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{
"id": 1551972,
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"type": "heading",
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"speaker": null,
"content": "MOTION"
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{
"id": 1551973,
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"content": "ADOPTION OF REPORT ON PETITION ON RESTRAINING COUNTY GOVERNMENTS FROM HIRING LAW FIRMS TO REPRESENT THEM IN COURT CASES"
},
{
"id": 1551974,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1551974/?format=api",
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"type": "speech",
"speaker_name": "Sen. Wakili Sigei",
"speaker_title": "",
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"content": "Thank you, Madam Temporary Speaker. I will Move the Motion on behalf of my Co-Chair, Sen. Abass. I beg to move- THAT, the Senate adopts the Report of the Standing Committee on Devolution and Intergovernmental Relations and the Standing Committee on Justice, Legal Affairs and Human Rights on a Petition to the Senate by Mr. Laban Omusundi concerning restraining county governments from hiring law firms to represent them in court cases, laid on the Table of the Senate on Thursday, 3rd April, 2025. This report is a product of a Joint Sitting of two committees, convened following a petition by Mr. Laban Omusundi, a resident of Nakuru County. The petition was submitted to this House addressing concerns over restraining county government from hiring law firms to represent them in legal cases or provide legal services. The basis of Mr. Omusundi’s Petition is that we have in the county governments departments headed by county attorneys. According to him, those departments ordinarily should be expected to manage and deal with all legal issues that are subjects of legal challenges by county governments."
},
{
"id": 1551975,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1551975/?format=api",
"text_counter": 758,
"type": "speech",
"speaker_name": "Sen. Wakili Sigei",
"speaker_title": "",
"speaker": null,
"content": "Madam Temporary Speaker, the issues raised by Mr. Omusundi in his petition are that billions of shillings in form of taxpayers’ money are paid by county governments to law firms for representing such county governments in courts on legal issues, yet they The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
},
{
"id": 1551976,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1551976/?format=api",
"text_counter": 759,
"type": "speech",
"speaker_name": "Sen. Wakili Sigei",
"speaker_title": "",
"speaker": null,
"content": "have offices of county attorneys and several lawyers who are supposed to be obligated to represent county governments in such matters."
},
{
"id": 1551977,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1551977/?format=api",
"text_counter": 760,
"type": "speech",
"speaker_name": "Sen. Wakili Sigei",
"speaker_title": "",
"speaker": null,
"content": "When this report was tabled, the Speaker directed that the two committees convene and deal with this particular Petition. In this Petition, Mr. Omusundi made several prayers, which, according to him, can be handled by this House. One of them was to restrain county governments from hiring law firms in civil cases by establishing a legal framework to protect public funds. Secondly, he requested that the House recalls any subject that is already commissioned to law firms other than county attorneys. Thirdly, he requested that we put in place measures that will deter deliberate and erroneous administrative decisions and ensure that everybody is held responsible personally for any administrative decision they make that may end in courts and therefore requiring services of law firms by county governments. Lastly, he asked us to provide any other relief that this House deems necessary. Madam Temporary Speaker, upon setting up of the Joint Committee, we invited various stakeholders. The following are the stakeholders that committed reports and recommendations. We had a total of six stakeholders that included the Kenya National Commission on Human Rights (KNCHR), the Controller of Budget (CoB), the Office of the Auditor-General (OAG), the Law Society of Kenya (LSK), the Council of Governors (CoG) and the County Attorneys Forum (CAF). One of the major stakeholders that we expected to submit a report to the Joint Committee was the Office of the Attorney-General. Unfortunately, they did not send us any response. They did not also present themselves, despite the invites that were made by the Joint Committee. The KNCHR and the CAF did submit their reports which were generally agreeable to the objective of Mr. Omusundi’s on protection of public funds, whereas the LSK, upon submitting a written memorandum, also appeared before the Joint Committee on 1st July, 2024, where they sought for more time to submit additional information and also engage so that they submit more upon deliberating with members of the society as well as other stakeholders relevant to this particular petition. The CoG appeared before the Joint Committee on 8th July, 2024 and presented their memorandum. The analysis that were conducted by the Joint Committee were with regard to the several submissions by various stakeholders, particularly with regard to the relevance of the skills by the personnel in offices of the county attorneys in various counties for purposes of handling complex issues, which is one of the reasons the CoG said justifies their retention of external law firms when complex cases are filed against county governments. The other major issue that was raised was the aspect of remuneration of all the county attorneys and employees within the county governments. In most cases, they claimed that they are underpaid and therefore not properly motivated to engage in supporting county governments in legal matters. The other aspect which was specifically argued by a number of stakeholders was insufficiency of the funds allocated to the Office of the County Attorney that hampers service delivery and by extension requires that services from external law firms are The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
