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Millions at stake as court halts use of private lawyers by public institutions
The headquarters of the Nairobi City County Government offices on City Hall Way.
The High Court has temporarily stopped public institutions and county governments from engaging private law firms for work that can be done by State counsels and county attorneys.
Dr Magare Gikenyi and six others argue that private law firms gobble millions of shillings every year, yet public institutions and the county governments have legal officers at their disposal.
The petitioners argue that there is no constitutional justification for procuring private advocates when Kenyans are already footing the bill for recruited lawyers.
The court certified the case as urgent and directed the petitioners to serve the court documents on the respondents, who include the Council of Governors, Attorney General, Independent Electoral and Boundaries Commission and Public Service Commission.
The case will be mentioned on January 30 for further directions.
“A conservatory order is hereby issued suspending the engagement, procuring, continuing to procure, pending payments, all engagements of private advocates/law firms by all public entities when there is already hired attorney general, state counsels, solicitor general, county attorneys, county legal counsels, legal officers & legal personnel of all public entities pending the hearing and determination of this Application and the petition,” said the court.
The court further directed the Controller of Budget, Margaret Nyakang’o and all public servants from approving any vote or funds for the acquisition of external legal services or advocates for all public entities, pending the hearing and determination of the case.
Dr Gikenyi says in an affidavit that allowing public entities to continue to acquire or procure legal services from private practice, ‘who gobble millions of shillings,’ is contrary to several articles of the constitution.
The medic said that in the cancelled Adani deal- for the development and renovation of the Jomo Kenyatta International Airport (JKIA)- Kenya Airports Authority (KAA) allegedly paid Sh243 million to a private law firm to defend it.
He said the Auditor General in its report 2024/2024 questioned the ‘wisdom’ of using private legal advocates while county attorneys and state counsels’ idle’ at their offices, contrary to the constitution dictates of prudent utilisation of scarce public resources.
The medic pointed out that the Controller of Budget noted that county governments cumulatively incurred huge costs of payment of legal fees, with Nairobi county allegedly accounting for Sh21.39 billion (73 percent) of the total county legal costs of the cumulative 38 counties as at June 30, 2024.
The petition stated that lawyers appearing for the IEBC pocketed Sh445.5 million in legal fees following the 2022 disputed elections, yet the election petitions are normal business that can be done by any state counsels who are already available in the state law office, counties and other public entities.
The petitioners argue that public entities have not shown that the hiring of private advocates was necessitated by special skills and expertise not available among lawyers at the State law office.
“These institutions (public entities) have a battery of advocates at their disposal. Hence, there is no constitutional justification for procuring private advocates when Kenyans are already footing the bill for recruited lawyers,” Dr Gikenyi said.
The petitioners want the court to determine whether the procurement of private or external legal advocates adheres to constitutional dictates on tests of prudent use of scarce public financial resources and procuring of services that are fair, equitable, transparent, competitive and cost-effective.
