How counties are splashing millions on legal firms

County Governments continue to spend millions on irregular hiring of external lawyers, disregarding a directive by the Attorney General issued on November 3, 2020.

Auditor General Nancy Gathungu, in the latest audit report, said county executives continue to procure the services of private law firms despite having recruited their own County Attorneys.

Baringo County Government, for example, spent Sh900,000 on legal fees in the FY 2023/2024.

The expenditure as per the report was not supported with details such as the level of Court, whether the case was ongoing, concluded and procurement of the legal firm.

Nakuru County Government, on its part, engaged a private law firm to represent the County Executive in court cases without approval by the County Executive Committee contrary to Section 16(1) of the Office of the County Attorney Act, 2020.

There was also no approval or authority by the Attorney General contrary to directives issued by the Attorney General vide the Circular Ref. No. AG/CONF/6/D/144 Vol.XI dated November 3, 2020.

The County Executive as per the report, made payments of Sh22,643,700 in respect of legal fees to six law firms.

Documentation such as how the law firms were identified, signed service level agreements, certificates of appointment, evidence of court attendance, fee notes and monthly performance reports from each law firm in respect of each case were not provided for audit.

Narok County Executive, the report revealed spent Sh364,996,746 in respect of legal fees.

The expenditure it was noted exceeded the budgeted amount of Sh337, 382,581 resulting to an unauthorized and unapproved expenditure of Sh27, 614, 165.

Tana River County on its part irregularly spent over Sh30.7 million on legal expenses which was paid to four legal firms representing the County Executive in various legal cases.

Kilifi County government also made an irregular Sh71,571,803 payment to six private legal practitioners representing the County Executive in various legal cases, providing legal consultancy services and payment to a firm that sued the County for breach of contract.

However, the payments were not supported by instructions to represent the County, evidence of court appearances and taxation where applicable.

The audit revealed there was no written approval of the County Executive Committee to engage the services of the consultants or legal firms, contrary to Section 16 of the Office of the County Attorney Act, 2020.

Kajiado County Government incurred Sh79, 130,505 on legal fee. The amount was paid to various private law firms for legal service offered to the County Executive.

In Vihiga County, a Sh230, 628,051 legal expense was also questioned. Busia County spent Sh8, 546,000, while Homa Bay paid Sh 11,001,015 to various firms for representing the County Executive in various legal disputes or court cases.

In Nairobi City a review of legal cases provided for audit revealed that the County Executive had a total of 159 court cases as at 30 June, 2024.

However, verification of the cases indicated that out of the cases 65 were assigned to just eight advocates, with the number of cases per advocates, ranging from four to 20.

The County Government it was noted did not explain the criteria used to allocate multiple cases to the eight advocates out of the 350 prequalified advocates.

The report revealed that the county spent Sh483,835,759 on legal fee.

In a recent decision by the High Court affirming Sh1.3 billion legal fees in favour of city lawyer Donald Kipkorir against Nairobi County could be mind-boggling.

However, his battle with the Johnson Sakaja-led County brings to light and sparks debate on the cost of court battles in the country.

Many other law firms other than Kipkorir’s law firm have a case against a county. Others, including Manyonge Wanyama & Associates, sued Kericho County over Sh2.4 million after it represented the county in a case against James Finlay. The county admitted owing the law firm the money but told the court that ‘it would pay as soon as funds are available.’

In a separate case, the law firm was seeking Sh4.1 million against West Pokot.

Other law firms such as one owned by Senator Prof. Tom Ojienda have sued Nairobi County over legal fees in several cases, including one he was seeking Sh717,00 in a land case worth Sh8 million.

In another case, he sought Sh121 million legal fees.

His law firm also sued Narok County over Sh64 million legal fees and Meru County over Sh6 million instruction fees.

From the contests before court, and those already concluded, counties are accumulating legal fees by failing to pay in time, a concern also observed by LSK’s deputy chair.

“We are offering quality services on law. County governments have engineering departments but it does not mean they don’t need outside help. I agree there are sections of advocates who may be used to pilfer money out of the county coffers, but it does not mean a majority of advocates should not offer stellar services to the counties,” said Kabata.

Many court battles between High Court advocates and clients have shown that the value of a property, a case or the contentiousness of a dispute, can cost you an arm and a leg.

Law Society of Kenya Deputy President Mwaura Kabata says an agreement between an advocate and a client essentially guides the legal fees.

He stated that the Advocate Remuneration Order (ARO) kicks in where there is no agreement.

He disputed that advocates are making top dollar from the devolved units. According to him, engineers are making more than his members.

ARO dictates that where a case not defended or a denial has been filed but is worth less than Sh500,000, an advocate will get Sh45,000.

Further, it provides that an advocate will charge Sh65,000 for any case between Sh 500,000 and Sh 750,000, while a case worth between Sh 750,000 and Sh 1 million will attract Sh 75,000 in legal fees.

Anything between Sh1 million and Sh20 million will attract Sh75,000 plus an additional 1.75 per cent.

Any uncontested case above Sh20 million will cost you an additional Sh 1.5 percent in addition to the fees in the bracket between Sh1 million and Sh20 million.

Where a case is defended, one will pay their lawyer Sh75,000 for a case that is less than Sh50,000, the next band attracts Sh90,000, while anything between Sh1 million and Sh20 million will cost one Sh120,000 plus two percent of the case's value.

It also dictates that a client and an advocate can settle or agree on how much they will be paid for representation.

In election petitions, the ARO states that a reasonable sum, not less than Sh500,000, will be charged to file or oppose a case.

For constitutional petitions, an easy case that is not opposed will be charged at least Sh45,000 and above, while that is opposed will be charged anything above Sh100,000.

The law also allows an advocate to charge ‘getting up or preparing for trial fees.