},
{
"id": 1551978,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1551978/?format=api",
"text_counter": 761,
"type": "speech",
"speaker_name": "Sen. Wakili Sigei",
"speaker_title": "",
"speaker": null,
"content": "engaged by a county government. Lastly was the aspect of inadequate staff allowed to be hired by county attorneys. The issues that the Joint Committee picked out for purposes of consideration that formed the flesh to this particular report are; the provisions of the Constitution of Kenya, the County Governments Act, the Office of the County Attorney Act, the Public Procurement and Asset Disposal Act, as well as the Advocates Remuneration Order, which generally regulates the amount of legal fees charged by law firms for services rendered to any other client not necessary limited to county governments. These are the laws and regulations that guided the Joint Committee in coming up with the recommendations that were made. The other critical consideration by the Joint Committee was the expenditure which we noted that was captured by a number of reports by the Auditor-General as well as county governments pending bills which were high when it came to matters of legal services. There was also the aspect of irregularities in terms of instructions being given out to warrant the ballooning expenditure that has been reported by counties with regards to legal services. The Joint Committee noted that there is need for counties to comply with the Public Procurement and Asset Disposal Act, 2015, especially when they are seeking to outsource legal services. They should also ensure that the fees which lawyers charge county governments are also within the provisions of the Advocates Remunerations Order and other relevant statutes, including an engagement where prior to getting instructions, requests of proposals for legal fees and quotations are made by county governments, so that the lowest bidders are considered. By doing that, county governments will be using resources efficiently by making sure that they do not just do it for the sake of hiring lawyers. On the basis of our findings and reports that we got from various stakeholders and the observations made by the Joint Committee, the following recommendations were made. I urge Members to go through them. This is a report with five chapters. Therefore, it is important for Members to look at the recommendations made and also submissions by various stakeholders that guided the Joint Committee in coming up with these recommendations. The recommendations made by the Joint Committee included the following. Firstly, county governments are encouraged to build capacity of employees under the Office of the County Attorney. By doing so, it will help them to ensure that complex cases which they made reference to as a basis of hiring lawyers from outside are justified. Secondly, county governments are encouraged to strictly adhere to the regulations, legal framework, the Public Procurement and Asset Disposal Act, as well as the Advocates Remuneration Order when approving payments for legal services. When they adhere to that, definitely they will charge within the scale. That will ensure that public resources are managed well and also the expenditure on legal services generally is managed. Thirdly, whenever county governments seek representation from external lawyers, that should only be limited to occasionally complex cases that would be justified because The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
},
{
"id": 1551979,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1551979/?format=api",
"text_counter": 762,
"type": "speech",
"speaker_name": "Sen. Wakili Sigei",
"speaker_title": "",
"speaker": null,
"content": "of the expertise generally available within county governments. By doing that they are expected to ensure they comply with the process of procuring such services. Madam Temporary Speaker, this is provided for by the Office of the County Attorney Act where the procedure of procuring services is provided for and this also. The same act provides for the limits within which this amount should be charged. As we make these proposals we are alive to the fact that they are also entitled to make certain decisions. This is because they are the people who would largely be affected by whatever decision that is taken when it comes to matters legal that have either been filed before court or matters which are supposed to be dealt with within the county government. The committee was alive to also the fact that this is a service industry and, therefore, it is regulated in law. Entitlement by law to the services of a lawyer cannot be limited particularly because of the cost. The cost can be managed because the law provides on how to bill and also limits under the advocates remuneration order the amount of legal fees that one is expected to charge. Madam Temporary Speaker, that is forming the basis of the recommendations made. As we do this recommendation, I take note of the fact that the joint committee was expected to engage particularly at the level of the county governments. The committee relevant to deal with this petition was the committee on devolution and inter- governmental Relations. Since the aspect of legal fees dealt with the Committee on Justice, Legal Affairs and Human Rights committee, that informed the position that was agreed in a consensus mode. Lastly, I appreciate the fact that the office of the Clerk of