Court allows State to hire private lawyers but warns against waste

High Court judges rule that the Constitution does not bar the office of the AG and the County Attorneys from seeking legal services. [File, Standard].

National and County government agencies can outsource legal services, a High Court bench has declared.

At the same time, the judges have warned government agencies to make good use of the offices of the Attorney General (AG) and County Attorney to litigate their court cases.

They note that the two offices were established as the legal department and were mandated to hire lawyers who litigate in courts on behalf of the government agencies.

In their verdicts, Justices Patricia Gichohi, Samwel Mohochi and Julius Nangea ruled that the Constitution does not bar the office of the AG and the County Attorneys from seeking legal services.

According to the bench, although the office of the AG and the County Attorney are mandated to provide legal services, they can seek necessary legal services to assist in efficient litigation.

The judges also noted that the outsourcing of legal services was regulated and any engagements require approvals by the two national and county legal offices.

“The court notes that any decision to outsource legal services must comply with the Constitution, accountability policies and the prudent use of public resources,” the judges stated.

The judges dismissed a petition filed by Dr Magare Gikenyi, Busia Senator Okiya Omtatah, Laban Omusundi, among others.

The petitioners wanted the government to be permanently barred from outsourcing legal services, because they had the office of the AG and the County Attorneys, which were equipped with state lawyers to handle cases.

The three maintained that the Constitution and the Parliamentary Act stipulated and provided for how legal services could be procured in a bid to maintain accountability and facilitate efficient litigation.

“The court is not persuaded that the AG Act and County Act were unconstitutional. The Constitution does not prohibit outsourcing of legal services but only regulates the same,” the judges ruled.

The judges, however, cautioned the government that the office of the AG and County Attorneys would be rendered useless if they bypass them when sourcing for legal services.

They took note that the government employs the best lawyers in the two offices, who undergo competitive processes and join with expertise.

Further, they argued that the two offices receive budget allocations for salaries and also to aid in handling court cases, and unless necessary, the same should be used.

The court said it could not ignore concerns raised by the Public Service Commission and Katiba Institute that there was duplication of roles and public funds were being used to hire private lawyers.

“We note the high cost of outsourcing legal services and the duplication of work, although the fees are remunerated under the Advocates Remuneration Order,” the judges said.

They expressed concerns that the government agencies were refusing to engage the highly qualified public lawyers and bypassing them to seek outside help.

“The same undermines the two offices and defeats the function and the mandate given to the AG and the County Attorney offices,” they ruled.

Further, while noting that the lawyers in the offices were being paid but at the same time legal fees were also paid to private law firms, they said they were adamant that there was some lack of prudent use of public resources.

The bench also observed that government lawyers undergo in-house training that costs a fortune and become experts, but when their services are required, the government bypasses them without justification.

“This will weaken the institutional legal capacity and the agencies must be careful to ensure that they only outsource legal services when necessary and when the expertise needed is not within the two offices,” they stated.

While dismissing the petition, the judges faulted the petitioners for not providing evidence to prove that there was misuse of funds in outsourcing legal services.

The judges ruled that the petition was filed prematurely, noting that the petitioners had other avenues of raising their concerns before moving to court.

“Any complaint of corruption and misuse of funds should be reported to the Ethics and Anti-Corruption Commission or the Commission on Administrative Justice,” they maintained.

The petitioners had informed the court that taxpayers faced Sh243 million in legal fees for the cancelled proposal by India’s Adani Group to take over Jomo Kenyatta International Airport (JKIA).

They also stated that the Kenya Airports Authority (KAA) had submitted an original budget of Sh12.5 million but the final budget submitted by Triple OK Law Advocates was Sh243 million, which was not cost-effective.

Despite the same, the judges said that apart from the allegations, the petitioners failed to provide evidence to prove that there was conflict of interest, corruption and misuse of public funds.

Further, they noted that some claims in the petition had previously been handled by another bench who declared that outsourcing legal services does not violate the Constitution.

“The petition is dismissed for lacking merit. No orders are made as to costs,” the judges ruled.