Tana River County has spent more than Sh620 million on questionable legal fees over the past two years despite not having a legally appointed County Attorney.
According to reports by the Auditor General and the Controller of Budget, the county spent Sh629.28 million on legal services between 2022 and 2024.
This occurred despite the absence of a legally constituted County Attorney’s Office, a direct violation of the County Governments Act and the Office of the County Attorney Act.
The irregularities began in 2022 after the County Assembly rejected the governor’s nominee for the County Attorney position.
Since then, no new name has been forwarded for vetting yet legal transactions have continued, authorised and executed by an unnamed individual acting as County Attorney, despite lacking legal backing.
In the 2022/2023 financial year, the Auditor-General Nancy Gathungu flagged Sh475 million paid to undocumented and unnamed law firms. An additional Sh30 million was paid without any supporting documentation. By August 2024, the Controller of Budget flagged a further Sh124.28 million for similar concerns bringing the total to more than Sh620 million.
Auditor-General Nancy Gathungu.
Photo credit: Dennis Onsongo | Nation Media Group
“The County Government continues to engage external legal services unprocedurally despite having a legal department captured in the Integrated Personnel and Payroll Database (IPPD) system and drawing salaries,” reads part of the 2023/2024 Controller of Budget report.
Under the law, only the County Attorney appointed by the governor and vetted by the County Assembly is allowed to authorise legal procurement and manage litigation on behalf of the county. The office is also meant to be supported by a solicitor and legal officers.
But in Tana River, this structure exists only on paper.
When contacted by Nation, County Chief of Staff Maurice Osano acknowledged that a legal officer was discharging the functions of the County Attorney. However, he could not explain how the position came into existence without an official appointment or vetting.
Controller of Budget Margaret Nyakango.
Photo credit: Jared Nyataya | Nation Media Group
“This is a complicated issue... there is a legal officer performing duties under the office of the County Attorney,” said Mr Osano.
Asked whether the Governor had formally appointed the officer, Mr Osano said the matter was “internal” and declined to comment further.
Meanwhile, the County Assembly maintains that the position remains vacant. Speaker Osmane Galole confirmed that since rejecting the 2022 nominee no replacement has been submitted to the Assembly.
“We have never received another nominee. All requests to the governor to regularise the office have fallen on deaf ears. This is unlawful,” said Mr Galole.
He added that someone posing as the County Attorney had even attempted to participate in committee meetings only to be turned away after Assembly officials verified that the office was legally vacant.
“It’s a fraud the Office of the Attorney General needs to flag immediately. We are questioning the legality of all legal proceedings the county has entered into since 2022,” the Speaker said.
The controversy is further compounded by the fact that the county has a fully salaried internal legal team, including two legal officers on the payroll.
Records from the Controller of Budget confirm that these individuals are captured in the Integrated Personnel and Payroll Database. However, none has been legally appointed or vetted to act as County Attorney.
“This means taxpayers are paying twice, once for the internal legal team and again for fake legal services from ghost law firms,” the Controller of Budget report concludes.
Civil society groups have now waded into the matter demanding immediate investigations. Chairperson of the Tana River Civil Society Organisations Network John Dhadho said the failure to appoint an attorney is a calculated move to facilitate embezzlement.
“The failure to constitute the office is deliberate. Someone is siphoning funds behind the scenes and we demand accountability,” Mr Dhadho said.
He wants the person currently acting as County Attorney illegally to be surcharged and held personally liable for the misappropriated funds.
“This is not just mismanagement. It is outright theft and the DCI and EACC should swing into action immediately,” he added.
Sources close to the County Public Service Board confirmed that a legal officer had been hired and informally assumed the attorney’s role raising further legal and ethical concerns.
