County governments are at liberty to continue using billions of shillings on legal fees after Senators failed to block them from seeking the services of external law firms.

The Senators have however advised the counties to only outsource legal services for complex or specialised cases which cannot be handled by the office of the county attorney.

A report tabled jointly by the Senate, Justice & Legal Affairs, and Senate Devolution and Intergovernmental Relations Committees in the House last week gives the 47 devolved units a go-ahead to continue engaging external advocates.

“The 47 county governments are directed to pursue representation from external legal firms occasionally when handling complex or specialised legal services, which should be procured through the office of the county attorney,” states the report.

The report follows a petition by Laban Omusundi, a Nakuru resident, who prayed to the Senate to restrain the devolved units from hiring law firms to represent them in civil court cases, aiming at guarding the huge amounts of county funds used in paying private law firms.

“The Senate should put up measures to discourage deliberately flawed administrative decisions that will make sure everybody is held responsible personally for administrative decisions they make that may end up in courts,” states the petition by Omusundi.

The Senate report comes at a time when county governments across the country are on the spot over alleged misuse of billions of shillings of taxpayers’ money on hiring of law firms despite the existence of fully-fledged legal departments headed by County Attorneys.

In her 2023-24 audit report, Auditor General Nancy Gathungu exposed how the counties are losing billions in legal fees citing the example of Marsabit County which procured services of a law firm at Sh10.3 million to defend a civil case it had been sued for Sh1 million damages.

The Auditor General pointed out that in Kisumu, there was Sh46 million in unsupported legal expenses, while in Mombasa, the county was faced with unexplained payments of Sh67 million in legal fees to external legal firms.

In Kilifi, the auditor flagged Sh71 million legal fees, while in Uasin Gishu County, which, despite having a County Attorney, had spent Sh22.2 million on external legal representation without a clear reason as to why it was done.

In the 2022-23 financial year, the Auditor General queried Sh1.45 billion expenditures on legal fees pending in the counties, while in 2021-22, the auditor queried Sh23.84 billion, while in 2022-21 the amount flagged stood at Sh2.17 billion.

“The Office of the Auditor General reports show that counties continued to engage private law firms to offer legal services despite establishing the offices of county attorney, which raises many questions as to why that is done,” states the report. 

The Auditor General’s report showed that most counties do not adhere to the requirements of section 16 of the Office of the County Attorney 2020 Act, which requires them to seek written approval from the executive committee when engaging external legal services for the county.

In their submission to the Senate, 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.

In the report, the joint Senate committees asked the counties to prioritise capacity building of programs for legal counsels and ensure competitive remuneration and timely payment of allowances.

“To enhance the equality of legal representation, counties engaged external lawyers to be able to access specialized knowledge and skills that are essential for effectively addressing specific legal challenges,” said the report.

The Senate also wants the counties to allocate sufficient budgetary resources and recruit adequate staff to enhance the performance and effectiveness of the office of the county attorney while strictly adhering to the legal framework governing the outsourcing of legal services.

In all her audit reports the Auditor General exposes massive wastage of public funds on legal fees where the counties spend millions of shillings on cases that can be handled by their respective legal departments.

However, the counties have defended their actions, stating that they outsource the legal services since most of the cases they face are complex and cannot be handled by the office of the county attorney.