the Senate and the office of the Speaker of the Senate supplied this committee with relevant services. I take this early opportunity to appreciate and thank the offices for the support that was extended to this Joint Committee in undertaking this very important petition. The various stakeholders who are key players in this sector indeed supplied us with very important information that fed into this report. The unfortunate thing was the absence of any interest from the office of the Attorney-General that should have created more interest. I take this early opportunity to encourage the Attorney-General and the office of the Solicitor General to take serious the summons and also the requisitions that would go out of this House. Without their input we lose a lot of public interest aspect that would be taken care of by the office of the Attorney-General. As to whether or not this can speak to the commitment and the respect that the office of the AG takes to this House, I leave that to the judgment of the office of the AG. They cannot claim not to have been notified or to have had personnel to ensure that they give their input to this very critical aspect. This is something that has a lot of public interest and it was expected that the office of the AG would have played a role in supporting or to give a guide in terms of the recommendations, which would be very relevant to this particular petition. Madam Temporary Speaker therefore I now submit this report and ask the honorable Members to support. I request the honourable Senator for Nairobi City County, my good friend, Sen. Edwin Sifuna, to second. The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
},
{
"id": 1551980,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1551980/?format=api",
"text_counter": 763,
"type": "speech",
"speaker_name": "Sen. Sifuna",
"speaker_title": "",
"speaker": {
"id": 13599,
"legal_name": "Sifuna Edwin Watenya",
"slug": "sifuna-edwin-watenya"
},
"content": "Madam Temporary Speaker I rise to second. First, I take this opportunity to thank the committees, the joint committees of JLAC and the committee on Devolution and Inter-Governmental Relations for the good work they have done. We were just having this discussion with Senator for Narok. I wish that the recommendations of the committee were stricter than what have been recommended. Yesterday we woke up to a headline story that there is one lawyer who represented the Nairobi City County Government in a suit involving a land squabble between the county and the military. That lawyer has been awarded Kshs1.3 billion as legal fees for a case that was involving the military and which is one section of government and a county government. The most interesting bit is that that case was withdrawn by consent, which tells you the county government sat down with the military and agreed to withdraw the case on certain terms. Now the court is telling the Nairobi City County government to pay that Kshs1.3 billion within 60 days. We, as Senators, here know for a fact we pass the disbursement schedule for monies to come from the national government to go to counties. In the disbursement schedule for Nairobi City that is the equivalent of one month's disbursement from Exchequer to the Nairobi City County Government and then the court is telling us to pay this one individual Kshs1.3 billion in 60 days. When I was in law school we learned that the court should not issue orders in vain. My senior hear - retired Justice Madzayo - you know for a fact it does not matter what you do. There is no way Nairobi City County can pay Kshs1.3 billion in 60 days. It is not possible."
},
{
"id": 1551981,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1551981/?format=api",
"text_counter": 764,
"type": "speech",
"speaker_name": "Sen. Sifuna",
"speaker_title": "",
"speaker": {
"id": 13599,
"legal_name": "Sifuna Edwin Watenya",
"slug": "sifuna-edwin-watenya"
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"content": "Madam Temporary Speaker I was saying the committee should have gone further because if you look at the total pending bills for Nairobi, which stand over Kshs100 billion, Kshs20 billion is pending bills owed to advocates. I can say here without fear or favour that although I am an advocate myself, lawyers in this country have abused this legal fee system in our counties to siphon money from county governments and from the people of the country and especially the people of Nairobi. It is unconscionable because when the committee says that the bill should be charged according to the remuneration order, the remuneration order says you use the value of the property to calculate your fees. If a matter involves land of half an acre or 300 acres though the value of land varies, the issues involved in that particular legal case are not different. It is the same law and the same dispute. The good thing is here being that Madam Temporary Speaker, you are also a lawyer. It is unconscionable for us as legal practitioners to do what is happening in our counties. The first time I was ever elected to anything was to the Council of the Law Society of Kenya in 2016. I am a former council member of the LSK. Although the conversation there is that we should not shrink the practice areas for lawyers or that we should not try and limit the amount of money that lawyers can charge for as long as it is legal, we are abusing this system. I do not think even the LSK itself can accept what is happening in our counties when it comes to legal fees. For me this petition is solid. If you look at the feedback that has come from the county governments, they are saying that the internal lawyers that are supposed to be deployed under the county attorney office sometimes these matters are of a complex The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
}
]
}