Kenya Law Reform Commission (KLRC) has recommended an amendment to the Office of the County Attorney Act to guide the hiring of legal services by devolved units.
In a proposal to the Senate, KLRC said Sub-section 16 (2) should be amended to compel the county executive to provide reasons for hiring external law firms.
The commission said a request by a department to the county executive committee to engage the services of a consultant for the provision of legal services should be in writing explaining why the services cannot be performed by the county attorney.
It further said Sub-section 16 (4) should be amended to provide that the county executive shall seek confirmation from the county attorney that the office lacks capacity to render services for which a consultant is sought.
“The Senate has the constitutional authority to make these amendments under Articles 96(2) and 110(1) of the Constitution,” KLRC secretary Joash Dache said.
Devolved units have accumulated pending bills of more than Sh56 billion in legal fees alone, with Nairobi leading with more than Sh21 billion, according to reports of the Auditor General.
This is despite the counties having established legal departments, complete with staff led by county attorneys.
The Senate Justice, Legal Affairs and Human Rights Committee and Devolution and Intergovernmental Relations Committee is considering a petition seeking to bar counties from hiring lawyers.
Grassroot Civilian Oversight Initiative executive director Laban Omusundi petitioned the House to pass legislation to stop governors from outsourcing legal services.
He wants the Senate to come up with a legal framework to prevent loss of money in legal fees.
“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,” Omusundi avers.
It its proposal, KLRC said the provision that allows counties to hire private legal consultants makes the Act self-defeating.
“It beats the very reason why the Office of the County Attorney was established,” Dache added.
He explained that it would be imprudent use of public resources to hire officers in the Office of the County Attorney and allow them to be idle while their work is conducted by private firms.
