Counties flagged for wasting billions on external lawyers despite having fully staffed legal teams

Nairobi County has emerged as the biggest spender on legal costs among devolved units, with a staggering Sh21.3 billion bill in outstanding legal fees, an amount that accounts for 11 per cent of its pending bills.

According to the Auditor General Nancy Gathungu, Sh6.2 billion of this is owed to just four advocates, representing 29 per cent of the total debt.

The report reveals that despite maintaining fully staffed legal departments, counties are routinely outsourcing cases to private law firms at exorbitant rates, often without competitive bidding, documentation or approval from executive committees.

The Auditor General’s 2023/2024 report paints a picture of entrenched patronage, where counties like Nairobi, Trans Nzoia and Homa Bay are accused of awarding multi-million-shilling contracts to law firms irregularly, with no evidence of court appearances or proper paperwork.

In Nairobi, 65 of 159 cases were handled by just eight advocates, with no clear justification for their selection. The capital’s expenditure reflects a wider trend across counties, where billions of shillings are lost through opaque legal outsourcing.

In Kilifi, for instance, six private lawyers pocketed Sh71.5 million out of Sh276.2 million in operating expenses. However, auditors found no records of instructions, court attendance or taxation of fees as required by law.

Tana River paid Sh30.7 million to four firms without approval or documentation.

“In the circumstances, the accuracy and completeness of legal expenses amounting to Sh30.7 million could not be confirmed,” Auditor General Nancy Gathungu said.

Mandera was flagged for spending Sh45.5 million without executive approval, while Marsabit paid Sh3.3 million in legal fees for a case where the claimant sought Sh1 million in damages. The county lost, raising the total cost to Sh4.3 million, with no evidence of how the fees were calculated.

In Machakos, Sh38.8 million went to four law firms with no case files presented for audit. Kisumu spent Sh46 million but failed to provide court attendance records or fee breakdowns, while Nyandarua outsourced 50 cases to private lawyers despite employing five legal officers.

Other counties were also flagged for irregular legal spending. In Trans-Nzoia, only seven of 36 prequalified law firms were engaged through direct tendering to handle 24 cases, a move the Auditor General said violated procurement regulations.

Uasin Gishu County, despite having a fully staffed legal department, spent Sh22.2 million on external legal services, raising questions about why in-house resources were bypassed. Similarly, Nandi County incurred Sh36.8 million in legal expenses, which were hidden under general operating costs, without explanations for outsourcing.

Narok County exceeded its legal budget by Sh27.6 million, paying Sh365 million against a budgeted Sh337 million, while Kajiado County spent Sh79.1 million on legal fees without obtaining approvals, contracts, or providing itemised billing.

Bomet County faced nearly Sh15 million in additional costs due to penalties and interest from mishandled cases. In Migori, Sh50.3 million was paid to law firms with no evidence that fees complied with the Advocates Remuneration Order, while Busia allocated Sh30.5 million to external lawyers without any supporting documents.

In Siaya, Sh34.6 million went out for legal services, yet auditors could find no records of court attendance or fee breakdowns. Homa Bay County, despite having a fully operational legal unit, outsourced all 350 of its court cases, raising further concerns about unnecessary expenditure.

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Constitutional lawyer Charles Kanjama said concerns of corruption in county procurement of legal services are valid.

“Many public sector organisations have in-house counsel to handle internal legal matters, while still using external counsel for specific matters suited to external lawyers. This equally happens with other professionals, where internal staff are complemented by external experts,” he said.

He added that external lawyers often handle litigation, conveyancing and large commercial transactions, mainly to avoid conflicts of interest or when the workload exceeds in-house capacity.

The Auditor General’s findings, however, suggest that outsourcing has become a conduit for wasteful expenditure and potential graft, raising questions over accountability in the use of devolved funds.