Counties spent a whopping Sh2.5 billion in just two years to pay lawyers for litigations in what a parliamentary report terms either extravagant or questionable contractual arrangements.
Narok and Nairobi top the list of counties that were most generous in doling taxpayers’ money out in legal fees, according to a report by the inter-governmental relations committee.
The report shows the two counties jointly spent Sh1.2 billion between June 2014 and June 2016. While Narok spent Sh591 million, Nairobi sank Sh577 million, a figure that, however, contradicts the Auditor General’s which put Nairobi’s expenditure on legal fees at Sh1 billion. The magnitude of the expenditure by the two counties threatens to rival the Sh1.4 billion spent by the National government on legal fees over the same period.
The two are closely followed by Makueni (Sh205 million), Mandera (Sh176 million), Mombasa (Sh171 million) and Isiolo (Sh144 million).
The least spenders are Taita Taveta (Sh100,000), Siaya (Sh1 million), Lamu (Sh1.2 million), Busia (Sh3.2 million) and Wajir (Sh4 million).
And to rub it in, the counties could have cut expenditure by 75 per cent if the Alternative Dispute Resolution (ADR) mechanisms, which are considered most suitable for disposal of such disputes, were put in place.
The report also alludes to collusion between officials bent on fleecing the counties and lawyers out to make a killing.
The current situation is due to the fact that county governments do not have adequate internal advocates to defend them in different disputes hence incurring the huge costs of litigation.
“Over-reliance on external advocates exposes the counties to the risk of collusion between officers and advocates in fixing exorbitant fees. The integrity of lawyers should be enforced to avoid collusion,” reads part of the report, which also links lack of transparency to budgetting questions for the legal fees.
“Legal services functions in several counties are subsumed in departments with other functions making it difficult to establish exact amounts that are budgeted for legal services and payments,” the report further says, adding that the high costs of litigation constitute a major constraint to development, particularly in the county governments.
Advocates’ fees for cases at the High Court range from Sh20 million to Sh30 million per case but with several instances where advocates were charging as much as Sh75 million and in one case Sh200 million, says the report.
The report says the Judiciary should not be handling inter-governmental disputes: “The Constitution and best practices all point to the fact that the Judiciary is, in fact, unsuitable for resolution of inter/intra-governmental relations. The judicial process is expensive, slow and adversarial which is bad for continued relations between the two levels of government. It is clear from the study that intergovernmental disputes should initially seek to be resolved through ADR and court action should only be a last resort.”
And although Chief Justice David Maraga has announced plans of embracing ADR, the report paints a grim picture as there is no legal framework for an immediate roll-out.
It notes that besides the lack of relevant laws to support the process, ADR faces other challenges such as lack of ownership by legal professionals as lawyers are trained to consider litigation as the first option, as well as lack of clear guidelines on remuneration. “Some members of the bench see arbitrators/mediators as competitors,” the report says.
And though there is no established remuneration structure for arbitrators, the report cites rates by the Chartered Institute of Arbitrators which shows that, on average, it would cost not more that Sh25,000 to hire a chartered arbitrator and Sh15,000 for conciliator which is a far cry from the prevailing rates on litigation where for every case filed before the High Court, there is a mandatory advocates fees of between Sh70,000 and Sh120,000 plus the advocates fees which range from Sh60,000 to as high as Sh200 million.