings or each case, breakdown of legal fees in feed notes and evidence of court attendance were noted.
Rate per advocate remuneration toll, statement or ledgers of advocates’ accounts and case files showing the value of each case was not provided.
According to the report, the Management paid Sh. 3 million to a legal firm as part of decretal fees, however certified decree and the current status of the legal cases were not provided for audit despite lack of approval by the Executive to engage legal consultants.
The same legal firm was paid Sh.5,570,979.00 for a court decree in a matter of citing the Executive Member and Chief Officer for Finance in contempt in disobeying a court order.
“No justification or explanation was provided for failure to abide by the court orders which resulted to the wasteful expenditure,” reads the report.
The report further reveals that Kisumu County Management made a payment of Sh14.2million to a legal firm for an outstanding decretal debt however, details and current status of the debt and acknowledgement for payment were not provided for the audit.
The management further made a payment of Sh3 million to a law firm for representing the Executive in claim of contempt of court order for payment of Sh.377,873,193.00.
“The interim fee note dated December 12,2022 amounted to Sh6,793,496.00 however details for payment of Sh.377,873,193 were not provided for audit.”
“Furthermore the amount of Sh345millionpaid was wasteful expenditure as it was avoidable,” reads the report
In Migori County, a total of Sh.50,326,213.00 was utilized for payment of legal services.
However, the fee notes provided for audit did not indicate the nature of work done for the amount claimed.
“In the circumstances, the accuracy and completeness of legal services amounting to Sh.50,326,213.00 could not be confirmed.
The Kilifi County Government paid Sh.71,571,803.00 to six legal practitioners who represented the Executive in various legal cases by providing legal consultancy services and also as a payment to a firm that sued the County for a breach of contract.
The County Government of Tana River paid Sh.30,703,120.00 to four legal firms which represented the Executive in various legal cases.
The expenditure, however, was not supported by the approvals of the Executive Committee and recommendations from the County Attorney.
Mombasa County Government used Sh.67,525,793.00 for payment of legal fees for various cases against the Executive where it was revealed the County’s liability continued to increase due to failure to honour the court rulings.
The Nakuru County Executive made payments of Sh.22,643,700.00in respect of legal fees for six law firms
However, the documents such as how the law firms were identified, signed services level agreements, certificates of appointments, evidence of court attendance, fee notes and monthly payment reports from each law firm in respect to each case were not provided for audit.
“Despite the County Executive recruiting its own County Attorney the privet law firms were engaged to represent the Executive in court cases without the approval of the County Executive Committee contrary to section 16 (1) of the office of the County Attorney 2020,” revealed Gathungu.
Busia County Offices of the County Attorney was found to have engaged services of privet law firms during the year under review at a cost of Sh.8,546,000.00, while the office of the Attorney of Busia also engaged law firms through direct tendering to handle 24 cases.
Narok County could not account for unsupported fees of Sh.27,614,165.00 it paid Sh364,996,746.00 I’m resected to legal fees.
According to the report the expenditure exceeded the budgeted amount of Sh.337,382,165.00 resulting to the difference.
Interestingly, in Kisii, it was noted that the County Attorney irregularly earned Sh.3,384,632.00 between January 2024 to August 2024 after the Employment and Labour Relations Court in Kisumu quashed his appointment.
This is after a private citizen proceeded to the court to contest his employment where he filed a petition
