\A debate over whether counties should outsource legal fees has been ongoing for some time.
Auditor General Nancy Gathungu’s report reveals that the counties owe Sh56 billion in legal fees. Nairobi owes the most, with Sh21 billion in pending bills.
Activist Laban Omusundi from Nakuru petitioned the Senate to stop county governments from hiring outside law firms, which sparked a heated discussion.
Mr Omusundi argued that counties should use their fully funded county attorney offices instead of outsourcing legal services.
“There are county attorneys established in line with the County Government Act, 2012, Section 43, well facilitated by taxpayers money to execute that mandate of representing county governments in legal matters,” he said.
Omusundi said some of the highest pending bills that counties owe are from legal fees.
The Senate’s Devolution Committee chaired by Wajir Senator Mohamed Abbas observed that no law bars counties from hiring lawyers externally.
“There is a lot of misuse of public resources in outsourcing legal services, informed by lack of laws restricting county bosses from the same,” the committee noted.
The senators agreed that there was a need to put measures in place to prevent county bosses from hiring private law firms.
Omusundi’s petition is already being considered by three Senate committees: Human Rights, Justice, Legal Affairs and Devolution and Intergovernmental Relations.
The Kenya Law Reform Commission (KLRC) recommended that the Office of the County Attorney Act be amended to give guidance on the hiring of legal services to the counties.
In their proposal, KLRC wants sub-section 16 (2) amended to compel county executives to give reasons for outsourcing legal services.
Face obstacles
In reaction, the county chiefs led by Council of Governors vice-chairperson and Wajir Governor Ahmed Abdullahi defended themselves saying they face obstacles in hiring lawyers with the skills they need.
Some of the counties have been unable to hire attorneys since the County Public Service Boards have not approved advertisement of the vacancies.
Nairobi-based lawyer Clinton Mwale told The Standard that there are numerous cases filed against the counties, and the lawyers hired by the devolved regions cannot defend all of them.
“The matters are many and they need many litigants to defend the county against them,” he said.
The Standard has also learnt that there are conflict of interest fears. Counties outsource lawyers because it is believed that those who work for the devolved regions may not provide all the required information.
During the budget-making process, every department submits its estimates to the budget committee, which include renovation and other office expenditures.
For example, the Nairobi County Attorney does not have an office since it is under renovation.
Some of the money allocated is also used to pay legal fees, and some of the decrees and judgements entered against the county.
A report by Controller of Budget Margaret Nyakang’o shows that the Office of the County Attorney in all 47 units varies in budgetary allocation.
